Breach of tenancy

A serious breach of a tenancy agreement is grounds for  terminating the tenancy – either by notice to the other party or by application to the South Australian Civil and Administrative Tribunal (SACAT). Generally terminations by notice are for less serious breaches or where a breach is capable of being rectified (fixed). In some instances the right to terminate may be available both by notice or by application.

How to give notice (rules of service)

Where there is a breach by the tenant

The following is a summary of what actions are available to a landlord where a tenant has breached the residential tenancy agreement. These apply to both fixed and periodic tenancies.

Unpaid rent [s 80] – by notice

Where the rent (or any part of the rent) remains unpaid for at least 14 days the landlord may give a notice (Form 2 – also referred to as a breach notice) to the tenant requiring them to remedy the breach. The tenant then has seven clear days to pay the rent owing. If the rent is not paid within the time given the tenancy terminates automatically [Residential Tenancies Act 1996 (SA) s 80(2)(c)]. This is distinct from other circumstances when a tenant breaches an agreement [see s 80(1)], where the tenant is given a further seven days to leave. See below, Other breaches.

However, the breach notice will be ineffectual unless served the day after rent becomes due For example, if rent has been paid until 1 September the rent is next due on 2 September. This means that a tenant would not be in arrears until 3 September, making the earliest date for which a notice can be issued 17 September.

Serious breaches [s 87(1)] – by application to SACAT

A landlord may apply to the Tribunal (SACAT) for an order terminating a tenancy and granting possession of the premises where there has been a breach of the agreement that is sufficiently serious to justify termination of the agreement [s 87(1)]. This procedure may be preferable termination by notice under section 80 where the breach is not capable of being remedied.

Serious damage or injury [s 87(2)] – by application to SACAT

If the tenant intentionally or recklessly causes, or is likely to cause, serious damage to the premises or injury to the landlord or people in adjacent premises a landlord may terminate a residential tenancy agreement [s 87(2)]. No notice is necessary, but the landlord must apply to SACAT for an order terminating the tenancy (using Form 7). Note that a fee applies.

Repeated failure to pay rent [s 87(1a)] – by application to SACAT

A residential tenancy agreement may also be terminated, on application by the landlord to the Tribunal, where the tenant has failed to pay rent and, on at least two occasions in the 12 month period preceding the breach had been given notice under section 80. However, under section 87(1b) the Tribunal (SACAT) may make alternative orders requiring the tenant to comply with specified conditions relating to payment of rent.

Where impossible for tenant to rectify breach [s 87] – by application to SACAT

Whilst a tenancy may be terminated by notice under section 80 if the tenant is in breach it may be more appropriate to seek an order for termination through SACAT where the breach is not capable of remedy.

Example of an unremediable breach by tenant

Yeomans v Janoska & Parry (RT10/1337)
The tenants were responsible for serious damage to the rental premises including a hole in the front door and a bedroom screen that was destroyed and removed during an altercation. In addition, there were frequent loud arguments between the tenants which disturbed their neighbours. The male tenant had threatened several of the neighbours, some of who were elderly, with violence to themselves or, in one case, to a pet dog. The Tribunal found that the tenancy agreement had been breached under section 87(2) and ordered termination of the agreement.

Other breaches [s 80] – by notice

For breaches other than non-payment of rent and serious breaches, the landlord must give the tenant at least seven days notice (Form 2) to remedy the breach. The tenant then has a further seven days to vacate if the breach is not rectified [Residential Tenancies Act 1995 (SA) s 80(1)(b)(ii)].

Abandonment [s 94] – by application to SACAT

Where a tenant abandons the property, the landlord may apply to SACAT for an order that the property has been abandoned. In determining whether a tenant has abandoned the premises the Tribunal may look at any failure to pay rent or any evidence that the tenant no longer occupies the premises as a place of residence. The Tribunal may also order that the tenant pay compensation to the landlord [s 94(3)].

Unacceptable conduct [s 90] – by application to SACAT

 A tenancy may be terminated on application to SACAT by the landlord where there has been unacceptable conduct on the part of the tenant. Section 90(1) specifies that where a tenant has used the premises, or allowed the premises to be used, for an illegal purpose; caused or permitted a nuisance; or, caused interference with the reasonable peace, comfort or privacy of another person residing in the immediate vicinity a landlord may apply for the tenancy to be terminated.

If a tenant wishes to preserve the tenancy, the tenant may apply to SACAT for an order declaring that they are not in breach, or have remedied the breach or to have the tenancy reinstated [see 80 (4)]. Such an application can be made at any time after receiving the notice but before giving vacant possession to the landlord.

There is provision under section 80(5) for the Tribunal to reinstate a tenancy, even where satisfied that it has been validly terminated, if the Tribunal concludes that it would be just and equitable to reinstate the tenancy.

Where there is a breach by the landlord

By notice – non serious breaches/breaches capable of being remedied

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].

The landlord may respond by applying to the Tribunal at any time before the date fixed by the notice or before the tenant gives up possession for an order declaring that there is no breach, that it has been remedied or that the tenancy be reinstated [s 85(2)].

Under section 85(3) even if the Tribunal is satisfied that the tenancy has been validly terminated it can reinstate the tenancy if satisfied that it is just and equitable to do so.

By application – serious breaches/breaches not capable of being remedied

 Where a landlord has committed a serious breach of the tenancy agreement a tenant may make an application for termination of the agreement [s 88]. The provision under section 88  is also appropriate where the breach is one that is not capable of being remedied.

Example of an unremediable breach by landlord

Yeend v Rainsford (R0533/97)
The tenant applied for an order to terminate the tenancy due to the landlord’s failure to advise about a restriction to her use of the back yard of her unit due to a neighbour’s right of access across the backyard. Under sections 64 and 65 of the Residential Tenancies Act 1995 a tenant is entitled to vacant possession of a premises and must be advised by a landlord if there is any legal impediment (such as a right of way). The landlord denied that there was any breach but the Tribunal concluded that the landlord was unable to provide possession free from the neighbour’s access to the yard and as such there was a breach to the tenant’s entitlement. As this situation could not be remedied and the tenant had suffered undue hardship termination of the agreement was ordered.

 See also Ending a Tenancy Agreement.

Breach of tenancy  :  Last Revised: Fri Dec 23rd 2016
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