Notice to Vacate Section 268 Tenancy HELP! Being kicked out of home

Lmrgtott on 23/04/2017 - 02:18

Hi guys,

Today my landlord gave me a notice to vacate citing a notice they themselves had received from the bank asking them to vacate tenants and hand over the keys within 2 weeks (by 5th of May) under section 268 of the tenancy act as they had defaulted on their loan.

Obviously this is not a possibility as a minimum of 28 days notice is necessary under section 268 so the landlord gave me a 28 days notice period to vacate by may 20th 2017. Also note that I have a 2 year tenancy contract until mid August of 2018 in place however that contract was created after the mortgage.

Upon reading up on section 268, I learn that it is indeed one of the very few reasons a tenancy agreement can be ended but 28 days really isn't enough for us as we have 2 dogs and we need to find a place that we are happy with, and also will accommodate our two furbabies (most landlords don't like this).

Also not that according to section 268, the mortgagee has to be the one that gives the vacation notice to us with 28 days notice not the landlord and in our case the vacation notice is distinctly from the landlord which make it null and void, if i am correct. Correct me if I am wrong but I believe the mortgagee (the bank) would have to issue a vacating notice (when they realised we haven't moved out by 5th of May) and then I should have 28 days notice period from that point, correct?

Any ideas on how I can get more time before I have to move? Can I ask the bank to cover my moving costs as I am being thrown out early? Anyone else who has been in this situation please chime in on your experience as this sucks.

Home & Garden

Comments

  • John Kimble on 23/04/2017 - 02:44
    +3

    How crap for you. Maybe contact these guys?

    https://www.tuv.org.au/advice/notices-to-vacate/

    Below seems promising?

    It is important to note that just because you receive a notice to vacate, it doesn’t necessarily mean that you have to move out. If the landlord wants to evict you, they must first apply to the Victorian Civil and Administrative Tribunal and convince the Tribunal that they should be granted a possession order.

  • Lysander on 23/04/2017 - 05:12
    +3

    For your purposes the your landlord is the person who will give you the notice - the notice is valid. In fact, the landlord in this case can be viewed as an agent acting for the bank or on behalf of the bank - he issues the notice to vacate to you for them. If you want to have this determined before a court I am sure it will be costly and you are 99% likely to lose. Don't waste your energy and money on this.
    They are not obligated to do anything for you so I doubt they will cover any costs.
    Isn't Australia indeed the lucky country with laws like this?!?

    Good luck.

  • pao2x on 23/04/2017 - 05:43
    +1

    You can vacate after ample notice, the bank is not going to kick you out instantly becaue that would be terrible PR.

  • Axelstrife on 23/04/2017 - 06:00
    +1

    Sucks my mother who has a dog had the same situation bank took over the rental house and had to find a new place fast.

  • xoom on 23/04/2017 - 08:48
    -1

    its sad but whenever a property changes hands the contract with which you had with the previous landlord becomes void. the real estate agent had to ask me very very nicely to keep the tenants that was living in the apartment i purchased as they had gone overseas and wont be back till much later than when legally i can kick them out. i was not in such a hurry to move in so all worked out for all parties involved since the rent money started coming my way.

    • djkelly69 on 23/04/2017 - 15:01

      whenever a property changes hands the contract which you had with the previous landlord becomes void

      This is not true at least for NSW and ACT, not sure about other states. The new owner can give notice to the tenants if they are wanting to move in (or family member, etc), but how long this needs to be will depend on whether you are on fixed term or periodic.

      • xoom on 23/04/2017 - 15:36

        So what you are saying is if the original owner signed a 3 year fixed contract for x amount. The new owner will have to honor said contract? What if new owners had to move in like in my situation where i had to move in because of the first home owners grant conditions.

        Im not saying from day dot they get kicked out. All im saying is this contract does not have to stand with the new owners. So sufficient notice will be given as per the op to vacate the premises.

        • areustillpretty on 23/04/2017 - 17:26

          Well, you can't legally kick them out just because you're the new owner, at least in Vic, unless mutually agreed.
          https://www.tuv.org.au/advice/your-landlord-is-selling/

          If you have a current fixed term tenancy agreement you cannot be required to vacate before the end of the fixed term. If the property is sold while you are still living there, the new owner purchases the property subject to your tenancy and takes over the rights and responsibilities of your previous landlord. This means the existing terms and conditions of your agreement still apply (including the amount of rent that you pay, how and when you pay it, and the expiry date of the fixed term).

        • djkelly69 on 23/04/2017 - 20:33

          @xoom - I assume your property is in NSW (given location in profile)? If so, then yes to the first question. The contract/tenancy agreement is binding on the new owner, and you have to follow the rules set out in the Tenancy Act, such as for how much notice you have to give them to terminate the tenancy agreement. There is more information here, but basically on a fixed term tenancy agreement it cant be terminated until the end of the fixed term (without a breach, etc).

