I am in NSW and have a tenant leasing a Motel on a Commercial Lease which states that I have the right to terminate the lease where the tenant has failed to pay rent for a period in excess of 14 days. As of yesterday morning (10 May) rent payments due 20, 27 April and 5th May had not been received. Accordingly I prepared a notice of Termination and drove 230 kilometres to the Motel to serve the Notice and demand possession of the property. No rent payment was in my account prior to leaving, but by the time I arrived, a rent payment made the previous day had hit my bank account. Although this means the tenant was now only 13 days in arrears, they had in fact failed to pay rent for than 14 days, therefore I still served the Notice of Termination. Eventually we agreed the tenants could stay on a week to week basis if they paid the further 2 weeks outstanding plus the rent payment due today, 11 May. We amended the notice of Termination to that effect and both the lessees and tenants signed the notice. Today the tenant is claiming that as he was only 13 days in arrears when the Notice was served it is not enforceable. The lease states I have the right to re-enter or continue as a periodic agreement "Where the tenant has failed to pay rent or any other money due under this lease for a period in excess of fourteen (14) days, whether formally demanded or not." My contention is that that as that payment was in fact made 20 days after it fell due, the condition of failing to pay rent for more than 14 days was still valid, and the Notice of Termination remains enforceable.
BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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