“My Tenants won’t Leave” Help!
This is one of the most common complaints I hear from a self managed Landlord. It is also one of the most stressful situations for a Landlord – the tenant ignoring a Notice to Leave. The situation may see you and the tenants participating in a ‘dispute resolution’ with the RTA, and possibly Queensland Civil Tribunal (QCAT). Therefore you must be sure all interaction with your tenants has been done strictly by the book.
Follow the correct legal process.
Why do you want the tenants out?
- You do not want to renew the fixed term lease? You want to end a periodic lease?
- Have you issued a Form 12 Notice to Leave giving the tenants at least 2 months notice to vacate the property?
- The tenants are constantly in arrears?
- Did you issue a Form 11 Notice to Remedy Breach that gave the tenants 7 days to pay the outstanding rent? Assuming the full amount was not paid, did you then issue a Form 12 Notice to Leave giving the tenants at least 7 days to vacate the property?
- The tenants have not remedied a breach of the General Tenancy Agreement?
- Depending on the nature of the breach, did you inspect the property after giving the tenants a Form 9 Entry Notice with the correct amount of notice?
- Did you issue a Form 11 Notice to Remedy Breach that gave the tenants at least 14 days to fix the issue?
- Did you inspect the property again to check the breach had been rectified – making sure you issued the correct Entry Notice beforehand?
- Did you then issue a Form 12 Notice to Leave giving them at least 14 days to vacate the property?
Ensure you keep a copy of every single Notice Issued
- The signed General Tenancy Agreement
- Entry Notices
- Breach Notices
- Notices to Leave
- Other correspondence relating to the tenants and the property.
Also make sure you keep a tenant ledger recording each and every rent payment and paid to dates. Ensure the correct postage days are added to your notice periods. If you have followed all of the above to the letter you can safely lodge an “urgent application” with QCAT. If you have not adhered to legislative requirements surrounding a tenancy then it is quite likely you will have to start the process right from the beginning again.
Taking the Matter to QCAT
You will need to lodge an Urgent Application for a Warrant of Possession. (The documentation can be downloaded from www.qcat.qld.gov.au). You need an application for a Minor Civil Dispute – residential tenancy dispute form. You are going to ask QCAT to rule that the tenant has no legal right to remain on the property, the Tribunal will give you the legal tools to secure vacant possession of your property. If you are successful they will grant you a ‘warrant of possession’ which means you can have the police assist you with the removal of the tenants from the premises if necessary. Make sure you tick the URGENT APPLICATION box on the form, there are lots of explanatory notes at the back of the form, make sure you read them. Do not be mistaken by the name of the form, it may still be longer than two weeks before your case is heard, depending on how busy QCAT is. The process is called urgent because you can bypass the RTA reconciliation process and go straight to QCAT, it does not mean your case is urgent and will be heard quickly.
Preparing to Appear before the Tribunal
Things to take with you – The Tribunal will copies of the documents you submitted with your application, you should make sure you have a set for yourself and a spare in case the tenant does not have one. If damages are included in your claim, make sure you have copies of the entry and exit report and supporting photographic evidence. Take along all copies of quotes and invoices to repair the damage as well as any insurance correspondence. Take anything that will support your claim against the tenants. After the hearing – depending on the ruling made by the Tribunal you may have been granted a “Warrant of Possession.” This authorises the police to remove the tenant from the premises. The Warrant is sent to the local police station, and must come into effect within 3 days of being issued. The Warrant is effective for 14 days and can be enforced any time during this period. Contact the police station to discuss enforcement of the Warrant. The police will contact the tenants and advise them when they will attend the property and enforce the warrant. It is advisable to be present when the police are enforcing the warrant, take along a locksmith and change all the locks once the tenants have left. Don’t forget to contact you Landlord Protection Insurer at the time you lodge the the application to QCAT, keep them apprised of the situation as it unfolds.
Remember, self Managing your investment property is easy, until its not and something goes wrong. If you do not follow the legislative requirements by the letter you have the potential to cost yourself a lot of money, time and heartache. Don’t risk it.