Landlord refusing to do a tenant transfer, illegal? Help!

Lcc23 on 06/07/2017 - 01:03

Hi all,

I was wondering whether anyone knew more about my issue.

Essentially we are trying to move out of our apartment in Fitzroy. We held inspections all over the weekend and trimmed down to the best two. We presented them to the landlord to select who he would like us to transfer the lease to and he has said he wants more applications, he has not given reasons but claimed that he thought one applicant did not earn enough, when the rent represented less than 1/3 of their wage and has refused to give a reason for why he didn't want the other.

Our contract says that with a lease transfer the landlord cannot withhold consent without a tangible reason.

We are at a loss as our new lease starts on the 15th July!

Can you help?

Home & Garden

Comments

  • [Deactivated] on 06/07/2017 - 02:19
    +5

    Bikies /thread

  • gevidian on 06/07/2017 - 06:29
    +1

    Not illegal as per below.

    https://www.tenants.org.au/factsheet-18-transfer-and-sub-let…

    • Almost Banned on 06/07/2017 - 11:22

      The OP specifically says that the lease permits this and that the landlord cannot unreasonably withhold consent.

  • tomsco on 06/07/2017 - 06:59
    +3

    The landlord needs to mitigate their damages. If the landlord is rejecting one with no reason, this might be seen as not mitigating.

    Try calling your local tenant advocacy body and see what they say.

    • Almost Banned on 06/07/2017 - 11:28

      Not really. It is doubtful whether there is any obligation to mitigate for a claim in debt - it may apply only in damages. While there is a lease on foot any claim for unpaid rent is a claim in debt. It will only become a claim in damages if one side repudiates and the other side accepts, bringing the lease to an end.
      On that point, unreasonably withholding consent to an assignment of lease in the face of a specific term of the lease may well constitute repudiatory conduct. That might give you a way out of this lease early OP.

  • [Deactivated] on 06/07/2017 - 08:10
    +3

    We held inspections all over the weekend and trimmed down to the best two

    Send him 5 crap applications from the next inspection if he wants some choice … it'll only help build your case that he's being unreasonable with the denied applications.

  • TheBilly on 06/07/2017 - 08:48
    +1

    I've never heard of this before. So it is more of a question; but why are you finding the landlord applicants? in what circumstance does this apply? Shouldn't his property manager be doing this, or if it is a private agreement between both parties, shouldn't he/she be doing this themselves?

    • enzioFirenze on 06/07/2017 - 09:32

      I think the op is trying to break lease earlier and get someone else to complete their lease while they move in to another place.

    • QW3RTY on 06/07/2017 - 09:55
      +1

      if it is a private agreement between both parties, shouldn't he/she be doing this themselves?

      The two parties have an agreement, and now one party (Tenant) wants out of the agreement via a transfer. Why should this be the Landlord's problem?

      If OP thinks that consent is being unreasonably withheld, then they should contact a tenancy advocacy group. While the Landlord is being difficult, OP has put themselves in a precarious position — agreeing to a second Lease without being free of their first. Unless a transfer is completed, OP may find themselves liable for rent at their new letting as well as breach fees and liquidated damages from their first.

      Call a tenant advocacy body ASAP, OP.

      • Almost Banned on 06/07/2017 - 11:31

        It isn't really the landlord's problem until the landlord tries to unreasonably withhold consent to an assignment of lease - which they already previously agreed to in the lease.

      • TheBilly on 06/07/2017 - 14:22

        I thought there was a notice period? Give that notice and everything outside of that doesnt matter. Even if your lease is still in place?

  • Lando on 06/07/2017 - 08:59
    +2

    What's the big deal here?

    Move out, and don't pay any rent. Stuff your old landlord.

    • tomsco on 06/07/2017 - 09:07

      ^This. Once your time there is over, it's no longer rent you're paying, it's damages. Once your lease period is over/new tenant is found, if they want to chase you the period when vacated to when it was filled/lease over, they are welcome to take you to the appropriate body to get a judgement against you.

      But if they are unreasonably letting new tenants in, the court won't rule in their favour.

      • QW3RTY on 06/07/2017 - 10:02

        I've only ever encountered liquidated damage clauses in commercial leases. Are they prevalent in residential?

        I always assumed if you were in breach as a tenant, the bond was claimable — but not much else.

        If there is a liquidated damages clause in OPs Lease, then breach of lease is definitely not a path to be taken lightly. Depending on the lease up period, OP could be liable for numerous months of rent.
        If there is not a liquidated damages clause in OPs Lease, and they are an OzBargainer that doesn't mind losing 4 weeks worth of rent, then by all means consider it an option.

        Although, you will need to hand in your OzBargainer licence.

        • Almost Banned on 06/07/2017 - 11:36

          Breach of lease prior to the end of its term could give rise to an action in debt for unpaid rent while the lease remains on foot, or if the repudiation is accepted and the lease terminated, will also give rise to a claim for damages.
          The amount of damages will largely be a matter of the period necessary to relet (if still short of the lease term). So it will be rent x reasonable time to relet (plus/minus any adjustments to the amount paid by the incoming tenant v the amount under the lease).
          These are contractual damages so should put the innocent party in as near a position as possible as they would have been in had the contract been properly performed.

      • Almost Banned on 06/07/2017 - 11:33

        Don't know where you are from but at the end of fixed lease periods most leases simply roll over onto a periodic lease. The money paid for exclusive use of the property remains rent and the lease continues on foot on a periodic basis.
        I don't think the OPs fixed lease is at an end otherwise they could just give their notice and walk.

