A landlord may eventually find themselves in a position to evict a tenant. Before you evict a tenant, there are some procedures you must take if you want them to vacate your home sooner than expected. Any investor who buys an investment property hopes to rent their home to the most significant tenants.

However, a landlord may encounter difficult tenants while renting out a home, and there are situations in which evicting a tenant is the only viable course of action. This guide, tailored by Bargoti Real Estate, aims to provide landlords with a clear and comprehensive overview of the eviction process.

Which Two Kinds Of Tenancies Exist In Australia?

1.In Australia, there are two kinds of tenancies: fixed-term and periodic.

2.The latter is for a specific amount of time, but it should be understood that the tenancy does not stop when the specified period ends. Instead, it becomes a periodic tenancy that, according to the terms of the agreement, can be renewed weekly or monthly.

3.However, it is crucial to remember that the length of your tenancy may determine the time constraints you may face during an eviction.

4.Although some evicted tenants depart amicably, the procedure can be complicated because tenants can contest their eviction.

5.Tenants may be permitted to stay in a property for a variety of reasons, such as being in ill health or lacking other accommodations. It’s important to understand that your circumstances are considered in these situations.

Understanding the Legal Framework :

In Australia, laws pertaining to individual states and territories govern residential tenancies. This implies that depending on the property’s location, different eviction policies and processes may apply. To guarantee compliance and safeguard their rights, landlords must be knowledgeable about the pertinent laws in their state or territory. It’s crucial to understand and adhere to these laws to ensure a smooth tenancy.

1.New South Wales ( Residential Tenancies Act 2010 )

●In NSW , the landlord must deliver a signed written notice of termination approximately two weeks before the date of eviction. The notice must include the property’s address, the reason for the termination, and the eviction date.

●If a landlord files a claim of non-payment, tenants are not automatically required to vacate the property. They have the right to stay if they can provide evidence of rent payment and lease compliance. This process ensures that tenants are not unfairly evicted and landlords follow the correct legal procedures.

●Both tenants and landlords need to be aware of these issues. But, as a landlord, you have the right to get a warrant of possession, which may result in the tenant’s forcible eviction if the reasons for eviction are established to be accurate and they do not vacate by the deadline.

2.Victoria (Residential Tenancies Act 1997 )

●Victoria requires landlords to give a signed written notice, which can be issued in person or by mail. If the tenant refuses to vacate, the landlord has about 30 days to ask the tribunal for a possession order.

●In addition, the order may specify when the tenant must leave the property, provide an evacuation date, and threaten to use forceful eviction if the tenant disobeys the directions.

●In the event that the regulations are broken, a landlord can get a warrant of possession to have the tenant removed.

3.Queensland (Residential Tenancies and Rooming Accommodation Act 2008 )

●The appropriate form can be used to make the notice in Queensland, and it must be submitted in a reasonable amount of time.

●Provide the date of evacuation and the reason for termination. If the tenant disobeys the terms, the landlord must petition the tribunal for a termination order and warrant of possession within two weeks of the handover date.

●Upon approval, the tenant will receive a copy of the landlord’s application and a notice of the hearing from the tribunal, the authority responsible for handling the termination order. Within three days following the termination date, the warrant of possession must be executed.

●Unless the tribunal orders otherwise, the authorities have around two weeks to access the property and carry out the warrant.

4.Western Australia ( Residential Tenancies Act 1987 )

●When a tenant in WA violates any lease agreement provisions, the landlord must give them a formal notice.

●It is the tenant’s responsibility to adhere to the lease agreement. If they fail to do so, a termination notice must be delivered. The tenant then has around two weeks to rectify the situation.

●After getting the notice, the tenant has about a week to leave the premises. If the tenant refuses to vacate within the allotted time, the landlord must apply to the magistrate’s court for a possession order in less than 30 days. The next step is to request an order to deliver the order and take possession of the property.

5.South Australia ( Residential Tenancies Act 1995 )

●When a tenant violates the terms of the lease, the landlord has the right to contact the solicitors for both the landlord and the tenant and serve a written notice demanding a remedy or the tenant’s departure from the property. The notice must specify the breach’s specifics, the suggested remedy, and the notice period.

●It is the landlord’s responsibility to ensure that all additional tenants are adequately and meticulously specified. This not only makes the landlord feel responsible but also makes the tenants feel accounted for. Additionally, two copies of the document are required, one of which is to be retained for the landlord’s keeping. Approximately seven days will pass for the tenant to comply with the request, and eight days if the infraction includes unpaid rent.

●If this is not done, the landlord can try to submit an eviction application along with a request for vacant possession. Supporting documentation is also required, including written notices, a copy of the lease agreement, rent records, and much more.

●A tribunal order can only stop the eviction, and the requirements must be given to the tribunal.

6.Tasmania ( Residential Tenancy Act 1997 )

●Landlords in Tasmania must give tenants a notice to quit 14 or 28 days before the scheduled date of eviction.

