Ending a Fixed Term Tenancy

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What is a fixed term tenancy?

A fixed term tenancy is an agreement that is for a fixed time (such as 6 or 12 months). The agreement has a definite start and end (expiry) date.

A fixed term tenancy agreement is usually written. Rent may be payable weekly, fortnightly, monthly or any other period agreed by the owner and tenant.

When does a fixed term tenancy end?

The agreement ends on the date written in the tenancy agreement. The owner/agent does not have to give notice if they want you to move when the agreement expires. You also do not have to give notice to end the tenancy if you move out on the day the agreement expires (s.68 (3) Residential Tenancies Act 1987(WA)).

It is always a good idea to talk with the owner/agent before the expiry date to be clear about whether your tenancy will end or continue and to help avoid any confusion or disagreements. You should leave a forwarding address when you vacate your tenancy, otherwise you could be fined (s. 53(3): Penalty $1000).

Can I stay in the premises after the agreement ends?

You can continue to rent the premises after your fixed term tenancy expires if you and the owner/agent agree, or the owner/agent does not take the correct action to make you move out. Depending on the agreement between you and the owner, you may continue in the tenancy as a fixed term tenant or become a periodic tenant.

You may have to sign another tenancy agreement if you want to continue renting the same premises. Be sure you agree to all the terms in the new tenancy agreement before signing it, and add any new conditions you want to be included. See chapter 2.08 The Tenancy Agreement for more information.

If the owner/agent does not agree to you staying in the premises and you do not move out, they can apply to court to evict you. The owner/agent must make the application to the court within 30 days. See chapter 4.07 Evictions for more information.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice. The owner can not force you to move out without a court order. Penalty $4000.

Can the owner end my fixed term agreement before the expiry date?

The owner/agent can only end a fixed term agreement before the expiry date if:

  • You and the owner agree
  • You and the owner can end the agreement at any time if you both agree. The owner can not make you end the agreement early.

If the owner/agent wants you to move out before your agreement expires, you can ask the owner to compensate you for the reasonable costs you will incur in moving out early (such as electricity, gas and telephone re-connection fees and removal costs).

If you want to move out before the agreement expires, the owner may ask you to pay the reasonable costs they will incur as a result (such as advertising and rent until new tenants are found). Make sure you get any agreement in writing.

You breach the agreement

The owner/agent has some options if you have breached your tenancy agreement by not complying with any of the terms or conditions of your tenancy agreement. They may give you a Breach Notice stating a time (not less than 14 days) to fix the breach.

This breach notice can be on a standard form such as a Form 20: Notice of Breach of Agreement (by tenant) or a Form 21: Notice for Non-Payment of Rent or it can be just a letter, but it must be in writing if the owner wants to take any further action against you.

The breach notice must give you details of how the owner claims you are in breach of your agreement. See chapter 3.08 When the Tenant is in Breach of the Agreement for more information. A breach notice must give you at least 14 days to fix the problem.

If you do not fix the breach in the time given in the breach notice (no less than 14 days), the owner/agent may then give you a Notice of Termination.

NOTE: If you are in rent arrears, the owner/agent has the choice of whether to first give you a Breach Notice followed by a Notice of Termination, or to Tenants Advice Service - Tenants’ Rights Manual July 2009 4.02 page 3 immediately issue with you a Notice of Termination. See chapter 3.02 Rent Arrears for more information.

There are three different Notices of Termination. Samples of each form/notice are attached to the end of this chapter.

  • Form 1A Notice of Termination for Non-Payment of Rent

The owner/agent can give you a Form 1A if you are in rent arrears and were given a breach notice but still didn’t pay the rent owing in the given time (s.62(4)(a)). Paying rent after the Form 1A notice has been issued doesn’t stop the owner from continuing with their action of going to court and seeking an eviction order (s. 62(4)(b)). See chapter 3.02 Rent Arrears for more information.

  • Form 1B Notice of Termination for Non-Payment of Rent–

The owner/agent can choose to give you a Form 1B immediately if your rent is in arrears without first giving you a breach notice. If you do not pay the rent, or move out, within the time stated on the form, a court hearing may be requested by the owner to order you to pay the rent owing and terminate your tenancy.

