Leases – Landlord’s Right of Re-Entry

Eales & Mackenzie Lawyers Melbourne

Article by Matthew Holzer

Leases – Landlord’s Right of Re-Entry
The single biggest issue faced by Landlords when dealing with recalcitrant tenants who aren’t keeping up their end of the bargain is, how do we get rid of them?

Bringing a Lease to and end and re-entering possession
The most common factor which damages relationships between Landlords and their Tenants is a failure on the Tenant’s part to keep up to date with the rent and outgoings payable to the Landlord under the terms of the Lease. While Landlord’s are often patient because they wish to avoid the time and expense of re-leasing premises there comes a point where all Landlords have to say enough is enough.

At this stage the most important thing to do is consider the terms of your Lease. Whatever the breach of the Lease might be it must activate a right of re-entry or termination under the terms of the lease. Certainly it would be unusual if a professionally drafted Lease didn’t confer such a right for non-payment of rent but it isn’t uncommon where the lease in question hasn’t been drafted professionally or in situations where there is no written lease at all.

In normal circumstance where the terms of the lease provide sufficient re-entry rights the next to step is to ensure the tenant is given proper notice in accordance with the lease and s.146 of the Property Law Act 1959 (Vic) if applicable. It is important to ensure the notice strictly complies with the law because a defective notice could render any subsequent re-entry unlawful. Generally speaking the notice should provide the Tenant the opportunity to remedy the breach of the lease and advise them of the consequences of failing to do so.

If the breach is not remedied the Landlord must then make an unequivocal demand for possession of the property. In giving effect to such a demand the Landlord faces two choices. Should it/he/she engage in ‘self-help’ and effect re-entry themselves perhaps with the assistance of a locksmith and some form of security or should they chart a more conservative route and seek an order for possession from a court or tribunal of competent jurisdiction. A court order would allow the Landlord to avail itself of the services of the Victoria’s Sherif Office and also ensure that the subsequent re-entry is lawful. Where Retail Leases are concerned the Landlord must also consider s. 87 of the Retails Leases Act (Vic) 2003 which requires that any dispute must first be referred to the Small Business Commissioner before suing for possession.

Be Careful
If an eviction proceeds unlawfully by reason of a failure to give proper notice (which includes giving a notice which is for some reason defective) or any other reason a Landlord may become liable to the Tenant for any damage (including potentially, loss of profit) the Tenant may suffer as a result of the re-entry. A failure to re-enter lawfully can have significant and adverse financial consequences for a Landlord.

If you require assistance evicting a tenant we strongly recommend seeking legal advice in relation to your lease and the relevant legislation which may differ demanding on the nature of your lease agreement.

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