Ending the Tenancy When the Agreement Becomes Frustrated
The Residential Tenancies Act (1987) provides for the tenancy agreement (periodic or fixed term) to be terminated and/or the rent reduced if the agreement becomes ‘frustrated’ for reasons other than a breach of the agreement (section 69). The agreement may be terminated and/or the rent reduced if the agreement becomes frustrated for reasons other than a breach of the agreement.
When can an agreement become ‘frustrated’?
The agreement may become frustrated because the premises or part of the premises:
- destroyed, or
- are rendered uninhabitable, or
- cease to be lawfully useable as a residence, or
- are appropriated or acquired by any authority by compulsory process.
This does not apply if any of these situations arises as a result of the tenant breaching the agreement.
Examples of events which frustrate the agreement may include:
- if the house is destroyed by fire, or
- the roof is blown off during a storm, or
- the property becomes zoned for non-residential use, or
- the land is taken over to build a highway.
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).
Reducing the rent when the agreement is ‘frustrated’
When the agreement becomes frustrated otherwise than as a result of a breach of agreement, the rent shall abate (decrease) accordingly. You and the owner should negotiate a rent reduction or waiver. However, if no agreement can be reached, the matter may be referred to Court for a decision.
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.
Terminating the agreement when it becomes frustrated
Either party can give the other party notice to end the agreement.
- The tenant must give the owner not less than 2 days notice in writing.
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.
Keep a copy of the letter or the Form 22 that you give to the owner/agent in case there is any dispute. You can get a Form 22 from the State Law Publisher (10 William St, Perth. Ph: 9321 7688). A sample Form 22 is attached to the end of this chapter.
- The owner must give the tenant not less than 7 days notice by issuing them with a Form 1C: Notice of Termination of Agreement.
The owner must specify the grounds/reasons for termination on the Form 1C. A sample Form 1C is attached to the end of this chapter.
If a tenant has not moved after receiving a Notice of Termination (Form 1C), the owner must apply to the Court to have the tenant removed. The owner may never physically force or lock a tenant out of the premises after issuing a Notice of Termination (Form 1C).
The owner may face a $4000 penalty for forcing the tenant out of the premises without a Court order (s. 80). 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.
List of Tenants’ Rights Manual chapters referred to in this info sheet:
SAMPLE FORMS ATTACHED TO THE END OF THIS CHAPTER:
“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 6.2 Preparing for Court and 6.3 Going to Court for more information. Also see chapter 4.7 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.