What Should I Do If I Am In Rent Arrears?

It’s never a nice situation to be in rent arrears, however it is important that you keep your rent paid otherwise you will be in breach of your tenancy agreement. Below are some answers to some common questions when tenants are in fact behind in their rent.

If you cannot make a rental payment, contact the landlord/agent as soon as possible and inform them when you will be making the payment.

If you aren’t able to pay off the arrears in one payment, contact the landlord/agent to explain the situation. You may be able to reach an agreement to pay off the amount over time, for example you could offer to pay an extra amount per week. BUT remember not to offer more than you can afford, as this will inevitably lead to problems.

Make such an offer in writing, sign, date and keep a copy. This will be useful even if the offer is not accepted, as the letter can be used as evidence that you have tried to fix the problem if action is taken in the ACAT. If the landlord agrees with the offer, get this agreement in writing.

A Notice to Remedy is only the first step. Under Clause 92 of the Standard Terms the Notice to Remedy must be served on or after the 8th day after the rent was due, stating that the outstanding amount is to be paid within 7 days. If you do this, no further action will be taken.

If the rent is still unpaid after 7 days, the landlord/agent can issue a Notice to Vacate the property within 14 days.

If you have received two Notices to Remedy previously in your tenancy, and you get 7 days behind in the rent again, on the third occasion the landlord/agent can give you a Notice to Vacate without first issuing another Notice to Remedy.

A Notice to Vacate does not end your tenancy. Try to negotiate a written agreement with the landlord/ agent for catching up on the rent. If you cannot pay the arrears, you may decide it is best to move out. You would then be liable for rent up to the last day of the notice period or, beyond that, till the day you do move out.

If you do not move out and the landlord/agent wants to pursue your eviction, the following procedures apply:

ACT CIVIL & ADMINISTRATIVE TRIBUNAL
The landlord/agent must apply to the ACAT for a Termination and Possession Order before you can be evicted. The application can be made before the 14
days Notice to Vacate has even expired, as long as the Tribunal hearing is after the 14 days. Most landlords wait the 14 days to see if the tenant will leave voluntarily.

After the landlord has applied to the Tribunal, you will be sent a ‘Notice to the Respondent’, together with a copy of the landlord’s application. Once you receive this notice, act immediately: seek advice from the Tenants’ Advice Service, Welfare Rights & Legal Centre or an independent solicitor.

It is advisable (though not essential) to notify the Tribunal in writing if you intend to defend the eviction. Include all facts you want to rely on in your defence.
You will also receive a ‘Hearing Notice’, stating the date, time and place of hearing. If your rent arrears problem reaches this stage, see Tenancy Factsheet:
Defending an Eviction.

Being behind in your rent is a breach of your tenancy agreement. This can result in eviction, but not before certain steps have been taken, as set out below. The landlord/agent cannot evict you themselves. 

The landlord/agent must apply to the ACAT for a Termination and Possession Order before you can be evicted. The application can be made before the 14 days Notice to Vacate has even expired, as long as the Tribunal hearing is after the 14 days.

Most landlords wait the 14 days to see if the tenant will leave voluntarily. After the landlord has applied to the Tribunal, you will be sent a ‘Notice to the Respondent’, together with a copy of the landlord’s application.

Once you receive this notice, act immediately: seek advice from the Tenants’ Advice Service, Welfare Rights & Legal Centre or an independent solicitor. It is advisable (though not essential) to notify the Tribunal in writing if you intend to defend the eviction. Include all facts you want to rely on in your defence. You will also receive a ‘Hearing Notice’, stating the date, time and place of hearing.

If your rent arrears problem reaches this stage, see: Defending an Eviction.

In brief – to defend an eviction:

  • Be at the Tribunal at the right time / the right day;
  • Be prepared – have a list of points you want to get across to the Tribunal Member: how/why you got behind in the rent, what steps you have taken, and what you propose for the future;
  • Have ready and in good order any documents you want to show the Member;
  • Keep cool and be courteous, no matter what the landlord, agent or Tribunal Member says.
  • Be at the Tribunal at the right time / the right day;
  • Be prepared – have a list of points you want to get across to the Tribunal Member: how/why you got behind in the rent, what steps you have taken, and what you propose for the future;
  • Have ready and in good order any documents you want to show the Member;
  • Keep cool and be courteous, no matter what the landlord, agent or Tribunal Member says.

What orders can the Tribunal make?

The Tribunal has 3 options:

  • To dismiss the landlord’s application – for example, on the basis that there were no arrears or that the arrears have been made up;
  • To end your tenancy unconditionally on a specified day – it could be that very day; or you could be given up to 21 days to move out;
  • To make a conditional termination order, which means that the tenancy will continue on certain conditions (usually that you make up the arrears by a certain date and pay on time in the future).

If orders are made that end your tenancy and you do not vacate by the due date, the landlord can request a warrant (unless the Tribunal has already declared that the termination order itself will have the effect of a warrant), giving the police the power to evict you.

Except in exceptional circumstances (see Section 40 RTA) the police must give you at least 2 days notice of the eviction day.

If you leave the Tribunal with conditional orders, you have been given a chance to keep your tenancy.

However, if you fail to abide by the orders, the landlord can apply for a warrant for eviction.

The matter will then be listed for hearing within 1 week. If you think you have not breached the orders, or you have a significant excuse for the breach, you can present your defence at the hearing. Otherwise, the Tribunal will issue the warrant for eviction.

See also: Tribunal (ACAT) General Information and Evidence Checklist for the Tribunal on our website.

ACT Civil and Administrative Tribunal 6207 1740

Dispute resolution and enforcement of tenancy legislation www.acat.act.gov.au