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Diplomatic / posting clause in residential tenancy agreement

By 10 April 2014 17

I am on the verge of taking out a 3 year tenancy on a rental property in Canberra. Having successfully negotiated the rental amount and some capital works with the landlord via the RE agent, I have been lobbed a last minute surprise in the form of a Diplomatic/Posting Clause which gives the landlord the right to evict me on 30 days’ notice. The agent tells me these things are never enacted and furthermore that DFAT insists on the clause as a condition of the landlord’s posting. I want to negotiate the notice period and doubt the agent’s claim that it’s mandatory. Anyone have direct knowledge they can share?

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17 Responses to Diplomatic / posting clause in residential tenancy agreement
#1
JoCo3:32 pm, 10 Apr 14

I think it’s a pretty standard clause, most people know they are being transferred with more notice than that though, so if it happens you ‘should’ get more notice. Also, a tenancy agreement is only valid for 1 year, as far as I now, so they can always increase your rent every 12 months no matter what you’ve agreed to now.

#2
angrymonkey8:55 pm, 10 Apr 14

Interesting one. It is far from standard – it may be common, but not standard. Mostly Defence and DFAT folks, and although it may not be used often it can be used and is used. I know someone who has just rented out an apartment to another Defence couple who were ‘evicted’ from their previous home because the owners OS posting ended early and that clause was enacted. Unpleasant.

I have never rented one of my places out to Embassies etc wanting that clause – no thanks – and if I were in the rental market and looking for somewhere long term I wouldnt want that hanging over my head.

#3
JC9:02 pm, 10 Apr 14

The reason the clause is there is so that if the officer has their posting canceled early, which does happen (change of government priorities etc) then the owner has the right to reoccupy. No unreasonable I would have thought.

As for it being mandatory or not, it is a contract. If you don’t agree to the terms of the contract then you have the right to negotiate, but if the owner doesn’t want to budge nor do you then it is simple, no deal, no house. Time for you to look for somewhere else to live.

BTW DFAT advises their officers for their own protection to have such a clause, it is not a condition of posting as at the end of the day it is the officers own personal financial affairs.

#4
Apsara9:12 pm, 10 Apr 14

It is a requirement for govt workers to have this clause inserted into the lease when going on OS postings, for good reason.

I was one of those people who needed it. Three weeks into our overseas posting, my husband died. So, unfortunately I had to invoke the clause. My tenants were very unhappy about it and refused to move out. I had to take them to ACAT and have them evicted. They wanted compensation for their loss. The court agreed that the clause was valid and they had to move out.

I know of another couple who were also require to leave post as their dept closed their representation down in that country after 12 months away. They were given a month’s notice.

These are the only two cases I know of and I’m sure, where possible, they would try and give you as much notice. However, you will need to weigh up the risk and likelihood of this happening.

#5
NoImRight10:02 am, 11 Apr 14

Its not compulsory but it is quite common. You have the right to refuse of course. Just as the owner has the right to insist. How bad do you want the property?

#6
Wilco6:17 pm, 11 Apr 14

Might be worth enquiring if the lessor is on a fixed term posting and, if so, when are they expected to return. If return date is known at the time the lease is drawn, and the date is within the term of the lease and not disclosed, both the lessor and agent may have engaged in misleading and deceptive conduct under the Australian Consumer Law.

#7
Apsara8:21 pm, 11 Apr 14

Wilco – most postings are fixed term, hence needing this clause because just in case things happen – like the govt changes their mind, some people are sent home in disgrace or people die etc. The ‘fixed term posting’ is just a guide, it’s not about deceptive conduct.

#8
Tetranitrate11:08 pm, 11 Apr 14

Lobbing it at the OP at the last minute AFTER they’d negotiated the rental amount is a pretty dirty move, it should have been on the table from the beginning so that the OP could take that into account when considering what the house is ‘worth’ to them.

Given that it’s a basically a renters market now, I really can’t see why anyone would stand for it, there are plenty of decent, reasonably priced houses to rent out there and most of them won’t have a clause like that attached.
The OP should at least look at renegotiating the price given the out-of-the-blue addition of this clause.

