NSW Termination by Landlord

The Landlord can terminate the tenancy agreement under certain circumstances, including serious breaches by the tenant, or the expiry of the fixed term.

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?

The landlord can terminate the tenancy agreement in a number of circumstances. The landlord should use the Landlord’s Termination Notice to notify the tenant of the termination. Before terminating the tenancy because the tenant has breached the agreement, the landlord should attempt to negotiate with the tenant. If the landlord does decide to terminate the agreement, they should be careful to do so according to the law, otherwise the termination may not be valid.

When a tenant receives a termination notice from the landlord, they have 2 options:

  1. They can either comply with the notice by vacating the premises by the termination date, or
  2. They can challenge the termination if they believe it is invalid. To challenge a termination, the tenant has a number of options depending on the circumstances:
    1. The first and best option is to negotiate with the landlord to resolve any issues and see if the landlord is willing to withdraw the termination notice. Negotiation to reach a mutually convenient solution is almost always the best option. In many share accommodation situations, a good compromise option may be for the landlord to allow the tenant some more time to move out so they can find a new place to live before their current agreement is terminated.
    2. If negotiation is unsuccessful, the tenant can apply to the Tribunal to challenge the validity of the termination if they believe the termination notice was not given correctly or if they believe the termination is a retaliatory eviction.
    3. Under all other circumstances of termination, the tenant challenges the landlord’s termination by remaining in occupation of the premises. It is then for the landlord to seek an order from the Tribunal which confirms the termination and forces the tenant to move out. The tenant will have an opportunity to dispute the termination before the Tribunal.

Check out our Resolving Disputes page for more information.

There is a certain number of reasons why the landlord can lawfully terminate the tenancy:

1. End of Fixed Term Tenancy

The landlord can give a termination notice that terminates the tenancy after the end of the fixed term. The notice must be given at least 30 days before the date of termination. Therefore, the landlord can give a termination notice before the end of the tenancy if the date of termination specified in the notice is after the end of the fixed term.

The landlord cannot lawfully terminate a fixed term tenancy before the end of the fixed term without a specific reason. If the landlord does terminate the tenancy before the end of the fixed term, the tenant can challenge it at the Tribunal and/or be awarded compensation.

If the tenant does not vacate the premises by the termination date, then the landlord can apply to the Tribunal for a termination order. So long as the termination order given by the landlord was valid, the Tribunal will order the tenant to leave the premises.

2. Terminate a Periodic Tenancy

The landlord can give a termination notice at any time for a periodic tenancy agreement. The notice must be given at least 90 days before the termination date specified in the notice.

If the tenant does not vacate the premises by the termination date, then the landlord can apply to the Tribunal for a termination order. So long as the termination order given by the landlord was valid, the Tribunal must order the tenant to leave the premises.

3. Sale of the Rented Premises

If the landlord has entered a contract to sell the rented premises that requires it to be handed over vacant, they can give a notice of termination to the tenant. The termination date in the notice must be at least 30 days after the termination notice is given.

If the tenancy agreement is for a fixed term, the termination date cannot be before the end of the fixed term. Therefore, the landlord should avoid entering a contract to sell that requires the rented premises to be handed over vacant before the end of the fixed term. If the landlord does do this, they may be liable to compensate the tenant.

If the tenant does not vacate the premises by the termination date, then the landlord can apply to the Tribunal for a termination order. So long as the termination order given by the landlord was valid, the Tribunal must order the tenant to leave the premises.

4. Tenant Breaches the Agreement

The landlord can give a termination notice at any time if the tenant has breached the residential tenancy agreement. The termination date specified in the notice must be at least 14 days after the termination notice is given. If the tenancy agreement is for a fixed term, the termination date can be before the end of the fixed term.

If the tenant does not vacate the premises by the termination date, the landlord can apply to the Tribunal for a termination order that will force the tenant to leave the premises. The Tribunal will only make a termination order if the landlord can prove 3 things:

  1. Termination Notice given Correctly - that the termination notice was given according to law and the tenant has not vacated the premises
  2. Breach by Tenant - that the tenant has breached the agreement
  3. Breach justifies Termination - that the breach is sufficient to justify the termination of the tenancy agreement

How do breaches work in co-tenancy situations?

When there are multiple co-tenants under the one tenancy agreement, every co-tenant is responsible for any breach by any other co-tenant.

