Evicting a tenant
Evicting your tenants is a major step to take in your portfolio’s management and while the procedure for evicting a tenant is a fairly simple one, it should be conducted with due diligence and process.
Why would you consider evicting a tenant?
Have you landed yourself with a bad tenant?
Have they stopped paying rent? Have they inflicted damage upon your property, or breached the conditions of their lease? Perhaps you just need access to your property for renovations and would rather they weren’t around.
You may need to consider issuing your tenants with an eviction notice in order to resolve the situation. How and when this can occur is a process dictated by each state and territory’s tenancy legislation.
It is important to remember tenants have significant rights enshrined within legislation, and due process needs to be followed in order to adhere to these rights.
The first step in evicting a tenant is to establish a genuine reason for the eviction. Generally, the more serious or urgent the reason, the less time required. For example, evicting a tenant from the property simply because you need access to it will require much more notice than rental arrears or lease breaches.
Common grounds for eviction can include:
• Tenant failing to pay rent
• Tenant consistently in arrears/behind on payments
• Damage to the rental premises
• Reports of tenant disturbing neighbours
• Using the property for illegal activities, or purposes not approved in the lease agreement
• Breach of clauses in lease agreement
• The tenancy is outside of its fixed agreement and no new agreement has been signed
What rights does a tenant have?
Landlord and tenant laws differ by jurisdiction, but generally the tenants have the right to:
• Appropriate reasons for eviction notice
• Right to lawful eviction by the designated government authority (not the landlord)
• Access to the property during the period of notice
• Right to privacy during period of notice (the landlord cannot enter the property whenever they see fit)
What rights does the landlord have?
• Right to initiate vacate orders should a tenant fall behind on rent by a specified period of time
• Right to seek access to the property via the valid channel
• Right to submit a claim on tenant bonds as recompense for damage
First steps: how and when to give an eviction notice
Generally, once a legitimate reason for evicting a tenant has been identified, the process follows this order:
• Issue written notice to vacate, citing the relevant section of that state or territory’s tenancy act
• Adhere to the timeframes relevant to your jurisdiction
• Refer to body governing tenancies in your jurisdiction if tenant does not respond to requests to vacate.
Understanding the type of agreement between you and your tenant is key to understanding how to evict your tenant legally.
The two most common tenancy agreements are a fixed-period tenancy and a rolling tenancy, or periodic tenancy.
A fixed term lasts for a specified period of time before expiring. In most circumstances, the tenancy will then roll over to a periodic tenancy or the tenant will be required to sign a new fixed-term lease agreement. Evicting the tenant due to the sale of the property or to gain access for large-scale renovations during the fixed-term tenancy is not an option.
A periodic tenancy has no specified time, and can operate on a week-to-week or month-to-month basis.
The specifics of the eviction process by jurisdiction are listed below.
In the ACT, a landlord needs to issue a notice to remedy before they can consider issuing a notice to vacate. This does not apply where two notices to remedy have previously been issued – if this is the case, the landlord can simply serve a notice to vacate.
After a notice to remedy has been served, the landlord must wait an additional seven days before serving a written notice to vacate. On this notice to vacate, the tenant needs to be provided with the correct period of notice, the legal grounds for termination and the details that gave rise to the grounds.
In the majority of cases involving rental arrears or breaches of the lease agreement, a landlord must provide a tenant with a written 14-day termination notice in order to evict.
The notice, which must be signed by the landlord, must specify the address, the date on which the property must be vacated, and the grounds for termination.
To terminate a tenancy in the Northern Territory, landlords must apply to a rental officer for an order requiring the tenant to leave. It is also possible to apply for an eviction order. These applications can be made in conjunction or separately.
If an eviction order is made, the rental office serves the tenant with the order. Once service is confirmed, an affidavit of service is prepared.
When ending a tenancy, a landlord has to issue a ‘notice to leave’. The notice must be on the correct form and state the grounds it is issued on. It must also specify the date by which the tenant has to vacate the property and give the required amount of notice. The required notice for rental arrears is 7 days, the required notice for a breach of lease is 14 days.
Where a tenant has breached the tenancy agreement, a landlord should issue them with a written notice to remedy the breach or leave the property. The landlord must give the notice to the tenant and keep a copy for their records.
The tenant has seven days to remedy the breach. If the notice is due to rent arrears, the tenant has one further day to leave the property.
The notice should clearly state what the breach is and how it can be remedied, giving the required number of days' notice.
To evict a tenant for failure to pay rent or a breach of lease agreement, it is necessary to issue them with a notice to vacate 14 days before the eviction date.
The notice to vacate must include the date of serving the notice, the names of the tenant(s) and landlord, the property address, detailed reason(s) for the notice being issued, and the date on which the notice takes effect.
Landlords have to begin the process of terminating a tenancy by serving a valid notice to vacate. The period of notice required for rental arrears and lease breaches is 14 days.
The notice must be sent by registered post or hand delivered, be addressed to the tenant(s), give a specific reason for the notice to vacate, be signed by the landlord, and give a date for the tenant to leave.
When evicting a tenant, a landlord has to issue a formal notice of a tenancy agreement breach. The notice, which must detail the breach, gives the tenant 14 days to rectify the breach.
Should the tenant not rectify the breach in that time, the landlord can issue a notice of termination. This gives the tenant a further seven days after the notice is received to vacate the property.
What happens if my tenant refuses to leave?
Hopefully your tenants will comply with the notice of eviction you have issued, or you can come to alternative arrangements to rectify the situation and keep their occupancy in place. If not, you or your real estate agency will need to make further applications to the relevant authority in your state or territory, who will then initiate the next step in the process to forceful eviction.
Below are the relevant bodies, with links to each of their websites.
Australian Capital Territory: ACT Civil & Administrative Tribunal (ACAT)
New South Wales: NSW Civil and Administrative Tribunal (NCAT)
South Australia: South Australian Civil and Administrative Tribunal
Tasmania: Magistrates Court of Tasmania
Western Australia: Magistrates Court of Western Australia
Northern Territory: Northern Territory Civil and Administrative Tribunal