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I need some advice about my rights. I am in the process of…

I need some advice...

I need some advice about my rights. I am in the process of leasing a property in Melbourne, and I wish not to proceed. (It's a bit more complicated than that.)

Lawyer's Assistant: What state/territory are you in? It matters because laws vary by location.

We are in Melbourne, VIC

Lawyer's Assistant: What steps have you taken so far?

OK. We have siged a lease agreement and paid a deposit. After this, the agent discovered that urgent repairs were needed. So we did not take possession on the start date specified in the lease agreement. The repairs are currently taking place, and we have verbally agreed a move in date in a week's time. We have not provided a bond or been given keys.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

First of all, how will I be expected to pay for the advice?

Lawyer's Assistant: When we are ready I'll take you to the appropriate web page.

So I'll pay on that webpage before being put in touch with the lawyer? (Sorry, I'm new to this service.)

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Answered in 7 minutes by:
3/26/2018
John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 3,327
Experience: Principal Lawyer at Legal AU Pty Ltd
Verified

Hi, my name is***** solicitor in Melbourne. Thank you for using Just Answer, and I will answer your question today, and ask various questions to narrow the issues in your post raised.

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Customer reply replied 3 months ago
Hello John, thank you for talking to us.

is the lease Residential or Commerical ?

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Customer reply replied 3 months ago
Residential.

The facts that you have not provided a bond or been give keys, and technically not taking possession of the property, and the fact that there were urgent repairs, in an implied respect entitles to you to terminate the lease as the property was not fit for its purposes upon signing the lease.

If you want to terminate the lease you need to issue notice in writing asap that you will take possession of the property.

The tricky downside is that the agent could claim re-advertising costs associated with reletting the property under the lease and diminished rent I that occurs. However, there is a strong possibility subject to the time frames you will be able to negotiate your way out of this situation.

have you consider these aspects yet ?

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Customer reply replied 3 months ago
Actually that was about as far as we'd got already. We'd read about breaking a lease, and the costs associated with that, but we weren't sure whether that situation applied to us.
Customer reply replied 3 months ago
It would certainly be better to reach an agreement with the agent/landlord.

you have a chance to break the lease on the basis that the property was not ready for occupation, without cost to you, but the timing is key on this point.

You need to issue everything in writing in a chronological order, then if there is negative feed back, commence a negotiation for a settlement exit plan.

You can do it, as this has been done on may occasions.

If you need any further information please let know.

You can come back to this post any time to ask questions and there will be no further charges to you.

Don’t forget to rate me 5 stars as this supports me helping the community, and thank you for using Just Answer.

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Customer reply replied 3 months ago
Could you please clarify "timing is key"?Could you also clarify "issue everything in writing in a chronological order"?

The time means the date you signed the lease, date you were told about urgent repairs, the type of repairs, and the date you decided to get out of the lease.

All these times are important to establish that the the property was not ready for your possession upon signing the lease.

Every communication needs to be by email. If you speak on the phone or person, follow up in summary by email what was said.

The matters that need to raise in getting of the lease or negotiating the same need to be listed always in a chronological order: 1, 2, 3, 4, 5, etc…

If you need any further information please let know.

You can come back to this post any time to ask questions and there will be no further charges to you.

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Customer reply replied 3 months ago
Thank you again.So we should state our position in writing, a.s.a.p. The agent will probably not be content with this, but then we should attempt to negotiate a settlement. We have already paid 6 weeks rent as deposit. We are hoping they will refund us some of this money: is that wildly optimistic?
Customer reply replied 3 months ago
By the way, does sending an email count as "in writing" for this purpose?

Yes, you must state it in writing ASAP, and negotiate in the second step. You have a chance to get your rent back in full.

You are being realistic on your thinking.

Yes sending an email has the same affect as writing.

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Customer reply replied 3 months ago
OK, I appreciate that you can't be absolutely definite, but that sounds hopeful.We could have done better by dropping out the moment the problem arose, I imagine. As it is, the agent has commissioned repairs, and indeed has hurried them up to accommodate our time frame, and we have given them reason to believe that we would be content with moving in at a later date (next week). So I suspect we're not in an ideal position. I hope we don't end up in court!

I am positive you will handle the matter well.

if you get stuck you can come back to chat in this forum post for further help without charge.

Don’t forget to rate me 5 stars as this supports me helping the community, and thank you for using Just Answer.

John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 3,327
Experience: Principal Lawyer at Legal AU Pty Ltd
Verified
John Melis and 87 other Australia Law Specialists are ready to help you
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Customer reply replied 3 months ago
Thanks for your help and encouragement.We will indeed give them notice in writing that we will not be taking possession, as you indicate ... and we may need to come back for further advice.I will rate you now. (In the end, I think I got as much as I could reasonably expect from you.)

you are most welcome.

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Customer reply replied 3 months ago
Dear *****,Thank you for your advice so far. All is going reasonably well.We made our case, they made theirs, and we have had a somewhat unpleasant exchange of emails.
We stuck to saying that we don't have a lease as the property was not fit for occupation on the agreed start date.
The other side contend that we still do have a lease, as we had agreed to work towards a new start date, which they say then became the "mutually agreed, amended" start date.However, they have made an offer: we would pay only reduced letting fee of $715 (roughly 2/3 of what they say is the full cost) plus $497 advertising costs = $1212, and no rent. That amounts to about 2 weeks rent on the property. Of course, they characterise this as a generous offer from the landlord. We don't _want_ to pay this much, and some of the exchanges in the emails have made us less keen to be generous ourselves.Do you have any further advice?Graham

what you can do is offer them half or 1/3 and tell them that you are prepared to enter into a deed of release to refrain from raising later claims against them under the Retail Tenancies Act.

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Customer reply replied 3 months ago
Thank you again. Would a deed of release be a lot of work for us? (It seems unnecessary in practice, though I can see the value in offering such a thing.)

the deed will need to be drafted by a lawyer to ensure your protection. I will be a couple of hours work.

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Customer reply replied 3 months ago
roughly how much would that cost?

it depends on the law firm as each practice charges differently

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Customer reply replied 3 months ago
Dear *****,Thank you for your offer of a phone call. That might be useful. I attach a pdf fle containing our email thread with the agent. Our statements regarding the facts begin at p9. Would it be possible for you to scan this briefly and then we could talk?Graham

ok

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Customer reply replied 3 months ago
Hello John, is there any chance of having a phone call with you some time later today?
we cal talk when you are free later today
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Customer reply replied 3 months ago
Hello. Any time from now on would be good. Many thanks. Graham

number displayed

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Customer reply replied 3 months ago
Thanks. We will call in 5 mnutes.

sure

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

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