Messy Tenant Who Won't Comply With Terms of Lease.

[Davo36]

Ive got a retail tenant in my property at Papakura.

Not long after he started the tenancy, he moved a couple of car wrecks into the ground level car park. This was about April 2017.

I have asked him to move them. He has continually said they are going, won't be long now. But the car bodies remain.

Here is a picture of it. This is at the rear of the shop, and inside the ground level enclosed car park.



And here is a special clause from the lease:

1. The tenant may wish to use the area as shown on the attached plan to the rear of the shop (in the car park part of the building) for the storage of stock. Should this be the case, then prior to stock being stored in that area, and prior to any work taking place, the tenant and landlord shall meet and discuss a safe, secure and sensible solution that suits both parties. Use of this area by the tenant is reliant upon:

1. Access to the air conditioning units and electricity meters in this area being maintained during working hours.

1. This area being kept rubbish free and clean and tidy.

1. The ability for other tenants to enter and exit their car parks being maintained at all times.

1. Fire egress to and from the shop and to and from the car parking area not being altered.

So as you can see, the place if full of rubbish. The electricity meters for the whole building (3 apartments, 2 commercial tenancies) are in that cabinet on the wall. So these need to be able to be read every month or 2. You can't get to them right now.

And the bikes are sticking out into the area where other tenants back out (you can't see their cars, they're behind me in this picture). They have complained it's very difficult to get in and out. Again, I have spoken to the tenant and he says he will remedy this, but never does.

Of lesser concern, he's also blocking the A/c units on the RHS of the picture and also compromising the fire egress a bit.

So anyway guys, what to do? I'm thinking I'll contact my lawyer and see what can be done. I'd like to just bring in a truck and remove the lot, store it at his cost and let him have it back after he's paid for the cost of all that. But I don't think I can just do this can I?

I really hate it when people repeatedly give me undertakings they will do remedy a situation, then do nothing. Just not used to people like this, not sure what to do.

Any help appreciated.

[Keys]

When is the next rent increase due?

[Davo36]

About 2 years and 2 months...

[learner]

Hi Davo36

Have a look at S246 of the Property Law Act 2007; the threat to cancel the lease may be sufficient to encourage him to abide by the terms of the lease. Make sure that you follow the requirements for the issuing of the Notice of Intention to Cancel the Lease to make it valid.

246 Cancellation of lease for breach of other covenants

(1) A lessor may exercise a right to cancel a lease because of a breach of a covenant or condition of the lease (except the covenant to pay rent) only if—
(a) the lessor has served on the lessee a notice of intention to cancel the lease; and
(b) at the expiry of a period that is reasonable in the circumstances, the breach has not been remedied.

(2) The notice required by subsection (1)(a) must adequately inform the recipient of all of the following matters:

(a) the nature and extent of the breach complained about:
(b) if the lessor considers that the breach is capable of being remedied by the lessee doing or stopping from doing a particular thing, or by the lessee paying reasonable compensation, or both,—
(i) the thing that the lessee must do or stop doing; or
(ii) the amount of compensation that the lessor considers reasonable; and

(c) the consequence that, if the breach is not remedied at the expiry of a period that is reasonable in the circumstances, the lessor may seek to cancel the lease in accordance with section 244:
(d) the effect of section 247(1) and (2):
(e) the right, under section 253, to apply to a court for relief against cancellation of the lease, and the advisability of seeking legal advice on the exercise of that right.

[Davo36]

That's interesting learner, thanks. I will mention this to the lawyer.

[d2ba]

Id just bite the bullet and pay someone to move the rubbish. Looks like a fire risk

[Davo36]

Well what I've done is contact my lawyer. He says there is a provision in the lease about the tenant not to store anything noxious.

So he can be served formal notice to remove the car bodies, rubbish etc. But that can't be done until January 15th or so given the Christmas break

But what I also did was email the tenant and say he is going to face expensive lawyers fees unless he removes the items over the Christmas break. So hopefully he'll do that and it will resolve itself.

[Davo36]

OK, so an update here:

This is what happened since December

• I gave notice that they should remove the car wrecks over the Christmas holidays or they would face legal costs.
• They didn't
• So I served a Property Law Act notice on them stating that they had 10 days to remove them or I would cancel the lease.
• They still didn't remove them.
• So I went down there, handed the staff a notice saying the lease has been cancelled, please hand over all keys and leave. The staff were really nice actually and did as I asked. I had a locksmith change the locks, an alarm guy change the alarm etc.
• And what do you know, the next day they moved the car wrecks!
• And a day after the that, the wife of the couple who own the business said "What can we do to get back in the shop?"
• So I sent an email dictating terms, which included a bit more rent and a slightly longer term. It also included them paying my solicitor's costs etc.
• They agreed to these terms in writing.
• So I had a new lease prepared, met up with the wife today and she says they are not going to be signing a new lease! Talk about wasting my time!
• So they are going to be out by the 14th of this month, which is when they had paid up to.

So a few thoughts:

• They may have been deliberately leaving the car wrecks there to get out of the lease. They say that wasn't the case, but not sure.
• They had some staffing issues. She said she thought the rent was fair but that they couldn't seem to get the staff to do what was necessary.
• They have opened 2 other branches in winter last year, along with mine. So this means a couple of things: 1) They are not as dependent on my shop as they might have been and 2) They are just too busy.
• But I think the main thing here is that the husband in the couple got his hand smacked and so now is being childish. But hey, up to him.
• I will pursue them for the costs incurred by me.

Oh well, such is life!

[learner]

Hi Davo36

Thank you for the update. Did you really want to the tenants to leave, or did you simply want the rubbish removed? If the rubbish were removed, you could have kept them on with a new lease, with the old terms and conditions.

Did your lawyer advise you to serve them with the Property law Act notice, and which section of the Act did he advise you to use (S246)?

[Davo36]

Hi Davo36

Thank you for the update. Did you really want to the tenants to leave, or did you simply want the rubbish removed? If the rubbish were removed, you could have kept them on with a new lease, with the old terms and conditions.

Did your lawyer advise you to serve them with the Property law Act notice, and which section of the Act did he advise you to use?

Well I didn't really care either way. There were other issues too.

The lawyer prepared the Property Law Act notice. Section 244.

[PTWhatAGreatForum]

After reading what you did, I don't think I would want to be one of your tenants (and their neighbour)

You knew they were trouble, you got rid of them(?) and then let them come back.

Meanwhile, others have businesses to run as well.

[Davo36]

Whatever Michael.

[mrsaneperson]

I think you are better off without them but i would not have offered them a new lease as they will likely become more nuisance since they have established a poor track record to begin with.