Moving on up, or not...

May 13, 2009 7:34 PM

Buying House dramas: tenants in place we are due to settle don't want to move out by settlement, but we want to move in!

Apologies for length. After many dramas, we are finally settling (aka final payment to vendor) on our apartment on Monday. However I had a delightful call from the real estate agent this morning, informing me that the current tenants are claiming never to have received their notice to move out, and won't be ready by Monday.

This is not a good situation - settlement has already been delayed, as a result we run the real risk of being without somewhere to live ourselves before we move in (our own lease expires).

I had a very terse conversation with the real estate agent explaining that whether tenants did or did not receive notice is their problem as property manages and thus they need to fix it, cause come Monday they won't be property managers, and we'll be moving in. He hemmed and hawed a lot, tried to push it back on us.

What are my rights here? This is a frickin' nightmare. In addition to being without somewhere to live, I've taken time off work, hired a ute, etc. etc. My renting experience tells me what I said to the real estate agent is fundamentally true; it's their error either way and the onus is on them to sort it out vis organising accomodation for tenants, or kicking them out. Does anyone know for sure? FYI, I'm in NSW, Australia, and waiting for a call back from my solicitor. Thanks for your advice.

posted by smoke to law & government (15 answers total)

Regardless of a notice to move out, how did the soon-to-be former tenants think they could still occupy the place after final settlement, when at that point they are no longer owners? Is this some hinky Australian law issue regarding notices?

It sounds like they've screwed up their arrangements and are trying to delay. Regardless, the real estate agent can put them up in a hotel.
posted by fatbird at 7:53 PM on May 13, 2009

The important question is when does their lease expire, your settlement has nothing to do with the lease- you may legally own the place, but they may still have a valid lease. And it's NSW law, not Australian law.
posted by mattoxic at 8:00 PM on May 13, 2009

If it turns out that you can't get the tenants out by Monday, I'm wondering if you you might be able to get the seller to pay for your temporary housing since they failed to deliver the apartment according to contract. Something to ask your solicitor.
posted by metahawk at 8:09 PM on May 13, 2009

Fatbird - I think you misread the post. The *tenants*, not the owners are living there. They may well not have been correctly informed about the sale, or about moving out.


OP: You want the Housing NSW General Enquiry Line
"The Housing NSW General Enquiry line provides a service to tenants, applicants and the general public to make enquiries concerning Housing NSW, their policies and procedures, request application forms or enquire about matters relating to tenancies, such as rent and water enquiries, rental subsidies and alike. "

I don't know the NSW law. I do know that the NZ law covering this says that one of the few ways landlords can break a lease is if they wish to move in themselves, BUT they have to provide minimum amount of notice. There is a good chance that the laws are similar in your area - it sucks for you in this instance, but it's a pretty good thing over all.

Look at it this way - renting tenants are in a far more vulnerable position than property owners, and far more likely to be in a position where they may actually end up homeless due to landlords dicking them around.

Do take it up with the property managers, and if they didn't provide adequate notice, get them to put YOU up.

Good luck.
posted by Elysum at 8:18 PM on May 13, 2009

If it turns out that you can't get the tenants out by Monday, I'm wondering if you you might be able to get the seller to pay for your temporary housing since they failed to deliver the apartment according to contract. Something to ask your solicitor.

Ab-so-lutely. If they contractually agreed to provide a place for you to move in on Monday, they should cover any expenses incurred on you because of the foul-up. That could include housing, cancellation fees for services you've hired, maybe even food because yours is all boxed up. Hold your ground. It's their job to figure this out. Don't hesitate to flat out ask them how you will be compensated while they deal with this.
posted by JuiceBoxHero at 8:44 PM on May 13, 2009

Thanks for the advice thus far everyone. FYI, the tenants are completely off lease - so there's no issue there, thank god.
posted by smoke at 8:45 PM on May 13, 2009

Ah, I did misread.

I'd threaten getting a lawyer involved, early, myself, if they didn't quickly cave and admit that this was their problem to deal with, not yours, and that any costs you incur will be covered by them.
posted by fatbird at 8:51 PM on May 13, 2009

Basically this is the property management companies fault. They either need to pay for you to get a place or pay for the tenants. Accept no less!
posted by fshgrl at 9:01 PM on May 13, 2009

>the tenants are completely off lease - so there's no issue there

Make sure you ask your solicitor. In the US, a month to month tenant in possession has significant rights, and it can take a couple of months of legal process even after a properly noticed quit date to extract them.
posted by megatherium at 3:01 AM on May 14, 2009

Your solicitor will be able to tell you about your legal rights here (you'll probably need to give them a month's written notice and may or may not have recourse against the real estate agents or the previous owner) but do try to see it from the tenants' point of view. They've had their home sold from under them and if they're in Sydney looking for another rental will be a nightmare. If they think you're getting nasty at all they could just stay put and force you into eviction proceedings, which will take a lot longer and be no fun for anyone involved. Then they could trash the place.

Elysum - Housing NSW is public housing, so they won't be able to help here. Smoke is doing the right thing by engaging a solicitor.

I hope everyone is reasonable and it all gets sorted out.
posted by A Thousand Baited Hooks at 3:53 AM on May 14, 2009

I was once in a similar situation from the tenants point of view. (oh actually it was just that the current owner wanted to move in - or their cousin or someone).

We had 6 weeks notice or so but were finding it very hard to find a new place. - And so overstayed the notice a week or two as we were advised that the owner would need to take us to court to get us out. - which would take more than two weeks to really be put in motion.

and hence if we left within say a month of the notice of eviction date, it would never go to court.

basically i'm saying - you will need to make alternative arrangements.
posted by mary8nne at 4:08 AM on May 14, 2009

I've had to deal with this as a tenant who rented a place where the previous occupants (literally crackheads) refused to move out on the moving date. In Ontario, there are laws designed to protect tenants which mean that if someone refuses to move out, the Sheriff must serve them notice after which they have 1 week to vacate. So I was homeless for a week because these druggies decided they could use the law in their favor. (They also left their furniture at the place, then returned for it 1 day before the end of the period when it would become the landlord's property, so they were obviously very familiar with the landord-tenant laws).

Different country, but the point being that the law may provide them some protection and you may not have any recourse, even if they were legally served eviction notice, if they decide to milk this for a week of free rent. Other point being, overstaying your rent is a slimy and douchy thing to do, whether or not you're in the shoes of somebody who can buy property.
posted by Gortuk at 5:57 AM on May 14, 2009

No offence to anyone, but a lot of the advice above is really bad. Don't rely on any of it until you've spoken to your lawyer.
posted by A Thousand Baited Hooks at 6:01 AM on May 14, 2009

At this point you are stuck. Find a hotel, put your stuff in storage and sue the management firm for your damages. Have they never heard of certified mail, signature required? As it stands you currently have no authority over the property since you don't own it yet.
posted by Gungho at 6:21 AM on May 14, 2009

Update should anyone be interested: Turns out the management company didn't give the tenant enough notice, they are legally entitled to stay until May 27, and I certainly don't want to put pressure on them to go earlier, having worn this particular shoe on the other foot myself.

Such a bummer, in addition to being homeless for like, a week, everybody in this scenario has suffered (vendor, us, poor stressed out tenants), except the people responsible for the balls up, the property managers. Sigh.
posted by smoke at 11:09 PM on May 14, 2009