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Fisher1

Advice on end of tenancy charges

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Hi all

If anyone can advise I’d be grateful ...

We recently ended a one year tenancy in N.S.W. seven weeks early, with the consent of the landlord. The tenancy was due to end on September 17th.

We bought our own property in April and have been working on it, and were prepared to keep the rental on until the lease ended, but mentioned to the agent the fact that we would be leaving at the end of the tenancy and that if they could find a new tenant before then, it would be best for everyone, saving us rent and the landlord a void. 

The agent said that if they could find a replacement tenant it would cost us a week’s rent plus the agency’s costs.

A new tenant was found, and we agreed to move out six days before the next rental payment was due, to accommodate the new tenant, who moved in the following day. 

The agent now says that the landlord is claiming the lease break penalty of four weeks rent.  

The agent has made no mention of refunding the rent for the six days  following our departure.

So, two Questions:

1. Can the landlord claim the lease break fee when there has been no loss? 

2.Can we insist on a refund for the period following our early departure?

 

The money isn’t an issue, but we are absolutely fuming that we have acted in good faith and been landed with a huge bill. 

 

All constructive comments welcomed - we are thinking about going to a rent tribunal.


103 visa application lodged February 2013. 143 visa application submitted January 2016. Police checks and form 80 submitted February 29th 2016. Visa granted April 4th 2016.

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Here QLD there is the RTA

residential tenancy authority , find your eqivivalant , they help with all disputes . Ime that’s illegal , loss of rent covered by your bond .Did you receive that back ?

Hope you can  resolve it , good luck .

 

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Forgot to say ensure you have all written / email correspondence ready .

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Posted (edited)

Agents are generally scared of the rent tribunal because most decisions go in favour of the tenant.  If you tell the agent you're going to the tribunal, you may find he suddenly becomes magically cooperative.  But anyhow, here's the position:

In NSW, for most leases, if you leave early, you pay the advertising costs to find a new tenant. Then you have to keep on paying the rent up until the new tenant moves in, no matter how many weeks that takes, even after you've moved out.

Since 2010, you've been able to include a Break Fee in the lease, limiting the amount of rent to four weeks. It's still quite unusual to have a Break Fee in a lease, and perhaps the agent forgot it was there so he applied the old rules.

It's an either/or - if you pay the four weeks penalty then you are not liable for the agency's costs, or rental for any period after your agreed move-out date.

Do you have the original deal with the agent in writing or email?  If so, then it would definitely be worth going to the rental tribunal because you can prove you negotiated a mutually agreeable deal to suit the landlord and the new tenant.  If the agent didn't have the landlord's authority to make that deal, I think that's his problem not yours!

Even if it's verbal, it might be worth a try.  You can show that the landlord was not out of pocket and in fact, if you pay the penalty, he will be collecting double rent which is profiting unreasonably.   However, I sold my rental property before these Break Fee clauses came in, so I'm not aware of what attitude the tribunal takes.

You could try ringing the Tenants Union to see what they think:

https://www.tenants.org.au/

If you have a Seniors Card, it only costs $12 to bring a case to NCAT (the rent tribunal).  

 

Edited by Marisawright
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Scot by birth, emigrated 1985 | Aussie husband applied UK spouse visa Jan 2015, granted March 2015, moved to UK May 2015 | Returned to Oz June 2016

"The stranger who comes home does not make himself at home but makes home itself strange." -- Rainer Maria Rilke

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1 hour ago, Marisawright said:

Agents are generally scared of the rent tribunal because most decisions go in favour of the tenant.  If you tell the agent you're going to the tribunal, you may find he suddenly becomes magically cooperative.  But anyhow, here's the position:

In NSW, for most leases, if you leave early, you pay the advertising costs to find a new tenant. Then you have to keep on paying the rent up until the new tenant moves in, no matter how many weeks that takes, even after you've moved out.

Since 2010, you've been able to include a Break Fee in the lease, limiting the amount of rent to four weeks. It's still quite unusual to have a Break Fee in a lease, and perhaps the agent forgot it was there so he applied the old rules.

It's an either/or - if you pay the four weeks penalty then you are not liable for the agency's costs, or rental for any period after your agreed move-out date.

