10 things to know about evicting a tenant
Jennifer DukeDecember 7, 2020
- A tenant must be 14 or more days in rental arrears for you to begin formal eviction proceedings, which begins with a Notice to Vacate. At this point, you need to wait a further 14 days before any action can be taken. Alternative payment arrangements with either the landlord or property manager can halt this process.
- You cannot lock a tenant out and personally evict them, or change the locks. The only authority that can do this is the police, and they will need to have obtained a valid Possession Order and a Warrant of Possession (from VCAT in the state of Victoria). If you try to do this, the tenant can apply for a Restraining Order and can call the police.
- Tenants can put in a claim for compensation for inconvenience, loss or damages if the landlord has acted unlawfully when attempting eviction proceedings.
- The tenant should still be paying you rent until the termination of the tenancy, which tends to be when they move out.
- There are some instances where you can apply straight to Tribunal for a possession order, without the usual circumstance of notifying the tenant. These include, but are not limited to, serious damage to the home or neighbouring homes, injury to the landlord, agent or a neighbour by the tenant, use for illegal purposes (such as drug manufacturing) and a number of other serious circumstances.
- A landlord's case can be thrown out of Tribunal if they have not abided by the rules required surrounding dates and notice periods. Be sure to know what the required number of notice days is for your particular state or territory (where the property is located) and any extra days required for postage. Keep postal receipts and clear documentation for future reference.
- If a tenant tries to rectify a breach, a Tribunal may not decide to grant the termination. For instance, Tenants New South Wales notes that "If you can show that you have fixed the breach or taken steps to fix it, NCAT may decide not to end the tenancy."
- Sub-letting without permission can be grounds for eviction.
- You cannot dispose of a tenants' items or "goods left behind" straight away. Perishable goods and rubbish may be thrown out, however personal documents must be disposed of after 90 days notice, by returning them to the issuing authority or in another lawful manner and not in a way that makes information publicly available. Other goods require 14 days notice, and they may be sold or disposed of. You must keep a record of the goods disposed of.
- The tenant will not pay the landlord's legal fees at Tribunal if they are unsuccessful, unless the Tribunal orders otherwise, such as in a case of unreasonable disruption.
Jennifer Duke
Jennifer Duke was a property writer at Property Observer