We’ve all heard those tenants from hell stories, and all live in hope that it will never happen to us, or to our clients. But very occasionally, even after doing everything you can to find good tenants, situations may arise where a tenant is not cooperating, not paying their rent, or is otherwise disobeying and disrespecting the rules of your legally binding tenancy agreement. If an agreement can’t be reached with your tenants, then unfortunately, the next step is inevitably eviction. In these types of situations, a tenant will ideally leave of their own accord when asked to.
However, in extreme situations, it may be necessary to involve your state government authority. Each state has its own set of rules around evicting tenants on lawful grounds, so we’ve put together a summary of the rules and regulations around evicting a tenant, on the basis they have done something to breach your tenancy agreement.
Eviction laws and processes in each state
Please note that this information only applies in cases where the tenant has done something wrong to breach their rental agreement. For information related to other situations in which the tenant or landlord wishes to end a tenancy early, visit your relevant state’s website (more details listed below). The first step when you think a tenant’s actions may be in breach of your tenancy agreement, is to go back and carefully read the tenancy agreement, identify the specific wrongdoing, and of course, communicate with your client. If you’re unsure, then speak to a specialist tenancy lawyer for further advice.
Evicting a tenant in NSW
In NSW, you are required to give at least 14 days notice in situations where you wish to end a tenancy due to wrongdoing on the tenants’ part. This includes if the tenant/s are 14 days or more behind with their rent, or if they have otherwise breached your pre-defined tenancy agreement.
The termination notice must:
- be in writing
- be signed and dated by you as the property manager, or by your client
- be properly addressed to the tenant
- give the day on which the residential tenancy agreement is terminated and by which the tenant is required to vacate
- where appropriate, give the grounds or reason for the notice
In some situations, you don’t even need to give the tenant notice, and instead, can apply directly to the NSW Civil and Administrative Tribunal for a possession order. These situations include instances where, upon your inspection of the property, there has been:
- serious damage to the premises or any neighbouring property
- injury to the landlord, agent, employee or one of the tenant's neighbours
- use of the premises by the tenant for illegal purposes such as drug manufacture
- threat, abuse, intimidation or harassment by the tenant
- undue hardship faced by the landlord
- if the tenant has occupied the same premises for 20 years or more.
What happens if the tenant does not vacate within the specified time period?
It should go without saying that if a tenant refuses to leave the property within the specified time period, then you or your client cannot take things into your own hands by changing the locks or shutting down power at the property, otherwise you and your client may be liable to pay heavy fines or compensation to the tenants. If tenants are refusing to vacate, you must apply to the NSW Civil and Administrative Tribunal for a possession order within 30 days of the ‘date to vacate’ specified in your termination notice. The Tribunal will then make a decision, based on the evidence you and the tenant present at the hearing. If the Tribunal makes an order it will give the tenant a date to move out. If the tenant still does not vacate, you will need to obtain a warrant for possession from the Tribunal's Registry and have it enforced by the Local Court Sheriff's Office.
More information from the NSW State government: Ending a tenancy - Information for landlords
Evicting a tenant legally in QLD
Queensland has slightly different rules and processes around evicting tenants from the property. If you wish to end a tenancy agreement before the specific tenancy period is up, the property agent or the landlord must fill out and complete a Form 12 - Notice to Leave Form, and give a physical copy to the tenant/s. There are different minimum notice periods, depending on the situation. Note that the following timeframes apply to general tenancies only, and there are separate timeframes which apply to long and short term moveable dwellings, such as caravans:
- Unremedied breach in tenancy agreement (rent arrears) - 7 days minimum notice required
- Unremedied breach – general - 14 days minimum notice
- Non-compliance with tribunal order - 7 days minimum notice
- Employment termination (of the tenant) - 4 weeks minimum notice
- Abandoned premises - If you believe that the premise has been abandoned then you can either give a notice to the tenant or apply to the Tribunal to end the agreement if they believe, on reasonable grounds, the premises have been abandoned.
- The lessor/agent must give seven days notice or the Tribunal can determine the end date.
- Breach of agreement
- Either party can end the agreement if the other party does not remedy a breach after the Notice to remedy breach (Form 11) process has been followed.
What happens if the tenant does not vacate within the specified time period?
If the tenant/s do not leave the property by the date nominated, then you or your client may apply directly to the Queensland Civil and Administrative Tribunal (QCAT) for a termination order without further notice to the tenant.
