The landlord is selling - Tenants Union of Victoria

    The landlord is selling

    A landlord is allowed to sell their property during your tenancy even if you have a fixed term tenancy agreement. The landlord or the landlord’s agent has to comply with the tenancy law when they are selling.


    Viewings and inspections

    If they give you the proper notice, the landlord has a right to show the premises to prospective buyers and the tenant has a duty to allow them entry. However, the landlord must also make sure they protect the tenant’s right to ‘quiet enjoyment’ of their rented home when such visits are made.

    The landlord can enter the premises if you agree, provided that agreement is within 7 days before the entry is required. If you do agree it’s best to put it in writing, even if it’s just a text message or an email.

    When the landlord or agent wants to enter your premises and you haven’t agreed, they must:

    • give you at least 24 hours’ written notice, stating the reason they want to visit
    • deliver the notice by mail or give it to you in person between the hours of 8am and 6pm. The landlord might give you the notice by electronic method such as email if you agree.
    • only visit between 8am and 6pm and not on public holidays (unless you have agreed otherwise within the last 7 days)
    • not stay longer than necessary.

    The reason has to be one of the reasons available under the tenancy law. For example, if the landlord is selling, the reason for the entry may be for a valuation or to show through prospective buyers.

    If they send the notice by mail they must add enough time for the mail to be delivered. See Australia Post delivery times.

    If the landlord gives proper notice, they are allowed to enter the property with anyone else necessary for the purpose of their entry (like a real estate agent, valuer or prospective buyer)

    whether or not you agree and whether or not you will be home at the time.

    If you haven’t received proper notice, you don’t have to let them or the prospective buyers in.

    It is an offence for the landlord or agent to enter the premises without meeting the entry requirements, unless they have a reasonable excuse.

    Advertising

    As part of the process of showing the property to a prospective buyer, agents usually want to have the interior photographed for the sale board and internet advertising.

    The landlord has no right of entry for the purpose of taking photographs of the premises for advertising and you may not have to allow entry for that reason. If the landlord wants to take photographs for advertising the premises for sale you should try to negotiate an agreement about what will be photographed and how the photographs will be used. You can insist that the photographer be accompanied by the landlord or real estate agent.

    If you are concerned that the photos will put your possessions at risk of theft you should remove any valuable items before the photos are taken.

    If you are concerned that photos will breach your privacy because they will clearly identify you or a family member, contact the Federal Privacy Commissioner on 1300 363 992 for advice.

    Negotiating an agreement

    You may be able to negotiate an agreement with the landlord or agent about when and how often entry to your rented premises is required. If you reach an agreement, you should get it in writing and make sure that it’s signed by yourself and the landlord or agent.

    An agreement could include conditions such as:

    • the landlord or agent will only show the property to a prospective buyer if they have made a convenient appointment time with the tenant
    • the property will be open for inspection for prospective purchasers at an agreed time each week, up until the auction date or an agreed date
    • the tenant will pay reduced rent as compensation for the inconvenience caused by the inspections.


    Unreasonable or unlawful entry

    If you believe that the landlord or their agent is exercising their right of entry in an unreasonable manner then you can apply to VCAT for a restraining order to try to minimise the disruption to your quite enjoyment of the rented premises. If the landlord or their agent is not giving you enough notice or coming to the premises too often, that may be considered unreasonable.

    If the landlord breaches their duty to take reasonable steps to ensure you have quiet enjoyment of the premises then you may also be able to claim compensation. The landlord may be in breach of their duty if they or their agent do not give you the proper notice to enter the premises or they exercise their right of entry in an unreasonable manner. You may also be able to claim compensation if your goods are stolen or damaged during an inspection.

    If you think the landlord is being unreasonable you will need to collect evidence about what is happening. For example, keep a diary of their activities such as the number of times that people are shown through the property and how long they stay each time.

    You are not obliged to go to any special effort or expense (eg buying flowers or hiring professional cleaners) to make the property more attractive to prospective buyers. If this is what the landlord wants, it’s up to them to provide it. Your obligation under the Residential Tenancies Act 1997 is simply to keep the premises in ‘a reasonably clean condition’.

    Moving out when the owner sells

    Just because the owner is selling, it doesn’t mean that you have to move out of the property. Your tenancy agreement still remains in place and has to be terminated in the proper way.

    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).

    If the landlord wants you to vacate, they must give you a 60 day Notice to Vacate, stating the reason (ie the property is being or has been sold with vacant possession). The landlord must give you the notice within 14 days of signing the contract of sale, or if the contract of sale has any special conditions attached, a Notice to Vacate may be served within 14 days of the last of these conditions being met. If you have a fixed-term lease, the last day of the notice cannot be before the expiry date of your fixed term.

    If the new owner wants you to move out before the end of your fixed term, you should try to negotiate an agreement that compensates you for the inconvenience. If you reach an agreement, get it in writing and make sure that it’s signed by yourself and the new owner or their agent.

    If you are on a fixed-term agreement and you want to move out early because the property is being or has been sold, you may be able to end the tenancy early by a ‘mutual consent’ (ie agreement) with the landlord. Get the agreement in writing, signed by the landlord or agent, or you may have to pay the costs of breaking the lease.

    If you are on a periodic (month to month) lease and you are given a 60-day Notice to Vacate, you can move out before the 60 days are up. However you must give the landlord or new owner 14 days’ Notice of Intention to Vacate.

    Bonds

    When the property is sold, both the new owner and the previous owner must notify the Residential Tenancies Bond Authority that the property has changed hands. Your bond remains with the Bond Authority until the end of the tenancy, when the new landlord can either make a claim against it or agree to have it paid out to you.

    This information is a guide only and should not be used as a substitute for professional legal advice.


     

     

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    Tenants Union of Victoria Ltd ACN 081 348 227 | Published: July 2013
    Tenants help 03 9416 2577 | 55 Johnston Street Fitzroy | tuv.org.au
    The Tenants Union of Victoria acknowledges the support of the Victorian Government.

    The Tenants Union of Victoria acknowledges the support of the Victorian Government.