How Eviction Process Works in Australia
The process of terminating a tenancy before the end of a mutually agreed rental period and evicting a tenant is strictly governed by laws in Australia. These laws are state specific.
The landlord has to follow a specified legal procedure when terminating a tenancy agreement and evicting a tenant. The landlord must have a valid ground before asking the tenant to vacate the property.
What steps an owner should take to evict a tenant depend on the following three things:
- The state where the property is located
- The type of tenancy
- The kind of breach of the rental agreement. The process may be different when a landlord is evicting a tenant for the failure to pay rent from what the process will be when a tenant is involved in criminal activities.
The type of tenancy
There are two types of tenancies in Australia:
In a fixed term lease the landlord and the tenant agree on a single, particular length of tenancy. It is usually for six months, or one year, however, there is no limit to the length as it can be determined in the lease in writing. After the end of the fixed period, the tenancy turns into a periodic one unless both the parties enter into a new fixed-term rental agreement. The leasing period after the end of fixed-term tenancy depends on the frequency of rental payments as per the agreement. It could be fortnightly or monthly.
A period tenancy renews fortnightly or monthly (depending on the frequency of rental payments). Periodic tenancies agreement can be verbal or put in writing. A periodic abidance will continue indefinitely. It goes on recurring automatically till is finished by the parties to bring it to an end.
The period of notice a landowner must give to a tenant before terminating a tenancy varies depending on the state and therefore the sort of agreement in place.
The type of breach
One of the most important steps in an eviction process is to establish that the landlord has a valid ground to evict the tenant. Some of the reasons on which a landlord can demand eviction are as follow:
The tenant is in breach of an agreement specified in the lease documents. For example, if the lease binds tenant not to keep pets or sublet a unit and the tenant violate it, it can be a valid ground to evict him or her.
One of the most common grounds is non-payment of rent. If a tenant doesn’t pay rent on time consistently, the landlord can ask him or her to vacate the place.
- The tenant is in breach of an agreement specified in the lease documents. For example, if the lease binds tenant not to keep pets or sublet a unit and the tenant violate it, it can be a valid ground to evict him or her.
- One of the most common grounds is non-payment of rent. If a tenant doesn’t pay rent on time consistently, the landlord can ask him or her to vacate the place.
- If a tenant has caused damage to the property.
- In some states, third parties like neighbors can move a court asking for an eviction order if the tenant is causing a nuisance. It also gives the landlord a valid ground to evict the tenant.
- The tenant is indulging in crimes or using the property for illegal activities.
Tenants are protected by tenancy laws. Three specific grounds on which a tenant can seek relief are as follow:
- Inability to arrange for an alternative accommodation immediately
The process in general
As mentioned earlier, the process of eviction varies from state to state, but it is broadly generic.
After establishing a valid ground for evicting the tenant, the landlord has to serve on the tenant a notice to vacate. The landlord has to explain in detail as to why he or she is putting an early end to the tenancy, and the tenant is being evicted.
Each state has different length of notice period and lawsuit filing. The form and documents to be filled by the landlord also differ from the state to state. If the tenant doesn’t leave and respond to the notice to vacate, the landlord can begin the eviction process. The landlord has to file a lawsuit with a magistrate, a tribunal or rent officer (depending on which state the lawsuit is being filed) within a particular period. Under no circumstances, the tenant can be locked out of the property.
While explained above is the general process, the following are some state-specific rules:
Australian Capital Territory
- A ‘notice to remedy’ is served on the tenant before a ‘notice to evict’.
- There has to an interval of seven days between a notice to remedy and a notice to evict. The landlord can apply to the tribunal for a termination and possession order (TPO) if the tenant doesn’t move out.
- If the tenant doesn’t move out in compliance with TPO, the landlord can apply to the tribunal for a warrant for eviction. This gives the police the facility to evict the tenant within a given moment.
New South Wales
- The notice period is usually 14 days, specifying the date by which the tenant has to move out.
- The landlord can apply to the court for a termination order if the tenant continues to live in the property.
- If the tenant doesn't vacate by the desired date, the owner will get a warrant for possession from the court.
- An owner can approach a rent officer with an application requesting an eviction order.
- If the tenant does not vacate the property even after an eviction order from rent officer, the landlord can file the order with the Supreme Court to get a write of possession.
- The owner issues a written notice to the tenant to remedy a breach of a rental agreement or leave the property.
- If the tenant doesn’t correct the violation with seven days, the landlord can apply to the tribunal for an eviction order.
- The landlord serves the tenant with a notice to vacate. The notice period could be either 14 days or 28 days.
- The landlord applies to the Magistrates’ Court to obtain an order for possession if the tenant doesn’t leave the property.
- If the tenant doesn’t move out after the notice period comes to an end, the landlord has 30 days to apply to the tribunal for an order of possession.
- For landlords to evict a tenant, it is important to keep records of rental payments and have proof that the tenant is in breach of rental agreement.
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