I have to break my lease 3 months early. Notified agency and asked if lease can be transferred. Received written

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Customer: Hello, I have to break my lease 3 months early. Notified agency and asked if lease can be transferred. Received written confirmation saying yes. I found an applicant to take over the lease. In the meantime (2 weeks after confirming that we can transfer the lease) the agency told me that owner is considering renovations. 1 weeks after the applicant applied to take over the lease the agency told me that they will not proceed with the applicant because the owner is going ahead with renovations and we now have to pay a break fee.
JA: Because laws vary from place to place, can you tell me what state the property is in?
Customer: NSW
JA: What are the terms of the lease? Any issues related to maintenance or upkeep?
Customer: My question is, if owner provided written confirmation that we can transfer the lease and then rescinded this agreement, and we still liable to pay the break fee?
JA: Anything else you want the Lawyer to know before I connect you?
Customer: The owner wants to do cosmetic renovations- remove a wall to make kitchen and living aread one room, convert laundry room into an ensuite and renovate bathroom
Answered by John Melis in 2 hours 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.

I kindly request that you please clarify your question?

Customer
Hi John, my question is, we had to end our tenancy 3 months early. This incurs a 4 week break fee unless the homeowner agrees to a lease transfer which is $750 + GST. We wrote to the agency and requested to do a lease transfer. The agency replied and said yes. We found a suitable person to transfer the lease to, he filled out an application which was sent to the agency. 2 days later the agency said the owner no longer wants to do a lease transfer because she wants to do cosmetic renovations to the apartment. Do we have to pay the break fee or are we exempt because she gave written confirmation to transfer the lease even though she rescinded this agreement?
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John Melis, Expert

You will not be placed on a black list.

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.

Customer
Hi, I have read the information you have provided online previously but my query is quite specific and the information you sent doesn't go into detail in terms of a home owner revoking an agreement to transfer the lease. Are you able to give a more specific answer?
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John Melis, Expert

If you prefer to talk on the telephone, I have sent you a special offer of $8.00 to assist you in more detail, as it will make it easier to discuss your matter. I kindly request that you complete the details on the offer, and we can talk straight away as you need. Otherwise, we can keep chatting in this box.
Customer
Hi, I am at work so I cannot speak on the phone at the moment. Please reply to my previous question.
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John Melis, Expert

Concerning your important matter, with a homeowner has revoked their position on a previously stated position, you will be able to raise a claim of misleading deceptive conduct against the homeowner, and seek compensation accordingly.

You have a couple of options, which is either to seek specific performers in relation to the implied agreement if it's not written, and where it is it written, then to seek in Forseman of that agreement as it stands. Additionally you can pursue misleading deceptive conduct in the state tribunal, New South Wales civil administrative tribunal

There are three steps you may take with this important matter.

1. issue a formal complaint in writing to the company and if they refuse then follow step two;

2. Where the company has refused to assist you, make an application with Fair Trading and where there is no resolution with Fair Trading move to Point 3. .

3. You will have a claim under the Australian Consumer Law based on the facts that you have described and you will be able to claim compensation. The legislative Act that applies is the Competition and Consumer Act 2010, Schedule 2.

You may have a claim under section 18 of the Australian Consumer Law for misleading and deceptive conduct. In general, misleading someone may include conduct ranging from lying to them, to making false or inaccurate claims, to creating a false impression, to leading them to a wrong conclusion, to omitting important information. Importantly, it is not necessary to establish that the trader intended to mislead or deceive. A person or corporation may have engaged in conduct that was misleading or deceptive even if they have acted honestly and reasonably. Silence may constitute misleading or deceptive conduct, but this will depend on the circumstances of the case.

An objective test is used to decide whether conduct is misleading or deceptive. The court or tribunal will consider whether the conduct was likely to mislead or deceive members of the class or group of persons to whom the conduct was directed.

COMPETITION AND CONSUMER ACT 2010 - SCHEDULE 2

The Australian Consumer Law

18 Misleading or deceptive conduct

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).

The seller cannot rely on a disclaimer or exclusion clause to protect themselves from misleading or deceptive conduct. However, the fine print will still be considered.

Your claim may be brought into the local tribunal.

You can run the case yourself as the tribunal is designed as a low cost forum to resolve disputes.

The NCAT process is very good to meditate disputes of this type as it forces the parties to come together to discuss the issues involved.

In most cases at mediation the matter will settle.

The matter is Civil.

You will be the applicant and the insurer the respondent.

The important filing document is the points of claim. This document needs to be carefully drafted.

What you need to do is to write the complaint in a chronological order detailing what is the issue and what action you have taken to try and rectify the matter.

The chronological order need to be numbered with points 1, 2, 3, etc. with each point being a separate item.

I recommend that you download the application first, complete the same and then upload as required to commence the claim.

The following link will assist you further.

https://www.ncat.nsw.gov.au

You are welcome, and thank you for supporting the community.

Customer
Okay thank you for your answer, that's vey useful.
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John Melis, Expert

You are welcome, and thank you for supporting the community.

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