NSW Minimum notice period to terminate fixed lease?

Discussion in 'Property Management' started by poby, 6th Jun, 2020.

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  1. poby

    poby Well-Known Member

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    Hi all

    In NSW a landlord must give the tenant a minimum of 30 days notice of intention not to renew the lease past the current fixed term lease.

    Reference - Ending a tenancy

    However I am unsure how to interpret this - If a fixed lease for 12 months was signed on 1 August 2019 (and therefore expires 1 August 2020), is it possible to give the tenant notice on 1 July 2020, so that the tenant must move out on or before the lease expiry on 1 August 2020?

    My managing agent says I must give 30 days notice at the END of the fixed lease, meaning the tenant can stay until 1 September 2020 if they wish.

    To me, that essentially means a 12 month fixed term lease becomes in effect a 13 month lease (if the tenant chooses to stay for the full 30 days).

    The selling agent I spoke to says it is possible to give notice 30 days before the lease expires and therefore not extend the lease past the original 12 months.

    Would love some clarification from those in the know..

    Thanks in advance!
     
  2. Scott No Mates

    Scott No Mates Well-Known Member

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    Correct on both. You can provide notice at any time prior to the end of the lease however you have an obligation to pay rent up to the expiry date (31 July) or whenever you vacate if later.
     
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  3. poby

    poby Well-Known Member

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    Thanks for the reply.

    But that doesn't sound right.. A tenant has a fixed lease until 1 August 2020. On 1 July 2020 he gets notice to vacate within 30 days. He goes to open inspections from early July. He finds one he likes and signs a lease, and will move into the new property on 20 July 2020. But he must pay rent on the old property until 1 August 2020?

    Sounds unfair that the only way to not pay double rent for any period of time is to move out precisely ON the date of the lease expiry, which will impact on their ability to find new accommodation as landlord will want tenants to move in ASAP over someone who wants to move in in 3 weeks time.

    I'm starting to think my managing agent is correct (that 30 days notice must be given at the END of the fixed term, giving them an extra 30 days AFTER the fixed lease expires).

    Unless what you meant was that notice can be given anytime before the expiry of the fixed lease, but must give the tenant 30 days AFTER the fixed lease expiry (for example give notice on 1 July 2020, that he must vacate within 60 days). So confusing...

    Could anybody confirm? Thank you.
     
  4. Joynz

    Joynz Well-Known Member

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    In Vic, if you want people to move at the end of their lease, you just have to ensure that you give the notice far enough in advance that the last day of the notice period has happened by the last day of the lease.

    You definitely don’t have to wait until the end of the current lease to give them notice.
     
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  5. poby

    poby Well-Known Member

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    Thanks.

    I know a landlord can give notice anytime he/she wishes before the lease expiry - for example, nothing stopping the landlord from giving 100 days notice that the fixed lease will not be renewed.

    But the question is, can the landlord ask the tenant to vacate the property AT the expiry of the fixed lease, or must the tenant have a flexible 30 day period AFTER the lease expiry, during which they can move out?

    If a landlord is able to give 30 days notice, 30 days before the lease expiry, but the tenant is obliged to pay rent for the full 30 days that remains in the lease, it is a huge disadvantage to the tenant when looking for a new rental property, as the only way to avoid paying double rent is to move out ON the date of expiry. I'm thinking there's no way the tenancy laws allow that..

    Would love some clarification.. I'm still confused!
     
  6. Joynz

    Joynz Well-Known Member

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    As a landlord, if I give the required notice to vacate then I can expect that the property will be vacant on the last day of the lease. (Ignoring COVID-19 issues.)

    There is no automatic ‘flexible period’ at the end of the lease where the tenant can choose to stay if they want.

    In Vic the notice period to not renew a lease is much longer than 1 month.
     
    Last edited: 6th Jun, 2020
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  7. wylie

    wylie Moderator Staff Member

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    If your lease finishes 31 July and you have known for at least a month that you need to find something, wouldn't you start looking a month out?

