NSW When to serve notice to vacate?

My tenant lease is nearing completion and they haven't told me whether they will be staying on yet. Just to protect myself for not needing to provide 90 days notice, I think I need to serve them a notice to vacate. I'm trying to find out when the best time to issue this.

Hypothetically, if the end of lease day is 30/7/2020, as a landlord I need to give 30 days notice. So can I serve the notice anytime before the 30/7/2020 and let them stay on for 30 days or do I need to serve it by 30/6/2020 and have them leave on the day the lease it up. Say if I serve it on the 25/7/2020, I don't mind if it goes into a periodic for one month, but I don't want to be giving 3 months notice.

 

Yes, you can but they can vacate during that period on less notice.

Just allow time for postage If necessary.

 

...or maybe you could just talk to them?

 

They can't vacate before the lease ends... unless the owner agrees...

 

The OP was questioning whether notice could be served on a few days prior to the end of lease. Allowing 4 days for postage, the 25th would be the latest by this method.

 

Yes that is correct...

I was only clarifying my point with respect to "serve the notice anytime before the 30/7/2020".

 

Sorry I don't understand, are you saying they can vacate anytime without giving notice once the lease is up?

If i did serve them a notice and it arrived in the mail on 25/6/20, does that mean they have effectively 30 days to vacate (ie 25/7/20).... and from 1/7/20, they go into a periodic lease but because my notice was served already, I'm still within my 30 day notice (and doesn't change to 90 days)

Yes, already have last week, no answer yet so I'm just preparing for the scenario.

 

If you have given the tenant notice to leave in NSW, and the fixed term is over, the tenant can leave any time between you giving them notice and the end of the notice period.

So in your example of giving them notice to leave on the 25th and the lease expires on the 30th. The tenant could hand in the keys on the 31st and not owe any rent beyond that day. Even if they never told you they intended to do so.

 

This is correct!

Also if the tenant has not agreed in their lease to electronic service of notice and you cannot put the notice physically in their mailbox you now need to account for 7 business days postage which is effectively 9 days including a weekend before the notice period starts

 

Side note, during the COVID moratorium period, you cannot give a 30 day notice to vacate anyway. Your notice period is 90 days, no matter what.

You are wanting to issue a section 84 notice to vacate for end of fixed term agreement. Until the 15th October, it is still within the legally defined moratorium period. Under section 41D of the regulation, a section 84 notice cannot specify a vacate date less than 90 days from issuance during said moratorium period. If it does, the notice is of no effect, and the tenant can essentially pretend they never received it (because legally, they didn't). The tenant is not required to be COVID impacted for this protection to apply (as they would be if it was a 41C protection).

 

I must be missing something. According to this
Ending a tenancy

they must provide 14 days notice during fixed term and 21 days during periodic? How can they just one day decide to hand in the keys without notice?

 

Oh good point. But it doesn't work the other way around? So the tenants can leave at any time but I'm essentially stuck with a 90 days notice? Then do I even need to renew the lease? I may as well let them fall into periodic?

 

You are correct but missing something. A tenant can provide 21 days notice to terminate a periodic tenancy under section 97, however section 110 provides that if a termination notice is given by either party that is valid, the tenant may deliver vacant possession immediately if they so choose.

The tenant is still liable (other circumstances notwithstanding) for rent up until the end of the fixed term if it's a section 84 notice (end of fixed term) so you can issue them a notice to vacate now with the proviso that the vacate date must be 90 days from now, and you are only guaranteed (conditions apply) to rent up until their existing tenancy end date. During a periodic tenancy though, they would have no obligation past you issuing notice to vacate and your payments would cease with zero notice.

 

Ah I think i understand now, the tenant can vacate anytime without notice IF the landlord issued a notice to vacate. You are saying if i provide notice to vacate, the tenant can vacate anytime without notice between the fixed term lease ending and the date in my notice to vacate. If i didn't serve the notice to vacate, then they will have to abide with the 21 days during periodic lease notice period. Have I understood this correctly?

Given the legislation has changed to 90 days notice due to covid, what's the benefit for the landlord of serving notice to vacate then? I may end up disadvantaging myself if the tenant just decides to vacate without notice. Best case scenario is to get them to renew lease, if they don't I'll be better off letting them default to a periodic lease wouldn't I, at the very minimum I get 21 days notice?

 

I wonder why the NSW fair trading site says the tenant has to give a minimum of 14 days or 21 days notice depending on whether it’s the end of a fixed term agreement or the end of a periodic agreement?

 

Cooooooorrect!

Well, there are other considerations. If you have a fixed term agreement for example, signed prior to COVID-19, your insurer if applicable may (consult your PDS) cover you for rental defaults and/or compensatory payments if the tenant jumps into the wind. However, most policies limit that further when the tenancy is periodic. Once again, I cannot give you specific advice relating to your policy. Your insurer or PM will be able to do that.

I only really spoke to the scenario where the lessor issued notice first. To elaborate further on where the tenant issues notice, I'd have to read sections not really relevant to OP's query. But it is likely that the table is correct (noting that it wouldn't be the first time a government web page is at odds with the legislation).

 

Covid aside, you are still able to terminate leases where the tenant is not occupying subject to Covid issues.

A friend recently had their termination on expiry of the lease at the end of July, ratified by the tribunal member. So it's possible to terminate at the end of the lease.

 

I think EBM and terrischeers both extend out coverage to periodic leases. Does anyone know?

It’s still a legal lease, why do insurance not cover?

 

EBM and Terri Scheer do both cover periodic leases