Breaching a lease and eviction
Tenants breaching a lease agreement
Tenants are breaching a lease agreement if they:
- fall more than 14 days behind in the rent (full or part rent)
- cause or allow damage
- cause or allow the comfort, peace and privacy of other people to be disturbed
- don’t keep the property reasonably clean
- allow the property to be used illegally
- don't comply with other lawful conditions included on the lease.
The landlord can give the tenant a legal notice that identifies the problem and the date the tenant needs to leave the property if the problem is not fixed. They do this by issuing a notice to tenant to remedy breach of agreement .
Issuing a breach notice
- If the form is not completed correctly it may be invalid. Make sure you read 'important information' for landlords on the notice.
- Fill out the notice and give it to the tenant.
- Keep a copy for your records.
Filling out a breach notice:
- Include the phrase 'and all other occupants' after the tenant's name to cover anyone else living in the property.
- Be clear and specific about the problem and how it can be fixed.
For example, for rent arrears:
- describe the breach by using words like 'rent is not paid in accordance with the agreement'
- make sure you list all rental periods that are unpaid - eg 'rent of $.......... due on ....../....../...... is unpaid'
- make sure you include the total amount of rent that the tenant must pay
- make sure you serve the notice the day after the rent was due - eg if rent is paid to 1 September, rent is next due on 2 September and the first day of arrears is 3 September. This means that 17 September is the earliest the notice could be served.
Working out dates for notices
Only include full days when working out the number of days the tenant has to fix the problem. If the notice is:
- handed to the tenant, the next day is the first full day
- posted, allow for postage delivery times.
Eviction is the legal process to force a tenant to leave a property. It is also called termination and vacant possession.
If a tenant does not leave on their own, a tenant can only be evicted by an order from the South Australian Civil Administration Tribunal (SACAT), who will organise a bailiff to enforce the order if necessary.
The landlord can apply to SACAT for an eviction if:
- the tenant is given a notice to remedy the breach of agreement and they didn't fix the problem or vacate the property
- a fixed term tenancy has expired, the correct written notice was given to end the tenancy but the tenant did not move out
- the tenant has given written notice to end the tenancy but did not move out.
If a breach notice is served for overdue rent on two occasions in 12 months, the landlord can apply to SACAT for an eviction without having to send another breach notice.
The landlord can apply to SACAT to end the lease immediately without giving any other notice if there is a serious breach. This can include:
- putting the safety of others at risk
- causing serious damage to the property.
Landlords breaching a lease agreement
Landlords are breaching the lease if they:
- don’t respect a tenant's peace, comfort or privacy, including not giving the right notice of entry - eg to do repairs or entering the garden and shed
- don't maintain the property to a reasonable condition
- try to change the conditions to the lease agreement without the tenant's consent.
The tenant can give a legal notice to the landlord, which identifies the problem and advises that if it is not fixed by the date provided, at least seven full days, the tenancy will end and the tenant will move out. They do this by issuing a notice to landlord to remedy breach of agreement .
If the problem is not fixed, the tenant must move out on the date they have stated on the form.
Serious release from a lease
The tenant can apply to SACAT to end the lease without giving any other notice if they believe their safety is at risk.