Despite doing everything to find the best tenants for your rental, situations may arise where a tenant is uncooperative—failing to pay rent or simply disobeying your tenancy agreement. Ideally, a tenant will agree to vacate your premises without issues. However, there are instances when a tenant refuses to leave.
Evicting a tenant who breaches your agreement is a delicate matter. You have to know the rules where your rental is located before making a move, as each state has different rules on the eviction.
Reasons for eviction
To evict a tenant, it is necessary to establish grounds. A tenant breaching tenancy agreement or rental contract is usually cause for eviction.
A breach of agreement could stem from the following scenarios:
- Failure to pay rent
- Tenant consistently late with payments
- Damaged caused to the property
- Being a nuisance to neighbours
- Using the property for illegal purposes
- Breach of any other obligation in the tenancy agreement
A landlord having other lawful reasons or grounds for a need to recover the premises would make eviction possible in some states. However, a tenant can appeal against the eviction in some circumstances.
The general principles regarding the eviction process are standard:
- Give written notice to vacate – for a valid reason
- Follow the prescribed procedures and timeframes strictly
- Use the correct forms and documentation
- Proceed to the appropriate governing body when necessary if the tenant does not respond to the request to vacate
- Keep written records of everything
The rules differ from state to state and should be followed to the letter, or the eviction process could prove null and void.
Eviction rules in different states
- Australian Capital Territory
In ACT, a landlord must issue a notice to remedy before issuing a tenant a notice to vacate. However, when a landlord has previously served two notices to remedy, it is possible to just serve a notice to vacate.
After serving a notice to remedy, the landlord must wait seven days before serving a written notice to vacate. The correct period of notice, the legal grounds for termination, and the details that gave rise to the grounds should also be provided to the tenant. Only the ACT Civil and Administrative Tribunal (ACAT) can order an eviction, and only the police can carry out the eviction.
If the tenant does not voluntarily vacate the premises after receiving a valid notice, the landlord can apply to a tribunal for a termination and possession order (TPO).
If the tenant does not move out as directed by the TPO, the landlord can then apply for a warrant for eviction. This warrant gives the police the power to evict the tenant within a specific time. The police must give the tenant at least two days’ notice of the eviction unless there are exceptional circumstances involved.
More information about eviction in the ACT can be found here.
In NSW, a landlord must provide a tenant with a written 14-day termination notice. However, there are some exceptions to this rule in the Residential Tenancies Act.
The landlord-signed notice must specify the address and date when the property should be vacated. The notice must also include the grounds for termination.
The landlord can issue a non-payment termination should the breach of agreement stemmed solely from failure to pay rent.
If the tenant does not vacate the premises by the date specified in the notice, the landlord can apply to a tribunal for a termination order. This order ends the tenancy and specifies the date when the tenant must move out of the property. It also specifies the date when the property must be vacated.
In the instance that the tenant still does not vacate by the specified date, the landlord can get a warrant for possession. It enables the sheriff’s office to remove the tenant from the premises.
For more information about ending a tenancy in NSW, click here.
In NT, a landlord must make an application to a rental officer for an order, requiring a tenant to leave. It is also possible to apply for an eviction order. These applications can be made together or separately at different times.
After the eviction order is made, the rental officer serves the tenant with the order. Once confirmed, an affidavit of service is prepared.
Should the tenant refuse to vacate the property, the landlord has six months to file the order with the Supreme Court to get a write of possession. The landlord must file an affidavit of service of the eviction order on the tenant and an affidavit stating the order has not been obeyed.
Once filed, the sheriff’s office is provided with the write of possession and will then take steps to carry out the eviction.
For more information about eviction in the Northern Territory, you may use this source.
In QLD, a landlord must issue a notice to leave to end a tenancy. The notice must be on the correct form, stating the grounds of eviction. It also must specify the date when the tenant must vacate the property and give the required amount of notice.
Should the tenant refuse to vacate the property by the specified date, the landlord can apply to a tribunal for a termination order and a warrant of possession.
A landlord must apply to the tribunal within two weeks of the handover day. Once the application is made, the tribunal will end the tenant notice of the hearing and a copy of the application.
In a termination order, the tribunal issues a warrant of possession, authorising the police to remove the tenant from the property.
The police will receive the warrant and must be effective within three days of issuance. It is effective for 14 days and can be enforced any time during this period unless ordered by the tribunal.
The police will then contact the tenant to tell when they will enforce the warrant.
More details about ending a tenancy in QLD can be found here.
In SA, a landlord must give a tenant a written notice to remedy the breach or leave the property. The landlord must also keep a copy of the notice for their records.
The tenant has seven days to remedy the breach. If the notice is due to failure to pay rent, the tenant is given another day to leave the property. If the notice is due to other grounds, the tenant has another either days to leave.
If the tenant does not comply, a landlord should apply to a tribunal to have them evicted. A landlord must complete an application form that includes a request for vacant possession. The application and supporting documentation such as a copy of lease agreement, rent records, or written notices, must be lodged with the tribunal.
A tenant can only be evicted at the order of the tribunal, and only a bailiff enforcing the order can evict the tenant.
Find more information about breach of agreement and eviction in South Australia on the SA government website.
In TAS, a landlord must give the tenant a notice to vacate either 14 or 28 days before the eviction date.
The notice must include the date of serving the notice, the name(s) of the tenant(s) and landlord, the property address, grounds for issuing notice, and the date when it takes effect.
Should the tenant refuse to leave after receiving notice, the landlord must apply to the Magistrates’ Court to obtain an order of possession. The landlord must then serve the tenant a copy of the application on the same day of applying for the order.
The court will enforce a date for vacant possession of the premises, with a representative taking possession of the property on behalf of the landlord.
Visit the Magistrate Court of Tasmania’s website to know about rental disputes and ending a lease.
In VIC, a landlord must serve a valid notice to vacate to a tenant. The notice must be by registered post or hand delivered. It should be addressed to the tenant, given a specific reason for the notice, be signed by the landlord, and indicate a date for the tenant to leave.
If the tenant refuses to vacate by the end of the specified date, the landlord has 30 days to apply to a tribunal for an order of possession. This orders the tenant to vacant gives a specified date for vacating and warns that if the order is not observed the tenant might be removed.
The order of possession also allows the landlord to obtain a warrant of possession, if necessary. This directs the police to evict the tenant from the property if they have not left by the date instructed.
You may find more details about eviction in VIC on the Consumer Affairs Victoria website.
In WA, a landlord must issue a formal notice of a tenancy agreement breach. The notice must detail the breach and gives the tenants 14 days to rectify the breach.
If the tenant amends the breach during the given period, the landlord can issue a notice of termination. It gives the tenant another seven days to vacate the property, after receiving the notice.
Should the tenant refuse to leave, the landlord has 30 days to apply for an order for possession from the Magistrates’ Court.
If the tenant still refuses, the landlord can apply for a property seizure and delivery order. A court-appointed bailiff will remove the tenant from the property on behalf of the landlord.
You may use this lessor guide to know more about tenant eviction in Western Australia.