If you have a fixed term rental agreement and you want, or need, to end your agreement early you may be able to do so in a way that you are not asked to pay ‘lease break’ costs.
If you are unsure if your situation would allow you to give one of the following notices, you may be able to apply to VCAT to ask for orders that you can end your rental agreement before the end of the fixed term. See Apply to VCAT on this page.
Property is unfit, unsafe or unavailable — before you move in
If you have entered into a rental agreement, but have not yet moved in, you can give notice that you are immediately terminating your rental agreement if you find any of the following problems with the property. It:
- Is not in good repair
- Is unfit for human habitation
- Is destroyed, either totally or to an extent that makes it unsafe
- Is not vacant
- Is not legally available for use as a home
- Does not meet any of the rental minimum standards
- For any other reason is unavailable for occupation [section 91L]
Note that there is a high threshold for terminating your agreement this way. If the rental provider does not agree you are able to terminate your agreement for one of these reasons they may try to claim ‘lease break’ costs from you.
They may also try to claim ‘lease break’ costs from you if try to terminate your agreement this way, but they believe you have already moved into the property: for example, if you have started sleeping there.
To defend against any such claim you should make sure you have sufficient evidence to support your position that the property is in such poor repair that you cannot move in, or that it is destroyed, unsafe, unfit for human habitation, does not meet minimum standards or that you cannot move in for any of the other reasons in the list above.
Take photos or videos of anything that supports your notice to terminate the agreement as well as any communications you have had with the rental provider or agent, such as emails and phone logs. It may also be helpful to get reports from specialists such as electricians or engineers, though you will likely need to pay for these yourself and they can be expensive.
If the rental provider makes a claim for ‘lease break’ costs we recommend you do not pay anything until the claim has gone to VCAT, where you can present your evidence to show why you terminated the agreement and why you should not have to pay ‘lease break’ costs
Property is unfit or unsafe — after you move in
If the property becomes unsafe or unfit for human habitation after you have moved in, you can end your rental agreement early by giving an immediate notice of intention to vacate [section 91ZD].
There is no minimum notice period for these sorts of problems. You can nominate an immediate vacate date, or whatever later date suits you.
Again, there is a high threshold for terminating your rental agreement this way. If the rental provider does not agree you are able to terminate your agreement early for one of these reasons they may try to claim ‘lease break’ costs from you.
To defend against any such claim you should make sure you have sufficient evidence to support your position that the property is unsafe or unfit for human habitation. Take photos or videos of anything that supports your notice as well as any communications you have had with the rental provider or agent, such as emails and phone logs. It may also be helpful to get reports from specialists such as electricians or engineers, although you will likely need to pay for these yourself.
If the rental provider makes a claim for ‘lease break’ costs we recommend you do not pay anything until the claim has gone to VCAT, where you can present your evidence to show why you terminated the agreement and why you should not have to pay ‘lease break’ costs.
You need a different property
You can give a notice of intention to vacate to end your agreement early if you need to move to a different property in some circumstances.
You can give the notice of intention to vacate under section 91ZB to move to a different property if you:
- Need special or personal care and must leave to get care: evidence is required with the notice of intention to vacate
- Have received, and accepted, an offer for public housing from the Victorian Government Director of Housing or an offer of for community housing: evidence is required with the notice of intention to vacate
- Need to move into temporary crisis accommodation: evidence is required with the notice of intention to vacate
- Have a disability and have asked to make reasonable modifications to suit, but the rental provider has refused – however, see our page on Modifications as you may be able to get modifications done to avoid having to move out.
- Live in special disability accommodation and the rental provider’s registration to provide this accommodation has been revoked
The minimum required notice period you need to include in your notice of intention to vacate is 14 days [section 91ZB]. You can give more than 14 days’ notice, but you must not give less than 14 days.
If you end your agreement early by giving a notice of intention to vacate for any of these reasons you cannot be asked to pay any ‘lease break’ costs [section 91ZB].
