When buying an investment property, every investor hopes that the perfect person will move into their rental home.
However, landlords can come across some very difficult tenants in the process of leasing a home, and there are times when evicting a tenant is the best (or only) solution to a problem. In Australia, there are two types of tenancies: fixed term and periodic tenancies.
The former is set for a specific time period; however, it should be noted that the expiry of the fixed period does not constitute the end of the tenancy. Rather, it then automatically becomes a periodic tenancy, which is renewed weekly or monthly depending on the agreement. It’s important to keep in mind that the tenancy type can dictate the time frames you’ll have to work with in an eviction situation.
While some evicted tenants leave peacefully, it can be a complicated process as tenants may also be able to appeal against eviction. Some factors that could allow a tenant to remain in the property are a lack of alternative accommodation, or poor health.
“The tribunal takes a very open mind – if a tenant is being evicted because of cleanliness or presentation of the property, and the landlord is being pedantic, that would be dismissed.
What the tribunal looks at is what’s reasonable in the current circumstances,” says Malcolm Gunning, president of the Real Estate Institute of Australia.
– Always have a valid reason. Eviction can be a tricky legal procedure, so make sure you have a proper basis for proceeding. Gunning advises landlords to ensure that the grounds are properly substantiated.
– Put it on paper. Keep copies of documents in your records so that you have proof of contract breaches and of any previous requests for remedy.
– Follow to the letter. Check the Residential Tenancies Act website to confirm the correct procedure for your area, and stick to every requirement, especially with regard to time frames.
– Get the right paperwork. Some states require specific application forms in eviction requests, so ensure that you get the correct documents.
– Know the authorities. Determine who you need to approach in order to proceed with forced removal.
Needless to say, not following the correct procedures for eviction can lead to complications down the road. You therefore need to take note of the standard policies, which can differ across states. Here’s what you need to know:
New South Wales
A landlord is typically required to serve a signed written termination notice 14 days before the date of eviction. This notice must indicate the property’s address, the eviction date and the reason for termination. This reason must be valid.
If, for instance, a landlord claims non-payment and the tenant can provide proof that they have complied with the tenancy agreement and paid their rent, the tenant will not be required to vacate the property.
However, if the grounds for eviction are proven to be correct but the tenant does not leave by the specified date, the landlord can request a termination order from the tribunal, which ends the tenancy.
If the order is not heeded, then the landlord has the right to obtain a warrant of possession, which will authorise officers to remove the tenant by force.
As is the case in NSW, Victorian landlords must provide a signed written notice, which can either be sent by post or delivered by hand.
If the tenant does not leave, the landlord then has 30 days to request an order of possession from the tribunal. This order includes instructions to vacate the home, the date of evacuation, and a warning regarding forcible eviction should the tenant fail to comply.
If there is no compliance, a landlord can then obtain awarrant of possession to allow the authorities to remove the tenant.
In the Sunshine State, the appropriate form must be used to create the notice, which must be presented within a reasonable period of time. The reason for termination must be indicated, along with the evacuation date.
If the tenant does not comply, the landlord must apply to the tribunal for a termination order and a warrant of possession within two weeks of the date of handover.
Upon approval, the tribunal will then send notice regarding a hearing, as well as a copy of the landlord’s application, to the tenant. Once the warrant of possession is issued, it must be carried out within three days of the termination date.
The authorities have 14 days to enter the property and enforce the warrant unless the tribunal indicates otherwise.
In the west, landlords must issue a formal notice to the tenant regarding a breach of the tenancy agreement.
The tenant then has 14 days to correct the breach. If they do not comply, this is when the termination notice should be served. The tenant is given seven days after receiving the notice to leave the property.
If the tenant does not vacate within this time period, then the landlord should apply for an order of possession from the Magistrates’ Court within 30 days. The subsequent course of action is to request a property seizure and delivery order. A court-appointed bailiff will then be sent to evict the tenant on the landlord’s behalf.
In the event that a tenant has breached the rental agreement, landlords are required to serve written notice demanding a remedy; otherwise, the tenant must vacate the home. The notice should detail the breach, the suggested remedy and the notice period. The landlord should be careful to specify “all other occupants” aside from the tenant, and there should be two copies of this document – one to be kept for the landlord’s records.
The tenant then has seven days to comply with the request; eight days if the offence in question involves rent arrears. If this is disregarded, then the landlord may proceed to fill in an application form for eviction, which also covers a request for vacant possession.
It must be accompanied by supporting documents, such as a copy of the lease agreement, rent records and written notices, if any. These requirements must then be submitted to the tribunal, the only party that can effect eviction via a tribunal order.
On the Apple Isle, landlords must provide a notice to vacate either 14 or 28 days prior to the stated eviction date. This notice indicates the date on which the document was issued to the tenant, the names of both parties, the address, the reasons for the evacuation notice, and the effective date of the notice period.
If the tenant fails to vacate the property, the landlord can apply for an order of possession from the Magistrates’ Court.
A copy of the application must be presented to the tenant on the same day. The court will then send a representative to enforce vacant possession of the property on the set date.
“If a tenant is being evicted because … the landlord isbeing pedantic, that would be dismissed. What the tribunal looks at is what’s reasonable”
Australian Capital Territory
When faced with a problematic tenant, a landlord is required to first serve a notice to remedy. If the tenant does not act on it within seven days, then the landlord can move forward with a written notice to vacate. If, however, the tenant has previously been issued two remedy notices, then a notice to vacate can be presented immediately.
There should be an adequate period of notice, and the document should indicate the legal grounds for termination as well as the premise behind these grounds.
If the tenant does not budge, then the landlord can apply for a termination and possession order from the tribunal. Subsequently, the landlord can request a warrant for eviction.
Upon providing two days’ notice regarding the eviction, the authorities can then remove the tenant within a set period unless there are exeptional circumstances.
In the Top End, a landlord must first seek out a rental officer to apply for an order for the tenant to leave. An order for eviction can be made concurrently, or at another time.
The rental officer then issues the order to the tenant, and an affidavit of service is generated.
If the tenant does not vacate, the landlord must file an order for a writ of possession with the Supreme Court within six months. This order should be supported by the affidavit of service for the eviction order and another confirming that the eviction order was disregarded. The writ should then be issued to the sheriff, who would be granted the authority to remove the tenant and recover the property on behalf of the landlord.
“Each party pays their own costs. If the tenant is suffering hardship, often they will represent themselves”
In all cases, both parties will need to be prepared for the cost of asking the authorities to hear a case.
“Each party pays their own costs. If the tenant is suffering hardship, often they will represent themselves. Or, if required, they could get legal aid. [However,] they need to pay to have the case heard,” Gunning states.
Originally published by:https://www.yourinvestmentpropertymag.com.au/legal-strategy/statebystate-guide-to-evicting-your-your-tenants–legally-247763.aspx