Served 'Notice to vacate'

Hey,

Long time lurker.

My partner and I rent a large home in Melbourne. My 9 year old son stays with us 3 days a week.

My partner has a girlfriend that is temporarily staying in the home without subletting.

My partner put an ad on one of the flat mate finder sites to sublet one of the spare rooms.

The PM found out and serviced notice to vacate with 14 days notice.

I emailed them back last week and stated that we are suprised and are not subletting. Asking for them to review their decision.

I think they are peaved because we advertised before talking with them. Our understanding of the sublet process was to first find a suitable applicant and then send through the applicants details for the PM to approve.

Havent heard back from the PM yet.

We have paid rent on cue each month and the house is spotless.

Where do we stand here? We think its a little harsh. Probably could have asked them first before putting the ad up.

The ad has been pulled.

Any help appreciated.

 

Is the lease on holdover or still in its fixed period?
What is the notice to vacate for? Is it a breach notice, demolition order, sale of property etc? Notice periods are generally longer (even if this is at the end of the lease).

@Lil Skater - is 14 days notice the correct notification period in Vic?

 

14 days is the correct notice, S253.

Seems a pretty extreme route to take without picking up the phone, but definitely should've asked consent.

 

12 month agreement. 4 months in. Yeah we see that now. Hindsight.....

 

"Other tennants are brought in without consent" can be grounds for 14 days notice to vacate.

Landlord giving notice to vacate

Edit: I was too slow!

 

I can't see what grounds they would have to issue the notice or purport to terminate the tenancy.

Bringing in someone to rent a room in the house you live in almost certainly isn't "subletting". The party occupying the room wouldn't be sub-tenant.

I suppose its good courtesy to let the agency or LL know what you're doing, but they can't legally do much about it unless you're breaching some other term of the lease.

 

They have served the notice due to a 'breach' of the tenancy agreement. There werent really any funny terms in there when it came to subletting either.

 

Perhaps call the agent and listen to what they have to say then take some time to respond appropriately. On the facts presented there doesn't appear to be justification for such action so either there are other factors or a mistake has been made.

 

Give them a call to discuss it, I honestly believe a lot of things could be sorted if people just had open communication (not aimed at you, just in general).

If they do not wish to, you can try to challenge the notice through VCAT.

 

Thanks all

 

253. Assignment or sub-letting without consent
(1) A landlord may give a tenant a notice to vacate rented premises if the tenant has assigned or sublet or purported to assign or sub-let the whole or any part of the premises without the landlord's consent.
(2) The notice must specify a termination date that is not less than 14 days after the date on which the notice is given.

This is the section of the Act I'm assuming you have been breached on? They seem to be taking a very particular interpretation of "purported to assign or sub-let" which I would be interested to know has any history of being the correct interpretation through VCAT etc. Seems a bit harsh, you haven't actually sub-let!

Not particularly familiar with Vic but a contact down there advised their interpretation is you can't breach them unless they have actually sub-let. Again I'm not familiar enough to know if this has been tested before, surely though worth asking the question (at VCAT) if you don't want to move.

- Luke

 

Honestly I'd be very surprised if VCAT upheld a NTV for subletting based on what you said. Again, very harsh course of action to take out of the gate without discussing it.

 

Out of curiosity @Daniel1987 how did the PM "find out"? Seems extraordinarily coincidental that your managing agent happened to just stumble upon the ad. Maybe something was noticed at a routine inspection? Just can't help but think we might be missing a crucial piece of the puzzle.

- Luke

 

It's easy enough to have property notifications on re.com

 

Got to be more to this story than that ad...ie something you've done in the past...or maybe the landlord has plans for the property eg reno, significant > 10% rent increase, wanting to move in, wanting to sell etc and was waiting for any catalyst to get you out.

 

Oh sorry I missed this bit! That starts to make a fair bit more sense. Obviously I don't know the sequence of events, but can see how it may look from an agent's perspective. Two people and a child on the lease, they turn up to do an inspection and another room is occupied. There is a big difference between "temporarily staying" and visiting - clothes hanging in the cupboard by any chance? I also imagine this temporary "guest" was not advised to the agent? Agent is suspicious, does a bit of searching and finds an ad for a flatmate. The combination of the two does not look good.

Based on that I would probably revise my previous and say your chances at VCAT are somewhat less promising than what I originally thought.

- Luke

 

Dunno about you, but I hang my clothes up in the wardrobe.

Also hang them up even if I'm staying at a friends house for the night. I guess there's a difference between a few shirts and pants vs everything you own.

That said temporary could mean, moving between houses and for a week or more, hanging clothes isn't that hard. Like everyone keeps say we need more info. Just a lot of assumptions at the moment.

 

For sure I'm not saying that is what happened, it is hypothetical but certainly not an unprecedented potential series of events. Potentially a bit unfair when people are doing the right thing or are not intentionally trying to skirt the rules, but we do tend to approach some of these things with a bit of cynicism and scepticism. In fact a dose of both of those things can help keep a PM out of trouble.

- Luke

 

We have been in the house for just shy of 4 months and haven't had an inspection.

Tried communication with the PM to work it out but she is saying the LL wants to proceed with the notice.

I agree that there is something a miss here. We are pretty confused too. The LL lived in the home before we moved in. I met them 3 weeks after we moved in as the PM sent them here to show me how the central heating works. They showed a strong emotional connection to the home.

We are planning on staying put and will attend VCAT if the PM applies to evict us.

Not far off from a deposit on a home so will see out the remaining 8 months and buy.

 

Pretty stressful to say the least.