I have a lodger, who was only meant to stay for a few months. That was 2yrs & 2 months ago. There was never anything in

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Customer: I have a lodger, who was only meant to stay for a few months. That was 2yrs & 2 months ago. There was never anything in writing. He has done some damage to my home and some appliances, but he has replaced one appliance, and he has organised damage done to my kitchen bench to be repaired. I am on DSP, and having him live here is bad for my mental health. How much notice, in writing, do I have to give him to get out?
JA: What state are you in? It matters because laws vary by location.
Customer: NSW
JA: What steps have you taken so far?
Customer: Only to get the repairs. I fear that if I give him his notice before the repairs are done, he won't pay for them.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I don't think so?
Answered by John Melis in 49 mins 2 years ago
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John Melis, Expert

Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.

Concerning this lodger in your property, you can immediately raise a claim in the New South Wales civil administrative tribunal to have that person removed. I suggest you consider the following steps. If your matter is urgent you can apply directly to the court for a restraining order to have that person relocated from the property and for damages paid to you for any damages that have occurred.

The New South Wales Civil Administrative Tribunal “NCAT” process is very good to meditate disputes of this type as it forces the parties to come together to discuss the issues involved.

However, before raising a claiming in NCAT, you should file for mediation at Fair Trading, and if the matter does not settle at Fair Trading, then obtain a certificate that mediation failed, and commence an action at NCAT.

In most cases at mediation the matter will settle.

The matter is Civil.

You will be the applicant and the insurer the respondent.

The important filing document is the points of claim. This document needs to be carefully drafted. 

I recommend that you download the application first, complete the same and then upload as required to commence the claim.

The alternative to this is filing an application in the local court, in which case you will be able to recover your legal fees as well in pursuit of the debt amount.

What you need to do is to write the complaint in a chronological order detailing what is the issue and what action you have taken to try and rectify the matter.

The chronological order need to be numbered with points 1, 2, 3, etc. with each point being a separate item. 

I recommend that you download the application first, complete the same and then upload as required to commence the claim.

The following link will assist you further. 

http://www.ncat.nsw.gov.au

This link above will assist you in the requirements to complete the application form and there are various help menus on the website that will also assist you in finalising the application that can be submitted in respect of pursuit of your claim.

Before you submit your application, make sure that you have all your evidence in hand as this will be required at the hearing date and to be served on the other party.

Keep in mind that once you have lodged your application you need to serve the application on the other party once instructed by the tribunal.

​Thank you for reaching out today.

You have a legal right to protect your interests in this important situation.

I am a user like you in this chat forum to assist in your important question today.

Thank you kindly for rating me with 5 stars, which helps me support the community.

You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

Customer
Can't I just send him an email after he's completed the repairs and replaced the remaining items he's damaged? I don't want this to go to court. The repairs have been measured and will be done next week. All I want to do is write an email, with the minimal amount of time required, to chuck him out. We have no formal tenancy agreement, as he was meant to only stay a few months. In other words, am I in my rights to just send him an email, giving him a certain date to move out by, and what is the shortest time I can give him??
Customer
No thanks. I can't afford that. I'm on the DSP.
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John Melis, Expert

Yes, you can just send a letter, I suggest that you consider the below steps

​You can seek resolution in the following way and claim compensation as well.

I recommend that you file a claim as soon as possible.

What you need to do is issue a formal complaint in writing to the other party, seeking an assessment/review on the matter, and that you require a response within 7 to 14 days subject to your requirements.

Make sure you enclose al factual evidence you have with the correspondence that you send to the other party.

When you draft this correspondence make sure it is in chronological order that is by listing with numbers example; one, two, three, etc.

The more detail you provide it will assist in resolving the specific matter in a timely way.

Where no response is received and you have reviewed the conditions carefully on the agreement if there are any, and you are still not in satisfied with the situation that is occurring, you can then raise a claim in the Tribunal or Court.

Customer
Okay. Thanks for that. But I guess the very important question is, AFTER the repairs have been made (which have been ordered, by him, and will be paid by him) what is the minimum amount of days I need to give him to vacate the premises?
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John Melis, Expert

This will depend on how long he has been in the property. If he's been there for a lengthy period of time the vacate will be extensive.

Where the tenant is in arrears of the lease payments for the leased premises, before the lessor can retake possession of the property that was leased, a proper default notice, must be served on the tenant.

If service of the default notice has been done correctly on the lessee (tenant) and the default has not be remedied in accordance with the default notice, only then can the lessor take possession (regain) of the property.

If the property is taken without proper notice to the tenant, the tenant will then have a claim against the lessor and will be able to sue for damages.

The lease provision are very important in respect to serving notice and how that notice must be served.

Where an agent is appointed to act for the lessor and the agent fails to carry out their duties diligently, the lessor may have a claim against the agent for breach of contract under the agent authority agreement, and the lessor (you) will be able to sue the agent for damages of losses incurred.

Under the tenancy act you have to provide the tenant 14 days notice to vacate where the tenant is in arrears of the rent.

Where the tenant is not willing to leave the premises under the notice that you have provided, you will need to get a tribunal order for the removal of the tenant from NCAT. New South Wales Civil Administrative Tribunal.

You can file a claim directly under the te***** *****st:

You will be the applicant and the tenant the respondent.

The important filing document is the points of claim. This document needs to be carefully drafted.

