Is your Landlord or Real Estate Agent scamming you?

[mnewbery]

The following information is not a substitute for a phone call to the RTA or legal advice. If you find yourself in a similar situation, do not rely on third parties. Call the RTA and use their advice for your personal circumstances.

 

I have in front of me a "Form 11 notice to remedy breach" with a note about "rent being in arrears" and a reference to section 49 of the Residential Tenancies act (Qld) 2008. This statement came from an extremely well known real estate agent in the area.

 

Section 49 refers to setting aside short tenancy statements made by the tenant because they were made under duress. So its got nothing to do with a breach related to not paying rent on a 4 bedroom house in a town affected by a mining related expenditure downturn, owned by someone who is being paid in a currency that has appreciated significantly against the Australian zloty.

 

I was a former occupant in the property named, submitted Form 13 Notice of intention to leave on 2nd December and left after cleaning the property better than it was when I moved in. The lawn was green, the garden was neat and the carpets were cleaned. I left on 16th January with the rent paid up to 3rd March and a forwarding address. I did not ask for the extra rent back, nor do I have an intention to do so. I also paid to have the gardens maintained the day I left and for a month after. I have until recently been in regular contact with the agent regarding the status of this property.

 

I got a bunch of nasty text messages last week and a notice to remedy breach sent to my old address but forwarded to me by a redirection service today.

 

The definition of rent is "money paid in consideration for the right to occupy a property". You stop paying "rent" after you leave. Its not rent after that, it is relief paid to the agent to offset losses and expenditure associated with the re-letting of the property. Usually about a weeks rent and $50 for an internet ad placement.

 

Everything after that is by agreement. DON'T let the agent tell you otherwise. Stop automatic payments the day the cost of the ad comes out. They have a vested interest in making sure the old tenants pay (including the cost of the water) until some other (insert euphemism here) decides to live there.

 

This is where things get interesting and the tenant can finally get on the front foot.

 

The Agent or Landlord CAN NOT withhold your WHOLE bond just because the property isn't yet re-let.If the agent refuses to do a final inspection within a week or just doesn't tell you that they have, download Form 4, fill it out and mail the original to the RTA - it cannot be faxed or emailed. If only the tenants sign the form the agent or landlord may contest the application but they need to have a valid reason to do so and there is a very short list of valid reasons. Not having a new tenant yet isn't on the list. The bond has nothing to do with the rental agreement after the tenants have left the property in good order and no rent in arrears. DON'T let the agent or landlord tell you otherwise. Or just listen and know that the case law is not on their side. Mostly they won't contest it. If they do you will be in mediation 7 days after the contested claim

 

The Residential Tenancies Act in QLD states that the tenant must keep paying the agent or landlord until the property is re-let under the conditions of a break-lease. While this is true, sections 310 and 362 also apply.

 

Section 310 - The tenant can apply directly to QCAT without consulting the agent or landlord to have the agreement terminated under the condition that continuing to pay rent or otherwise will result in excessive financial hardship. That test is up to the arbitrator and if that is you I'd call RTA straight away and have your case file started. The act doesn't say you can go to QCAT without first being in dispute but you can under a selection of circumstances.

 

Section 362 - All parties must take all reasonable steps to mitigate the loss of all parties. Examples are - making the rented property available for inspection while you are still living there, keeping it tidy and well presented, advising of any outstanding maintenance issues like holes in the fence, pest inspections or stains. The agent or landlord will make themselves available to show prospective tenants the property and possibly REDUCE THE RENT if nobody turns up.

 

The agent or landlord would consult with the previous tenant in order to arrange relief (money) to support a lower rent for the new tenant in an expectation that it will get a new tenant in sooner - like a new lease signed before the old tenant moved out, not weeks or months after.

 

Here's the funny thing. If the property is vacant after three months the arbitrator will most likely give the tenant a free pass and tell the agent or landlord to stop being stupid. QCAT doesn't like repeat offenders either.

 

In a regional downturn this behaviour is more likely. Its also possibly fraud.

