Ending the Tenancy when the Owner Breaches the Agreement
It may be possible to end your tenancy agreement if the owner is in breach. How your tenancy can be ended is set out in the Residential Tenancies Act (1987) and differs depending on whether you have a periodic or fixed term tenancy.
BEWARE! You could be liable for costs if you do not end your tenancy agreement according to tenancy laws.
What can I do if I have a periodic tenancy?
You can end a periodic tenancy at any time by giving 21 days written notice to the owner that the agreement is being terminated (s.68). You do not have to say why you are leaving.
Your notice must include:
- the address of the rented premises,
- the day on which you will hand back possession of the premises
- your signature.
The notice does not have to be on a special form, but it must be in writing. See chapter Ending a Periodic Tenancy for more information.
What can I do if I have a fixed term tenancy?
A tenancy agreement can be terminated/ended at any time if both the owner and tenant agree but it must be in writing (s. 60(1)(g)). This applies to both periodic and fixed term tenancy agreements.
Unless the owner agrees that the tenancy may be ended early, you must apply to court for your fixed term tenancy to be terminated. This applies even if the owner has seriously breached the tenancy agreement and refuses to fix the problem.
DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS disclaims 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.
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). 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. Tenants Advice Service - Tenants’ Rights Manual January 2004
A fixed term tenancy agreement may be terminated by a Court Order.
For the court to grant an order to end the tenancy, the breach of the agreement by the owner must be considered serious (s. 75). It is up to the court to decide if the agreement will be terminated. If the court orders that your agreement be terminated, you will not be liable for any costs associated with re-letting the premises beyond the date the court sets to terminate the agreement.
To prove a breach by the owner it is helpful to provide evidence that the owner has been requested to perform their duties and that they have failed to do so.
You should provide copies of letters or documents you sent to the owner as evidence they were aware of the problem but failed to solve it, along with any evidence of the problem itself. See chapter Ending a Fixed Term Tenancy for more information.
BEWARE! You could be liable for costs if you break your fixed term agreement without a Court Order or agreement from the owner.
How do I make an application to Court?
An application to have the tenancy agreement terminated due to a serious breach by the owner must be lodged on a Form 12: General Court Application at the Local Court nearest to the rented premises. A sample Form 12 is attached to the end of this chapter. The Form 12 application has two main sections:
- 1) Reason for Application
List here every breach by the owner so that the Court knows what the problem is. State briefly how the problem has affected the tenancy and how you have tried to solve it. If you know what section of the Act has been breached, include the section number.
This is helpful to the Court (but not necessary if you do not know). If you need more room you can attach a separate piece of paper. You must provide four copies of anything you attach to your application.
- 2) Order Required
State here that you are seeking an order for termination of the tenancy agreement due to breach by the owner. You can ask for it to end on a particular date to give you time to organise your move. You can also ask for compensation if you have suffered or will suffer any loss because of the owner’s breach, for example, relocation costs. Also see chapter Compensation for Loss Incurred Due to a Breach by the Owner.
The Court Hearing
When you go to Court you will have to give evidence that the breach of agreement has occurred and that you have tried to sort the problem out with the owner.
You must give a clear statement of what the owner has done to breach the tenancy agreement, and describe the effect the breach has had on you and your tenancy.
Make sure you tell the Court the date that you wish the agreement to end so the date can be written on the Court Order. If your application is successful the court will order that the agreement be terminated.
This means you will not have to pay 'break of lease' costs. See Chapter Ending a Fixed Term Tenancy for more information on these costs.
See chapters Preparing for Court and Going to Court for more information on applying to and representing your case in Court. You should leave a forwarding address when you vacate your tenancy, otherwise you could be fined (s.53: Penalty $1000).
List of Tenants’ Rights Manual chapters referred to in this info sheet:
- Compensation for Loss Incurred Due to a Breach by the Owner
- Ending a Periodic Tenancy
- Ending a Fixed Term Tenancy
- Preparing for Court
- Going to Court
SAMPLE FORMS ATTACHED TO THE END OF THIS CHAPTER: