Defending an Eviction - Non-Breach Eviction

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Grounds in clause 96
The most common non-breach reasons for a landlord to end the tenancy are the grounds given in clause 96 of the Standard Terms. These grounds will only apply during a periodic tenancy, not a fixed term. Reasons provided are that the landlord:

  • Wants to move in or wants a family member or somebody else close to the landlord to move into the property (cl 96(1)(a) - (c));
  • Wants to sell the property (cl 96 (1)(d)); or
  • Wants to do major repairs, renovation or demolish the property (cl 96(1)(e)).

Posting Clauses
Another reason for the landlord to terminate may be that the landlord has been posted back to the ACT for work, and he or she wants to move back in to the premises. You would need to have an additional term in your lease allowing either party to give notice to terminate because of being posted to or away from the ACT (s 8(2)). A posting clause may be used to terminate a fixed term tenancy.

Defending a non-breach eviction
In order to defend a non-breach eviction you would need to show that either the notice or the grounds given were incorrect.

If what you need is just more time, it is best to try to negotiate with the landlord when you receive the notice to vacate. A negotiating point is that ACAT can order the termination of the tenancy but suspend that order for up to 21 days if satisfied the tenant would otherwise suffer significant hardship, greater than the hardship to the landlord if the order was suspended (s 47 (2)).

A defence based solely on the fact that the notice period given is incorrect may not succeed because the landlord can apply for a waiver of a defect in the notice (s 59). The tribunal may grant this if satisfied the tenant will be no worse off than they would have been had the notice been correct.
Alternatively, the tribunal could correct the defect, so that the tenant gets the correct period of notice (s 83(k)).

If you believe the grounds are incorrect, you would need to have some evidence for the tribunal to consider. For example, if the ground for the notice was that the landlord intends to sell the property and, at the same time, the property is advertised in the To Let section of the paper, this is a basis for the tribunal to require the landlord to prove that the grounds are genuine. If not satisfied that the grounds exist (s 47(1)(a)) the tribunal may refuse to order the termination of the tenancy.

Significant hardship
Another ground for termination is where the landlord can demonstrate that if the tenancy was to continue, he or she would suffer significant hardship (s 50). Notice is not required in this case; the landlord can apply direct to ACAT for a TPO. To defend such an application, you would need to show the tribunal how you would suffer greater hardship if the tenancy was ended than the landlord would suffer if it was not ended.

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Information supplied courtesy of the Tenants Union of ACT

Further information and advice for ACT tenants can be sourced from

www.tenantsact.org.au