Long story cut short –
We’ve just sold our PPOR (which settled today) and are now leasing it back from purchasers who are investors in order to build a new house.
On offer and acceptance it stated that all electrical, air cond. etc… are to be in good working order.
At home open, air cond. was leaking water so we told agent we would get it fixed prior to final inspection. Upon calling air con people, they advised us to clean out filters, which we did and the leaking has totally stopped.
Since then, our REA has been hounding us to get it serviced coz “that’s what the purchasers wanted” even though it wasn’t on contract.
We asked REIWA and our settlement agent for advise and they both told us we were not obliged to get it serviced (which would have cost us $150.00)
Since we refused to get it serviced (we feel we have stuck to our contract as it is in completely good working order), we find today when signing lease agreement that one of the clauses they have on lease contract is that they will not fix the air con if it breaks down whilst we are living here.
Is this allowed???ps…..we feel that why should we miss out because our REA stuffed up (and admited to us) by telling them we had organised to get it serviced when those words were never mentioned by us.
Hi Bonnie,
Maybe now is a good time to open dialogue with the new owners of the house. The amounts of money your are speaking about are quite small and it is perhaps something that you could talk through with them.
.
Not sure how that exclusion type clause would work in your state but it would be a shame if it got that far.
.
Good Luck.Hi Bonnie,
From the WA tenancies Act.
42. Owner’s responsibility for cleanliness and repairs
(1) It is a term of every agreement that the owner —
(a) shall provide the premises in a reasonable state of cleanliness;
(b) shall provide and maintain the premises in a reasonable state of repair having regard to their age, character and prospective life; and
(c) shall comply with all requirements in respect of buildings, health and safety under any other written law in so far as they apply to the premises.
(2) In this section “premises†includes chattels provided with the premises (whether under the agreement or not) for use by the tenant.The ACt itself is not clearly worded and is open to interpretation. My thoughts are that the owner has some responsibility to ensure the chattels are in good working order too – the airconditioner is their now and needs to be maintained by them.
I would not accept the exclusion clause and suggest that they contact the air con people and speak to them themselves.
For what it is worth I suspect this is small picture focussed investor and their chances of long term success are somewhat compromised. There are more important things to be worried about than servicing costs of an air conditioner – given that when they exchanged titles they had opportunity to hold back some funds in lieu of this matter being resolved.
Derek
[email protected]
0409 882 958
Property investment advice and researched property in quality locations available.ok Thanks for the advise.
Will chase them up on it and see what happens. I don’t hold my breath though as they have really dug their heals in over this one small issue.Here’s my suggestion – offer the owners the option of calling the serviceman on the basis that they pay if the serviceman says it didn’t need a service, and you pay if it did. This would serve the interests of both parties. Since the serviceman gets paid either way, he should be impartial.
cheers
thecrestthecrest | Tony Neale - Statewide Motel Brokers
http://www.statewidemotelbrokers.com.au
Email Me | Phone Meselling motels in NSW
How long as you leasing back for? If not long then I’d just accept the lease witht he clause knowing that if it breaks down they will still have to pay for it to be fixed, it’s just that it’ll be after you’ve left. Can you handle it with no air con if it does break down, especially as it is coming up to winter anyway?
If both parties agree to the clause then it’s binding, I believe they can put it in and if you sign then your bound by it. If you haven’t signed yet, then are you prepared to move out to other rental accomodation if they stick to their guns on the clause? Basically is the issue worth arguing over or it worth moving twice to avoid it?….
PK
Am I missing something here? Everybody wants to be right. It’s a piddling amount. Why are you worried about an air conditioner coming into winter when, if you are only on rent back to allow time to build your dream home, you won’t be there for many months.
It’s not the piddly amount that’s the issure here. What I’m asking is if it’s legal for a landlord to pick and choose what they will and won’t repair. As for it being nearly winter – we will be renting here for about 18 months by the time our new house is built so we will have another summer to go through yet.
Bonnie, this is not a landlord versus tenant issue at all.
