"Tenant" died but actual occupant behind on rent and had to be evicted. How to get rent and bond back?

pf2 on 06/03/2023 - 10:52

Long story -

Our official tenant passed reference checks at time of leasing with no issues. They passed away during the lease term. Unbeknownst to us when leasing it, the tenant didn't live there and there was actually a different occupant (mate of the "tenant"? who knows). Occupant requested to stay and we said no.

Occupant stayed beyond what their rent had paid up to, they refused to move out and we had to get VCAT and nearly the police involved to evict. This process took weeks/months so the bond doesn't even cover the rent they overstayed. Left the place in a mess and had to get a deep clean. Furthermore the agent said they can't get the bond back because it's under the estate or something, and there is now another VCAT application to get the bond back. The VCAT is backlogged and it's been months.

Is there anything we can do? Worth getting a property lawyer involved? I would say we're out maybe <$7,000 so not sure worth engaging a lawyer.

Home & Garden

Comments

  • Glenningvalley on 06/03/2023 - 10:59
    +3

    Bikies

    • PeterSnoot on 07/03/2023 - 08:03
      +8

      I remember the days that I thought these comments were funny…

      • TilacVIP on 07/03/2023 - 09:47

        Lawyer would be cheaper.

      • Glenningvalley on 11/03/2023 - 21:56

        I'm mortified that I couldn't get a laugh out of you Peter, Truly besides myself. .

  • apsilon on 06/03/2023 - 11:02
    +13

    Ethics/moral questions aside, you'd need to contact the executor of the estate. They're required to pay debts before anything else and regardless of the fact the deceased wasn't living there, they were the ones on the lease.

    • coffeeinmyveins on 06/03/2023 - 11:13
      +10

      Ethics/moral questions aside

      What morals are we talking about?

      I'm all for hating landlords but (from the limited information we have from one side) the sounds of it is the tenant is a complete ass hat who has not only started squatting but has left the place in such a state that it needed a deep clean. So again, what morals?

      • apsilon on 06/03/2023 - 11:27
        +3

        Oh I agree, there's a clear debt and responsibility there from the deceased but some people don't like going after estates etc.

        • coffeeinmyveins on 06/03/2023 - 16:53

          Weird, never heard of that before but I guess I can kind of see where it's coming from.

  • JDMcarfan on 06/03/2023 - 11:06
    +8

    landlord insurance is designed for these situations (do you have it?).
    if not then tough luck, a lawyer will cost be a prohibitive amount.
    contact executor of estate or just wait for VCAT for bond (which you should be able to get back) and maybe send a letter of demand to the "tenant" although I'll give it a 1% probability of getting anything.
    You can get a lawyer to draft that letter (will cost a few hundred) for a slightly higher likelihood.
    if you do have LL insurance then make a claim, and they'll cover everything your bond doesn't cover (i.e. everything if VCAT is prohibitively slow) minus excess.

  • oscargamer on 06/03/2023 - 11:21
    +1

    Bond is for damages, not unpaid rent. Your very efficient REA should know that.

    Walk away, claim on your LL insurance, you'll get nothing from the estate.

    • ShannonN on 06/03/2023 - 17:31
      +2

      How did the "Your very efficient REA" when doing inspections not see the different tenant . Surely they had met the original tenant when they leased the place and did the 1st few inspections?

      While I have little time for landlords, in this situation you must be ready to tear your hair out. Sue the scumbag R/E for negligence maybe.

      • ThithLord on 07/03/2023 - 09:48

        How did the "Your very efficient REA" when doing inspections not see the different tenant

        When I was renting the inspections were always done while I was at work - surely that's pretty common?

        • ShannonN on 07/03/2023 - 11:07
          +3

          sure, in my case I made the effort to be there as I don't trust r/e agents, had several leave lights on and garage door unlocked after 1 inspection when I was not present

    • YesPleaseThankYou on 07/03/2023 - 10:46
      +4

      Bond is for damages, not unpaid rent. Your very efficient REA should know that

      You are incorrect, refer:

      Reasons for claiming bond

      Bond is refunded to the renter unless the rental provider makes a claim for compensation. This might be because the renter:
      * damaged the property
      * owes the rental provider for rent or charges
      * has not left the property reasonably clean
      * made certain changes to the property without asking.
      Rental providers cannot claim bond for fair wear and tear.

