ACT Termination by Tenant
The tenant can only terminate the tenancy agreement under certain circumstances, which are listed below. Tenants should ensure they use the correct notice and abide by the minimum notice periods.
This guide covers landlords (or head-tenants) and tenants (or sub-tenants) in a Residential Tenancy. This applies to the majority of share accommodation and residential property rental situations. To confirm it covers your situation visit What is my share accommodation situation?
When can the tenant terminate the tenancy?
The tenant can terminate the tenancy agreement under certain circumstances, which are listed below. The exact process that the tenant and landlord should follow will depend on the reason for termination. Read the information below carefully to see which process you should follow.
Important: once the tenant has given the landlord a Notice of Intention to Vacate, they should not move out immediately. The tenant should continue to pay rent and occupy the premises until either the landlord accepts the termination or the Tribunal grants a termination order. If the landlord does not accept the termination and/or the Tribunal rules that the termination was invalid, but the tenant has already moved out and has stopped paying rent, then they will be considered to have abandoned the premises. Abandonment is a breach of the tenancy agreement, meaning that the tenant may be liable to compensate the landlord. In most circumstances, the best option for the tenant is to continue to pay rent and occupy the premises until the termination is confirmed and the termination date arrives.
Terminating at end of fixed term (or afterwards)
The tenant can terminate a fixed term tenancy without a particular reason at the end of fixed term, or after the end of the fixed term. The tenant must give the landlord at least 3 weeks notice of when they intend to move out.
The tenant must give the landlord a Notice of Intention to Vacate. The notice can be given before the end of the fixed term, however the termination date must be at or after the end of the fixed term.
Terminating a periodic tenancy agreement
The tenant can terminate a periodic agreement at any time by giving the landlord a Notice of Intention to Vacate. The tenant must give the landlord at least 3 weeks notice of when they intend to move out.
Terminating before end of the fixed term (breaking the lease)
If the tenant terminates a fixed term tenancy before the end of the fixed term, and there are no legal grounds to do so, this is called ‘breaking the lease.’ In most cases where the tenant breaks the lease, the tenant will be liable to compensate the landlord for lost rent.
If the tenant wants or needs to break the lease, good practice is to give the landlord as much notice as possible and assist in finding a replacement tenant. Doing so will reduce the amount of compensation that the tenant will be liable for.
The amount of compensation that the tenant will be liable for is also subject to a number of restrictions. See the section about compensation for more detailed information.
Landlord breaches tenancy agreement
If the landlord has breached the tenancy agreement, the tenant has two options:
- Give landlord notice to remedy breach — if the tenant simply wants the landlord to fix (remedy) a breach of the tenancy agreement, and if the breach is not particularly serious, then the tenant should use this option. The tenancy can only be terminated if the breach is not fixed by the landlord in time. The process that the tenant must follow to use this option is outlined below.
- Apply directly to ACAT for termination order — if the breach is very serious or cannot be fixed by the landlord, then the tenant can apply directly to ACAT for a termination order. ACAT will only make a termination order if the breach is serious enough to justify termination. This means that the tenant should only use this option if the breach is severe, cannot be fixed, or the tenant wants to move out because of it.
How to give the landlord notice to remedy a breach
Tenants must follow these steps to use the first options listed above:
- The tenant must give the landlord a written notice which gives the landlord 2 weeks to fix a breach of the agreement.
- If the landlord fixes the breach within the 2 week period, then the tenancy continues as normal.
- If the landlord not fix the breach within the 2 weeks, or if the breach cannot be fixed, then the tenant must give the landlord a Notice of Intention to Vacate. The move out date listed in the notice must be 2 weeks from when the notice is given. The tenant must continue to pay rent until the tenancy is terminated.
- If the landlord fixes the breach before the termination date, the tenant has the option to withdraw the Notice of Intention to Vacate, meaning the tenancy continues, or they can terminate the agreement anyway.
Damage or injury caused by the landlord
The tenant can apply to ACAT for a termination order is the landlord does any of the following:
- Danger to Premises — intentionally or recklessly causes serious danger to the premises or the property of the tenant.
- Injures Tenant — intentionally or recklessly injures the tenant or a member of the tenant’s family.
The reasons given above also apply if ACAT believes that the landlord is likely to commit any of the actions in the future. The landlord will also be held responsible for any of those actions committed by other people at the premises that the landlord has allowed to be there.
Premises has become uninhabitable
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 tenant must give the landlord a Notice of Intention to Vacate. The tenant must give the landlord at least 2 days notice of termination. The tenant does not need to pay rent for any period where the premises is uninhabitable.
Hardship to tenant—termination before end of fixed term
The tenant can apply to ACAT for an order to terminate a fixed term tenancy agreement before the end of the fixed term if the tenant would suffer significant hardship if the tenancy continued. ACAT will only grant an order if the tenant’s hardship would be greater than the hardship faced by the landlord due to termination.
Proving significant hardship is difficult. Usually the tenant needs to be in a severely disadvantaged state such as bankruptcy to justify termination.
False or misleading statements made by the landlord
The tenant can apply to ACAT for a termination order if the landlord 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.
Back to ACT Ending the Tenancy Agreement
These legal guides provide a brief summary and introduction of the laws and regulations affecting share accommodation. They do not cover all cases in all legal jurisdictions and might not apply in your specific share accommodation situation. It is important that you use this information as a guide only and seek independent Legal Advice or consult the Relevant Acts. We do not accept any liability that may arise from the use of this information.