Using rental notices and the breach process - Landlord Issue 13 (September 2017)
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22 September 2017
Your tenant is late paying the rent, so what action can you take?
You have received a complaint about your tenant’s antisocial behaviour, or suspect that there are extra people living at the property. How do you enforce the conditions of the lease agreement?
In these situations, you need to follow a well-defined breach process, which involves the service of rental notices. The rental notices you need are available on our Rental forms and notices webpage.
It is important you use the correct notice and that the proper procedure is followed for serving notices. If the matter ends up in court, you will need to prove the appropriate notice was served correctly. If not, the magistrate may decline your court application and the delay may increase your financial loss.
To assist you, flowcharts of the three breach processes are available on our Using rental notices webpage. The first two charts are used for the non-payment of rent and the third chart for breaches other than for the non-payment of rent. Guidelines for using the three charts are provided below.
Notices for non-payment of rent
The following two breach procedures are used for the non-payment of rent depending on what outcome you prefer:
Select this option if this is the first time the tenant has fallen in arrears, or has a previous history of late payments but you would still like to keep them as a tenant.
The day after the rent is due, serve the tenant with a Form 21 - Breach notice for non-payment of rent. This requires them to bring the rent up to date within 14 days.
If they do not pay the rent then issue a Form 1A - Notice of termination for non-payment of rent which seeks to terminate the residential tenancy agreement and requires the tenant to vacate the premises within seven days.
Select this option if your primary objective is to obtain the rent as quickly as possible, or your tenant has fallen behind with the rent and you don’t think they’ll catch up.
The day after the rent is due, serve the tenant with a Form 1B - Notice of termination for non-payment of rent that notifies the tenant that unless the outstanding rent is paid within seven days, you may apply to the Magistrates Court for an order to terminate the agreement (Magistrates Court Form 12 or Perth Form 12).
If the tenant does not pay rent arrears within seven days, they will incur the cost of the court application fee, as well as having to pay the rent arrears.
The Magistrates Court hearing date cannot be earlier than 21 days following the Notice of termination for non-payment of rent (Form 1B).
If the tenant pays all outstanding rent and the court application fee to you by the day prior to the court hearing, the application will not continue.
Notice for a breach other than for failure to pay rent
Select this breach process if your tenant may be breaking or has breached the rental agreement in some other way such as:
- keeping a cat or dog on the premises when this is not allowed;
- subletting to others where you have not agreed;
- not keeping the property reasonably clean;
- causing damage to the property
- changing the locks without approval;
- causing a nuisance to neighbours;
- failing to water or maintain the garden and lawns;
- using the premises for an illegal purpose; or
- using the premises for business purposes without your approval.
This procedures for giving your tenant formal notice of a breach are aimed primarily at getting the problem fixed, but can lead to asking the tenant to leave.
Step 1: Notify your tenant of the breach of agreement by using Form 20 - Notice to tenant of breach of agreement. Clearly state how the tenant breached the agreement.
Step 2: If your tenant fails to rectify the situation within 14 days, issue a Form 1C - Notice of termination. This seeks to end the tenancy no sooner than seven days.
How to serve a notice
You can serve a notice by email (if electronic serving of notices was agreed to in the lease agreement) in person, or mailing by ordinary post.
Do not place in the letterbox yourself or use certified (registered) mail. Certified mail must be signed for, and is not deemed delivered until the recipient has signed for it. If the recipient is not home or refuses to accept the mail it will be returned to the post office and the tenant may choose not to collect it.
If serving the notice by post, the days for postage must be factored in and you should make reasonable allowances for the reduced number of delivery days by Australia Post. If not, a magistrate may decline the court application if you have not made adequate provision for service.
A notice can be served by giving it to the tenant, a person who usually pays the rent or a resident of the rented premises who is over 16 years of age.
For further information, please refer to the online publication Renting out your property – A Lessors Guide.
From 3 July 2017, it has been compulsory to use Form 19 for those circumstances, where you may enter the rental premises. For further information on those circumstances please refer to the privacy and entry rights for rental properties information on our website.
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