Do you have the original deal with the agent in writing or email?  If so, then it would definitely be worth going to the rental tribunal because you can prove you negotiated a mutually agreeable deal to suit the landlord and the new tenant.  If the agent didn't have the landlord's authority to make that deal, I think that's his problem not yours!

Even if it's verbal, it might be worth a try.  You can show that the landlord was not out of pocket and in fact, if you pay the penalty, he will be collecting double rent which is profiting unreasonably.   However, I sold my rental property before these Break Fee clauses came in, so I'm not aware of what attitude the tribunal takes.

You could try ringing the Tenants Union to see what they think:

https://www.tenants.org.au/

If you have a Seniors Card, it only costs $12 to bring a case to NCAT (the rent tribunal).  

 

Bloody landlords.  I'd be fuming too. 😡  Hope it all works out for you Fisher.  The landlord isn't owed any money and comes across as an unreasonable vulture.  

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39 minutes ago, Toots said:

 The landlord isn't owed any money 

Well actually, according to the law he is, because there is a Break Fee included in their lease, and that says he's entitled to 4 weeks rent if they leave early.

The question is whether they can prove that the agent made a mutually agreeable arrangement not to charge that fee, in return for them being flexible with their leaving date. 

 

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Scot by birth, emigrated 1985 | Aussie husband applied UK spouse visa Jan 2015, granted March 2015, moved to UK May 2015 | Returned to Oz June 2016

"The stranger who comes home does not make himself at home but makes home itself strange." -- Rainer Maria Rilke

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Thanks all. There have been three emails from the agent since we left. The first referres to the lease break fee for the first time. I wrote straight back and questioned it and have the agents reply, in which she acknowledged that "that was the scenario we discussed" and promised to recalculate the final settlement. Third enail she said our landlord had "opted" for the lease break fee!  To make matters more annoying the agents fugures are full of errors and the balance we "owe" has been different on all three mails. The bond remains unreleased. Ive looked at some tenancy advice and it seems to me the lease break thing is a grey area.    I willcontact the tenants union for further advice.  Grrrr!


103 visa application lodged February 2013. 143 visa application submitted January 2016. Police checks and form 80 submitted February 29th 2016. Visa granted April 4th 2016.

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2 hours ago, Fisher1 said:

Thanks all. There have been three emails from the agent since we left. The first referres to the lease break fee for the first time. I wrote straight back and questioned it and have the agents reply, in which she acknowledged that "that was the scenario we discussed" and promised to recalculate the final settlement. Third enail she said our landlord had "opted" for the lease break fee!  To make matters more annoying the agents fugures are full of errors and the balance we "owe" has been different on all three mails. The bond remains unreleased. Ive looked at some tenancy advice and it seems to me the lease break thing is a grey area.    I willcontact the tenants union for further advice.  Grrrr!

The lease break fee is a relatively new thing (yes, I know 2010 is a while ago now, but it took ages to catch on - and a lot of agents don't use it.  So there probably aren't a lot of cases like this to act as precedent. 

Good luck with the tenants union.

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Scot by birth, emigrated 1985 | Aussie husband applied UK spouse visa Jan 2015, granted March 2015, moved to UK May 2015 | Returned to Oz June 2016

"The stranger who comes home does not make himself at home but makes home itself strange." -- Rainer Maria Rilke

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37 minutes ago, Marisawright said:

The lease break fee is a relatively new thing (yes, I know 2010 is a while ago now, but it took ages to catch on - and a lot of agents don't use it.  So there probably aren't a lot of cases like this to act as precedent. 

Good luck with the tenants union.

Thanks!

 


103 visa application lodged February 2013. 143 visa application submitted January 2016. Police checks and form 80 submitted February 29th 2016. Visa granted April 4th 2016.

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NSW Fair Trading refers a few times to the lease break fee being included in the lease agreement.  As far as I can make out, if it's not written into the tenancy agreement you signed, the landlord cannot simply opt for it to be paid.  
 

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11 hours ago, Eera said:

NSW Fair Trading refers a few times to the lease break fee being included in the lease agreement.  As far as I can make out, if it's not written into the tenancy agreement you signed, the landlord cannot simply opt for it to be paid.  
 

