My property manager said (snippets of an email): -------------- The legislation requires the tenants to give us two weeks notice before a tenancy expires to let us know whether or not they will be resigning the lease renewal offered to them. ... If the tenant does not sign the lease and return it we can then give the tenant Notice to leave with a 2 month (62) day notice period as soon as the lease clicks over to a periodic lease. This happens automatically if the fixed lease is not renewed in the given time frame. -------------- Is this information correct? Regarding the first point, I would have thought there is no requirement that tenants give us two weeks notice before a tenancy expires to let us know whether they will be re-signing the lease renewal? It's a fixed lease contract. I would have thought that there is no legal obligation that tenants respond to the lease renewal offer? Just like if my phone contract is up, I can choose to extend it or just leave it as is without telling the phone company. Regarding the second point, I would have thought we could issue a notice to leave before the contract finishes but at a date after the contract finishes? Thanks
Assuming Qld because that's what your location says and you haven't specified in the post, yes - correct. Tenant is only required to give two weeks notice to end a fixed term at the expiration of the fixed term, and also to end a periodic tenancy. A Lessor/Agent has to give two months notice to end a fixed term at the expiration of the fixed term, and also two months to end a periodic. This information is contained on the back of the Form 12 Notice to Leave document: RTA info: Notice to leave (Form 12) | Residential Tenancies Authority Incorrect. To end a tenancy, the Tenant must give a Form 13 or the Lessor/Agent must give a Form 12, otherwise it automatically rolls over to a periodic tenancy. If a Tenant says they're not staying on past the fixed term, it is important to insist they either give a Form 13 or you serve a Form 12, otherwise there is no guarantee they will actually vacate when they say they will, and this messes with your re-letting ability and can land you in deep trouble if you enter in to a new lease and the current tenants have not vacated and it takes you 3 months to have them evicted [sic: compensation claim from the new tenancy which was not able to occupy]. No, you must maintain control and you do this by either issuing a Form 12 or requesting the Tenant gives you a Form 13. It is not best practice to try and leverage a lease renewal by also issuing a Form 12 with a lease extension - frowned upon by QCAT, but no unlawful, because: whilst a tenancy is in a fixed term, the Lessor retains the right to only want a fixed term tenancy in place, how ever, if the tenancy rolls onto periodic, and then you issue a Form 12 + a lease renewal for a fixed term, the Tenant can argue that is a retaliatory eviction for not allowing them to stay on a periodic lease. So if you only want your tenants on fixed term leases, you must issue the notice to leave/lease renewal within suitable time frames whilst the tenancy is still within a fixed term.
Thanks for your response. Yes I'm in Queensland. I have a new 12 month lease in place. I forgot to mention that my tenant has previously asked me on two separate occasions if they can roll into a periodic lease and both times I've said 'no'. It's happened twice now but they seem to play games with my agent. Keeps delaying the re-signing of the lease renewal (silly excuses) and a week before the lease expires asks if they can go periodic. For the most recent lease renewal, the new lease was signed 11 days after the expiry of the current lease. The last time it was similar but I kept chasing the agent to follow up and got the lease renewal done a few days or one week prior to the fixed lease expiring. I'm just frustrated because if I'm a tenant and really want a periodic lease, I would play silly buggers and wait till the fixed term expires. Knowing that this will revert to a periodic lease and the owner can't kick me out without 2 months notice. So I would then continue to say I'm keen to sign a fixed lease but continue to make excuses and delay signing until the agent gets serious and warns that a Form 12 can be issued. I know these current tenants are a bit tricky to deal with, but feel that my property manager could do better.
