If the landlord wants to end the tenancy

In most cases where a landlord wants to terminate a tenancy, they will give a termination notice. In some circumstances, the landlord can apply directly to the NSW Civil and Administrative Tribunal (NCAT) for a termination order, without giving a notice first.

If you receive a termination notice, first check that it is valid: that is, the form and period of notice are correct and it has been given properly. The rules for landlords’ notices are mostly the same as for tenants’ notices. This means that the termination notice must:

  • Be in writing and signed by the landlord or agent;
  • State the address of the premises; and
  • State the ground, if any, for termination;
  • State the date on which the tenancy is to terminate if possession is returned, and give the right amount of notice – and, if it was sent through the post, allow an extra four working days.

The termination notice must also be given properly. This means either:

  • delivered personally to you at your residence or place of business;
  • delivered personally to another person aged 16 or older at your residence or place of business;
  • delivered in an envelope addressed to you and left in a mailbox at your residence or place of business (previously, leaving a termination notice in a mailbox was not valid service);
  • faxed to you at your fax number, if you have one; or
  • sent by post to you at your residence, place of business or another address if specified by you.

Note that landlords and agents cannot validly give a termination notice by email or SMS text, or slipping it under a door.

Even if it is valid, a termination notice by itself does not terminate your tenancy, and you are entitled to stay after the ‘termination date’ in the notice. If you do stay, the landlord may then apply to the Tribunal for a termination order. They are not entitled to take possession of the premises from you without a Tribunal order – see ‘Lockouts’ below for more details.

On the other hand, if you move out in response to a termination notice, your tenancy will end on the date you leave. You can move out before the termination date, and you do not need to give your landlord a termination notice (Residential Tenancies Act 2010 (NSW) (the RT Act 2010) section 110(1)). Also, in most circumstances, if you move out before the termination date, you are liable to pay rent only up to the date you move out (section 110(2)). There is an exception: where you are moving out in response to your landlord’s notice during the fixed term, you are liable for rent to the end of the fixed term (section 110(3)).

This is changed

Previously, you were liable for rent to the end of the period of the landlord’s termination notice, unless you gave your own termination notice and moved out – in which case you were liable for the rent to the end of your termination notice.

Table 4.2. Grounds for termination (termination by landlord)

Ground

Notice period

Notes

No grounds

90 days

Not during fixed term. Tribunal must terminate, except if retaliatory

No grounds – end of fixed term

30 days

During last 30 days of the fixed term (or before, with a longer notice period). Tribunal mustterminate, except if retaliatory

No grounds – long-term tenant

None

For tenants in continuous occupation for 20 years or more. landlord applies directly to Tribunal

Sale of premises (s 86)

30 days

Not during fixed term

Breach of agreement
(s 87)

14 days

Special provisions apply where the breach is rent arrears

Breach – non-payment of rent (s 88)

14 days

Not before rent is in arrears 14 days; landlord may apply at same time as giving notice. ‘Pay and stay’ principle applies

Serious damage or injury (s 90)

Not applicable

Landlord applies directly to Tribunal without prior notice

Use of premises for illegal purposes (s 91)

Not applicable

Landlord applies directly to Tribunal without prior notice

Threat, abuse, intimidation, harassment (s 92)

Not applicable

Landlord applies directly to Tribunal without prior notice

Hardship (s 93)

Not applicable

Landlord applies directly to Tribunal without prior notice; landlord may have to compensate tenant

Tenant’s termination notice
(s 105)

Per tenant’s notice

Landlord may apply to Tribunal on tenant’s notice if not revoked before termination date

Frustration – premises destroyed or uninhabitable (s 109)

Immediate

 

Note: there are additional grounds for termination of social housing tenancies. See Social housing section.

Termination without grounds

Your landlord can give you a termination notice without grounds – that is, they do not have to state their reason for seeking to terminate your tenancy.

The amount of notice depends on whether you are in the fixed term of a tenancy agreement. During the fixed term of an agreement, the termination notice must give at least 30 days’ notice, and the termination date must be on or after the end of the fixed term. If you have a periodic agreement, the termination notice must give at least 90 days’ notice.

This is changed

Previously, the minimum notice periods for termination notices without grounds were 14 days (end of fixed term) or 60 days (period agreement).

If your landlord applies to the Tribunal for a termination order on the basis of a termination notice without grounds, the Tribunal must make the termination order. There are two exceptions: first, where there is a defect in the proceedings, such as an invalid termination notice; secondly, where the termination notice is retaliatory. See the section, The Tribunal for more about defective and retaliatory proceedings.

This is changed

Previously the Tribunal could decline to make a termination order if it considered, in the circumstances of the case, that it was appropriate to do so.

