If breaking a fixed lease without grounds, you’ll find the ACT does stipulate that the landlord is entitled to compensation for the loss of rent and reletting costs (inclusive of advertising costs, and capped to one weeks rent). Whilst it sounds like they aren’t approaching the situation in the best manner, you are still liable for these costs. How they go about collecting these costs, I don’t know. Tribunal perhaps? Whilst the ACT may not explicitly state they can withhold the bond until a new tenant is found, they can withhold for a dispute, which may be the grounds on which they are refusing to release the bond?

Was it Badenoch? Come on, name and shame.

I’m not expert on this, but I think they may be able to insist you pay the remain rent until the end of the lease, or until they can find another tenant (whichever comes first).
Division 4.3 of the Residential Tenancies Act 1997 gives provision for the tenant to terminate a fixed term lease, but each instance appears to require application through ACAT, and only for things like a breach of conditions by the landlord/agent, significant hardship, etc. – ie. NOT “we just decided to move out early and live someplace else”
Division 4.6 may also be relevant if you “abandon” the property in which case the landlord/agent may be able to apply to ACAT for compensation for the loss of the rent had the agreement continued to the end of its term (ie. the remaining 6 weeks) AND compensation for the reasonable costs of advertising the premises for lease and of giving a right to occupy the premises to another person – though in your case, you may argue that they would have been advertising anyway, just 6 weeks later.
Have a look at the legislation here:
http://www.legislation.act.gov.au/a/1997-84/current/pdf/1997-84.pdf

Could we stop referring to what are presumably real estate agents as “real estates”? A real estate is a block of land, possibly with structures affixed. An inanimate object. You can’t talk to, argue with, or contract with a real estate. With an estate agent, this is at least theoretically possible.

This has been a public service announcement.

arescarti42 said :

Was it Badenoch? Come on, name and shame.

Personally, i want OP named and shamed.. Don’t ever enter into a legally binding contract with this person.

Badenoch – you were right.
Readvertising costs is a bought forward cost as you said. As we only broke the lease by weeks, they would have had to have paid these then anyway. Thats why they have suddently gotten rid of that cost as it wouldnt have stood up in the tribunal.
I agree, the landlord is entitled to compensation for his loses for the period the property has been vacant – although this does need to be determined by the tribinal, and is not classified as rent.As for the bond – who knows what they ar trying to do, other than be a pain in the backside. Its a brand new property, well 11 months old – no wonder they cant find anyone, im positive people avoid renting anything through them. Thanks everyone.

Leiulu said :

Badenoch – you were right.
Readvertising costs is a bought forward cost as you said. As we only broke the lease by weeks, they would have had to have paid these then anyway. Thats why they have suddently gotten rid of that cost as it wouldnt have stood up in the tribunal.
I agree, the landlord is entitled to compensation for his loses for the period the property has been vacant – although this does need to be determined by the tribinal, and is not classified as rent.As for the bond – who knows what they ar trying to do, other than be a pain in the backside. Its a brand new property, well 11 months old – no wonder they cant find anyone, im positive people avoid renting anything through them. Thanks everyone.

Weeks? – 6 weeks?… that is actually a long time when you are counting things like rent.

TheDancingDjinn said :

arescarti42 said :

Was it Badenoch? Come on, name and shame.

Personally, i want OP named and shamed.. Don’t ever enter into a legally binding contract with this person.

Personal circumstances change, its not like I am the first to do this, hence why there is clauses in the Act to cover such things. It was 6 weeks, not 6 months!

TheDancingDjinn said :

Leiulu said :

Badenoch – you were right.
Readvertising costs is a bought forward cost as you said. As we only broke the lease by weeks, they would have had to have paid these then anyway. Thats why they have suddently gotten rid of that cost as it wouldnt have stood up in the tribunal.
I agree, the landlord is entitled to compensation for his loses for the period the property has been vacant – although this does need to be determined by the tribinal, and is not classified as rent.As for the bond – who knows what they ar trying to do, other than be a pain in the backside. Its a brand new property, well 11 months old – no wonder they cant find anyone, im positive people avoid renting anything through them. Thanks everyone.

Weeks? – 6 weeks?… that is actually a long time when you are counting things like rent.

It still doesnt justify being bullied and being threatened by them. Or do you feel it is a decent justification?

Leiulu said :

I agree, the landlord is entitled to compensation for his loses for the period the property has been vacant – although this does need to be determined by the tribinal, and is not classified as rent.As for the bond – who knows what they ar trying to do, other than be a pain in the backside.