    Most times when we've decided on a suitable new tenant, we know they have to give two weeks' notice to the old landlord. It comes down to give and take.

    If the dates don't align exactly, but we really like this tenant over one who can move in on 1 August, we prefer to wait for that two weeks and we have an empty house for two weeks, or sometimes we split the difference and the new tenant pays one week overlap.
     
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  8. poby

    poby Well-Known Member

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    Thanks.

    So that means with the example I used above (fixed lease from 1 August 2019 to 31 July 2020), I can give notice on 1 July 2020, and the tenant must move out by 31 July 2020.

    Should they choose to vacate earlier (for example on 15 July 2020) as the new landlord wanted tenants to move in ASAP (and the tenants wanted to maximise their chances of getting the rental property by offering to move in early), then they must still pay rent up to 31 July 2020.

    Seems harsh to the tenants and a little strange given that leasing laws always favour the tenant over the landlord, but if that's how it is then I'll go with it.

    Thanks all for the replies. Enjoy your long weekends!
     
  9. Joynz

    Joynz Well-Known Member

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    I would send the notice much earlier than 1 July.
     
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  10. poby

    poby Well-Known Member

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    Thanks. I was thinking of giving them a longer notice so I'm not faced with a situation where the tenant requests extra time as they weren't able to find a new rental property in time . This is because I want to sell.

    What are your reasons for giving them a longer notice?
     
  11. wylie

    wylie Moderator Staff Member

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    This is important. I think you need the appropriate notice, plus allow several days for postage. Allow even more would be my advice.

    I wonder if you should look for a better managing agent?
     
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  12. poby

    poby Well-Known Member

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    In regards to the original question and the topic of this post - I think I massively overthought it as I often do.

    In simple terms:

    The tenant signed a 12 month lease.

    Landlord does not wish to renew past the 12 months lease and gives 30 days notice that the lease will not be renewed.

    Tenant must pay rent for, and can stay for the full 12 months, regardless of whether they vacate a week or two early to move into a new property.
     
  13. Propertunity

    Propertunity Exclusive Real Estate Buyers Agent Business Member

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    Also bear in mind that the tenant may refuse to vacate and not tell you (for reasons of cannot find another suitable rental property, timing does not suit them, to plain just don't feel like it.....) so you may be up for a bit of a wait of 6(ish) weeks or more to get possession of your property back, involving the Tribunal, sheriff and so on....
     
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  14. Hayley Cannon

    Hayley Cannon Well-Known Member

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    In NSW you can give the tenants 30 days End of Lease termination up until the day before their lease ends however you may not require them to move before their lease end date. If they move earlier than the lease end date they are required to pay the lease out or if you feel that is unfair as a landlord you can choose to waive this.

    Things to remember:
    - if posting you must add 7 business days postage - This essentially means 9 days (including weekends) postage on top of the 30 days notice.
    - the tenant may not find a property and continue to stay on in which case you may need to proceed to tribunal to have them vacate.
    - please ask that your property manager attends training or refreshes themselves on the legislation as you do not have to give the tenant 30 days after the lease expires (unless of course you only have the notice the day before the lease is due to expire)
     
  15. Scott No Mates

    Scott No Mates Well-Known Member

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    To add to this, termination notice served AFTER expiry requires 60 days notice and may be affected by the moratorium due to Covid.
     
  16. Hayley Cannon

    Hayley Cannon Well-Known Member

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    After expiry requires 90 days notice.

    Currently even End of Lease notice is 90 days due to moratorium however will be reverting back to normal on the 13th of June.
     
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  17. Scott No Mates

    Scott No Mates Well-Known Member

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  18. Phoenix Pete

    Phoenix Pete Well-Known Member

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    I'd be changing managing agents quick smart if they are getting this very important aspect of managing tenancies so frightfully wrong.
     
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