(A) You are a co-tenant or a head-tenant

If you’re a co-tenant or head-tenant, you’re covered by the Residential Tenancies Act and the procedure for eviction is clear. The eviction process consists of four parts:

1.  Generally, the landlord must give a notice of termination in writing that states the reason notice is being given. The period of notice they have to give you depends on whether you’re in a fixed-term agreement or periodic agreement, and the reasons for termination.

• If you’re on a fixed-term agreement, the landlord cannot make you leave during the fixed term unless you’ve breached your agreement.

•  If the landlord wants you to leave at the end of the fixed term, the landlord has to give 30 days written notice.

•  After the fixed term of the agreement expires, it automatically becomes a periodic agreement. From this point, the landlord must give you 90 days written notice if the landlord is terminating the agreement for no reason, or 30 days if the place has been sold with vacant possession. After you have left the property, you will not have to pay any further rent.

• Once the landlord gives you any of these types of termination notices, you may leave at any time before the termination date. This means that if you are required to leave by a certain date and you find a place to move into before that date, you can move out and give the landlord vacant possession. If you move out before a 90 days ‘no grounds’ notice expires, you will not have to pay further rent after you have left.

•  If you have breached the agreement either during the fixed-term or periodic agreement, the landlord only has to give you 14 days written notice, e.g. for non-payment of rent for more than 14 days.

• Please note that for some types of breaches the landlord can apply directly to the Tribunal for termination and does not have to give the tenant a termination notice at all.

• If you think the landlord is evicting you as payback for asserting your rights, for example asking your landlord for repairs, you can challenge the eviction in the Tribunal. Contact your local tenancy service for further advice about retaliatory eviction (see Contact Points).

2. If you have not moved out by the date specified on the notice of termination, the landlord can within 30 days apply to NCAT for orders of termination and possession of the premises (i.e. eviction order).

• In the case of a no grounds notice, the Tribunal must make a termination order, which will require you to move out.

• In the case of a breach notice a hearing will be held at the Tribunal and a decision will be made as to whether or not you should be evicted. The Tribunal will look at the facts of the case in making a decision, including the nature of the breach (if there was one) and the reasons why the breach may have occurred, for example, if you are experiencing hardship that may have affected your ability to keep up-to-date with the rent. They will also look at what you have done to fix the breach.

• Be sure to attend the hearing as you might be able to negotiate to have the notice withdrawn or for extra time to move out. Even in a no grounds notice, while the Tribunal must terminate the tenancy they do have discretion in relation to the amount of time they give you to leave. If you don’t turn up and take the opportunity to explain the problem or why you need more time to move out, you can guarantee the case will go against you.

• If you completely catch up with your rent before the Tribunal hearing, the Tribunal can’t terminate your tenancy for nonpayment of rent. You should go to the hearing with any evidence, bank records or receipts, that show you have paid your rent up-to-date. Unless your landlord asked to terminate your tenancy because you have been frequently in rent arrears. They have to make this clear at the time they apply to the Tribunal that they want to terminate your tenancy, despite the fact that you may pay all your arrears. The Tribunal will only terminate if it is satisfied that you have often been behind in your rent. So there should be two or three incidents during the tenancy that you have fallen behind in your rent. You should contact your local tenants’ advice service for further advice (see Contact Points).

3. If the Tribunal terminates the agreement, it will make an order ending the agreement and an order giving possession of the premises to the landlord. The time given to move out will depend on your circumstances and the breach. If you’re not out by the date in the order, the landlord can get a ‘warrant for possession’ from the registry of the Tribunal and go to the Sheriff’s Office. A Sheriff can remove you from the premises, with police help if needed.

• If the landlord attempts to lock you out before the Tribunal makes an order of possession your landlord can be fined up to $22,000 for an illegal lockout. It is an offence to lock you out without Tribunal orders.

4. At the end of your tenancy, you must give the landlord vacant possession of the premises. If you don’t, your landlord can charge the equivalent of one day’s rent for each day they hold the goods you left behind, with the maximum of 14 days’ rent. Your landlord can also dispose of your goods if they give you written notice (14 days for ordinary goods and 90 days for personal documents), and you fail to collect your goods within the notice period. If you’re having trouble collecting your goods, see Tenants NSW factsheet for more information (see Useful Resources).

(B) You are a sub-tenant with a written agreement

A head tenant must give their subtenants the same notice as the landlord is required to give them. This means 90 days if you’re on a periodic agreement, 30 days before the end of the fixed term if you’re on a fixed term agreement or 14 days if you’ve breached the agreement as explained above. So, when the head-tenant gets the notice that the landlord is terminating the tenancy, they must give you notice in writing. After that, the procedures in Scenario 1(A) apply.

(C) You are a boarder/lodger

As a boarder or lodger, you are not covered by the Residential Tenancies Act and have little protection against eviction.

For residents of registrable boarding houses under the Boarding Houses Act there are two rules that a proprietor must follow. They must let you know why and how the occupancy may be terminated, including how much notice will be given before eviction. If they want to evict you, they must give you a notice of eviction in writing. The notice must be ‘reasonable’, which means there is no fixed time you must be given. Sometimes boarding house residents sign occupancy agreements that outline what a reasonable notice period will be in certain situations. If you think that the notice period you have been given is not reasonable, you can apply to the Tribunal. A boarding house proprietor does not need to apply to the Tribunal for an order of possession over your property or a warrant.

For those not covered by either Act, the position could be unclear. From a practical perspective boarders and lodgers can be evicted with very little notice. If you have a written agreement you should check it to see if they are giving you the correct amount of notice. If there is no agreement about notice, then the landlord should let you stay until the day that you have paid rent up to.

Generally, the landlord should give you reasonable notice. This notice would be the same period for which you pay your rent (e.g. if you pay rent fortnightly, two weeks notice would be required). To try to stop an eviction you would need to apply to the Supreme Court of NSW, or in some circumstances, to the District Court. If your landlord has breached your contract, you might have an action in the Local Court for compensation. Court action is expensive and will take too long to solve the immediate problem of losing your housing.

The story gets worse. As a boarder or lodger, you have no protection against being locked out of your house. It is an offence to physically evict someone who has good reason to be on the premises. However, this does not stop the landlord locking you out when you pop down to the corner shop to buy some milk!

There is little you can do to protect your possessions if you get locked out. It is possible to sue the landlord in the Local Court but this can be expensive.

You may in fact be a tenant and be covered by the Residential Tenancies Act. It is important to look up your rights and obligations, rather than what the landlord has called the agreement. Contact your local tenants’ service or a community legal centre for advice (see Contact Points) or see the Boarders & Lodgers Kit for more information (see Useful Resources).