Ask LH: Do I Need To Reimburse My Tenant's Rent If They Move Out Early?

Dear Lifehacker, My tenant gave the required 28 days notice and paid the rent but moved out before the final date. I did the final inspection five days before that final date and since he had vacated, I moved back in.

The tenant is now demanding that I repay five days rent since I occupied the property the next day, even though he had been happy to pay for those days and leave the place empty. Am I obliged to repay the rent or not?

Dear Gina,

It largely depends on the details of the tenancy agreement and the state or territory you live in.

Generally speaking, a tenant is required to keep paying rent if they choose to vacate a premises before the nominated moving out date. However, if the tenant didn't sign a fixed-term tenancy agreement and a vacancy date was never agreed on, they are entitled to stay for the full 28 days.

The fact they chose to move their stuff out early is irrelevant. They paid their rent up to a fixed date and were entitled to keep using the property until that time.

The exception is if they gave you a written termination notice that specified an earlier moving out date - but even then there are certain rules you need to follow, depending on the state or territory you live in.

For example, in Victoria the tenant is allowed to cease making rental payments if they move out early under certain circumstances. As Tenants Union Victoria explains on its website:

If you intend to leave before the 28 days are up, you should tell the landlord and return the keys so the premises can be re-let earlier if possible. If other tenants can be found before the 28 days are up, you will not be liable for rent from the date that they move in.

Other states lean more heavily in favour of the landlord. For instance, tenants in NSW are required to keep paying rent if they move out before the date in their termination notice. Nevertheless, the tenancy needs to have officially ended before you can move back in. Here's what NSW Fair Trading says on the matter:

Before you take any action you must be certain the tenancy has ended. This is particularly important if you or the tenant have not given notice to end the agreement.

With all that said, please note that we're no experts when it comes to Australian tenancy laws. We suggest contacting the relevant tribunal service in your state for further advice before you contact the tenant.

If any readers have been in a similar situation, please share your stories in the comments!

Cheers Lifehacker

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Comments

    I think it would be good to know what initiated the early final inspection? How did the landlord know it was empty and could be inspected?

    The landlord should probably pay half and the tenant pays half, it sounds like the tenant sorted themselves out early and wanted the inspection done to ensure there weren't any issues, so in that case they initiated it and benefitted from not having to resolve issues past the end of the tenancy, but the landlord took the advantage and moved in early so they also got a benefit. At the end of the day though, legally, the tenant probably doesn't have a leg to stand on, especially since the landlord didn't lease the property out to another tenant but moved in themselves. Ethically, a bit rich of the landlord to move in 5 days early for 'free' when the tenant was just being conservative with their planning. I mean if there were issues that needed to be fixed, they would have taken up the extra 5 days or possibly past the tenancy end date, but no they were proactive and didn't cause damage. Just my thoughts, not a lawyer.

    In my humble opinion, ethically you should. Because you moved in while they technically were still the arguably the legal tenant you should refund or as @projectkennedy said pay half or negotiate a partial payment (in writing) to make the matter go away.

    If you didn't move in early they would not be entitled. Legally though ... perhaps you should talk to your agent or the respective regulatory body in your state, if your that way inclined.

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