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Can you help me with houseing issues please. No I live in…

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Hi can you help...

Hi can you help me with houseing issues please

Lawyer's Assistant: What steps have you taken so far? Have you prepared or filed any paperwork?

No I live in the my house and give of one of my room for rent and now I ask that person to leave my property and she refused

Lawyer's Assistant: Where is the house located?

What do I need to do ?

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

Like what I’m sorry

Submitted: 23 days ago.Category: Australia Law
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Customer reply replied 23 days ago
I have no paper work mate i met the person in gumtree
Customer reply replied 23 days ago
My question is how can take of that person from my house
Answered in 5 hours by:
5/28/2018
Solicitor: John Melis, Lawyer replied 23 days ago
John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 3,062
Experience: Principal Lawyer at Legal AU Pty Ltd
Verified

Hi, I’m John a solicitor from Melbourne. I may ask you a few questions to narrow the issues you have raised.

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Solicitor: John Melis, Lawyer replied 23 days ago

In relation to your important question, there are two main issues, tenant in arrears not paying rent (eviction), and damages to the property.

Eviction - Rent Arrears

Where the tenant is in arrears of the lease payments for the leased premises, before the lessor can retake possession of the property that was leased, a proper default notice, must be served on the tenant.

If service of the default notice has been done correctly on the lessee (tenant) and the default has not be remedied in accordance with the default notice, only then can the lessor take possession (regain) of the property.

If the property is taken without proper notice to the tenant, the tenant will then have a claim against the lessor and will be able to sue for damages.

The lease provision are very important in respect to serving notice and how that notice must be served.

Where an agent is appointed to act for the lessor and the agent fails to carry out their duties diligently, the lessor may have a claim against the agent for breach of contract under the agent authority agreement, and the lessor (you) will be able to sue the agent for damages of losses incurred.

Under the tenancy act you have to provide the tenant 14 days notice to vacate where the tenant is in arrears of the rent.

Where the tenant is not willing to leave the premises under the notice that you have provided, you will need to get a tribunal order for the removal of the tenant from NCAT. New South Wales Civil Administrative Tribunal.

You can file a claim directly under the te***** *****st:

You will be the applicant and the tenant the respondent.

The important filing document is the points of claim. This document needs to be carefully drafted.

I recommend that you download the application first, complete the same and then upload as required to commence the claim.

The alternative to this is filing an application in the local court, in which case you will be able to recover your legal fees as well in pursuit of the debt amount.

What you need to do is to write the complaint in a chronological order detailing what is the issue and what action you have taken to try and rectify the matter.

The chronological order need to be numbered with points 1, 2, 3, etc. with each point being a separate item.

I recommend that you download the application first, complete the same and then upload as required to commence the claim.

I recommend that you download the application first, complete the same and then upload as required to commence the claim.

The following link will assist you further.

https://www.ncat.nsw.gov.au

You have a legal right to protect your interests in this important situation.

Where the tenant does not vacate the property you will need to go back to NCT And obtain a sheriff’s order for the removal of the tenant from the property.

If you want the tenant to vacate you must give them a termination notice. The notice must:

  • be in writing
  • be signed and dated by you or your agent
  • be properly addressed to the tenant
  • give the day on which the residential tenancy agreement is terminated and by which the tenant is required to vacate
  • where appropriate, give the grounds/reason for the notice.

You can write your own notice or use the model termination notice provided by Fair Trading.

The minimum period of notice you can give the tenant to vacate is:

  • 14 days – if the tenant is 14 days or more behind with the rent or has committed some other breach of the tenancy agreement
  • 30 days – if the fixed term of the agreement is due to end
  • 30 days – if the premises have been sold after the fixed term has ended and vacant possession is required by the buyer under the terms of the sale contract
  • 90 days – if the fixed term period has expired and no new agreement has been signed.

These notice periods are designed to give tenants reasonable time to find another rental property. If they can find a property sooner they can move out at any time without having to give you any formal notice. Except where notice has been given for the end of the fixed term, the tenant's responsibility to pay rent ends from the date they hand back possession, not the end of the notice.

There is no minimum notice period required if notice is given on the grounds of:

  • the premises being destroyed or wholly or partly uninhabitable
  • ceasing to be legally usable as a residence
  • being acquired by compulsory process (eg. by the RTA)
  • on the death of the sole tenant.

After you issue a notice you can issue another notice on a different ground if necessary. For example, if you issue 90 days notice to terminate a periodic tenancy without a reason, and the tenant then doesn't pay rent for 14 days, you can issue a non-payment of rent notice.

The procedural steps are important to follow to avoid a counter claim being raised by the tenant.

If you give notice and your tenant does not vacate by the due date the only action you can take is to apply to the NSW Civil and Administrative Tribunal for a possession order. You cannot forcibly evict the tenant yourself or take action such as changing the locks or cutting off the water or power supply. Heavy penalties and compensation could be payable if you do.

You need to apply to the Tribunal within 30 days after the date to vacate specified in your termination notice. Whether you obtain a possession order is up to the Tribunal to decide, based on the evidence you and the tenant present at the hearing. In the case of notice 'without a reason' the Tribunal must make a possession order if the notice was served correctly, unless the tenant can prove it was retaliatory.

If the Tribunal makes an order it will give the tenant a date to move out. If the tenant still does not vacate you will need to obtain a warrant for possession from the Tribunal's Registry and have it enforced by the Local Court Sheriff's Office.

You can apply direct to the Tribunal for a possession order, without giving the tenant notice, in the following circumstances:

  • serious damage to the premises or any neighbouring property
  • injury to the landlord, agent, employee or one of the tenant's neighbours
  • use of the premises by the tenant for illegal purposes such as drug manufacture
  • threat, abuse, intimidation or harassment by the tenant
  • undue hardship faced by the landlord
  • if the tenant has occupied the same premises for 20 years or more.



Damage to property.

Where there is a damage to the property because of the tenant, or the tenant is causing greater damage as the tenant will not permit the trades people to enter the property to fix the water leak, that tenant will be liable for the damages; that is the tenant can be sued for the damages as a result and you as the landlord compensated on a monetary basis.

Once you are able to get the tenant out of the property, or access to the in side of the property, you will then be able to assess the damages for repairs costs.

Upon obtaining the relevant quotes to fix the damages, you will then need to raise a further claim against the tenant, which can be brought with the first claim for the eviction with careful planning for the amount of repair costs and loss of rent that you will incur for the damages to the property.

This process for claiming damages is also with NCAT.

Would you like to consider this option.

You have a legal right to protect your interests in this important situation.

If you need any further information let me know and I will be pleased to assist.

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 your important questions.

Have I answered your question today ?

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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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