The property is being sold
You can give a notice of intention to vacate to end your agreement early if you have been given a ‘Notice of intention to sell’ by the rental provider and were not told of the rental provider’s intention to sell the property before you entered into the rental agreement [section 91ZB].
The minimum required notice period you need to include in your notice of intention to vacate is 14 days [section 91ZB]. You can give more than 14 days’ notice, but you must not give less than 14 days.
If you end your agreement early by giving a notice of intention to vacate for this reason you cannot be asked to pay any ‘lease break’ costs [section 91ZB].
You can also give a reduced notice of intention to vacate to end your agreement early if you have been given a notice to vacate because the property has been, or is being, sold. See the section below.
You received a notice to vacate
You can give a notice of intention to vacate to end your agreement early, under section 91ZB, if you have received a notice to vacate for any of these reasons:
- Repairs, renovations, or reconstruction [section 91ZX]
- Demolition [section 91ZY]
- The property is to be used as a business [section 91ZZ]
- The rental provider, or a dependent family member of theirs, needs to move in [section 91ZZA]
- The property has been, or is being, sold [section 91ZZB]
- The property is required for a public purpose [section 91ZZC]
- Your fixed term agreement is ending [sections 91ZZD and 91ZZDA]
- You are a public housing renter and are no longer eligible for public housing [section 91ZZE]
The minimum required notice period you need to include in your notice of intention to vacate is 14 days [section 91ZB]. You can give more than 14 days’ notice, but you must not give less than 14 days.
If you end your rental agreement early by giving a notice of intention to vacate in response to getting one of the above notices to vacate you cannot be asked to pay any costs for rent that would ordinarily be owing to the end of the fixed-term date in your agreement [section 211A].
The rental provider may try to ask you to pay other ‘lease break’ costs, such costs to readvertise the property or reletting costs. However, they should not be reletting the property if they have given you a notice to vacate for any of the above reasons, so would not have any grounds to ask you for any of these costs.
If the rental provider asks you to pay any ‘lease break’ costs we recommend you do not pay anything until the claim has gone to VCAT, where the rental provider will need to prove to VCAT why they should be entitled to any costs.
It is important to note that even though you have a right to give a reduced notice period if the rental provider has given you one of the above notices to vacate, you may not necessarily have to move out. See our pages Notice to vacate and Eviction for more information.
Long-term agreements
If you have entered into a long-term rental agreement for a period of 5 years or more, but the agreement is not in the standard form required by the law, you can give a notice of intention to vacate to end your agreement early [section 91ZC].
The minimum required notice period you need to include in your notice of intention to vacate is 28 days [section 91ZC]. You can give more than 28 days’ notice, but you must not give less than 28 days.
If you end your long-term agreement early by giving a notice of intention to vacate because the agreement is not in the standard form you cannot be asked to pay any ‘lease break’ costs [section 91ZC].
Rental provider breaches
You can give a notice of intention to vacate to end your rental agreement early if the rental provider has committed ‘successive breaches’ of their duties – they have breached the same duty 3 times, but they must have been given notices of breach for breaching the same duty twice before that [section 91ZF].
You can also give a notice of intention to vacate to end your agreement early if the rental provider has failed to comply with a compliance order made by VCAT [section 91ZE].
Before you can give a notice of intention to vacate for these reasons there are steps you need to carefully follow.
You should also view our Landlord breaches and Applying to VCAT pages.
Step 1 – is it a breach?
First you need to make sure the breach is one that will allow you to give a ‘notice of breach of duty’ under the Residential Tenancies Act 1997.
