Landlords, tenants and eviction proceedings: What are the laws?

by The FindLaw Team

As the number of Australians engaged with the rental market increases, it’s unsurprising that issues can sometimes arise between landlords and tenants. Ideally, any difficulties between a landlord and tenant will be resolved amicably. However, there may be times when an issue is so serious,  that a landlord may feel the only option available is eviction. So the obvious question is: Do landlords have the power to evict a tenant?

If a landlord wishes to end the tenancy agreement, certain procedures must be followed before such an action can be undertaken – beginning with providing proper notice to the tenant.

Generally, if a landlord wishes to bring a fixed term tenancy agreement to an end, 30 days’ notice should be provided before the conclusion of the term. Failure to provide notice may mean that the tenancy becomes a periodic tenancy and in such a case, 90 days’ notice must be provided in New South Wales, or 60 days’ notice in Queensland are just two examples.

If the tenant does not adhere to the notice, the landlord can apply to the relevant tribunal or body for an order to terminate the agreement and regain possession.

However, we should highlight that the notice requirements may vary between the States and Territories, so readers should be mindful of that fact.

How can a tenant challenge eviction proceedings?

There are a number of options available to tenants who wish to challenge eviction proceedings, such as denying there was any breach of the agreement for example. Alternatively, tenants can also challenge an eviction notice on the grounds that the notice was retaliatory, or does not conform to the relevant statutory requirements.

Notice due to non-payment of rent

In instances where rent is in arrears, and the landlord provides a termination notice, a tenant can either pay all of the rent owed, or enter into an agreement for payment of the amount due, while also complying with the terms of the agreement. Failure to do either may result in the termination of the rental agreement.

Can a landlord physically remove a tenant?

Landlords cannot physically remove a tenant. Only a person, such as a Sheriff, who is acting under the authority of the relevant body are able to enforce an order of possession.

Can a landlord lock out a tenant?

Some landlords may think that changing the locks, or adding additional security measures denying entrance into the property, may be an available option. However, it is generally against the law for the landlord to lock out a tenant.

This piece is only a general outline of the laws relating to eviction proceedings. If you do have a tenancy matter that needs dealing with, please seek the help of a qualified legal practitioner.



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