When is a breach sufficient to justify termination by the Tribunal?

Not every breach of a tenancy agreement by the tenant means that the landlord is justified in terminating the tenancy. The Tribunal will only make a termination order if the breach is sufficiently serious to justify termination in the circumstances of the case.

As a general rule, if the breach is very severe and if it causes some kind of harm or loss to the landlord, then it will be considered sufficient for termination. Alternatively, if the breach is relatively minor and/or termination would very harsh on the tenant, then the Tribunal is less likely to order termination.

If you are a landlord or tenant in this situation, you should seek legal advice on your specific circumstances. See our Resolving Disputes page for more information.

Examples where the Tribunal is more likely to order termination:

  • tenant intends to move into other accommodation in near future
  • tenancy was only intended to be for short-term, temporary accommodation
  • if the tenant made unauthorised alterations to the premises
  • tenant caused a nuisance or was uncooperative—e.g. refusal to discuss with landlord, causing nuisance to neighbours, keeping pets at premises without landlord’s permission

Examples where the Tribunal is less likely to order termination:

  • rent increase makes premises unaffordable for tenant
  • if the tenant has been at the premises for a long time
  • if termination would unnecessarily disrupt and traumatise children living at the premises
  • if the tenant does not have any other available accommodation options
  • if the tenant has any medical condition or disability that would make termination unnecessarily harsh
  • the breaches by the tenant were accidental
  • if the landlord has also breached the tenancy agreement

5. Non-Payment of Rent by Tenant

If the tenant breaches the tenancy agreement by not paying rent, the landlord can give a termination notice. The notice must state that it is for the non-payment of rent. The landlord can only give a termination notice for non-payment of rent if it is 14 or more days overdue. When rent is payable in advance, it must be overdue by at least 14 days from the scheduled payment date. The notice must specify a termination date at least 14 days after the termination notice is given to the tenant.

Landlords should use the standard form [termination notice] supplied by the NSW Fair Trading. The notice must tell the tenant that they do not have to vacate the premises by the termination date if they pay all the overdue rent or enter into a rent repayment plan with the landlord, unless the Tribunal orders otherwise.

Although not required, a good way for landlords to avoid having to use a termination notice for unpaid rent is to instead make written demands for the rent before the 14 days expire.

The landlord can apply to the Tribunal for a termination order before or after the termination date specified in the termination notice.

How can a tenant repay rent after a termination notice?

If the tenant is given a termination notice for non-payment of rent, this does not necessarily mean that the tenancy will be terminated. To avoid termination, the tenant has 2 options:

  1. Pay Overdue Rent - the tenant can pay all of the overdue rent
  2. Repayment Plan - the tenant and landlord can agree on a rent repayment plan. This plan allows the tenant to pay the over due rent in instalments over a longer period. The terms of the repayment plan—i.e. amount/size of instalments—are agreed to between the landlord and tenant. A repayment plan is a good option if the tenant has suffered some hardship and will struggle to pay all of the overdue rent at once. The tenant must continue to pay further rent as it accrues.

When can the tenancy agreement be terminated for non-payment of rent?

If the tenant does not pay the overdue rent or enter into a repayment plan, then the Tribunal will likely make a termination order. The order will set out a date by which the tenant must leave the premises.

If the tenant pays all the overdue rent or enters and complies with a repayment plan, the Tribunal cannot make a termination order. The landlord must notify the Tribunal of this if they have applied to the Tribunal for a termination order.

If the Tribunal has made a termination order but the tenant then pays all the overdue rent or enters a repayment plan with the landlord and does not vacate the premises, the termination order no longer applies. The landlord must notify the Sheriff of this if the Tribunal has issued a warrant for possession of the premises.

In some circumstances, the landlord can still apply for a termination order even if the tenant has the paid the overdue rent or entered a repayment plan. The Tribunal will only make a termination order in these circumstances if the landlord can prove that the tenant has an overall poor payment history from before the currently overdue rent.

