Leaving a tenancy early can be expensive. Following these tips can help limit any extra costs.
Staying instead of leaving
Before they leave the rental property, it’s important that the affected person is made aware that they have the option to stay and that there are steps they can take to make it safer to stay. See Staying in the rental property.
Don’t return the keys too early!
It is very important that the affected person does not return the keys too early. If all tenants move out and return the keys to the landlord, the lease has ended and VCAT is unable to reduce the lease. If this happens in a fixed-term lease it is likely that they will have to pay lease-break costs to the landlord.
Ending the lease when you want to leave
The three important things to find out are:
- Is the lease fixed-term or periodic?
- Who’s names are on the lease?
- Is there an intervention order in place?
The affected person has five options when they want to leave:
1. Give 28 days notice
This is a good option if there is a periodic lease or if there are less than 28 days to go until the end of the fixed term, and if the affected person is the only one on the lease.
They can write to the landlord to give notice of their intention to vacate the property. They must include the end date in the letter and it must be at least 28 days from the day the landlord receives it. If sending it by mail, add extra days for the mail to be delivered. See delivery times [Australia Post website].
2. Get the landlord’s okay
If the landlord and other tenants agree (in writing), the lease can be ended early. This may not be the best option because all tenants need to agree (including the perpetrator if their name is on the lease).
3. Transfer the lease to someone else (assignment)
Another option for the affected person is to transfer (assign) their part of the lease to another person. This option is a good one if there is someone who wants to live at the property with the perpetrator. The steps you need to take are:
- Get an agreement in writing. All current tenants, the landlord, and the new tenant need to agree. The landlord cannot unreasonably withhold consent.
- Get the bond money from the new tenant or other tenants who are staying. It’s a good idea to do this before you transfer the bond, because if the affected person’s name is taken off the bond they have no right to the bond money held at the RTBA.
- Transfer the bond into the new name. Everyone involved needs to sign a tenant transfer form. And the form must be given to the Residential Tenancies Bond Authority [RTBA website].
4. Apply to VCAT to get their name taken off the lease
If the affected person and perpetrator are on a periodic (month-to-month) lease together, the affected person can apply to VCAT to get their name taken off the lease and end their liability. However, it is not guaranteed that VCAT will make an order taking the affected person’s name off the lease as there is no specific power to do this in the Residential Tenancies Act 1997 (Vic).
5. Apply to VCAT to reduce the term of the lease
If the affected person is on a fixed-term lease, they can apply to VCAT to reduce the term of the lease. This will help to avoid expensive lease-break costs. This can be done even if the perpetrator’s name is not on the lease.
What you need
These are the things you need before you apply to VCAT to reduce a fixed-term lease:
- interim or final intervention order
- If the affected person has an intervention order they can apply under section 234 (2A) of the Residential Tenancies Act 1997.
- It is still possible to apply to VCAT for a reduction of fixed term tenancy without an intervention order, under section 234 (1), Residential Tenancies Act 1997. However the affected person will need to provide evidence of the family violence. This could include giving verbal evidence, which may be difficult for the affected person. It is generally easier to get a reduction when there is an intervention order in place as VCAT members will normally take intervention orders at face value.
- affected person must be a tenant (with their name on the current lease)
- affected person must show that they have had an unforeseen change in their circumstances, which has caused them severe hardship. Generally family violence will meet the threshold for hardship as required by section 234 of the Residential Tenancies Act 1997 if it can be shown that there is sufficient evidence of family violence. When considering whether to grant the reduction, the VCAT member will determine if the tenant’s hardship is greater than that of the landlord’s.
Who owes what when the lease ends?
If there is anything owing when a lease ends it is usually the joint responsibility of all tenants to pay. This could include any unpaid rent, unpaid bills or damage to the rental property and even cleaning costs if the rental property is not left in a reasonably clean condition.
In some cases, an affected person may be able ask VCAT to order that they should not have to pay for damage to the property.
Compensation to the landlord
If a fixed term lease is reduced, the landlord may ask for compensation. VCAT has the power to award compensation to the landlord if they reduce the lease under s 234 (3) of the Residential Tenancies Act 1997. Typical orders that VCAT makes in relation to compensation are for re-letting fees, advertising costs or lost rent.
Getting your bond back
Sometimes affected persons apply for a reduction of their fixed term lease and the return of their bond in the same application. However, VCAT is unlikely to grant a reduction and return the bond at the same hearing, particularly if there is another tenant is still living at the property.
Usually VCAT will not order that the bond be repaid by the Residential Tenancies Bond Authority (RTBA) until all tenants have vacated the property. Even if all tenants have gone, VCAT will only make a decision about the bond if the agent has been given an opportunity to inspect the property.
Paying for damages
Tenants usually have joint responsibility for any damage to the rental property caused by any of the tenants or their visitors. In cases a family violence the affected person can argue they are not responsible for the damage:
If damage was caused by the perpetrator, and both the affected person and the perpetrator are on the lease, the affected person can ask VCAT to order that the perpetrator is solely responsible for the damage, under Part IVAA of the Wrongs Act 1958 (Vic) which applies to a claim for economic loss or damage to property that arises from a failure to take reasonable care. Because their name is on the lease, the affected person can be seen as a ‘concurrent wrongdoer’ and therefore they are equally liable even if they did not cause the damage. But the affected person can ask for the liability to be apportioned (shared) and that their share be limited to the proportion that VCAT considers fair with regard to their responsibility for the damage.
If damage was caused by the perpetrator who is not on the lease, the affected person can argue that they were not able to prevent this damage occurring due to family violence. They can also argue that the perpetrator was not their invited visitor, especially if they have an intervention order.
Damage: Section 61, Residential Tenancies Act 1997 [AustLII website]
Assignment: Section 81 and Section 82, Residential Tenancies Act 1997 [AustLII website]
Termination by agreement: Section 217, Residential Tenancies Act 1997 [AustLII website]
Termination by consent: Section 218, Residential Tenancies Act 1997 [AustLII website]
Reduction of fixed-term lease by VCAT: Section 234, Residential Tenancies Act 1997 [AustLII website]
General dispute at VCAT: Section 452, Residential Tenancies Act 1997 [AustLII website]
Apportionable claims: Part IVAA Wrongs Act 1958 [AustLII website]
This information is a guide only and should not be used as a substitute for professional legal advice.
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