Terminating Residential Tenancies Agreements (WA)
There are a number of ways a residential tenancy agreement can be terminated. The steps that must be taken to terminate a tenancy are different depending on whether it is the tenant or the landlord who initiates the termination. This article outlines how a residential tenancy can be terminated in Western Australia.
The Residential Tenancies Act
The Residential Tenancies Act 1987 (RTA) is the Act that governs all residential tenancy agreements entered into, renewed, extended, assigned or otherwise transferred in Western Australia. The legislation applies to tenants who rent their home from a landlord or a real estate agent acting for a landlord. The real estate agent is often referred to as the property manager. The tenant is the person who is granted the right to occupy the residential premises under a residential tenancy agreement.
The landlord, also known as the lessor, is the person who grants the right to occupy the residential premises under a residential tenancy agreement. In the event the tenant sublets to sub-tenants, the sub-tenants are also covered by the legislation.
Residential Tenancy Agreements
A residential tenancy agreement is often referred to as a ‘tenancy’ which means the right of occupation under a residential tenancy agreement (RTA section 3). A tenancy can be for a fixed term or it can be periodic. A fixed-term has a definite start and end date, whereas a periodic agreement has a start date but no end date. A fixed-term tenancy provides both the tenant and the landlord greater security because the tenant is guaranteed a place to live for a set period of time and the landlord is guaranteed income.
Written or Verbal Agreements
A residential tenancy agreement can be written or verbal.
Should a landlord and tenant enter into a written agreement, it must be in the prescribed form (RTA section 27A). The prescribed form is the Form 1AA Residential Tenancy Agreement. A copy of which can be found in the Residential Tenancies Regulations 1989 (WA).
The landlord and tenant can enter into a verbal agreement, however, that is not recommended because neither party will have evidence of the agreement. In the case of a verbal agreement, the landlord should provide the tenant with a Form 1AD Information for the tenant with a non-written residential tenancy agreement.
The ‘standard terms’ that apply to all residential tenancy agreements are included in Part B of the Form 1AA Residential Tenancy Agreement. Part B intends to capture the rights and responsibilities of the landlord and tenant that are set out in the RTA. Where there is no written agreement, the parties must still comply with the RTA and are afforded the same rights and responsibilities as parties to written agreements.
Different Ways of Terminating a Residential Tenancy
Landlords and tenants have different steps to follow to end a tenancy, also known as terminating a lease. The steps also depend on whether it is a fixed or periodic lease and the reason for terminating the lease.
A landlord can terminate a lease in a number of ways.
If the landlord does not want to continue with the lease after the fixed term ends, they must provide the tenant with 30 days’ notice and confirm the end date of the lease (RTA Section 70A).
If the landlord has entered into a contract for the sale of the property, they must provide the tenant with no less than 30 days’ notice (RTA section 63).
If the landlord wants to terminate the lease ‘without grounds’, then they must issue a Form 1C Notice of Termination and provide the tenant with 60 days to vacate (RTA section 64).
Terminating residential tenancy agreement for non-payment of rent
If the tenant falls behind in rent payments, the landlord has two options:
- Issue the tenant with a breach notice being a Form 21 Breach Notice for Non-Payment of Rent and give the tenant 14 days to pay the outstanding rent. If the rent is not paid before the 14 days expires, the landlord can issue a Form 1A Notice of Termination for Non-Payment of Rent and the tenant will have 7 days to vacate (RTA section 62(4)(a)).
- Issue a tenant with a Form 1B Notice of Termination for Non-Payment of Rent. If the tenant does not pay within 7 days of the notice, the landlord can apply to the Magistrates Court of WA for a termination order and payment of unpaid rent (RTA section 62).
Terminating residential tenancy agreement for breach
If a tenant has breached the residential tenancy agreement (other than by failure to pay rent), then the landlord can serve a breach notice on the tenant explaining the issue and providing the tenant 14 days to fix the issue. If the breach is not resolved within that 14 day period, the landlord can serve a Form 1C Notice of Termination on the tenant giving the tenant 7 days to vacate the property (RTA Section 62).
If the landlord is suffering from undue hardship, then the landlord can apply to terminate the lease (RTA section 74).
If the tenant abandons the property, the landlord can issue a Form 12 Notice to Tenant of Abandonment of Premises. If the tenant does not respond within 24 hours, the landlord can enter the property and terminate the tenancy (RTA section 76A).
If the tenant is causing serious damage or injury to the premises, the landlord, the property manager of the premises or any person in premises located adjacent to the rented premises, the landlord can apply to the court seeking an immediate order for possession (RTA section 73).
If the landlord is losing their house to the bank (mortgage repossession), then the landlord must give the tenant 30 days’ notice by serving them with a Form 14: Notice to Vacate from Mortgagee to Tenant (RTA section 60(e) & 81A).
To end a periodic lease, the landlord must provide the tenant with a termination notice providing you with 60 days’ written notice (RTA section 64).
A tenant can terminate a lease in the following ways:
- If a tenant does not want to continue with their lease after the fixed term ends, then they must provide the landlord with 30 days’ notice and confirm the end date of the lease (RTA section 70A).
- If a tenant wants to terminate the lease early, the tenant must terminate the lease in writing, specifying the day they will deliver up vacant possession and sign the termination notice. (RTA sections 67 and 68). A tenant who terminates a lease early is still obliged to pay rent to the landlord until the landlord obtains a new tenant.
- To end a periodic lease, the tenant must provide 21 days’ written notice to the Landlord (RTA section 68).
Terminating residential tenancy agreement due to frustration
‘Frustration’ is a situation where a contractual obligation has, without the default of either party, become incapable of being performed, and the parties are discharged from their contractual obligations. A residential tenancy agreement is a contract, and it can be terminated due to frustration.
Where the agreement is frustrated, if the landlord terminates the lease, they must give the tenant 7 days to vacate (RTA section 69(2)). Where the tenant terminates the lease, they must give the landlord two days’ notice before vacating (RTA section 69(3)).
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.