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QLD No Lease Signed - Can We Get a Refund?

Discussion in 'Property Law Forum' started by Mrsmcnic, 27 June 2016.

  1. Mrsmcnic

    Mrsmcnic Member

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    Hi there, we're moving from NSW to QLD. We spent 3 days searching for a rental.

    One, in particular, was perfect for our needs. Apparently, the decision was between us and another couple. The others won out. As we were approved for another property, we decided to go ahead. RE emailed contracts, etc. We paid bond and rent x 2 that night.

    9.30am next morning, other RE called to ask if we're still interested in the ideal property as the other group pulled out. Explained we'd paid bond + 2 weeks on another property but had not signed anything. She advised without signatures, we're not locked in. Great, we thought.

    Emailed back agent and explained the situation and requested to pull out and refund the bond. She came back at us with a break lease situation, $100 re-advertising fee, $500 break lease fee and rent to be paid until another tenant found. I questioned this as we hadn't signed the lease yet, but she advised that her emailing the contracts to us was locking us into the lease.

    Is this right under property ? Last time I rented (9 + years ago), nothing was contractual until signatures were obtained. We're now left waiting on the owner to decide to pursue the break lease or let us off. They are taking their time, which is nerve-wracking. 5 days so far.

    It was literally 13 hours from paying the bond to asking for a refund. The property is still advertised on the internet.

    Any help appreciated.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Mrsmcnic,

    I think in this situation, you would lose your holding deposit but you would not be required to pay re-advertising fee, break lease fee or rent until another tenant is found because you technically have not entered into the lease yet.

    The Residential Tenancies Authority of Queensland's website states that:

    "If the prospective tenant does not proceed with the tenancy and advises the lessor/agent within the holding period, the entire holding deposit must be refunded within 3 days.

    The lessor/agent can keep the holding deposit if the prospective tenant fails to notify the lessor/agent of their decision not to go ahead with the tenancy within the agreed holding period. If the prospective tenant indicates that they will proceed with the tenancy but then fails to enter into the tenancy agreement, they will forfeit the holding deposit."


    Check out this fact sheet at the RTA:
    Rent payments and holding deposits fact sheet | Residential Tenancies Authority
     
  3. Mrsmcnic

    Mrsmcnic Member

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    Thank you so much for this info.

    Unfortunately it wasn't a holding deposit and agent made no mention of that. It was more "you've been approved, here is the contract, please pay bond and 2 weeks rent within 72 hours".

    It stated we could sign the contract upon collecting keys the day the lease began. Which I must admit I thought was odd as we were approved for another property too and they were bending over backwards trying to get us in to sign.

    I've called the QLD rent tribunal place. They first said it's not binding unless signed, then said if we'd paid bond, etc., it was a clear intention we were agreeing to terms and agent is within rights to apply a break lease scenario.

    I honestly didn't know it was binding without a signature. And yes, I did have the intention to proceed with the lease.

    If it goes to the tribunal, is it likely to find in the agents favour?
     
  4. Louise4007

    Louise4007 Well-Known Member

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    Hi Mrsmcnic

    The contract is arguably invalid & therefore not binding without a signature. 'Arguably' because it is unclear whether you agreed to be bound ( possibly verbally) by contractual terms on receipt of the emailed documents or any other conditions that may have been made or discussed between yourselves & the agent. Simply emailing documents does not constitute a contract generally.

    Bear in mind also that you can be bound by digital or electronic signatures online if this is agreed to by both parties. For example, clicking 'I agree' to something can also indicate your agreement to certain associated terms & conditions.

    Unfortunately it is never a good idea to pay significant sums of money until the relevant documents are definitely agreed to, signed & exchanged by each party. You may be able to -

    • negotiate fulfilling the contract with the agent you have paid the bond & 2 weeks rent to .. that is accepting that rental property already partially paid for, or
    • you may be more successful in negotiating return of the monies paid either by negotiation with the agent or
    • by taking the matter up with RTA Queensland who will probably examine whether the bond & 2 weeks rent constitutes a holding deposit & whether that should be returned to you in its' entirety.
    Regards & good luck
     
  5. Mrsmcnic

    Mrsmcnic Member

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    Thank you so much for the replies. The landlord has agreed to terminate the lease if we compensate her with 2 weeks rent. Phew.
     
    Louise4007 likes this.
  6. Louise4007

    Louise4007 Well-Known Member

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    That's good news for you :)
     

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