VIC Co-tenant Wants to Move Out and Do a Lease Transfer?

[Aussie9000]

Hi there,

I am currently in a co-tenancy in Victoria. The other tenant is wanting to move out as we aren't getting along and is refusing to pay rent and bills. The co-tenant actually sent a text with a screenshot of paying the current bills and rent for next month but then cancelled this after deciding to move out following a dispute / argument.

Obviously having received that text I put aside money for my half of the rent / bills and spent my other money assuming that the co tenant would not cancel this bank transfer. I believe regardless of when the co-tenant leaves that they will have to resend that money transfer that they cancelled?

The co-tenant wants to replace themselves with another tenant, i.e do a lease transfer. The legislation isn't exactly clear on the procedure here, it says that a landlord can't refuse without a valid reason and that the tenant, landlord and new tenant must sign a transfer for the lease / bond. It doesn't mention co-tenants.

So my question regarding that is;

Do I have a say in the lease transfer? Can I say 'no, I don't want a stranger moving in' and hold the current co-tenant to the lease agreement?

I can afford the apartment by myself and am happy to do so moving forward but as the current co tenant has a signed contract for the current lease agreeing to pay their half of the rent each month then surely they are obligated to pay me out their half of the rent for each remaining month? I shouldn't have to accept a tenant swap or spending more on rent because the current co tenant has decided to move out? A contract is a contract?

So really what I want to do is;

1) Prevent a tenant transfer and keep the place by myself (not let another person move in)

2) Allow the current co-tenant to move out but take them to court for unpaid bills and for their share of rent for the remaining 7 or 8 months on the contract.

If I am able to legally do this then how do I go about it?

Does preventing a lease transfer void my right to take the co tenant to court for the remaining rent?
Does allowing the co tenant off the lease void my right to take the co tenant to court for the remaining rent?

Do I have any risk of being evicted by the landlord by not playing nice with a tenant transfer / signing a new lease by myself or will my current rental agreement hold in place until I sign a new lease?

Can I prevent a new tenant replacing the current co tenant but let the current co tenant move out and the make a court claim for the rent?

Ps. I know your reading this thinking I'm an a-hole for wanting to have the co-tenant move out with no replacement and then claim the remaining rent but this co tenant has

- Assaulted me (spitting, pushing, grabbing my neck)
- Broken a wooden chair and a chopping board (which I paid for)
- Threatened to hit me with the broken chair by holding it above my head whilst I was sitting.
- Tried to move my tv from the living room / break it because they wanted to use the space
- Yell at me over trivial matters and then play the victim when I yell back and I honestly think this co tenant is trying to bait me into hitting them so they can press charges (I'm not a violent person at all).
- Hasn't done house work in months
- Came into my room the other night at 4am, woke me up and destroyed the adsl cables because I changed the Wi-Fi password as the co tenant hadn't paid the internet + other utility bills.

I am quite capable of living with someone I dislike and honour my rental agreement but as the co tenant is now seriously out of control and wants to leave I feel like I am being hard done by if another tenant moves in or if I have to pay the rent by myself (even though afford it) and after all I've suffered I don't want to let this co - tenant out of the lease so easy if I can avoid it. I feel that I would be

A) Disadvantaged by being forced to live with a random stranger if a lease transfer happens
B) Disadvantaged by having to pay extra rent as the lease agreement states the co tenant is obligated to pay their half for the entire lease.

Let me know what options I have and I hope by reading the last part you won't be judging me by wanting to go to court for the remaining rent and not let a stranger move in.

Thanks heaps in advance.

 

[Rob Legat - SBPL]

You've asked a ton of questions and seeing as I'm (a) in Queensland which has different laws and (b) trying to scoff lunch in between other things, I'll concentrate on one aspect: taking over the lease and making the co-tenant pay out their remaining commitments.

You can't do it - it's illegal and it's unfair, being the equivalent of 'having your cake and eating it too'. It's a common, general principle at law and especially in leasing that you must 'mitigate your loss'. This means the parties take active steps in the wake of an event so that further damage is minimised to the extent possible. You co-tenant has indicated mitigation by being willing to find a replacement to take over their part of the rent. Your mitigation would be agreeing to take over their half of the rent so you can keep the tenancy to yourself. You can't have both.

