A landlord or agent can end a lease for 6 main reasons as outlined below. Housing Tasmania have further conditions on their leases – No. 7.
In order to end a lease the landlord or agent must issue a completed Notice to Vacate (aka Eviction Notice) and allow the tenant specific periods of time to either remedy the issue, or to vacate.
If a tenant is issued with an Notice to Vacate which does not seem to fit within the following guidelines, they can contact the Tenant’s Union for advice.
VALID REASONS FOR A NOTICE TO VACATE
1. TENANT BREACHES THE LEASE AGREEMENT Minimum Notice: 14 clear days*
If a tenant breaches a term of their lease agreement, including the Residential Tenancy Act, the landlord/agent may issue a Notice to Vacate. The tenant has 14 days to comply with the lease agreement, in which case that Notice to Vacate ceases to have effect.
In essence, if the problem is fixed within 14 days then the tenant cannot be evicted from that notice.
2. FAILURE TO PAY RENT Minimum Notice: 14 clear days*
A Notice to Vacate can be issued when there is rent in arrears. On the first or second notice within a twelve month period, if the full arrears is paid before the effect date then the notice ceases to have effect. The landlord/agent must accept the arrears if paid during the notice period.
When a third Notice to Vacate is issued in a twelve month period for rent in arrears, the landlord/agent can require the tenant to vacate even if the rent in arrears is paid. To summarise, 3 strikes and you’re out.
NOTE: The tenant must be served three valid Notices to Vacate, not simply notified that their rent is in arrears.
3. END OF THE FIXED TERM TENANCY Minimum Notice: 42 clear days*
The landlord/agent must issue a Notice to Vacate if they want a tenant to leave at the end of their fixed term lease. A Notice to Vacate for this reason can only be served from 60 days prior to the lease ending, until the the lease end date. The Notice must give a minimum 42 clear days notice, with the notice end date not being earlier then the lease end date.
If a Notice to Vacate is not served, or a new lease is not signed by the lease end date, the tenant immediately moves to a non-fixed term lease with all conditions of the original lease.
4. THE PREMISES HAVE BEEN REPOSSESSED Minimum Notice: 60 clear days*
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 60 days notice to the tenant, even if a tenant has a fixed term lease.
5. SALE, SIGNIFICANT RENOVATION, CHANGE OF USE OR OWNER’S FAMILY USE OF PREMISES
Minimum Notice: 42 clear days
A tenant on a fixed term lease cannot be evicted using this reason, until the end of their lease. A tenant on a NON-FIXED term lease can be given 42 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). Also, 42 clear days notice may be given if the dwelling is to be used by an owner’s partner, son, daughter or parent, a parent of the owner’s domestic partner or a person who is substantially dependent on the owner.
6. SUBSTANTIAL NUISANCE AT THE PREMISES
Minimum Notice: 14 clear days (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
7. NEW: HOUSING TASMANIA ONLY EVICTIONS
Minimum Notice: Varies from 14 to 90 clear days
For Housing Tasmania owned properties, there are four new reasons to evict tenants (with notice periods in brackets):
- Exceeding income and asset thresholds (90 clear days). To view the thresholds see the Consumer Affairs and Fair Trading website
- Not requiring all bedrooms in a 4 bedroom property and alternative premises are offered (28 clear days)
- Not requiring special facilities in a modified premises and alternative premises are offered (28 clear days)
- Being away from the premises for more than 8 weeks continously without approval (14 clear days)
However, eviction must not result in unreasonable financial or social disadvantage to the tenant.
FORMAT OF 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 ‘clear days’ notice period, the landlord/ agent should not include the day on which the Notice is received but it should include the date the Notice takes effect. If there is a mistake in the Notice to Vacate, it can be argued 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.
MUST RENT CONTINUE TO BE PAID?
A tenant is 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 a tenant stay on past the Notice effect date (unless it is either the first or second notice for rent arrears).
It is good practice to collect evidence such as dated photographs and video footage along with cleaning receipts and witness statements on Statutory Declaration forms at the end of the tenancy. Go through the condition report and ensure the premise is left as close as possible to these conditions, except for fair wear and tear. These could prove valuable if there is a dispute with the return of the bond.
IF A TENANT DECIDES NOT TO LEAVE
Even after the notice period has ended, if a tenant wants 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 a tenant can put their case. If the tenant wins, they can stay and if they lose the Court will decide how long they can remain in the property.
- A Bailiff will enter the premises to evict the tenant and change the locks. It is illegal for a landlord or agent to change the locks without a Court order.
*Clear Days refers to a complete 24 hour period from Midnight to Midnight. Example, if a notice is served at 11am or 4pm one day, the first ‘clear day’ of that notice does not begin until Midnight that evening.
DISCLAIMER: The information on this website is not legal advice. It is intended as a guide only. It applies only to legislation current in Tasmania as at 1 August 2015. For information regarding a specific tenancy problem please phone the Tenants’ Union on 1300 652 641 or (03) 6223 2641. The Tenants’ Union of Tasmania Inc. accepts no responsibility for actions based on this information, nor for actions based on electronic translations of this.