The losses for the period the property has been vacant may not be ‘classified as rent’ but that will almost certainly form the basis for the assessment of the actual loss.

As for the bond, they’re (rightfully) going to deduct any amount that you owe them at the end of the agreement. So if you’re refusing to pay what you agreed to under the lease, of course they’re not going to refund your bond – that’s what it’s for!

While I wouldn’t deal with Badenoch since one of their staff used one of their company vehicles to run me off the road last year, and their office failed to respond to my letter about the incident, I must say they don’t seem to be doing anything inappropriate in this instance.

I wonder if you’d have given them the courtesy you expect them to show you if *they* had terminated the agreement six weeks early?!

tim_c said :

Leiulu said :

I agree, the landlord is entitled to compensation for his loses for the period the property has been vacant – although this does need to be determined by the tribinal, and is not classified as rent.As for the bond – who knows what they ar trying to do, other than be a pain in the backside.

The losses for the period the property has been vacant may not be ‘classified as rent’ but that will almost certainly form the basis for the assessment of the actual loss.

As for the bond, they’re (rightfully) going to deduct any amount that you owe them at the end of the agreement. So if you’re refusing to pay what you agreed to under the lease, of course they’re not going to refund your bond – that’s what it’s for!

While I wouldn’t deal with Badenoch since one of their staff used one of their company vehicles to run me off the road last year, and their office failed to respond to my letter about the incident, I must say they don’t seem to be doing anything inappropriate in this instance.

I wonder if you’d have given them the courtesy you expect them to show you if *they* had terminated the agreement six weeks early?!

Thanks Tim. We have been exceptionally courteous to them throughtout this period. Making sure the property was spotless twice weekly for showings and always allowing them in for the period they requested.

The agreement states that “would be entitled to compensation under this Act is not entitled to the compensation, or part of it, where the loss, or part of the los, to be compensated could have been reasonably avoided.” They arent doing this.

We paid rent up until the day we vacated. Bond is only allowed to be kept for unpaid rent (up until the day the property is vacated, even if breaking a lease) or for damages. It cant be held for compensation.

I hope everything was ok after the accident!

Leiulu said :

Badenoch – you were right.

Not the first to get taken for a ride by this lot. Friends of mine in Gungahlin had loads of issues with them during their tenancy and when it came time to move.

Good luck Leiulu. If you have applied to ORS for the release of the bond yourself (I’m not 100% sure but I think tenants can do this and it sounds as if you have?) then I wouldn’t be surprised if Badenoch suddenly realise that there’s no problem with paying out your bond after all. Otherwise they will need to be very confident their reasons will stand up at ACAT. If it gets to the tribunal, sounds like things can only work out better than right now!

In my experience, when situations like this arise, agents tend to get on a go slow. So, for example, you may provide notice that you intend to vacate early, in full knowledge that you could be up for 6 weeks rent. The agent will say ‘Yippee’ six weeks guaranteed rent and no tenant to deal with. They won’t make any efforts to fast track new occupants into the place to help both the vacating tenant and indeed the landlord. I would bet that the applications they have from anyone wanting the place are still sitting on someone’s desk unchecked.

Whilst frustrating, I’m not sure there is much you can do. You will be paying 6 weeks rent for breaking the lease. They probably can justify hanging on to your bond as they may feel that until you pay up, you are still a risk. You could offer to pay four weeks and then let them keep your bond (if in deed your bond is 2 weeks rent).

So, you are breaking a legally binding contract, and complaining that they want you to pay out the rest of the lease and wont return your bond?

Seriously, while I have no love for real estate agents, I have just as little for selfish tenants. That house is a source of income for somebody. They probably have a mortgage to pay on it, which your rent is used for. But hey, you don’t care about the financial hardship you are putting somebody else through, as long as you get what you want and aren’t inconvenienced.

Has anyone had issues with real estate agents not taking you and your details off there data base? i have asked several times but continue to recieve paper mail, email and text messages. If it continues i think i will name the individual. As i have asked him directly several times and he has agreed to it.

I’m just worried if i do name him there may be consequences.

The saddest thing about this is that BRE have been pulling these moves for years– I had my own run in with them as a tenent almost ten years ago and bettered them only by knowing my rights, telling them that they were breaking the Act and not backing down through tribunal, which we got a positive result from.

Good luck with your issue– know that you are not alone with battling with Heather and her mob, they truly are dreadful property managers– for both tenants and owners.

jett18 said :

Good luck with your issue– know that you are not alone with battling with Heather and her mob, they truly are dreadful property managers– for both tenants and owners.

