Western Australia Termination by Landlord

The landlord can only terminate the tenancy agreement under certain circumstances, which are listed below. Landlords should ensure they use the correct notice and abide by the minimum notice periods.

Termination by giving written notice

The landlord must use Form 1C (Form 1A or Form 1B if termination is for failure to pay rent) to terminate the tenancy agreement for any of the following reasons:

Terminating without a specific reason

1. Fixed Term Tenancy: 30 days notice—the landlord can terminate a fixed term tenancy agreement for no specific reason at the end of the fixed term, or at any point afterwards. The landlord must give at least 30 days notice of termination. Unless the landlord has one of the specific reasons listed below, they generally cannot terminate a fixed term agreement before the end of the fixed term. If they do, they may be liable to compensate the tenant for any losses suffered as a result.
2. Periodic Tenancy: 60 days notice—the landlord can terminate a periodic tenancy agreement for no specific reason at any time. The landlord must give at least 60 days notice of termination. If the tenant is unhappy with the termination, they can apply to the Magistrate’s court for either of two orders:
   1. Extend notice period—the tenant can apply to the court for an order that extends the notice period for a further period of up to 60 days. This allows the tenant additional time to arrange for moving out and to find new accommodation.
   2. Cancel termination—the tenant can apply to the court for an order that cancels the termination if they believe that the landlord has terminated the agreement because the tenant has previously made a complaint to a government authority or has tried to enforce their legal rights in some way. This prevents landlords from attempting what is called a ‘retaliatory eviction’ after the tenant makes a complaint against the landlord.

If the tenant has sought an order from the court that fixes the maximum rent for the premises, the landlord cannot then give a termination notice for no specific reason. If a court is satisfied that the landlord is not motivated by the fixing of rent, it can allow the landlord to give a termination order.

Terminating for a specific reason

1. Breach by Tenant: 7 days notice—the landlord can terminate a tenancy agreement at any time because the tenant has breached the agreement and has not fixed that breach. This does not apply to breaches by failing to pay rent (see below). The landlord must give 7 days notice of termination. Two conditions must be met before the landlord can give a termination notice:
   1. The landlord must have given the tenant a Form 20: Breach of Agreement, and
   2. The tenant must have failed to fix the breach within 14 days of receiving the Form 20.
2. Failure to Pay Rent: 7 days notice—the landlord can terminate a tenancy agreement at any time because the tenant has failed to pay rent. The landlord must give at least 7 days notice of termination. The landlord has two options in giving a termination notice for failure to pay rent:
   1. Notice of Breach—the landlord can give a termination notice if they have previously given the tenant a Form 21: failure to pay rent and the tenant has not repaid the overdue rent. The landlord must give the tenant at least 14 days to repay the rent before they can give a termination notice. The landlord should use Form 1A to give notice of termination in this situation.
   2. Immediate Termination—the landlord can give a termination notice immediately after the tenant fails to pay rent. In this circumstance, the landlord cannot apply to the Court for a possession order if the tenant repays the overdue rent before the termination date. If the landlord has already applied for a possession order, then the application will be cancelled if the tenant pays the overdue rent, and the court application fee paid by the landlord, at least one day before the court hearing. The landlord should use Form 1B to give notice of termination in this situation.
3. Contract to Sell: 30 days notice—the landlord can terminate a periodic tenancy agreement at any time or a fixed term agreement after the end of the fixed term, if they have entered a contract to sell the rented premises. The contract to sell must require that the premises be handed over with vacant possession—i.e. that the tenant not still be living there. The landlord must give 30 days notice of termination. The landlord cannot terminate a tenancy agreement before the end of a fixed term for this reason. Landlords should keep this in mind when selling the premises, otherwise they may have to compensate the tenant.
4. Premises Destroyed/Uninhabitable: 7 days notice—the landlord can terminate a tenancy agreement at any time if the premises is wholly or partly destroyed or made uninhabitable. This does not apply if the destruction or damage was caused by the landlord or tenant’s breach of the agreement. The landlord must give the tenant at least 7 days notice of termination. This circumstance usually applies where the destruction or damage is caused by a natural event, such as flooding or fire.
5. Premises Cannot Lawfully be used as Premises: 7 days notice—the landlord can terminate a tenancy agreement at any time if the premises can no longer be lawfully used as a premises, either because of a zoning or legal classification of the premises, or because it has been compulsorily acquired by the government. The landlord must give the tenant at least 7 days notice of termination.

What happens if the tenant does not comply with the termination notice?
If the tenant does not move out by the termination date (expiry date) listed in the termination notice, the landlord should seek a possession order from the court that requires the tenant to leave. How this works depends on whether the agreement is for a fixed term or is periodic.

1. Fixed Term Agreements—the landlord can apply within 30 days of the termination date for a possession order. The court order will require the tenant to move out within 7 days. Generally, so long as the termination notice was given properly, the court will make a possession order. If however the tenant would suffer hardship because of termination, the court may delay it for up to 30 days. Furthermore, if the tenancy has only existed for 90 days or less, the court will not make a possession order unless the tenant originally sought out a tenancy of less than 90 days, or the landlord made clear at the beginning of the tenancy that they would use the premises after the end of the tenancy in a way that could not allow the tenant to stay.
2. Periodic Agreements—the landlord can apply within 30 days of the termination date for a possession order. The court order will require the tenant to move out within 7 days. Generally, so long as the termination notice was given properly, the court will make a possession order. If however the tenant would suffer hardship because of termination, the court may delay it for up to 30 days.

Termination by applying directly to court

The landlord can apply directly to the Magistrate’s Court to terminate the agreement for any of the following reasons. You must use a Form 12 to apply for a court order (or Form 12 Perth for Perth Residents). It is also good practice, but not necessary, for the landlord to notify the tenant using a termination notice Form 1C.

1. Tenant injures landlord or occupant—the landlord can apply directly to the court for termination if the tenant has intentionally or recklessly injured the landlord, the landlord’s agent, or another person occupying the premises or a neighbouring premises. The landlord can also apply if they believe that it it likely that the tenant will do so in the future. The tenant will also be liable if they allow someone else lawfully at the premises with their permission to cause injury. If the court makes a termination order, it will also make a possession order that has immediate effect meaning the tenant must move out as soon as possible.
2. Tenant seriously damages premises—the landlord can apply directly to the court for termination if the tenant has intentionally or recklessly caused serious damage to the premises, or allowed serious damage to occur. The landlord can also apply if they believe that it it likely that the tenant will do so in the future. The tenant will also be liable if they allow someone else lawfully at the premises with their permission to cause injury. If the court makes a termination order, it will also make a possession order that has immediate effect meaning the tenant must move out as soon as possible.
3. Undue Hardship to Landlord—the landlord can apply directly to the court for termination if they would suffer ‘undue hardship’ if the agreement continued. ‘Undue hardship’ usually means some kind of extreme disadvantage, for example if the landlord’s current residence is destroyed and their only other accommodation option is to move into the rented premises. If the court makes a termination order, it will also make a possession order requiring the tenant to move out within an appropriate period, depending on the circumstances. The court may also order the landlord to pay compensation if appropriate.

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