Unfortunately it was written into the lease. Our beef was that - when we asked the agent how much it would cost to end the tenancy IF a new tenant was found - she made no mention of it. She told us it would cost a weeks rent plus gst and advertising costs. Since we were only 7 weeks from the end of the lease when we moved out we would have "opted" to see it through rather than fork over a lot of undeserved compensation.  

The agent actually confirmed what she had said in an email and promised to recalculate costs on  that basis, then came back several days later saying we had to pay the break lease fee. The landlord has lost nothing - the new tenant moved in the day after we moved out.

Just goes to show - you need to count your fingers after you shake hands with some people!

 

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103 visa application lodged February 2013. 143 visa application submitted January 2016. Police checks and form 80 submitted February 29th 2016. Visa granted April 4th 2016.

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3 hours ago, Fisher1 said:

Unfortunately it was written into the lease. Our beef was that - when we asked the agent how much it would cost to end the tenancy IF a new tenant was found - she made no mention of it. She told us it would cost a weeks rent plus gst and advertising costs. Since we were only 7 weeks from the end of the lease when we moved out we would have "opted" to see it through rather than fork over a lot of undeserved compensation.  

The agent actually confirmed what she had said in an email and promised to recalculate costs on  that basis, then came back several days later saying we had to pay the break lease fee. The landlord has lost nothing - the new tenant moved in the day after we moved out.

 

So the agent confirmed it in an email?  Good.  You can say  "we negotiated an agreement in good faith with our landlord's representative, who we understood had authority to act on the landlord's behalf to vary the terms of our lease".  I think you'd have a chance at the tribunal.  Worth paying the $12 fee, I think.

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Scot by birth, emigrated 1985 | Aussie husband applied UK spouse visa Jan 2015, granted March 2015, moved to UK May 2015 | Returned to Oz June 2016

"The stranger who comes home does not make himself at home but makes home itself strange." -- Rainer Maria Rilke

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21 hours ago, Marisawright said:

So the agent confirmed it in an email?  Good.  You can say  "we negotiated an agreement in good faith with our landlord's representative, who we understood had authority to act on the landlord's behalf to vary the terms of our lease".  I think you'd have a chance at the tribunal.  Worth paying the $12 fee, I think.

Brilliant. I am currently waiting for her to calculate our credit balance properly. The agency insisted we always maintain two weeks “in hand” so when we handed back the keys on July 25th we were in credit by 25 days. She calculated the monetary value incorrectly (twice) so I have asked her for a breakdown of the figures ... thought it would keep her busy while we tried to sort out the lease break thing.  You are the second person today to tell me that the landlord cannot just override an agreement negotiated by the agent on their behalf so we are going to challenge her, and offer to go to a rent tribunal if we can’t agree. I have all her emails, so no probs supporting our version of events.

Thank you so much - I’ll post the end result on here when it’s all sorted out ... it might even help,someone else!

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103 visa application lodged February 2013. 143 visa application submitted January 2016. Police checks and form 80 submitted February 29th 2016. Visa granted April 4th 2016.

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On 12/08/2018 at 08:08, Eera said:

NSW Fair Trading refers a few times to the lease break fee being included in the lease agreement.  As far as I can make out, if it's not written into the tenancy agreement you signed, the landlord cannot simply opt for it to be paid.  
 

Unfortunately it was written into the lease. Our beef was that - when we asked the agent how much it would cost to end the tenancy IF a new tenant was found - she made no mention of it. She told us it would cost a weeks rent plus gst and advertising costs. Since we were only 7 weeks from the end of the lease when we moved out we would have "opted" to see it through rather than fork over a lot of undeserved compensation.  

The agent actually confirmed what she had said in an email and promised to recalculate costs on  that basis, then came back several days later saying we had to pay the break lease fee. The landlord has lost nothing - the new tenant moved in the day after we moved out.

Just goes to show - you need to count your fingers after you shake hands with some people!

 

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103 visa application lodged February 2013. 143 visa application submitted January 2016. Police checks and form 80 submitted February 29th 2016. Visa granted April 4th 2016.

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2 hours ago, Fisher1 said:

Unfortunately it was written into the lease. Our beef was that - when we asked the agent how much it would cost to end the tenancy IF a new tenant was found - she made no mention of it. She told us it would cost a weeks rent plus gst and advertising costs. Since we were only 7 weeks from the end of the lease when we moved out we would have "opted" to see it through rather than fork over a lot of undeserved compensation.  

