Fixed term or periodic tenancies?

A fixed term lease (or tenancy) exists where the parties agree on a single, specific length of tenancy - usually for six months or one year, although it can be for any period as long as the period is fixed. If a tenant wants to leave premises before the end of a fixed term it is always worth discussing this with the landlord as it may end by agreement between the parties.

Under the Residential Tenancies Act 1995 (SA) a tenant generally cannot give notice to end a fixed term agreement, except where the landlord is in breach of the agreement [s 85]. However if that notice is invalid, improperly served, or if the landlord remedies the breach the agreement may not be terminated. The landlord may respond to any notice served under section 85 by making an application to the Tribunal (SACAT) to have the tenancy reinstated.

The other exceptions allowing a tenant to terminate occur where:

  • a landlord enters into a contract to sell the premises within two months of the commencement of the agreement and failed to advise the tenant under section 47A [s 85A]; or
  • where the agreement is frustrated as a consequence of the premises becoming uninhabitable or compulsorily acquired [s 86B].

Notice by either party of an intention not to continue with a tenancy at the end of a fixed term can be provided under s 83A (for landlords) or s 86A (for tenants).

If a fixed term agreement has not terminated before or at the end of the fixed term (i.e. the tenant does not vacate and the landlord does not require the tenant to vacate), the agreement continues as a periodic tenancy agreement. The tenancy period will be determined by the interval between rental payment times under the agreement (e.g. fortnightly, monthly).

A periodic tenancy is for a recurring period without a fixed term. Many periodic tenancies are verbal agreements, however, a periodic tenancy can be written, and standard form agreements are available online at the sa.gov.au website.

A periodic tenancy can continue indefinitely. It goes on recurring automatically until something is done by the parties to bring it to an end – see Ending a tenancy agreement.

Special provisions exist for tenants who are the victims of family violence. For more information see Intervention orders and tenancy agreements.

Fixed term or periodic tenancies?  :  Last Revised: Fri Dec 23rd 2016
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