●The notice includes the date the tenant received the paper, the address, both parties’ names, the evacuation notice’s cause, and the start date of the notice period.

●In addition, the landlord may ask the magistrate’s court for a possession order. The tenant must receive a copy of the application on the same day.

●The court may designate a person to take possession of the property on the specified date.

7.Australian Capital Territory: Residential Tenancies Act 1997

●When dealing with a difficult tenant, the landlord must first issue a notice that calls for a resolution.

●The landlord may proceed with serving a formal notice of termination if the tenant does not respond to the notice within a week. However, a notice to vacate may be submitted right away if there have been two remedy notices issued.

●A suitable notice time must be included, and the document must specify the reasons for the termination and their legal basis.

●The landlord may request a termination and possession order from the tribunal if the tenant declines.

8.Northern Territory ( Residential Tenancies Act 1999 )

●In this case, the landlord must locate a rental officer to request an order for the tenant to vacate. An eviction order can be issued concurrently or at a later date. An affidavit of service will be created, and the rental officer may issue an order to the tenant.

●If the tenant does not vacate the property by the end of the notice period, the landlord can apply to the Northern Territory Civil and Administrative Tribunal (NTCAT). The application will include details of the tenancy agreement, the notice served, and any other relevant documentation.

●The sheriff may be served with the writ on behalf of the landlord, granting them the authority to evict the occupant and recover the goods.

●The parties must always be ready to pay the expenses associated with requesting that Australian authorities consider their case. Each party bears the expense.

What Are The Standard Eviction Procedures?

The following are some standard eviction protocols that a landlord should be aware of :

1.You Need To Have Valid Reasons:

Since eviction is a legal process, you must ensure that the proceedings have a legitimate foundation. Landlords are recommended to ensure that the grounds are adequately supported.

2.You Must Put It On Paper:

To document past remedy requests or contract violations, you must maintain copies of all relevant documents in your files.

3.Following The Letter:

To determine the appropriate course of action depending on your location/state or territory, visit the Residential Tenancies Act website. You are free to adhere to any specification, even those related to deadlines.

4.Obtaining the Right paperwork:

Several Australian jurisdictions require specific application forms to guarantee you receive the proper paperwork.

5.Understanding the Authorities:

You must determine who you must approach for proceeding with the forced removal of tenants.

What Are A Few Typical Causes of Eviction?

Landlords may utilise the legal procedure of eviction as a last resort if tenants violate the conditions of their lease or exhibit undesirable behaviour. These are some typical causes of eviction:

1.Continuous Delaying of Payments:

When a tenant repeatedly misses payments, it throws off the landlord’s finances and cash flow. Eviction procedures may follow persistent late payments, particularly if the tenant has been warned and disregards the advice to change their payment patterns.

2.Property Damage:

The tenants are responsible for keeping the property in good shape. Eviction may be warranted in significant damage beyond normal wear and tear resulting from misuse or negligence. This covers problems such as damaged flooring, wall holes, and broken fixtures.

3.Illegal Activities on the Property:

The safety and legality of the property may be in danger if unlawful activities, such as the production or distribution of drugs, are carried out there. In order to safeguard their investment and the interests of other tenants, landlords are entitled to remove tenants engaged in unlawful activity.

4.Disturbing Neighbours:

Tenants who often cause trouble for their neighbours by throwing loud parties, making excessive noise, or engaging in other disruptive activities might make themselves appear unfriendly. If the tenant doesn’t alter their behaviour, neighbours’ repeated complaints may result in their eviction.

5.Breach of Rental Contract Conditions:

Leases frequently have clauses with restrictions, like no pets, no subletting, or upkeep of particular areas of the property. If the tenant disobeys after being informed of these requirements, they may be subject to eviction.

6.Not Paying Rent:

The most frequent cause of eviction is not paying rent. The landlord has the right to start the eviction procedure if a tenant fails to pay rent on time or at all. Usually, this entails serving the tenant with a notice of eviction if they don’t pay the past-due rent within a specific time frame .

Why do you need to follow the rules ?

Following the termination and eviction process can be intimidating. Still, if you don’t, your tenant may bring you before a court or tenancy tribunal, where the governing body may require you to pay the tenant compensation.

Tenant rights are taken seriously by courts and tribunals, so it’s helpful to know precisely what you’re getting into before you begin. Landlords can find information on state and territory-specific fact sheets online to help them navigate the processes.

How to Deal With A Tenant In Arrears:

Landlords want rent paid on time and in full, but what should you do if a tenant is behind on their rent?

1.Regarding rent default, there are a few things you should be aware of as a landlord. These include the procedure for serving a non-payment termination notice and how to maximise your chances of getting a favourable result should you have to appear before a tribunal.

2.Finding the best way to handle a tenant who is behind on their rent is a valuable lesson, even though it might not be your first concern when purchasing an investment property.

