Ending a Periodic Tenancy

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What is a Periodic Tenancy?

A periodic tenancy is an agreement that runs for an indefinite length of time; there is no set finishing date.

A periodic tenancy can be written or verbal. Rent may be payable weekly, fortnightly, monthly or any other period agreed by you and the owner. See chapter 2.08 The Tenancy Agreement for more information.

When can a Periodic Tenancy end?

A periodic tenancy may end if:

  • You and the owner/agent agree (in writing)
  • After you or the owner/agent give the correct notice in writing; or
  • An order is made by the court.

How can I end my Periodic Tenancy?
You can end your periodic tenancy at any time after giving the owner the correct notice. The notice you give must:

  • Be in writing
  • State the address of the rented premises
  • State the day (date) you will hand back vacant possession (give the premises back to the owner)
  • Include your name, signature and date.

The written notice can be either a letter or a Form 22: Notice by tenant of Termination. The Form 22 can also be referred to as an example of what to include in your written letter.

You do not have to give a reason for ending your tenancy. Keep a copy of the letter or the Form 22 that you give to the owner/agent in case there is any dispute.

You should leave a forwarding address when you vacate your tenancy, otherwise you could be fined (s.53: Penalty $1000). The forwarding address that you give to the owner/agent need not be the address of your new residence. It may be a PO Box or care of (c/-) someone you can rely to pass mail onto you.

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.

If you decide to move out for no particular reason

You must give the owner/agent written notice of not less than 21 days (s.68 Residential Tenancies Act 1987 (WA)).

If 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 a compulsory process (eg. the state government resuming the land) (section 69). This is called termination where the agreement is frustrated.

You must give the reason you are ending the tenancy. You may need evidence to prove the premises are uninhabitable (for example, a report by a structural engineer or local council environmental health officer).

Get more advice if you think this situation applies to you (see chapter 1.12 Community Contacts). The agreement should not be terminated using the above process (s.69) if the property can not be lived in because of a breach by the owner (eg. not doing necessary repairs).

Instead, you may choose to go to court for the agreement to be ended and to claim compensation from the owner. See chapters 3.09 When the Owner is in Breach of the Agreement, 3.10 Requesting that the Owner Remedy a Breach of Agreement and 3.12 Compensation for Loss Incurred Due to a Breach by the Owner for more information.

If you and the owner agree

You and the owner/agent can end the periodic tenancy at any time if you both agree (s.60 (1)(g)). The details of your agreement must be in writing.

OWNER OR AGENT?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act 1987 (WA).

If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

How can an owner end my Periodic Tenancy?

An owner can end your periodic tenancy at any time after giving you the correct notice. The notice must be in writing and in the correct Notice of Termination form as required by the Residential Tenancies Act 1987 (WA). An exception to this is where the owner/agent and you have both agreed to end the tenancy, but this agreement must be in writing.

There are three different Notice of Termination forms, which are sometimes printed on different coloured paper:

Which notice the owner/agent gives you will depend on the reason the owner/agent is seeking to terminate your tenancy. Each form must be signed by the owner/agent and filled in correctly for it to be legal (s.61). Samples of Form 1A, 1B and 1C Above.

How much notice does the owner have to give me?

The amount of notice the owner/agent must give you differs depending on the reason the owner/agent is seeking to terminate your tenancy.

If the premises are sold

The owner/agent must give you at least 30 days notice (s 63.) if the rented property is sold and it is a condition of sale that the property be provided vacant to the new owner. In this situation you must be given a Form 1C: Notice of Termination with the correct part filled in.

If 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) (section 69).

In this situation you must be given a Form 1C: Notice of Termination with the correct part filled in.

The owner must fix the property or seek to end the tenancy with your agreement if the property can not be lived in because of a breach by the owner (eg. not doing necessary repairs).

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.

If the tenant and owner agree

You and the owner/agent can end the periodic tenancy at any time if you both agree (s 60. (1)(g)). The details of your agreement must be in writing, it does not have to be on a special form. The owner/agent can not end your tenancy in this way unless you give your consent.

If the tenant breaches the agreement

The owner/agent may give you a breach notice giving you time to fix a breach of your agreement (rent arrears or other breach). The breach notice does not have to be on a special form, it may be a letter, but it does have to be in writing.

The owner/agent may give you a Form 1C Notice of Termination if you do not fix the breach in the time given in the breach notice (for example not less than 14 days). The Notice of Termination must be in the right form. See chapter 3.08 When the Tenant is in Breach of the Agreement for more information.

If the breach is for rent arrears the owner/agent must follow a breach notice with a Form 1A Notice of Termination for Non-Payment of Rent.

The owner/agent may decide not to give you a breach notice and to give you a Notice of Termination immediately you are in rent arrears. In this situation you must be given a Form 1B Notice of Termination for Non-Payment of Rent. See chapter 3.02 Rent Arrears for more information about the different actions the owner/agent may take if you are in rent arrears.

For no particular reason

The owner/agent can end your tenancy for no reason by giving you not less than 60 days notice (s 64.). In this situation you must be given a Form 1C Notice of Termination with the correct part filled in.

Are there any rules about how Notices should be given?

s.85 Residential Tenancies Act 1987 (WA) outlines the law regarding service of notices. A notice may be given personally or sent by ordinary post (not certified mail) to the owner/agent’s or tenants last known address. The address can be the last known place of residence, employment or business.

