​How to evict your tenant legally

By Miriam Bell | 08 Sep 2014
There comes a time in every investor’s life when they may need to put an early end to a tenancy. While there are a number of different reasons why such a situation could arise, in this article Your Investment Property details what a landlord should do when forced to evict their tenant.

In an ideal world the tenant might be amenable to leaving the property with little fuss or bother. But, in reality, this is not always the case.

Reasons for eviction
The first step it is necessary to take is to establish a genuine reason, or grounds, for evicting a tenant. Usually, the reason will stem from a breach of the tenancy agreement (aka rental contract) by a tenant.

The following situations constitute a breach of agreement:
  • Failure to pay rent
  • Tenant consistently late with payments
  • Damaged caused to the property
  • Being a nuisance to neighbours
  • Using the property for illegal purposes
  • Breach of any other obligation in the tenancy agreement

In some states, if a landlord has other lawful grounds for termination or reasons for needing to recover the premises, eviction is also possible.

It is worth noting that there can be grounds for a tenant to appeal against eviction. These might include age, lack of alternative accommodation or poor health.

Different situations can sometimes require that different courses of action be pursued. For example, in some states the process for dealing with eviction due to a failure to pay rent is different to the process for other breaches.

Different types of tenancy

In Australia, there are two types of tenancies. These are:
  • Fixed-term tenancies, which last for a specific period of time
  • Periodic tenancies, which go either from week to week or from month to month
When a fixed-term tenancy expires, this does not mean the tenancy has ended. Rather, it means the tenancy no longer has a set term and is now a periodic tenancy.

The period of notice a landlord must give to a tenant before terminating a tenancy varies depending on the state and the type of agreement in place.

In the case of evictions, although a different set of timeframes comes into play, the two types of tenancies can still impact on the situation.

Rules regarding eviction
The general principles regarding the eviction process are pretty standard:
  • Give written notice to vacate – for a valid reason
  • Follow the prescribed procedures and timeframes strictly
  • Use the correct forms and documentation
  • Proceed to the appropriate governing body when necessary if the tenant does not respond to the request to vacate
  • Keep written records of everything
However, the rules regarding eviction do differ from state to state. Each state's rules and processes must be followed to the letter, or the eviction process could prove null and void.

When a landlord wants to evict a tenant, they have to issue a notice to remedy before issuing a notice to  vacate. However, where two notices to remedy have been served previously, it is possible to simply serve a notice to vacate.

After a notice to remedy has been served, the landlord has to wait a further seven days before serving a written notice to vacate. The tenant must be provided with the correct period of notice, the legal grounds for termination and the details that gave rise to the grounds.

If the tenant does not voluntarily move  out of the premises after receiving valid
notice, the landlord can then apply to the tribunal for a termination and possession order (TPO).

If the tenant does not vacate the property as directed by the TPO, the landlord can then apply to the tribunal for a warrant for eviction. This gives the police the power to evict the tenant within a specific time.

The police must then give the tenant at least two day's notice of the  eviction, unless there are exceptional circumstances involved.

Generally, a landlord must provide a tenant with a written 14-day termination notice -  although there are some exceptions to this rule in the Residential Tenancies Act (RTA).

The notice, which must be signed by the landlord, must specify the address, the date on which the property must be vacated, and the grounds for termination.

Where a breach of agreement is solely for rent arrears, the landlord can issue a non-payment termination notice. However, a tenant is not required to vacate if they pay all the rent owed or comply with an agreed repayment plan.

Should the tenant not vacate by the date specified in the notice, the landlord can apply to the tribunal for a termination order. A termination order ends the tenancy and specifies the date on which the tenant must vacate the property.

If the tribunal makes a termination order, it will specify the date on which the property must be vacated. 

If the tenant does not vacate by the specified date, the landlord can get a warrant for possession from the tribunal. This warrant enables sheriff's officer to remove a tenant from the property.

To terminate a tenency, it is necessary for a landlord to make an application to a rental officer for an order requiring the tenant to leave. It is also possible to apply for an eviction order. These applications can be made together or at different times.

If an eviction order is made, the rental office serves the tenant with the order. Once service is confirmed, an affidavit of service is prepared.

If the tenant does not then vacate the property, the landlord has six months to file the order with the Supreme Court to get a write of possession. The landlord also has to file an affidavit of service of the eviction order on the tenant and an affidavit stating that the eviction order has not been obeyed.

Once filed, the write of possession is provided to the sheriff's office. The sheriff will then take steps to carry out the eviction and gain possession of the property for the landlord. 

