Tenants Breaking Lease

I just told you, its a common law concept.

We'll have to disagree then. You make it sound like there's no actual laws on what sort of compensation gets ordered - which isn't true at all. I can have a pretty good idea before any tribunal/court application is made.

You do realise I was formerly a specialist tenancy solicitor? I was actually consulted on a break lease matter today, just coincidentally.

 

I understand what you're saying. The tenant breaks the lease, three weeks go by until a new tenant. The landlord wants compensation. The member grants 1.5 weeks of rent.

That's not the issue.

The issue is the dumb belief that tenants *must* keep paying rent until a new tenant is found. That's completely stupid belief number one.

Second to that is that if they don't, a tribunal will simply make them later on.

Agents try on all kinds of ********. Trying to make tenants keep up rent payments while they find a new tenant at their leisure. Trying to enforce professional carpet cleaning. The "rent until a new tenant is found" is just another one.

As a former tenancy solicitor surely you saw and read many cases on this matter. Compensation is granted for various things but there is no magical case out there where a property is empty for a few months and the landlord just gets all that rent. Even after two or three weeks the member has something to say about it.

 

And I would say your tenant biased

The system would collapse if tenants could just walk away when they like.

Seems many agree much of this claim is a nonsense.

 

Here's a page from the SA government about compensation that may be claimed: https://www.sa.gov.au/__data/assets...ng_for_costs_from_a_broken_lease_bulletin.pdf

It's more detailed than Victoria's but the core of it is essentially the same: the owner *may* claim.

At the bottom of the file they even talk about landlord mitigation and if the property has been on the market for too long.

But it's all about compensation after the lease is broken. It does not grant an automatic 100% of rent paid between end of lease break and start of new lease. Not does the tribunal make that decision 100% of the time.

The outcome where a landlord gets rent compensation is when the property is quickly re-let.

Any other outcome hits the problem of whether the landlord is mitigating properly. A long delay implies rent to high - not mitigating.

The main point still stands - when a tenant breaks a lease they are not obligated to continue to pay rent as many here have claimed. They stop paying rent. Then the landlord has to apply for compensation and they may not get everything they want.

 

Let's say everything was done correctly but for some reason the property doesn't lease for five weeks.

When you look at tribunal outcomes, in those types of cases the question of whether the owner has diligently worked to reduce costs is raised.

In effective terms, it's maybe two - three weeks for a standard residential property before those questions come up. So really, if an agent can't find a tenant in that time and then tries to go to a tribunal it doesn't often go well.

There are plenty of agents on here - perhaps some of them can chime in with how much rent they were able to recover through a tribunal and what time period that covered. I doubt there is anyone collecting three months of rent. I'd doubt if six weeks happens much either.

That basic misinformed idea that "the tenant needs to keep paying rent until a new tenant is found" is rife. Agents do try it on all the time. My own lease has some stupid term that is worded like that. They literally want me to keep paying rent until the new person moves in if I decide to break the lease.

But that's not how it plays out in reality. In reality landlords don't get to claim all the rent losses and the higher those losses are, the more questions are raised about what steps the landlord took to minimise losses.

I've read about cases where not having enough showings was a point the member brought up. They also ask how many people come to the showings.

Also, I know plenty of owners get screwed by agents too. The agent tells them the lie of "rent will keep getting paid" and the owner relies on that. Then it goes to tribunal, they don't get that and suddenly the owner is out of pocket because they didn't put more pressure on the agent to hold more opens or price competitively.

 

As much as I dislike PM's in general, I also dislike people even more who think they are smarter than agents and mgmt fees are just fixing money down the drain., who don't even know the basic rules and try and self manage

 

Oh no. Please don't think that!
I would imagine that most LLs who have been in this situation where a tenant has broken a lease (as a LL I have), the last thing in the world you want is to do it leisurely. My PM and I did it as thoroughly and as fast as possible. But that still takes time.

But, if the LL decides to do repairs during that time, it's a different story...

 

So if a landlord mitiages their losses, applies for compensation for lost rent and is awarded compensation for lost rent you don't see that as the same as paying rent. That's fine.

And neither are you the authority on the subject.

Unnecessary. You have already established that if a landlord moves quickly to mitigate losses then applies to the tribunal for compensation for lost rent, the tribunal may award them compensation for lost rent. In that case, does this make this statement factual and complete?

This is that claim that I was arguing against because it is incomplete at best and misleading at worst.

I don't think it is right that I can't post my point of view without being sworn at. It's just plain wrong.

 

So it comes down to a simple point that could have easily been made without any drama

All of a tenant's responsibilities under the lease end when it is terminated, so the tenant does not have to keep paying rent, cleaning or maintaining the property (but the lessor can claim compensation from the tenant for their losses (including loss of rent) as a result of the early termination).​

 

There is a good fact sheet that outlines what you need to know. I hope it helps.

http://www.tenancywa.org.au/sites/default/files/Version 2 June 2016 Break Lease.pdf

 

Actually, they are pretty much the same except for the states with set break lease fees under the legislation - which are NSW and I think ACT?

Otherwise the common law break lease concepts apply - which are the same everywhere else. I guess they may be applied slightly differently depending on the circumstances.

 

I was reading this today which is interesting and actually relevant to the OPs question. From Welfare Rights and Advocacy Service.

What the law says about ‘break lease’

Unlike some other states the West Australian Residential Tenancies Act 1987 (the Act) is silent about ‘break lease’ situations and so it is difficult to say exactly what a tenant’s liability will be in such situations.

Lessors generally are entitled to not be out of pocket when a tenant ‘breaks lease.’ Usually the tenant ‘breaking lease’ will be required to pay rent until the property is re-let and to pay any other reasonable costs incurred by the lessor because the tenant is breaking the contract (fixed term tenancy agreement.) These costs may include the cost of re-advertising the property and letting fees if a real estate agent is involved in the management of the property.

Some lessors will ask the tenant to sign an intention to break lease form which often outlines the costs involved.​

http://www.wraswa.org.au/wp-content/uploads/2015/06/Break-Lease-18.05.2015-Final.pdf

The last fact sheet I linked to had the option of terminating a fixed term tenancy by agreement but I can't see where that is covered in the Act. So, as you say, covered by common law.

 

Just because it looks like a duck, acts like a duck, quacks like a duck.....does not make it a duck....

 

I was thinking from a tenants point of view that paying rent and paying compensation for outstanding rent would not feel a whole lot different. Legally/technically they might be different things but operationally (from the point of view of the tenant) they are not going to feel different.

Further to that, the legislation in WA is silent about ‘break lease’ situations, so previous comments may not apply.

 

Give it a few years and there will be a clause that makes that illegal, ....i.e you have to hand them back any excess.

To be honest, that is the way it should be, they should pay till new tenant is found, there should be no extra benefit to either party from a situation like that.