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?
If the tenant has breached a term of the tenancy agreement and the landlord wants to terminate the agreement, there are two options available. In most circumstances, the landlord should use the first option unless the breach is particularly serious, or if it cannot be fixed.
Option 1: give tenant a breach notice
If the tenant has breached the agreement, the landlord can give the tenant a Form 2. This can be done at any time during the tenancy. The form tells the tenant:
In the Form 2, the landlord must:
If the tenant fixes the breach within the period allowed by the landlord, then the agreement will not be terminated. Alternatively, the tenant can choose to accept the termination and move out within the allowed period.
If the tenant believes they have not breached the agreement, or that they have fixed the breach, then they can apply to the Tribunal to challenge the termination.
If the tenant does not move out after the landlord has given a Form 2 and the breach is not fixed, the landlord can seek a repossession order from the Tribunal that compels the tenant to leave.
Option 2: apply directly to the Tribunal
Alternatively, the landlord can apply directly to Tribunal for an order that terminates the agreement. This can be done at any time during the tenancy. The Tribunal will only terminate the agreement if the breach by the tenant is particularly serious. This usually means that the breach cannot be fixed.
The landlord should only use this option if the breach is very serious and they want the tenancy agreement to be terminated immediately.
If the tenant has breached the agreement by failing to pay rent, the landlord has two options if they want to terminate. In most cases, the landlord should use the first option, unless the tenant has failed to pay rent on multiple previous occasions.
Option 1: give tenant a breach notice
The landlord can give the tenant a Form 2 if a rent payment is at least 14 days overdue. The landlord must give the tenant at least 7 days to repay the overdue rent. The notice can be given at any time during the tenancy.
The tenancy agreement is terminated if the tenant fails to repay the rent within the period allowed by the landlord.
The landlord can specify any day after the 7 day period as the termination day.
Option 2: apply directly to the Tribunal
The landlord can apply directly to the Tribunal for an order that terminates the tenancy if:
The landlord can apply to the Tribunal at any time during the tenancy.
If the landlord chooses this option, the Tribunal may not necessarily terminate the agreement. Depending on the circumstances, the Tribunal may order the Tenant to comply with a rent repayment plan and for the tenancy to continue.
Periodic Agreements (or fixed term agreements after fixed term)
The landlord can terminate a periodic agreement for no reason by giving the tenant a Form 3 and at least 90 days notice.
Fixed Term Agreements at the end of the fixed term
The landlord can terminate a fixed term agreement at the end of the fixed term by giving the tenant a Form 2A and at least 28 days notice.
The landlord can terminate a periodic agreement or a fixed term agreement after the end of the fixed term for any of the following reasons. The landlord must give the tenant a Form 3 and at least 60 days notice in each case.
If the landlord terminates for one of these reasons, they cannot rent the premises on a new tenancy agreement for 6 months after they regain possession.
Demolition
The landlord can terminate if the premises is going to be demolished.
Repairs or Renovations
The landlord can terminate if the premises needs to be vacant so that repairs or renovations can be carried out.
Landlord needs premises for own occupation
The landlord can terminate if they require the premises so any of the following people can occupy it:
Premises will be sold
The landlord can terminate if the premises is going to be sold and must be handed over vacant. The landlord cannot terminate until they have entered a contract to sell the property.
The landlord can terminate the agreement at any time during the tenancy for the following reasons. They must give the tenant a Form 2B and the correct notice period.
The landlord can terminate the agreement by applying directly to the Tribunal in the following circumstances. If the Tribunal decides to terminate the agreement, it will set a termination date. Applications are made online: apply to SACAT
Serious Damage to Premises
The landlord can apply to the Tribunal if the tenant has recklessly or intentionally caused serious damage to the premises. The landlord can also make an application if the damage was caused by someone at the premises with the tenant’s consent.
Injury caused by tenant
The landlord can apply to the Tribunal if the tenant has recklessly or intentionally injured the landlord, the landlord’s agent, or any person near or at the premises. The landlord can also make an application if the injury was caused by someone at the premise with the tenant’s consent.
Hardship to landlord
The landlord can apply to the Tribunal if they would suffer undue hardship if the tenancy continued. ’Undue hardship’ means that the landlord will suffer some kind of injustice 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.
If the Tribunal makes a termination order, the landlord may also be ordered to pay compensation to the tenant for any losses suffered as a result. 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 find new accommodation.
Illegal Use of Premises
The landlord can apply to the Tribunal if the tenant has used the premises for an illegal purpose, such as drug manufacturing or supply. The landlord can make an application even if the tenant merely allowed an illegal activity to occur, regardless of whether they were involved in it.
Nuisance caused by tenant
The landlord can apply to the Tribunal if the tenant has caused a nuisance. A nuisance can include excessive noise or smells affecting neighbouring properties, or other conduct that significantly interferes with other people around the premises.
Interference with peace or comfort by tenant
The landlord can apply to the Tribunal if the tenant has caused or allowed any interference with the reasonable peace, comfort, or privacy of any person living close to the rented premises.
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.