6. Serious Damage or Injury Caused by Tenant or Occupant

The landlord can apply at any time to the Tribunal for a termination order if the tenant or an occupant of the premises do either of the the following (or allow another person to):

  • Serious Damage - if the tenant or an occupant cause serious damage to the rented or neighbouring premises deliberately or recklessly. This includes any property provided with the premises for use by the tenant or occupant. Serious damage means that the property is extensively damaged or made uninhabitable.
  • Injury - if the tenant or an occupant deliberately or recklessly injure any of the following people:
    • landlord
    • landlord’s agent
    • employee/contractor of the landlord
    • any person on the rented or neighbouring premises

The landlord is allowed to apply for a termination order for serious damage or injury without giving the tenant a termination notice first. However in most circumstances, unless it is an urgent situation, it is good practice for the landlord to notify the tenant with a termination notice. If the landlord does not give a termination notice, the tenant will still be notified by the Tribunal of the landlord’s application.

If the Tribunal decides to terminate the tenancy, it can order immediate repossession of the rented premises by the landlord. This means that the tenant would have to vacate the premises as soon as possible, or they may be evicted by the Sheriff.

7. Illegal Use of the Premises

The landlord can apply at any time to the Tribunal for a termination order if the tenant or occupant of the premises does either of the following (or permits another person to):

  • Illegal Drugs - if the tenant or an occupant use the rented or neighbouring premises to manufacture, sell, cultivate, or supply any illegal drugs. For the Tribunal to order termination, the premises must be deliberately or recklessly used for one of the above drug-related purposes. The Tribunal will be more reluctant to order termination if there is only a small quantity of drugs and the premises is not being used specifically for manufacturing or supplying.
  • Other Illegal Activity - if the tenant or an occupant deliberately or recklessly use the premises for any other criminal activity. For example, using a rented premises to conduct organised crime. The Tribunal will only order termination if the criminal activity is serious enough to justify it. The nature of the criminal activity, any previous illegal uses, and the history of the tenancy will be considered by the Tribunal when it decides whether the tenancy should be terminated.

The landlord is allowed to apply for a termination order for illegal uses of the property without giving the tenant a termination notice first. However in most circumstances, unless it is an urgent situation, it is good practice for the landlord to notify the tenant with a termination notice. If the landlord does not give a termination notice, the tenant will still be notified by the Tribunal of the landlord’s application.

8. Threat, Abuse, Intimidation, or Harassment by Tenant

The landlord can apply to the Tribunal at any time for a termination order if the tenant or an occupant of the premises does any of the following (or permits another person to):

  • Threats or Abuse - if the tenant or occupant seriously abuses or threatens, or persistently threatens or abuses, any of the following people:
    • landlord
    • landlord’s agent
    • employee/contractor of landlord
  • Intimidation or Harassment - if the tenant or occupant deliberately behaves in a way that is likely to intimidate or harass any person.

The landlord is allowed to apply for a termination order for threats, abuse, intimidation, or harassment without giving the tenant a termination notice first. However in most circumstances, unless it is an urgent situation, it is good practice for the landlord to notify the tenant with a termination notice. If the landlord does not give a termination notice, the tenant will still be notified by the Tribunal of the landlord’s application.

If the Tribunal decides to terminate the tenancy, it can order immediate repossession of the rented premises by the landlord. This means that the tenant would have to vacate the premises as soon as possible, or they may be evicted by the Sheriff.

9. Hardship to Landlord

The landlord can apply at any time to the Tribunal for a termination order if they would suffer ‘undue hardship’ because of special circumstances if the tenancy is not terminated. ’Undue hardship’ means that the landlord will suffer some kind of injustice if the tenancy continues. ’Special circumstances’ involves an exceptional situation that creates injustice for the landlord if the tenancy continues. There is no set circumstances, however an example would be if a landlord’s current residence was destroyed by fire and they needed to occupy the rented premises as they have no other accommodation options.

The landlord is allowed to apply for a termination order for undue hardship without giving the tenant a termination notice first. However in most circumstances, unless it is an urgent situation, it is good practice for the landlord to notify the tenant with a termination notice. If the landlord does not give a termination notice, the tenant will still be notified by the Tribunal.

If the Tribunal makes a termination order, the landlord may also be ordered to pay compensation to the tenant for any losses suffered because of the termination. For example, if the tenancy is terminated before the end of a fixed term, the landlord may have to compensate the tenant for the costs of having to unexpectedly move out and finding new accommodation. The tenant must make a reasonable effort to limit any costs associated with this. If they do not make a reasonable effort, the Tribunal will only order the landlord to partly compensate the tenant.

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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.