There are many reasons why you as a landlord wish to end a tenancy – ranging from tenant failure to pay rent or damage to property, or you may wish to move in to the property or one of your relatives or friends wants to live there. Alternatively you may want to sell the property with vacant possession. Indeed, the tenant may give you notice him/herself of their intention to leave.
Sometimes landlords may just want the current tenant out because they are too much hard work. A lot of state authorities call this ‘termination without giving a reason’. Whatever the situation, there are certain rules in each state that must be adhered to, if problems are to be avoided and a positive result ensured.
In Australia, each state is governed by its own laws concerning tenancies, with each party’s rights well protected by the Residential Tenancy Act in each state.
Be aware of changing state laws
Bruce McBryde, president of The Property Owners Association of Australia, says that in addition to landlords having to be aware of the different laws in different states, they should also be aware that laws are sometimes reviewed and changed.
“Each state has its own bureaucracy, so people must make sure they keep up to date with this,” he says.
Mooted changes to tenancy laws in some states have tended to give more leeway to the errant tenant and less control to the landlord. McBryde says that some current proposals to change the laws, such as the Queensland law concerning extending the amount of notice a landlord must give a tenant to leave a property - are not always in the landlord’s favour.
“Some are very much pro-tenant and we see that this could potentially happen across other states. When the balance changes negatively for landlords, people are more likely to exit the investment market and this is something we do not want to see happening.”
Initiating the process
There are two types of tenancy in Australia: fixed term tenancies, for a specific period of time and periodic tenancies, which go either from week to week, or from month to month. The period of notice that you must give to the tenant before you move out varies depending on the type of agreement that you have in place. If you or the tenant breaks any of the terms of the tenancy agreement, the agreement can be terminated. This means that if, for example, your tenant does not pay the rent on time, your can give the tenant notice that he/she must leave the property by a certain time. On the other hand, if you fail to respect your tenant’s privacy or do not maintain the premises, he/she can do the same.
There are set ways of ending all tenancy agreements and these vary slightly from state to state. Even if an agreement has a fixed end date, you will usually have to provide written notice to end the tenancy.
Because the tenant’s rights to remain in the property are protected, if you want to end the tenancy, you should check: the reasons allowed for giving notice in your state to end a tenancy agreement; whether the notice needs to be given on an official notice or form and also how much notice you need to give before the end of the tenancy agreement.
Whilst not providing an exhaustive account, the following sets out a guide to general tenancy notice periods. For in-depth information, the acts and regulations for each state should be consulted from the relevant authority.
- In New South Wales, 30 days' notice is required if the fixed term is due to end, 90 days if the fixed term has expired
- In Queensland, a minimum of 14 days notice is required up to and including the last day of the fixed term. Once this has ended, the landlord must give at least 60 days notice.
- In Victoria, 60 or 90 days notice required at end of fixed term, depending on the length of the agreement.
- In South Australia and Western Australia, there is no required minimum notice, but landlord and tenant must discuss the issue and come to an arrangement.
- In Tasmania, 14 days notice is required within 28 days of the end of the agreement, or if the agreement has ended in the last 28 days.
- In Australian Capital Territory, from 14 days to 26 weeks notice.
- In Northern Territory, 14 days notice up to and including the last day of the fixed term. 42 days for a periodic tenancy.
Keep up-to-date records
A spokesman for the NSW Office of Fair Trading tells Your Investment Property that it is crucial for landlords to keep abreast of the latest tenancy legislation.
“At a tribunal, if a landlord is deemed to have not undertaken the correct procedure in terminating a contract, then the case will not be able to proceed and they will have to undertake the whole termination of tenancy period again.”
He says that landlords should make sure they keep accurate records of all transactions and communications between themselves and tenants. “If any disputes reach the tribunal stage, they are going to need written evidence of everything to support their case.”
Breaches of contract by the tenant
Often when a termination is instigated by a landlord, it is due to breaches of the rental contract. Most often it will be before the agreement has expired.
Generally the right to evict a tenant falls under the following categories:
- Failure to pay rent
- Tenant consistently late with rental payments
- Damage caused to the property
- Being a nuisance to neighbours
- Using the property for illegal purposes or
- In breach of any other obligation in the tenancy agreement
There may also be grounds for a tenant to appeal against termination, eg. age, lack of alternative accommodation or poor health.
In any of these instances, the first step is to lodge a hearing with the rental tribunal in your state. Each has its own government organisation that deals with rental disputes in an affordable and efficient manner.
There are often time limits on lodging applications for certain orders – often this is within 30 days of the breach of a tenancy agreement, so you will need to act quickly. It is worth noting that if a tenant does not vacate after a notice of termination is given, that an order from the tribunal must be obtained before possession can be taken. There can be heavy penalties for not obeying this aspect of the law.
The length of notice in cases where one side has breached the tenancy agreement, eg. for arrears in rent, or where the owner’s family requires possession to live in the premises, or where the owner wants to renovate or reconstruct the premises, or wants possession without any reason being specified, varies with each state and each ‘cause,’ from 7 days in Queensland, Western Australia, and South Australia to 182 days in Australian Capital Territory.
Do you have more than $120k in your super fund? You could use your super to buy property - Find out how