Well actually, no. As an owner who is renting out a property through this agent they came to me highly recommended and I have not had one ounce of problem with them or the tenants they are managing on my behalf, so please don’t generalise.

tim_c said :

While I wouldn’t deal with Badenoch since one of their staff used one of their company vehicles to run me off the road last year, and their office failed to respond to my letter about the incident,

Kudos to Maloneys Real Estate – I had the same thing happen to me late last year and got an apologetic email the same morning.

bleebleeblee said :

Good luck Leiulu. If you have applied to ORS for the release of the bond yourself (I’m not 100% sure but I think tenants can do this and it sounds as if you have?) then I wouldn’t be surprised if Badenoch suddenly realise that there’s no problem with paying out your bond after all. Otherwise they will need to be very confident their reasons will stand up at ACAT. If it gets to the tribunal, sounds like things can only work out better than right now!

Yes we have, with a copy of the final inspection report. Good point. Cant get any worse

iii said :

Has anyone had issues with real estate agents not taking you and your details off there data base? i have asked several times but continue to recieve paper mail, email and text messages. If it continues i think i will name the individual. As i have asked him directly several times and he has agreed to it.

I’m just worried if i do name him there may be consequences.

You can take it to the Tribunal or ACAT who can send them an order to remove your details.

jett18 said :

The saddest thing about this is that BRE have been pulling these moves for years– I had my own run in with them as a tenent almost ten years ago and bettered them only by knowing my rights, telling them that they were breaking the Act and not backing down through tribunal, which we got a positive result from.

Good luck with your issue– know that you are not alone with battling with Heather and her mob, they truly are dreadful property managers– for both tenants and owners.

Thanks – I didnt think we were – heard so many horror stories about them. We were perfect tenants until now. They even offered us a cleaning job the place was that spotless.

Hi there

Oh dear…yes RE agents can be really difficult. I have taken a RE Agent to VCAT (obviously in Vic not ACT) and been successful.

A few points on your post that may help:
- they can’t actually have open access to your place for heaps of inspections. the lease usually says reasonable access which shouldn’t be more than 1-3 inspections prior to your departure. if it has been more than this, point it out and refuse access. as you’re paying rent, they can’t force their way in.

- asking for a week’s rent to re-let/readvertise is an illegal fee. refuse to pay it and if they persist, then take them to ACAT. they have no grounds to pursue it so they will usually back down. all leases and the tenancy act state it is illegal to charge a fee to commence or cease a lease.

- what they can charge for is LOSS of income. meaning they need to prove they have lost something as a result of you leaving. re-advertising, they would have to do anyway… if there is a gap between you leaving and the new tenant arriving, that is all they are entitled to. if there is no gap, they’re not entitled to anything as there hasn’t been a loss incurred as a result of you ending the lease early.

- they can not keep your bond to cover potential losses. it needs to be released to you.

but long story short, i have been successful at VCAT and also had an RE agent try and pull the “releasing fee” which i flatly refused to pay and they let it go

good luck my dear!!!

I have used ACAT to claim for loss of enjoyment of the use of the premises due to the real estate agent being unable to repair heating in winter (noting it was considered an urgent repair). Whilst it wasn’t actually the real estate agent that neglected their duty (it was in fact the usual story of too few tradies in Canberra to make the industry competitive and therefore they charge like a wounded bull and forget about customer service). I also had a claim in train with ACAT for another agent’s failure to hand me premises for a new tenancy over in a reasonable state (although we settled out of court) and that is another story… but I digress… you need to remember Leiulu that there are three sides to every story and there are three stakeholders in your tenancy: you, the agent, and the landlord.

I rent but I also own property and use a property manager as my agent so I see all three sides. I agree with many here that breaking a lease (regardless of whether it is 6 weeks or 6 months) is still breaking a contract. I am sure the agent could have handled your situation more professionally but the landlord is completely entitled to claim for re-letting costs etc. and if there are other problems besides just breaking the lease they can claim compensations etc.

You say you broke the lease 6 weeks early so that would have meant you gave notice at least 21 days prior to that 6 weeks (or whatever the minimum notice period is under your fixed term) so the agent and landlord would have known you were leaving 9 weeks before end of fixed term. Am I right?! And remember you can’t just up and leave after a fixed term anyway (it is not like the tenancy expires) so unless I am mistaken you would merely roll over into a periodic lease which still requires you to give at least 21 days notice and need to keep place clean for showings, etc etc. So it seems to me that it is a full 6 weeks of tenancy lost whichever way you read it. 42 days might not sound much to you but if you own the property and expect say $500 week in rent from someone renting it then that equates to $3,000 in mortgage repayments for your investment that you are expecting and would now have to otherwise find.

