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?
Under South Australian law, there are a certain number of circumstances where the tenancy can be terminated. The landlord or tenant can choose to terminate the tenancy in some situations, and there are other instances where the tenancy will be automatically terminated.
As a general rule, a tenancy agreement cannot be lawfully terminated before the end of a fixed term, unless it is for a specific reason as listed below for landlords and tenants. Termination before the end of the fixed term for no lawful reason may mean the party terminating the agreement has to compensate the other party.
In most circumstances, if a landlord or tenant wants to terminate the tenancy, they must notify the other party in writing. You should use the following forms:
For landlords to give to tenants
For tenants to give to landlords
To make sure that the notice is valid, you should carefully read the information below and complete all sections as required. Depending on the reason for termination, there are different minimum notice periods.
Applying to the South Australian Civil and Administrative Tribunal
In some circumstances listed below, the party terminating the agreement must apply directly to the Tribunal for a termination order. The best way to apply to the Tribunal is online.
A tenancy agreement is automatically terminated if:
If the landlord terminates a co-tenancy, the termination applies to all of the co-tenants.
If one co-tenant leaves the tenancy but the agreement continues for the remaining co-tenants, the leaving co-tenant should make sure they are removed from the agreement as a tenant by using the Change of Tenants Form. It is important that leaving co-tenants do this to avoid liability for anything that happens after they move out. The outgoing co-tenant must seek the landlord’s consent before they can move out. If the landlord does not consent, the tenant can seek an order from the Tribunal which terminates their interest in the tenancy.
If the agreement between a landlord and head-tenant is terminated, then the agreement between the head-tenant and sub-tenant will also be terminated. If this occurs, the head-tenant should notify the landlord and sub-tenant as soon as possible to ensure that the sub-tenant moves out in time.
If the sub-tenant wants to stay at the premises, they can attempt to negotiate a new tenancy agreement directly with the landlord.
Depending on the circumstances, the head-tenant may be liable to compensate the sub-tenant for terminating the sub-tenancy agreement, especially if termination was before the end of a fixed term.
Under a fixed term tenancy, the landlord can only terminate the agreement before the end of the fixed term under specific circumstances. If the landlord does not have a specific reason for termination, then they can only terminate a fixed term agreement after the end of the fixed term. If the agreement is for a periodic tenancy, then the landlord is free to terminate at any time so long as they do so according to the legal requirements.
Under a fixed term tenancy, the tenant can only terminate the agreement before the end of the fixed term under specific circumstances. If the tenant does not have a specific reason for termination, then they can only terminate after the end of the fixed term. If the agreement is for a periodic tenancy, then the tenant is free to terminate at any time so long as they do so according to the legal requirements.
The tenant abandons the premises if they move out and stop paying rent without any legal justification. Abandonment is a breach of the tenancy agreement, meaning that the tenant may be liable to compensate the landlord for any losses including lost rent.
If the landlord believes that the premises has been abandoned, they should apply to the Tribunal for an order confirming abandonment. An order from the Tribunal allows the landlord to retake possession and order the tenant to pay the landlord any compensation.
As a general rule, if either the landlord or tenant suffers some kind of loss as a result of the other party’s breach of the agreement, then they will be entitled to compensation. Compensation should be sought by applying to the Tribunal.
A common instance where the landlord will be entitled to compensation is if the tenant has abandoned the premises before the end of a fixed term. In this situation, the landlord will generally be entitled to compensation for lost rent for the remainder of the fixed term, and any other costs associated with the tenant’s breach.
Duty to mitigate losses
The person claiming compensation must take reasonable steps to mitigate their losses. For example, if the tenant abandons the premises before the fixed term, the landlord should take steps to find a new tenant to reduce their losses from forfeited rent. The landlord cannot simply leave the premises empty and expect to be paid the full amount of lost rent without taking some steps to reduce their losses.
If the tenant does not move out by the termination date, the landlord can apply to the Tribunal for a repossession order. The Tribunal will make a repossession order if the agreement has been validly terminated.
In some circumstances, the Tribunal may delay the repossession order if the tenant would suffer severe hardship if they had to move out immediately.
The landlord can only enter the premises for repossession under three circumstances:
If a repossession order is not complied with by the tenant within 14 days, the landlord can apply to the Tribunal for the bailiff to enforce the repossession order.
The bailiff can ask the police to assist with removing the tenant if they do not leave voluntarily. Under no circumstances should the landlord attempt to physically remove the tenant or the tenant’s goods from the premises.
The landlord must keep any personal documents safe for at least 28 days after retaking possession of the premises. In that time, the landlord must take reasonable steps to contact the former tenant and allow them to collect the documents.
Personal documents can include:
If the documents are not claimed in 28 days, the landlord can destroy or dispose of them. For documents like passports, the landlord should check before destroying them whether they are required to return the document to any government authority.
If the goods are perishable (e.g. food), the landlord can remove and dispose of them immediately.
Any non-perishable goods of low value can be removed and disposed of at least 2 days after the landlord retakes possession. A good is of low value if the cost of removal, storage, and sale would be greater than the value of the good.
For any other goods, the landlord must safely keep them for at least 28 days and take reasonable steps to notify the former tenant. If the goods are not claimed in 28 days, the landlord can choose to either sell or dispose of the goods.
If the landlord decides to sell the goods, they can only keep enough of the proceeds to cover their costs for storage, handling and sale. The remainder of the proceeds should be paid to the former owner of the goods. If the identity of the owner is unknown, the money must be paid to the South Australian Government.
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.