As a tenant you have rights under the Residential Tenancies Act 1987 and Residential Tenancies Regulation 2006. This factsheet explains the law in New South Wales about ending a tenancy agreement early.

Can you end your tenancy early?

No-one can force you to stay in a tenancy. However, if you leave before the end of a fixed-term tenancy agreement, you may end up paying a lot of money.

If you want to leave because the landlord has not done repairs or has broken a term of the agreement, try to have the problem fixed. If the landlord refuses to fix the problem, you can apply to the Consumer, Trader and Tenancy Tribunal (CTTT) for an order that the landlord performs their obligations under the agreement.

If you want to leave for personal reasons, write to your landlord: tell them you want to leave and by when, and try to get their consent. In your letter draw their attention to section 78 of the Residential Tenancies Act which requires them to take all reasonable steps to reduce your losses. Keep a copy of this letter.

Reducing losses (mitigation)

The landlord must reduce (mitigate) any losses by finding a new tenant as soon as possible. They cannot charge you for losses which could be avoided (e.g. they did not advertise for a new tenant straight after you left and keep charging you rent in the meantime).

Assignment

If you have found a new tenant for the premises, you need the landlord's written permission for the new tenant to take over. This is called an assignment. (The landlord does not have to give permission however.) An assignment means that if the new tenant leaves, you will still be held responsible for the premises. Contact your local Tenants Advice and Advocacy Service for further information.

Ending due to hardship

If you are facing serious hardship you may apply to the CTTT for an order allowing you to end your tenancy agreement before the end of the fixed term. Provide evidence of your hardship (e.g. bank statements, letters from health workers and support workers). If the tribunal allows you to break your agreement early, it may order you to pay some money to the landlord to compensate them for lost rent or other losses.

Costs of leaving early

Your landlord may let you leave before the end of the fixed term without holding you responsible for any costs. If they do, ask your them to put this promise in writing.

It is more likely that you will be responsible for some, or all, of the following costs:

• rent until a new tenant moves in, or until the end of the fixed term, whichever is the lesser amount
• advertising costs
• a re-letting fee (see below)
• the difference between your rent and the new rent for the rest of the fixed term, if the premises can only be re-let at a lower rent
• fee for preparation of a new agreement, up to a maximum of $15.

Re-letting fees

Most landlords pay real estate agents a letting fee for finding tenants. This is charged each time new tenants are found. You are responsible for paying at least part of this fee if you end the agreement early.

Landlords cannot charge a re-letting fee if they are finding new tenants themselves. If you deal with an agent, the re-letting fee may be half a week to two weeks rent. This can only be charged to you if there is an agreement between the landlord and the agent about what this fee is – ask to see the agent's 'managing agreement'.

Tips to keep your costs down

• Give the landlord as much notice (in writing) as possible of your intention to leave. Ask them to minimise losses. Keep a copy of your letter.
  
• Advertise for new tenants on notice boards in the local area.
• Make the premises available to show to new tenants.
• Encourage interested people to contact the landlord/agent directly.
• Leave the premises in the same condition as you found them.
• Do not leave anything in the premises as the landlord can seek extra costs for abandoned goods
• On the day you leave, fill out a condition report. Do this with the landlord or agent. If the landlord/agent will not, then fill it out with a friend. Have them sign it, give a copy to the landlord/agent and keep a copy. Take photos.
  
• On the day you leave, return all keys to the landlord/agent and get a receipt for them.

Getting your bond back

When you try to get your bond back you will find out if the landlord is trying to claim more money from you. So, start reclaiming your bond as soon as you can. (Also see Factsheet 03: Bond.)

Fill in a 'Claim for Refund of Bond Money' form. Estimate how much you owe the landlord/agent and put it on the top of the form. Send it immediately to Office of Fair Trading Renting Services. You need not have the landlord/agent's signature.

If Renting Services receives your claim first, it will tell your landlord. If the landlord does not respond within 14 days, Renting Services will pay you the money. However, the landlord can still lodge a claim later through the CTTT. Have Australia Post redirect mail to your new address so that you receive any letters from the tribunal.

If the landlord disputes your claim and takes you to the tribunal they will have to prove that they did everything they could to get new tenants into the premises. You can check newspapers and real estate agencies to see if the premises have been advertised after you left.

If your landlord lodges a claim first

If you landlord has already lodged a claim for your bond, you should:

• apply to the CTTT for the refund of your bond
• contact Renting Services and tell them you have applied to the CTTT so it can put a 'hold' on the bond being released to the landlord
• write to the landlord asking for an itemised statement of their claim and copies of quotes, invoices and receipts. Keep a copy of your letter.

Even if Renting Services has returned the bond to the landlord, you can still apply to the tribunal for the return of all or part of your bond.

Resolving disputes – Consumer, Trader and Tenancy Tribunal

The tribunal is where landlords and tenants can take disputes, including about the return of the bond.

Interpreters are available free at the tribunal – tell the tribunal that you need an interpreter before a hearing.

Take all relevant evidence with you to the tribunal, especially if you think the landlord/agent has not been trying to get a new tenant in. This might include copies of 'to let' columns from newspapers in your area, a record of ads you have posted in local area, or statutory declarations from people who applied for a tenancy but were rejected.

If the tribunal thinks the landlord did not try to mitigate your losses, it may dismiss the landlord's application or reduce the amount of their claim. However, if the tribunal thinks the landlord did all they could, it may order money to be taken from your bond and make you pay more in compensation.

Updated: June 2008

Further help

Tenants NSW website: www.tenants.org.au
Tenants Hotline: 02 8117 3750 or 1800 251 101
Tenants Advice and Advocacy Services: see the Tenants NSW website or call the Tenants Hotline to find your local general or Aboriginal service Renting Services (NSW Office of Fair Trading): 133 220

Other factsheets

This is one of a series of factsheets on tenancy issues. Other factsheets are available from www.tenants.org.au/publish/factsheets/ or your local Tenants Advice and Advocacy Service.