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“Problem tenants”. These two words pack enough punch to send a chill down the spines of even the most experienced investment property owners.
You might have a tenant who’s consistently 20 days late in rent payments, or one who’s always disturbing the lovely couple next door. You might just be curious about what you can do if you ever find yourself in that situation. Whichever the case, evicting a tenant might be the most viable choice if they're causing you enough grief.
In this article, we’ll cover the reasons for you to legally evict your tenant and map out the process so that you can get a sense of how it happens. Of course, we haven’t forgotten to include important details like tenants’ rights, costs to consider, and where to go for support.
By the time you reach the end of this article, you’ll be equipped with the confidence and resources necessary to tackle your tenant eviction.
Reasons to evict a tenant
The reasons to evict a tenant range far and wide, but it's important to clearly define your reasons. Why?
First, you need to make sure it’s substantial enough to warrant an eviction. If it isn’t, you might find yourself on the losing side in court. On top of that, there are different guidelines that you’ll need to follow depending on the reason for eviction.
In this section, we’ll be covering the different types of reasons to evict a tenant.
Most common eviction reasons for problem tenants
1. Non-payment of rent
This is the most common reason we’ve heard when helping owners evict their problem tenants. Usually, it isn’t just a one-off situation, but one that’s occurred enough times for it to become an issue for the owner.
According to Shannyn Laird, an experienced property manager with over 15 years of experience, it’s important to have tried everything else prior to getting to the point of eviction. This means that your property manager would’ve tried to negotiate a payment plan, or work with your tenant directly to find a resolution.
“Our intention is certainly not to evict tenants. We’d rather keep them in their home if we can.”
If things aren’t fixed even after negotiations, then you might need to take action to evict your tenant.
2. Failure to maintain the property
Your tenant is obliged to take reasonable care of your property so that you're not faced with excessive property maintenance issues. If they've made alterations to the home without your consent, or caused damage as a result of deliberate or negligent behaviour, this may warrant an eviction.
3. Breach of agreement
Chances are you most likely reached a consensus on a number of items when signing the tenancy agreement with your tenant. If your tenant has frequently failed to maintain any of those agreements, you might find yourself needing to evict them.
Common breaches of agreement include:
- Nuisance (e.g. disturbing the neighbours)
- Subletting without your consent
- Non-payment of utility charges
- Having pets on the premises when you have not given permission to do so
4. Engagement in illegal activity
If your tenant has been engaging in illegal activity on the premises, that provides you more than reasonable ground to evict your tenant. This includes:
- Use of the premises for illegal purposes (e.g. drug manufacturing, storing stolen goods)
- Threat, intimidation, abuse, harassment
- Domestic violence
Owner reasons for eviction
You might be wondering: Can I evict my tenant to sell the property?
Indeed, in some cases, you’ll need to evict a tenant because of reasons on your end. This might be because you’ve sold your property and the new owners want it to be vacated, or simply because you need to repossess the home. Whatever the reason, owners have the right to terminate the tenancy without ground, however you'll need to provide notice to your tenants at an earlier date.
We’ll set you up with more information on this in the next section, where we outline the process of evicting a tenant.
How to evict a tenant / how to evict a co tenant: mapping the process
1. Issuing the notice
Since there are a lot of legal complexities in the steps to eviction, there are a couple of important things to remember when issuing a termination notice (also known as a Notice to Vacate) to your tenant.
Make sure you provide the correct notice period
Notice periods can be incredibly confusing for landlords looking to evict a tenant by themselves. Depending on which state you’re in, there are different notice periods for different grounds for eviction.
As a general rule, you can expect to give 7-14 days' eviction notice time for non-payment of rent and breach of agreement, and at least 42 days for termination without grounds. Note that in some cases you’ll need to first provide a Notice to Remedy the breach before you can serve a Notice to Vacate.
We’ve pulled together a list of resources by state to help you determine how much notice you should give your tenant:
- VIC - Consumer Affairs Victoria
- WA - Department of Mines, Industry Regulation and Safety
- NSW - Fair Trading
- SA - Legal Services Commission of South Australia
- NT - Northern Territory Consumer Affairs
- TAS - Consumer, Building and Occupational Services
- ACT - Justice and Safety Community Directorate
- QLD - Residential Tenancies Authority
Make sure you include all the necessary information in the notice
The notice must be in writing, and include:
- The address of the property
- The owner’s full name/trading name
- The full name of the tenant(s)
- The grounds (if any) for termination
- The date on which the tenancy will be terminated
- The signature of the landlord or property manager
Some state authorities have provided forms that are helpful when serving termination notices. We’ve compiled a list of links to these sites where you can get an eviction notice from landlord to tenant to fill in and hand to your tenant:
- QLD - Notice to leave
- SA - Landlord’s notice of breach to tenant: termination of agreement
- NT - Notices for landlords to tenants
- TAS - Notice to Vacate
- NSW - Notice to Terminate Tenancy Agreement
- WA - Notice of Termination
- VIC - Notice to vacate to tenant/s of rented premises
Make sure you serve the notice according to the guidelines in your state
Again, how you’re required to hand the notice to your tenant differs from state to state. While in NSW it’s okay to leave it in your tenant’s mailbox, the laws in Victoria make it so that you need to serve a notice by hand, by registered post, or by electronic communication if the tenant has consented to be contacted this way.
The safest and surest way of serving notice no matter where you’re located is to hand it to the tenant in person. Sending by registered post is also an option, but you’ll need to make sure to factor in the postage dates.
