Evictions

Eviction is the lawful process of putting a person out of possession of a property, and returning possession to the landlord. Under the Residential Tenancies Act 2010 (RT Act 2010), an eviction may occur only by order of the NSW Civil and Administrative Tribunal or a court (and as noted, landlords must go through the Tribunal: RT Act 2010 section 119).

If you are still in the premises after the date in a possession order, your landlord can apply for a warrant of possession. Warrants of possession are enforced by officers of the NSW Sheriff.

Warrants of possession may be issued by the Tribunal without a further hearing. An application for a warrant of possession is supposed to be made by the landlord within 30 days of the date for possession in the possession order (section 121(2)), but the Tribunal may allow applications to be made later than that if the delay was caused by genuine attempts by the landlord to reach an agreement with you for the reinstatement of the tenancy (section 121(3)).

When the Sheriff’s officer enforces a warrant of possession, you and anyone else at the premises will be asked to leave the premises. You will probably be required to leave immediately; if you’re lucky, the officer may give you an hour or so to prepare to leave. If you refuse to leave, the officer will physically remove you, with the assistance of the police if necessary. Any goods at the premises will become goods left behind (see below). Most landlords will arrange for a locksmith to attend the eviction and change the locks.

Lockouts

A ‘lockout’ is the colloquial name for an unlawful eviction. Under the RT Act 2010, it is an offence to enter premises for the purpose of taking possession of the premises, before or after termination of the tenancy (section 120(1)). There are two exceptions only: where the person is a Sheriff’s officer and they are enforcing a warrant (sections 120(1)(a) and 121(4)); or where the tenancy has been abandoned (section 120(1)(b)). Otherwise, landlords or agents who try to evict you themselves are in breach of the RT Act 2010 and may be prosecuted and fined up to $22,000.

If your tenancy was not actually terminated, the lockout will also be a breach of your quiet enjoyment. You remain the tenant, and are entitled to occupy the premises. You can do any of the following to get back in occupation:

  • Apply to the Tribunal (request an urgent hearing) for an order that your landlord stop breaching the agreement;
  • Contact the police, Fair Trading or a Tenants Advice and Advocacy Service, who may be able to persuade the landlord to stop breaching the agreement;
  • Get a locksmith to open the lock and let you in;
  • Climb in through a window or otherwise break in (make sure you do no more damage than is necessary).

There may be a risk of confrontation and even violence if you attempt to get into the premises, especially by breaking in. If you think the landlord may react violently, contact the police: they can act to restrain a breach of the peace and may be able to assist you get back in.

Tip

Get advice from a tenants’ advocate or lawyer before trying to get back into premises from which you’ve been locked out by the landlord.

Alternatively, you might prefer to end the tenancy. You can treat the lockout as a repudiation of the agreement by the landlord, and if you choose to accept the repudiation, the agreement terminates (section 81(4)(g)). You can still proceed against the landlord for breach of the agreement, and the landlord is still liable to be prosecuted. Before accepting the repudiation, it is a good idea to try to get back into the premises to remove your goods.

If you are locked out by the landlord after your tenancy has been terminated (by order of the Tribunal), there’s no breach of your agreement, but you are still entitled to occupy the premises, and the landlord has still committed an offence under section 120(1).