          That is why when you sell a property which has a tenant in it, you need to mark on that contract whether it is being sold with vacant possession (so current owner has to give 30 days notice once contracts have exchanged and new owner doesnt have to settle until the tenant is out) or subject to tenancy (in which case the new owner is bound to the tenancy agreement which is in place, which is why that tenancy agreement is included in the contract).

          So in your situation, presumably the contract said it was subject to tenancy, so you accept the tenant until the end of their fixed term.

          There are hardship provisions in the Tenancy Act, so you could make an application under that section if you need to move in for satisfy the FHOG conditions, but not sure how that argument would go as you should have been aware of this before agreeing to purchase the property.

          As an aside, I am not sure how you could be getting the first home owners grant for a property which has a tenant in it (as the FHOG in NSW only applies to brand new properties), but that is another issue entirely.

        • xoom on 24/04/2017 - 08:01

          @djkelly69: i bought the property many many years ago. The time when stamp duty was covered as well as part of the home owners grant.

        • whooah1979 on 24/04/2017 - 08:19

          So what you are saying is if the original owner signed a 3 year fixed contract for x amount.

          http://help.consumeraction.org.au/home-repossession/
          Taking Possession of Tenanted Land
          If a tenant occupies the property the lender must also serve a 28-day notice to vacate on the tenant under section 268 of the Residential Tenancies Act 1987. If the tenant does not vacate after notice is given, the lender can apply to the Victorian Civil and Administrative Tribunal for an order that the tenant vacate. The order to vacate can then be enforced by the police.

  • PJC on 23/04/2017 - 09:18
    +3

    Can you ask that bank to let you stay there until they find a buyer?

    • Kangal on 23/04/2017 - 10:37
      +3

      Yeah, but its probably a better idea to start looking for new places now sooner rather than later.

      I think he/she may be able to ask for an extension.
      Say another 28 days. They probably would go for that if it means less trouble for them. And it'll give you enough time to pack and find the right spot.

      • PJC on 23/04/2017 - 10:38

        That could work too.

      • whooah1979 on 23/04/2017 - 10:57

        Say another 28 days. They probably would go for that if it means less trouble for them.

        the owner has already cost the lender by defaulting on their mortgage.
        holding the property for another 28 days would add to that cost.

    • djkelly69 on 23/04/2017 - 17:39

      You could ask, but the property is (very likely) worth more with vacant possession, so the bank is not likely to agree.

  • whooah1979 on 23/04/2017 - 11:13

    http://help.consumeraction.org.au/home-repossession/
    Taking Possession of Tenanted Land
    If a tenant occupies the property the lender must also serve a 28-day notice to vacate on the tenant under section 268 of the Residential Tenancies Act 1987. If the tenant does not vacate after notice is given, the lender can apply to the Victorian Civil and Administrative Tribunal for an order that the tenant vacate. The order to vacate can then be enforced by the police.

  • try2bhelpful on 23/04/2017 - 17:50

    If you are in NSW then you might want to look at this site, I presume there are similar sites for other states

    https://tenants.org.au/factsheet-21-mortgagees-and-tenants

  • FirstNameLastName on 23/04/2017 - 19:34
    +1

    Notice to vacate is first step.. I believe when you fail that they then apply to Civil tribunal for eviction date/sheriff's order etc.. usually another month or so.

    2 months is usual time it should takes to remove a tenant. But if you the house is deemed uninhabitable that may be immediate.

    Um.
    Is It through a real estate agent? Maybe have to consider if actions blacklist​you

  • mrgtott on 25/04/2017 - 11:34

    Thanks everyone so much for the advice. I am in Victoria. My partner and I have decided to cut our losses as sucky as it is, and move on. I just feel that in these scenarios you should be given more than 28 notice to uproot your life and find a place you are happy to move to.

    I know I can stay a bit longer than that but I don't like such hassles.

    I do though believe I could fight this if I wanted to as I received legal advice and was told that without an official notice from the bank along with the vacate notice from landlord, the vacate notice does become void. Think about it, otherwise landlord s could bluff section 268 to get fixed term tenants out whenever they want.

    • Love a bargain on 25/04/2017 - 14:04
      +1

      Hope you can find a place quickly and put this behind you.

    • lainey13 on 30/04/2017 - 22:32
      +1

      Landlords always whinge that tenants have more rights yet this kind of crap happens a lot.

      • Love a bargain on 01/05/2017 - 09:30
        +1

        The tenancy law & standard tenancy agreement are definitely skewed towards the landlords, not the tenants.

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