As a tenant you have rights under the Residential Tenancies Act 1987 and Residential Tenancies Regulation 2006. This factsheet explains the law in New South Wales about what a landlord must do to end a tenancy agreement.

Summary of the usual eviction process

1. The landlord must give you a correct notice of termination which gives a date on which the landlord wants you to leave.

2. If you are not out by the date given in the notice of termination, you are not breaking the law. This gives the landlord the right to apply to the Consumer, Trader and Tenancy Tribunal (CTTT) for termination and vacant possession orders.

3. The tribunal will consider your case and decide whether to evict you. If the tribunal decides to terminate your tenancy, it will order you to give back the premises on a particular date – the date for vacant possession – usually within 5 to 28 days. (Or, the tribunal may decide not to evict you.)

4. The landlord becomes entitled to take possession of the premises according to the order for possession. If you disobey the order for possesion, the landlord may get a warrant for possession from the CTTT. With this warrant, the Sheriff may evict you from the premises. (Do not resist the Sheriff. The police can help the Sheriff to remove you.)

How much notice must the landlord give?

How much notice you must get from the landlord depends on the type of tenancy agreement you have – fixed term or continuing.

A fixed-term agreement is for a specified period of time (e.g. six months). A continuing agreement is one where the fixed-term has expired or no period is specified.

The minimum notice required for ending a fixed-term agreement is:

• 14 days at the end of term
• 14 days for breach of agreement.

For a continuing agreement, the minimum notice required is:

• 60 days if no reason is given (‘no grounds' termination)
• 14 days for breach of agreement
• 30 days for sale of the premises.

Note: If a notice of termination is posted to you, an extra four working days must be allowed for postage.

Immediate notice if premises are unlivable

The landlord (or the tenant) can end the agreement if the premises become unfit to live in due to something which is not the fault of the tenant or the landlord (under section 61, Residential Tenancies Act).

Fixed-term agreement – end of term

The landlord cannot end your agreement before the last day of the fixed term unless they claim that you have broken the agreement.

If the landlord does not want your tenancy to continue after the fixed term, they must give you 14 days written notice before the last day of the fixed term. The landlord can give the notice on any day before the last day of the fixed term, so long as you get 14 days to leave.

If the agreement does not terminate at the end of the fixed term, it automatically becomes a continuing agreement.

Breach of agreement

Breaking the agreement is called a breach. Examples of breaches are being behind in the rent, damaging the premises, or using the premises for illegal activity.

If a breach is serious or persistent, the landlord can give you a 14-day written termination notice. (The notice is the same for fixed-term and continuing agreements.)

If you have not left by the end of this notice period, the landlord must apply to the CTTT for an order to evict you. (See Factsheet 11: Consumer, Trader and Tenancy Tribunal.)

If the landlord takes you to the tribunal, you should attend. If you have fixed the problem by the time of the hearing, the tribunal may decide not to evict you (e.g. the landlord gives you a notice for rent arrears and you pay off the arrears by the time of the hearing).

Get advice from your local Tenants Advice and Advocacy Service (TAAS) before any tribunal hearing.

Continuing agreement – 'no grounds' termination

If you have a continuing agreement, the landlord can end it by giving 60 days written notice without a reason. However, you can argue in the CTTT that you should be allowed to stay because of special circumstances (e.g. illness) but this can be difficult to argue.

Sale of premises

If you are still in the fixed term of your agreement, you cannot be evicted because the premises are being sold.

However, if you have a continuing agreement, and contracts have been exchanged (between your current landlord and a new owner) that ask for vacant possession, your current landlord can give you a 30-day written termination notice.

Application to the tribunal without notice

The landlord can apply directly to the CTTT for an order for possession of the premises without giving you notice of termination for the following reasons:

• you or your guests have caused serious damage to the premises deliberately or recklessly
• you have injured or are likely to injure the landlord, agent or neighbours
• the landlord would suffer hardship if the agreement is not ended. In this case, the tribunal can order the landlord to pay compensation to you for having to leave.

Can the landlord evict you for complaining?

The landlord should not evict you for asserting your rights. If you refuse to leave the premises, the landlord will need to apply to the CTTT for a termination order. Make sure you attend the tribunal hearing and let the Tribunal Member know about the landlord's actions. The tribunal can refuse to grant a termination order to the landlord.

Form of the notice of termination

The notice of termination by the landlord must be in writing and have:

• the address of the premises
• the landlord/agent's signature
• the reason (if any) for ending the agreement – if it is for breach, specific details of the alleged incident
• the date when vacant possession of the premises is to be given to the landlord
  
• a statement which says that information about tenancy rights and obligations is in the residential tenancy agreement.

The notice must be properly 'served' to you by hand or by post. If the notice is posted, the landlord/agent must allow four working days for delivery.

If there is a mistake in the termination notice, you should argue in the CTTT that the notice is invalid and a new one needs to be served – the tribunal will decide if a new notice should be served.

If the tribunal makes a termination order

The CTTT can make an order ending the tenancy and an order giving possession of the premises to the landlord. The possession order will usually give you between 5 and 28 days to leave the premises.

If you are not out by the date in the order, the landlord can get a warrant for possession from the registry of the tribunal and go to the Sheriff. A Sheriff's Officer can remove you from the premises, with police help if needed.

Take all your things from the premises before the officer arrives or they may be treated as uncollected goods. (For further information on uncollected goods, contact your local TAAS.)

If the landlord tries to evict you without a tribunal order

The landlord must follow the process outlined above before you can be evicted. Locking you out without a tribunal order is illegal and the landlord faces a fine of up to $22,000 and compensation to you.

Be aware that the Supreme Court of NSW has powers to order vacant possession of premises that are mortgaged. If you get any calls or documents about the landlord defaulting on a mortgage, see Factsheet 21: Mortgagees and contact your local TAAS.

If you disagree with a tribunal decision

If you disagree with a decision of the CTTT, you can apply for the matter to be re-heard.

You must be able to prove that:

• there is a substantial injustice, and
• the decision was not 'fair and equitable', or
• the decision was against the weight of evidence, or
• evidence is now available that was not available at the time of the hearing

and that a rehearing would lead to a different result.

Before applying for a rehearing, get advice from your local TAAS.

Fill out an 'Application for a Rehearing' form and return it with the fee to the tribunal registry (phone 1300 135 399 or see www.cttt.nsw.gov.au for registry locations) . You must apply within 14 days of the date of the hearing, or the date when you found out about the hearing.

Also see Factsheet 11: Consumer, Trader and Tenancy Tribunal.

Updated: June 2008

Further help

Tenants NSW website: www.tenants.org.au
Tenants Hotline: 02 8117 3750 or 1800 251 101
Tenants Advice and Advocacy Services: see the Tenants NSW website or call the Tenants Hotline to find your local general or Aboriginal service Renting Services (NSW Office of Fair Trading): 133 220

Other factsheets

This is one of a series of factsheets on tenancy issues. Other factsheets are available from www.tenants.org.au/publish/factsheets/ or your local Tenants Advice and Advocacy Service.