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Residential Tenancies Act 2010 - termination of tenancies
This factsheet looks at sections of the Residential Tenancies Act 2010 (RTA 2010) and the Residential Tenancies Regulation 2010 (RTR 2010) that relate to the termination of tenancies.


Download a PDF version of this factsheet




PART 1 – TERMINATION BY LANDLORDS 

 
Preliminary – service of termination notices – section 223 

In a major win for landlords, service of termination notices has been made much easier. However, the proper drafting of termination notices and properly documenting their service will remain critical to the success of applications for terminations in the CTTT.

New methods of service of termination notices for individuals are:

  • delivering it in an envelope addressed to the person and leaving it in a mailbox at the person’s residential or business address, or
  • delivering it personally to a person apparently of or above the age of 16 years at the person’s residential or business address, or
  • sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or
  • sending it by facsimile transmission to the facsimile number of the person, or
  • If there is more than one landlord or tenant under a residential tenancy agreement, a notice required to be served on a tenant or landlord under the agreement is taken to be served on all the tenants or landlords under the agreement if it is served on one of the tenants or landlords.
  • email is not a permitted method of service.
Personal service on individuals is still permitted, but is now more restricted to service on the person "at the person’s residential or business address". However, note that a permitted method of service is service on an individual over 16 (not necessarily the tenant) at the tenant’s business address.

Service on companies is essentially personal service, service by post, or by fax.

Multiple methods of service should be used wherever possible, particularly as some are so easy to use – e.g. faxing notices. Every tenancy application should now require provision of a fax number for the tenant. If notices are posted, the current rules about service being deemed to have been effected on the fourth working day after the date of posting will still apply (refer s 76 of the Interpretation Act 1987 (NSW))..

Service by any method should be backed by appropriate evidence in your file to prove service in accordance with the RTA 2010. If you neglect to do this properly, expect your termination notices to be overturned. 


End of fixed term – section 84   

The notice period which must be given by the Landlord has increased from 14 days to 30 days.

However, there is now greater certainty for repossession if the tenant does not vacate, as the CTTT must make a termination order (and an order for possession) where a termination notice has been validly given and the tenant has not vacated. Applications for termination orders must be made within 30 days of the date specified in the termination notice.


Clause 13 of the RTR 2010   
As a result of REINSW lobbying, clause 13 reinstates the effect of the proposed section 110(3) of the draft RTA 2009 which was omitted from the RTA 2010.

The effect of clause 13 is to prevent a tenant from being able to pay rent only to the date they give vacant possession during a fixed term, after being served with an end of fixed term termination notice under section 84 of the RTA 2010.

The RTR 2010 therefore clarifies that a tenant is obliged to pay rent for the entire fixed term regardless of when they give vacant possession.

Without clause 13 it would have been disadvantageous for a landlord to serve a termination notice for end of fixed term as early as possible. If they had, the tenant would have been able to give vacant possession at any time after service of the notice without further liability for rent for the balance of the fixed term under s110(2).

This would have meant that a Landlord who served a termination notice giving the required 30 days notice would not be guaranteed the rent for that last 30 days, as the tenant may have given vacant possession during that period. Without clause 13, a landlord might have been inclined to serve the termination notice in the last days of the tenancy, (which would have extended the fixed term) but would have given the landlord the certainty of receiving rent for the full term of the tenancy agreement. 


Termination of periodic agreement – section 85   

The notice period under the RTA 1987 for ‘no grounds’ notices was 60 days. Under the RTA 2010 this period has become 90 days.

However, following REINSW lobbying, the ability of the CTTT to take the “circumstances of the case” into account when deciding whether or not to order termination has been removed (this was the Swain’s case doctrine).

Consequently, no grounds terminations will now operate differently from the RTA 1987.

  • A landlord needs to give 90 days ‘no grounds’ notice.
  • If the tenant does not give vacant possession, the Landlord can make an application (within 30 days of the termination date specified in the termination notice) to the CTTT for termination and possession.
  • If the notice was validly given and the tenant has not vacated, the CTTT MUST make a termination order and an order for possession.
  • The RTA 2010 is silent about how quickly the CTTT must order vacant possession but the expectation is that it will be quick. Exactly how the CTTT handles this new provision remains to be seen.
 
Sale of premises – section 86   

Essentially the same procedure as under the RTA 1987:

  • The contract must provide for vacant possession;
  • The contract must have been entered into;
  • 30 days notice must be given, and notice can’t be given during the fixed term
Good agency practice will still be to wait for a contract to become unconditional (if there is a cooling off period in the contract) before serving any notice.

