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Ending a Tenancy

A guide for Landlords-
When it comes time for a tenancy to end, there are procedures and rules that landlords need to follow. The information on the following pages will guide landlords through this phase of a tenancy.

Giving a termination notice to your tenant-
When you want to end the tenancy it is important that you follow the correct procedures. If you don’t do this you run the risk of causing an unnecessary delay in getting back possession of your property or having to start the process all over again.

Amount of notice required-
If you want the tenant to vacate you must give them a termination notice. The notice must-

  • Be in writing
  • Be signed and dated by you or your agent
  • Be properly addressed to the tenant
  • Give the day on or by which the tenant is requested to vacate
  • Where appropriate, give the grounds/reason for the notice

The minimum period of notice you can give the tenant to vacate is-

14 days –
If the tenant is 14 days or more behind with the rent or has committed some other breach of the tenancy agreement

30 days –
If the fixed term of the agreement is due to end

30 days –
If the premises have been sold after the fixed term has ended and vacant possession is required by the buyer under the terms of the sale contract

90 days –
If the fixed term period has expired and no new agreement has been signed

These notice periods are designed to give tenants reasonable time to find another rental property. If they can find a property sooner they can move out at any time without having to give you any formal notice. Except where notice has been given for the end of the fixed term, the tenant’s responsibility to pay rent ends from the date they hand back possession, not the end of the notice.

There is no minimum notice period required if notice is given on the grounds of-

  • The premises being destroyed or wholly or partly uninhabitable
  • Ceasing to be legally usable as a residence
  • Being acquired by compulsory process (e.g. by the RTA)
  • On the death of the sole tenant

After you issue a notice you can issue another notice on a different ground if necessary. For example, if you issue 90 days notice to terminate a periodic tenancy without a reason, and the tenant then doesn't pay rent for 14 days, you can issue a non-payment of rent notice.
Click here for a model termination notice form.

Counting days and other rules-
It is important to count the days accurately when working out the termination date for the notice and to add extra days to allow for delivery.There are specific rules which need to be followed when serving a termination notice or any other notice to your tenant.

Tribunal possession orders-
If you give notice and your tenant does not vacate by the due date the only action you can take is to apply to the Consumer, Trader and Tenancy Tribunal for a possession order. You cannot forcibly evict the tenant yourself or take action such as changing the locks or cutting off the water or power supply. Heavy penalties and compensation could be payable if you do.

You need to apply to the Tribunal within 30 days after the date to vacate specified in your termination notice.

Whether you obtain a possession order is up to the Tribunal to decide, based on the evidence you and the tenant present at the hearing. In the case of notice ‘without a reason’ the Tribunal must make a possession order if the notice was served correctly, unless the tenant can prove it was retaliatory.

If the Tribunal makes an order it will give the tenant a date to move out. If the tenant still does not vacate you will need to obtain a warrant for possession from the Tribunal’s Registry and have it enforced by the Local Court Sheriff’s Office.

You can apply direct to the Tribunal for a possession order, without giving the tenant notice, in the following circumstances-

  • Serious damage to the premises or any neighbouring property
  • Injury to the landlord, agent, employee or one of the tenant’s neighbours
  • Use of the premises by the tenant for illegal purposes such as drug manufacture
  • Threat, abuse, intimidation or harassment by the tenant
  • Undue hardship faced by the landlord

Making a bond claim- A guide for landlords-
When the tenancy has ended and the tenant owes you money you can make a claim against the tenant’s bond.

Reasons for claiming-
The main reasons a claim can be made against the bond are-

  • Unpaid rent
  • The reasonable cost of repairing damage to the premises, beyond fair wear and tear
  • Unpaid water usage charges, so long as you had requested payment within 3 months of receiving the bill
  • Any ‘break fee’ or other charges payable as a result of the tenant breaking the tenancy agreement early
  • The reasonable cost of cleaning any part of the premises not left reasonably clean, having regard to how clean the premises were at the start of the tenancy
  • The reasonable cost of having the barrel of the locks changed or other security devices replaced, if the tenant has failed to return all keys and security devices they were given.

