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Notice to vacate: what do you do?

By George Hadgelias

Getting notice to vacate can come as a nasty surprise for tenants, but it doesn’t have to be all bad news.

From time to time, landlords will give tenants notice to vacate when a lease ends or, in some cases, before the agreement expires.

The notice to vacate must be given by the landlord to the tenant either before the end of the lease or when the lease ends. This means there has to be a mutual agreement with the tenant or written notice should be provided.

It is an unfortunate reality, however there are strict rules and timeframes to ensure both parties are protected.

The amount of time a tenant is given to vacate the property varies significantly, depending on the reason and the state the rental property is located in.

Generally, in serious cases where property has been maliciously damaged or the tenants health is at risk, renters can be ordered from the premises immediately.

Alternatively, if the house is being put up for sale or no reason is given, tenants will be offered between 60 to 120 days to move, depending on the jurisdiction.

In most cases, a notice to vacate comes as a shock but the situation can also deliver some unexpected benefits for stellar tenants.

However, if the rent is overdue, the property damaged or the rental used for illegal purposes, the landlord is likely to have the law on their side.

What you can do if given a notice to vacate

If a landlord wants a tenant to move out of the property, they have to give you a valid notice to vacate.

The length of the notice period depends on why the landlord is giving you notice. It also depends on if you have a fixed-term tenancy agreement.

As a tenant, you don’t have to move out just because you were given a notice to vacate.

If a landlord wants to evict you, they have to apply to their local Civil and Administrative Tribunal first and convince the Tribunal that they should be granted a possession order.

In the meantime, here are some things you can do if you receive a notice to vacate:

1. Ask for compensation

If a landlord wants to sell their property, the tenant has the right to demand sufficient notice and they can even ask for compensation.

Investment property advisor Andrew Crossley says landlords commonly sell properties so they can live in them or to ease financial pressure.

Whatever the situation, Crossley says mutual respect can result in a happy outcome.

“Hopefully an amicable solution is found – perhaps the agent can help the tenant find another property and perhaps the landlord can pay for their moving costs as a consolation or maybe help contribute by giving them the equivalent of what’s left on the lease towards their moving costs,” he says.

In most cases tenants can negotiate good terms, but should consider factors including the likelihood of open house inspections if a house is put up for sale.

2. Call your leasing agent

If the tenant is happy to move, a first point of call should be the leasing agent.

Agents can help tenants find another property and keep them informed of new rentals coming on to their list.

Agents are particularly motivated to help good tenants.

Crossley says agents are particularly motivated to help good tenants.

“The agent may not want to lose that tenant to another real estate agency if they’re a good tenant,” he says.

3. Challenge a tenant notice to vacate

If a tenant is served a notice before their lease is due to end and they believe it is invalid they can challenge in the state tribunal.

In most states action must be taken within 30 days of receiving the document and tenants must have a valid reason for contesting the order.

Leaving a rental after you receive a vacate notice

Unfortunately, if a tenant receives a notice to vacate before the end of their lease it does not mean they can move out whenever they want.

If they leave without consulting the landlord or real estate agent and do not continue to pay rent, this is viewed as breaching the lease agreement.

However, renters do have the opportunity to negotiate a different expiry date with the landlord after receiving a notice, which is likely to be accepted in place of compensation.

You are also required to fulfil the normal duties when leaving a property including cleaning the premises, unless the landlord states otherwise.

If any agreement is made, both the tenant and landlord should make sure the new arrangements are in writing to avoid any disputes later on.

Your rights and responsibilities

Before landlords issue notices to vacate or tenants dispute such notices, both parties need to consult their state or territory laws.

Emma Heuston, principal lawyer at LegalVision, says each party has rights and responsibilities.

“The notice period will be dependent on the term of the lease and the reason for the termination and this does vary from state to state,” she says.

“The common thing with each state and territory residential tenancy act is there is a right to appeal to a tribunal specific to that state or territory.”

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