The court hearing will not take place until 21 days after the notice was given (s. 62(5)(c)). When using the Form 1B the owner/agent must stop their action of going to court if you pay the rent owing at any time up to one day before the day of the court hearing (s.62(5)(b)).

  • Form 1C Notice of Termination

The Form 1C can be given if there are other breaches apart from rent arrears. For example, if you have been accused of not keeping the place clean, or of causing a nuisance to the neighbours (see chapter 3.08 When the Tenant is in Breach of the Agreement).

With the Form 1C, the owner/agent must fill out the section of the form stating the grounds for terminating the tenancy according to the relevant section of the Residential Tenancies Act 1987 (WA). A Notice of Termination will tell you that you have to move out, but this does not necessarily end the tenancy agreement. The Notice of Termination is not an Eviction Order. Tenants Advice Service - Tenants’ Rights Manual July 2009 4.02 page 4

The premises are destroyed or taken over

The owner/agent can end the tenancy by giving you 7 days notice if the property is destroyed (eg. by a cyclone or fire), is rendered uninhabitable (eg. is condemned), or taken over by any authority by a compulsory process (eg. the state government resuming the land) other than because of a breach by the owner (s 69.). In this situation you must be given a Form 1C Notice of Termination with the correct part filled in.

The tenancy agreement should not be terminated using the above process if the property can not be lived in because of a breach by the owner (eg. not doing necessary repairs). The owner should take immediate steps to fix the property or seek to end the tenancy with your approval. In this situation you can ask the owner to compensate you. See chapter 3.12 Compensation for Loss Incurred due to a Breach by the Owner for more information.

You cause serious damage or injury

The owner/agent may immediately apply to court for your tenancy to be ended and to take back possession of the premises if you have, or are likely to, intentionally or recklessly cause or permit serious damage to the rented premises or injury to the owner, agent, neighbours or their guests (s 73). An order given under this section takes effect immediately.

The owner will suffer undue hardship

The owner may apply to court for your tenancy to end on the grounds that they would suffer hardship if they had to terminate the tenancy under any other section of the Residential Tenancies Act 1987 (WA) (s. 74).

If the court gives the owner the order to end the tenancy, the court can decide when the tenancy is to end and order compensation to you for any loss caused by the tenancy being ended (s.74 (2)(b)).

It is important you go to court to discuss your situation if the owner makes this type of application. The Residential Tenancies Act 1987 (WA) has no provision allowing the tenant to terminate the tenancy due to hardship. Contact Tenants Advice Service for more information.

You abandon the premises

If the owner/agent believes you have abandoned the premises they may seek an order from the court declaring that the premises have been abandoned (s 77).

To avoid this happening it is important that you tell the owner/agent if you are going away for a holiday or other circumstances which might make the place look abandoned. See chapter 4.06 Abandoned Premises and Goods for more information.

Can I end my fixed term tenancy before the expiry date?

You can only end a fixed term agreement before the expiry date if:

  • You and the owner agree

You and the owner/agent can end the tenancy at any time if you both agree, but any agreement to terminate must be in writing (s. 60(1)(g)).

Some owners/agents are willing to come to some arrangement for you to break the contract early. However, this can be expensive and can involve you being liable to pay the owner for all reasonable loss they will suffer (such as having to pay for advertising costs).

You will probably also be liable for rent until the end of the agreement or until new tenants are found, and for the maintenance of the premises (such as lawn mowing). Make sure you understand all the costs you will be liable for.

The details of the arrangement should be in writing. For example, that the owner/agent agrees to take all reasonable steps to re-let the premises and you agree to pay for advertising. It can be a good idea to specify where to advertise, the size of the advertisement and the total number of advertisements as costs can vary considerably.

Beware of other losses that the owner/agent may try to claim from you, such as a “break of lease” fee, a “final inspection” fee or a “re-inspection” fee. If you have any concerns about the fairness of the losses the owner is claiming as a result of your terminating the agreement, you should seek advice (see chapter 1.12 Community Contacts).