The agent actually confirmed what she had said in an email and promised to recalculate costs on  that basis, then came back several days later saying we had to pay the break lease fee. The landlord has lost nothing - the new tenant moved in the day after we moved out.

Just goes to show - you need to count your fingers after you shake hands with some people!

 

That makes me so mad for you.  I have a very low opinion of many landlords and the least said about estate agents the better.

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Posted (edited)
2 hours ago, Toots said:

That makes me so mad for you.  I have a very low opinion of many landlords and the least said about estate agents the better.

I'm still struggling... trying to resolve the issue before approachong rent tribunal. Wrote to the agsnt on Aug 12th nicely asking for breakdown of her calculations re: credit balance of rent pId "in hand". We asked because she has offered two balances so far, both wrong, difference of $500 or so (in agencies favour, naturally)   

Response since then? Nothing. Re-sent email yesterday. How long should I wait?

Edited by Fisher1

103 visa application lodged February 2013. 143 visa application submitted January 2016. Police checks and form 80 submitted February 29th 2016. Visa granted April 4th 2016.

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23 minutes ago, Fisher1 said:

I'm still struggling... trying to resolve the issue before approachong rent tribunal. Wrote to the agsnt on Aug 12th nicely asking for breakdown of her calculations re: credit balance of rent pId "in hand". We asked because she has offered two balances so far, both wrong, difference of $500 or so (in agencies favour, naturally)   

Response since then? Nothing. Re-sent email yesterday. How long should I wait?

I'd give the agent a couple more days then I would email AGAIN.  Have you mentioned you will be contacting the rent tribunal?  Funny how agents are all over you when you are buying or selling but when things get a bit hairy they are as slippery as eels.

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Posted (edited)
On ‎21‎/‎08‎/‎2018 at 13:48, Toots said:

 I'd give the agent a couple more days then I would email AGAIN.  Have you mentioned you will be contacting the rent tribunal?  Funny how agents are all over you when you are buying or selling but when things get a bit hairy they are as slippery as eels.

I am even more furious with the rental agency than before. We sent the email again on August 20th, then, having still received no reply, we printed out the email and sent it in a registered letter to the agent at the office. I then rang NSW trading standards and asked for advice. They advised us to apply on line for our bond to be returned without waiting for the agency's signature, asap and this we did that same afternoon. The agency's silence continued until today, Sunday 26th, when my husband got a text informing him that his was in arrears with a payment of $756.09  

We are thinking that we will go into the office tomorrow and speak to them in person.  (We were away on holiday till last Tueday so couldn't go to the office, and when we first got home I didn't want to. I worry that it will degenerate into a slanging match …

Has anyone else experienced anything like this? I have never in my life had dealings with a firm who met my perfectly reasonable, polite request for an explanation of their figures with complete silenct .., if nothing else, it's so rude not to even acknowledge the letter!  

Rant over.

 

 

Edited by Fisher1
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103 visa application lodged February 2013. 143 visa application submitted January 2016. Police checks and form 80 submitted February 29th 2016. Visa granted April 4th 2016.

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2 hours ago, Fisher1 said:

I am even more furious with the rental agency than before. We sent the email again on August 20th, then, having still received no reply, we printed out the email and sent it in a registered letter to the agent at the office. I then rang NSW trading standards and asked for advice. They advised us to apply on line for our bond to be returned without waiting for the agency's signature, asap and this we did that same afternoon. The agency's silence continued until today, Sunday 26th, when my husband got a text informing him that his was in arrears with a payment of $756.09  

We are thinking that we will go into the office tomorrow and speak to them in person.  (We were away on holiday till last Tueday so couldn't go to the office, and when we first got home I didn't want to. I worry that it will degenerate into a slanging match …

Has anyone else experienced anything like this? I have never in my life had dealings with a firm who met my perfectly reasonable, polite request for an explanation of their figures with complete silenct .., if nothing else, it's so rude not to even acknowledge the letter!  

 

Don't waste any more time.  File a case with the tribunal.  It's only going to cost you $12.

