reneg on notice to vacate

[im sparticus]

senario:

existing Tennant gives notice to vacate 1 month from today.

landlord signs up new tennant today lease comencing 1 month from today.

existing tennant renigs on notice and continues to occupy the property beyond there notice period.

Question:

who is responsible for damages to new tennant? (existing tennant or landlord).

 

[Terry_w]

Tenant would have brought lease to an end by giving notice.

Landlord would have then entered a binding agreement with new tenant, so if the landlord does not honour this then they would be in breach.

 

[im sparticus]

Thanks Terry,

Im trying to work out weather i should sign a new tenant now or wait till i have vacant possesion.

Should you sign a new Tenancy Agreement before you have possession?

Ive just never been in the position to have a new tenant available 1 month before the old tenant vacates.
Do i lock them in now and risk the abovementioned senario or lock them in later and risk loosing them and 1 month of campaining for a new tenant?

 

[kathryn d]

Has the current reneged, or you just worried they might?

In our case when a tenant gives notice, we don;t hesitate to sign a new tenant.

If our tenant has been given an eviction, depending on the situtaion, we will wait until the property is vacant to start advertising.

We actually asked our residential tenancy officer what would happen if a tenant refused to vacate, and we had signed a new tenant. He just said, "You'd have a problem".
I guess everyone would just sit tight.

 

[Terry_w]

Thanks Terry,

Im trying to work out weather i should sign a new tenant now or wait till i have vacant possesion.

Should you sign a new Tenancy Agreement before you have possession?

Ive just never been in the position to have a new tenant available 1 month before the old tenant vacates.
Do i lock them in now and risk the abovementioned senario or lock them in later and risk loosing them and 1 month of campaining for a new tenant?

I wouldn't sign up anyone else while you are in a binding contract with the existing tenant.

 

[thatbum]

Tenant would have brought lease to an end by giving notice.

Landlord would have then entered a binding agreement with new tenant, so if the landlord does not honour this then they would be in breach.

Its not always necessarily the case that a notice of vacation/termination actually brings a tenancy to its end by itself.

I'm not full bottle on the NSW 2010 Act, but generally under the various RTAs around the country, you need a notice AND tenants offering vacant possession, or a notice AND a court order.

So unfortunately the answer might not necessarily be as simple or as intuitive as that.

 

[Luv2Travel]

generally under the various RTAs around the country, you need a notice AND tenants offering vacant possession, or a notice AND a court order.

No surprise there with the laws giving tenants all the power over your property.

If you are talking about a hypothetical situation, I'd advertise and sign up a tenant and is not uncommon to do so. If you had to wait until your property was vacant each time before lining up a new tenant, you'd have a lot more vacancy in between each one.

I have no doubt your situation does occur but I suspect it'd be quite rare. I'm with Kathryn, if the tenant hasn't shown any signs of causing trouble or refusing to budge, I'd start organising new tenant to move in ASAP after the previous one leaves. If they are starting to create an issue prior to signing up a new tenant then I'd wait, as it may require tribunal intervention which could take any amount of time.

 

[im sparticus]

thanks for the imput team,

I think i will take my chances and get them to sign now.
If the existing tenants dont vacate on time (they have already given notice to vacate) do you think i have a claim on their bond if the new tenants seek compensation?

 

[Scott No Mates]

Just put a special condition into the lease pertaining to having vacant possession on xx/11/2013 (leave a few days grace if you are concerned but monitor the situation with the outgoing tenant to ensure that they will be out on time/no damage to make good etc).

PS: why is the current tenant vacating - eg purchase of own home/moving elsewhere? (if so, confirm settlement date/new lease commencement date/removalist has been booked etc - ie confirm that they are making all the right activities to relocate).

 

[jenni_nextplace]

I am sure I have come across this situation before.

A PM took tenant to court because they didn't vacate as per their notice to vacate and the tenant had to pay the compensation to the new tenant as they were in breach, not the owner.

 

[Terry_w]

Its not always necessarily the case that a notice of vacation/termination actually brings a tenancy to its end by itself.

I'm not full bottle on the NSW 2010 Act, but generally under the various RTAs around the country, you need a notice AND tenants offering vacant possession, or a notice AND a court order.

So unfortunately the answer might not necessarily be as simple or as intuitive as that.

Point taken, but

Just had a quick look at the RTA
s81(2)
Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises.

and
ss 4 Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs:
(e) the tenant gives up possession of the residential premises with the landlord?s consent, whether or not that consent is subsequently withdrawn,

http://www.austlii.edu.au/au/legis/nsw/consol_act/rta2010207/s81.html


However, look at s120
(1) A person must not enter residential premises for the purposes of taking possession of those premises before or after the end of a residential tenancy agreement unless:

(a) the person is acting in accordance with a warrant arising out of an order for possession of the Tribunal or a writ or warrant arising out of a judgment or order of a court, or

(b) the tenant has abandoned the premises or given vacant possession of the premises.

Maximum penalty: 200 penalty units.

Note: Under section 106 a landlord may apply to the Tribunal for an order declaring that a tenant has abandoned the residential premises.

http://www.austlii.edu.au/au/legis/nsw/consol_act/rta2010207/s120.html