Can you keep the first months rent if the tenant decides not to move in?

This is written for Cubbi owners, in Victoria:

For the first rent payment to be made, the lease must be signed in Cubbi which means at the point of receiving the first rent payment (otherwise known as the deposit) the tenant is legally bound to the lease even if they have not moved in (taken 'possession' of the property).

So the question is, can they legally end the tenancy?

Prior to moving in, the tenant can end the tenancy immediately (give 0 days notice) if the property is:
  • not vacant
  • not in good repair
  • totally destroyed
  • partly destroyed and unsafe
  • unfit for human habitation
  • not legally available as a residence
  • not available for occupation
  • (meaning in any of the above cases you cannot keep the first months rent)
HOWEVER:
If the tenant just decides they don't want to move in (without reason) they will need to break the lease. Which means they will need to pay for rent until new tenants move in and any re-advertising costs (you can re-advertise for free within 60 days of removing the ad so it's really just the loss of rent). Due to situation you may both agree on a reduced or fixed cost to allow yourselves to move on, eg the months rent or 2 weeks rent.
It's not exactly a straight forward answer because it depends on the situation.