Tenant looking for some advice

I've recently broke my lease (4 months left of a 12 month lease) here in Perth. Since signing the lease back in November the market has declined. We are paying $440 a week and the unit has now been on the market at $420 a week for over a month. We are willing to pay the difference until our contract ends in November but the landlord isn't willing to lower any more then though we believe the market value is more towards $380 a week. There is another unit in our complex pretty much identical to ours that is on the market for $385 and still no takers.I don't believe the landlord is taking adequate steps to mitigate our loss. Shall I stop paying rent when I vacate otherwise the landlord could keep the price as is and the unit will be empty until November.

 

What part of legally binding contract did you not understand?

And you don't seem to care about theirs.

 

Did the bank care when you told them that was the reason for missing repayments?

 

I understand the contract fully but due to family issues which I'm not willing to go into here we have to return home (interstate) I do care about their losses which is why we are willing to pay the difference..

 

You signed a legally binding contract to pay $440 per week for 12 months. What the market is doing now is irrelevant. You wouldn't be complaining if the market had risen to, say, $500pw, would you?

It is not the landlords responsibility to mitigate YOUR loss. It is your responsibility to mitigate THEIRS. So....if you do stop paying, for whatever reason, they have the right to take you to tribunal and MAKE you pay, but all the costs of doing that will be added onto your bill, so be a good girl and just pay up. That way you can mitigate your own loss.

Otherwise, they advertise at the current market rent, and you pay the difference. This could save you some $$. The point here is though, that the Landlord is entitled to the full $440pw for the length of the current lease.

 

Thanks Wylie.

We would pay the difference no issues but the landlord wants to put someone on a 12 month lease so what would happen when our contract ends? They turned down a tenant last week who offered $390 saying it was too low - The landlord obviously believe it's worth more but the number of properties on the market/and the prices wanted tells a different story.

 

Maybe the landlord knows the market better than you. There are a lot of landlords that time their leases for when they know there are more people looking to lease in an area (ie beginning of the year), because they know they will get a higher rental by doing this. If this is the case, then no, they most likely won't accept a lower price.

 

Have you moved out yet or not? It wasn't clear from your post.

Just my broad preliminary view, the likely procedure will probably be:

1. Gather sufficient evidence of the current market rate for your rental (seems done or at least partially done)

2. Ask the landlord to advertise at that market rent once you have moved out (if not already), with the promise that you intend to pay the difference in rent until the expiry of your lease

3. If the landlord refuses to do this, basically stop paying rent once you leave the property.

4. Wait and see what happens at that point, but I would be surprised if the landlord did not lower the asking rent to the market level

5. Assess your liability once the landlord's loss has crystalised, and an analysis on whether the landlord took reasonable steps to mitigate that loss.

However, you will need legal advice on this situation as soon as possible, and probably also to help you assess your liability at the end.

In WA you can call the state tenancy phone advice service at Tenancy WA, or contact a local tenant advocate for your area - most of them being in your local community legal centre.

 

Just FYI, this mitigation of loss concept gets misquoted way too much.

In a break lease situation, it is a defence against a landlord's claim for damages, to assert that the landlord (being the claimant) did not take reasonable steps to mitigate the landlord's own loss.

So to clarify, its the landlord's own loss that they are mitigating.

 

You broke lease. should expect penalties. you think the property is overpriced.

Wouldn't other tenants think it's over priced too? Then the landlord wouldn't be able to rent it out.

If you pad the difference it's the same as if your new place increased their rent.

Should have spoken to landlord (communication is always good).and ask nicely for the landlord to find new tenants once found you then move out and the new people take over the lease.

It's easy to find a place in short notice but difficult for landlords to secure tenants. Landlords prefer long period of early notification so they have adequate time to try to 1. rent for high prices, 2. find good tenants. 3. find tenants that can connect and keep renting with minimum gap (period when it's not rented out) in between.

 

I think that's what the OP is wanting to do. The issue is at what price the property should be advertised at.

 

It's a pity several people jumped in and harshed all over @Emma Andrews, rather than reading what she actually said carefully. She had the law exactly right, as confirmed by thatbum. She is willing to pay the difference, as she said up front - the issue is that the landlord's not willing to lower the rent despite Emma's stated willingness to cover the difference.

Also, if the landlord's asking for a 12-month lease, rather than the balance of your lease, I believe that would also be a strong defence to damages, but I defer to @thatbum on that point.

 

If you feel the landlord is not making sufficient efforts to re-let the property (despite your offering to pay the difference) then you can apply to the tribunal to vary the conditions of the break-lease terms. You will have to produce copies of emails etc to support your claim.
Marg

 

Is it possible for the tenant to sub-let the place for the 4 months to mitigate the loss ?

 

+1 @Perp and well done @wylie for the helpful response (incl thatbum), I've never witnessed members of this forum treat another in such a way, disappointing, thought it was a more mature group than what's witnessed elsewhere.

@Emma Andrews, I commend your efforts/research to do the right and honest thing, even creating an account here to ask for assistance, which you possibly now regret, thankfully wylie & thatbum helped you out.
Some tenants wouldn't care less and simply pack all there gear and take off.

Good luck & I wish you well with whatever has presented this situation.

 

I'm interested to hear what the rules are too. I can see how both sides have a case.

 

If the landlord accepted the lower rent and the OP paid the difference, would they have to pay the difference in one payment or per week?