If the cooling off period is to be extended by consent, make sure you discuss with your vendor allowing a sufficient settlement period (i.e. extend the settlement date as required) to enable proper service of any termination notice. Otherwise the Vendor may not be able to obtain vacant possession prior to the settlement date. You should bring this issue to the notice of all residential salespersons in your agency. 


Breach of agreement – section 87   

A landlord can give a termination notice following breach of the agreement. The notice must specify a termination date not earlier than 14 days after the day on which the notice is given.

A notice can be given during the fixed term or during the periodic term. The landlord can enforce the notice by application to the CTTT within 30 days of the termination date in the notice (refer s 83(2) of the RTA 2010).

Note: in relation to orders merely restraining breaches of the tenancy agreement (rather than terminating the agreement) the relevant time period for application to the CTTT for an order is 3 months after becoming aware of the breach (refer s 190 of the RTA 2010).

The “circumstances of the case” test remains in section 87 of the RTA 2010, so the CTTT has considerable discretion as to whether to terminate the tenancy agreement for an alleged breach.

To make a termination order for breach, the CTTT must be satisfied that:

  • the tenant has breached the residential tenancy agreement, and
  • the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and
  • the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
If the tenant has remedied the breach, the CTTT may refuse to make a termination order.

“Specific performance orders” can still be sought and made.

Subject to any maximum amount in the Regulations, the CTTT can award damages in relation to a breach (refer s 187(2)(b) of the RTA 2010).

An application may be made after the end of a residential tenancy agreement 


Termination notices for non-payment of rent – sections 88 and 89   

There is a change in procedure from the RTA 1987. Non-payment of rent is now a specific example of a breach of a tenancy agreement and now has a specific section devoted to it.

The payment of all rent owing, or compliance with agreed payment plans, will now ‘save’ tenancies and are now the principle considerations when dealing with non-payment of rent terminations.

A termination notice solely based upon failure to pay rent is now called a “non-payment termination notice”.

Tenants still must be 14 days in arrears before a termination notice can be issued. If tenants are frequently late in paying rent, this may become an important factor when seeking termination. You should document or summarise all late rent payments (even if only a day late) as these payments may become of critical importance when taking a non-payment of rent termination to the CTTT.

A formal demand for rent does not have to be made before giving a non-payment termination notice.

There is new prescribed wording for a non-payment termination notice. A non-payment termination notice must now inform the tenant that the tenant is not required to vacate the residential premises if the tenant pays all the rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord).

A landlord can now apply to the CTTT for a termination order immediately after service of a non-payment termination notice on a tenant. This may give the landlord the opportunity to get a quicker hearing date in the CTTT. The hearing can’t be before the termination date in the notice. It is assumed the normal CTTT application fees will apply and that these will be forfeited if the tenant pays any arrears. Filing an application early may have the added benefit of ensuring compliance by a tenant with the obligation to pay rent and, where the amount of rent is significant, may be a cost effective risk management method in minimising the potential loss of rent to the landlord.

If the tenant pays all rent owing, or enters into and complies with a repayment plan agreed with the landlord, the CTTT must not make a termination order.

Any termination based solely on the grounds of non-payment of rent, AND any warrant for possession “cease to have effect” upon payment by the tenant of all rent owing or the entering into, and full compliance with, a repayment plan agreed with the landlord. (Note: The landlord is not entitled to a refund of his costs of seeking the order or the warrant).

If a landlord has applied for a termination order and the CTTT proceedings have not been finalised, or if the Landlord has obtained a warrant for possession, and the tenant then pays all rent owing or enters into and fully complies with an agreed repayment plan, the Landlord must inform the CTTT and the Sherriff of the tenant’s payment. Penalties apply.

As a result of REINSW lobbying, section 89(5) was inserted in to the RTA 2010 which allows the CTTT to make a termination order despite a tenant’s payment of arrears, if it is satisfied that the tenant has frequently failed to pay rent owing for the residential premises on or before the day set out in the residential tenancy agreement. There is no definition of frequent – record all late payments as those records may ultimately prove useful. 


