VIC Tenancy and bond and IVO

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GlassHalfFull

Well-Known Member
28 August 2018
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Hi all,

When my ex partner and I separated, I moved out of the home and she took out an intervention order out on me shortly after (unjustified and unfair, but that's another story).

My problem is this. I want to get my name off the lease, and this doesn't seem to be the major problem. However, I do want my half of the bond which was paid jointly when we moved in together. If I simply take my name off the lease then I assume my name is also removed from the bond. I spoke to the real estate agent who looks after our tenancy on behalf of the landlord and they have advised that unless my ex partner agrees to pay me the bond directly, there is nothing they can do.

Also, the 12 month tenancy is due to expire in about a month from now. I assumed that since my name is still on the lease along with my ex partner, I would be able to 'veto' any extension of the tenancy and force her to sign a new contract without my name on it. However, the real estate agent said that the tenancy can ONLY be ended with the agreement of BOTH parties and I cannot stop it becoming a rolling monthly tenancy. So basically, I am being held hostage to this tenancy unless I forfeit my right to half of the bond?

The real estate agent said that my only recourse would be through VCAT. However, looking at the VCAT website, it says that they will only hear disputes between landlords and tenants, not between tenants. My understanding is that this would be considered to be a dispute between tenants over the split of the bond. Is my understanding also correct therefore that VCAT won't hear this sort of case? They do have an application to reduce the term of a fixed term tenancy where the tenant is excluded from a property by a court order (my situation), but that does not seem to solve the issue, because there is only a month left on the fixed term tenancy anyway, and the real estate agent has already told me it will automatically become a rolling monthly contract after that expires anyway, so how does this help me?

Any advice on how to handle this or any misunderstandings I have about the legalities would be appreciated.
 

Rod

Lawyer
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27 May 2014
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... said that the tenancy can ONLY be ended with the agreement of BOTH parties and I cannot stop it becoming a rolling monthly tenancy.

Not true. The landlord needs the agreement of both tenants for the tenancy to continue. Put your position in writing to the landlord/real estate agent asap.

This then gives you an opportunity to contest the bond at VCAT if it is not paid to you. And you'll have an email/letter to rely on giving the landlord/real estate agent notice of your intent to not renew the lease.

I'd be more forceful with the real estate agent and suggest both they and the landlord will be taken to VCAT if the matter is not resolved to your satisfaction.

Based on your post I estimate you have the ability to pen your own email/letter.
 

GlassHalfFull

Well-Known Member
28 August 2018
426
36
714
Not true. The landlord needs the agreement of both tenants for the tenancy to continue.

Ah that's interesting. And not entirely surprising that the agent doesn't actually know the law... Can you advise me what specific law in Victoria this refers to? Because indeed I think I am capable of writing the email to the agent, but I would feel more comfortable telling them their previous advice was wrong if I could refer to something in law (even if I can't necessarily interpret that law as a lawyer would!).

I thought the lease would expire towards the end of February but I've just checked and actually it is due to expire on the 8th of February (6 days from now this Friday), is this a problem in terms of giving enough notice? I would have thought that actually when a contract is coming to an end and if indeed it cannot automatically become rolling month to month without my authorisation, then 28 days notice is not required in that case (because if I don't agree, the lease does not continue, it expires?).

I am still a bit confused because you say the landlord needs the agreement of both tenants for the tenancy to continue but the Tenants Union Victoria says it does automatically become rolling unless you have given 28 days notice.

When you want to leave - Tenants Victoria

So I guess I have left this too late to end it before it becomes rolling. But I also assume that the fact that it becomes rolling doesn't necessarily negate my right to be taken off the lease 28 days later. The question remains, if my name is taken off the lease (either by agreement or by VCAT), does that terminate the lease or does it just amend the lease and allow me to get the bond?
 

Rod

Lawyer
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It's all covered under the Residential Tenancies Act.

And yes, you likely need to give 28 days notice as your ex-partner is still there even though you were out before the end of the tenancy.

The lease terminates (after 28 days notice) and your ex-needs to enter into a new lease.

If you get push back, just stick to your position and put it back on the agent to tell you under what law the lease continues.
 

GlassHalfFull

Well-Known Member
28 August 2018
426
36
714
It's all covered under the Residential Tenancies Act.

And yes, you likely need to give 28 days notice as your ex-partner is still there even though you were out before the end of the tenancy.

The lease terminates (after 28 days notice) and your ex-needs to enter into a new lease.

If you get push back, just stick to your position and put it back on the agent to tell you under what law the lease continues.

So just to clarify, you believe that I have the right to end the tenancy with 28 days notice once it becomes rolling, even though my ex partner doesn't want to end it, and I can force her to sign a new contract of her own?
 

Rod

Lawyer
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27 May 2014
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GlassHalfFull

Well-Known Member
28 August 2018
426
36
714
Right. Sorry, when I said force her to, I mean if she wants to remain in the house, she would need to take out a new tenancy with just her name on it because she would be unable to continue the existing contract of which I am on.