Notice to Vacate

Valid Reasons for a Landlord/Agent to Issue a Notice to Vacate

Tenant breaches the lease agreement

If you breach a term of the lease agreement (including the Residential Tenancy Act), the landlord/agent may issue a Notice to Vacate. A tenant has 14 days to comply with the lease agreement (remedy the breach). If the tenant complies then that Notice to Vacate ceases to have effect. In essence, if you fix the problem within 14 days then you cannot be evicted from that notice.

End of the fixed term tenancy


The landlord/agent must issue a Notice to Vacate if they want you to leave at the end of a fixed term lease (an agreement with an end date).

A Notice to Vacate for this reason can only be issued within 28 days of the end date of the lease (between 28 days before the end date and 28 days after).

They must give you notice of at least 14 days or until the end date on your lease, whichever is longer. Once you are 28 days past the end date of the lease you move on to a non-fixed term lease and the landlord cannot then use this reason to evict you.

Failure to pay rent

If a Notice to Vacate is issued because you have rent in arrears and it is the first or second notice within twelve (12) months, you can pay the full arrears before the effect date and the notice ceases to have effect.

The landlord/agent must accept the arrears if you pay them during the notice period. If it is the third Notice to Vacate for being behind in rent in a 12 month period, the landlord/agent can require you to vacate even if you catch up.

To summarise, if you catch up on the rent within 14 days then you cannot be evicted unless it is your third notice in 12 months.

Sale, major renovation or change of use of premises


If you have a NON-FIXED term lease (ie no end date for your lease), then you can be given 28 days to leave the property if it is to be sold (not just an intention to sell), it is being renovated (major or structural and requires tenants to leave) or the use of the premises is changing (no longer a rental property). If you are on a FIXED term lease then you cannot be evicted using this reason.

Substantial nuisance at the premises

Can be immediate if through court

A landlord/agent can issue a Notice to Vacate if a tenant causes problems of a substantial nature. Usually a substantial nuisance is one that cannot be remedied.
Having too many parties can be remedied, violence involving neighbours cannot. Also note that landlord/agents or tenants may apply to the court for immediate
termination of an agreement if the other party to the agreement:

causes, permits or is likely to cause damage to the premises or neighbouring premises, or
causes or is likely to cause physical injury to them or occupants of neighbouring premises

The premises have been repossessed


A mortgagee (bank, building society or other lending authority) may take possession of the premises if the landlord hasn’t paid their mortgage repayments. Once the mortgagee has taken possession they are legally entitled to give 28 days notice even if you have a fixed term lease.

Format of a Notice to Vacate

Notice to Vacate – Format of a Notice to Vacate

For a Notice to Vacate to be valid it must be in writing and contain all of the following:

  • Date of serving the Notice;
  • Name of the tenant/s;
  • Name of the landlord/s;
  • Address of the premises;
  • Detailed reason(s) why the Notice is being issued – not simply a restatement of the Section breached;
  • Date on which the Notice takes effect.

In calculating the notice period, the landlord/ agent should not include the day on which you receive the Notice but it should include the date the Notice takes effect. If there is a mistake in the Notice to Vacate, you can argue that the Notice is invalid and a new one needs to be issued. A new Notice to Vacate restarts the notice period and it cannot be backdated.

Do You Continue Paying Rent?

You are obligated to pay rent until the tenancy is terminated. Termination is usually on the date of effect in the Notice to Vacate or the date on which the tenant moves out, whichever is the later.

If the landlord/agent continues to accept rent this does not mean they are obliged to let you stay on past the Notice effect date (unless it is either the first or second notice for rent arrears).

If You Don’t Leave

Even after the notice period has ended, if you want to stay, the landlord/agent still must apply to the Court to see if their Notice to Vacate is valid before eviction can occur and this has several steps:

The landlord/agent must apply to the Magistrates Court to get the civil matter heard.
The tenant is notified of the hearing date in writing.
The matter goes to hearing where you as tenant can put your case. If you win, you stay and if you lose the Court will decide how long you can remain in
the property.
A Bailiff will enter the premises to evict you and change the locks. It is illegal for a landlord or agent to change the locks without a Court order.

Before You Leave

Evidence such as dated photographs and video footage along with witness statements on Statutory Declaration forms and receipts in relation to cleaning the premises at the end of your tenancy could prove valuable if there is a dispute with the return of your bond.42