3.If your tenant has missed rent, it may seem straightforward that you have every right to terminate the lease and evict the tenant. The law tends to favour the tenants in a rental default situation.

What would happen if the tenants failed to make a payment?

1.Legal experts concur that it’s usually preferable to settle disputes out of court if possible, even if your renter is just a day or two overdue.

2.Examine your tenant’s history; if they have never been behind on rent and have maintained the property well, they may be experiencing temporary financial difficulties. Anything from paying for a loved one’s medical expenses to losing their job could be the cause. Talk to them about the problem, put a temporary rent freeze in place, and devise a plan for them to pay off the debt over time, which should be your first step.

3.It’s important to remember that you’re not alone in dealing with late rent situations. You should receive assistance from your property management or real estate agent. Their support can be invaluable in helping your tenant get back on track in certain situations.

4.Nevertheless, the chances of a tenant paying are generally very low once they begin to fall behind on their rent, particularly when the debt becomes significant.

How much time should the tenant be allowed?

1.Additionally, you must exercise caution when permitting rent default to continue past the 30-day threshold.

2.If, after one month, you decide to take additional action, you should do so to lessen your loss.

3.If it’s more than thirty days, you could need to pursue additional legal action, which can frequently be more expensive than the rent you hope to recover.

How do I escalate the process?

1.The lease agreement should always be your primary point of reference for any additional action, even if you believe you have given your renter enough time to pay their rent.

2.It will always outline the terms and procedures for a tenant who is behind on their rent, usually with a clause granting the landlord the authority to move to evict the tenant after more than 14 days of nonpayment.

3.But exercise caution! You can’t just start changing the locks or evicting the tenants forcibly. You must adhere to a certain legal process in order to receive the best result.

Send them a breach notice

1.The 14-day period only kicks in on the first day that your tenants receive a notice of nonpayment termination. The notice informs the tenant of their violation of the terms of the lease, which can include anything from property damage to unpaid rent.

2.It’s not an exaggeration to say that serving the notice correctly is a landlord’s most important responsibility. The 14-day written notice is the linchpin for recovering your rent and evicting the tenants. Any misstep in this process can have serious consequences.

3.For no other reason than that the notice was not properly served, tribunals have been known to reject outright a landlord’s allegation that a tenant is behind on rent in court.

What should be in the termination notice?

1.Your real estate agent may have a breach notice template that you can use, but there is no specific form you need to complete. Essentially, a non-payment termination must be signed by either yourself as the landlord or your acting real estate agent and detail:
●The reason for terminating the lease agreement is a crucial aspect of the notice—the property address.
●The date the tenants will be required to vacate the property.
●A statement states that if the rent is paid, the lease agreement will be upheld (you must include this).

2.You can issue the notice in person, by fax or by mail, bearing in mind that you’ll have to add an extra four days to the 14-day written notice requirement, bringing the total number of days to 18.

3.You can also hand the notice to somebody aged 16 or over at the tenant’s residential or business address. If the tenant isn’t home, you can also put the notice in their letterbox in an envelope addressed to the tenant.

4.These various delivery methods can help minimise the chance of your tenant purposely avoiding contact with you.

5.Remember keeping a copy of each notice is essential, including a written record of when it was sent and how it was delivered to the tenants.

Understanding legal procedures and tenant rights is crucial for navigating the eviction process in Australia. Landlords must follow the appropriate protocols and, if necessary, obtain tribunal orders. Adhering to local regulations safeguards tenant rights and landlord interests, ensuring a fair process for everyone involved. As this is a legal matter, Bargoti Real Estate strongly recommends that landlords consult with professionals and familiarize themselves with their state or territory’s specific guidelines and legislation before taking any action.

Conclusion :

Understanding the specific legislation in your state or territory is crucial for effectively managing rental properties and navigating the eviction process. Each piece of legislation provides a comprehensive guide to the legal obligations of both landlords and tenants, ensuring a balanced and fair approach to tenancy management.

If you’re unsure of your rights, the team here at Bargoti Real Estate can help. We can help you understand your rights, or word your argument in a way that will be clearly communicated. Bargoti Real Estate offers the expertise and resources to navigate eviction situations effectively. By adhering to the correct procedures and leveraging professional support, landlords can maintain positive tenant relationships and protect their investments, ensuring a smooth and compliant eviction process.

DISCLAIMER – The information and opinion provided is for guidance and general informational purposes only. The sole intention is to provide general understanding of the subject matter so the readers can assess whether they need more detailed information. The information provided on this website should not be regarded as a financial, business, legal or real estate advice and it is strongly recommended that the readers should seek their own independent financial, business, legal or real estate advice. While every effort has been made to ensure that the information and the material is correct and up to date at the date of publication. However, we do not guarantee or warrant the accuracy or completeness of the information provided as the factors like changes in circumstances after the time of publication, may impact such accuracy or completeness. Bargoti real estate will not accept responsibility or liability for any reliance on the blog information, including but not limited to, the accuracy, currency or completeness of any information or links.