The property is destroyed or taken over

You can end the tenancy by giving the owner/agent 2 days notice if the property is destroyed (eg. by a cyclone or fire), is rendered uninhabitable (eg. is condemned), or taken over by any authority by compulsory (eg. the state government resuming the land) (s. 69).

You must give the reason you are ending the tenancy, and it cannot be caused by a breach of the agreement. Get more advice before giving notice if you think this situation applies to you (see chapter 1.12 Community Contacts).

The owner is in serious breach of the agreement

If the property can not be lived in because of a breach by the owner (eg. not doing necessary repairs), you may apply to court for the agreement to be ended due to a breach by the owner. In considering whether to give you the order, the court must be satisfied that the breach is serious enough to justify ending your tenancy. See chapter 4.04 Ending the Tenancy when the Owner Breaches the Agreement for more information.

It is important that you keep any letters or other evidence to show the court the seriousness of the breach. You can also call witnesses to support your application. See chapter 6.02 Preparing for Court for more information.

Tenants Advice Service - Tenants’ Rights Manual July 2009 4.02 page 5 Tenants Advice Service - Tenants’ Rights Manual July 2009 4.02 page 6 You may also ask the court to order the owner to pay you compensation for any loss you have incurred due to the owner’s breach and for having to end the tenancy early. See chapter 3.12 Compensation for loss incurred due to a breach by the owner for more information.

What if I have to end my agreement early but the owner won’t agree?

This is a problem! In some situations (for example: job transfer, offer of a Department of Housing (DH) place, domestic violence) you may need to move out before the end of your tenancy. If this is the case you will need to consider your options carefully and weigh up the consequences. See chapter 1.12 Community Contacts for agencies that may be able to give advice and/or assistance on negotiating with the owner/agent.

You do not have the legal right to end your fixed term tenancy early without the owner’s/agent’s permission or an order from the court. Your tenancy agreement is a contract which is legally binding. You can only ask the court to end the tenancy if the owner is in serious breach (see above).

You can ask DH to defer the offer of a place until your fixed term tenancy is due to end if the owner/agent won’t agree for your agreement to end early. Contact DH for more information about their “Allocations Policy”.

Move out and be liable for costs

If the owner/agent won’t agree that you can end your agreement early and you move out anyway (s.60 (1)(f)). This is called “abandonment”. You will be liable for the costs of breaking your tenancy contract (s. 78).

As discussed above, costs associated with breaking a tenancy agreement can be expensive. Sub-let the premises Sub-letting the premises when you have moved out means that you let another person take over your tenancy and you assume the role of the owner (eg, you collect rent off tenants to then give to the agent/owner).

Even though you may have a tenancy agreement with the sub-tenant, you are still legally liable for the terms of your tenancy agreement with the owner. You may only sub-let if your tenancy agreement with the owner allows for this or you have asked the owner/agent for permission to sub-let and they have agreed in writing.

The owner/agent cannot unreasonably refuse permission for you to sub-let if your tenancy agreement has a clause allowing you to sub-let. Sub-letting may not be the best option. For example, you are liable for any costs the sub-tenant may incur (such as rent arrears, damage to premises, etc. Tenants Advice Service - Tenants’ Rights Manual July 2009 4.02 page 7

What if the owner/agent agrees that I can end my agreement early but doesn’t find new tenants?

It is important that you and the owner/agent are clear about what is involved with you breaking your agreement and what steps the owner/agent agrees to take for new tenants to be found (see the previous section “Can I end my fixed term tenancy before the expiry date?”).

If the owner/agent agrees you may break your agreement but does not take reasonable steps to find new tenants, you may be able to argue that the owner has failed to mitigate (minimise the costs involved in you breaking the contract) and reduce any claim of costs by the owner/agent. For more information see chapter 3.11 Duty to Mitigate Loss. List of Tenants’ Rights Manual chapters referred to in this info sheet:

SAMPLE FORMS ATTACHED TO THE END OF THIS CHAPTER: