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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.