This guide covers landlords (or head-tenants) and tenants (or sub-tenants) in a Residential Tenancy. This applies to the majority of share accommodation and residential property rental situations. To confirm it covers your situation visit What is my share accommodation situation?
Under NSW law, the tenant or landlord can terminate a residential tenancy agreement under certain circumstances. The landlord and tenant each have different reasons why can terminate the tenancy.
How do I notify the other party of termination?
Tenants and landlords must notify the other party of their intention to terminate the tenancy. The notice of termination must be in writing and signed by the person giving the notice. It must also state the day when the tenancy will be terminated and when the premises must be vacated by. The notice should also state the reason for termination.
The best way to give notice is to use the official NSW Government forms. There are different forms depending on whether the tenant or landlord is giving notice of termination:
The person who gives a notice to terminate can withdraw the notice at a later point if the other parties to the tenancy agreement consent.
When is a residential tenancy agreement automatically terminated?
The agreement will be automatically terminated if:
The agreement can also be terminated by the landlord or tenant (see below).
When the Landlord Terminates the agreement
If the landlord terminates a tenancy agreement with multiple co-tenants, the termination applies to all of the co-tenants.
When a co-tenant terminates their agreement
If the tenancy is a periodic agreement or the fixed term has ended, then any co-tenant can terminate their own tenancy at any time. They must give a termination notice to the landlord and all the other co-tenants. The termination date must be at least 21 days after the co-tenant gives the notice.
If one co-tenant wants to move out before the end of a fixed term, the best option is usually to notify the landlord and help them and the remaining co-tenants find a new flatmate to take over from the outgoing co-tenant. If the landlord agrees to this, the tenancy agreement should be changed to include the new co-tenant and remove the outgoing co-tenant.
If the landlord does not agree to this, the co-tenant can terminate their own tenancy before the end of a fixed term if the Tribunal makes a termination order. The Tribunal can order the leaving co-tenant to pay compensation to either the landlord or remaining co-tenants, depending on the situation.
If the tenancy agreement between the head-tenant and the landlord is terminated, the tenancy agreement between the sub-tenant and head-tenant will also be terminated. If this happens, the sub-tenant must leave the premises as soon as possible, or negotiate a new lease directly with the landlord.
Boarders or lodgers who had agreements with a tenant must also leave the rented premises if the agreement between the tenant and landlord is terminated. If this happens, the boarder / lodger must leave the premises as soon as possible.
The landlord can lawfully terminate the tenancy in 9 different circumstances:
The tenant can lawfully terminate the tenancy in 4 different circumstances:
The tenancy agreement will be terminated if the tenant abandons the premises. The premises is abandoned if the tenant permanently vacates without giving a valid termination notice and stops paying rent. Abandonment occurs differently depending on whether the agreement is periodic or for a fixed term:
If there are multiple co-tenants, abandonment only occurs if all the tenants have vacated the premises and rent is no longer being paid.
If the premises has been abandoned, the landlord is allowed to enter and retake possession. Because it is not always clear whether the premises has actually been abandoned, it is good practice for the landlord to seek an order from the Tribunal. If the landlord attempts to enter and retake possession but the premises has not actually been abandoned, then they will be in breach of the tenancy agreement and may have to compensate the tenant.
The landlord may be entitled to compensation if the tenant has breached the agreement or terminates a fixed term tenancy before the end of the fixed term. In the case of the latter, the tenant may be liable to pay an amount equal to the rent for the rest of the fixed term. Alternatively, the landlord and tenant can agree to a break free in the tenancy agreement.
If the landlord terminates the agreement unlawfully, the tenant may be entitled to compensation for moving out costs.
Once a tenancy agreement is terminated, the landlord is entitled to retake possession of the premises. If the tenant moves out before the termination date, then the landlord can retake possession then.
If the tenant does not move out by the termination date and continues to occupy the premises, then the landlord should first remind the tenant that they must leave immediately. If this does not work, then the landlord should seek a repossession order from the Tribunal. The landlord should not attempt to physically remove the tenant themselves under any circumstances. If required, the Sheriff and/or police can remove a tenant that refuses to leave despite a repossession order.
The tenant may be liable to pay the landlord an occupation fee if they remain in the premises after the termination date.
Often a tenant may leave behind certain goods when they move out of a rented premises. There are restrictions and procedures for what can happen to these goods, depending on what they are. The landlord must give the tenant notice that they have left goods behind. This can be done in a number of ways: in writing, by post to the tenant’s last known forwarding address, or by telephone. If the landlord cannot make contact for 2 days then the landlord should give notice of disposal by putting a prominent notice outside the premises.
There are different rules for various types of goods left behind:
If the landlord keeps the tenant’s goods for any period of time, they must put them in a safe place where they will not be damaged or stolen.
If the tenant does want collect any of their goods, they must do so before they are disposed of. The landlord cannot charge a fee before the tenant can collect the goods.
In very limited circumstances, the landlord can charge the tenant an occupation for goods left behind. This fee can only be charged if the goods prevent the landlord more renting the premises to another tenant. The maximum amount of a occupation fee is the equivalent of 14 days rent under the tenancy agreement.
If the landlord does charge an occupation fee, they cannot hold the tenant’s goods before the fee is paid. Goods must be given to the tenant regardless of whether the occupation fee has been paid yet.
These legal guides provide a brief summary and introduction of the laws and regulations affecting share accommodation. They do not cover all cases in all legal jurisdictions and might not apply in your specific share accommodation situation. It is important that you use this information as a guide only and seek independent Legal Advice or consult the Relevant Acts. We do not accept any liability that may arise from the use of this information.