I recommend that you download the application first, complete the same and then upload as required to commence the claim.

The alternative to this is filing an application in the local court, in which case you will be able to recover your legal fees as well in pursuit of the debt amount.

What you need to do is to write the complaint in a chronological order detailing what is the issue and what action you have taken to try and rectify the matter.

The chronological order need to be numbered with points 1, 2, 3, etc. with each point being a separate item.

I recommend that you download the application first, complete the same and then upload as required to commence the claim.

I recommend that you download the application first, complete the same and then upload as required to commence the claim.

The following link will assist you further.

https://www.ncat.nsw.gov.au

You have a legal right to protect your interests in this important situation.

Where the tenant does not vacate the property you will need to go back to NCT And obtain a sheriff’s order for the removal of the tenant from the property.

If you want the tenant to vacate you must give them a termination notice. The notice must:

  • be in writing
  • be signed and dated by you or your agent
  • be properly addressed to the tenant
  • give the day on which the residential tenancy agreement is terminated and by which the tenant is required to vacate
  • where appropriate, give the grounds/reason for the notice.

You can write your own notice or use the model termination notice provided by Fair Trading.

The minimum period of notice you can give the tenant to vacate is:

  • 14 days – if the tenant is 14 days or more behind with the rent or has committed some other breach of the tenancy agreement
  • 30 days – if the fixed term of the agreement is due to end
  • 30 days – if the premises have been sold after the fixed term has ended and vacant possession is required by the buyer under the terms of the sale contract
  • 90 days – if the fixed term period has expired and no new agreement has been signed.

These notice periods are designed to give tenants reasonable time to find another rental property. If they can find a property sooner they can move out at any time without having to give you any formal notice. Except where notice has been given for the end of the fixed term, the tenant's responsibility to pay rent ends from the date they hand back possession, not the end of the notice.

There is no minimum notice period required if notice is given on the grounds of:

  • the premises being destroyed or wholly or partly uninhabitable
  • ceasing to be legally usable as a residence
  • being acquired by compulsory process (eg. by the RTA)
  • on the death of the sole tenant.

After you issue a notice you can issue another notice on a different ground if necessary. For example, if you issue 90 days notice to terminate a periodic tenancy without a reason, and the tenant then doesn't pay rent for 14 days, you can issue a non-payment of rent notice.

The procedural steps are important to follow to avoid a counter claim being raised by the tenant.

If you give notice and your tenant does not vacate by the due date the only action you can take is to apply to the NSW Civil and Administrative Tribunal for a possession order. You cannot forcibly evict the tenant yourself or take action such as changing the locks or cutting off the water or power supply. Heavy penalties and compensation could be payable if you do.

You need to apply to the Tribunal within 30 days after the date to vacate specified in your termination notice. Whether you obtain a possession order is up to the Tribunal to decide, based on the evidence you and the tenant present at the hearing. In the case of notice 'without a reason' the Tribunal must make a possession order if the notice was served correctly, unless the tenant can prove it was retaliatory.

If the Tribunal makes an order it will give the tenant a date to move out. If the tenant still does not vacate you will need to obtain a warrant for possession from the Tribunal's Registry and have it enforced by the Local Court Sheriff's Office.

You can apply direct to the Tribunal for a possession order, without giving the tenant notice, in the following circumstances:

  • serious damage to the premises or any neighbouring property
  • injury to the landlord, agent, employee or one of the tenant's neighbours
  • use of the premises by the tenant for illegal purposes such as drug manufacture
  • threat, abuse, intimidation or harassment by the tenant
  • undue hardship faced by the landlord
  • if the tenant has occupied the same premises for 20 years or more.



Damage to property.

Where there is a damage to the property because of the tenant, or the tenant is causing greater damage as the tenant will not permit the trades people to enter the property to fix the water leak, that tenant will be liable for the damages; that is the tenant can be sued for the damages as a result and you as the landlord compensated on a monetary basis.

Once you are able to get the tenant out of the property, or access to the in side of the property, you will then be able to assess the damages for repairs costs.

Upon obtaining the relevant quotes to fix the damages, you will then need to raise a further claim against the tenant, which can be brought with the first claim for the eviction with careful planning for the amount of repair costs and loss of rent that you will incur for the damages to the property.

This process for claiming damages is also with NCAT.

Customer
Before I read all of that, there is no 'lease' - I just allowed him to move in, supposedly for a few months, but he has stayed for 2 years and 2 months. No lease or tenancy agreement, only verbal. Under these circumstances, is it necessary to go through any of the above if he's paying his rent on time and making the required repairs, etc.?
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John Melis, Expert

If there is no lease, you still need to give the requisite notice period which is stated in the above post

Customer
Okay. Thanks. Still not sure, after reading the above, what the minimum amount of time is, but I'll just try to work it out. The info on how the write and deliver the termination notice is very helpful, though, so thank you for that.
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John Melis, Expert

Please use the following link and scroll down halfway through the page and you'll see all the timelines that you have to comply with

https://www.tenants.org.au/factsheet-09-you-want-to-leave

Thank you for reaching out today.

You have a legal right to protect your interests in this important situation.

I am a user like you in this chat forum to assist in your important question today.

Thank you kindly for rating me with 5 stars, which helps me support the community.

You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

Customer
Great. Thank you for your help. Have a nice day.
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John Melis, Expert

You are welcome, and thank you for supporting the community.

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