# Legal Stance on Tenant withdrawing early from 1yr Lease



## gears303 (15 Jun 2008)

Hi,

my partner and I signed up to a 12month lease but unfortunately now we've gone our separate ways.
The monthly rent is alot more than I can afford on my own and so I'm forced to look elsewhere. 
I sent a letter to our landlord giving him one months notice. He responded saying that legally we had to live out the full-term of the lease and he could enforce this. I was very surprised to say the least. I thought that we would forfeit our deposit and this would ensure he was not out of pocket while he found new tenants.
He now wants us to find replacement tenants and vet them on his behalf while we sublet the lease. 
Surely this isn't above board?

I would appreciate any advice you can give.

Thanks


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## mathepac (15 Jun 2008)

As Paul Simon says "It's the same old story..."

What does it say in the lease document you signed?


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## DavyJones (15 Jun 2008)

I have rented alot and never came across that. I have had to move early due to work and only once give up my deposit. Try talking to him and be firm. I find talking is better than a letter. In the future when you rent, get a 12month lease with a six month break clause I.E after six months you can leave with a months notice. Best of luck.


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## Complainer (15 Jun 2008)

Threshold might be able to give you good advice. Is everything above board with the landlord, i.e. [broken link removed] and with the PRTB?


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## Afuera (15 Jun 2008)

Unfortunately for you the landlord is within his rights to request this. Signing a fixed term lease ties you in for a certain length of time. I think the fact that your landlord is threatening to persue you fully is pretty much a sign of the current state of the rental market. As some of the other posters mentioned normally they would just take your deposit and get the next bunch of tenants in within a week or two.

I find it interesting that he suggested you "sublet" it though. This means that you would in effect become the landlord and have to take responsibility for the new tenants. By law you can actually make a request to have the lease "assigned" to a new tenant if you would prefer. I'm guessing this would probably be better in your case as it would leave you with no obligations; the new tenants would essentially take over the lease from you.

In either case, to break the lease legitimately you will have to find someone else to take your place. You do not have to go so far as vet them or anything though. Once you find someone, I suggest you make a written request to the landlord to get the lease assigned over to the new party. It doesn't matter whether the landlord accepts this request or not, as after making an attempt to assign the lease in this way, you will now be free to hand in your months notice. By the way if you follow these steps, you will be entitled to your full deposit back as well.

I'd agree with Complainer's advice of getting in touch with Threshold as well to see if they can offer you other suggestions.


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## max (16 Jun 2008)

I reckon if you just walked away and wrote off the deposit you paid he'd be hard pushed to register anything more against you in the current landlord/tenant climate.

edit: you didn't mention if the contract signing was witnessed (and duly signed by the witness) or if the contract was notarised by a solicitor?


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## room305 (18 Jun 2008)

Afuera said:


> Unfortunately for you the landlord is within his rights to request this. Signing a fixed term lease ties you in for a certain length of time.


 
I don't believe this to be the case. A tenant is within their rights to leave before the lease is complete once they provide sufficient notice to the landlord. The length of notice depends on the length of their stay. Otherwise the law would be unfairly prejudiced against tenants as landlord may give tenants notice to quit during the lease period. You should not lose your deposit and should object to the PRTB if you do. The OP should not let themselves be bullied by the landlord, finding a new tenant is the landlord's problem.

Tenants are under no obligation to provide a reason for leaving.

[broken link removed]
[broken link removed]

Sample notice letter [broken link removed]


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## Afuera (19 Jun 2008)

room305, there's no prejudice since landlords can not break fixed term leases either.

[broken link removed]


> During the three and a half year period the landlord can only terminate the tenancy on specified grounds. Acceptable grounds include the tenant not complying with their obligations (e.g. not paying their rent), the landlord intending to sell the dwelling and the landlord requiring the dwelling for his own occupation or for a family member. However, *please note that if a fixed term tenancy exists it cannot under any circumstances be terminated before the expiry of the term*, unless the landlord or the tenant is in serious breach of the agreement.


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## Cityliving (19 Jun 2008)

Basically  if you sign a contract you are committing to that agreement.

If you break it you can be expected to pay a penalty however in this case it means that you have to provide an alternative payment i.e. another tenant to pay the rent. This tenant must of course be acceptable to landlord.

If you cannot provide this tenant you must continue to pay the rent until the time that you do or if you agree to forfeit your deposit the landlord could just forget about the remaining time.

This is going to become a big thing in the coming years as landlords become less generous with rising prices and falling rents etc.


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## shanegl (19 Jun 2008)

Cityliving said:


> Basically if you sign a contract you are committing to that agreement.
> 
> If you break it you can be expected to pay a penalty however in this case it means that you have to provide an alternative payment i.e. another tenant to pay the rent. This tenant must of course be acceptable to landlord.
> 
> ...


 
If you find another tenant, but the landlord does not agree to a sublet then you are entitled to break the lease without penalty. Its all in the Residential Tenancies Act.


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## room305 (19 Jun 2008)

Afuera said:


> room305, there's no prejudice since landlords can not break fixed term leases either.
> 
> [broken link removed]


 
Ah I see, I stand corrected. So the RTA only applies if no fixed term lease is in place then?

That said if I was a landlord and a tenant indicated they wished to leave (especially if there were extenuating circumstances) and was willing to provide sufficient notice, I wouldn't attempt to force them to honour the remainder of the contract.

Not necessarily just out of common decency, but also because I'd imagine that resentful tenants wouldn't necessarily make the most careful of tenants when it would come to looking after the property!


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## shanegl (19 Jun 2008)

Yes, but the RTA does apply to a fixed term lease where the tenant seeks to sub-let. The only case where this could be a problem is if the tenant can't find anyone to take over at the current rent.



> *1 TERMINATION*
> Part 4 Tenancies
> A landlord may terminate a Part 4 tenancy, in accordance with the provisions of the Act, where any of the circumstances set out in Section 34 of the Act arise. For instance a landlord, may terminate a tenancy, in circumstances where he or she wants to live in the dwelling concerned.
> 
> ...


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## Cityliving (19 Jun 2008)

What I find amazing is that if the tenant proposes a  terrible replacement what a position it puts a landlord in - the act although well meaning has so many problems.

I guess in practise if my tenant was a decent person and basically didnt leave me out of pocket i.e. if I do the looking and they cover the advertising etc iot wouldnt bother me at all.


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