Tenant broke fixed term agreement. wants bond back; who's right?

So i have received an email saying they plan to lodge a form 6 application with the local magistrates court. they say my contract is void and that in the eyes of the law they are considered lodgers and not covered under tenancy law but rather have to go through small claims court through the local magistrate.

I have done a bit more digging and will be challenging this.

I believe the comments made by joanmc seems to look like she could have a point, and you may lose this one, and that is not even going into the can of worms that you (or the tenant) could open up if it goes further. Perp has very good points. I don't know what a Form 6 is, but I would be quickly asking that they stop proceedings and give the bond back... and learn from it.
 
Blair, in your own agreement you have this:
ENDING A FIXED‐TERM AGREEMENT
40. If this agreement is a fixed‐term agreement it may be ended:
40.1 by agreement in writing between the lessor and the tenant;

They sent you a text that they were leaving and you replied by text about the keys acknowledging that they were leaving.

I think you will find that they fulfilled 40.1 of your agreement.

This is why you use appropriate legal forms that have already had the kinks ironed out.

Also the Bond clause seems to contemplate only cleaning and damage. It then says other than those costs you will return the bond. It doesn't mention withholding for loss of rent or even unpaid rents arrears etc. Given 40.1 seems satisfied and the bond clause doesn't mention loss of rent to be withheld I would think your claim to a loss is not one a tribunal would agree with.
 
Blair, in your own agreement you have this:
ENDING A FIXED‐TERM AGREEMENT
40. If this agreement is a fixed‐term agreement it may be ended:
40.1 by agreement in writing between the lessor and the tenant;

They sent you a text that they were leaving and you replied by text about the keys acknowledging that they were leaving.

I think you will find that they fulfilled 40.1 of your agreement.

This is why you use appropriate legal forms that have already had the kinks ironed out.

I think the texts you describe fall pretty far short of an agreement to end the tenancy.

Even if there is such a agreement, it doesn't preclude a claim for breach of contract anyway.
 
Blair, in your own agreement you have this:
ENDING A FIXED‐TERM AGREEMENT
40. If this agreement is a fixed‐term agreement it may be ended:
40.1 by agreement in writing between the lessor and the tenant;

They sent you a text that they were leaving and you replied by text about the keys acknowledging that they were leaving.

I think you will find that they fulfilled 40.1 of your agreement.

This is why you use appropriate legal forms that have already had the kinks ironed out.

We have tenants who try to pull this stunt all the time.
If we reply to their emails, we carefully just say "thank you for informing us".
In no way are we agreeing to it, we are just acknowledging their email.

In court when a tenant tries to say...I told them I was leaving, didn't ever make a difference, to the adjudicator. We still won.
 
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thatbum's a lawyer, and I defer to him re the contract between landlord and tenant (or lodger). FWIW, I agree with him that the text messages are unlikely to constitute "agreement".

Less important than the landlord-tenant issue, IMHO, are the possible implications for the landlord if the tenant gets pissed and calls the ATO and/or planning department.

My pragmatic view is that paying back the "bond" is worth it to avoid those potential problems, which may result in much bigger issues for Blair to have to deal with.
 
If bond was lodged, as a landlord, you could have claimed full bond back and also compensation of loss of rent, cleaning, damages etc through insurance.
A good property manager could save you all these hassles.

No one is right or wrong, lease breaks happen. Your job is to mitigate all loses before and after the lease break.
 
Just wondering if Thatbum would be willing to share?

Maybe not specifically on the OP's case, but more of a hypothetical one?
Many here, may be in a similar position, and it would be helpful.

What made this case different, as far as requirements for lodging a bond?

Yes of course. The distinction is that some rental agreements aren't necessarily residential tenancy agreements - they are lodging agreements instead.

Lodging agreements don't fall under any of the rules that residential tenancy agreements fall under. In fact, I think apart from ACT, there's no specific legislation in Australia covering them (I'll have to double check this).

The distinction is unfortunately a big grey blurry line shrouded in the common law. Although a good rule of thumb is when the "tenant" lives in the same premises as the person they are renting from, there is a good chance they are a lodger.
 
Yes of course. The distinction is that some rental agreements aren't necessarily residential tenancy agreements - they are lodging agreements instead.

Lodging agreements don't fall under any of the rules that residential tenancy agreements fall under. In fact, I think apart from ACT, there's no specific legislation in Australia covering them (I'll have to double check this).

The distinction is unfortunately a big grey blurry line shrouded in the common law. Although a good rule of thumb is when the "tenant" lives in the same premises as the person they are renting from, there is a good chance they are a lodger.

Thanks Thatbum, that's how I saw it also, that they were lodgers, therefore different rules.
 
It's not the "extra people" but the "splitting into two separate parts" that I think invalidates your insurance. If the insurance company hasn't explicitly been told that they're two separate households, I suspect your insurance is invalid.

Have you discussed with your local planning department? In Queensland you'd be in worlds of pain.

According to my PM, she checked with BCC on a similar arrangement and as long as occupants all had fire escape routes there wasn't an issue. I guess you may be thinking about laws relating to houses specifically set up for boarding?
You've got me thinking about my insurance though. Worth investigating further. Would be far from fun if house burnt down and insurance was invalid, could destroy you!
 
Just an update on this.

ended up going to the magistrates court with this. i was pretty happy with were i stood legally. the registrar told the lodgers that they were not prepared and before the lodge a bond dispute they should seek legal advice.

The next court date was ordered for this coming friday. I sent an email to the lodgers 2 weeks ago saying i am happy to get this resolved by offering them 400 out of the 1600 bond to save my self the nuisance of going to court ( also its my birthday that day :p )

They said they had legal advice and thought they were in the right but were happy to take 800 because they thought that was fair. i said know would rather go to court.

just got an email yesterday asking if they would like to revisit resolving the issue for 800, again i said i was only prepared to offer 400 and they ended up accepting this.

i was a little bit naive in not knowing basic tenancy/lodging laws that i should know but I'm happy this situation has occurred because i can now be better prepared if i come across another tenancy/lodging issue.

heaps of thanks to thatbum, he was kind enough to take his time over a couple of phone calls to offer me advice. if it wasn't for him i may have panicked for no reason and ended up giving the full bond back when there was no need.

cheers
blair
 
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