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Property Management Firms Giving 42 Day Notices

Scotney Williams L.L.B 1

Recently a tenancy tribunal decision declared a 42 notice (on the grounds that the landlord was going to re-occupy the premises for the purposes of living there) invalid because it was issued by a real estate property management company saying that the company was clearly not going to live in the rented dwelling.

It would fair comment that this has never really been a problem since the inception of the RTA so why is it now.? It has always been accepted that when agents and property management firms serve 42 day notices they do so on behalf of the owner and it is the owner who is going to take up residence in the dwelling not the property management firm.

The Tribunal took the view that tenants had the right to know if the owner was a natural person rather than a company or a trust. It takes the view that trusts and companies cannot retake possession of rented premises for the purposes of residence. The rationale for the decision was, that in the instant case the tenants did not know whether or not the owner was a natural person because they had never been advised of that fact. This decision has had serious repercussions for property management firms who recently have not been able issue 42 day notices with any certainty that they will be supported at the Tribunal if challenged.

My advice to overcome this problem is for the property management firms to advise the tenants at the commencement of the tenancy that the owners are natural persons. This can be done in two ways:

1 To recite the owners names on the tenancy agreement as owners and the property managers names as agent. ( the owners written consent should be obtained for this). Some owners do not want there details disclosed on the agreement or

2 To attach a letter to the tenancy agreement advising the tenants that the owners are natural persons.

Either of these strategies should overcome the problem and enable a valid 42 day notice to be served later should that be necessary.