Breaches of tenancy agreement
If the rent is overdue
A landlord can have the tenancy terminated if the tenants present a bad cheque or fall behind with their rent and can’t make up the payment within an agreed time. It’s important to remember there are procedures which must be followed. Remember, landlords can’t just evict or force a tenant out, no matter what the circumstances.
Landlords have two alternatives:
- The landlord wants the tenant to remain in the property, but pay rent arrears. Not less than one day after the rent was due, the landlord can give the tenant a Form 21: Breach notice for non-payment of rent or write to the tenant. Tenants then have 14 days to bring their rent up to date. The landlord doesn’t have to use a prescribed form, but the notice must be in writing and clearly state the tenants' name, address of the rented property, current amount of money owing and request full payment within 14 days.
If all the outstanding rent is not paid within the 14 days, the landlord can then issue a Form 1A: Notice of termination for non-payment of rent (to be used only if a 14 day breach has been issued). This ends the residential tenancy agreement and requires the tenants to vacate the premises within the next seven days.
- The landlord doesn’t want the tenant to remain in the premises because of continual breaches of the agreement. Not less than one day after the rent should have been paid but was not received, the landlord may give tenants a Form 1B: Notice of termination for non-payment of rent (to be used if no breach notice has been issued). This warns the tenant that unless the outstanding rent is paid within the following seven days, the landlord may apply to the Magistrates Court for an order to terminate the agreement.
If the tenants do not pay the rent arrears within the seven days, then they will have to pay the cost of the court application fee plus the original rent arrears.
The Magistrates Court hearing date can’t be earlier than 21 days after the Form 1B notice of termination has been issued as above.
Note: If the tenant pays all outstanding rent and the court application fee to the landlord by the day prior to the court hearing, the application will not continue before the court.
Which alternative should you choose?
If this is the first time the tenant has fallen behind with their rent or, regardless of having a history of late payments, the landlord would still like to keep them as a tenant, then choose the first option.
If, on the other hand, the landlord's main objective is to obtain the rent as quickly as possible, or the tenant has fallen behind with the rent before and is unlikely to catch up, the landlord may prefer to choose the second option.
As the procedures are complex, flow charts for the two alternatives can be found in the appendices of Renting out your property - a lessor’s guide.
Regardless of which option a landlord chooses, a tenant cannot be forced out of a property without a court order ending the agreement and under no circumstances does the law allow the landlord to seize a tenant's belongings instead of rent owed.
Tenants who reasonably believe they are not behind in the rent can stay in the premises while the landlord tries to negotiate a suitable outcome. This is also the case when the landlord applies for an eviction hearing in the Magistrates Court, where both parties will have the opportunity to put up their case.
Keep copies of the notices and records of your contact with the other party as you may need this information if the matter goes to court.
The court will also expect landlords to provide a proper record of rent and not just bank statements. Refer to the sample rent records in our publication Renting out your property - a lessor’s guide for more information.
Other breaches of the tenancy agreement
Apart from not paying rent, a tenant can also breach the rental agreement for any of the following:
- keeping a pet on the premises when this is not allowed;
- sub-letting to others when it is not allowed;
- not keeping the property reasonably clean;
- causing damage to the property;
- changing the locks without your approval;
- causing a nuisance to neighbours;
- failing to water or maintain the garden and lawns as agreed;
- using the premises for business purposes without your approval; or
- using the premises for an illegal purpose.
The procedures for giving the tenant formal notice of a breach are aimed primarily at getting the problem fixed – but it can also lead to asking the tenant to leave.
Issuing a breach notice (other than for failure to pay rent)
Step 1: Notify the tenant of the breach of the agreement by giving a Form 20: Notice to tenant of breach of agreement (other than failure to pay rent). This gives the tenant 14 full days to fix the problem.
Step 2: If the tenant fails to fix the situation within the 14 day period, the landlord's next option is to issue a Form 1C: Notice of Termination (not to be used for non-payment of rent). This seeks to end the tenancy no sooner than seven full days after the notice is received.
If the landlord would prefer to have the tenant fix the problem, rather than end their tenancy, the landlord should apply to the Magistrates Court seeking a court order stating the tenant must fix the problem.
Again, the flow chart detailing the steps to be taken is in the appendices of Renting out your property - a lessor’s guide.
If the tenant believes the landlord is in breach of the tenancy agreement, they can follow a similar breach procedure to that outlined above. The tenant can write the landlord a letter or use the form specifically designed for this purpose: Form 23: Notice to lessor of breach of agreement.
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