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VIC Property Law - Breaking of Lease After Notice to Vacate was Issued?

Discussion in 'Property Law Forum' started by kimbapuppy, 6 April 2016.

  1. kimbapuppy

    kimbapuppy Well-Known Member

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    9 months into the 12 months lease, the landlord gave the tenant (me) 90 days notice to vacate by the end of the lease period. My intention was to extend the lease as I didn't want to move.

    At the end of the 10th month into the lease or a month after receiving the vacate notice, I gave notice to break the lease upon finding a suitable rental place (literally 150 meters away). The estate agent said I had to pay for:

    a) advertising cost
    b) NTD checks on applicants
    c) pro-rata on letting fees
    d) continue to pay rent until a new tenant moves in

    And I paid these and didn't think much of this then.

    A new Tenant was found and moved in 1 week before the actual end of the lease agreement.

    I understand the Tenancy Act requires the Tenant to pay the above in the event the Tenant break lease and this makes sense. However in my case, the Landlord has issued the notice to vacate and would have had to pay for (a) and (b) to let out her property.

    I have asked both the agent and landlord (took advice from the agent) to share the cost of the (a) and (b) and pro-rata it, with my share of the cost being 2 months of the 12 months but they refused. Now the landlord is enjoying almost another 12 months of lease (or rental income) without having to pay for (a) and (b) at my expense. Through my decision to break the lease and advertise, the llandlord continues to receive rental income uninterrupted.

    Do I have any legal rights under Property Law to share the advertising cost with the landlord? The Tenancy Act talks about minimising the landlord's losses, but what about the Tenant's losses?
     
  2. Sophea

    Sophea Well-Known Member

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    This is the normal course of breaking your lease. If you had stayed the full term of the lease then you would not owe the landlord anything. However because you have effectively breached the agreement, the landlord is entitled to compensation for that - and one of the costs that the landlord incurs as a result of you breaking that lease is advertising costs, etc. within that 12 month period that he wouldn't have had to otherwise.

    Obviously, the way that it has turned out here the landlord has had a windfall because he or she was going to have to advertise anyway but since they already had advertised then they didn't need to duplicate this expense. Reasonable landlords may waive this, however it is their entitlement, and your Landlord and agent have not done anything wrong in this situation. If you breach your lease by terminating early you have to be prepared to reimburse the Landlord for their losses.
     
  3. kimbapuppy

    kimbapuppy Well-Known Member

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    Thanks Sophea for your response which my Agent felt strongly about as well.

    Since I last posted, I contacted the following:
    * Victoria Consumers Affair
    * Tenant Union
    * my solicitor
    and all 3 confirmed the fairness in pro-rataing the advertising and NTD checks cost.

    Providing this information to my Agent and the fact that if the hearing goes to VCAT, the Landlord risks paying 100% plus the $58.90 application fee, the Agent profusely apologised saying that she forgotten about the Notice to Vacate and actually reimbursed me 1 week of the 12 months lease as oppose to 2 months that I asked for.

    I am considering warning the new tenants of the Agent's bullying tactics that I experienced during my tenancy which the Agent slapped me with a breach of notice without giving me the opportunity to clarify matters and forcing me to clean and repair things that I did not cause during the final inspection.
     

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