I often hear landlords say, “lets get them out”. Landlords can’t just evict a tenant whenever they feel like it. Tenants have rights and they are protected by legislation. Of course landlords have rights too by the same legislation. A certain legal process needs to be followed. Tenancies can only be ended in accordance with Residential Tenancies and Rooming Accommodation Act 2008
So how can landlord evict a tenant ?
Why & When to Evict Tenants?
While it might turn out to be the worst-case scenario for any landlord or tenant out there, still there might arise an instance in which the landlord is bound to evict a particular tenant from the rental property. There are several reasons for which a landlord might consider evicting tenants. However, in most common cases, the major reason for the eviction is due to the violation or breaching of the specific terms & conditions of the agreement.
In case the agreement between the tenant and the landlord is not met properly, and the tenant does not leave on one’s own accord, then the landlord is compelled to take the unfortunate step of the tenant’s eviction. While doing the same, it is important to refer to the residential tenancy authority or body of the state before evicting the tenants. This is because in Australia, eviction rules for the tenants tend to vary from one state to another.
Top Reasons for Eviction
When you are the landlord and wish to evict a particular tenant, you should have a strong, legal reason for doing the same in a particular state. There are several situations that could contribute to the termination of the lease agreement while providing a warrant for evicting the tenants. Here are some:
- Failing to pay the rent after receiving a series of reminder notices from the landlord
- Serving as a nuisance to the neighbors
- Late rental payments on a consistent basis
- Major damage caused to the landlord’s property
- Utilizing the property for illegal purposes –like drug manufacturing
- Breaching any other major obligation as mentioned in the rental agreement
At the same time, it is recommended for the landlords to note that there could be specific grounds for which a tenant might appeal the given reasons for eviction including lack of alternative option for accommodation, age, health, and so more.
Issuing Notices to the Tenants
Before you can go forward with evicting the tenants from your property for any legal reason, you are required to deliver the right legal notice to them at the same time. You should provide a series of valid notices to the tenants such that they have the opportunity to remediate the given issue. The types of legal notices & periods for eviction tend to vary from one state to another. At the same time, the reason for eviction can also affect how you aim at sending the notice to the tenants.
For instance, in most states in Australia, the tenants are given a proper Notice to Remedy in case they have not paid the respective rent. As such, the tenants are provided around 14 days to ensure the rental payments. If by the end of the period, the rent remains unpaid, the landlord can go ahead with asking the tenant to evict the property.
Some specific reasons for evicting a tenant from the property would require longer notice periods in comparison to others. When a tenant tends to breach specific terms & conditions of the rental agreement, only then a 14-days period notice is required.
At the same time, as a landlord, if you are selling the property and wish to vacate the same, then you are required to provide a notice period of at least 30 days to the tenants.
Evicting the Tenant from Your Property
Once you deliver all the legal notices to the tenants, for ending the lease and evicting the tenants, you should now provide them with a proper termination notice. When you are preparing the termination notice for the tenants, here are some points to keep in mind:
- Submit the termination notice in writing
- Make sure that the notice has the duly signature as well as date by the respective property manager or the owner of the property
- The notice needs a proper address to the given tenant by specifying the right name & contact information
- The notice should also provide the particular date on which the rental agreement will face termination. At the same time, you should specify the date on which the tenant should vacate the property.
- Whenever appropriate, you should provide proper grounds or reasons for sending over the notice
- Make sure that you have maintained a proper copy of the given notice. This would serve as a major proof for evicting the tenants from your property.
When you are evicting the tenants from the property, it is crucial that you are following the right steps. In case you fail to do the same, it could result in the landlord for legal trial or a court proceeding. You might have to pay some form of compensation. Therefore, you should be extra cautious for the same.
Lets start with the simplest first
Form 12 is the official Notice to leave the landlord needs to send to the tenant. Its a simple easy form to fill out and on it shows the official time frames that apply for the correct circumstances. You can read about it and access the official form 12 here.
The RTA has a very helpful page here all about ending a tenancy agreement here & another very helpful fact sheet
The main reason I don’t like period leases is tenants can give 2 weeks notice and leave. If they do it’s a scramble, to find a good tenant in that time frame. Now if you are a landlord that’s really wealthy you maybe able to afford to have the property empty, but my experience is even really wealthy people prefer rental income coming in. But this is all about how the landlords can evict the tenant, so here is the shocker. If a tenant is on a periodic lease the landlord needs to give the tenant 8 weeks notice. Yes 2 Months.
