Know your legal responsibilities with tenant eviction
The property manager battling with the tenant who is forever in arrears or refusing to pay rent altogether. The landlord attempting to self-manage an investment property going to war with the lodger who has damaged their property and whose partying regularly disturbs the neighbours.
A nightmare confronted by landlords the world over, unfortunately the above scenarios happen all too often in strata communities in Australia.
There are a number of reasons for a landlord or property manager to evict tenants from their strata titled property and while it isn’t always the case, the situation usually occurs because the tenant breaches the terms of his or her lease agreement.
To this end, if agreement can’t be reached and the tenant refuses to leave of their own accord, the only step available is eviction.
But knowing your legal responsibilities can be a bit of a minefield with each state having its own set of rules governing evicting tenants on lawful grounds.
It’s also important to understand the differences between the role of a property manager and the role of a strata community manager.
New South Wales
NSW law states that if you want the tenant to vacate the property you must issue them a termination notice in writing, outlining the grounds for the notice and detailing the day on which the residential tenancy agreement is terminated and by which the tenant is required to leave.
Fair Trading NSW says 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.
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 (eg. by the RTA) or on the death of the sole tenant.
Under Victorian law, landlords or owners can apply to the Victorian Civil and Administrative Tribunal (VCAT) for a possession order only after giving the tenant or resident the appropriate notice to vacate.
Consumer Affairs Victoria says if the tenant or their visitor causes malicious damage to the premises or common areas; the tenant or their visitor puts neighbours in danger’ or the premises are unsafe or unfit for human habitation, there is no minimum notice period required.
A possession order may instruct the tenant or resident to vacate. It may also allow the landlord or owner to obtain a warrant from the Victoria Police to evict the tenant or resident.
Under state laws, landlords or owners cannot personally use force to remove a tenant or resident if they refuse to leave the property. Only the police can carry out a forcible eviction, and only when they are acting on a VCAT order.
In Queensland, the laws are different again and are slightly more complex.
According to the Residential Tenancies Authority, the property manager/owner must issue a Notice to Leave form to a tenant when they want them to vacate the property by a certain date.
If the reason for the ending of a tenancy is given as rent arrears then the minimum notice period is seven days, the same period as for non-compliance with a tribunal order.
If the tenant does not leave the property by the date nominated, the lessor/agent may apply directly to the Queensland Civil and Administrative Tribunal (QCAT) for a termination order without further notice to the tenant.
The relevant legislation notes that if QCAT makes a termination order, it must also make an order for possession of the property in the lessor’s favour.
Tenants cannot be evicted without an order for possession of the property and when serving notices by post, the property manager/owner must allow time for the mail to arrive when working out when a notice period ends.
Under the law in that state if the correct notice and form are not used, the other person may ask for compensation.
Several states also have dispute lines which exist to help find a resolution before an eviction notice is required.
It is always better to be safer than sorry, however and while references are a good way to ensure you are opening your home to the right kind of tenant it may also be worth investigating private third party suppliers, such as the National Tenancy Database, TICA and Trading Reference Australia each of whom run tenancy databases which hold information about tenants.
Sometimes referred to as “blacklists”, landlords are able to access a comprehensive report on the proposed tenant in exchange for a small fee.
When in doubt, click here to learn more about the differences between the role of a property manager and the role of a strata community manager.