A landlord would not in normal circumstances have a clause that the tenant must take care of the aircon, that is obvious and does not merit discussion.
The issue is between a seller, you, and a buyer that happens to be now temporarily your landlord.
The buyer thinks that you sold him a house with a dodgy aircon and is trying to scam a service call off you, using the fact that you live there and obviously need the aircon as leverage.
Your choices are simple. You either call the serviceman and add it to your expenses incurred into making the house sellable, something no doubt you would have done without a second thought before the sale, or … accept the risk that the aircon may break down in the 6 month to a year it takes to build a house, (with some luck).
The question “can the landlord do this” should be translated in, “can I get away with not paying the service call, since I now sold the house and it is not mine anymore.”
If you are interested in what I would do, here it goes.
I would gladly pay $150 for a service to an aircon that probably needs it, judging from your account, on the principle that whatever good I do, I will get back ten fold. Such principle works and I suggest you give it a try. In this particular case it is a small risk you are taking.I wish you success with your new building, $150 compared to building a new house, is a very small amount to pay for peace of mind. If I sold my house and lived in it as a tenant for some time, I know I would keep on fixing and maintaining it as if it was still mine.
_________________________________________
“What you want in your life occasionally shows up…
what you must have… always does.”
……………….– Doug FirebaughMay God Prosper you.[biggrin]
Marc
http://www.chosen4u.com/?ace1Winner – You wrote:
“You either call the serviceman and add it to your expenses incurred into making the house sellable, something no doubt you would have done without a second thought before the sale….”
We obviously didn’t get this done before the sale and wouldn’t if we had our time over again because a) The air conditioner is working fine, and they accepted this after final inspection otherwise they would have held settlement up to deal with it, and b) the bloody thing is still under warranty for another 18 months….so why would we waste money getting it serviced when we can get it fixed for free.
You say it’s a small price to pay compared to building a house, but hell let’s just throw $150.00 away here and $150.00 away there and see how far we get.
And don’t worry, we do intend to keep looking after the house as if it’s still our own
the bloody thing is still under warranty for another 18 months….so why would we waste money getting it serviced when we can get it fixed for free.So what’s your problem with the condition on the lease then?
Is this allowed???A landlord can add pretty much any condition they want to the contract but you don’t have to put your name to it. If you don’t like it, ask for it to be removed. If your landlord refuses, and you are not happy to go ahead with the lease, don’t. Easy.
Cheers, F.[cowboy2]Bonnie,
I see only two options for you…
1. Sign the lease.
2. Move out.Everyone’s responses are pretty similar.
Re-reading your inital post, it appears the lease has already been signed by yourselves. If this is the case, what is the point of the query ??
Cheers,
Dazzling
“No point having a cake if you can’t eat it.”
ok let me try and get myself understood here.
Yes we signed the lease because it doesn’t affect us if the air conditioner breaks down since it’s still under warranty.
The point of my original post is because I wanted to find out if a landlord can pick and choose what they will and won’t repair in a property.
I’m only asking this question so that I know from a legal point of view since we have our own investment properties and the same situation may arise for us in the future.
Also, since it was a condition of sale that we rented the property back, if we didn’t like that clause on the lease and chose not to accept it and to lease elsewhere, would we have breached the contract and therefore have legal issues to deal with there?
I hope this makes my query clearer.Bonnie,
Excellent – thanks for clearing that up.
Given that set of circumstances that you describe, my suggestion is that you have to accept the conditions imposed upon the lease. The horse has bolted, so to speak.
The prudent thing would have been to step back in time and have dictated to the prospective purchaser the terms and conditions on which you were prepared to leaseback the property you were considering selling to them. More particularly made the entire Lease, and the exact wording, to be agreed and executed before and as a condition on the Sale contract.
Once you signed on the dotted line and accepted their offer to purchase, without first establishing the T&C’s of the leaseback, you put yourself in a very weak negotiating position.