This is not an exhaustive list. There may be other legitimate reasons for making a claim against the tenant’s bond, such as the cost of disposing of goods left behind by the tenant. The claim must relate to a breach of the tenancy agreement by the tenant.

Fair wear and tear-
Your tenant is not responsible for fair wear and tear to the premises. Fair wear and tear means the deterioration that occurs over time with the use of the premises even though the premises receive reasonable care and maintenance. Such deterioration could be caused by exposure, time or just by ordinary use. The tenant is only liable for negligent, irresponsible or intentional actions that cause damage to the premises.

These examples may help to explain the difference.

Fair wear and tear damage

  • Faded curtains or frayed cords  Missing curtains or torn by the tenant’s cat
  • Furniture indentations and traffic marks on the carpet Stains or burn marks on the carpet
  • Scuffed wooden floors Badly scratched or gouged wooden floors
  • Faded, chipped or cracked paint Unapproved or poor quality paint job
  • Worn kitchen bench top Burns or cuts in bench top
  • Loose hinges or handles on doors or windows and worn sliding tracks Broken glass from one of the tenant’s children hitting a ball through the window
  • Cracks in the walls from movement Holes in walls left by tenant removing picture hooks or shelves they had installed
  • Water stain on carpet from rain through leaking roof or bad plumbing Water stain on carpet caused by overflowing bath or indoor pot plants
  • Paint worn off wall near light switch damage to paint caused by removing posters stuck with blue tack or sticky tape

This means, for instance, you can lodge a claim against the bond for the cost of cleaning the carpet if it has been stained or left dirty. You should not lodge a claim if the carpet is clean and unstained, even if the carpet was new or professionally cleaned before the tenant moved in.

Paperwork required-
If you intend to make a claim for part or all of the bond, we will need to fill out a claim form and lodge it with Fair Trading. It is best if we can get the tenant to agree with your claim and sign the form as well. That way, the bond can be paid without delay. If this is not possible, you should lodge the form without the tenant’s signature as soon as possible with Fair Trading and send evidence of the claim to the tenant (see below).

Fair Trading will send a notice to the tenant giving them 14 days to either settle the matter with you or contest your claim by applying to the Consumer, Trader and Tenancy Tribunal. That is why it is important that the claim form include the tenant’s forwarding address (if known) or other contact details.

If they do not apply to the Tribunal the bond will then be paid out as per your claim. If the tenant applies to the Tribunal the bond will be held by Fair Trading until the dispute is settled. We will then need to attend a hearing at the Tribunal and present evidence to back up your claim.

If the tenant lodges a claim for refund first without your signature, Fair Trading will send you a notice advising of the claim. We can either try to resolve it with the tenant or apply to the Tribunal within 14 days if you disagree. Make sure to notify Fair Trading that you have applied to the Tribunal, so that the bond can be held until after the hearing.

If you and the tenant reach a different agreement after one of you has lodged a claim, then a new claim form will need to be lodged with Fair Trading with both your signatures. Otherwise, the first claim lodged will be paid out after 14 days. Once the bond has been paid out either you or the tenant can still apply to the Tribunal. There is a 6 month time limit to do this.

Providing evidence to the tenant-
If you lodge a claim relating to the condition of the premises, without the tenant’s signature, within 7 days we must send copies of the following to the tenant. Send the documents to their forwarding address (if known) or the rented premises address-

  • The final condition report, and
  • Estimates, quotes, invoices or receipts for the work

Copies of these documents also need to be sent to Housing NSW if that Department paid the whole or part of the bond. Failure to provide these documents within the time period required can lead to penalties being imposed, if you do not have a reasonable excuse. Note. Do not send these documents or anything else except the claim form to Fair Trading.

Goods left behind by your tenant-
Tenants are responsible for ensuring that all of their belongings are removed from the premises at the end of the tenancy. However, from time to time, tenants leave things behind for various reasons. It may be a genuine oversight or a deliberate or unavoidable act by the tenant. Regardless of the circumstances, landlords and agents must follow the correct process when goods have been left behind.

