Leaving a tenancy early can be expensive. Following these tips can help limit any extra costs.

Staying instead of leaving

Before they leave the rental property, it’s important that the affected person is made aware that they have the option to stay and that there are steps they can take to make it safer to stay. See Staying in the rental property.

Don’t return the keys too early!

It is very important that the affected person does not return the keys too early. If all tenants move out and return the keys to the landlord, the lease has ended and VCAT will be unable to make orders to terminate or reduce the lease. If this happens in a fixed-term lease it is likely the landlord will ask the tenant to pay lease-break costs. Note: there are some exceptions to when a tenant can give a notice of intention to vacate to end their lease early and when a landlord can request lease breaking costs and compensation for leases terminated by VCAT or ended under the temporary COVID-19 measures.

Ending the lease when you want to leave

The three important things to find out are:

  • Is the lease fixed-term or periodic?
  • Whose names are on the lease?
  • Is there an intervention order in place?

Effect of temporary COVID-19 measures on termination of leases (section 547)

During the operation of the temporary COVID-19 measures, leases can be terminated where:

  • VCAT makes an order terminating the lease under section 233B (on application of the tenant) or section 459 (on application of the landlord);
  • the lease is terminated by agreement between the landlord and all tenants, under section 217;
  • the tenant vacates the premises with the consent of the landlord, under section 218; or
  • the tenant vacates the rented premises in accordance with a notice of intention to vacate validly given by the tenant under the usual sections of the Act or reduced notice under sections 237 and section 545; or
  • the tenant abandons the rented premises, under section 220.

The affected person has five options when they want to leave:

1. Give notice

Temporary COVID-19 measures: Give 14 days notice (section 545)

The usual rights for a tenant to give a landlord notice of their intention to vacate rented premises were temporarily restricted by the temporary COVID-19 measures. This issue has now been resolved by the introduction of the Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020. Despite the wording of section 545, the Regulations reinstate the usual rights tenants have to give a notice of intention to vacate, such as being able to give 28 days-notice to end their tenancy when their fixed term lease is ending, or has ended (note: notices of intention to vacate must be given in writing and specify the vacate date).

Also re-instated are “reduced” notices of intention to vacate which allow tenants to give 14 days-notice to end their leases in certain circumstances, being if the tenant:

  • requires temporary crisis accommodation and needs to vacate the rented premises in order to obtain that accommodation; or
  • requires special or personal care and needs to vacate the rented premises in order to obtain that care; or
  • has received and accepted an offer of housing from the Director of Housing or a registered housing agency; or
  • the tenant, who is an SDA resident, has been given a notice under section 498DA that NDIS registration has been revoked.

The temporary COVID-19 measures also add:

  • if a tenant is suffering severe hardship, and
  • where a landlord has made an application to VCAT (via Consumer Affairs Victoria) to terminate the tenancy.*

Note: there is no definition of “severe hardship” and whether this would include a tenant experiencing severe hardship as a result of family or personal violence, or severe financial hardship. If a tenant was unsure if their situation would allow them to give a 14-day notice of intention to vacate they could instead apply to VCAT under section 543 to ask that their lease be reduced.

*Even though a tenant has a right to leave early if a landlord applies for a termination order, it is important to note that they are not required to move out. The application will first need to be registered with Consumer Affairs Victoria, who must consider whether further assessment is required or if the application can be heard by VCAT. If the application is assessed as suitable for VCAT to hear, VCAT must consider if it is reasonable and proportionate before they can make an order to terminate the tenancy. See Defending an application by a landlord to terminate the lease.

When giving the notice, the tenant must include the end date in their letter/email and it must be at least 14 days from the day the landlord receives it. If sending it by mail, add extra days for the mail to be delivered. See delivery times [Australia Post website].

Usual Residential Tenancies Act provisions: Give 28 days notice (section 235)

Tenants can give notice of their intention to vacate under section 235. This is a good option if there is a periodic-lease or if there are less than 28 days to go until the end of the fixed term, and if the affected person is the only one on the lease.

They can write to the landlord to give notice of their intention to vacate the property. They must include the end date in the letter and it must be at least 28 days from the day the landlord receives it. If sending it by mail, add extra days for the mail to be delivered. See delivery times [Australia Post website].

2. Get the landlord’s okay

If the landlord and other tenants agree (in writing), the lease can be ended early. This may not be the best option because all tenants need to agree (including the perpetrator if their name is on the lease).