Also, be wary of what blanket conditions are assumed for ‘property’ and “Landlords”, there are many types…and depending on what type you are refering to, the impost or burden upon each party to the Lease varies enormously.
You are really asking a very general question that has many different answers depending on the individual circumstances involved.
Cheers,
Dazzling
“No point having a cake if you can’t eat it.”
Originally posted by Dazzling:Bonnie,
Excellent – thanks for clearing that up.
Given that set of circumstances that you describe, my suggestion is that you have to accept the conditions imposed upon the lease. The horse has bolted, so to speak.
The prudent thing would have been to step back in time and have dictated to the prospective purchaser the terms and conditions on which you were prepared to leaseback the property you were considering selling to them. More particularly made the entire Lease, and the exact wording, to be agreed and executed before and as a condition on the Sale contract.
Once you signed on the dotted line and accepted their offer to purchase, without first establishing the T&C’s of the leaseback, you put yourself in a very weak negotiating position.
Also, be wary of what blanket conditions are assumed for ‘property’ and “Landlords”, there are many types…and depending on what type you are refering to, the impost or burden upon each party to the Lease varies enormously.
You are really asking a very general question that has many different answers depending on the individual circumstances involved.
Agreed.
Also doesn’t it change according to state?
NSW is much more protective of the tenant than Queensland for example._________________________________________
“What you want in your life occasionally shows up…
what you must have… always does.”
……….– Doug FirebaughMay God Prosper you.[biggrin]
Marc…http://www.chosen4u.com/?aceIn NSW, IMHO, if the matter of the lease was adjudicated on by the CTTT, the tenant would be within his rights to assume that since the now landlord did not specifically mention exclusion of the maintenance cost or breakdown cost of air conditioner prior to the time of signing the lease, then the tenant could reasonably expect that the airconditioner stays in the house and therefore it is the liability of the landlord. Same with the TV aerial, stove, HWS etc etc. It’s a case of WYSIWYG. This is provided there was no specific mention of the airconditioner exclusion during discussions about lease back. It may be a verbal agreement, but they can stick if enough parties were present at the time.
Re the original dripping problem of the airconditioner, if it aint broke, it doesn’t require fixing. If the a/cond company is satisfied warranty-wise that the work done by the former owner is sufficient, then there is no more to be done.
NSW Tenancy Tribunals don’t like landlords moving the goalposts after a prospective tenant has inspected the premises, liked what they saw, and agreed to take the lease.
The landlord may be seen to be guilty of misrepresentation if what was offered is not what is delivered, and may be seen to be taking unfair advantage of the tenant facing the cost of moving house. At this stage, I believe the tenant is right, and must decide if it is in his interests to enforce his rights.
That’s they way I see it.
cheers
thecrestthecrest | Tony Neale - Statewide Motel Brokers
http://www.statewidemotelbrokers.com.au
Email Me | Phone Meselling motels in NSW
Can I add my 2 cents worth?
Most replies tended to be about what Bonnie should or shoudn’t do, but I think the question that she’s really asking is whether or not landlords can change clauses in a lease contract after making verbal representations about the agreement.
Theoretically a verbal contract is legally binding, but practically speaking it can’t really be enforced unless you have some proof of what was said verbally.
ANother question then arises – does the conversation about the air con constitute a contract at all, verbal or otherwise? Remembering back to contract law at uni, two essential elements of a contract are offer and acceptance. From what you have described, I’m not sure that you can establish whether you have an offer and an acceptance.
So in answer to your question “Is this allowed”, the answer is yes. Or rather it’s not disallowed. Basically the landlord can go ahead and prepare a contract with anything they like in it, regardless of whether it’s what they said before or not. It’s not moral, and it’s not ethical, but the bottom line is they can, and there’s nothing to stop them from doing so. The lease agreement which both parties sign is the document which really governs the terms and conditions of the arrangement.
You as the other party to the agreement have the power to refuse to sign the agreement unless your requirements are put in there. Otherwise you could appeal to the other party’s conscience or sense of integrity (if they have any).
It’s a jungle out there.
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