I am having a confusion with my tenants as they are wanting to terminate a lease agreement early. The reason they would

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Customer: Hi, I am having a confusion with my tenants as they are wanting to terminate a lease agreement early. The reason they would like to terminate the lease is their 10 year old boy was sexually abused (his private parts were touched) by an 18 year old boy in the neighbourhood. Hence they need to move out of my property. Am I eligible as the landlord to claim a break fee from them?
JA: What state are you in? It matters because laws vary by location.
Customer: NSW
JA: What steps have you taken so far?
Customer: they have informed the police and appearing in court next month.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: My question as a landlord would be: are they liable to pay the break fee to me? Does this kind of incident fall under domestic violence which excludes them from paying the break fee during terminating the lease agreement earlier? nothing else.
Answered by John Melis in 15 mins 2 years ago
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John Melis, Expert

Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.

Yes you can claim a lease break fee against the tenants.

LEASE BREAK Conditions for a tenant

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When you sign a fixed term tenancy agreement (lease) you are committing to stay for the full term. If your circumstances change and you want to move out before the end of the fixed term there are potential costs involved.

There are some circumstances where a fixed term agreement can be terminated.

Breaking your tenancy agreement during the fixed term can be costly. You may have to pay:

  • rent until a new tenant takes over or the fixed term period ends, whichever occurs first, and
  • a percentage of the advertising costs and the agent's reletting fee (if the landlord uses an agent). For example, if you break the lease 9 months into a 12-month tenancy there is 25% of the lease remaining, so you would expect to pay 25% of these amounts.

If you need to end your agreement early you should give as much notice as you can. The landlord or agent must take all reasonable steps to find a replacement tenant as soon as possible. The more you can do to help, the less you may have to pay. You should make it as easy as possible for the landlord or agent to show the premises to potential new tenants.

If you are concerned that it is taking a long time to find a new tenant, you can check that the landlord or agent is trying to relet the property. Check the agent's website and their list of available rental properties.

The landlord and agent must try to keep your costs to a minimum. For example, if they do anything to make it harder to find a new tenant (such as asking for a higher rent or unreasonably rejecting potential tenants) you may not have to pay the full amount they are asking.

Once the new tenant is found the landlord or agent will request payment for the amount you owe. If you don't pay or if you disagree with the amount, the landlord or agent will usually claim from your bond or apply to the NSW Civil and Administrative Tribunal. Be aware that if you owe more money than the bond your name could be listed on a tenancy database. Such listings can make it difficult to rent again anywhere in Australia.

You and the landlord can agree to include a break fee clause in the additional terms of your tenancy agreement. The break fee is a penalty you agree to pay if you move out before the end of the fixed term.

If the fixed term of the agreement is for 3 years or less the break fee is:

  • 6 weeks rent if you move out in the first half of the fixed term
  • 4 weeks rent if you move out in the second half of the fixed term.

If the fixed term is for more than 3 years and you and the landlord agree to include a break fee clause, you can agree on the amount and write it into the agreement.

Where there is a break fee in your agreement that is all you have to pay if you move out early. However, if the landlord or agent find a new tenant quickly it does not mean that you will get any of the break fee back. It is a fixed fee.

You have a legal right to protect your interests in this important situation.

http://classic.austlii.edu.au/au/legis/nsw/consol_act/rta2010207/

Look at Part 5m division 2 & 3

​Thank you for reaching out today.

You have a legal right to protect your interests in this important situation.

I am a user like you in this chat forum to assist in your important question today.

Thank you kindly for rating me with 5 stars, which helps me support the community.

You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

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