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VIC 'Tenant' but not on Lease?

Discussion in 'Property Law Forum' started by Liss879, 15 April 2015.

  1. Liss879

    Liss879 Member

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    I signed a co-tenancy agreement in November, with one other person. In January, the other co-tenant starting having her boyfriend stay.

    He has since been here permanently, and she has provided him with a key, without my agreement or the agreement from the real estate agents (REA). I have tried to raise the issue with her, however she refuses to talk to me about it, to the point of getting me threatened.

    The boyfriend verbally agreed to assign my share of the lease to him, however they have since ignored the paperwork and done nothing about it.

    I have raised the issue with the REA, however they are referring to it as a tenant/tenant issue, which they're saying they can't play any part in.

    Legally, where do I stand under property law with breaking the lease / getting him removed from the property?

    My understanding is, that him being there is a breach of the residential tenancy agreement.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Liss,

    I suggest you speak with Consumer Affairs Victoria about your tenant-tenant dispute. Did you sign an agreement with the landlord through the agent? If so, what does your contract say? You may have grounds for terminating your agreement at no penalty as your right to enjoyment of the property has been affected. There may also be a breach of an express term in the agreement (e.g. does the contract specify that you will be sharing the property with one one other person)?
     
  3. Liss879

    Liss879 Member

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    Apparently Consumer Affairs don't deal with tenant/tenant disputes.

    However, I'm unsure how it IS a tenant/tenant dispute, as he is not legally a tenant and therefore has no rights?

    In Victoria, the Residential Tenancy Agreement says that: The TENANT must not assign or sub-let the whole or any part of the premises without the written consent of the LANDLORD. The LANDLORD’s consent must not be unreasonably withheld.

    This is grounds for a 14 day eviction notice.

    Is the REA's inaction a fault on their behalf? Or is it up to them whether or not they pursue it as a breach of the agreement?
    If it is a breach of the agreement, does it render the whole agreement invalid?

    While I do have a right to 'quiet enjoyment', in Victoria, the right to 'peace' only extends to neighbours.
    Does 'quiet enjoyment' only refer to the Landlord / REA or does it extend to unwanted visitors?
     
  4. Sarah J

    Sarah J Well-Known Member

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    Hi Liss,

    1. This is a tenant/tenant dispute because it is a dispute between you and the co-tenant (for letting her boyfriend stay). It is also a tenant/landlord dispute (for not dealing with this problem and not allowing you quiet enjoyment)

    2. My understanding is that quiet enjoyment is not limited to neighbours. It includes whether or not you can use the premises for the purposes for which you leased it. If you can no longer enjoy your stay there, whether due to the actions of the boyfriend or the co-tenant, and you are being threatened by the co-tenant, the landlord might have a duty to step in

    3. If the agent is refusing to act, then ask if you can speak with the landlord directly. Unfortunately, I am not sure if you can force action from the agent (though, I believe you probably can), best to speak with your local community legal centre about this issue.
     
  5. Liss879

    Liss879 Member

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    I called the tenants union, they confirmed that its a tenant/tenant disagreement as he would be considered a 'licensee'

    The quiet enjoyment unfortunately in vic is limited to neighbours, landlord, and agents of the landlord.. Unfortunately it's a bit grey as to whether it is breaching "quiet enjoyment"

    Because the boyfriend is considered a licensee, it's a bit grey as to whether the REA Can intervene, hence their reservation

    Unfortunately consumer affairs don't deal with tenant/tenant disputes either

    I have since called legal aid, they advised if there is harassment, bullying, and feeling unsafe, to take out a personal intervention order, then I can use an order to break the lease..

    Next step is to go to the community legal centre and give them the full story/evidence and next step for a PSIO.

    If only it were as simple as "I don't want to live here/ you don't want me here, let's just agree on a solution"... Especially when I'm offering to move out..
     
  6. Sarah J

    Sarah J Well-Known Member

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    Thank you for the update Liss.

    You can find your nearest community legal centre via this directory. Otherwise, you can drop by the Fitzroy Community Legal Centre for a general consultation as they have drop-in sessions without need for a prior appointment (in case you cannot organise an appointment in the next few weeks).
     
  7. Ivy

    Ivy Well-Known Member

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    Hi Liss,

    Sarah has provided some good suggestions. I am just wondering whether the landlord knows about your co-tenant's boyfriend? Because generally landlords aren't too happy when people are living in their premises without their knowledge (after all, as you and Sarah have discussed, the boyfriend being there is a breach of your lease). Your landlord's contact details (at least full name and address) should be somewhere with your lease documents. In addition to the other things you are doing, I would get in contact with them if you haven't already.
     
    Sarah J likes this.
  8. Sarah J

    Sarah J Well-Known Member

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    Hi Liss,

    I agree with Ivy. Although it is not conventional to bypass the agent and contact the landlord directly (after all, the landlord hired an agent to prevent dealing with rental matters themselves) I suspect the Landlord would not be too happy to hear that a extra person is living at their property without signing any lease, giving any bond, recording any identification, paying any rent etc. especially if the Landlord is paying for any amenities. I also suspect the co-tenant is in breach of her tenancy agreement. If the agent is not willing to do anything and Consumer Affairs believe they have no power to compel the agent to act, perhaps the Landlord can compel the agent to act (or at least fire the agent/get rid of the boyfriend).

    Worth a try.
     

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