lease agreement mis-states number of tenants

[charttv]

A tenant completes and signs a lease agreement. In the agreement they state that 1 person (s) will be taking up residence. They move in, sub lease a room with no agreement to someone else so that now two people are living in the premises.

Are they in breach of the agreement?

If so, is this grounds for eviction?

 

[kathryn d]

We have one property, where it states in their lease, an additional person cost $$$ a month more.

Other properties, we require all "new residents" to complete an application for our approval.If they don't , they are not permitted to move in. If the tenant will not remove that new resident, we can evict.

All provinces/states probably have different rules.
You should contact your tribunal and also read the relevant Act.
That should define what a breach is.

 

[wylie]

According to the RTA, yes, it us a breach as the tenant has not asked your permission.

We had this situation and chose not to renew the lease (rather than issue a breach notice) because if our original tanant left, we would have been left with two people we had not met in our house with no lease.

RTA told me that our original tenant on the lease should have asked our permission to sub-lease and would take on the roll and responsibilities of a landlord. He didn't ask and he certainly didn't draw up a lease for his sub-letting.

Each state may be different bt this is the story for Queensland.

 

[lura]

QLD -

This represents a breach under s238 of the Reisdential Tenancies and Rooming Accommodations Act 2008:

They may only do this "only if the lessor agrees in writing tor if the transfer or subletting is made under a tribunal order." RTRAA - page 158 http://www.legislation.qld.gov.au/LEGISLTN/ACTS/2008/08AC073.pdf


S240 just says you can't charge for this as a landlord.

Best practice:

Where lease has already been signed - new/additional tenants must also lodge application and be processed and accepted by landlord or landlord's agent in same way. This is applicable if the second person/parties will reside at the premises greater than 6 weeks.

If first tenant does not accept this term - you can request abitration through the RTA in Qld and if that does not resolve the matter, you may then seek tribunal order to terminate the agreement. The second tenant does not have any rights during this process.

If you don't do this and damage does occur on your property - you can only chase 1 tenant.

You can refer to the RTA websiute for more information.

 

[Dazz]

A tenant completes and signs a lease agreement. In the agreement they state that 1 person (s) will be taking up residence. They move in, sub lease a room with no agreement to someone else so that now two people are living in the premises.

Are they in breach of the agreement?

Hi Mal,


I assume the property is in WA.


This is a particular case in point where doing your homework as a Landlord upfront pays big dividends in whether you have any power or not. Most Landlords don't do their homework and so fall for this one every time.


You must include section 49 (1) (b) in your agreement, otherwise, as per 49 (3) the Lease automatically defaults to the rubbish position where the Tenant can do what the hell they like and you have no say in it whatsoever.

http://www.austlii.edu.au/au/legis/wa/consol_act/rta1987207/s49.html


So, if you have put 49.1.(b) in your agreement, the Tenant is in breach and it is grounds for eviction.


If you have been slack and haven't done your homework as a Landlord, you're up **** creek without a paddle and must watch helplessly from the sidelines as they sub-let whomever and whatever into your property. Fantastic huh.


Of course, the clever Landlords simply contract out the entire section 49 sub-letting clause, removing the Tenant's entitlements, under the powers available to the Landlord under clause 82.(3)

Clear as.

 

[ACTInvestor]

While they are in breech of their Agreement, do you really want to evict them? Why don't you arrange an inspection and if all is fine, have the other party complete an application form - and check their references. You can either draw up a new lease or allow things to continue as is and the leaseholder has the responsibility. I assume you are a self manager and that you thoroughly checked the references of your leaseholder and found them to be a responsible and reliable person. They may not know the law and didn't realise they were breaking the law. If, after you check the references and the new person doesn't pan out, then give them 14 days to move out or your leaseholder will be evicted.

 

[reeco]

Im in breach. Im not letting but ive got mates. Its like vendor finance. Its approved but it isnt. Its OK but its not OK. Its just a big stick that you can use if you "choose" IMO.

My landlord "quietly" knows whats up. As long as i pay the bills and look after his property. Hes happy.

So are the bills being paid? Is your property being looked after well? Can you adjust the rent?

My guess is yes yes and yes. If im right whats the big deal

 

[wylie]

In our case, the potential problem is that our original tenant (sole remaining of the original three on the lease) told us he might travel sometime through the next year and that would have left us with two people we have not met or approved living in our house with no paperwork at all. We would have been happy to add them to the lease had we met them and been happy, but he took matters into his own hands.

It was a risk we were not prepared to take. It possibly would have been okay, but too risky for us.

 

[Pecan]

1. Issue a notice for an inspection, allow the 10 - 14 days notice.
2. At the inspection, take two app forms. Esplain to your tenant he is breaching the agreement (yes you can evict for that, consider if you want to, is he taking care of house, is rent paid, do you want to go to court over it). Give him a breach notice for breach, he has 14 days to remedy. To remedy, friends can move out; or friends can complete app forms, you can check their refs and if they all check out you can re-do the lease in all three names. Done.

 

[kathryn d]

Im in breach. Im not letting but ive got mates. Its like vendor finance. Its approved but it isnt. Its OK but its not OK. Its just a big stick that you can use if you "choose" IMO.

My landlord "quietly" knows whats up. As long as i pay the bills and look after his property. Hes happy.

So are the bills being paid? Is your property being looked after well? Can you adjust the rent?

My guess is yes yes and yes. If im right whats the big deal

Why don't you make it formal with your landlord and protect yourself?

 

[Perp]

If im right whats the big deal

If everything goes to plan, there's no big deal.

If there's a fire, or vandalism, or a crime committed, or anything else involving litigation and/or insurance, you and your landlord are risking everything you own.

 

[Dazz]

Give him a breach notice for breach, he has 14 days to remedy. Done.

I disagree.


If the Landlord has not specifically included section 49.1.(b) into the orignal lease agreement, nor specifically excluded section 49 altogether under the powers of section 82.3, the Tenant has done nothing wrong and the Landlord is powerless to do anything against the Tenant.


The only recourse if you have been sloppy with your paperwork is to let the Lease expire through the effluxion of time. Until then, as the Orange People used to say, "tough t*tt*es".

 

[Lil Skater]

Are they in breach of the agreement?

If so, is this grounds for eviction?

Yes, and i believe it is, but check the appropriate legislation for your state.

Although i must ask, is the rent being paid on time? If it is, what's the reason you want them evicted?

If everything goes to plan, there's no big deal.

I agree with this, as a LL i wouldn't be very happy.

But to protect myself, i'd probably arrange an inspection, and get the other to fill out an application (check referances) and fill out a tenancy agreement.

This way it's legalised and the other party is residing as a tenant, if anything goes wrong - rent in arrears more than 14 days etc. you can evict,.
But if the tenant is paying the rent, i don't see a problem. I'd rather have the rent paid by a tenant that didn't tell me they sub-let, than getting two tenants on the agreement that don't pay their rent and cause me a massive headache.