Is your lease being unfairly terminated? There is protection available.

Feb 19, 2019

Is your lease being unfairly terminated? There is protection available.

The equitable remedy of ‘relief against forfeiture’ protects tenants from landlords unfairly terminating leases and evicting them.

What is forfeiture?

Forfeiture is the act of a landlord terminating a lease and taking back possession of a property because of a tenant’s breach of a lease. Examples of such breaches include failure to pay rent or bond, or use of the property for an illegal purpose. The landlord must give the tenant a notice to rectify the breach.

If a tenant does not rectify the breach as required by the notice, depending on the type of lease, the landlord can re-enter the premises or apply to the Victorian Civil and Administrative Tribunal (VCAT) for an order evicting the tenant.

If the tenant refuses to leave, VCAT can then issue an order directing the police to evict the tenant.

What is ‘relief against forfeiture’?

However under the principle of ‘relief against forfeiture’, the tenant can prevent the landlord from terminating the lease if one or more of the following apply:

  1. The tenant has remedied all of their breaches, even if they were out of time;
  2. The breaches were not substantial, or were not consistently lengthy; or
  3. A landlord obtains the right to terminate but doesn’t act on it (for example, by serving a notice, or allowing the breach to continue). In this scenario, a landlord can be deemed to have waived its rights to possession.

Applications by a tenant for relief against forfeiture are either brought at VCAT or in the Supreme Court.

If you are a landlord or a tenant, you should seek legal advice as there are traps and problems if steps are not taken properly.

If you want to discuss your rights under a tenancy agreement, contact Jonathan Kenny.