Tip

If you are given a retaliatory termination notice, you can go on the front foot and apply to the Tribunal for an order declaring that the termination notice is retaliatory and ineffective. Alternatively, you can wait until your landlord applies to the Tribunal for a termination order and argue that the notice is retaliatory then.

When it makes the termination order, the Tribunal will also make an order (a ‘possession order’) setting a date by which you must move out of the premises. In setting the date for possession, the Tribunal may consider the relative hardship of you and the landlord (section 114(1)).

Note that special provisions apply for very long-term tenants. If you have been in continual possession of the premises for 20 years or more, your landlord cannot give you a termination notice without grounds, and must instead apply directly to the Tribunal for a termination order. The Tribunal will determine whether your tenancy is to end, considering ‘the circumstances of the case’ (section 94(1)(c)). If it does terminate your tenancy, the Tribunal will give you at least 90 days to move out (section 94(4)).

This is new

Previously there were no special provisions relating to the length of tenancies.

Breach

Breach of any of the terms of your tenancy agreement may be grounds for termination. The most common is rent arrears – but note that these proceedings are subject to special rules of their own (see below). Special provisions also apply where the breach is use of the premises for an illegal purpose (see the section under ‘Tribunal orders’). Other breaches that are commonly cited as grounds for termination include:

  • Damage;
  • Nuisance;
  • Sub-letting without the landlord’s consent; and
  • Non-payment of utility charges.

When a landlord gives a termination notice on the ground of breach, the notice must specify that it is a breach notice, and will usually include further details of the supposed breach.

This is changed

Under the RT Act 1987, a termination notice on the ground of breach had to include particulars of the breach – that is, the basic facts of the landlord’s case, such as what you were alleged to have done, and when. The RT Act 2010, however, does not specify that particulars must be included in the termination notice.

If you move out in response to a breach termination notice, your tenancy ends – including if you’re otherwise still in the fixed term. Note, however, that if you do move out before the end of the fixed term, there is a question as to whether you may be liable for your landlord’s loss of rent, potentially to the end of the fixed term. The Tribunal has made inconsistent decisions in this regard.

If you don’t move out and the matter proceeds to the Tribunal, your landlord will have to provide particulars of the breach in their application, so that you can understand the nature of the proceedings and make your case to the Tribunal (section 38(5) NCAT Act 2013). At a hearing, your landlord will be expected to present evidence of the breach and you will have an opportunity to present your side of the story and any evidence of your own. (An exception: if you are a social housing tenant and received a ‘strike notice’ in relation to the breach, and did not object to the strike notice in time, the Tribunal must accept the facts in the strike notice. See the section on ‘three strikes’ in the social housing section.) When it has heard the evidence the Tribunal will decide whether a breach has been proved and, if so, whether the breach is sufficient, in the circumstances of the case, to justify terminating the tenancy (section 87(4)).

‘Circumstances of the case’ include (but are not limited to):

(a) the nature of the breach;

(b) any previous breaches;

(c) any steps taken by the tenant to remedy the breach;

(d) any steps taken by the landlord about the breach;

(e) the previous history of the tenancy (section 87(5)).

In the case of social housing tenancies, there is an additional list of factors that the Tribunal must consider:

(a) any serious adverse effects the tenancy has had on neighbouring residents or other persons;

(b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk;

(c) the landlord’s responsibility to its other tenants;

(d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal;

(e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement (section 152(1)).

Many breach proceedings arise from the actions of someone other than the tenant: that is, another occupant or a visitor. See the section on ‘Occupants and visitors’ in Access and privacy section for a discussion of the ways in which you, as the tenant, may be held responsible for the actions of others.

Rent arrears

Termination proceedings on the ground of rent arrears are different from other breach proceedings.

The landlord can give you a 14-day termination notice on the ground of rent arrears only after you are 14 days in arrears (section 88(1)). However, the landlord does not need to wait until the end of the notice period before they can apply to the Tribunal: they can apply at the same time as they give the termination notice. The Tribunal, however, cannot hold a hearing on the application until after the notice period has passed (section 88(4)).

There is another special requirement of a rent arrears termination notice: it must include a statement that the tenant is not required to vacate the residential premises if the tenant pays all the rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord, unless the Tribunal makes a termination order on the basis that the tenant has frequently failed to pay rent on time (section 88(3)).

This is sometimes referred to as the ‘pay and stay’ principle, and it is reflected in section 89, which provides:

  • The Tribunal must not make a termination order if you pay all the rent owing, or if you enter into and fully comply with a repayment plan agreed with the landlord (section 89(2)); and
  • A termination on the sole ground of rent arrears, and any warrant of possession issued, ceases to have effect if you pay all the rent owing or if you enter into and fully comply with a repayment plan agreed with the landlord (section 89(3)).