      Source: https://www.consumer.vic.gov.au/housing/renting/rent-bond-bi…

      The second dot point looks like rent to me.

      When that site states 'The bond and rent are separate payments. Bond cannot be used to pay rent' (https://www.consumer.vic.gov.au/housing/renting/rent-bond-bi…) it means that if you receive money for Bond, you can't apply it to Rent, you have to lodge it as Bond.

      Bond money can certainly be used for rent owed, as noted above.

  • pf2 on 06/03/2023 - 11:30

    Extra info - the executor of the estate is ignoring anything from the REA (who is completely useless also). Will look into the LL insurance route, didn't even think of that!

    • apsilon on 06/03/2023 - 11:36
      +6

      Contact them yourself. For all you know the REA hasn't even bothered. They're legally required to settle debts. You'd have to get a solicitor involved though if they continue to ignore or refuse so then you'd be back to the question of it it's worth it.

      • pf2 on 06/03/2023 - 11:38

        What happens if they've already paid out the estate?

        • apsilon on 06/03/2023 - 11:52
          +1

          No idea, I'm not an expert on the matter. I think they're supposed to make allowances for future debts. I also believe they can be sued but again, solicitor required.

        • coffeeinmyveins on 06/03/2023 - 16:55
          +1

          As in, the estate has no money left because they've given the money to a relative even though the estate has debts?

          Don't solicitors usually handle estates and have to work out if there are any debts? Anyway, if you have LL insurance that'll be the first port of call right? I doubt the REA will do anything more for you.

        • Rockets84 on 07/03/2023 - 11:42

          Isn't releasing the bond just a legal form that the estate has to complete? Bond's are normally held in trust and are only discharged once both parties complete the paperwork, so the money isn't in the estate at all. If you're chasing extra money after the bond then you'd have to go after the estate or the actual tenant. If the public trustee is handling the estate that might be the delay.

  • AustriaBargain on 06/03/2023 - 11:42
    +3

    Maybe you should have offered the occupant at least a short term lease so you have something in writing. As of right now sounds like he owes you nothing and is liable for nothing, even though he offered to be on the hook for both. Hindsight is 20/20 tho.

    Also lol at the idea that your REAs background and reference check should have predicted that they would die!

    • pf2 on 06/03/2023 - 11:43

      We wanted to sell at the time, and we didn't know they were going to be dodgy a-holes. :(

    • Sinnerator on 07/03/2023 - 08:20

      Don't worry, Dystopian Rental in Australia will get there, why take on a rich older tenant who may die sooner, when you can take on a rich younger one.

  • thatonethere on 06/03/2023 - 11:45

    Some people have said landlords insurance - but unknown sub letters is a grey area so maybe find yourself not really covered. You will need to check your PDS - https://www.finder.com.au/landlord-insurance-subletting has a good write up.

    • YesPleaseThankYou on 07/03/2023 - 08:59
      -1

      It's not a 'grey area', it depends on the PDS, as you seem to point out.

  • tsunamisurfer on 06/03/2023 - 11:52
    +2

    Once I found out I would have removed the person on Day 1.

    He is not even a tenant therefore has no rights.

    The fact that it took months to resolve and other stories I have seen regarding evicting bad tenants tells me how skewed the system is against LLs.

    • Motek Benzona on 06/03/2023 - 12:30
      +2

      And we all could have followed the post about resulting charges against you.. You simply cannot do that without getting in trouble

    • Jolakot on 06/03/2023 - 13:00
      +4

      Please for the love of god never ever do this, because you will be taken to the cleaners

      By law they are a sub-tenant, which gives them the same rights under the act as any other tenant, so evicting them without following the proper process would be an illegal eviction. That tenant can then go to VCAT and demand compensation for being illegally evicted, which is often thousands. And under legislation VCAT can slap you with a 150 penalty-unit fine, which is currently $27738: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/cons…

      Because the process of becoming a sub-tenant does not require your consent, however making someone a sub-tenant without your consent is a breach, and you can give them a 14 day notice to vacate as a result: http://www5.austlii.edu.au/au/legis/vic/consol_act/rta199720…

      So you can't just kick them out, and if you DIY an eviction then you're going to be raked over the coals in VCAT for being a moron, just like everyone else who thinks they're above the law despite never reading it

      • kiitos on 07/03/2023 - 07:53

        Does the sub letter need to show evidence that they had such an agreement with the original tenant?

