Hi, I'm in QLD, I have a short + simple question. (really, just hard to explain) If I have 4 weeks in advance payment in the contract and the tenant only pays 2 weeks, , can I issue a remedy of breach for non-payment 7 days after not paying the full 4 weeks in advance or can a remedy of breach form only be given if the actual rent is 7 days behind (even if 4 weeks in contract).
Example:
contract says 4 weeks in advance
tenant pays 2 weeks instead of 4 on 20th (breach of contract?)
can I issue of form to remedy breach of non payment on the 28th or can the form only be given if the actual rent is not paid for "today" (meaning tenant can always just pay 1 week in advance and I can never issue a breach?)
Hope it's not confusing, the law is not written very understandable in this regard, I tried to make sens of the act, but not sure. (don't want to get caught into issuing a form at the wrong time if not even allowed)
Thanks!!
PS: My guess would be no remedy of breach form until the rent is actually not paid for the past 7 days and not for not paying in advance, but clarification with reference to the law and the why would be just great thanks a lot in advance!!
I doubt you’ll have any luck enforcing it until they are actually 7 days in arrears. That said have you explained to the tenant that the full 4weeks is due at the start of each period not as many understand it as 4 weeks initially then fortnightly.
The real question here is not so much whether you can issue a Form 11, but what you hope to get out of doing so.
A Form 11 is not much more than a formality on the road to legal proceedings. You should probably know that issuing a Form 11 to bring the rent up to date does nothing to bring the rent up to date. The tenant either has the capacity and willingness to be 4 weeks ahead or they don't, regardless of what forms are issued and what it says in the lease.
Keeping this in mind, I would bring the issue to the attention of the tenant as a matter of courtesy and attempt to negotiate the rent back into 4 weeks in advance within a particular time frame. If this is not possible and they only ever remain 2 weeks in advance then perhaps you will need to adjust your finances to suit as there will be very few options available to you unless they are in arrears.
As a general rule I believe that most real estate agents will allow the rent to be in arrears for a few days before they contact the tenant. Then when the rent is in arrears by 7+ days they issue a form 11 and then if not resolved a Form 12 is issued one to two weeks later. HOWEVER, none of these processes can do anything to force the tenant to pay what they are not willing to pay. You will need to go to either mediation to work it out or to the tribunal to get orders. So working with your tenant and trying to find suitable solutions is ALWAYS the best option, rather than just issuing forms which can further damage their willingness to be in advance.
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