Breaking your lease & the alternatives

Breaking your lease

When you sign a tenancy agreement for a fixed term, this is a binding legal contract. Before signing, you should read the agreement closely, and seek legal advice if you have any questions. When you sign a tenancy agreement for a fixed term, you must be prepared to stay for the whole of the fixed term.

There is no automatic right to terminate a fixed term tenancy agreement without being responsible to pay certain costs, even if you believe your landlord has breached one of his or her legal duties in relation to the property.

If you wish to terminate a tenancy agreement and move out before the end of the fixed term, you are generally required to pay:

  1. a reletting fee (usually one or two weeks’ rent). This must be based on the fee that the agent charged the landlord, so it is a good idea to ask for a copy of the invoice. You also only have to pay this fee “pro-rata”, which means you only have to pay a proportion of the fee depending on how much of the fixed term is left);
  2. reasonable advertising costs (again you should ask for an invoice from the agent);
  3. rent until new tenants move in (usually a maximum of 4-6 weeks’ rent is reasonable).

As breaking a lease can be very costly, it is best to consider other options first, explained below.

Termination by consent

In this situation, the first step is to discuss the matter with your agent. You should tell them about the problem, how it is affecting you, and that you are considering moving out before the end of the fixed term. You should tell them that you wish to do this without paying the usual lease break fees, and see what they say. Despite what you are legally obliged to pay, a landlord and tenant you come to an agreement to end a lease on whatever terms they wish. If they are willing to let you end the lease without paying the usual lease break fees, you must get this promise from them in writing, in case there is any disagreement later on.

Termination before taking possession

If you sign a tenancy agreement, pick up your keys, go to your property for the first time, and find that it is not in a reasonably clean condition, seek legal advice immediately, before you stay the night or move any of your belongings into the property. In this situation, you may be entitled to end your tenancy agreement without any penalties. If you are in this situation, please contact us here.

When your landlord has breached a duty

If your landlord will not repair something in the property even after you have asked and waited a reasonable period of time, or your agent keeps coming to your property without giving you proper notice, your landlord may have breached one of his or her legal duties in relation to the property. The landlord has a range of duties, which you can read more about here.

You can give your landlord a breach of duty notice, which describes what duty the landlord is breaching, and what you want the landlord to do. It is important for your breach of duty notice to comply with certain legal requirements. If you are sending a breach of duty notice, we can help by reviewing your draft breach of duty notice to make sure it complies with the legal requirements. Contact us to Get Legal Help.

The landlord has 14 days from receipt of the notice to fix the problem. If the problem has not been fixed within 14 days, you can apply to VCAT for an order saying that the landlord must fix the problem.

If your landlord continues to breach his or her duties after being given a breach of duty notice, you may have other options to address the situation. If you are in this situation, please contact us to Get Legal Help.

Assignment / subletting

Instead of breaking your lease, you may be able to assign your share of the lease, or sublet your share of the lease to someone else.

You can read about assignment and subletting on the Tenants Victoria website: Assignment and sub-letting.

Further resources

Breaking a lease

Tenants Victoria: Breaking a lease

Landlord’s breach of duty

Tenants Victoria: Giving your landlord a breach of duty notice

Consumer Affairs Victoria: When a tenant or landlord breaks the rules

Notice for breach of duty to landlord of rented premises (template) [Word, 729KB]

Assignment / subletting

Tenants Victoria: Assignment and subletting

 

The information on this website is not legal advice. It is legal information only. If you require legal advice, please contact the UMSU Legal Service here.

Last updated: 7 June 2019