The lease can also be ended early if all of the tenants vacate the rented premises with the consent of the landlord. But again, all tenants need to agree (including the perpetrator if their name is on the lease).

3. Transfer the lease to someone else (assignment)

Another option for the affected person is to transfer (assign) their part of the lease to another person. This option is a good one if there is someone who wants to live at the property with the perpetrator. The steps you need to take are:

  • Get an agreement in writing. All current tenants, the landlord, and the new tenant need to agree. The landlord cannot unreasonably withhold consent.
  • Get the bond money from the new tenant or other tenants who are staying. It’s a good idea to do this before you transfer the bond, because if the affected person’s name is taken off the bond they have no right to the bond money held at the RTBA.
  • Transfer the bond into the new name. Everyone involved needs to sign a tenant transfer form. And the form must be given to the Residential Tenancies Bond Authority [RTBA website].

While a landlord must not unreasonably withhold consent to a requested assignment of lease, the tenant should make sure that they do not assign the lease to someone else without the landlord’s consent, as this will be a breach of the tenant’s obligations under the lease and the Residential Tenancies Act.

4. Apply to VCAT to terminate the lease (section 233A)

As long as the perpetrator is on the lease, the affected person can apply to VCAT to terminate the lease. The application can be made if the lease is a fixed-term lease or a periodic-lease.

An affected person can make an application to VCAT if:

  • their name is on the lease and they have been or are being subjected to family violence by another person who is on the lease; or
  • their name is on the lease and they are a protected person under a personal safety intervention order made against another person who is on the lease; or
  • their name is not on the lease, but they live in the rented premises as their usual home and have been or are being subjected to family violence by another person who is on the lease; or
  • their name is not on the lease, but they live in the rented premises as their usual home and they are a protected person under a personal safety intervention order made against another person who is on the lease.

In the case of family violence, the affected person does not need to have obtained a family violence safety notice or family violence intervention order to be able to make an application. However, VCAT will take into account whether an application for a family violence safety notice, family violence intervention order, non-local DVO or personal safety intervention order has been made. If an application has been made, VCAT must consider whether there is a safety notice, intervention order or recognised non-local DVO in effect and if so, whether a tenant of the rented premises is excluded from the rented premises under the notice or order. If the affected person does not have a safety notice or intervention order, it is likely that they will need to provide evidence of the family violence. This could include giving verbal evidence, which may be difficult for the affected person. It might be preferable for the affected person to have a safety notice or intervention order in place before making the application, as VCAT members will normally take these on face value. [Note: VCAT can also consider other prescribed matters –relevant regulations may also be made, though there are no additional ‘prescribed matter’ at the time of this publication.]

In the case of personal violence, the affected person must have a personal safety intervention order in order to be able to make the application to VCAT.

The application can be made without the consent of the landlord or any other person who is on the lease.

If the affected person is a child, the application can be made by the child’s parent or guardian who lives at the rented premises with the child.

VCAT must hear the application within 3 business days, or if this is not possible, no later than VCAT’s next available sitting day.

To make an order terminating the lease, VCAT must be satisfied (relevantly) that:

  • the severe hardship suffered by the affected person would be greater than any severe hardship the landlord would suffer if the order were made; and
  • if a tenant of the rented premises is excluded from the rented premises under a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order, it is reasonable to do so given the length of the exclusion under the notice or order and the length of the existing tenancy agreement; and
  • it is reasonable to do so given the interests of any other tenants (other than any excluded tenant) under the existing tenancy agreement and, in particular, whether the other tenants support the affected person’s application.

The lease will end on the date that VCAT specifies in its order.

What you need to make an application to VCAT to terminate the lease (s233A)

These are the things you need before you apply to VCAT to terminate your new lease (tenancy agreement):

  • in the case of family violence, it is not necessary for the affected person to have an intervention order or safety notice in place before making the application, however, it may be preferable;
  • in the case of personal violence, an intervention order is required;
  • the perpetrator must be a tenant (their name must be on the current lease);
  • the affected person must be either a tenant (with their name on the current lease) or living in the rented premises as their main or only home.

5. Apply to VCAT to reduce the term of the lease

Temporary COVID-19 measures: Reduce a fixed-term lease (section 543)

Under the temporary COVID-19 measures, if the tenant is suffering severe hardship and they are on a fixed-term lease, they can apply to VCAT for an order reducing the term of the lease.

