Solicitors and barristers have, for some time, had difficulty removing a tenant from a premises. I’ve recently had a solicitor advise one of my clients to put $10,000 into their trust account so that they could remove a tenant. Their intention was to go to the Supreme Court to seek a declaration. This is a common mistake amongst solicitors. Solicitors believe that the Supreme Court system is far more effective than the NSW Civil Administration Tribunal (NCAT). They might be right in many circumstances, but they aren’t right where the courts don’t have powers.
The notion that the courts are there as an alternative to NCAT in relation to vacant possession is a myth. Section 119 of the Residential Tenancies Act 2010 states that the only court or tribunal which can provide vacant possession is NCAT. It specifically excludes the Local, District or Supreme Court.
This clears up a myth, but takes away a forum where a landlord can receive legal representation. For any action before NCAT, which does not exceed $30,000, solicitors are excluded. This means that, if you have a complicated vacant possession issue, solicitors are excluded from taking action. This is where hard and fast rules of law can sometimes serve to disenfranchise people’s rights.
The only person who can assist a landlord to obtain vacant possession is a real estate agent who holds an agency agreement with the landlord.
If you are a private landlord, please ensure that you obtain the assistance of an agent to terminate anyone. Failure to terminate correctly means that you have to reissue the termination notice. In other words, you have to start all over again.
You need to obtain the services of an agent to terminate and obtain vacant possession. They are professionals who are trained to be in NCAT and obtain vacant possession orders. They may not be a solicitor but they are better trained in this area of obtaining vacant possession. More importantly, they are the only ones recognised to be able to do it!
This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.
To get in touch with Bailey, please email email@example.com or call 1300 438 538