Evicting a tenant legally in WA
In WA, there are separate procedures and forms to be used depending on whether you wish to terminate the rental based on non-payment of rent, or for other reasons. If the tenants fall behind with their rent by at least one day, then you or your client can give the tenant a Form 21: Breach notice for non-payment of rent, or write to the tenant. Tenants then have 14 days to bring their rent up to date. If all the outstanding rent is not paid within the 14 days, then you can issue a Form 1A: Notice of termination for non-payment of rent. This ends the residential tenancy agreement and requires the tenants to vacate the premises within the next 7 days.
Apart from not paying rent, a tenant can also breach the rental agreement for any of the following:
- Tenants having a pet on the premises when this is not allowed;
- sub-letting to others when it is not allowed;
- not keeping the property reasonably clean;
- causing damage to the property;
- changing the locks without your approval;
- causing a nuisance to neighbours;
- failing to water or maintain the garden and lawns as agreed;
- using the premises for business purposes without your approval; or
- using the premises for an illegal purpose.
In these situations, the tenants should be given a Form 20: Notice to tenant of breach of agreement (other than failure to pay rent), which gives the tenant 14 full days to fix the problem. If the tenant does not fix the situation within the 14 day period, the next step is to issue a Form 1C: Notice of Termination (not to be used for non-payment of rent). This seeks to end the tenancy no sooner than seven full days after the notice is received. The WA government has a number of handy flowcharts in the appendices of their Lessors Guide that outline the process for evicting tenants in cases of non-payment of rent, and for other reasons.
Evicting a tenant legally in SA
In South Australia, tenants are considered to be breaching a lease agreement if they do any of the following:
- fall more than 14 days behind in the rent (full or part rent)
- cause or allow damage to the property
- cause or allow the comfort, peace and privacy of other people to be disturbed
- don’t keep the property reasonably clean
- allow the property to be used illegally
- don't comply to other lawful conditions included on the lease
In these situations, your first course of action is to give the tenant a legal notice that identifies the problem and the date the tenant needs to leave the property if the problem is not fixed. Do this by issuing a notice to tenant to remedy breach of agreement. Also, it’s important for property managers and landlords to know that it’s not just them who can issue an eviction notice to a tenant, but anyone who is affected by disruptive behaviour of a tenant, including:
- local business owners
- a strata or community corporation
- a police officer
- an authorised officer from Consumer and Business Services.
To submit an application to issue an eviction notice, the applicant must pay a fee (currently $69 as of April 2016) to the South Australian Civil and Administrative Tribunal (SACAT), and you’ll be expected to appear before a tribunal if the application is accepted. This is important for property managers and landlords to try and address any issues early on, and as amicably as possible - otherwise they may find themselves unexpectedly without tenants in their property if they are evicted. In certain more serious cases, the landlord can apply to SACAT to end the lease immediately without giving the tenant any other notice, and this generally can only happen if the tenants are putting the safety of others at risk, or causing serious damage to the property, or if the landlord believes that their own safety is at risk.
Find more information on the South Australian Government's website:
Evicting a tenant in ACT
All tenancy agreements in the ACT are standardised in the state’s Standard Tenancy Terms (STT), and terminating a tenancy can only be done in accordance with the STT, as well as the RTA Residential Tenancies Act 1997 (RTA, which governs all tenancies in the ACT). The landlord or agent can serve a notice to vacate, however, only the ACT Civil and Administrative Tribunal (ACAT) can order an eviction, and only the police can carry out the eviction. A landlord seeking to terminate a tenancy must follow a strict process set out in the RTA.
The ACT has different processes and minimum notice periods depending on whether the eviction is on the grounds of non-payment of rent, or for another reason. For issues regarding non-payment of rent, the tenant must have rent arrears of at least 7 days (this includes only paying part of the rent). On the 8th day of arrears, the landlord or agent may serve a Notice to Remedy (NTR), which must state that if the outstanding rent is paid in full within 7 days, the tenancy will continue as normal, with no further action. However, if the tenant does not pay the rent within the specified 7 days, you may issue them with a Notice to Vacate (NTV), which gives the tenant 14 days to move out. At this time the landlord can also make an application for a TPO to ACAT. However the ACAT hearing cannot take place until the date for vacation specified in the NTV has passed.
Evicting a tenant in VIC
In Victoria, a landlord, or managing agent, can request the tenant to vacate the property for a wide variety of reasons by serving a notice to vacate. Depending on the reasoning and its severity, there are differing minimum notice periods that are applicable.