Serious damage or injury by tenant or other occupant – section 90   

  • Still requires an application to the CTTT. No termination notice is required
  • Damage can be damage caused by the tenant or other occupant
  • Can include damage to common property and damage to neighbouring properties
  • The class of persons who can be injured has been increased and includes the landlord, his agent or their employees or contractors, or occupiers or person on neighbouring properties
  • Termination notice is not now necessarily immediate, but can be
  • Looks to be aimed at conduct at or near the tenanted premises

Use of premises for illegal purposes – section 91 

  • Defines illegal uses in greater detail (mainly in relation to drugs)
  • Use of the premises for any other unlawful purpose can also suffice to justify the termination
  • Termination can be immediate
  • No termination notice is required
  • Termination can be during the fixed term
 
Tribunal may terminate residential tenancy agreement for threat, abuse, intimidation or harassment – section 92   

  • This ground is specifically directed at conduct by tenants or occupants towards landlords, their agents and their employees and contractors. It is similar to the provisions in the RTA 1987 which applied to social housing and extends the scope of the old s68 RTA 1987 which was limited to serious damage or injury.
  • The conduct required is that the tenant or occupant must have “seriously or persistently threatened or abused” or “caused or permitted any such, threats, abuse or conduct”; or
  • that they “intentionally engaged, or intentionally caused or permitted another person to engage, in conduct in relation to any such person that would be reasonably likely to cause the person to be intimidated or harassed”.
  • Termination can be immediate
  • No termination notice is required
  • Termination can be during the fixed term
 
Hardship to landlord – section 93   

  • The process is essentially the same as under the RTA 1987
  • The test is “that the landlord would, in the special circumstances of the case, suffer undue hardship if the residential tenancy agreement were not terminated”
  • A landlord may be required to pay compensation to the tenant if the tenancy is terminated and the tenant must take all reasonable steps to mitigate their loss. The compensation is not capped (contrast with section 104(2) of the RTA 2010) where a landlord’s loss in hardship situations is capped.
  • No termination notice is required
  • Termination can be during the fixed term
 
Termination of long term tenancies – section 94  

  • This is a new provision
  • If a tenant has been in continual possession of the same premises for more than 20 years and the original fixed term has expired, the Tribunal may make a termination order following an application by landlord. A landlord merely makes application
  • No termination notice is required
  • The Tribunal must be satisfied that it is appropriate, in the circumstances of the case to make the order. This gives the Tribunal a wide discretion as to whether or not the periodic tenancy will be terminated
  • Termination date must not be before the end of the fixed term
  • An order for vacant possession must not be earlier than 90 days after the termination order is made.
  • Property managers will need to bring this section to their principal’s attention to simply obtain instructions as tenancies approach the 20 year mark, as regaining possession may become more difficult after 20 years
 
Occupants remaining in residential premises – section 95   

  • This section will apply where occupants remain on premises after the tenant(s) depart
  • When regaining possession, notice can be given to the occupant(s) giving 14 days notice to vacate. If occupants don’t vacate, Landlord can apply for possession order from CTTT
  • As the section uses the words “…the landlord may give…” it is arguable that the section does not mean that occupants cannot be locked out in such circumstances (refer also to section 106(3) of the RTA 2010. Fair Trading policy officers have confirmed to the REINSW that this was how they intended this section to be interpreted. How the CTTT will interpret this provision remains to be seen
  • Where it appears that a tenant has abandoned the premises, property managers may choose to formally apply for an order (under section 106 of the RTA 2010) that a tenant has abandoned the premises at the same time as seeking to evict the occupants, to ensure full compliance with this section
  • Occupants can also apply for an order under section 77 of the RTA 2010 to be recognised as a tenant and, so, seek to remain in the premises
 

PART 2 – TERMINATION BY TENANTS   

End of fixed term agreement – section 96   

  • This section is essentially the same as section 60 RTA 1987
  • Tenant must give not less than 14 days notice
  • Notice must be given by the tenant up to or including the last day of the fixed term
  • Note: If a tenant receives an end of fixed term termination notice from the landlord, the tenant is not able to give vacant possession at any time prior to the end of the tenancy, and pay rent only up until the date of vacant possession pursuant to section 110(2) of the RTA 2010. Clause 13 of the RTR 2010 provides an exemption to section 110(2) of the RTA 2010. This means a landlord can enforce payment of rent for the entire fixed term regardless of when the tenant gives vacant possession. Clause 13 was an amendment made after REINSW lobbying.
 
Termination of periodic agreement by tenant – section 97   

  • This section is essentially the same as section 59 of the RTA 1987
  • A tenant is still only required to give 21 days ‘no grounds’ notice to initiate a termination of a periodic tenancy (landlord must give 90 days)
  • If a tenant receives a 90 days ‘no grounds’ termination notice from the landlord, the tenant is not required to give a 21 days’ notice in reply. They can simply give vacant possession at any time prior to the end of the 90 day notice period, and pay rent only up until the date of vacant possession.