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Scot by birth, emigrated 1985 | Aussie husband applied UK spouse visa Jan 2015, granted March 2015, moved to UK May 2015 | Returned to Oz June 2016

"The stranger who comes home does not make himself at home but makes home itself strange." -- Rainer Maria Rilke

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1 hour ago, Marisawright said:

Don't waste any more time.  File a case with the tribunal.  It's only going to cost you $12.

Thanks for the advice. We are going to have one last try to sort it amicably by going to the office tomorrow. If we dont get satisfaction then, we go to the rent tribunal.  I think weve got a good case ... I have a copy of the email promising that the cost would be one week's rent plus gst plus a 55$ fee for the cost of the new tenancy agreement. Then the email citing the lease break fee. Then the email agreeing that, yes, the first email was the scenario we had discussed and promising to recalculate. This one mentioned paying advertising costs for the first time. Next is an email asking if we could be out by a specific date, because there was a tenant waiting to move in. Finally a mail thanking us for leaving the property in so clean and tidy.  

I dont know what is the matter with these people! On thing I have learned from all this ... Get everything in writing and signed!!!

I'll post my progress on here in case it helps someone else.

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103 visa application lodged February 2013. 143 visa application submitted January 2016. Police checks and form 80 submitted February 29th 2016. Visa granted April 4th 2016.

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Okay so we thought this was all settled. The rental agency caved when confronted with all their emails, and instead of charging us 700$ or so, actually refunded 600$ or so. This was last week, and we thought it was all settled.

Now we have had an email from the agent, saying that the landlord is adamant that she wants to impose the lease break fee on us, even though the tenancy was ended by mutual agreement, even though we left only seven weeks early, even though we saved her a possible void and thought we were in a win win situation - and even though she had given her agreement to finding a new tenant before the end of our one year lease, with the agreement that we would need to pay rent until the new tenant moved in.

This bloody woman has lost not a penny in rent, and because we left seven weeks early, she has had her new tenancy fees paid for her, by us. 

We are going to go to a rent tribunal and ask for a ruling, make her wait for her pound of flesh. I don't know when I've ever felt so disgusted with a service provider in my life.

Watch this space.

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103 visa application lodged February 2013. 143 visa application submitted January 2016. Police checks and form 80 submitted February 29th 2016. Visa granted April 4th 2016.

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12 hours ago, Fisher1 said:

Okay so we thought this was all settled. The rental agency caved when confronted with all their emails, and instead of charging us 700$ or so, actually refunded 600$ or so. This was last week, and we thought it was all settled.

Now we have had an email from the agent, saying that the landlord is adamant that she wants to impose the lease break fee on us, even though the tenancy was ended by mutual agreement, even though we left only seven weeks early, even though we saved her a possible void and thought we were in a win win situation - and even though she had given her agreement to finding a new tenant before the end of our one year lease, with the agreement that we would need to pay rent until the new tenant moved in.

This bloody woman has lost not a penny in rent, and because we left seven weeks early, she has had her new tenancy fees paid for her, by us. 

We are going to go to a rent tribunal and ask for a ruling, make her wait for her pound of flesh. I don't know when I've ever felt so disgusted with a service provider in my life.

Watch this space.

It's many years now since we rented but I lost any respect I had for landlords and agents.  I also found them bordering on untrustworthy and greedy.

Good luck with the rent tribunal!

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Kust by the way, does anyone know what is the smallest unit of Australisn currency that has to be accepted i  paymment of a bill? Also, would writing "SWAG" on an envelope full of money constitute an act of libel?  (Only half joking)


103 visa application lodged February 2013. 143 visa application submitted January 2016. Police checks and form 80 submitted February 29th 2016. Visa granted April 4th 2016.

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2 hours ago, Fisher1 said:

Kust by the way, does anyone know what is the smallest unit of Australisn currency that has to be accepted i  paymment of a bill? Also, would writing "SWAG" on an envelope full of money constitute an act of libel?  (Only half joking)

see here  https://banknotes.rba.gov.au/legal/legal-tender/

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10 hours ago, Nemesis said:

Thanks for that 🙂 my post should of course have said 'just'. ... Fat fingers!


103 visa application lodged February 2013. 143 visa application submitted January 2016. Police checks and form 80 submitted February 29th 2016. Visa granted April 4th 2016.

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