It’s crucial when issuing the termination notice to check, check, and check again. If you miss any important details, the tenant can dispute the termination of the lease on the basis that the notice was invalid.
2. Applying to the Tribunal
If your tenant does not vacate by the date specified on the termination notice, then you should apply to your state’s Tribunal. You’re required to lodge the application within a certain period of the termination date written on the termination notice - again, this time frame varies, ranging from 2 weeks in Queensland to 30 days in Western Australia.
To help you navigate the different requirements according to each state, we’ve provided helpful links to each state authority for more information:
- ACT - ACT Civil & Administrative Tribunal (ACAT)
- VIC - Victorian Civil & Administrative Tribunal (VCAT)
- NSW - NSW Civil & Administrative Tribunal (NCAT)
- WA - Magistrates Court of Western Australia
- QLD - Queensland Civil and Administrative Tribunal (QCAT)
- TAS - Magistrates Court of Tasmania
- SA - South Australian Civil and Administrative Tribunal (SACAT)
- NT - Northern Territory Civil and Administrative Tribunal (NTCAT)
3. Attending the Tribunal
On the day, you can choose to represent yourself, or you can have your property manager represent you.
To make a strong case, it’s important that you keep detailed records of the termination notice, how you served it, you and your tenants’ conduct in relation to the tenancy agreement, evidence of rent payments, and any other documents that can support your case.
If the court rules in your favour, the Tribunal will issue a termination order (also known as a possession order) which sets a date by which the tenant must move out.
4. Evicting the tenant
Once the termination order is made, your tenant will need to move out by the date set by the Tribunal. If they don’t, you can apply for a warrant (known in most states as a Warrant of Possession) from the Tribunal - this allows law-enforcement authorities, i.e. the sheriff in NSW, the police in VIC, and the bailiff in WA, to remove the tenant from your property.
Even if your tenant has not moved out by the termination date, you should never take it upon yourself to forcefully evict your tenant, whether it’s by changing the locks or turning off the utilities, as this could lead to prosecution. Make sure to follow the legal way to evict a tenant, obtain a termination order and Warrant of Possession, and rely on the authorities to carry out the eviction.
What are tenants' rights in the eviction process?
Especially when you’re dealing with problem tenants, it can be easy to forget that they have rights that must be respected both before and when you start the eviction process.
So, what are the legal rights of tenants and how might they affect you?
You're likely already aware of tenants' rights that protect them from excessive rent increases and oblige you to attend to urgent repairs.
However, in this section we'll be covering some additional tenants' rights that can affect how smoothly the eviction progresses.
1. Staying after the termination date
Tenants have the right to stay after the termination date in the notice issued by you or your property manager. They’re legally required to leave only after the Tribunal issues a termination order and a Warrant of Possession to remove the tenant from your property.
2. Rent payments
In most circumstances, if the tenant moves out before the termination date, they’ll only be required to pay rent up until the day that they vacate. The exception to this is if they were under a fixed term lease, in which case they are usually liable for the rent until the end of the period in the agreement.
3. Final inspection and return of bond money
If the Tribunal has not made an order dealing specifically with the bond, you are required to give a reasonable opportunity for the tenant to attend a final routine inspection and provide them a copy of the outgoing condition report. After coming to an agreement about the amount of money that the tenant owes, you can then lodge a refund to your relevant authority for the bond money.
4. How are tenants' rights affected by COVID-19?
Calculating the costs of evicting your tenant
Considering the fact that this is such an arduous and convoluted process...
What is the cost to evict a tenant?
Let’s break it down.
First, there is the Tribunal application fee - this can range from $26.95 in Queensland to $162 in the ACT - and this is just the initial cost. Applications for a Warrant of Possession can set you back a further $114 if you’re in Victoria, and having authorities enforce the warrant will cost you if you’re in NSW.
If you’ve then recruited the help of a property manager whose rental eviction and Tribunal fees aren’t included in their base rate, you’ll potentially be paying hundreds more to evict your tenant.
This is when you might want to start thinking about how to find a good property manager who doesn't charge you additional fees to evict a tenant - and who has a good reason not to do so.
How a property manager can help with tenant evictions
At :Different, we make a real effort to resolve any issues that arise as peacefully as we can, and we share the pain with our owners by not charging anything extra to evict problem tenants.
“Our intention is not to get in front of the Tribunal - it’s to try and get both parties to agree to something before that point.”
If the situation needs to be escalated, our team-based approach means that the most suitable people for the task (in this case, our experienced escalations team), will help the owner with their case.
Our escalations team knows, back-to-front, how to handle the tenant eviction process in each state. They will help you navigate through this arduous legal process with as little bumps in the road as possible. Our intelligent tech (owner app + tenant app) makes sure that we always have access to records of rent payments, statements, and any other documents needed to help support your case at the Tribunal. To avoid similar problems in the future, our rigorous tenant screening process will ensure that we’ll find you a new, good-quality, long-lasting tenant.
And we won’t charge extra to help you with the eviction, or to represent you at the Tribunal. Why?
“We'll share the pain. If you’ve got to go through this process, whether or not it’s a tenant we’ve placed, we’ll work really hard for you to get the best outcome, and we’ll share the pain by not charging you any more.”
Note: this blog post is not intended to be a legal guide for tenant evictions in Australia. Please refer to information provided by relevant authorities in each state for more comprehensive and detailed information.