NSW Returning bond to tenants

The last day is calculated. The only instance in my software where I don't include the last day is if I have a tenant moving in on the same day.

I wouldn't hold back on the tenant's bond due to a disagreement with the PM. They will have provided the tenant their rent to vacate amount and the tenant shouldn't be waiting on their bond because of this.

 

Is it really fair of us to be blaming the owner for holding up the tenants bond over one days rent when it appears to be the agent at fault here?

As a compromise, you could agree to release all of the bond except an amount equal to the last day of rent? Or you could tell the agent to refund the bond, but if the tenants DO owe one last day- you'll be expecting the agent to pay it after the bond is gone, ha!

 

Yes it seems fair to blame the owner. He is the one not releasing the bond which impacts the tenants.

If the owner is not happy with the agencies answers he should escalate the enquiry immediately to get an answer he is satisfied with so not to disadvantage the tenants.

 

You can't charge for move in day and move out day at the same time. Pick one.

 

Yes for the same tenant. A lessor can't really charge full rent for two partial days of tenancy - at best it would be one of them. Generally by my reckoning its move-in day that is free, but it doesn't really matter which one it is tbh.

I guess its analogous to a hotel stay scenario.

 

In NSW the tenant must pay rent up to and including the day they vacate the property: https://www.fairtrading.nsw.gov.au/housing-and-property/renting/ending-a-tenancy

Also we can't request a partial bond refund through Rental Bonds Online which can be frustrating.

 

Yes which is why I say the move in day is free.

 

I think what he's suggesting is that leases are from midnight to midnight, but you generally don't get the keys at midnight (if you do, that agent deserves a raise for going above and beyond!)

I can see why he'd say that one of the days would be "free", though really it's more saying two of the days are half days.

 

I only charge for one of the moving days yeah, usually the move in day I count as 'free'. I actually haven't dealt with the issue professionally as I assumed everyone did it the same.

But on general legal principles I would say its not really tenable for a lessor to claim rent for both days. As @Mat mentioned, pegging possession to who has possession at midnight is one way to do it.

 

Actually move in date is also payable as per the date stated in the lease agreement in NSW, so its really unlike a hotel stay.

 

Where does it say that?

 

It doesn't say that specifically, but it also doesn't not say that specifically.

S49 of the Act states that the tenant must have vacant possession on the day that the tenant is entitled to occupy the premises (at midnight? Assuming "day" means "24 hour block of time", I've never encountered a single lease that has complied with this).

Schedule 1 of the Regs (Standard Form Agreement) is equally ambiguous, only stating "this agreement is for (x) months/years, starting on x/x/x and ending on x/x/x". It doesn't specify whether it refers to from midnight to midnight, an arbitrary time on those dates, or what.

If we literally made a tenancy agreement from 1/8/2020 to 2/8/2020 you would not be able to take possession until at least open of business on the 1st, and would have to return vacant possession by at the latest close of business on the 2nd. When you compress it down to the shortest possible time, it seems ridiculous and inequitable to expect the tenant to pay for two days when their effective occupancy is one day or a little over it. It seems to me that charging for the move-in and vacancy date is a bit of having your cake and eating it too (and given the Act is not specific enough about it, if a tenant were to challenge it the tribunal would likely fall back onto the principles of equity).

 

Same, but me the other way. I'm curious enough to try and look into it further when I get some free time. Obviously it rarely is a practical issue, but it might be here I guess.

As a general principle of legal interpretation, a reference to a "day" is full clear day, which is why you have to add a day to some of the notice period requirements that most PMs and lessors are familiar with.

 

I'm just doing up this lease now - the date is when the rent is charged and although it doesn't have to be, its always been the first day of the lease.

 

I can't say I've ever across the argument before that tenants should get their first or last day free.

 

But if it's midnight to midnight then doesn't that mean the tenant is technically able to take possession at 12:01am on the first and vacate by 11:59pm on the 2nd? Which is 2 minutes under 2 days full days?

In the hotel scenario you have to be out by say 10am on the second day so they can re-let the room the second night, so the hotel gets 2 "days" (nights) pay but the landlord only gets one for the same period as they can't re-let the same day as the vacate like a hotel does.

For the hotel, if you book the 1st to the 2nd you'd get a check in of 3pm to a check out of 10 am, you pay one night for night and have a window of stay of 19 hours.

For the tenancy of the same dates 1st to 2nd, midnight to midnight, you have a technical occupation window of 2 minutes short of 48 hours (2 days).

I can't say I've ever checked down to the day what any of our agents have reconciled a tenancy at, but I always assumed the paid days would be from the start date on the lease to the vacate date, as per the OP.