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 Tasmanian 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. Termination before the end of the fixed term for no lawful reason may mean the party terminating the agreement has to pay compensation.
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:
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 directly to the Tasmanian Magistrates Court
In some circumstances, you must apply directly to the Magistrates Court for a termination order. To apply to the Court, use Form RT02.
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 outgoing co-tenant should make sure they are removed from the agreement by using the Tenant Transfer Form. It is important that outgoing co-tenants do this to avoid liability for anything that happens after they move out. The outgoing and incoming co-tenants should also contact the landlord directly to ensure they are aware of the change in tenants.
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.
The landlord can only terminate the tenancy agreement in 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. Different rules apply for periodic agreements.
Under a fixed term tenancy, the tenant can only terminate the agreement before the end of the fixed term in specific circumstances. If the tenant 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 tenant is free to terminate at any time so long as they do so according to the legal requirements.
Abandonment occurs when the tenant moves out of the rented premises and stops paying rent without either giving a Notice to Terminate or receiving a Notice to Vacate. If the tenant notified the landlord that they were moving out, then it is called ‘early vacation’ and not abandonment.
Abandonment or ‘early vacation’ is a breach of the tenancy agreement. This means that the tenant will be liable to compensate the landlord for any losses they have suffered as a result.
The landlord or tenant can receive compensation if they have suffered any losses caused by a breach of the tenancy agreement by the other party.
Compensation for landlords is usually paid out of the Rental Bond first. If the bond does not cover the compensation, the Court can order an additional amount to be paid.
A common reason for compensation is when the tenant breaks the lease. Under these circumstances, the tenant is generally liable to pay rent until the end of the fixed term or until a new tenant moves in, whichever occurs sooner.
Landlord’s Duty to Mitigate Losses
Landlord’s are required by law to take reasonable measures to reduce (mitigate) any losses they incur because of a breach by the tenant. This includes taking reasonable measures to find a replacement tenant if the original tenant breaks the lease.
If the landlord does not take reasonable measures, they may not be entitled to the full amount of compensation.
If the agreement has been terminated but the tenant has not moved out by the termination date, the landlord should seek an Order for Vacant Possession from the Magistrates Court.
To apply for an order, the landlord should use the Form RT02 form.
If the Court makes an order, this will force the tenant to leave after the landlord gives a copy to the tenant. Under no circumstances should the landlord attempt to physically remove the tenant themselves.
Depending on the value of any goods left behind, the landlord is required to treat them differently.
Goods of no value
If the goods appear to have no value, the landlord may dispose of them. The landlord must complete a statutory declaration describing how they were disposed of.
Goods worth less than $300
If the goods have total value of less than $300, the landlord can sell them. The landlord must complete a statutory declaration describing how they were sold.
Goods worth more than $300
If the goods have a total value of more than $300, the landlord can apply to the Court for an order allowing them to be sold.
The landlord can use the proceeds to cover any outstanding debts owed by the tenant and the costs involved in selling the goods. Any money remaining must be held in an interest bearing account for the tenant for at least 6 months.
If the money is not claimed by the tenant within 6 months, it must be paid to the Residential Tenancies Commissioner.
If goods left behind appear to not belong to the tenant (e.g. hired goods), the landlord should take reasonable steps to contact the owner and return them.
Although it is not required by law, if the tenant leaves behind any personal documents, the landlord should attempt to return them to the tenant. Personal documents can include passports, licenses, bank statements, identity documents, and other significant documents.
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.