Breach of agreement – termination notice by tenant – section 98   

  • A tenant can give a termination notice for an alleged breach of the tenancy agreement by the landlord. However, a tenant can also apply for a termination order, without giving a termination notice, by applying directly to the CTTT under section 103 of the RTA 2010, although the effort required and the burden of proof may be higher.
  • The termination date must not be earlier than 14 days after the notice is given
  • Notice can be given during the fixed or periodic term
  • A landlord’s right to challenge a tenant’s termination notice for breach, by applying to the CTTT, is now much clearer. The period prescribed by the RTR 2010 for the making of an application by a landlord for the revocation of a termination notice given by a tenant is within 7 days after being served with the termination notice.
  • It is important to note that the policy positions behind termination notices for breach are that a tenant’s notice is valid and the tenancy will terminate, unless the tenant’s notice is revoked by the CTTT. A landlord’s notice for breach (see discussion about section 87 of the RTA 2010 above) will not terminate a tenancy by itself. The landlord must apply to the CTTT for a termination order.
  • If served with a termination notice by a tenant for breach, get instructions and, if the landlord wishes to challenge it, file an application within 7 days of being served with the notice
  • The CTTT still has considerable discretion, and can take into account the circumstances of the case, when considering whether to revoke a tenant’s termination notice and allow the tenancy to continue. Accordingly, even if a landlord can show that a breach has been rectified; this may not save the tenancy. 
  • Specific performance orders” can still be made (section 187(1)(b) of the RTA 2010).
  • Subject to clause 23 of the RTR 2010, the CTTT can award compensation in relation to a breach. The maximum amounts prescribed by the RTR 2010 are $30,000 for rental bond matters and $15,000 for other matters.
Note: Section 98 of the RTA 2010 is a different section from the Section 98 contained in the Residential Tenancies Bill 2009 which was released in November 2009. That section related to a compulsory break fee during fixed term tenancies. That proposal was later abandoned after REINSW lobbying. Many of the sections in the RTA 2010 were then re-numbered when the RTA 2010 was passed. 


Rent increases during long-term fixed term leases – termination notice by tenant – section 99   

  • A long term, fixed term lease is one with a fixed term of more than 2 years
  • If the rent is increased, the tenant may give a termination notice, without penalty - even though the method of rent increase or amounts may have been included in the agreement at signup
  • The tenant must give not less than 21 days notice and must give notice before the increase takes effect
  • The tenant may terminate during the fixed term
 
Early termination without compensation to landlord – section 100   

This section contains new concepts.

A tenant can break a fixed term tenancy agreement, without penalty, in the following circumstances:

  • the tenant has been offered, and accepted, accommodation in social housing premises,
  • the tenant has accepted a place in an aged care facility or requires care in such a facility,
  • the landlord has notified the tenant of the landlord’s intention to sell the residential premises and did not disclose the proposed sale before entering into the residential tenancy agreement (see also section 26(2) of the RTA 2010)
  • the co-tenant or occupant or former co-tenant or occupant is prohibited by a final apprehended violence order from having access to the residential premises
The tenant must give a termination notice to the landlord and must give 14 days’ notice. 


Termination by co-tenant of own tenancy – section 101   

This section contains new concepts.

  • A co-tenant can now terminate a periodic tenancy agreement
  • They must serve a termination notice on the landlord and any other co-tenants 
  • Not less than 21 days notice must be given
  • Provided a valid notice has been given, the co-tenancy will end when vacant possession is given
  • If one co-tenant gives notice, a remaining co-tenant can apply to the CTTT for and order terminating the tenancy. Alternatively, they could simply give notice themselves (such as 21 days ‘no grounds’ notice) 

 Termination of agreement or co-tenancies by Tribunal – section 102 

This section contains new concepts.

  • This section allows co-tenants to apply to the CTTT for orders terminating each other’s tenancies or the entire tenancy itself
  • The test is whether it is appropriate in the “special circumstances of the case” to do so, which is a higher test than in the “circumstances of the case” (i.e.. exceptional circumstances).
  • An application can be made during the fixed term
  • No termination notice is required
  • A co-tenant could have their tenancy terminated following an application by another co-tenants and could also potentially be liable to pay a break fee if the co-tenancy is terminated during the fixed term
  • Section 174 of the RTA 2010 also provides that remaining tenants may be required to pay out the departing co-tenant’s share of the bond, unless an AVO is involved, in which case the person the subject of the AVO has no right to repayment of their share of the rental bond.
  • A landlord must be given notice by the CTTT of any application by a co-tenant under this section and the landlord has a right of appearance in the CTTT. If placed in this situation, it would be wise to seek appropriate orders in relation to the deletion of the outgoing tenants name from any rental bond relating to the tenancy.
 
