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  • #49291
    AvatarTrulEConcerned
    Flatchatter
    Chat-starter

    Hi all,

    I understand that to formally end a fixed term lease and stop the tenancy from falling into a periodic arrangement, the landlord needs to issue a Termination notice 30 days before the fixed term ends. (Note: the landlord is not interested in a periodic arrangement under any circumstance).

    If a landlord wants the tenant to sign a new lease but has not reached agreement with the tenant by the date the Termination Notice needs to be sent i.e. 30 days before the end of the fixed term, is the landlord shooting himself in the foot by diluting or perhaps voiding the effect of the Termination Notice if he sends that Notice and in the same email (or an email just before or just after) mentions to the tenant “that notwithstanding a formal Termination Notice is attached, I (the landlord) still hope to sign a new lease very soon and if we do sign, then I (the landlord) will void the Termination Notice”.

    Any suggestions are welcome. Thank you.

Viewing 8 replies - 1 through 8 (of 8 total)
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  • #49331
    AvatarTrulEConcerned
    Flatchatter
    Chat-starter

    Hey Kaindub,

    Thanks for yr reply.

    Your wrote (with my comments in italics following your statement):

    The government has not yet outlined what the terms of their non eviction for renters means. (Agreed, it’s best to wait a few days to see what the new rules are).

    Technically sending a notice of termination is an eviction notice. You are depriving a person of a roof over their head. (I thought that “eviction” was in situations other than end of lease. If what you’re saying is true – and I hope it is not – then as Jimmy indicated, the situation falls into a periodic occupancy which MUST be on the terms of the current lease and not the tenant’s unilateral demands of last week. True?)

    If you do not send the termination notice, then as you know, the lease becomes continuing. That means the rent stays the same unless there is an agreement between you and the tenant. What changes is the notice period. 21 days for the tenant, 60 days for you. ( I read online that on a periodic basis the landlord must give 90 days’ notice, which is even worse than the 60 days you indicated may be the case. 60 days is bad enough).

    I have heard that the rules for tenant rent relief will include that the tenant is on jobseeker or other social welfare. (The tenant works in IT and I very much doubt will be on any welfare. If he was on welfare or expected to be, I am sure he would have made that known to me and he has not. Therefore, if he keeps his job and his full time status ,+/- half a day or a day, and is not on welfare then the eviction/rent relief program expected to be announced by the Prime Minister will NOT apply to him? True?)

    So unless the tenant relies on social security, you may be able to evict them. But as I said times have changed and it’s all untested. (If he says he is on welfare or is able to receive welfare, can I ask for proof or am I just to take his word?)

    To evict a tenant you have to have a court order. Since the local courts are only dealing with urgent matters at the moment, the tenant could be there a long time. (But under the terms of the current lease? True?)

    What have you got to lose by making it a continuing lease? The tenant has to still pay the same rent.
    (I want to keep the tenant, ideally under a new lease, which will have a lower rent than the current rent, but he wants to stay so long as I formalise a lease which requires half the rent currently being paid and my undertaking never to chase him for any and all unpaid rent).

    You will have to wait till the government releases its rules about evictions in the current environment to see what the new rules are. (Agreed).

    Maybe wait a few days to see the government rules.
    In my opinion, there will be pain for landlords.
    There will be some tenants who will try to game the system.

    #49329
    AvatarTrulEConcerned
    Flatchatter
    Chat-starter

    Jimmy,

    You write: However, my understanding is that if the tenant refused to leave, they would still be bound by the terms of the existing lease until such times as they did leave or signed another lease. It is therefore in your tenant’s interest to come to some kind of mutually acceptable arrangement with you.
    So as I understand you, the tenant can possibly continue his occupancy (on a periodic basis subject to the current lease) but only on the terms and conditions of the current lease. He cannot demand to stay (or just stay without my consent) on terms I don’t agree to. Correct?

    BTW as I mentioned earlier, in one email he indicated he was considering terminating the lease himself if I don’t agree to his terms, so I hope that means he understands he cannot dictate terms of occupancy, but they must be agreed between the parties.

    Thanks for the Tenants’ Union factsheet.

    #49320
    Avatarkaindub
    Flatchatter

    You’re in uncharted waters here.

    The government has not yet outlined what the terms of their non eviction for renters means.

    Technically sending a notice of termination is an eviction notice. You are depriving a person of a roof over their head.

    If you do not send the termination notice, then as you know, the lease becomes continuing. That means the rent stays the same unless there is an agreement between you and the tenant. What changes is the notice period. 21 days for the tenant, 60 days for you.

