Friday, August 1, 2014

Contracts, conjunctions and clarity

Entering into a tenancy agreement only to find out later that the landlord is selling the place with you in it can be very frustrating. We've written a whole series of posts on this. The Residential Tenancies Act 2010 introduced one particular method of dealing with landlord selling that has caused a bit of confusion since its introduction. That method is giving the tenant the ability to end the tenancy early because they hadn't been informed of the sale before entering into the agreement. We've written twice before on this issue, using our understanding at the time. Fortunately, as of 4th July this year, the Act was amended slightly to make it crystal clear what it had probably meant to say all along.

Unfortunately, it has been clear as mud to some, provoking today's pedantic rant.

Now see here, you lot!

The Act now reads:
(1)  A tenant may give a termination notice for a fixed term agreement on any of the following grounds:
...
(c)  that the landlord has notified the tenant of the landlord’s intention to sell the residential premises, unless the landlord disclosed the proposed sale of the premises before entering into the residential tenancy agreement as required by section 26,

Section 26 requires a landlord who has an intention sell the premises and has also prepared a contract for sale to disclose that fact to the tenant before entering into a tenancy agreement with them.

The confusion arises now on how to read (1)(c). Since the clarification an agent in NSW has told a tenant, that "this section now only applies if a Contract for Sale of Land was prepared prior to the lease being entered into."

Now, we're all for the evolution of the English language. We've accepted that google is a verb, that we all know some flexitarians, but we're not yet aware of anyone making an argument for redefining the word "unless".

Unless is a form of conjunction (a word that joins two phrases), which is "used to introduce a case in which a statement being made is not true or valid." What "unless" most definitely is not, is "only if", as asserted by that real estate agent.

In this case the statement that being made is:
A tenant may give a termination notice for a fixed term agreement on (any of) the following grounds: that the landlord has notified the tenant of the landlord’s intention to sell the residential premises,
The Act inserts the conjunction,
unless
and the qualifier:
the landlord disclosed the proposed sale of the premises before entering into the residential tenancy agreement as required by section 26.

For clarity, here is what the explanatory note that accompanied the amendment through parliament says about it:
A tenant will have a right to terminate the agreement early, unless the proposed sale was disclosed in accordance with that section [section 26].

The way to read this part is that a tenant is entitled to terminate in almost all the circumstances where the landlord notifies them of an intention to sell the premises. There is one exception, and that is where the landlord had, before the agreement started, disclosed that they had prepared a contract for sale of the home.

We hope this settles the question!

This information is not to be construed as legal advice and should not be relied on in the making of any rash decisions about moving house. If in doubt, contact your local TAAS.

No comments:

Post a Comment

Please keep your comments PC - that is, polite and civilised. Comments may be removed at the discretion of the blog administrator; no correspondence will be entered into. Comments that are abusive of individual persons, or are sexist, racist or otherwise offensive will be removed, so don’t bother leaving them.