Tenancy Agreement No Man's Land

[Perry]

Has anyone had any experience with the following scenario?
Two sections of the RTA are quoted to help.

13B Variations and renewals of tenancy agreements
(1) Every variation of a tenancy agreement, and every renewal
of a tenancy agreement, shall be in writing and signed by both
the landlord and the tenant.
(2) The landlord shall, before the date on which the variation
or renewal of the tenancy is to take effect, provide the tenant
with a copy of the variation or renewal.

60 Tenant remaining in possession after termination of tenancy
(1) Where a tenant remains in occupation of the premises after
the tenancy has terminated or has been terminated, all the
obligations of the tenant shall continue in force as if the
tenancy were still subsisting until such time as the tenant
ceases to occupy the premises.
(2) If the landlord permits the tenant to remain in the premises for
more than 90 days after the tenancy has terminated or has
been terminated, without obtaining a possession order, or for
more than 90 days after obtaining a possession order, the
landlord shall be deemed to have granted, and the tenant shall
be deemed to have accepted, as from the date on which that
period of 90 days expired, a periodic tenancy of the premises
on the same terms and conditions as pertained to the original
tenancy immediately before its termination.
(3) The landlord shall not be taken to have permitted the tenant
toremain in possession, or to have given up the right to proceed
under this Act in respect of any breach of the tenant's
obligations, merely because the landlord accepts payment of
rent in respect of any period after the tenancy has been
terminated.

If a renewal agreement for a fixed-term tenancy is not
completed and served upon the tenant before the expiry date of
the previous fixed-term and 90 days must pass before the
tenancy defaults to periodic and the tenant's fails to meet
all the necessary obligations created by the preceding (now
expired) fixed-term tenancy agreement, does that put the PI in
the position of being able to tell the tenant to leave, without any
further notice period?

It seems that aside from some courtesy, such as "be gone by
Monday," (allowing a weekend to move), the PI is in the box
seat for 90 days.

Anyone (Glenn, Xris?) encountered any TT precedents on this?

[spurner]

It would be pretty common courtesy for the landlord to advise the tenant what their intentions were before the expiration of the lease.

But during the 90 day period following the expiration of the lease, the landlord can give notice for the tenant to vacate immediately. In reality you would talk to the tenant and allow 1-2 weeks for them to vacate.

If they don't vacate then you'd have to go through the normal channels to get the tenant evicted, no different from a periodic tenancy.

All my new tenants are on 12 month leases. At the end of the lease they sign up for another 12 months, or they simply vacate. Haven't had any problems to date.

[Perry]

Roughly, the scenario is:

The fixed-term tenancy has expired.

Tenant was given the Renewal Deed to sign (and return
for counter-signing and the provision of a copy). The
Deed was accompanied by a letter saying that the
six-week renewal/extension may be the last if there
are any rent defaults.

The tenant has not signed the Deed and returned it.

Two rent payments have been missed in the meantime.
(The joys of Xmas?)

Apart from one personal communication with a plan for
remedying the rent shortfall, nothing.

Therefore, in the absence of the tenant signing the
Renewal Deed, the 6 week extension is inapplicable, right?

Proposed action: Get thee begone! ASAP!

[spurner]

I would never sign an agreement and give/mail it to the tenant to sign. You may never get it back and have to take the tenant to the TT to evict them, then suddenly they appear with a new tenancy agreement, signed by you! I always deliver unsigned copies, and after the tenant signs both copies I will counter-sign and return their copy. (maybe this is SOP for everyone?)

Regarding the 6 week extension, normally the case is that once you have offered something to the tenant, that the tenant is entitled to it, irrespective of whether they live up to their end of the bargain or not. Doesn't provide a very level playing field for negotiations!

[Perry]

Sorry - I neglected to mention that the PI signature
is last, the tenant's is first.

I'm not sure that the tenant is entitled to anything,
once a fixed term tenancy has expired. Apart from some
courtesy, perhaps.

[Glenn]

These problems are very common and are yet another clear sign that the RTA is a hots potch of various acts stolen from around the world and thrown together.
In some cases they were taken from the RTA in NSW but in other clauses who knows where they came from.
The revised RTA is addressing the issue.
The RTA is quite clear. At the end of a fixed term the tenancy has ended. No notice provision is made in the RTA for the removal of the tenant. You can ask or demand the tenant be gone but "giving" of notice is not one of them. After all how can notice be given if the tenancy has finished.
However the RTA does make provision for this eventuality. It says that despite there being no tenancy agreement all the obiligations continue.
So yes it means that the normal offer and acceptance conditions of a contract still apply when agreeing to a new tenancy or period there of.

Not withstanding the issue of not needing to "give notice" it is easier to move people on by common decency and communication. A written note is the minimum and if that does not work then a request for possession to the Tenancy Tribunal is required.

Just as with commercial tenancies, having rent increases at the same time as term renewals is not the smartest of ideas. So it is better to incorporate into the lease a review date for the rent at a different time to the renewal. This means the tenant is not likely to hold the upper hand in the negotiation about rent by saying they will move to a new better landlord.

