Breach of agreement and eviction
See advice for landlords and tenants in relation to COVID-19 on the CBS website.
A tenant or landlord is in breach of the lease agreement if a term or condition of the agreement is not met.
Where there is a breach, a specific notice must be served on the other party giving them the opportunity to fix the problem before the tenancy can end.
A notice that is not completed and served correctly is invalid.
Only include full days when working out dates to include in the notice. If the notice is:
- hand delivered, the next day is the first full day
- posted, allow for postage delivery times.
Keep a copy of the notice for your records.
Tenants breaching the agreement
Tenants breach the agreement if they:
- are more than 14 days behind in the rent (full or part rent) - what to do if tenants have trouble paying rent due to severe rental distress as a result of COVID-19
- cause or allow damage
- cause or allow the comfort, peace and privacy of others 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 notice to tenant to remedy breach of agreement detailing the problem and asking them to vacate if the problem is not fixed.
If a tenant does not fix the problem or vacate the property, a landlord cannot take possession of the property without an order from the South Australian Civil and Administrative Tribunal SACAT. SACAT can organise a bailiff to enforce the order if necessary.
If a tenant does not believe they are in breach of the agreement they can apply to SACAT to stay in the property.
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, for example '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, for example, 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.
If a breach notice is served for rent arrears on two occasions in 12 months, the landlord can apply to SACAT for 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 the agreement
Landlords breach the agreement if they:
- don’t respect a tenant's peace, comfort or privacy, including not giving the correct 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 the landlord a notice to landlord to remedy breach of agreement detailing the problem and advising they will move out if the problem is not fixed.
If a tenant vacates and the notice they served is invalid they might still be responsible for the agreement. Before vacating, the tenant could apply to SACAT for an order that the notice is valid and the tenancy can end.
If a landlord does not believe they are in breach of the agreement they can apply to SACAT for the tenancy to continue.
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.
If the tenant’s behaviour is unacceptable, the landlord or an interested person, for example, a person affected by the behaviour, can apply to SACAT to end the lease without giving any other notice. This includes:
- using or allowing the property to be used for an illegal purpose, like growing cannabis
- causing or allowing a nuisance
- interfering with the peace, comfort or privacy of another person who lives near the rented property.
A tenant or landlord can terminate a tenancy agreement if the property or a substantial part of the property:
- has been destroyed or is uninhabitable
- can’t be lawfully used for residential purposes
- has been acquired under compulsory process, such as for a government authority building a highway.
A tenant must give a notice of frustrated agreement to landlord
A landlord must give a notice of frustrated agreement to tenant
A tenant or landlord can apply to SACAT to end the tenancy if continuing it will cause them undue hardship.
The Tribunal will decide whether the type of hardship experienced, for example, financial difficulties, meets the requirements of ‘undue hardship’.
The Tribunal may also make an order compensating a landlord or a tenant for loss and inconvenience resulting, or likely to result, from the tenancy ending early.