    I have heard that the rules for tenant rent relief will include that the tenant is on jobseeker or other social welfare.

    So unless the tenant relies on social security, you may be able to evict them. But as I said times have changed and it’s all untested.

    To evict a tenant you have to have a court order. Since the local courts are only dealing with urgent matters at the moment, the tenant could be there a long time.

    What have you got to lose by making it a continuing lease? The tenant has to still pay the same rent.

    You will have to wait till the government releases its rules about evictions in the current environment to see what the new rules are.

    Maybe wait a few days to see the government rules.

    In my opinion, there will be pain for landlords.

    There will be some tenants who will try to game the system.

    #49315
    Jimmy-TJimmy-T
    Keymaster

    There are two stages to an eviction.  The first is the termination notice which concludes the current leases and contains the date by which the tenant has to leave.

    The second is the “termination order” aka eviction notice, which can only be issued by the tribunal (NCAT), which a landlord would seek if their tenant failed to leave the premises despite having been given due notice.

    From what I hear, your chances of getting a hearing at NCAT in the next few months are between zero and zilch.

    However, my understanding is that if the tenant refused to leave, they would still be bound by the terms of the existing lease until such times as they did leave or signed another lease. It is therefore in your tenant’s interest to come to some kind of mutually acceptable arrangement with you.

    A very good source of information is the Tenants Union website where factsheets like this one will help to ensure you are operating within the law, and not unfairly treating the tenant, whatever happens.

    #49313
    AvatarTrulEConcerned
    Flatchatter
    Chat-starter

    Thanks for the reply Jimmy. You make perfect sense. He is indeed changing the terms of the current lease so yes, I should send the Termination Notice lest the situation fall into a period arrangement under terms not agreed b/w the parties.

    One more thing. Please confirm that sending a Termination Notice to herald the end of a fixed term cannot be construed by him or anyone as an eviction notice.

    Thanks.

    #49309
    Jimmy-TJimmy-T
    Keymaster

    I would be tempted to send the termination notice, as residential tenancy laws demand, but send a separate email saying that you  have done this because he wants to change the conditions of the tenancy and that requires the ending of the current lease, otherwise it would just roll on under the current conditions (which he doesn’t want).

    That’s more than you have to say but it puts the onus back on the tenant, who seems like an opportunist of the first order.  Half rent and no arrears? Why don’t you just give him the deeds to the property.

    I would call his bluff and say that you need to come round and take pictures so you can put the property on the market as soon as possible.  See how he likes them apples.

    But seriously, he is the one who has demanded changes to the lease, and legally you are required to give him notice that the lease is ending.  A separate email as I outlined above would not (in my very non-legal opinion) negate the termination notice.

    #49304
    AvatarTrulEConcerned
    Flatchatter
    Chat-starter

    Hi Kaindub,

    Thanks for the reply. Note in this case I am the landlord and to clarify, I am in NSW.

    The tenant is unsure if he wants to stay.

    In several emails he indicated that:

    (a) He wants to give notice to vacate (but so far has not done so);

    (b) He wants a new lease, but only at 50% of the current rent; and

    (c) Any new lease includes my undertaking to “accept” that in the event that he falls behind in rent at any time for any length, that I will not at any time seek that he pays any arrears. Note he does not seek rent deferral for the month(s) he claims to be unable to pay the rent, instead he seeks forgiveness for the months (in the future) that he will claim he was unable to pay.

    Given I do not want the occupancy to fall into a periodic arrangement, I believe I must send him the Termination Notice to formally end the occupation.

    But I don’t want to scare the guy into thinking that I am not open to negotiations. Hence my initial query: does sending the Termination Notice and at the same time (or close to that time) emailing him to make clear my willingness to negotiate, nullify the Termination Notice’s objective for him to yield up the premises at the end of the fixed term?

    #49295
    Avatarkaindub
    Flatchatter

    Why is the landlord or property manager playing these games?

    Or is this just a hypothetical question.

    If you are issued a termination notice, then you have to act on it. In other words, take it as being true and look for a new place.

    Not withstanding what follow up email the landlord sends, he may never sign a new contract with you, and so the eviction notice stands.

    As for the landlord, he does not diminish his rights and can reasonably sign a new contract with you, between the issue of the eviction notice and the end of the contract. He doesn’t need to withdraw the eviction notice because it pertains to the previous contract and not the new one you sign.

    The saving grace for you is that if you overstay your lease, the landlord has to get a court order to evict you. You’ll lose but you have some time to find a new place.

    Having been a landlord, I fail to understand why a landlord would not want to keep a good tenant, particularly in these times.

    Perhaps there is some other reason for him being difficult .

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