Where there is a breach by the landlord
If a landlord has breached a tenancy agreement and it is possible for the landlord to rectify the breach, the tenant may serve a notice on the landlord (using Form 4). If the breach is not remedied within a specified period (at least seven days) then the tenancy is automatically terminated by force of the notice after the expiration of at least a further seven days [Residential Tenancies Act 1995 (SA) s 85].
However, section 85 also allows that a landlord may, before the date of termination fixed in the notice, apply to the South Australian Civil and Administrative Tribunal (SACAT) for an order reinstating the tenancy or refusing termination if it can find the landlord was not in breach [s 85(2)].
A tenant can apply to SACAT to end a fixed term tenancy or a periodic tenancy where the landlord has committed a serious breach of the agreement [s 88]. Note that a fee usually applies unless you apply for an exemption (available to concession card holders and full time students) or waiver (due to financial hardship).
If, within two months of the start of a residential tenancy agreement, the landlord enters into a contract for sale of the premises which was not disclosed when the agreement was signed (as required under section 47A), the tenant may give notice of termination [s 85A] (using Form 4A). If the landlord provides written notice of the contract of sale the tenant must exercise their right to terminate within two months after receiving the notice.
Where the agreement is frustrated
A tenant may immediately terminate a tenancy (using Form 4C) where the premises or a substantial portion of the premises [s 86B]:
- have been destroyed or rendered uninhabitable
- are no longer lawfully usable as residential premises
- have been acquired by a compulsory process
Wthere is no breach
A tenant can apply to SACAT to end an agreement if the continuation of the residential tenancy agreement would result in undue hardship [Residential Tenancies Act 1995 (SA) s 89]. The Tribunal may also make an order compensating a landlord for loss and inconvenience resulting, or likely to result, from the early termination of the tenancy.
At any time during a periodic tenancy a tenant can give written notice that they are going to leave the premises (using Form 5). The period of notice must be 21 days or a period equivalent to a single period of the tenancy (whichever is longer). The notice must specify the premises and the date on which the tenant intends to leave. No reason need be given. Even if the tenant does not give notice, the landlord cannot claim any re-letting or advertising costs, although in this case the tenant may for instance, be liable for three weeks rent in lieu of the twenty one days notice [Residential Tenancies Act 1995 (SA) ss 86(1), (2)].
Fixed term tenancies
At the end of a fixed term tenancy a tenant can give written notice that they are going to leave the premises (using Form 4B). The period of notice must be 28 days [s 86A].
If a fixed term has not expired but the tenant no longer wants to occupy the premises, the tenant should approach the landlord and attempt to come to some arrangement. The landlord might agree to allow the tenant to leave as long as the tenant gives certain notice and pays the re-letting costs, or if the tenant can find someone suitable to take over the remainder of the term of the agreement. If the tenant simply moves out and assumes that the landlord will re-let the premises and so relieve the tenant of liability to pay, the landlord can sue the tenant for the rent due under the tenancy agreement and for other costs.
While a landlord does not have to agree to allow a tenant to leave, at the same time a tenant cannot be forced to stay. If the tenant does leave without coming to some agreement with the landlord (that is, abandons the tenancy), the landlord is entitled to recover certain costs. However, the landlord must mitigate (reduce) the loss caused by the tenant's abandonment by seeking another tenant for the premises as quickly as possible. The tenant's liability to the landlord for abandonment of the tenancy agreement is for rent to the date of re-letting or to the end of the fixed term (whichever is sooner) and all or part of the advertising costs and the re-letting fee. If the landlord does not attempt to relet the premises the tenant may not be liable for anything.
Where a tenant abandons the property, the landlord may apply to SACAT for an order that the property has been abandoned. The Tribunal may also order that the tenant pay compensation to the landlord [Residential Tenancies Act 1995 (SA) s 94]. In deciding whether a tenant has abandoned premises the Tribunal can look at any failure to pay rent or evidence the tenant no longer occupies the premises as a place of residence.
Victims of Domestic Violence
Victims of domestic violence have some protection in being able to end a tenancy due to reasons relating to domestic violence - see our section on this below: Intervention orders and tenancy agreements.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.