4.4 Ending the Tenancy when the Owner Breaches the Agreement

It may be possible to end your tenancy agreement if the owner is in breach. How your tenancy can be ended is set out in the Residential Tenancies Act (1987) and differs depending on whether you have a periodic or fixed term tenancy. Beware! You could be liable for costs if you do not end your agreement according to tenancy laws.

What can I do if I have a periodic tenancy?

You can end a periodic tenancy at any time by giving 21 days written notice to the owner that the agreement is being terminated (s 68.). You do not have to say why you are leaving, even if you are leaving because the owner has breached the agreement and refuses to remedy the breach.

Your notice must include:

• the address of the rented premises,
• the day on which you will hand back possession of the premises
• your signature.

The notice does not have to be on a special form, but it must be in writing. See section 4.1 Ending a Periodic Tenancy for more information.

What can I do if I have a fixed term tenancy?

Unless the owner agrees that the tenancy may be ended early; you must apply to court for your fixed term tenancy to be terminated. This applies even if the owner has seriously breached the tenancy agreement and refuses to fix the problem.

For the court to grant an order to end the tenancy the breach of the agreement by the owner must be considered serious (s 75.). It is up to the Court to decide if the agreement will be terminated. If the Court orders that your agreement be terminated, you will not be liable for any costs associated with re-letting the premises beyond the date the agreement is terminated.

To prove a breach by the owner it is helpful to provide evidence that the owner has been requested to perform their duties and that they have failed to do so. You should provide copies of letters or documents you sent to the owner as evidence they were aware of the problem but failed to solve it, along with any evidence of the problem itself. See section 4.2 Ending a Fixed Term Tenancy for more information.

How do I make an application to court?

An application to have the agreement terminated due to a serious breach by the owner must be lodged on Form 12 at the Local Court nearest to the rented premises.

The application has two main sections:

• Reason for Application
  List here every breach by the owner so that the Court knows what the problem is. State briefly how the problem has affected the tenancy and how you have tried to solve it. If you know what section of the Act has been breached, include the section number. This is helpful to the Court but not necessary if you do not know.
• Order Required
  State here that you are seeking the termination of the tenancy agreement due to breach by the owner. You can ask for it to end on a particular date to give you time to organise your move.

The Hearing

When you go to Court you will have to give evidence that the breach of agreement has occurred and that you have tried to sort the problem out with the owner. You must give a clear statement of what the owner has done to breach the tenancy agreement, and describe the effect the breach has had on you and your tenancy. Make sure you tell the Court the date that you wish the agreement to end so the date can be written on the Court Order.

If your application is successful the court will order that the agreement be terminated. This means you will not have to pay 'break of lease' costs. See section 4.2 Ending a fixed term tenancy for more information on these costs.

See sections 6.2 Going to Court and 6.3 Preparing for Court for more information on applying to and representing your case in Court.

Back to Ending the Tenancy menu