The rental provider has breached a duty if they do not:
- Make sure the property is vacant and reasonably clean and vacant on the date you are supposed to move in [section 65]
- Allow you have ‘quiet enjoyment’ of the property [section 67]
- Keep the property in good repair, including safety-related repairs and maintenance and making sure the property meets minimum rental standards [sections 68, 68A, 65A]
- Keep gas and electrical safety-check records and provide them when you request them [section 68B]
- Provide locks that secure external doors and windows [section 70]
- Give you a key when they change a lock [section 70]
- Replace faulty appliances, fixtures and fittings for water, electricity and gas with a replacement meeting a minimum standard for efficiency [section 69]
The rental provider has also breached a duty if they give a key for a changed lock to someone excluded from the property under an intervention order or no longer on the rental agreement, where the lock was changed by someone experiencing family or personal violence [sections 70A, 70B]
Step 2 – give a notice of breach of duty
If the rental provider has breached any of the above duties, you can give them a ‘notice of breach of duty’. This tells them they must, within the ‘required time’ after receiving the notice, fix the problem and not commit the same, or similar, breach again [sections 3, 208].
You should make sure you have sufficient evidence of the breach because if the rental provider challenges the breach notice at VCAT you will need to be able to prove the breach to VCAT.
‘Required time’
For breaches of quiet enjoyment, the required time to fix the problem and not commit the same or similar breach again is 7 days. For all other breaches the required time is 14 days.
The required time starts from the time the rental provider receives the breach notice. If you send the breach notice by post make sure you allow extra time for it to be delivered.
See the page on VCAT’s website on ‘When to send notices’ for guidance on how much time you should allow for delivery if you are sending the notice by post.
Step 3 – 2 options
If the rental provider has not fixed the problem within the required time of receiving the ‘notice of breach of duty’ you have 2 options – apply to VCAT for a compliance order, or give a second breach notice.
Option 1 – Apply to VCAT for a compliance order
If the rental provider has not fixed the problem within the required time of receiving the ‘notice of breach of duty’ you can apply to VCAT for a compliance order [section 209].
Timing is important. Do not apply to VCAT too early as it may not make a compliance order for the breach if the ‘required time’ in the breach notice has not yet ended – that is, if the rental provider still has time to comply with the breach notice.
If VCAT makes a compliance order it will include a date by which the rental provider needs to fix the problem. If the rental provider does not do this by the time set out in the order you can give a notice of intention to vacate to end your agreement early [section 91ZE].
The minimum required notice period you need to include in your notice of intention to vacate is 14 days [section 91ZE]. You can give more than 14 days’ notice, but you must not give less than 14 days.
If you followed all the steps properly, including giving enough time before moving to the next step, you cannot be asked to pay any ‘lease break’ costs.
Option 2 – Give a second breach notice
If the rental provider has not fixed the problem within the ‘required time’ of receiving the first ‘notice of breach of duty’ or has committed the same, or a similar breach, you can give them a second ‘notice of breach of duty’ [sections 3, 208].
If, after receiving the second ‘notice of breach of duty’, the rental provider still has not fixed the problem within the ‘required time’ or has again committed the same, or a similar breach, you can give a notice of intention to vacate to end your agreement early due to the rental provider being in breach of the same duty provision for a third time – that is, ‘successive breaches’ [section 91ZF].
You should include with your notice of intention to vacate copies of the 2 breach notices you have already given to the rental provider, and any evidence of the breaches.
The minimum required notice period you need to include in your notice of intention to vacate is 14 days [section 91ZF]. You can give more than 14 days’ notice, but you must not give less than 14 days.
Timing is important. Generally, you need to give the rental provider the full ‘required time’ to fix the breach before you can take further action. Otherwise, the second breach notice or notice of intention to vacate may not be valid under the law.
For example, if you have given a breach notice for repairs the rental provider has the full ‘required time’ – 14 days – to do the repairs.
If they do the repairs in this time they are no longer in breach. You cannot give a second breach notice.
However, if they do not do the repairs in this time they are still in breach, and you can give a second breach notice.
Then, if after receiving the second breach notice they do the repairs in the ‘required time’ in the second notice, which is also 14 days, they are no longer in breach, and you cannot give a notice of intention to vacate.
However, if they do not do the repairs within 14 days of receiving the second breach notice they are still in breach, and you can give a 14-day notice of intention to vacate.
If you followed all the steps properly, including leaving enough time between giving the breach notices and the notice of intention to vacate, you cannot be asked to pay any ‘lease break’ costs.