When should you evict a tenant and what is the process?

Property management

Tenancy laws in Australia are designed to protect both the landlord and tenants. For this reason, a landlord must follow strict procedures to evict a tenant.

If the tenant feels they have been unfairly evicted, they have the right to go before a tribunal to argue their case. In general, the laws are similar in each state, but there are some differences. You need to know the law in your state before you begin the eviction process.

And remember, it goes without saying, make sure you have appointed an experienced and competent property manager. In doing so, you’ll have a property management professional who will screen prospective tenants thoroughly to avoid getting into this situation to begin with, as well as reducing the risk of a vacant property.

Eviction notice: general information

A landlord cannot summarily evict a tenant. They must start with an eviction notice. A “notice to vacate letter” must either be hand delivered or delivered by registered post. A landlord must also have a valid reason for evicting a tenant. Valid reasons include:

  • Failure to pay the rent or rents being consistently late
  • Tenant damages the property
  • Tenant is a nuisance to neighbours
  • Tenant is using the property for illegal purposes
  • Breaches in the tenancy agreement

In some states, a landlord can have other reasons for evicting a tenant, but the above reasons are applicable in every state. The reason for the eviction must be spelled out in the eviction notice. The notice must also state the name of the tenant, the date the tenant must vacate and the name and address of the landlord.

Read: 10 signs it’s time for a new property manager

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Tenant notice to vacate: State by state

Each state has slightly different rules regarding evictions.

Tenant notice to vacate process in NSW

In New South Wales, a landlord must generally give a 14 day notice. The Residential Tenancy Act (RTA) lists some exceptions to this rule, but this is the rule for most evictions. If the reason for the eviction is non-payment of rent, the tenant has the right to pay the rent or work out a rental payment plan.

If the tenant does not rectify the situation and fails to vacate, the landlord can apply to the tribunal for a termination order. The order will specify the date of vacancy and authorises the sheriff’s department to carry out the eviction.

Tenant notice to vacate process in VIC

In Victoria, the process begins with a notice to vacate. If the tenant does not vacate the property, the landlord has 30 days to apply to a tribunal for an order of possession. The order of possession states the date by which the tenant must vacate and issues a warning that the police will remove the tenant if they do not vacate the premises.

Tenant notice to vacate process in QLD

Queensland’s rules are similar to Victoria’s. If a tenant does not vacate, the landlord can apply to the tribunal within 14 days. The termination order goes into effect within three days. A warrant is sent to the police and is effective within 14 days unless the tribunal specifies another date.

Tenant notice to vacate process in SA

In South Australia, the landlord starts by issuing a notice of eviction. The eviction notice must state how the tenant can remedy the reason for eviction. The eviction notice must state the tenant’s name and also have the phrase “and all other tenants” in the notice. The tenant then has 7 days to respond.

If they pay the rent or remedy another reason for eviction, they may be allowed to stay on the property. If they fail to remedy the situation, the landlord can apply for a “vacant possession” order. The tenant can only be vacated through this order and the order must be carried out by a bailiff.

Tenant notice to vacate process in WA

Western Australia has a formal document, the notice of a tenancy agreement breach. The tenant must respond to the notice within 14 days. If they fail to rectify the problem, the landlord can then issue a notice of termination, which gives the tenant seven days to vacate.
If they fail to vacate, the landlord can apply to the Magistrate’s Court within 30 days.

Tenant notice to vacate process in TAS

In Tasmania, a notice to vacate can be 14 or 28 days before the date of eviction. If the tenant fails to vacate, the landlord can apply to the Magistrate’s Court for an order of possession. They must give a copy of the order to the tenant on the same day they apply for the order.

Tenant notice to vacate process in NT

The Northern Territory has a different procedure. The landlord must obtain an application from a rental officer. In some cases, it is also possible to apply for an eviction order. Instead of being hand delivered or delivered by registered post, a rental officer delivers the eviction order to the tenant.

If the tenant fails to vacate, the landlord has six months to file an order with the Supreme Court for a writ of possession.

Tenant notice to vacate process in ACT

The ACT also has a slightly different procedure. The landlord must first issue a notice of remedy. They must wait seven days before they can issue a notice to vacate. The exception is if they have issued two notices of remedy in the past.

They can then issue a notice to vacate. If the tenant does not move out, the landlord can apply to the tribunal for a termination and possession order (TPO).

Read: What to look for in a property manager

evicting tenant

What is the eviction process when a tenant refuses to vacate

In many cases, a tenant will try to remedy the reason for their eviction. In other cases, they might voluntarily leave the property. In some cases, they may refuse to vacate. What can you do when this happens?

It is illegal in every state for the landlord to forcibly evict a tenant. This must be done by the local police or other service. If a landlord has followed the correct procedure for their state, they can ask the police to remove a tenant. If they have not followed the correct procedure, the police will not comply.

This is why it is important to follow the correct procedure and keep copies of all documents. It’s also a good idea to keep a communications log of your dealings with city officials and your tenants.

Read: What is property management and what is a property manager responsible for?

Tenant rights re: eviction

Emotions can run high when a landlord needs to evict a tenant. Keep in mind that tenants have rights, too. If a landlord evicts a tenant for no reason, the tenant can apply to a tribunal for a review of the reason for eviction.

If a landlord does not follow the proper procedure and attempts to evict a tenant without using the police, tenants have a right to seek compensation for damage done to their property and other inconveniences. In some states, the landlord will also be fined.

Landlords must have a valid reason to evict tenants. The exception to this rule may be when tenancy agreements terminate. There are two types of tenancy agreements:

  • Periodic agreements are month-to-month or even week-to-week
  • Fixed term agreements can be up to two years. When the fixed term is over, the agreement reverts
  • to a periodic agreement unless another fixed term contract is agreed upon.

In general, the landlord must give a tenant 60 days notice to vacate if they have no valid reason to evict the tenant. This gives the tenant the opportunity to find a new rental. Evictions notices are only for tenants who breach their rental agreements for the reasons stated above.

Read: Thinking of managing your own investment property? Read this first

Disclaimer

These are the general rules for eviction. Each state has slightly different procedures for evicting tenants, some of which may not appear above. Check with your local authorities to find out what you need to do to evict a tenant.

You must adhere to regulations in your state or you may have to start the procedure again. Since the rules and regulations can be quite complicated, it’s wise to ensure you appoint a property manager to handle not only your property, but also any problems that arise.

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