        • Jolakot on 08/03/2023 - 01:07

          Absolutely, during the VCAT hearing for the notice to vacate the onus is on them to prove that they weren't just squatting

    • coffeeinmyveins on 06/03/2023 - 16:55
      -3

      tells me how skewed the system is against LLs.

      BAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA.

      Tell me you're a boomer without telling me you're a boomer.

  • Duckie2hh on 06/03/2023 - 12:31
    +1

    Where is your landlord insurance? It will cover these issues you are having.

  • WreckTangle on 06/03/2023 - 12:58

    Claim on your landlord Insurance. You have that right?

  • lostgoat on 06/03/2023 - 13:04

    OP please engage a legal team. They need to be feed too .

    • ShannonN on 06/03/2023 - 17:34
      -1

      Feed them? Lawyers are so poor others have to pay for their kids to go to fancy schools, have flagship phones and live on takeaways

  • [Deactivated] on 06/03/2023 - 13:27
    +3

    Not a lawyer however it would seem to be a claim against the estate which would then hold up the probate. The executors have liability for claim and legal fees IF they pay they beneficiaries to distribute before the resolution of claims the executors will become personally liable.
    TLDR the estate will pay you out if their are any assets - you are in a good position.

    • FairDeal on 07/03/2023 - 11:08

      No a debt will NOT hold up granting probate. Granting of probate is just a legal process to ensure the Will is in order after which the nominated Executor/s assume the legal & financial powers of the deceased so they can operate the estate which includes paying out all legitimate debts then distributing the remaining funds to beneficiaries as dictated by the Will.

      • [Deactivated] on 08/03/2023 - 09:19

        @FairDeal you are right - Thanks.
        Is it a notice of the debt to the executor/acting solicitor of the estate?

  • Bargainitis on 06/03/2023 - 15:42

    Relevant question that could be helpful for future landlords.

    Given the person that was living there was never on the lease, could you have technically come in and changed the locks and forcibly remove him / her? The way I see it is, you can prove you are the landlord (check), you could prove the lease agreement is not with the person living there (check) so was that not a potential route to take? I guess you just assumed VCAT would come to the rescue and not drag their feet in this process.

    bummer - sorry to hear.

    • Jolakot on 07/03/2023 - 00:38
      +2

      Never DIY an eviction, they are still a legal tenant under the act, with full protections against illegal eviction

      If you were to change the locks or throw their stuff out onto the street, they could take you to VCAT for compensation of damages and lodging, and you risk a $27738 fine on top of all of that

      Basically if a tenant sublets to someone else, then that person also becomes a legal tenant, whether the Landlord consents to it or not

      However, subletting without the Landlord's consent is a breach, and you can give them a notice to vacate within 14 days

      • Bargainitis on 07/03/2023 - 09:10

        helpful explanation. My examples were extreme and more for effect but I guess thats where the line is!

      • knobbs on 07/03/2023 - 09:51
        +2

        Couldn't any bum off the streets get into the house and say they were a tenant in this case? Is there no need for any evidence at all they were the sub tenant?

        • Jolakot on 07/03/2023 - 14:08
          +1

          The difference between a sub-tenant and a random bum off the street is whether they have an agreement with the original tenant

          Especially if the sub-tenant has a history of paying rent to the subletor (original tenant) and they have a written agreement with them, then VCAT would consider them a tenant

          But if some random bum moves into an unoccupied house while the actual tenant is absent but still paying rent, then they're legally a squatter

          With no proof of any agreement with the actual tenant, VCAT will hear the matter urgently and will give you an expedited possession order, which you can take to a sheriff to have them forcibly evicted and get the locks etc changed

          My partner worked on the Residential Tenancy List at VCAT until last year, the Members (what they call judges) loved tearing apart crappy landlords and sovereign citizen squatters alike. For all this BS about bias against landlords, there are very few cases actually won by tenants, other than for urgent repair cases it was solidly in the landlords favour

Login or Join to leave a comment
Login Join