 

 

[winsor68]

Nice work mnewberry. I know exactly the sort of shenanigans that these scammers have been allowed to get up to over the last 10 year due the the so called:spot on:MINING BOOM:spot on:.... You know we literally had an agent tell us to go ahead and complain to the RTA when our previous agent blatantly stole money from us before we moved in to our current rental... I hope that with nothing to loose a lot of people do their best to put these unscrupulous business operators out of the game. Good luck.

 

 

[mnewbery]

 

We act as authorized recovery agents for the owner of the property [address I don't live at anymore] QLD

 

Our client has instructed us that you are currently 1175.72 in arrears of rent.

 

Unless you rectify this situation immediately we will instruct our clients real estate agent [well known agent name] to proceed with obtaining a Warrant of Possession for your eviction from the premises.

 

You should also be aware that all costs associated with the obtaining of the warrant and subsequent eviction will be charged and recovered from you.

 

To resolve this matter you should contact your agent immediately.

 

Contact Your Agent:

 

[very well known agent in mining services town]

 

Phone: 07 abcd efgh

 

Fax: 07 abcd efgh

 

Barclay MIS Protect and Collect.

 

There is so much wrong with this letter I don't know where to start.

 

1175.72 what? zloty, litres?

 

Are they acting for the owners?

 

How do they evict me from a property I don't live in?

 

If they are acting for the owners, why pay the real estate agent?

 

Will they evict the new tenants instead and charge them for the privilege?

 

 

[Birdseye]

Forward it to CASA, if the Nazis at the agency get a response it'll totally confuse them.

 

 

[Fly_inverted]

So when u paid your rent up to 3 March, was that not the end date of the original agreement? If not, how many months were left to go?

 

 

[mnewbery]

Lots, about 10 months

 

 

[rhysmcc]

That could be the problem then, you've signed and agreed to pay for 10 months. If they haven't found anyone new then Aren't you legally liable to keep paying? Have you applied to have the lease terminated under section 310? Giving a Notice Intention to Leave doesn't absolve the Lease Agreement you've signed, your liable until that's terminated (the lease end date, by mutual agreement or by the tribunal)

 

 

[mnewbery]

There is a process that needs to be followed, is my understanding. Applying to have the lease terminated under section 310, there is a choice to have the matter heard urgently, or not. If the matter is deemed urgent then the financial hardship needs to already be occurring (with evidence) in order to have a favourable ruling. In the case of a non-urgent application, a notice of unresolved dispute needs to be attached to the application.

 

Again, this is not legal advice and individual circumstances may vary.

 

 

[rhysmcc]

So basically the Lease Agreement is still in affect (hasn't been terminated by mutual agreement, by the end date or by the tribunal).

 

Even know your not living in the house, you are still legally liable for meeting the terms of the Lease agreement, i.e. paying rent, keeping of grounds etc. Sucks I know, I've been in the same boat where I paid rent for 2 months after I left (before the lease ends).

 

I take it there has been a mine shutdown in the town so renting out the property is almost impossible, even if you offered to pay relief to bring the weekly rent amount down?

 

 

[mnewbery]

...and the agent refused to negotiate on the advertised rent for the replacement until a month AFTER I refused to pay any more rent. I offered to pay $20/wk up front for the rest of the lease if the agent reduced the advertised rent. The agent replied "owner says no". I don't mind saying, I am looking forward to hearing what the learned arbitrator is going to make of this.

 

Had I done nothing other than pay the rent, the place would still be advertised for too much money, vacant and costing me an extra $25/week just to keep the grass in check. Possibly until the end of September. If I was the owner I'd be drooling over that prospect. However I'm a member of the human race too and I don't want people acting against their will especially if it means I have a house which is vacant for 60 continuous days thereby voiding my insurance (whether I tell the insurance company or not)

 

 

[mnewbery]

Everyone accepts the agreement is in effect until both parties or an authority terminates it. This post is about what happens when one party decides to be selective and stubborn about how that happens. I suggest greed rather than a desire to protect one's rights under the law may be at play.