Ending a Tenancy Agreement

Ending a Fixed Term Tenancy

If the tenant or the landlord wishes to end the tenancy at the end of the fixed term either must give the other notice of termination, in writing, at least 14 days prior to the end of the fixed term.

The notice must be in accordance with section 101 of the Act. If a fixed term agreement is not terminated by either the landlord or the tenant at the end of the agreed term, the tenancy continues as a periodic agreement.

NOTE – these provisions do not give the landlord or the tenant the right to terminate a fixed term tenancy during the period of the tenancy ie. 14 day notice can only be given to terminate the tenancy on the last day specified in the agreement.

Should either a landlord or tenant wish to terminate a fixed term agreement prior to the end they should contact their legal advisor, Consumer Affairs or the Tenant’s Advice Service before taking any action.

 

Periodic Tenancy – no grounds required for termination

The landlord may terminate a periodic tenancy by giving 42 days notice in accordance with section 101.

The tenant may terminate a periodic tenancy by giving 14 days notice in accordance with section 101.

If Public Housing Found

If a tenant is offered accommodation from Territory Housing under the Housing Act, the tenancy may be terminated by giving 14 days notice to the landlord (in accordance with section 101), provided the tenant:

  • had applied for housing under the Housing Act before entering into the tenancy agreement; and
  • had advised the landlord of the application before signing the tenancy agreement.

 

A tenancy is terminated:

  • if the landlord or tenant terminates the tenancy under the Act;
  • if a Court or the Commissioner terminates the tenancy;
  • if the premises are abandoned before the end of the tenancy agreement;
  • if a tenant gives up possession of the premises with the landlord’s consent; or
  • if a sole tenant dies without leaving a spouse, defacto, partner or dependents whose details are known to the landlord prior to the death, occupying the premises. (If the tenancy is a tenancy under the Housing Act the tenancy is terminated when the sole tenant dies whether or not a spouse, defacto, partner or dependent of the sole tenant is left in occupation of the premises).

 

Repossession of Premises

If a tenant does not move out on or before the date the tenancy terminates (this is the date in the notice of termination), the landlord can apply to the Commissioner or the Court for an order for possession which will allow them to enter the premises.

The landlord cannot use force to make a tenant leave the premises, and the landlord cannot enter the premises to recover possession of the property without an order from either the Commissioner or the Court.

If the landlord obtains an order for possession the tenant will be given up to a maximum of 5 business days to move out. If leaving the premises will cause severe hardship to the tenant, and they can demonstrate this to the Commissioner or the Court, the order of possession may be suspended for up to 90 days.

In making such an order the Commissioner or the Court will take the following matters into account:

  • whether the tenant has caused a nuisance to neighbouring residents or damage to neighbouring property;
  • any incidents relating to the tenancy that have occurred whilst the tenant was there;
  • the seriousness of the breach which entitles the landlord to the order of possession; and
  • whether the tenant is able to pay the rent under the tenancy agreement.

If the order of possession is suspended and the tenant does not pay rent within 7 days, the landlord must give the tenant another 7 days’ notice before the tenancy agreement is terminated.

 

Premises Uninhabitable

The landlord or tenant can terminate the tenancy agreement by giving the tenant 2 days written notice in accordance with section 101 of the Act in the following circumstances:

  • if access to the premises has not been available for more than three days because of flooding; or
  • if continued occupation of the premises is a threat to the health or safety of the tenant or members of the public or a threat to the safety of the landlord’s property; or
  • if the premises have become uninhabitable.

 

Termination if breach not remedied

TERMINATION IF BREACH Sections 96A, 96B, 96C

NOT REMEDIED

TENANT’S FAILURE TO PAY RENT

If a tenant breaches a tenancy agreement by failing to pay rent or any part of the rent in accordance with the agreement and the rent has been in arrears for at least 14 days, the landlord may give the tenant a “notice to remedy breach”.

The notice must:

be in accordance with section 96A and give the tenant at least 8 days in which to remedy the breach; state that if the breach is not remedied then the landlord intends to apply to the Commissioner or a court for an order for termination of the tenancy and possession of the premises.

The notice must also contain other information set out in the Act and Regulations and it is important that landlords familiarise themselves with these requirements before issuing a notice.

 

Other breach by Tenant or Landlord

If a tenant or landlord breaches a term of a tenancy agreement (other than a term relating to the tenants obligation to pay rent) that –

  • is a term of the agreement by virtue the Act, or
  • is specified to be a term a breach of which permits the other party to terminate the agreement, the other party may give a “notice to remedy breach”.

This notice must:

  • be in accordance with section 96B or 96C and give at least 8 days in which to remedy the breach;
  • state that if the breach is not remedied then an application will be made to the Commissioner or a court for an order for termination of the tenancy and possession of the premises.

 

Failure to Remedy Breach After Notice Given

If a tenant or landlord does not remedy the breach as required by a notice issued under sections 96A, 96B, or 96C, an application can be made to the Commissioner or a court seeking termination of the tenancy and an order for the landlord to take possession of the premises or permission for the tenant to give up possession of the premises (depending on which party makes the application).

An application of this nature must be made no later than 14 days after the date specified in the notice to remedy breach.

 

TERMINATION BY COURT

Serious breach of the tenancy agreement

If either the landlord or tenant has seriously breached the tenancy agreement, the other party may apply to the Court for an order terminating the tenancy.

Conduct of Tenant Unacceptable

The landlord may apply to the Court for an order terminating the tenancy, if the tenant has used the premises for an illegal purpose, repeatedly caused a nuisance, or repeatedly caused or permitted interference with the reasonable peace or privacy of a nearby resident.

Hardship

Either the landlord or the tenant may apply to the Court for an order terminating the tenancy on the grounds that continuation of the tenancy agreement would result in undue hardship to the landlord or tenant.

 

Drug House Order Made

A landlord of drug premises within the meaning of the Misuse of Drugs Act may terminate a tenancy in respect of the premises by giving 14 days notice in accordance with section 101.