Smart landlords get these issues sorted before the fixed term expires.
For me I am not a fan of fixed term tenancies. I do them when the owner is coming back and wants to occupy. It stops the tenant leaving a few months before the owner comes back and making me leave it empty.
Sometimes the tenants want assurance of tenure. Once the first term has expired I let it convert to a periodic. This can be done by sending them a letter of just leaving it open and letting the 90 day thing kick in.

[Perry]

So yes it means that the normal offer and acceptance
conditions of a contract still apply when agreeing to
a new tenancy or period there of.

Apart from the RTA invalidating contract law in more
places then one can count, my understanding is that
offer and acceptance needs a third leg: consideration.
(aka known as payment)

So, if the tenant doesn't pay, there is no contract.

Right?

[Perry]

Sequel
Tenant has gone, new one installed. Whether or not "the
departed" will keep the promise to pay the outstanding rent
(without me chasing it up) remains to be seen.

An abandoned BMW is another tricky issue. It is not the
departed tenant's property, but was 'stored' there by
a friend of the tenant.

Can I dispose of it? It doesn't belong to the tenant, (i.e. is
not goods of the tenant), something not covered by the RTA:

62 Abandoned goods
(1) Where, on the termination of the tenancy, the tenant leaves
any of his or her goods on the premises, the following provisions
shall apply:

[spurner]

I'd treat it as if it's the tenants BMW, as it was put there during the tenancy, so as far as you're concerned it's his, ie get the order to dispose of it. If any problems arise later then it's between your ex-tenant and their friend and you can absolve yourself of any responsibility.

[Glenn]

Abandoned Cars.
Oh I just love to hate them.
Recently I asked the tenancy adjudicator to issue a disposal order on one. She asked whose car was it.
When i said it was the boyfriends and he was not on the tenancy agreement she claimed she could not issue such an order. So that left me with an unusual situation. I had to get rid of the car and the RTA could not deal with it.
Pushing it out onto the street if it is not registered is not an option. Been there and tried that.
I guess the next thing if it is worth something is to hold it for ransom. The RTA forbids that but if the RTA claims it is not party to it then I just wonder what law relates to it. Perhaps like leaving some other valuables at a location. I guess one could hand it into the police as lost propety. I wonder what they would say about that.
Has anyone got any ideas where the law stands on cars like this.?

[RentMaster]

I guess the next thing if it is worth something is to hold it for ransom. The RTA forbids that but if the RTA claims it is not party to it then I just wonder what law relates to it.

I dont think you can really hold it for ransom - not legally anyway. The car is not yours. If the owner wants their property back you need to give it to them.

If you dont know who the owner is then lost property is probably the best bet.

[Perry]

I dont think you can really hold it for ransom - not legally anyway. The car is not yours. If the owner wants their property back you need to give it to them.

If you dont know who the owner is then lost property is probably the best bet.

I wonder if there's a difference between lost and
abandoned property? This car is not lost - it's abandoned.

Further, if something is abandoned on public property,
would not that be different to it being abandoned on
private property?

And what right does the owner of the abandoned object
have (to access said object) on private property that
is no longer tenanted by the person who authorised its
original placement? Would that not make unauthorised access
(or attempt thereat to 'collect' the object) a form of trespass?

Then we need to consider that the new tenant may not
feel that the PI has "done his/her bit" in preventing unauthorised
access (by an unknown person - the car 'owner') to properly
rented property without the tenant's permission. That's
without pondering the significance of the limitation on
the tenant's 'quiet enjoyment' of the property because
there's a car (not the tenants, nor the PI's) in the
driveway!

Consequently, could the tenant lodge a claim at the TT?

Would the adjudicator's response be different to that which
Glenn described? Or could the Adjudicator hold the PI responsible,
yet decline to make an order that would authorise the
PI to lawfully remove the car that's an interference to
the tenant, thereby remedying what the adjudicator rules
as a breach of the RTA?

Damned, each way!

And does the PI need to obtain proof of ownership (or
permission of the owner) from the person attempting to
collect the car?

A minefield. A veritable can of worms that should grey the
hair of any TT adjudicator.

Maybe a 8 tonne digger, a large hole and vanished evidence
is the only way out?

Maybe I just instruct a car wrecker to come and take
it away and store it for a while, then dispose of it, if
unclaimed after a certain period? I wonder how the
"automotive dismantler" would feel about that?

Then, of course, if this was a commercial rental, I suspect
that not a single one of these considerations would apply!

Vive le RTA!!!! Please Ms Meddlin' Hobbs, what now?

[Glenn]

Well actually what happens is the wreckers never store them. They just take em away.
The property owners are as I understand it supposed to advertise the take aways in the newspaper.
Then away it goes. The same process as the storage people follow.
The trouble is I have acted too fast in the past and got caught. Had to pay the car owner for the heap of junk I helped him take away.