So the tenant can give the landlord just 2 but the landlord needs to give 8. Odd I know. The only time this is less, is if the tenant is on a periodic lease and the property sells. Then the landlord can give them 30 days notice. This of course in on the Sunshine Coast Australia in Qld. Other states might be different. You can obtain the official notice to leave Form 12 Document here and read more about it from the RTA
End of lease
If a tenant is in a lease that’s coming to and end. Guess what. They don’t automatically leave & you can’t just ask them to leave. You still need to give them 2 months notice. So yes, 2 months before the lease expires you need to send them a Form 12 Notice to leave. You can obtain the official notice to leave Form 12 Document here and read more about it from the RTA
If your tenant is 7 days behind in rent you can’t just send them a Form 12. Legislation processes need to be followed. First you need to send them a breach notice and with arrears you can’t send them a break notice until they are 8 days in arrears. Yes 8. On day 8 send them a Form 11 Notice to remedy Breach. They then have 7 days to get their rent paid up to date. My experience is often when they get a breach notice on day 8 it all sorts out.
But if it doesn’t with 7 days you can then a form 12 send them a notice to leave. Giving them 7 days to vacate. So if a tenant is behind in rent you are exposing yourself to a total of 14 days of no rent with them in the property, which would be covered by your bond or landlord insurance.
Abandonment Form 15
If the landlord is certainly the tenant has abandoned the property and not just on a long holiday the landlord can issue the tenant with a form 15 Abandonment. Prior you should use a form 9 Entry notice to have a look inside first. The Form 15 need to be sent to the tenant’s residential address, place of business and email. They have 7 days to apply to QCAT if they disagree
Mortgage In Possession Form 19
Notice to vacate from mortgagee to tenant. If the bank takes over ownership they just kick the tenant out with 2 months notice. Not much fun for anyone involved.
Non Liveable Dwelling
This is also a form 12 notice to leave. We have this recently where a property had termites and a large section of the house had to be pulled down. It was unsafe so tenant eviction took place . You can read more about it on the RTA site here
If you provide your tenant with multiple general breaches for example, having an unapproved occupant stay, or the place is not clean. Then yes, you can send them a notice to leave
Failure to Leave
So the official date has arrived. You can’t connect the tenant, so you use Form 9 entry notice and find they are still there. Have not moved. Not interested in moving. Yikes. That’s awkward so what now ? Police ? heavies ? No of course not silly. You need to now make an URGENT claim with QCat.
Urgent Qcat Claim
I recommend leading up to the eviction date have your QCat claim ready to lodge so you can do that day. A claim takes hours to prepare. You need copies if the lease, breach notices, entry condition report, routine inspections reports, email correspondence, everything you have for your case. Then you need 4 copies.
The QCAT site is a crazy place so I am going to give you the link to get straight to the form you need, you can access the Qcat Form 2 here.
On the Qcat site it talks about urgent and non urgent claims and will put your head in a spin. A tenant who does not vacate on the vacate date is an urgent Qcat claim.
To lodge your claim you will need to attend the closest court to property, when you give them the 4 copies ask them to check for any errors, they will stamp them, you’ll pay a small fee and leave. Then in about 14 days they will write to you with a court hearing date. Which could be weeks away. Yes this is for urgent claims. Scary stuff I know. They will also write to the tenant.
On the court date if you win, which you should under the circumstances, the court will order the tenant to vacate with in a certain time frame.
But guess what. They might not even do that, so on the date the tenant receives the order to vacate takes your local police with you and a lock smith so you can enter the property and change the locks
I would suggest you read more about QCat disputes in general here
- Breach of agreement
- Either party can end the agreement if the other party does not remedy a breach after the Notice to remedy breach (Form 11) process has been followed.
- The lessor/agent must give seven days notice to leave for rent arrears, or 14 days notice to leave for general breaches. The tenant must give seven days notice of their intention to leave.
Terminations by Tribunal
The lessor, agent or tenant can apply straight to the Tribunal for a decision about when a tenancy agreement should end, but only for certain reasons, and only after correct processes have been followed. These are urgent applications and reasons include:
- failure to leave – if the tenant hasn’t left the property by the due date on the notice
- hardship – if either party believes they would suffer excessive hardship
- damage or injury – if the tenant has damaged the premises or injured people
- objectionable behaviour – if the tenant uses verbal abuse, harassment or causes a serious nuisance, and
- repeated breaches – for repeating a serious breach more than twice in a one year period, even though the breach fixes each time.