Immediate notice before the lease end date;
- If tenant or visitor inflicts malicious damage to the premises or common areas
- If the tenant or visitor endangers neighbours
14 days notice before the lease end date;
- If the tenant owes at least 14 days rent
- Has breached a VCAT (Victorian Civil & Administrative Tribunal) order
- The premises is being used for illegal purposes (like drug manufacture)
- Other tenants have been brought in without consent (subleasing)
- Tenant has not paid the bond as agreed
- The tenant has a child living at the premises when the agreement does not allow children
According to Consumer Affairs Victoria, a notice to vacate must;
- Be sent to the tenant at the premises by registered post or hand delivered to an occupant aged 16 years or over.
- Be addressed to the tenant
- Give a specific reason or state that no reason is given in the case of a 120-day notice.
- Be signed by the landlord (or their agent)
- Allow the correct amount of time to give the notice
- Give the date for the tenant to leave
You can find the notice to vacate form on the Consumer Affairs Victoria website, along more detailed information, including notice periods and laws that apply to vacate orders that take effect at the conclusion of the agreed leasing period are available through Consumer Affairs Victoria. If the tenants have been served a notice to vacate that complies with the above requirements but have failed to vacate the premises, then the landlord or managing agent can seek a possession order for eviction from VCAT. In difficult circumstances, this order can be used to obtain a warrant that in turn can be executed by the Victorian Police to evict the occupant/s.
Evicting a tenant in NT
In the Northern Territory, there are a range of notices to vacate that are specific to the reason. These are;
- Notice to Remedy Unpaid Rent - applicable when the tenant is 14 days in arrears.
- Notice to Remedy Breach by Tenant
- Notice by Landlord to Terminate
A notice of termination by the landlord or managing agent must;
- Be signed by the landlord
- Include the address of the premises
- Contain the date on which the tenant is to vacate
- The grounds of termination (if any)
For a periodic tenancy, a landlord may terminate the tenancy without a specified reason with 42 days notice to the tenant. According to the Northern Territory Residential Tenancies Act, a landlord, or managing agent, can evict a tenant via the Supreme Court if one or more of the following serious breaches occur;
- Premises is flooded, unsafe, or uninhabitable
- Where illegal drug activity is performed in the property
- Tenant is repeatedly causing a nuisance, has committed violent acts to neighbours or landlord, or has repeatedly invaded the peace or privacy of a nearby resident.
Should the tenant not vacate the premises after the time period of the notice has lapsed, the landlord or managing agent can seek the a repossession of premises order from the commissioner or the Court. Should this order be attained, the tenant will be given a maximum of 5 business days to vacate. This should go without saying but during that time, the landlord can not forcibly remove the tenant. In order to obtain the order, the Court will consider the following before making a decision;
- Whether the tenant has caused damage or nuisance to neighbours.
- The accidents that have occurred while the tenant was present in the property.
- The seriousness of the alleged breach of the leasing agreement
- Whether the tenant has the means to make rental payments
Evicting a tenant in TAS
In Tasmania there are 6 main reasons a landlord or managing agent can evict a tenant. Each carry a specific notice period.
- Breach of the lease agreement - requires 14 days notice.
- This includes a breach of the Residential Tenancy Act and/or the lease agreement between landlord and tenant.
- Tenant has caused a substantial nuisance - requires 14 days notice.
- A substantial nuisance refers to a serious issue including acts of violence.
- Rent has not been paid - requires 14 days notice.
- A fixed term rental period is to expire within 60 days - requires 42 days.
- In a non-fixed (periodic) lease, if the landlord wishes to sell, renovate, repurpose, or wishes to take ownership - requires 42 days.
- If the premises have been repossessed by a lending institution that must sell the property to recover money - requires 60 days notice.
For a notice to vacate to be valid it must have;
- The date the notice is to be served
- The owner’s name
- The tenant’s name
- The full address of the rented premises
- Valid and detailed reasons for seeking eviction
- The date the notice takes effect
If the tenant/s refuse to vacate the property, the landlord or managing agent can seek a Vacant Possession Order from the Magistrates Court of Tasmania by completing the application and also serving it to both the Court and the tenant. You must present both the tenancy agreement and your notice to vacate that complies with the above conditions. In addition to these documents the Magistrates Court will only present a vacant possession order if the reason behind the eviction is just, the tenant received the application for the order and the notice was properly delivered.
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Alternatively, you might also be interested in 12 Ways to Attract Quality Tenants, How to Prevent and Respond to Negative Tenant Reviews and How PropertyMe is Different from the Competition.
Did we miss anything in The Ultimate Guide to Evicting Tenants In Each State? Please let us know in the comments below.