Where the notice is to the owner it can be given to the owner, the agent of the owner, any person who seems over the age of 16 who seems to be living with the owner, or to the person who ordinarily receives the rent under the agreement (eg. a caretaker). Remember to state the name of the owner on the notice, not the agent’s name, and send it to care of (c/-) the agent.

Where the notice is to the tenant it can be given to the tenant, any person who seems over the age of 16 who seems to be living with the tenant, or the person who ordinarily pays the rent under the agreement.

If the owners or tenants address is unknown, a notice is deemed to have been given if copy of the notice is published in a daily newspaper that is distributed throughout the state (eg. The West Australian).

What if I don’t move out after the owner gives me a Notice of Termination?

Even though a Notice of Termination will tell you that you have to move out by a certain date, the Notice is NOT an Eviction Order. It is illegal for any owner to evict a tenant without a Court Order - Penalty $4000.

If you do not move out after you are given a Notice of Termination the owner/agent can apply to court for your tenancy to be ended and to be given permission to take back possession of the premises (eviction order). The owner/ agent must apply to court within 30 days of the termination date on the notice or start their action again.

You may continue to live in the premises until the owner’s/agent’s application is heard by the court. The owner/agent can never force you to move out without a court order (s. 80: Penalty $4000).

If you receive a Notice of Termination, you can stay until the owner applies to court and a decision is made about your situation.

How can I stop the owner from evicting me?

The court will let you know about the owner’s application and the time and date of the hearing. You should go to court and tell your side of the story to the court and explain why you think your tenancy should not be terminated. See chapters 6.02 Preparing for Court and 6.03 Going to Court for more information.

The owner/agent may not be successful in getting an eviction order if the court finds:

  • You have not breached your agreement
  • You were given a Form 1B Notice of Termination for Non-Payment of Rent but paid the owner/agent the rent owing and court application fee at least one day before the hearing (see chapter 3.02 Rent Arrears for more information)
  • You have taken steps and remedied the breach (s.71 (3)(b)(ii))
  • In all the circumstances the breach doesn’t justify terminating your tenancy (s.71 (2)(b))
  • The owner/agent hasn’t taken the correct steps for your tenancy to be terminated; and/or
  • The owner/agent is trying to evict you in retaliation for you taking steps to uphold your rights (s.71 (3)(b)(i))(see the section above).

If the court agrees to give the owner/agent the eviction order it may be made effective for not more than 7 days after the hearing (s.71 (5)). If this would cause you hardship you can ask the court to suspend the eviction order for up to 30 days (s71 (3)). See chapter 4.07 Evictions for more information.

Retaliatory Eviction

If you believe that the owner is wholly or partially motivated to terminate your tenancy in response to you taking steps to enforce your rights as a tenant (such as by complaining to a public authority), then you may have grounds to dispute the action in court. This is commonly called a ‘retaliatory eviction’ and is prohibited by the Act, regardless of the grounds claimed by the owner to justify the eviction (s 71(3)(b)(i))

Can I become a Periodic Tenant after my Fixed Term Tenancy ends?

Some tenancy agreements state that at the end of the fixed term you can remain as a periodic tenant. Sometimes the agreement states you can stay on as a periodic tenant but that the owner’s permission is required.

You should negotiate another agreement (periodic or fixed term) before the end of your agreement. If the owner/agent continues to accept rent after the end of the fixed term tenancy, but nothing has actually been agreed about the terms under which the tenancy will continue, you may argue that you have been accepted as a periodic tenant.

In this situation all the other conditions of your agreement would continue (s. 60 (2)). If you have remained in the property after the agreement has expired, the owner has 30 days to apply to court for an order to terminate the tenancy (s. 72 (1)). See chapter 4.02 Ending a Fixed Term Tenancy for more information.

Contact Tenants Advice Service for more information if your situation is not clear.
List of Tenants’ Rights Manual chapters referred to in this info sheet:

SAMPLE FORMS ATTACHED TO THE END OF THIS CHAPTER:

DISCLAIMER: This is a sample letter only. You should write your own letter telling your own story in your own words (See Chapter 3.13 Writing a Letter to the Owner/Agent for information on writing your own letter).

SAMPLE LETTER

Ms IM Wright
Wright Real Estate
22 Smith Street
Perth WA 6000
14 November 2008

Dear Ms Wright

Re: 298 Sydney Street, North Perth

As required under the Residential Tenancies Act I am writing to give you 21 days notice that I will be leaving the above premises. I will be moving out of the premises on 8 December 2008. Please contact me prior to the 8 December 2008 to arrange a time to inspect the premises and to organise for the speedy return of my bond money.

My forwarding address will be………………………………………..

Yours sincerely

A Tenant
136 Resident Street
Newtown WA 6666
 

TENANTS ADVICE SERVICE’
“IMPORTANT INFORMATION FOR TENANTS”:

Even though a Notice of Termination will tell you that you have to move out by a certain date, the Notice is NOT an Eviction Order.

If you receive a Notice of Termination, you can stay until the owner applies to court and a decision is made about your situation. You should go to court and tell your side of the story to the court and explain why you think your tenancy should not be terminated. See chapters 6.02 Preparing for Court and 6.03 Going to Court for more information. Also see chapter 4.07 Evictions for more about eviction orders.

The Notice of Termination is not an Eviction Order. It is illegal for any owner to evict a tenant without a court order - Penalty $4000.