Advice: Have I Entered into a Rental Agreement?

chumbucket on 07/06/2019 - 14:58

Looking at buying a house soon and am unsure if I am in a lease or not.

Started a 6 month lease last year in VIC and was on a month to month agreement after that.
A while back the property manager asked me about signing a new 12 month lease (via email), to which I replied "no issues with signing a new lease"
The property manager then emailed me with "thanks for the confirmation of the lease, it will start from x date for 12 months."
About a week later they emailed me a lease agreement and asked me to sign it and return it to them, which I have not done.

Despite me not actually signing any official tenancy agreement, have I now entered into a lease?
Tried talking to consumer.vic.gov people, but they told me it would be up to VCAT to determine.

Why is this a big deal? The property I am renting is in an area that has a high% vacancy and will most likely result in me paying rent for significant time before another tenant is found. And any prospective mortgage combined with residual rent isn't feasible long term.

Added a poll, but an actual input would be very helpful.

Poll Options

  • 8
    Yes
  • 53
    No
  • 3
    Sounds like a VCAT problem
Home & Garden

Comments

  • spackbace on 07/06/2019 - 15:02
    +3

    About a week later they emailed me a lease agreement and asked me to sign it and return it to them, which I have not done.

    Have they bugged you to sign it? (Not a lawyer, but…) Afaik, without actually signing the lease, your email isn't admissible

    • chumbucket on 07/06/2019 - 15:03

      I have heard nothing from them other than my fortnightly payment receipts

  • Gronk on 07/06/2019 - 15:02
    +10

    If you didn't sign and return the agreement then you are in a periodic lease.

  • Mokr on 07/06/2019 - 15:13

    Have you tried emailing them back and saying change of circumstances?

    • chumbucket on 07/06/2019 - 15:18

      As far as I knew my wanting to purchase a house didn't meet the requirements of change of circumstance. Or have I interpreted that incorrectly?

      • Krankite on 07/06/2019 - 15:45

        At the moment there are no requirements as there is no contract signed, however if you keep paying rent and acting like there is a 12 month agreement it will get messy down the track. Right now it is a clear cut case of you mentioned it but in the end decided not to, if you stay there for 10 months it's going to be messy.

        • chumbucket on 07/06/2019 - 16:37

          How does the timeline play into it? My thoughts would be I either am or am not in a 12 month lease regardless of when I agreed to ‘signing’ a lease?

  • innov on 07/06/2019 - 15:16
    +2

    "no issues with signing a new lease"

    Nothing was signed so no you're not in a lease agreement

  • trustnoone on 07/06/2019 - 15:17
    +4

    I would say no (not a lawyer though), you said:

    "no issues with signing a new lease"

    Key word for me is that you need to 'sign' for one, if you haven't signed yet I don't see how you'd be on the lease (unless agent signed in your place). So imagine you just went back to month to month.

  • magistramagi on 07/06/2019 - 15:54
    +7

    Not a lawyer but I work in real estate (reception/admin). If you have not signed the new lease agreement (and emailed/returned it back to them), then you are still on a periodic tenancy (month to month).

  • takloohaivan on 07/06/2019 - 16:44
    -3

    stop paying them rent and after few weeks they will themselves contact you. say you don't have any agreement and are happy to leave paying the rent due till the date of leaving.

    • Quantumcat on 07/06/2019 - 20:03
      +1

      You still need to give notice even if you are on a periodic lease

    • robbyjones on 07/06/2019 - 20:49
      +3

      Don't do this, this is terrible advice and could see you having difficulty getting a rental in the future.

      • pais on 07/06/2019 - 21:55
        +1

        It is also just rude…

  • [Deactivated] on 07/06/2019 - 17:19
    +6

    Send them an email to let them know that after further consideration, you have decided not to sign the 12-month lease agreement as you would rather stay on a month-to-month lease.

    • chumbucket on 07/06/2019 - 17:23
      +2

      Some solid advice. Might actually do this

      • ozbjunkie on 08/06/2019 - 08:18
        -1

        I wouldn't. Better to beg forgiveness than ask permission.

  • Ocker on 07/06/2019 - 17:34
    +1

    So what would be your thoughts if the shoe was on the other foot, viz. if you had not intention of moving out but the agent sent you notice to quit with one months notice.
    Would you argue that as you had previously indicated your consent to a 12 month lease you assumed such was now in place and they could not turf you out?

    • jsb on 07/06/2019 - 17:46
      +1

      When you sign a lease agreement, you agree to all the terms in that agreement. Simply saying that you are ready to sign the lease does not mean your acceptance of all the terms and condition that landlord is going to put.

      • Ocker on 07/06/2019 - 18:28
        -1

        That has nothing to do with the situation I proposed.

  • coin saver on 07/06/2019 - 17:41

    I think you are screwed "An agreement to lease must contain the essential elements of contract (offer, acceptance, consideration and intention)" this was all achieved in your email correspondence the following case is commercial but the same principles apply. https://www.millerharris.com.au/email-negotiations-creating-…

  • jsb on 07/06/2019 - 17:43
    +1

    On email, you have just agreed that you can sign the lease, but you did not see the lease agreement at that time. You are not under any lease agreement if you and landlord havn't signed the agreement. Anyone can refuse to sign the agreement if the terms are not acceptable. You could even say, that you were hoping to get $100 less rent per week if signing 12 month contract. If not, you are ok with month to month. Or just pick any other term in the agreement.

    • coin saver on 07/06/2019 - 17:55

      chumbucket did not set out any terms and conditions for signing the new lease when she/he said that they had "no issues with signing a new lease"

      • jsb on 07/06/2019 - 18:04

        Terms and conditions are in the agreement that you physically sign which proves your acceptance of terms and conditions. Unless or until that is signed, lease is not started.

      • chumbucket on 07/06/2019 - 18:04

        your comment above may hold some weight, but checked vic legislation and found this:

        1. Copy of agreement to be made available to tenant
          (1) A landlord must not give a tenant
          — (a) a proposed tenancy agreement; or

        - (b) any other document which contains terms that are proposed to form part of the tenancy agreement to sign unless the landlord has given the tenant a copy of that proposed agreement or other document for the tenant's own use.
        (2) If a tenancy agreement or any terms of it are in writing signed by the tenant, the landlord must give the tenant a copy of the agreement or those terms signed by the tenant and the landlord within 14 days after the agreement is entered into or the terms are agreed.

        Part one seems to be in my favour, but then part two is a little loose in its wording.

        • coin saver on 07/06/2019 - 18:26

          I think part one simply means if you are given something to physically sign you must be given a copy. Term two implies to me the agreement does not have to be in writing.

  • Coude Copon on 07/06/2019 - 17:58

    Did they send you a copy of contract in the original email? If not, just say you don't agree with the terms and it is over(anything not mentioned in that email). I don't think they will actually take this to the court.

    That being said you should not reply that and change your mind, in my opinion.

  • devnull73 on 07/06/2019 - 18:06

    If you havent signed it, no.

  • garetz on 07/06/2019 - 18:28

    Until you actually sign the lease, you are not under a lease agreement.

  • bobbieb on 07/06/2019 - 18:57

    How long is "a while back" and when exactly was the new proposed 12 month period meant to start.

    If it hasn't been too long, then simply resume with conversation and say that you're not comfortable with terms of the new agreement.

    If it's been so long that the agent could reasonably assume you've accepted, then you may be on a less stable footing.

  • Almost Banned on 07/06/2019 - 18:59
    +1

    Most jurisdictions require that interests in land be created by writing.
    The question will be whether your exchange of email is sufficient to do that.
    I lean towards 'no', given that it is reasonably clear the intention of your correspondence (as far as it has been related to us) was to be a second or third category Masters v Cameron contract.
    Good luck.

  • MrFrugalSpend on 07/06/2019 - 20:27
    +5

    I would lean towards no, however there are some legal agreements whereby if you act on the agreement, it can be deemed acceptance.
    If for example, they proposed a reduction in rent under the new lease, and you started paying less - then by your actions potentially you have deemed to have accepted the contract.
    See this:

    https://www.bosslawyers.com.au/contract-not-signed-is-it-sti…
    https://legalvision.com.au/enforce-unsigned-contract/
    Similar principle in UK: https://hsfnotes.com/litigation/2015/04/10/an-unsigned-agree…

    A contract is a legally binding agreement. To be enforceable in court:
    - one party must offer terms and the other must accept them (agreement);
    - the parties must exchange something of value, such as money (consideration);
    - the parties must intend to be legally bound by the terms of the agreement (intention).
    In general, a contract does not need to be in writing to be binding*. A contract can also be verbal or implied through actions.

    Is There Evidence of Acceptance?
    If the other side hasn’t signed your contract, it will be assumed that they have not accepted the offer. You will need to be able to point to other evidence to show that the other side has agreed to the contract’s terms.

    When arguing this, (they) can’t simply show an email … which states … “happy with the terms and keen to get started”. The court will consider these kind of statements in terms of the overall context of the correspondence relating to the contract. For example, … conducted themselves in a way that suggests they accepted it.

    *However in some jurisdictions legislation varies this for property contracts etc.

    The fact that they said to you "thanks for the confirmation of the lease, it will start from x date for 12 months." and you didn't refute this and continued to stay in the property, pay rent (presumably for some time after it was sent and the "x" date??) means they may have a case… the law is always grey and you can argue different sides.
    You'd be relying on the fact you are still acting under the old (periodic "holding over") tenancy.

    At the end of the day, try negotiate a way out of it and hold forth you didn't sign it because you didn't agree with the terms - They probably won't try take you to court/tribunal as it could get more expensive than its worth, but on the flip side, your bond may be at risk etc.

    • HeWhoKnows on 08/06/2019 - 09:11
      -2

      Incorrect!

      OP has NOT signed any lease and that is his response.
      Had OP signed the new lease which they received by email and returned it to the agent then yes, thats a binding agreement

      • MrFrugalSpend on 08/06/2019 - 18:06
        +3

        It seems they didn't tell me this was incorrect when I was taught it whilst studying law at university!! A short term lease doesn't even have to be in writing! I even gave some references links to back up what I was saying! - here's another one:

        Short-term leases can be written or verbal

        https://www.consumer.vic.gov.au/housing/renting/types-of-ren…

  • [Deactivated] on 07/06/2019 - 22:45

    I think you've entered a marriage arrangement and agreed to donate both kidneys to raise awareness for rainforest preservation.

  • HeWhoKnows on 08/06/2019 - 09:09
    -3

    No signature, No lease
    Its that simple!

    And thats all OP has to say. Literally…
    "I did NOT sign any lease"

    The end

    Suggest OP write back to the agent to say he is still considering the new lease but hasnt signed it yet, just to confirm

  • [Deactivated] on 08/06/2019 - 10:25
    +2

    All these people are happy to give you advice that if you have not signed anything then you are not under any obligation.

    However if the agent / landlord feels differently it does not stop them taking you to VCAT, even if VCAT agree with you, it will still waste your time, money and add stress.

    Simply call / email your agent and start talking to them / explain your situation and that you will not be signing / consider yourself on a month to month arrangement. Posting on a forum site is not going to get you a solution .

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