ACT Termination by Landlord

The landlord can only terminate the tenancy agreement under certain circumstances, which are listed below. Landlords should ensure they use the correct notice and abide by the minimum notice periods.

When can the landlord terminate the tenancy?

The landlord can terminate the tenancy agreement under certain circumstances, which are listed below. The exact process that the landlord and tenant should follow will depend on the reason for termination. Read the information below carefully to see which process you should follow.

When the landlord terminates the tenancy (usually by giving the tenant a Notice to Vacate, the tenant generally has two options:

1. Accept Termination — the tenant can accept the termination and move out by the termination date. The tenant must continue to pay rent until the agreement is terminated.
2. Dispute Termination — alternatively, the tenant can dispute the termination. The tenant should ensure that they have a good reason for disputing termination, such as the landlord’s grounds not being valid. The first step in disputing termination should be to discuss and negotiate with the landlord. If this is not successful in resolving the issue, the tenant can dispute the termination at ACAT.

Terminating for no particular reason—after end of fixed term

The landlord can terminate a residential tenancy agreement without a specific reason only if the date of termination is after the end of the fixed term, or if the agreement is a periodic tenancy. The landlord must give the tenant at least 26 weeks notice of termination.

The landlord cannot terminate the tenancy or evict the tenant before the end of a fixed term without any particular grounds or reasons.

The landlord notifies the tenant of termination by giving the tenant a Notice to Vacate (sometimes called a Termination Notice). The landlord may give a Notice to Vacate before the end of the fixed term, however it cannot be effective until after the fixed term ends.

The tenant can terminate the agreement up to 2 weeks earlier than the termination date listed by the landlord. To do this, the tenant must give the landlord a Notice of Intention to Vacate at least 4 days before they move out.

What if the tenant does not move out by the termination date? If the tenant has not moved out by the termination date, the landlord can apply to ACAT for a termination and possession order. This order requires the tenant to move out immediately. The landlord should not attempt to physically remove or evict the tenant. ACAT will only make an order if a Notice to Vacate was given to the tenant.

ACAT may suspend a termination and possession for up to 3 weeks if immediate termination would cause significant hardship to the tenant.

Terminating a periodic tenancy agreement (or after end of fixed term)

The landlord can terminate a periodic tenancy for any of the following reasons. These grounds can also be used for a fixed term tenancy after the end of the fixed term. The landlord must use a Notice to Vacate and abide by the correct notice periods.

• Landlord intends to live at premises: 4 weeks notice — the landlord can give a Notice to Vacate if they genuinely intend to live at the premises themselves. The landlord must give at least 4 weeks notice.
• Landlord’s relatives intend to live at premises: 4 week notice — the landlord can give a Notice to Vacate if an immediate relative of the landlord genuinely intends to live at the premises. An immediate relative is the landlords son, daughter, son-in-law, daughter-in-law, mother, father, mother-in-law, father-in-law, brother, sister, brother-in-law, or sister-in-law. The landlord must give at least 4 weeks notice.
• Interested person intends to live at premises: 4 weeks notice — the landlord can give a Notice to Vacate if an ‘interested person’ intends to live at the premises. An ‘interested person’ is anyone who has a close family or personal relationship with the landlord which means that there is a reasonable expectation that the landlord would provide accommodation for the person. The landlord must give at least 4 weeks notice.
• Landlord intends to sell the premises: 8 weeks notice — the landlord can give a Notice to Vacate if they genuinely intend to sell the premises. The landlord must give at least 8 weeks notice.
• Reconstruction, Renovations, or Repairs to premises: 12 weeks notice — the landlord can give a Notice to Vacate if they genuinely intend to conduct reconstructions, renovation, or repair work at the premises which cannot be performed while the tenant is living at the premises. The landlord must give at least 12 weeks notice.

The tenant can terminate the agreement up to 2 weeks earlier than the termination date listed by the landlord. To do this, the tenant must give the landlord a Notice of Intention to Vacate at least 4 days before they move out.