Tenancy must have ended-
Before we take any action we must be certain the tenancy has ended. This is particularly important if you or the tenant have not given notice to end the agreement. The premises may look abandoned but the tenant may have gone on holiday, away for work, or be in hospital.

Check with the neighbours, the tenant’s workplace or try contacting their mobile phone or email address if we have those details. If we have doubts about whether the premises have been abandoned, we can apply to the Consumer, Trader and Tenancy Tribunal. If no doubt exists, we do not need a Tribunal order. You can simply change the locks to secure the premises and deal with any goods that have been left behind.

Rubbish and perishable items-
You can dispose of any rubbish or perishable items left behind by the tenant immediately. For example, a broken chair and a pile of old newspapers, perishable food left in a cupboard or dying pot plants in the yard. You do not have to notify the tenant or get their consent to dispose of such items. However, you must be reasonably sure that what you are disposing of is in fact rubbish. If you have any doubts it is advisable to treat the items as goods of value-

Notice required-
If items other than rubbish have been left behind you have to attempt to notify the former tenant. We need to try to tell them that you have their goods and they will be disposed of after a certain time if they are not collected. This can be done in writing (mailed to a forwarding address if known or to the property in case the tenant is having their mail redirected), in person or over the telephone. If after 2 days you have not been able to contact the former tenant we can leave a notice in a prominent position somewhere on the premises (e.g. stuck to the front door).

Storage of goods-
Goods of value could include such things as furniture, electrical items and clothing. If these goods have been left behind by your tenant they need to be stored in a safe place. This could be either on the premises or somewhere else. Goods of value need to be kept for at least 14 days from the day you notify the tenant to come and collect them.

Personal documents-
Different rules are in place when dealing with personal documents left behind by a tenant. Personal documents are defined under the Act as being-

  • A birth certificate, passport or other identity document
  • Bank books or other financial statements or documents
  • Photographs and other personal memorabilia (e.g. medals and trophies)
  • Licences or other documents conferring authorities, rights or qualifications

Personal documents left behind by a tenant need to be kept in a safe place for at least 90 days from the day we give notice to the tenant. This longer period recognises the importance or sentimental value of such items.

Tenant reclaiming goods-
The former tenant, or anybody else with a legal interest in the goods (e.g. the tenant’s ex-housemate or a goods hire company) can reclaim the goods at any time they remain in your possession. A suitable time and day for collection needs to be agreed upon. You cannot refuse to return the belongings, even if the former tenant owes rent or money for some other reason.

Generally, goods left behind can be reclaimed free of charge. However, you can charge an ‘occupation fee’ to the person claiming the goods if enough goods were left to prevent you from renting the premises. An occupation fee (equal to a day’s rent) can be charged for each day the goods are held, whether they are stored on the premises or elsewhere, up to maximum of 14 days, even if you choose to hold the goods for longer.

Disposal of unclaimed items-
If the former tenant fails to reclaim the goods within the 14 days you can choose to-

  • Donate the goods to charity (e.g. leave clothes in a clothing bin or arrange for furniture etc to be collected), or
  • Dispose of the goods in a lawful manner (e.g. take them to the tip or organise a council collection if such a service is available in your area), or
  • Keep the goods in the property if they are useful fixtures and fittings (e.g. curtains), or
  • Sell the goods for fair value and give the proceeds to the tenant (less the occupation fee and reasonable costs of the sale) or send it to the Office of State Revenue after 6 years as unclaimed money

Unclaimed personal documents can be disposed of after the 90 days in an appropriate manner, such as by returning to the issuing authority (wherever possible) or by shredding.

If you have followed the law correctly, you are protected if the tenant comes back to you later about the goods. However, if the law was not followed you could be ordered by the Tribunal to pay compensation to the tenant. This could include any damage to the items while they were in your possession.

Tribunal orders-
You can apply for an order from the Tribunal as to what to do with the goods if the tenant abandons the premises or dies. However, this may take a few weeks and the Tribunal may tell you just to follow the same process set out above. We can apply for an order if there is a dispute about payment of the occupation fee.