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Ask Deborah Awyzio Your Own Question
Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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There. I'm an American citizen but I worked abroad in Perth.

Customer Question

Hi there. I'm an American citizen but I worked abroad in Perth. I had rented an apartment and signed a contract but had to leave early in the contract to return home. I felt like the real estate agency intentionally hid all the conditions from me and is trying to recover my bond and additional money for rent even after I found someone to fill in for the remainder of my lease. I feel like there was no compromise and, if anything, willful misconduct. Do I have any way to defend myself?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Afternoon, My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.Have you assigned the lease over to them and has the landlord agreed to this?
Customer: replied 1 year ago.
I signed a break of lease form which the lessor said would be a "worst case scenario" condition that she sent me and said I must sign if I want to break my lease early. But I was still having to pay rent even after finding someone which to me seems just the same as if I never broke the lease.If this is not legal advice (I know US and UK/Australian English will be written a bit differently) then at least confirm with me that you are qualified to answer my question and assist in my inquiry. I can provide the documents and e-mail history that we've had, but at this moment she is attempting to recover my bond deposit without my consent and I feel like my options were intentionally withheld in the interest of the leasing agency.
Expert:  Leon replied 1 year ago.
Good Morning.From what you have told me, if you have found a new tenant and they are paying the rent then there is no breach of lease. If there is no assignment of lease, meaning a proper transfer to the new tenant, then you remain the tenant on the lease and until the lease is over you cannot get your bond back. If the lease has been assigned or a new lease entered by the new tenant then you are entitled to your bond back. If you have terminated you lease early and that was agreed to by the landlord again you are entitled to your bond back. I assume you are back in the US?
Customer: replied 1 year ago.
The first part is true. I found a new tenant but they didn't qualify apparently. I didn't have control over whether or not the leasing agency would accept their application or not. They didn't find a new person until my lease was almost over. It seems like they didn't need to try to find someone because they could always hold me accountable for rent. They gave me a break lease form in "worst case scenario" terms for me, which ends up not even being worst case as they're now wanting to charge me, it seems, more than what the break lease form mentions (if I understand it correctly).Perhaps it would be easiest to upload some documents here for you to look at. Could you tell me if you are familiar with REIWA laws? Here's a link http://reiwa.com.au/information/renters/understanding-your-rights-and-responsibilities-as-a-tenant/
Expert:  Leon replied 1 year ago.
Good Morning, Did you sign the break lease form and did they also song it?You can email me at the following***@******.***
Expert:  Leon replied 1 year ago.
The tenancy laws are the same in each state. If you leave a premisses before the end of the lease without the agreement of the landlord to end the lease on the date you leave you are liable for the rent until a new tenant is found or to the end of the lease. If you have signed an early termination and they have a swell you are only liable for the fee and rent to the last day.
Customer: replied 1 year ago.
Here you can see the last documents I was sent after returning to the US. The last one I signed in Perth on April 10th, the day I left, which is the break lease form. It says "The tenant wishes to vacate possession of the premises prior to the end of the fixed term of the lease but acknowledges that the lessor will not give consent to early termination of the lease unless:
a) all rent is paid until premises is re-let
b) the tenant continues to maintain the premesis pursuant to the lease
c) the tenant reimburses the lessor's expenses to an amount of $950 for endeavoring to re-let the premises
d) the tenant reimburses to the lessor the costs of inspection and inventory fee (left blank)
e) the tenant pays advertising costs in advance of the lessor endeavoring of $99So at this point I don't know I have any say for myself. My bond was $1360 but they're asking for that and $514.15 on top of that. I'm wondering if there's anything I can do.
Expert:  Leon replied 1 year ago.
Do you have any intention of returning to WA?
Customer: replied 1 year ago.
Not any time soon. I have friends and contacts there, but no urgent need or desire to go back.
Expert:  Leon replied 1 year ago.
Good AfternoonThey cannot do much to you if you refuse to pay.The cost of suing you is not worth it and if they do they cannot collect the money. They may blacklist you for rental accommodation. Deny you owe the money. Rely on the notice and advise them you are prepared to pay only the value of the bond and no more. There is very little they can do. I know it is awful for them to rest you like this and I suspect it is simply a grab for cash because the agent failed to do his work. I hope this makes sense?
Customer: replied 1 year ago.
Yes, it does. Thanks. So to get this straight, it won't be possible for me to recover my bond? And then also it won't be possible for them (or so difficult it's not in their best interest) to collect on the remaining funds they say I owe them?Basically, should I just, as you say, deny owing the additional money and leave it at that? It's not possible for them to collect across borders?
Expert:  Leon replied 1 year ago.