What if the tenant does not move out by the termination date?
If the tenant has not moved out by the termination date, the landlord can apply to ACAT for a termination and possession order. This order requires the tenant to move out immediately. The landlord should not attempt to physically remove or evict the tenant. ACAT will only make an order if a Notice to Vacate was given to the tenant.

ACAT may suspend a termination and possession for up to 3 weeks if immediate termination would cause significant hardship to the tenant.

Tenant has breached Residential Tenancy Agreement

The landlord must follow a specific process to terminate the agreement for a breach by the tenant. This does not apply to failure to pay rent (see below). The steps to do this are outlined below:

1. Give notice to remedy breach — the landlord must give the tenant a written notice that requires the tenant to fix the breach within 2 weeks.
2. Give notice to vacate — if the breach is not fixed within 2 weeks, the landlord must then give the tenant a Notice to Vacate. The notice must give the tenant 2 weeks to move out of the premises.
3. Apply to ACAT — if the tenant does not move out within 2 weeks, the landlord can apply to ACAT for a termination and possession order. This order forces the tenant to leave the premises immediately. ACAT may refuse to make a termination and possession order if the tenant has fixed the breach or the tenant has undertaken to fix the breach within a reasonable period and is likely to do so.

Note: ACAT will only make a termination and possession order if the breach is serious enough to justify termination. This usually means that the breach is very serious or cannot be fixed by the tenant. ACAT may suspend a termination and possession for up to 3 weeks if immediate termination would cause significant hardship to the tenant.

Repeated Breaches by tenant
If the tenant has breached the tenancy agreement on 3 separate occasions, the landlord can immediately give a Notice to Vacate after the 3rd breach. In this situation, the landlord does not need to first give the tenant 2 weeks to fix the breach.

Tenant has failed to pay rent

The landlord must follow a specific process to terminate the agreement for the tenant failing to pay rent. The steps to do this are listed below:

1. Rent unpaid for 1 week — rent must be overdue by 1 week before any action can be taken.
2. Give notice to remedy — the landlord must give the tenant a Notice to Remedy at least 1 week after the rent was due. The notice must tell the tenant that if they pay the overdue rent within 7 days that no further action will be taken and the tenancy will continue.
3. Give notice to vacate — if all the overdue rent is not paid within 1 week of giving the notice to remedy, the landlord can give the tenant a Notice to Vacate. The Notice to Vacate must give the tenant 2 weeks to move out.
4. Apply to ACAT — the landlord can apply to ACAT after giving a Notice to Vacate for a termination and possession order. If the tenant does not move out by the termination date, ACAT will then hold a hearing.

Note: if appropriate and just, ACAT can choose not to make a termination and possession order if the tenant has repaid all the overdue rent and is reasonably likely to do so in the future. Instead of making a termination and possession order, ACAT can also choose to make a conditional termination and possession order which requires the tenant to repay the overdue rent. ACAT may suspend a termination and possession for up to 3 weeks if immediate termination would cause significant hardship to the tenant.

Repeated Failures to Pay Rent
If the landlord has previously given the tenant 2 notices to remedy for failure to pay rent, the landlord can immediately give a notice to vacate if the tenant fails to pay rent on a third occasion. The Notice to Vacate can only be given if rent is overdue by 1 week.

Premises not fit for habitation

The landlord can terminate the tenancy agreement is the premises is either:

• unfit for habitation, or
• not available (or will not be available) because of Government action within 4 weeks

The landlord must give the tenant a Notice to Vacate. The landlord must give the tenant at least 1 weeks notice of termination. The tenant does not need to pay rent for any period where the premises is uninhabitable.

Damage or injury caused by the tenant

The landlord can apply directly to ACAT for a termination and possession order for any of the following reasons:

1. Serious damage — the tenant has intentionally or recklessly caused serious damage to the premises or the landlord’s other property.
2. Injury — the tenant has intentionally or recklessly injured the landlord or a member of the landlord’s family.
3. Interference with neighbours — the tenant has seriously or continuously interfered with the quiet enjoyment of a neighbouring premises by its occupants.

The reasons given above also apply if ACAT believes that the tenant is likely to commit any of the actions in the future. The tenant will also be held responsible for any of those actions committed by other people at the premises that the tenant has allowed to be there.