    • smashed on 06/07/2017 - 09:54
      +3

      I assume he has 4 weeks bond that they would like returned.

      • cc23 on 06/07/2017 - 16:19

        Yeah we were advised by tenants union to just leave as he has not 'mitigated' his loss by declining acceptable tenants. But I am concerned about bond.

  • bobbified on 06/07/2017 - 10:51

    I'm assuming you haven't seen out the initial lease period (and hence the need for a lease transfer instead of just terminating the lease) and want to minimise the period in which you're going to be paying the rent for two places.

    We held inspections all over the weekend and trimmed down to the best two.

    When you say "we", is that you and a real estate agency? Did the agency organise the inspection? Or is it private lease agreement?

    Why don't you give them all the applications you received (rather than trim it down) so that they can see that there's been a range of applicants?

    • cc23 on 06/07/2017 - 16:17

      We held inspections but full application forms were handed to real estate agent for thorough checking.

      • Save 50 Cent on 06/07/2017 - 21:53
        +1

        That did not answer either question.

        • cc23 on 06/07/2017 - 23:49

          It's me, the 'we' is me and my partner. The real estate agency have checked all details of applications and we (me and my partner) ran the inspections.

  • ms_caz on 06/07/2017 - 12:27
    +1

    All applicants for our rental properties are screened through the National Tenants Database so we can be confident that the prospective tenants have a positive rental record. We have to pay for this. Our Real Estate Agent also confirms,via payslips, that the tenant has ongoing consistent employment.

    Were your interviews over the weekend able to ascertain this information, and if so did you present it to the landlord? I would doubt that you would have been able to have access to this information.

    It's all very well to say that you have found a tenant to take over - but you aren't the landlord and you aren't taking the risk in relation to your property. We'd be requiring this information as a minimum before approving a transfer of tenancy.

    • tsunamisurfer on 06/07/2017 - 13:22

      Exactly….the OP doesn't have to live with the consequences of a poor tenant choice, the Landlord does therefore requires due diligence.

      If I were the Landlord, I or my agent will be doing the screening but on the lease breaker's coin.

    • cc23 on 06/07/2017 - 16:17

      All applications were subjected to full checks by our real estate agent before being passed onto landlord

  • cc23 on 06/07/2017 - 14:00

    Just to confirm, bit of an update, we submitted a 4th official suitable application before 9am this morning. The three applications from Monday underwent the full application process with the real estate agent, they were thoroughly checked (even calling the accountant at their work to confirm their wages) before being submitted to the landlord. Of the three applicant two were forwarded to the landlord, in other words they were deemed excellent tenants by the real estate agents. Yet we remain without a decision. We have started an application with VCAT this morning which will force than landlords consent, but this all seems ridiculous!

    Also we have been in the property at this point for 2.5 years, rent paid on time, every time.

  • [Deactivated] on 06/07/2017 - 17:12

    Queensland General tenancy agreement

    (1) Subject to clause 35, the tenant may transfer all or a part of the
    tenant’s interest under this agreement, or sublet the premises,
    only if the lessor agrees in writing or if the transfer or subletting
    is made under a tribunal order.
    (2) The lessor must act reasonably in failing to agree to the transfer
    or subletting.
    (3) The lessor is taken to act unreasonably in failing to agree to
    the transfer or subletting if the lessor acts in a capricious or
    retaliatory way.

    Not sure if you have a similar clause in effect for your state.

    Document everything so far. Including the evidence the real estate agent's opinion on the current tenants.

    Have you submitted in writing your intention to leave (I believe there is a relevant form for that)?
    You need to fix a date (maybe not in writing yet, but in your mind) that will be the final day you will stay in that house.
    Sometimes the owner will drag you out knowing that you do not have a fixed day yet (maybe drag you closer to the peak rental season - not sure about your state but in QLD its around this time), or the owner might be looking to take money from you while having the house unoccupied.

    I would write to the agents stating that the owner is acting unreasonably and is trying to muck you around, essentially state you know your rights and if you have written evidence that the real estate agents believe you had solid tenants apply, you could try to get them to admit that the landlord's behavior is highly irregular on email.
    Also ask how long the landlord will have to decide on a tenant (instead of outright refusing, some landlords play coy and become uncontactable for weeks - in this case they can't be judged as acting retaliatory if they did not act at all).

    The agents will likely try to convince the landlord to accept one of the applicants and if there is still no outcome, write to the agents again and state that if you hear nothing within a couple of days (depending on how many days you have), you will be lodging your official intention to leave (within the time limits of course) and see the owner at tribunal. However, what this does as far as I know, is terminates your contract. The downside is that it cannot be transferred to anybody (contract is gone), but the upside is that after you vacate you do not have to pay rent anymore, so this lights a fire under the owner to get somebody to fill the place. Yes you are legally liable to paying rent till the date on your contract, but that sum will have to be either paid willingly, or squeezed from you at the tribunal.

    If the clauses are anything like on the QLD agreement and if you have documented the situation properly and the owner can really be seen acting maliciously, when you go to the tribunal, things should look favorable for you and you might get away with the full leasing cost (advertising etc) and maybe 50% of the liable costs ( I don't know how they'll judge and I cannot predict it but a lot of times they just go halves and be done with it).
    I'm not sure about your case but sometimes the agent is in on it and they only show the place to prospective tenants once every two weeks. If you can get a hold of the potential tenant's application information that will be even better (so the tribunal can see that the owner was acting unreasonably).

    As always document document document.

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