Served 'Notice to vacate'

Good on you. You should get some advice from the TUV or other tenancy service if you haven't already.

From what you've said so far, they don't even have a prima facie case for a breach of any terms, let alone one that justifies termination.

 

I just had a read through this topic and totally agree that you've tried to do the right thing here. I highly doubt the agent will have a leg to stand on if they proceed to VCAT. Proving unapproved occupants are living (i.e. their permanent place of residence) in a property is exceptionally difficult for us at the best of times.

Also makes me wonder- some PM's honestly make the job so hard for themselves. Isn't it already hard enough without throwing the authority hammer around with good tenants like this?

 

I've had owners that don't listen to sound property management advice and literally spend their spare time stalking facebook and flat mate sites trying to catch their tenants out... I wouldn't be surprised if the owner has found the advert online and has smashed the property manager for not knowing this first perhaps even thinking the property manager didn't do the right reference checks because 'evil subletting tenants are turning my house into a hostel!!!' type owner.

Most property managers would know that they have no chance of proving subleasing without consent other than a print screen of an advert (I'd suspect this is what they'd have). If you've communicated everything to the property manager in writing, then take that with you to the VCAT hearing if there is one, showing you were trying to communicate and discuss everything rationally then I doubt they'd be able to win possession.

Beyond that, keep everything on record as it would likely be followed up with an end of lease notice to vacate if the owner (Or PM) has an axe to grind. That could be potentially be proven as a retaliatory but that's another story.

 

We rode it out.

Ended up going to VCAT, VCAT member threw the case out within a minute and gave the PM a lecture. Such a load of nonsense to go through for nothing on their end. The VCAT member even said that we are allowed to get someone in and help us pay rent without telling the PM. She said thats not subletting.

Now we have 7 months or so left on the lease. I'm guessing they will be able to get rid of us at the end of the lease?

Thanks for all your comments, staying in the property was largely due to the responses on here and advice from the tenants union VIC. Appreciate it.

 

Thanks for sharing and closing the loop.

 

Yes the law on this has been pretty clear for a while, and not particularly well known, especially by property managers unfortunately.

 

Not necessarily. They may rely on some other ground. Eg as it was the landlord's PPOR they could give notice they intend to move back in (14 days notice), or that they intend to do repairs or renos that can't be done with the tenant in possession (60 days notice).

 

There seems to be a lot of misunderstanding in this thread about terminology, and mixing up of distinct legal concepts.

Sub-letting - this is where the tenant moves out of the property, and enters into a sub-lease with a new tenant, without notifying the landlord, ie effectively changing who the tenant is. eg I take out a fixed-term lease for 12 months. I find out I'm moving interstate for 6 months, and don't want to be on the hook for rent while I'm gone, plus I want to keep the apartment for when I move back. So I put my stuff in storage and sign a lease agreement with my mate Dave, allowing Dave to (sub-)lease the property for 6 months.

Assignment - assigning the lease is where you end your obligations by transferring them to somebody else. The example above would be an assignment if, instead of signing a new, limited-duration lease with Dave, I signed a contract with Dave that said he is taking over all obligations under the lease, and (Dave is) releasing me from any further liability. (nb landlord isn't releasing me, but Dave effectively indemnifies me for anything further the landlord pursues me for.)

Licencing - if the tenant is still in residency, but rents out a room to additional people, they are not leasing but licencing. A lease, by definition, allows for exclusive occupation of the premises and the right to exclude others. A licence is where the licencee has a mix of exclusive occupation (their room) and non-exclusive access (eg living room, kitchen, laundry, etc). Licences are generally not precluded by tenancy laws. Further, a friend you're letting a room to doesn't generally have the right, for example, to kick out your parents who are visiting you because they think they visit too often (or whatever). So this situation is not a lease or sub-lease, and is generally not actionable by the landlord. (Nor do they have to be notified.)

'Bringing in other tenants without notice' - which is precluded under the provision cited by @PurpleTurtle - only applies if you bring in somebody who you intend to be a co-tenant with you, meaning that your intention is for them to join you in enjoying all the rights and responsibilities of the lease, for its duration - somebody you intend to be a true co-equal in the property. If you're just letting a room to somebody for a while, and want to retail control over when that arrangement ends, that doesn't apply. They're not a co-tenant in that situation, but a licencee.

In summary, if you're still in residence but just adding others, and you want to retain the right to get rid of them on your terms, your 'others' are licencees, and there's no obligation to even inform the landlord, let alone a right for the landlord to breach you.

 

Thanks Perp. Mirrored what the VCAT member said.

 

Sorry, just to clear this up a little bit (some only applicable until mid 2020!).

120 day no specified reason can be served at any stage with the vacate date on or after the expiry of the lease. Being removed 2020.

90 day end of lease, able to be served at any stage with the vacate date on the day the lease expires only. Being altered in 2020, and will only apply to the first lease.

60 days - various reasons, generally landlord moving in, demolition, renovations etc.

14 days - various, but generally only with a breach of duty. The 14 day PPOR rule is only if it was their PPOR immediately before and it was disclosed in the lease.

Immediate - chances are unless the place is falling down or you've really stuffed up, this will very rarely apply.

OP - I'd be gearing up for a NTV for the end of your fixed term (90 days) based on the action of the owners thus far. Whether you choose to challenge this or not is your choice, sounds like you've got a difficult owner on your hands

 

I cant see the difference between"licensing" and "Bringing in..."
you could rent a room out to someone without a lease or agreement of how long, and it would apply to both,


also, if joe is crashing on the sofa for 6 months and pays rent to the tenant,

"A licence is where the licencee has a mix of exclusive occupation (their room) and non-exclusive access (eg living room, kitchen, laundry, etc)"
he doesnt have a exclusive occupation

 

That would be a licence, because the 'co-tenant' hasn't agreed to share all rights and responsibilities of the lease with you - they've only agreed to pay you a fee per time period for staying. They lack security of tenure, but also aren't on the hook if you don't pay the rent.

Also a licence. All agreements with a component of non-exclusive use is a licence; it has to be exclusive use only for it to be a lease. (I just said a mix because that's the more typical scenario.)

If you're wondering how co-tenants with separate rooms fits with a lease... legally, they can't preclude each other from each other's rooms; that's only a social nicety that most adhere to. All co-tenants have equal right to access all parts of the property.

 

We arrived at the end of our lease in March this year. They asked us to renew our lease. We decided to move on. Funny how they went from trying to kick us out to wanting to extend with us. Covid probably played a part.

 

There is actually another thread running from several weeks ago started by a supposed landlord worried there was another person living in the property who was not listed on the lease.

Have a read but the short story was so what. Its impossible to prove and as such a near worthless clause.

As far as your scenario goes I wouldnt be worried about it based on what you have said, you merely have to deal with the inconvenience of arguing your case.

If you were a problem tenant they wouldnt have re-signed you, and I doubt any landlord right now would be evicting someone for supposedly having someone else living there if no other problems exist.

My guess is that approaching the end of your last fixed term the landlord canvassed the market looking to sell and has since found a potential buyer wanting vacant possession.

I've been through a similar thing before when I was renting a property on what was a prime development site. It took one visit to the local council to get hold of a copy of the development plans/approvals to know what was really up.

Moral of the story: the landlord wants you out for reasons only they know, and they are clutching at straws to find a reason to get you out. (Never lived in VIC so dont know the rules, but I suspect it's not as easy as they hoped). The fact your PM is being rather tight lipped says alot too.

Dont give in without a fight however, it's not going to do yourself any favors having an eviction against your name.

Goodluck.