Significant hardship to landlord

The landlord can apply to ACAT for a termination and possession order if they would suffer significant hardship if the tenancy was to continue. ACAT will only grant an order if the landlord’s hardship would be greater than the hardship faced by the tenant due to termination.

Proving significant hardship is difficult. Usually the landlord needs to be in a severely disadvantaged state such as bankruptcy or homelessness to justify termination. ACAT can delay termination for hardship by up to 8 weeks in order to balance the interests of both the landlord and tenant.

False or misleading statements by tenant

The landlord can apply to ACAT for a termination and possession order if the tenant made a false or misleading statement that led to the creation of the tenancy agreement. ACAT will only make an order if it believes that the agreement was induced by the false statement.

Employment-provided accommodation—employment ended

The landlord can apply to ACAT for a termination and possession order if the following 3 conditions are met:

1. the agreement was entered into as part of an employment contract,
2. the tenant has since then ceased to be an employee of the landlord, and
3. the landlord requires the premises to accommodate another employee.

Universities that hold tenancy agreements with visiting academics, staff members, contract employees, or students can also apply to ACAT to terminate the agreement if the tenant ceases to be employed or enrolled.

ACAT will give the tenant at least 4 weeks notice of termination if it makes a termination and possession order.

Tenant unlawfully sublets or assigns premises

The landlord can apply to ACAT for a termination and possession order if the following conditions have been met:

1. Tenant sub-lets in breach of agreement — the tenant purported to assign or sublet the premises in breach of the terms of the agreement. The landlord usually needs to be give permission before the premises can be sublet.
2. Tenant given Notice to Vacate — the landlord has given the tenant a Notice to Vacate (or Termination Notice) because of the purported assignment or subletting.
3. Tenant has not moved out — the tenant has not move out of the premises.

What ACAT can order
If the 3 conditions above have been met, ACAT may make any of the following orders depending on the particular circumstances:

1. Make a Termination and Possession order that requires the tenant and sub-tenant to both vacate the premises.
2. If the sub-tenant has already moved out, ACAT can refuse to make a Termination and Possession Order meaning that the tenancy agreement continues.
3. Make a Termination and Possession order that will only take effect if the sub-tenant does not move out by a specified date.
4. Make a Termination and Possession Order, but suspend its operation for up to 3 weeks if the subtenant would suffer significant hardship if they had to move out in a shorter period. ACAT will only suspend an order if the landlord will suffer less hardship as a result than the sub-tenant.

Tenant repudiates agreement without leaving premises

The landlord can apply to ACAT for a Termination and Possession Order if the tenant has previously repudiated the tenancy agreement but has not moved out by the termination date. ‘Repudiation’ occurs when one party to the agreement (the tenant in this case) indicates to the other party that they no longer intend to be bound by the terms of the agreement. ACAT will only make an order if the following 3 conditions have been met:

1. The tenant has repudiated the tenancy agreement in writing
2. The landlord accepted the tenant’s repudiation (including the termination date)
3. The tenant does not move out by the termination date listed in the written notice of repudiation.

Premises has asbestos

For premises that are affected by asbestos, the landlord may be able to terminate the agreement. Read more about the landlord’s responsibilities with regards to asbestos.

Retaliatory Terminations

Landlords must avoid seeking a Termination and Possession Order from ACAT if it is motivated by retaliation against previous actions by the tenant. Specifically, ACAT will refuse to make an order for the landlord if the landlord cannot prove that their application was not motivated by retaliation, and any of the following circumstances exist:

• the tenant applies to ACAT for an order against the landlord
• the tenant previously complained to a government body about the landlord
• the tenant has taken reasonable action to secure or enforce their rights (e.g. seeking legal advice or mediation)
• ACAT has made a previous order in favour of the tenant

Restrictions on retaliatory terminations are designed to stop the landlord from evicting the tenant simply because there has been some kind of previous conflict between the parties. This does not mean that the landlord cannot successfully get a termination order from ACAT if any of the circumstances listed above exist. The landlord must simply ensure that their grounds for termination are legitimate and genuine before seeking an order from ACAT.

Back to ACT Ending the Tenancy Agreement

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