To obtain an order, VCAT must be satisfied that the severe hardship the tenant will suffer if the term of the lease is not reduced would be greater than the severe hardship which the landlord would suffer if the term is not reduced.

The Residential Tenancies Act provides that VCAT may be satisfied that the tenant would suffer severe hardship if:

  • the tenant is excluded from the rented premises under a family violence intervention order, recognised non-local DVO or personal safety intervention order; or
  • the tenant:
    - is a protected person under a family violence intervention order, recognised non-local DVO or personal safety intervention order; and
    - the tenant is seeking to reduce the term of the lease to protect their own safety or the safety of their children.

Usual Residential Tenancies Act provisions: Reduce a fixed-term lease (section 234)

If the affected person is on a fixed-term lease, they can apply to VCAT to reduce the term of the lease. This will help to avoid expensive lease-break costs. This can be done even if the perpetrator’s name is not on the lease.

However, if the perpetrator is on the lease, it may be preferable for a tenant to make an application to terminate the lease under section 233A as these matters must be listed within 3 business days and will allow the Tribunal to address any issues with remaining occupants or tenants.

What you need to make an application to VCAT to reduce a fixed-term lease

These are the things you need before you apply to VCAT to reduce a fixed-term lease

  • affected person must be a tenant (with their name on the current lease)
  • affected person must show that they have had an unforeseen change in their circumstances, which has caused them severe hardship. Generally family violence will meet the threshold for hardship as required by sections 234 & 543 of the Residential Tenancies Act if it can be shown that there is sufficient evidence of family violence. When considering whether to grant the reduction, the VCAT member will determine if the tenant’s hardship is greater than that of the landlord’s.
  • interim or final intervention order
    - Section 543 application: Section 543 does not specifically require a tenant to have an intervention order, however this section indicates VCAT may be satisfied a tenant would suffer severe hardship if they were either a protected person or an excluded person on an intervention order.
    - Section 234 application: If the affected person has an intervention order they can apply under section 234 (2A) of the Residential Tenancies Act 1997.
    - It is still possible to apply to VCAT for a reduction of fixed term tenancy without an intervention order, under section 234(1), Residential Tenancies Act 1997. However the affected person will need to provide evidence of the family violence. This could include giving verbal evidence, which may be difficult for the affected person. It is generally easier to get a reduction when there is an intervention order in place as VCAT members will normally take intervention orders at face value.

See Applying to VCAT and an example application to reduce a fixed-term lease.

Who owes what when the lease ends?

If there is anything owing when a lease ends it is usually the joint responsibility of all tenants to pay. This could include any unpaid rent, unpaid bills or damage to the rental property and even cleaning costs if the rental property is not left in a reasonably clean condition.

However, if the perpetrator is responsible for any unpaid rent, bills or caused damage to the property, the affected person may be able to ask VCAT to order that the perpetrator is liable for these things, and not the affected person.

Compensation to the landlord/lease break costs

Temporary COVID-19 measures

Notice
If the affected person gave notice of their intention to vacate the rented premises under the temporary COVID-19 measures under section 545 of the Residential Tenancies Act, the tenant is not liable to compensate the landlord for loss suffered as a result of the early termination of the lease or pay any lease break fees, provided that the tenant was eligible to give the landlord a notice of intention to vacate under section 545 and vacated the premises after the termination date in the notice.

A tenant will also not be liable for compensation if:

  • the tenant gave a notice of intention to vacate to the landlord under the usual provisions of the Residential Tenancies Act (even if the tenant did not fit the criteria under section 545); and
  • the tenant:
    - is excluded from the rented premises the subject of the agreement under a family violence intervention order, non-local DVO made by a court that is a recognised DVO or personal safety intervention order; or
    - is a protected person under a family violence intervention order, recognised non-local DVO or personal safety intervention order and is seeking to reduce the term of the lease to protect their own safety or the safety of their children; or
    - is suffering severe hardship; and
  • the tenant vacated the rented premises on or after the termination date specified in the notice.

Reduction applications
If a fixed-term lease is reduced under section 543 of the Residential Tenancies Act, VCAT does not have any powers under this section to award compensation to the landlord if they order the lease can be reduced.

Usual Residential Tenancies Act provisions

Termination applications
If VCAT makes an order terminating a lease under section 233B of the Residential Tenancies Act, the landlord does not have any right to claim compensation for early termination of the lease.

