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We purchased a house (7th January, 2018) after a once off…

We purchased a house...

We purchased a house (7th January, 2018) after a once off open for inspection however we were not advised until just before signing the contract of sale that the house had a long term tenant leasing the property. We were concerned with this as we were purchasing the house as a family home, not an investment property. The Senior Sales Agent assured us that by writing in the Special Conditions of Sale on the Contract of Sale, "the property to be vacant possession on settlement day" and guaranteed that the tenant would vacate the property. He also advised us that the tenant had been given a 90 notice to vacate the premises.We were living in a short term rental and having to vacate in early March, we asked if we could settle on our new house earlier, preferably 3rd March. The Senior Sales Agent and his assistant said that the tenant was actively looking for a new rental and they were more than confident that this could be arranged. We even received a text (SMS) confirming this conversation from the Sales Assistant. We found out a few weeks after paying our deposit, that the tenant was able to stay up until the end of her lease 9th June 2019. This came as a complete shock to us. We contacted the Agency (Stockdale & Leggo Manningham, Doncaster East) and spoke with the Director of Rentals who confirmed that the tenant could remain in the house until her lease ends however reassured us that the tenant was actively looking for a new rental property. We asked her why could the tenant remain in the property when the 'Special Conditions' on the Contract of Sale stated that the property would be vacant at settlement. She advised that there was a section on the contract that stated 'Property Leased' and this over rode the Special Conditions. We asked then why would the Managing Director, acting as an advocate for the vendor, initial the Special Conditions knowing that the property was used as a rental and we were wanting to buy it as a family home. The Director said that she would get the Managing Director to call us to discuss our concerns but to this day we have not heard from him, this was over 3 weeks ago. The Director also advised us that she would keep in regular contact as the current tenant 'should' be vacating prior to settlement and then changed her tune a week or so later saying that the tenant had every right to stay.

Lawyer's Assistant: Because real estate law varies from place to place, can you tell me what state this is in?

Our Conveyencer has been trying to obtain a notice to vacate letter from Stockdale & Leggo however the Director has informed us that the letter does not exist. We are currently living with my wife's mother in a retirement village with our 9 year old son (our daughter has had to move in with her boyfriend's family) which is totally inconvenient however we have no other alternative. This can only be a short term option and we are wanting to move into our new house on settlement date. We advised Stockdale & Leggo last Friday, 9th March that we don't want to settle until the premises is vacant as per the contract of sale Special Conditions. Settlement is supposed to be on 7th April, 2018. If we delay our settlement does this have repercussions for us? Can you please advise what our options are? As settlement date is 3 weeks away we need this matter resolved urgently as we do not want to take on a tenant. We are in Victoria. Yours sincerely Vincent & Michelle Kavenagh

Lawyer's Assistant: Has anything been filed or reported?

No. The Conveyencer has advised us that the Realestate Agency has mislead us as there is contradicting information on the Contract of Sale and has advised that we could try to void the sale however all we want is our family home to move into.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I really don't know as we are totally stressed and want this to process to end.

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Answered in 5 minutes by:
3/14/2018
John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 2,449
Experience: Principal Lawyer at Legal AU Pty Ltd
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Hi, my name is***** solicitor in Melbourne. Thank you for using Just Answer, and I will answer your question today, and ask various questions to narrow the issues in your post raised.

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do you have a copy of the contract ?

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Customer reply replied 1 month ago
Not currently on me, I'm at work and the Contract of Sale is at my mother-in-laws home. There's no-one there at present.

are you wanting to get out of the contract or have the tenant removed ?

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Customer reply replied 1 month ago
We want the tenant removed so that we can settle.

If you want the tenant removed you can issue the relevant notice under the Residential Tenancy Act advising that the owner is taking possession. This notice to vacate needs to be issued in accordance with the Act.

If you are wanting to rescind the contract you will need to find a breach within section 32 that is serious, such as a defect in title.

In relation to the agent you may be able to raise a claim under the Australian Consumer Law for misleading and deceptive conduct, subject to the disclosures the agent provided with the sale, such as advertising etc.

Bot***** *****nes you do have legal right to remove the tenant as required.

The best outcome would be to negotiate with the tenant for an amicable removal once you take possession fo the property.

You can come back to this post any time to ask questions and there will be no further charges to you.

Don’t forget to rate me 5 stars as this supports me helping the community, and thank you for using Just Answer.

John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 2,449
Experience: Principal Lawyer at Legal AU Pty Ltd
Verified
John Melis and 87 other Australia Law Specialists are ready to help you
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Customer reply replied 1 month ago
Thank you John

you are welcome

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John Melis
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