Terminanting Lease before due date

[Dazz]

the repudiating party just has to be prepared to pay damages to the other party arising from the breach.

....all sounds fantastic in theory....

However most experienced Landlords on here know only too well that chasing down a defaulting Tenant, with no assets, no forwarding address, sometimes no job and no income is very much easier said than done.

The onus (and substantial cost and time) is upon the Landlord to chase the defaulting Tenant. The RTA simply doesn't have the teeth to enforce these principles. If a forwarding address hasn't been supplied, and the Tenant disappears into the ether, no further action can be taken.

The vast majority of experienced Landlords who have been placed in this identical situation by Tenants who choose to not fulfill their obligations within the fixed term of a Lease would place their pragmatic hat on, ignore the losses their Tenants so causes, and get about simply spending further time and money getting the premises into a fit state for presentation for a new Tenant.

Most savvy Tenants (and they all talk amongst themselves) quickly realise this and simply skulk off....knowing full well the vast majority of Landlords will simply be left carrying the bag. Their assumed derision for some heartless and money hungry Landlord also plays a big part in their decision process about which way they decide to "play the game".

Having a lawyer advise them to "play the game" in the manner to which you advise is simply outrageous, despite it being wholly within the law to do so.

As I said previously, the rules of the game are completely stuffed.

 

[tom32]

Any terms that do not align with what the contract law is for break leases are probably unlawful. Any liquidated damages, (ie. specific penalty payments) are 100% unlawful.

I know this thread is old but there are a few things I don't entirely agree with in what you are saying;

A) you can contract out of some common law principles and gov made laws others you cannot. Certainly not real safe to rely on the regs as a complete protection from a term that does not go your way.

B) liquidated damages are fine if they are a genuine pre estimate of a loss. Only where they are punitive does the term become faulty. Eg flea treatment 100 dollars may stand, 1 million would quite rightfully not. Ld's are not faulty just punitive Ld's.

C) mitigating the other parties loss is fine but there is no expectation that they are precise in their approach. There can be a blunder here and there after all you are the wronged party. Again you want to be seen as reasonable should you find yourself in a tribunal hearing. Ceasing paying the rent I suspect does not achieve this.

My advice and I have been there done that;

You have 7 weeks left now. Talk to the agent again and explain you are happy to pay two weeks rent after handing back the keys. This gives them 2 weeks to show through new tenants while rent is paid up. Bear in mind in 7 weeks they will be up for all costs anyway and no no rent while they show people through for any weeks.

I will say this; agree on amount before you breach. Both tenants and land lords are capable of taking the ****. You need to know whether they are as reasonable as you are and if so make a deal.

 

[thatbum]

A) you can contract out of some common law principles and gov made laws others you cannot. Certainly not real safe to rely on the regs as a complete protection from a term that does not go your way.

The Residential Tenancies Act in WA lists the sections that can be contracted out of in section 82(3). Section 82(2) says that any sections not in that list cannot be contracted out of and any attempt is void.

http://www.austlii.edu.au/au/legis/wa/consol_act/rta1987207/s82.html

Note it doesn't include section 58.

http://www.austlii.edu.au/au/legis/wa/consol_act/rta1987207/s58.html

B) liquidated damages are fine if they are a genuine pre estimate of a loss. Only where they are punitive does the term become faulty. Eg flea treatment 100 dollars may stand, 1 million would quite rightfully not. Ld's are not faulty just punitive Ld's.

I believe that is the correct position at common law however Section 57 is a blanket prohibition on liquidated damages. Again, not something that can be contracted out of.

http://www.austlii.edu.au/au/legis/wa/consol_act/rta1987207/s57.html

C) mitigating the other parties loss is fine but there is no expectation that they are precise in their approach. There can be a blunder here and there after all you are the wronged party. Again you want to be seen as reasonable should you find yourself in a tribunal hearing. Ceasing paying the rent I suspect does not achieve this.

I agree with you here definitely, both in that a reasonable mitigation of loss is never a precise science, and that being seen to be a reasonable party is often important in case of future proceedings. Taking the step of stopping rent payments is a very aggressive move that may not be appropriate for every break lease situation.