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NSW Property Law - Tenant Death And Occupant Eviction

Discussion in 'Property Law Forum' started by Emery Deveraux, 13 December 2015.

  1. Emery Deveraux

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    We have a rental property in Northern NSW which has been rented continuously to the same tenant for approximately 6 years. For the first few years, our tenant was always up to date with his rent and kept the property in a reasonable condition. For the past 18 months or so, we have had to continually badger the tenant for rental payments which were consistently 4 weeks in arrears. We threatened the tenant with eviction action via emails on a number of occasions, but this did not remedy the rent arrears issue.

    When the tenant’s failure to pay rent reached 6 weeks in arrears, a standard Tenancy Termination Notice (Notice To Terminate Tenancy Agreement By Landlord/Agent under the Residential Tenancies Act 2010 sourced from NSW Fair Trading) was posted to the tenant on 17 November 2015. Allowing for 4 working days for delivery, and 14 day’s notice, the date which the tenant was required to vacate, was 5 December 2015.

    On Saturday 5 December 2015, we received a phone call from the tenant’s brother-in-law advising that the tenant had died of a heart attack whilst at the local police station. Further enquiries revealed that the tenant was at the police station to comply with bail provisions. On 7 December 2015, we visited our rental property to find an unknown occupant inhabiting the property, as well as the property in a total state of filth, and to our mind, not fit for human habitation in its current state.

    It was apparent that a number of dogs (3 as we later ascertained) had been locked inside for up to a week at a time on multiple occasions with food and water), and as a consequence all carpets are saturated with dog urine and faeces, in some places so deep that the carpet cannot be detected. The stench of the house was such that it made my wife vomit.

    We have kept in contact with the tenant’s relatives, and they visited from Sydney on 12 December to go through the tenant’s belongings at the rental property and recover anything they required. A few items of personal value were removed, and they offered the remainder of the tenant’s belongings to the unknown occupant. These belongings include all house contents, a vehicle (barely roadworthy), a dilapidated, unregistered and unroadworthy caravan, and a trailer, also unregistered. The relatives of the tenant also advised that the tenant had no will and that the value of his estate was negligible. The condition of the contents of the house is such that we do not consider anything to have a resale value.

    The terms of the lease were such that the tenant was not able to sub-let the property with the written consent of the Landlord, which was not to be unreasonably withheld. However, the tenant never sought to secure our agreement to sub-let, although the unknown occupant claims that he had paid some rent to the tenant prior to his death. Whilst the property had Landlord insurance, we may be able to secure compensation for unpaid rent, but it seems that locking dogs inside the house for extended periods, on many occasions does not constitute malicious damage, and so is not covered by the insurance policy we have in place.

    Sorry about the length of this, but with the above background the primary issue we currently have been as follows:

    Despite repeated verbal requests to the unknown occupant to remove his possessions and vacate the property, he is refusing to do so – As we need to completely strip the house of all contents, remove the carpets, get the house sanitised, repainted, re-carpeted, and apply extensive repairs/refurbishment to bathrooms, doors, kitchen and so on, we need this occupant to vacate the property as soon as possible. What steps can we take to legally expedite this outcome?

    As we are retired and rely on the rent from this property to meet our financial needs, and we do not have the financial resources to pay for all of the work that needs to be done, we will need to do the cleaning, and as much of the restoration work as we can, which means that the house will be vacant for a much longer period before we can either sell it or re-rent it.

    Many thanks in anticipation of any Property Law help you may be able to provide in regard to the above.
     
  2. Tim W

    Tim W Lawyer

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    Have you served the purported sub-tenant with a plain old Notice To Quit,
    just as if they were an ordinary tenant?
     
  3. Emery Deveraux

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    Hi Tim, thanks for responding. Yes, we have provided the occupant with a copy of the termination notice sent to the tenant on 17 November, 2015.
     
  4. JS79

    JS79 Well-Known Member

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    Have you tried appealing to the insurance company?
     
  5. Emery Deveraux

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    Hi JS79, not as yet as our priority is to secure vacant possession of the property with the departure of the occupant.
     
  6. Tim W

    Tim W Lawyer

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    A copy of a document directed to somebody else (even if the somebody else is a de facto head tenant)
    is not worth much.
    Perhaps a notice directly to the remaining occupant(s) is in order here.
     

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