 

[Aussie9000]

I suspected that might be the case but surely the co tenant has entered into an agreement with myself and they should be liable if they break that contract? I shouldn't be forced to accept a stranger because the co tenant wants to leave?

Surely I can argue that having to living with a random stranger is also a loss or is loss only considered monetary in this instance? It seems whether I allow a replacement tenant or keep it myself that I am the loser in all situations, completely unfair. The legislation in Victoria only mentions mitigation in regards to the tribunal but I plain the use the small claims court to recover the rent money so surely it is not relevant under tenancy law?

What is the point of a lease agreement if someone can break / change it and not be taken to court over it because of 'mitigation'.?

 

[Rob Legat - SBPL]

I think you'll probably find that you haven't entered into a formal agreement with the co-tenant in the sense of party 1 and party 2 - you've entered into it jointly, as one party together. The act seems to be geared towards the landlord's consent to the new tenant - not yours. Although, I suspect that the landlord may factor your feelings into it if they're acting reasonably.

The long and the short of it is that you'll have an obligation to either (subject to landlord consent):
(a) be willing to take over the lease yourself; or
(b) be reasonable in consideration of a replacement party.

If it appears unfair, consider the flip side. If the co-tenant was moving up because they claimed you were unreasonable and were forcing them out, for argument's sake, then you'd be able to make them continue paying rent and subsidize you - without having the use of the property - for the balance of the lease.

 

[Aussie9000]

I'm not forcing them out however they are leaving on their own accord, which means I am at a loss either way, the mitigation is just ridiculous.

Surely a landlord can't move in a new tenant without my consent?

Say for arguments sake the co tenant leaves and I want to take over the lease by myself, do they have to give me notice?

Because in our current situation I pay the bills / rent and the co tenant sends their share directly to me (I obviously forward on utility bills via email as they come in so they can see the amount themselves). Last week the co tenant sent a screenshot of evidence for payment (a bank transfer screenshot) for the rent for next month and the current bills. Later that day we had an argument and the co tenant cancelled the transaction.

At the very least, even if the co tenant leaves before the next rent is due they are surely obligated to pay me next months rent as they clearly indicated their intentions to be living in the apartment next month?

Thanks for all your help so far.

 

[Rob Legat - SBPL]

As co-tenants you have a general right of contribution - but the landlord can chase either or both of you for full payment at their discretion.

If you're taking over their 'portion' of the responsibility - they're liable up until that date for their share of the expenses.

If you're not, they're liable up until the date that a suitable replacement tenant is eligible to take over. Should that date pass and the replacement doesn't happen, for whatever reason, the current co tenant is most likely legally off the hook. The law will have deemed that they've done everything reasonable to try to rectify the damage caused by them leaving.

Happy for correction if the situation is different in Victoria - but that's the nuts and bolts of it.

 

[Aussie9000]

So even though the co tenant sent me rent money and then cancelled your saying that I can't take her to court for that all? Doesn't sound right or correct to me. I planned my finances for the month after receiving that screenshot of the bank transfer so surely that is an easy win in court?

 

[Rob Legat - SBPL]

That's not what I'm saying. You have a general right to contribution from your co-tenant until they are released from the lease by the effect of a legal mechanism: termination, expiry, or valid assumption of their liability (by you or a replacement tenant). You can take legal proceedings for reimbursement in accordance with your shared liability. What I would suggest that you do not do is pay half and tell the landlord to chase them for the rest. I'm not saying that you would, but it is worth pointing out and I have seen it happen many times.

 

[Aussie9000]

I'm going to borrow money and make sure the rent is paid on time but if the co tenant leaves just before the next rent is due then surely that isn't considered enough notice for myself to adjust my finances particularly when the co tenant indicated by a screenshot of a bank transfer (which they then cancelled) that they would be staying and paying rent before the next month.

Am I likely to win in court for claiming next months rent if the co tenant leaves before rent is due as they literally tricked me by cancelling a bank transfer?

 

[Rob Legat - SBPL]

Everything else aside and so long as you and the landlord act reasonably (including following any mitigation requirements), the co-tenant should be liable for payment of rent up to at least the date the landlord approves a change in tenants.