In other words, if before the Tribunal hearing, you pay the arrears and get in advance again, or you make and keep to a repayment plan with the landlord or agent, the Tribunal cannot terminate your tenancy (but note section 89(5), discussed below). Furthermore, if the Tribunal has terminated your tenancy, and you then pay or make and keep to a repayment plan prior to the Sheriff enforcing a warrant for possession, the termination and the warrant have no effect and your tenancy continues (but again, note section 89(5)).

Your landlord is obliged to inform the Tribunal if you pay the arrears or make and keep to a repayment plan before a hearing. Your landlord is also obliged to inform the Sheriff if you pay the arrears or make and keep to a repayment plan after a warrant has been issued but not yet enforced (section 89(4)).

As noted: beware of section 89(5), which applies where the Tribunal is satisfied that you have ‘frequently failed to pay rent owing for the residential premises on or before the day set out in the residential tenancy agreement’. Under section 89(5), the Tribunal can make a termination order even if you have paid the arrears or kept to a repayment plan. Section 89(5) also appears to provide that the Tribunal can make a termination order that remains effective even if you subsequently pay the arrears or keep to a repayment plan.

Section 89(5) complicates the otherwise straightforward ‘pay and stay’ principle. So, if you do pay off arrears or enter into a repayment plan, and you subsequently get a notice of hearing from the Tribunal, do not ignore it. Go to the hearing and be prepared to argue that your tenancy should not be terminated, including because the breach has been remedied (section 87(6)) and any other circumstances of the case (section 87(5)).

Frustration

Termination notices on the ground that the agreement has been frustrated can be given by landlords, as well as by tenants (see the discussion on 'frustration' in If you want to end the tenancyfor more on what ‘frustration’ means).

The period of a frustration termination notice can be ‘immediate’, but as with other termination notices, you do not actually have to move out until the Tribunal orders you to do so.

Tribunal orders

Your landlord can apply directly to the Tribunal for a termination order – that is, without first giving you a termination notice – for any of the following reasons:

  • You, or another occupant, have caused serious damage to the premises, or injury to the landlord or certain other persons (section 90);
  • You, or another occupant, have used the premises for an illegal purpose (section 91);
  • You, or another occupant, have seriously or persistently threatened or abused the landlord or certain other persons (section 92(1)(a));
  • You, or another occupant, have intentionally engaged in conduct that would be reasonably likely to cause the landlord or other certain persons to be intimidated or harassed (section 92(1)(b)); or
  • The landlord would suffer undue hardship if the residential tenancy agreement were not terminated (section 93).

Serious damage and injury, threats and abuse, and intimidation and harassment

The provisions relating to serious damage and injury (section 90), threats and abuse (section 92(1)(a)) and intimidation and harassment (section 92(1)(b)) are complex. It is useful to consider them in relation to one another.

Section 90 provides for termination because of relatively high-level misconduct. ‘Injury’ includes physical and mental injuries (for example, post- traumatic stress disorder); it does not include mere hurt feelings, such as feeling harassed or intimidated (Crook v Consumer, Trader and Tenancy Tribunal [2003] NSWCA 370). Section 90 deals with this misconduct in relation to a relatively wide range of persons: the person affected may be the landlord, the landlord’s agent, an employee or contractor of the landlord or agent, a person occupying a neighbouring property, or a person occupying premises used in common with the tenant. The degree of intention required is that you, or another person occupying the premises, has intentionally or recklessly caused or permitted the damage or injury.

Section 92 provides for termination because of lower-level misconduct (that is, threats, abuse, harassment and intimidation, all falling short of actual injury) in relation to a narrower range of persons: the landlord, the landlord’s agent, or an employee or contractor of the landlord or agent (so, not a neighbour or other occupant). For the Tribunal to make a termination order under section 92, you must have intentionally engaged in the conduct, or intentionally caused or permitted another person to engage in the conduct. So if the conduct was unintentional or merely reckless, the Tribunal should not terminate. Note, however, that it is not necessary for you to have intended specifically to harass or intimidate; it is enough that you intended to engage in the conduct and that it is reasonably likely that the person subjected to it would find the conduct intimidating or harassing. Note also that the RT Act 2010 specifically says that there doesn’t need to be any abusive language or threat for the conduct to be intimidating or harassing.

In proceedings under either section, if the grounds are proved the Tribunal may terminate the tenancy or, at its discretion, decline to terminate. Note that proceedings under section 90 in relation to social housing tenancies may involve the ‘one strike’ provisions, which restrict the Tribunal’s discretion and may mean that it must terminate. See the section on ‘one strike’ termination in the social housing section.