When ending a tenancy, a landlord has to issue a notice to leave. The notice must be on the correct form and state the grounds it is issued on. It must also specify the date by which the tenant has to vacate the property and give the required amount of notice.

If the tenant does not vacate the property by the date specified, the landlord can apply to the tribunal for a termination order and a warrant of possession to remove the tenant from the property.

Landlords must apply to the tribunal within two weeks of the handover day. When such an application is made, the tribunal will send the tenant notice of the hearing and a copy of the application. 

If the tribunal makes a termination order, it will also issue a warrant of possession which authorises the police to remove the tenant from the property.

The warrant is sent to the police and must come into effect within three days of being issued. It is effective for 14 days and can be enforced at any time during this period, unless otherwise ordered by the tribunal.

The police then contact the tenant and tell them on what date they will enforce the warrant.

Where a tenant has breached the tenancy agreement, a landlord should issue them with a written notice to remedy the breach or leave the property. The landlord must give the notice to the tenant and keep a copy for their records.

The tenant has seven days to remedy the breach. If the notice is due to rent arrears, the tenant has one further day to leave the property. If the notice is for any other reason, the tenant has another either days to leave.

The notice should clearly state what the breach is and how it can be remedied, give the required number of days' notice, and include the phrase "and all other occupants" after the tenant's name.

If the tenant does not comply with thbe notice and refuses to leave the property, a landlord should then apply to the tribunal to have them evicted.

To do this, it is necessary to complete an application form which includes a request for vacant possession. This application - along with supporting documentation (ie copy of the lease agreement, rent records or any written notices) - then has to be lodged with the tribunal. 

A tenant can only be evicted at the order of the tribunal, and only a bailiff enforcing a tribunal order can evict a tenant.

To evict a tenant, it is necessary to issue them with a notice to vacate either 14 or 28 days before an eviction date.

The notice to vacate must include the date of serving the notice, the names of the tenant(s) and landlord, the property address, detailed reason(s) for why the notice is being issued, and the date on which the notice takes effect.

If the tenant does not vacate the property after receiving the notice, the landlord has to apply to the Magistrates’ Court to obtain an order for possession. When this occurs, the owner must serve the tenant with a copy of the application on the same day as they apply for the order.

The court will enforce a date for vacant possession of the premises. A representative of the court will then take possession of the property on behalf of the landlord.

Landlords have to begin the process of terminating a tenancy by serving a valid notice to vacate. 

The notice must be sent by registered post or hand delivered; be addressed to the tenant(s); give a specific reason for the  notice to vacate; be signed by the landlord; and give a date for the tenant to leave.

If the tenant does not vacate the property by the end of the required date, the landlord has 30 days to apply to the tribunal for an order of possession. This instructs the tenant to vacate, gives a specified date for vacating the property, and warns that if the instruction is not observed the tenant might be removed.

The order of possession also allows the landlord to obtain a warrant of possession, if necessary. This directs the police to evict the tenant from the property if they have not left by the date instructed.

When evicting a tenant, a landlord has to issue a formal notice of a tenancy agreement breach. The notice, which must detail the breach, gives the tenant 14 days to rectify the breach.

Should the tenant not rectify the breach in that time, the landlord can issue a notice of termination. This gives the tenant a further seven days, after the notice is received, to vacate the property.

If the tenant does not vacate the property, the landlord has 30 days to apply for an order for possession from the Magistrates’ Court.

If the tenant remains in the property after this process, the landlord can apply for a property seizure and delivery order. A court-appointed bailiff will then remove the tenant from the property on behalf of the landlord.

Advice from the experts...

RentingSmart's Ben Levi emphasises the importance of providing all-important notices to tenants in writing, as well as avoiding the rookie error of not providing the minimum postage days and days to vacate.

“Failure to provide the right timelines, or failure to provide a termination notice in writing, could see all your efforts go to waste at the tribunal – ie your tenants may not be forced to leave and you may have to start the termination process again.”

Along with maintaining a complete paper trail and communication log from day one of a lease, Levi says landlords should always communicate with their landlord insurance provider (during an eviction) to ensure they stay covered. 

Rent My Estate’s Gilbert suggests making tenants aware of what your breach of agreement process is before they sign a lease in the first place. "But should something go wrong, you have to stick to that process to the letter. Otherwise, your tenants won’t take you, or it, seriously.”

While emotions can run high, it is necessary to look at being a landlord like you are running a business, he says. “For this reason, it is worthwhile putting the time into finding the right tenants in the first place. Even if it takes longer to get it right, do it… because it will save you time, money, work, and worry in the long run.”

Top Suburbs : campsie , glendenning , coolbellup , emerald , west wodonga


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