Good Afternoon. They will have a right to claim an amount. I cannot read the Notice to end the tenancy early very clearly. But if they have approved it then you will have to pay the amount on that Notice.You can dispute the amount they want on the bond but in the end that will have to be determined in a court in WA and you have to be present or pay a solicitor to represent you which will cost more than the bond.They can claim the bond but if you refuse to allow it to be released they will have to go to court.It will be hard for them to get anything more than the bond as you are in Australia. One last question. Do you have any assets in Australia?
Customer: replied 1 year ago.
So to understand you clearly, it won't be possible to retrieve the bond?
Second, is there more information you need that you cannot, and what? (sorry it was not clear when sent to me)
Third, if they insist on an amount greater than the bond, should I be concerned about being held liable for an additional amount?To answer your question, I still save money in one of my Australian accounts (the one to pay for this service actually, which might have been charged in US dollars :-) )
Expert:  Leon replied 1 year ago.
Good Afternoon. If you wish to get your bond back, you will need to request it. The landlord, from what you have shown me, is applying for the bond are to be released to him. If you wish to claim the bond you will need to take the matter to court in Western Australia for the court to decide who should receive. In short if you are not prepared to return to Western Australia and fives in court for your bond, you will not get it back.What you have typed it is clear that you are responsible for the payment of all rent until the premises relet, you reimburse them an amount of $950 to relet, and all advertising costs of $99. This means you agreed to pay them the total sum of $1049 to find a new tenant plus all rent up to and including the date the tenant moves in.In order for you to calculate the correct amount owing, if the rent was paid up-to-date when you signed the form, then you need to know when the property was really let and you would be liable for rent up to that date.I would suggest if you have Internet access to that account that you open a new account over the Internet and transfer the money into that. If they have details of this account and make a judgement they may be able to garnishee the money with the court order. I would simply suggest you tell them that you will not be paying anything extra and based on information given me, release the bond in full and final settlement to them.The additional amount may be a liability to you but unless you know how long it took them to find a tenant after you left you will never know.
Customer: replied 1 year ago.
Ok thanks for the details.So to follow up, I did NOT give them any information on the account I have my money in, so of course I paid from a different account. Unless they would have some way to be authorized to find out what accounts I have in Australia, we're good.Finally, since I cannot retrieve my bond and at least I do not want to owe the remaining balance, I should claim to deny owing this and leave it at that. If they decide to pursue it anyways then they cannot truly do so, considering it would be against their best interest? I know this part seems repetitive but bear with me.
Expert:  Leon replied 1 year ago.
Good Afternoon, You tell them nothing about the money you have. You deny what you owe them. It would cost them more to chase you than the money they say you owe,
Customer: replied 1 year ago.
And perhaps the final question, if I do not respond at all now assuming they realize this and don't further pursue, but indeed they do, will they be able to claim more than the amount they claimed originally due to the time lost?
Expert:  Leon replied 1 year ago.
Good Afternoon They have 6 years in which they can pursue it in the courts. After 6 years the limitation period prevents them suing you.
Customer: replied 1 year ago.
Yes, that's the same as the US, but that doesn't really answer my question. It's not "yes" or "no," but rather "can they ask for more than the $515 they originally asked for?
Expert:  Leon replied 1 year ago.
Good Afternoon, If they have given you in writing that they only want $515.00 you can rely on this and they can only take what the agreement is.
Customer: replied 1 year ago.
Like this?
Expert:  Leon replied 1 year ago.
the email says they will sue you for the balance over the bondDo you have anything that says if you terminate the lease they will accept $X in full settlement
Customer: replied 1 year ago.
what i sent you is all i have, so...is there a way they can ask for more than that? the email said 514 something
Expert:  Leon replied 1 year ago.
I read it that they will sue for that and it is after they have the bond. So they want that in addition to the bond. If that is all they wanted they would be seeking that from the bond and you to get the balance. They want the bond plus that
Customer: replied 1 year ago.
right, but you said they cannot actually get that since im in the us, so...in the end should i just pay it off now or ignore it because they truly have no power to get it since im in the US?
Expert:  Leon replied 1 year ago.
Yes if you are in the US the Australian Court cannot enforce it against you overseas.They have to spend money to get orders registered in the US and then get it form you. The cost would not be worth their while. Tell then you are not paying any more and you deny you owe it. The choice is yours.
Customer: replied 1 year ago.
What do you mean by "the choice is yours?" basically yes, I could pay that amount but because they have no right to collect here then it's up to my own risk that I choose whether or not to pay it?
Expert:  Leon replied 1 year ago.
It is your choice if you wish to deny it and refuse to pay or pay it. I think they will not chase you as economically it is not viable.
Customer: replied 1 year ago.
Ok thanks, ***** ***** knew that.