This is changed

Under the RT Act 1987, a landlord could apply for termination because you were ‘likely to cause or permit’ serious damage or injury; now they can apply in relation only to damage or injury that has actually occurred. Also, under the RT Act 1987 only social housing landlords could apply for termination because of harassment or intimidation.

Use of premises for an illegal purpose

It is a term of your tenancy agreement that you will not use the premises, or cause or permit them to be used, for an illegal purpose (section 51(1)(a)). Section 91 makes special provision for termination because of this type of breach: your landlord can apply directly to the Tribunal, and no termination notice is required (section 91(4)). It also allows for termination proceedings in some circumstances that may not otherwise be covered by ordinary proceedings on the ground of breach.

This is changed

Under the RT Act 1987, termination proceedings on this ground had to be commenced with a termination notice, like other termination proceedings for breach.

Most proceedings about use of premises for an illegal purpose are about the alleged manufacture or supply of illegal drugs. This is reflected in section 91(1)(a), which specifies that the Tribunal may terminate the tenancy where the premises have been used ‘for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985’. These termination proceedings are also available where you or another occupant of the premises have used ‘any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others)’ for those purposes (section 91(1)(a)) – so it is no defence if, for example, the drugs were actually sold in the flat next door, the downstairs carpark, or the laundry block.

Aside from drug offences, section 91 proceedings are available where the premises have been used for any other unlawful purpose (section 91(1)(b)). These proceedings are less common, but have included proceedings relating to possession of firearms, stolen goods, and use of drugs (as distinct from selling or manufacturing them).

In all these proceedings, there is a question as to whether the actions of the tenant (or occupant) amount to a ‘use’ of the premises. Over the years, the Tribunal has consistently held that supplying or manufacturing even small quantities drugs is a ‘use’ of the premises (see also McAuliffe v CTTT [2004] NSWSC 824, where the Supreme Court indicated that growing marijuana, for the tenant’s own use, in a cupboard and in a bedroom inside a flat was a use of the premises, and not merely incidental). However, the Tribunal has been less consistent about what kind or level of activity amounts to ‘use’ for other illegal purposes. Lately, the Appeal Panel of the Tribunal has indicated that the Tribunal should set a relatively low threshold for ‘use’ (and expressly disagreed with some earlier Tribunal decisions that held that a ‘direct’ or ‘substantial’ connection between the illegal purpose and the use of the premises was required). In McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98 the Appeal Panel held that ‘what will satisfy the requirement of use for an unlawful purpose will depend on the circumstances of each case. Matters of degree may be involved…. The use for an unlawful purpose need not displace use of the premises for residential purposes’. In that case, the Appeal Panel held that the premises were used for an illegal purpose when the tenant kept at the premises cash suspected of being the proceeds of crime and identification documents intended for the commission of fraud offences.

The way section 91 deals with the issues of your intentions in relation to the breach, and your responsibility for the actions of others, is complex. Section 91 is available where ‘the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted’ the use of the premises for an illegal purpose. This appears to mean that section 91 is available where:

  • You used the premises intentionally or recklessly; or
  • An occupant used the premises intentionally or recklessly, regardless of your intentions; or
  • A visitor (as distinct from an occupant) used the premises, and you permitted it intentionally or recklessly; or
  • A visitor used the premises, and an occupant permitted it intentionally or recklessly, regardless of your intentions.

This also appears to mean that if it is a visitor who is alleged to have used the premises for an illegal purpose, and there is no question of you or another occupant permitting the use, your landlord cannot apply for termination under section 92, but can give a termination notice for breach and apply under section 87 instead.

In proceedings under either section 91(1)(a) or (b), if the grounds are proved the Tribunal may terminate the tenancy or, at its discretion, decline to terminate (see Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28). Note that proceedings in relation to social housing tenancies may involve the ‘one strike’ provisions, which restrict Tribunal’s discretion and may mean that it must terminate. See the section on ‘one strike’ termination in the social housing section.

Hardship

The Tribunal can terminate your tenancy if it is satisfied that there are ‘special circumstances’ and the landlord would suffer ‘undue hardship’ if the tenancy continued (section 93(1)).

If it orders termination, the Tribunal can also order that the landlord pay you compensation (section 93(2)). (It is also open to the Tribunal not to order compensation at all.) As usual, you are expected to mitigate your losses; you are not entitled to compensation for any losses you could have reasonably avoided (section 93(3)).

Note that landlords can apply for hardship terminations during the fixed term or during a periodic agreement (unlike tenants, who can apply only during the fixed term).