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 Victorian 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.
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 of the notice as required. Depending on the reason for termination, there are different minimum notice periods. To ensure your notice is valid, make sure you give the notice in time.
A tenancy agreement is automatically terminated if:
The agreement can also be terminated by the landlord or tenant (see below).
When the Landlord Terminates the agreement
If the landlord terminates a tenancy agreement with multiple co-tenants, the termination applies to all of the co-tenants.
When a co-tenant terminates their agreement
If one co-tenant is leaving the agreement but the other co-tenant(s) remains, the leaving co-tenant should negotiate with the landlord to have their name removed from the tenancy agreement. If the co-tenant remains on the agreement, then they will be held jointly liable with the remaining co-tenants for any damage or loss caused.
If the agreement between a head-tenant and landlord is terminated, then the agreement(s) between the head-tenant and sub-tenant(s) will also be terminated. If this occurs, the head-tenant should notify the landlord and sub-tenants.
The sub-tenants must either vacate the premises or negotiate a new tenancy agreement directly with the landlord or with a new head-tenant.
The tenant can lawfully terminate the tenancy in these circumstances:
If you are a tenant terminating the tenancy because of 3 successive breaches by the landlord, or because the landlord has not complied with an order of the Tribunal, you should generally not leave the premises immediately after giving the notice of intention to vacate. If you do leave immediately but the landlord does not accept the termination and successfully challenges its validity at the Tribunal, then your termination will be considered invalid. If you have already left the premises, then you will have abandoned the premises. This means you could be liable to compensate the landlord.
Therefore, the best option is usually to give the notice of intention to vacate, and then wait to hear whether the landlord accepts the termination or challenges it at the Tribunal. If the matter goes to the Tribunal, you should wait until a decision is made.
The landlord can terminate a fixed term tenancy after the end of the fixed term in the following circumstances: (This section also applies to periodic tenancies)
The landlord can terminate a tenancy at any time, before or after the end of a fixed term, for the following reasons: (This section also applies to periodic tenancies)
The tenancy agreement is terminated if the tenant abandons the premises. The premises is abandoned if the tenant permanently vacates without giving a valid notice and stops paying rent. Abandonment is a breach of the tenancy agreement. This means that the tenant may have to compensate the landlord for any losses suffered as a result.
Abandonment occurs differently depending on whether the agreement is periodic or for a fixed term:
If there are multiple co-tenants, abandonment only occurs if all the tenants have vacated the premises and rent is no longer being paid.
If the premises has been abandoned, the landlord is allowed to enter and retake possession. Because it is not always clear whether the premises has actually been abandoned, it is good practice for the landlord to seek an order from the Tribunal. If the landlord attempts to enter and retake possession but the premises has not actually been abandoned, then they will be in breach of the tenancy agreement and may have to compensate the tenant.
If the landlord or tenant unlawfully terminates the agreement (i.e. terminates the agreement in none of the ways listed above), they may be liable to compensate the other party for any loss suffered as a result. If you think you have suffered any loss as a result of an unlawful termination, you should apply to the Tribunal.
If termination is lawful (i.e. it falls into one of the categories listed above), then the tenant need only pay rent for the period until they move out.
If the tenant unlawfully terminates the agreement, e.g. they abandon the premises before the end of the fixed term, then the landlord will generally be entitled to compensation for lost rent for the period until the end of the fixed term.
The landlord must make an effort to mitigate any losses. This means that the landlord must try to find a new tenant for the premises. If the landlord does find a new tenant, then the old tenant will only have to pay compensation for rent up until the new tenancy agreement begins.
The landlord can also claim compensation for other breaches of the tenancy agreement, such as damage caused by the tenant to the premises through a malicious or careless act.
Depending on the circumstances, the landlord may also be able to claim for re-advertising costs and re-letting fees.
If the landlord unlawfully terminates the agreement, e.g. does not give sufficient notice of termination, then the tenant may be able to claim for losses incurred as a result. For example, if the tenant incurred excessive moving out fees because of the unlawful termination, then the landlord may be liable to pay compensation.
If the tenant does not move out by the termination date specified in the notice to vacate or the notice of intention to vacate, then the landlord can apply for a possession order from the Tribunal. Any application for a possession order must be made within 30 days of the termination date. Once the Tribunal issues a possession order, the landlord must then give it to the tenants.
If the tenant does not comply with the possession order by moving out in the required period, then the landlord can apply for a warrant of possession. This warrant authorises police officers to evict the tenant from the premises. Landlords cannot personally conduct an eviction, and under no circumstances should landlord use physical force to evict a tenant.
What happens to goods left behind depends on whether they are personal documents or other goods.
If the tenant leaves behind any personal documents, such passports, licenses, or identity documents, the landlord must take care of them for 90 days and take reasonable steps to notify the tenant about where and when they can collect the documents.
If the documents are not collected within 90 days, then the landlord can dispose of them. The landlord should check that it is not a criminal offence to destroy certain types of documents, such as passports.
The landlord can charge any reasonable costs they have incurred in taking care of the documents before handing them back to the tenant. The landlord cannot charge a fee or any other amount however.
The landlord can remove/destroy/dispose of any goods left behind that have no monetary value, are dangerous, or are perishable foods.
If goods of monetary value are left behind, then the landlord can only remove/destroy, dispose of them if the total cost of removal/disposal is greater than the estimated value of the goods. If the landlord is unsure about value, then they can apply to Consumer Affairs for a valuation.
If the landlord is not allowed to remove/destroy/dispose of the goods, then they must store them for at least 28 days in a safe place. Within 7 days of storing the goods, the landlord must notify the tenant of where and when they may collect the goods.
The landlord can charge any reasonable storage and notification costs they have incurred while taking care of the goods before handing them back to the tenant. The landlord cannot charge a fee or any other amount however.
If the goods are not claimed within 28 days, then the landlord may sell them at a public auction. The landlord can keep any proceeds of the auction necessary to cover the costs of storage, selling, and notification of the tenant. They may also keep any amount owed to them by the tenant under an order of the Tribunal. Any remaining money should be paid to the tenant.
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.