#9
Queen_of_the_Bun4:22 pm, 12 Apr 14

A three-year tenancy agreement is pretty unusual and probably not in the best interests of either the landlord or the tenant.

#10
LurkerGal6:29 pm, 12 Apr 14

We will be putting the same clause in our rental contract. Sometimes postings change, or it becomes unsafe to stay there. So it could be enforced (it was with a friend of mine). But you will find in most leases you can be asked to move if the landlord wants to move back in.

#11
Nylex_Clock8:51 am, 13 Apr 14

People use these sorts of clauses to evict tenants on a whim all the time.

Rental properties are starting to pile up, and vacancy rates are high. Dig in your heels. If they decide to come home early, they can rent something while they perform under the contract they are signing with you instead of inconveniencing you.

#12
Wilco1:22 pm, 13 Apr 14

Apsara said :

Wilco – most postings are fixed term, hence needing this clause because just in case things happen – like the govt changes their mind, some people are sent home in disgrace or people die etc. The ‘fixed term posting’ is just a guide, it’s not about deceptive conduct.

Aspara

With respect, that’s not what I said. If a lessor knows their fixed term posting expires during a fixed term lease, insists on a posting clause, does not disclose the known return date to the tenant at the time the lease is signed, returns during the currency of the fixed term lease and attempts to exercise the posting clause, then that’s arguably misleading and deceptive conduct under the Australian Consumer Law. Applies to the agent as well if the agent knew what was going on at the time the lease was signed and was silent on the matter.

#13
NoImRight12:20 pm, 14 Apr 14

Wilco said :

Apsara said :

Wilco – most postings are fixed term, hence needing this clause because just in case things happen – like the govt changes their mind, some people are sent home in disgrace or people die etc. The ‘fixed term posting’ is just a guide, it’s not about deceptive conduct.

Aspara

With respect, that’s not what I said. If a lessor knows their fixed term posting expires during a fixed term lease, insists on a posting clause, does not disclose the known return date to the tenant at the time the lease is signed, returns during the currency of the fixed term lease and attempts to exercise the posting clause, then that’s arguably misleading and deceptive conduct under the Australian Consumer Law. Applies to the agent as well if the agent knew what was going on at the time the lease was signed and was silent on the matter.

Most postings are 3 years. It unlikely, but not impossible, that the OP is negotiating a 3 year lease agreement.

#14
dkNigs3:27 pm, 14 Apr 14

Any idea where they are posted? You might want to be more cautious if it’s a turbulent part of the world, but if it’s a first world western country, the only real reason they’d be sent home is a change of govt/political reason, or they did something terrible.

We got a two year lease on our place, it might be unusual, but we absolutely hated moving, had been in our previous place 7 years, and didn’t want to feel like we were moving into a place the owner might boot us out of and move back into a year later. Luckily even though rents went down, we got ourselves a pretty competitive price at the beginning so we’re still on par a year later.

#15
p14:55 pm, 14 Apr 14

I thought that one of the standard legitimate reasons for a landlord to break a tennancy agreement was for the owner to resume living in the property?

#16
Grrrr6:49 pm, 14 Apr 14

I’m with Tetranitrate. If the agent wants to add the clause, tell them to subtract money from the weekly amount.

If the clauses “are never enacted” then why are they putting them in in the first place? The landlord won’t want to negotiate the notice period, but perhaps you can negotiate to get your last month’s rent free if the clause is enacted?

Is the 3 year lease your choice, or all that’s being offered? Like Queen_Of_The_Bun suggests, in this market a 3 year lease is probably not in your interest as rents could drop a lot over the next couple of years.

#17
Grrrr6:59 pm, 14 Apr 14

p1 said :

I thought that one of the standard legitimate reasons for a landlord to break a tennancy agreement was for the owner to resume living in the property?

Not quite.

Leases are typically fixed term, and after that term ends then they go periodic (IE month-to-month.) If the lease is periodic then “family moving in” allows the landlord to give 4 weeks notice instead of 8. However, if the lease is still in it’s fixed term then it’s ~6 months notice required regardless.

I’m a little confused as to how the “Diplomatic Clause” works (as apparently it does) because the standard tenancy agreement says it’s rules (like the ones I just mentioned) are unable to be voided even if a tenant signs something saying otherwise.

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