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NSW Breaking Lease - Responsible for One Month Rent as Subtenant?

Discussion in 'Property Law Forum' started by AnnaK, 19 September 2016.

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  1. AnnaK

    AnnaK Member

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    Hello,

    I am subleasing a place for 3 months, however, I have broken the lease recently - 6 weeks prior to the end of said sublease (which ends on October 31st), but the real tenant is not having it and is telling me that I'm legally responsible for the last month due. There is absolutely no clause in the 1 page subtenancy agreement that I have with him, except the one saying that the deposit will be used in case of non payment of rent.

    I'd like to know the following:

    The sublease being between the real tenant and I (not with the agency that acts as his landlord), am I legally responsible (I insist on the "legally")?

    The lease only indicates the amount I have to pay each month and the subtenancy period, there is no clause in it.

    I broke the lease because I was offered a job abroad, and since there is absolutely no clause in the subtenant agreement, I assume the responsibility falls under the real tenant here?

    What could possibly happen to me should I leave before the end of the lease, besides of course losing my bond? I'm worried about leaving/returning to Australia (I'm not a citizen) but I also wonder how much of a power a tenant has over a subtenant in such situation?

    Can I be requested to pay the rent balance by Australian authorities? Can I be blacklisted next time I ask for a visa?

    I'm not sure how far this can go as I'm only a subtenant here and I believe that the tenant is the one still legally responsible for paying his rent, sublease or not, is that correct?

    Please help, as the real tenant is telling me that he doesn't care about me having to leave because of a job and that I'm legally responsible for the rent until the end of October because of the sublease I signed (his agency/landlord is aware of the subtenancy agreement but I didn't sign anything with them).

    I have been a tenant before and technically speaking, only the person signing the lease with the agency/landlord is legally responsible for paying the rent no matter what, but I am not familiar with the NSW laws on the matter.

    Thank you.
     
  2. Rod

    Rod Well-Known Member

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    Leasee is responsible to landlord.
    Sub-tenant is responsible to Leasee (real tenant in your terminology).

    The Leasee can take you to NCAT for non-payment of rent.
    The landlord can take the Leasee to NCAT for non-payment of rent.

    I don't know how civil court/tribunal judgments affect Visas and immigration. The character test applied by Australian authorities is generally one of criminality and social values though they can consider other matters if they think the other matters are significant. Facts vary from case to case and it is hard to give accurate specific advice without all the relevant facts.

    You said you are breaking the sub-lease, so if you are really concerned about re-entry into Australia then pay what is owed and there is no problem.
     
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  3. AnnaK

    AnnaK Member

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    Hello Rod,

    Thank you for your reply, I appreciate it.

    I'm not sure how the leasee can take me to NCAT if I'm gone and already out of the country though? Again, does it mean I am legally responsible or the leasee actually is with his detailed lease with his agency/landlord?

    Like I said, the subtenancy agreement I have really is a basic one with no clause or details other than the amount and lease period, deposit amount paid to the leasee and signatures.

    Since there is not a single word about breaking the lease earlier and how it would affect my agreement, I assume it is implied that it's something I can do. As in, if nothing is and has never been written about it, then nothing prohibits me from doing it (it wasn't even discussed).

    Now, I don't want to pay for the last month, considering I am moving abroad and will not only have to pay for the move but also for another rental there, and I simply can not afford it. I offered to try to find a replacement for the remaining 4 weeks but the leasee doesn't even want to hear about it, yet he is looking for a new tenant from November (and I don't get why he can't agree on looking from October 01st).

    Again, what I am trying to find out is whether or not I'm legally responsible when the subtenancy agreement I have is a one page document with no clause at all (not sure this is even legal actually), or if the leasee is actually responsible for paying his rent no matter how he does it (he still pays the agency/landlord directly, I only pay the leasee and have no contact whatsoever with said agency/landlord).

    It would make sense if I were the one having a detailed lease with the agency/landlord, but I am not, and I'm trying to understand the real extent of my legal responsibilities here, again knowing there are no terms and conditions in my subtenancy agreement.

    Thank you.
     
  4. Rod

    Rod Well-Known Member

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    He does it in your absence, unless you elect to come back.

    Not wanting to pay, and being responsible to pay are two different things. You have a legal agreement with the Leasee. He is under no obligation to change the agreement.

    If it has an amount, address, start date and end date it is likely to be legal.
    This is in your favour should you break the lease. If you break the lease he is under an obligation to mitigate his losses. If he tries and can't you are responsible for the full break cost (ie remaining rent).

    Exactly - you are legally responsible to the Leasee, not the landlord.
     
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