Reduction applications
If a fixed-term lease is reduced under section 234 of the Residential Tenancies Act, the landlord may ask for compensation. VCAT has the power to award compensation to the landlord if they reduce the lease under s 234(3) of the Residential Tenancies Act. Typical orders that VCAT makes in relation to compensation are for re-letting fees, advertising costs or lost rent. The same does not apply to section 543, so it would be preferable for tenants to rely on these temporary COVID-19 measures to apply for a reduction, as no compensation for lease breaking is payable under section 546 if VCAT reduces a tenancy under section 543.

Getting your bond back

Sometimes affected persons apply for a reduction of their fixed term lease and the return of their bond in the same application. However, VCAT is unlikely to grant a reduction and return the bond at the same hearing, particularly if there is another tenant is still living at the property.
Usually VCAT will not order that the bond be repaid by the Residential Tenancies Bond Authority (RTBA) until all tenants have vacated the property. Even if all tenants have gone, VCAT will only make a decision about the bond if the agent has been given an opportunity to inspect the property.

Paying for damage to the rented premises

Parties’ liability for damage if the affected person applied to terminate the lease

If the affected person applies to terminate the lease under section 233A, and there is any damage to the rental property, they can ask VCAT to decide who has to pay for what. Usually, it is the joint responsibility of all tenants, but VCAT can decide whether the affected person, perpetrator or any other tenant is liable together, or separately.

General responsibility for damage

Renters usually have joint responsibility for any damage to the rental property caused by any of the renters or their visitors. In cases a family violence the affected person can argue they are not responsible for the damage:

If damage was caused by the perpetrator, and both the affected person and the perpetrator are on the lease, the affected person can ask VCAT to order that the perpetrator is solely responsible for the damage, under Part IVAA of the Wrongs Act 1958 (Vic) which applies to a claim for economic loss or damage to property that arises from a failure to take reasonable care. Because their name is on the lease, the affected person can be seen as a ‘concurrent wrongdoer’ and therefore they are equally liable even if they did not cause the damage. But the affected person can ask for the liability to be apportioned (shared) and that their share be limited to the proportion that VCAT considers fair with regard to their responsibility for the damage.

If damage was caused by the perpetrator who is not on the lease, the affected person can argue that they were not able to prevent this damage occurring due to family violence. They can also argue that the perpetrator was not their invited visitor, especially if they have an intervention order.

See Applying to VCAT and an example application about paying for damage to property.

Collecting belongings left in the premises

If the affected person applies to VCAT under section 233A of the Residential Tenancies Act for an order to terminate the lease, VCAT may also include an order that the landlord or the agent must allow the affected person to access the rented premises to remove their belongings.

Listing on tenancy database

If the affected person applies to VCAT under section 233A of the Residential Tenancies Act for an order to terminate the lease, VCAT may also include an order that the landlord or the agent must not list information about the affected person on a residential tenancy database.

The law

Temporary COVID-19 Measures

Reduction of fixed-term lease by VCAT: Section 543, Residential Tenancies Act 1997 [AustLII website]
Tenant’s notice of intention to vacate: Section 545, Residential Tenancies Act 1997 [AustLII website] (to be read with amendments made by Regulation 39, Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020

Permanent Provisions of the Residential Tenancies Act:

Damage: Section 61, Residential Tenancies Act 1997 [AustLII website]
Assignment: Section 81 and Section 82, Residential Tenancies Act 1997 [AustLII website]
Termination by agreement: Section 217, Residential Tenancies Act 1997 [AustLII website]
Termination by consent: Section 218, Residential Tenancies Act 1997 [AustLII website]
Termination of lease by VCAT: Section 233A, Residential Tenancies Act 1997 [AustLII website]
VCAT orders: Section 233B, Residential Tenancies Act 1997 [AustLII website]
Liabilities: Section 233C, Residential Tenancies Act 1997 [AustLII website]
Cross-examinations: Section 233D, Residential Tenancies Act 1997 [AustLII website]
Reduction of fixed-term lease by VCAT: Section 234, Residential Tenancies Act 1997 [AustLII website]
Tenant’s notice of intention to vacate: Section 235, Residential Tenancies Act 1997 [AustLII website]
General dispute at VCAT: Section 452, Residential Tenancies Act 1997 [AustLII website]
Apportionable claims: Part IVAA Wrongs Act 1958 [AustLII website]

This information is a guide only and should not be used as a substitute for professional legal advice.

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