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Tenants Union of Victoria January 1996
There are six ways that tenants can break a fixed-term lease before the expiry date agreed upon, although we must stress that it's not always easy or cheap.
Note: If you do not have a lease for a fixed term, or your lease is about to expire, you can terminate the tenancy simply by giving 28 days notice in writing. See Ending a Tenancy leaflet.
Any lease can be terminated by mutual agreement between the landlord/agent and the tenant. We strongly advise that any such agreement be put in writing, stating that there will be no additional costs payable by the tenant after the date the tenancy terminates. The agreement should be signed by both you and the landlord and make sure you keep a copy.
If a landlord or agent has broken or 'breached' the Residential Tenancies Act or a term of the lease agreement, you may be able to legally end your lease. This applies, for example, if the landlord:
You must send a Form 22: Tenant's Notice to Landlord to Remedy the Breach or make Compensation Payment to the landlord. The form should state that the landlord has 14 days to either remedy the breach or where it's not possible to remedy the breach to make a compensation payment. As with all notices, keep a copy for yourself.
If the landlord has not fixed the problem and/or paid compensation within 14 days, you can serve a Form 23: Tenant's Notice to Landlord of Intention to Vacate following Notice of Breach which notifies the landlord that you are going to leave the property in 14 days. The landlord has until the last day to do what you have asked but if they don't you can move out. You may also be eligible for compensation for any losses incurred by you. The Tribunal requires substantial proof in these cases that it was necessary for you to break the lease, and you should ensure that you have tried all other avenues to solve the problem first. Otherwise you may find that you are being held responsible for costs associated with breaking the lease. It's a good idea to discuss using this procedure with the Tenants Union or a Tenants Advice Service before going ahead.
Note: Unless you deliver the notices yourself, you must send them by registered post or certified mail and allow a couple of extra days for postage.
You may be encouraged to assign your lease to another tenant or to sublet the property as a way of "getting out" of the lease. Make no mistake, this does not get you out of your lease and theTenants Union strongly advises against either of these options. See the Assignment and Subletting leaflet.
If you are able to argue that continuation of the lease will cause you severe hardship, you can apply for an urgent hearing at the Residential Tenancies Tribunal and ask for permission to break your lease. You will have to prove to the Tribunal that:
In our experience the Tribunal will allow the landlord to claim compensation in a hardship application. This makes the hardship right of no practical advantage as the landlord often recovers the same amount in compensation as if the lease was simply terminated by the tenant.
You can give immediate notice if the property is destroyed, rendered unsafe or is unfit for human habitation.
Note: If the notice is given incorrectly you could be held liable for rent, so it is advisable to seek advice first.
You can always terminate a lease by giving notice but it can be costly. As this is a breach of the contract with the landlord he or she is entitled to recover the following losses:
If you terminate the lease you should only pay rent until the day you vacate. The landlord may recover the rent lost after you have vacated, and before new tenants are found, by claiming compensation from you. The rent lost is not actually rent arrears because you have ended the lease and the landlord cannot automatically deduct it from your bond. The other losses can be claimed from your bond but the landlord will have to apply to the Tribunal to do this. The landlord may claim compensation for any of the losses set out above. If the landlord wants to claim any money from you they will have to serve you with notices about what they are doing and apply to the Tribunal, if you disagree with them you will have the chance to put your side of the story.
You may have agreed to pay these costs as part of your lease agreement which makes them harder to argue against. However there are some arguments you can make. If your lease is close to ending you can argue that the first two of the costs are unreasonable and you should not have to pay them or only have to pay a proportion of them. Also the landlord must make every effort to find a new tenant and they can only claim losses which result directly from your termination of the lease. This means that if they delay in advertising the property or do not make an effort to find another tenant or unreasonably refuse another tenant or advertise the property at a higher rental you will not be liable for all of the landlord's losses.
You should take the following steps to help reduce your liability:
It is important that you keep a written record of your actions, put all your dealings with the landlord or agent in writing and keep copies. This will be particularly useful if the landlord withholds your bond, or takes you to the Residential Tenancies Tribunal to claim the expenses mentioned above.
The Tenants Union is a community organisation. For advice, or to find out how to support our organisation, call 9416 2577!