So nonetheless they can’t withhold bond for no good reason so put in your claim with ORS and if you think things are still unfair go to ACAT. It is your word against theirs. Who knows you could also learn something. And remember agents are just that, agents (representatives) on behalf of the owner, agents can be arrogant or rude and in many cases just plain stupid and completely ignorant of their obligations under the Tenancy Act but such is life.

Grimm said :

So, you are breaking a legally binding contract, and complaining that they want you to pay out the rest of the lease and wont return your bond?

Seriously, while I have no love for real estate agents, I have just as little for selfish tenants. That house is a source of income for somebody. They probably have a mortgage to pay on it, which your rent is used for. But hey, you don’t care about the financial hardship you are putting somebody else through, as long as you get what you want and aren’t inconvenienced.

Geeze, it’s not like someone put a gun to their head and told them to buy up investment properties. Renting properties comes with risk, that’s what bond is used for .. but bullying tenants and being generally argumentative and belligerent is not the best way to deal with a stressful situation, especially if ( as the OP says) the tenants were excellent throughout their lease. And breaking a lease 6 weeks early is not the crisis you appear to be making it out to be.

schmeah said :

Grimm said :

So, you are breaking a legally binding contract, and complaining that they want you to pay out the rest of the lease and wont return your bond?

Seriously, while I have no love for real estate agents, I have just as little for selfish tenants. That house is a source of income for somebody. They probably have a mortgage to pay on it, which your rent is used for. But hey, you don’t care about the financial hardship you are putting somebody else through, as long as you get what you want and aren’t inconvenienced.

Geeze, it’s not like someone put a gun to their head and told them to buy up investment properties. Renting properties comes with risk, that’s what bond is used for .. but bullying tenants and being generally argumentative and belligerent is not the best way to deal with a stressful situation, especially if ( as the OP says) the tenants were excellent throughout their lease. And breaking a lease 6 weeks early is not the crisis you appear to be making it out to be.

“this is what the bond is for”? But she wants the bond too, as well as leaving owner without a tenant for almost 2 months… as the above poster points out.. that’s a lot of mortgage payments.
And there is no justification to ripping someone off, just because they happen to own more than one home.

TheDancingDjinn said :

And there is no justification to ripping someone off, just because they happen to own more than one home.

For goodness sake, the owner is not getting or going to get ripped off.

A tenant is entitled to end a lease early. Provisions exist in the Residential Tenancies Act for this situation.

The owner is entitled to claim compensation from the tenant for the damages they suffer (lost income). However, the owner (and their agent) MUST take action to MINIMISE their loss (attempt to find another tenant).

Ending a lease 6 weeks early is not the end of the world. The owner will not be out of pocket, providing they and their agent fulfil their responsibilities in minimising (reasonably avoid) the damages.

A property manager should be professional enough (chortle) to cope with their responsibilities without becoming unreasonable.

The Standard Terms are quite clear:
“Notice of intention to vacate by tenant
84 (1) If the tenant serves a notice of intention to vacate and vacates the premises in accordance with the notice, the tenancy terminates on the date of vacating the premises.
(2) On receiving a notice of intention to vacate, the lessor may—
(a) accept the notice and accept that the tenancy ends on the date nominated in the notice; or
(b) apply to the tribunal for confirmation of the tenancy agreement, an order for compensation or both. “

At the date the tenancy ends, rent outstanding (to that date) can be deducted from the Bond. If no rent is outstanding to that date, and no damages to the property require repair, the bond should be refunded.

If ACAT is to make a compensation order this would be payable by the tenant, not deductible from a bond refund.

OP should apply under Division 3.4 for release of the bond money, and leave Badenoch to make fools of themselves in disputing.

With so many people posting negative comments about BRE, it makes me wonder why they are still in business.

Surely at some point the tribunal / legislative body needs to step in and do something to minimise this kind of behaviour?

jett18 said :

With so many people posting negative comments about BRE, it makes me wonder why they are still in business.

Surely at some point the tribunal / legislative body needs to step in and do something to minimise this kind of behaviour?

The bar is set quite low…

Leiulu said :

iii said :

Has anyone had issues with real estate agents not taking you and your details off there data base? i have asked several times but continue to recieve paper mail, email and text messages. If it continues i think i will name the individual. As i have asked him directly several times and he has agreed to it.

I’m just worried if i do name him there may be consequences.

You can take it to the Tribunal or ACAT who can send them an order to remove your details.

Thanks for that.