Breach of agreement – termination by Tribunal – section 103   

This is similar to the old section 70 of the RTA 1987.

However, under that act the test was whether the termination should be made given the “special circumstances of the case” which was a very high test (i.e. exceptional circumstances). This section requires the CTTT to just consider the “circumstances of the case” which is a lower test.

To terminate the tenancy agreement, the CTTT must be satisfied that the landlord has breached the tenancy agreement and the breach is, in the circumstances of the case, sufficient to justify termination of the agreement. The termination order can be made during the fixed term. Some factors the CTTT can (but isn’t limited to) take into account:

  • the nature of the breach
  • any previous breaches
  • steps taken by the Landlord to remedy the breach
  • steps taken by Tenant about the breach
  • previous history of the tenancy
 The CTTT can refuse to make the order if the landlord has remedied the breach.

  • No termination notice is required – the tenant can go straight to the CTTT
  • The CTTT can make a variety of orders under s 178 of the RTA 2010
  • “Specific performance orders” can still be made by the CTTT
  • Orders as to payment of compensation can be made by the CTTT
  • Orders to restrain a breach can be made by the CTTT
  • Orders to remedy a breach can be made by the CTTT
  • Orders to require rent to be paid to the CTTT, instead of the landlord, to be applied towards remedying a breach, or towards compensation, can be made
  • Tenants can also seek termination by a different method without involving the CTTT – see section 98 above


Hardship to tenant – fixed term agreements – section 104   

  • The process is essentially the same as under s 69A of the RTA 1987
  • The section now expressly applies to fixed term agreements
  • The test is “that the tenant would, in the special circumstances of the case, suffer undue hardship if the residential tenancy agreement were not terminated”
  • A tenant may be required to pay compensation to the landlord if the tenancy is terminated and the landlord must take all reasonable steps to mitigate their loss
  • The amount a tenant may be required to pay to the landlord is capped, and must not exceed the amount of a break fee under s 107 of the RTA 2010. This is to be contrasted with section 93, where a tenant’s loss is not capped
  • No termination notice is required
  • Termination can be during the fixed term
 

Termination by Tribunal on landlord’s application after termination notice given by tenant – section 105   

Where a tenant gives a termination notice, does not revoke it before the termination date and does not subsequently give vacant possession, a Landlord can apply to the CTTT to make a termination order. The CTTT has discretion as to whether to make the order. 


Abandoned premises – sections 106 and 107   

This section is similar to the current provisions in the RTA 1987.

The CTTT can make an order that premises have been abandoned on a specified day.

Possession may be immediate where there are no remaining occupants. Where occupants remain they may be given 14 days notice (refer section 95 of the RTA 2010). 

A non-exhaustive list of factors which the CTTT may take into account when considering whether the tenant has abandoned the premises are:

  • Failure to pay rent
  • Evidence the tenant no longer resides at the premises
  • A failure by the tenant to carry out their obligations under the tenancy agreement
Landlords have an obligation to mitigate their loss following abandonment by a tenant and can recover compensation from the tenant for any loss (including loss of rent) caused by the tenant’s abandonment of the premises.

However, there is a new voluntary concept of election by the landlord and the tenant (at the commencement of the tenancy) to replace the above obligations with a fixed break fee, the amount of which is set by legislation. The break fee was to have been compulsory, but is now voluntary as a result of REINSW lobbying. This will enable landlords and tenants who, by agreement, wish to be bound by a break fee regime following abandonment to 'opt in' to such a regime - but it will not now be compulsory. The utility of a break fee will often depend upon the state of the letting market in that area.

The prescribed break fee is 6 weeks rent for abandonment in the first half of the fixed term and 4 weeks rent for abandonment in the second half of the fixed term.

The regulations are able to cap the break fee for residential tenancy agreements over 3 years, but no maximum amount is currently prescribed. Accordingly, the break fee for tenancies over 3 years is as above, or the amount agreed by the parties in the agreement.

If tenant has abandoned the premises but there are other occupants, you will need to serve a notice on the occupants pursuant to section 95 RTA 2010. 

 
PART 3 – TERMINATION BY EVENTS   

Death of tenant – section 108   

  • This is a new provision
  • Following the death of a sole tenant, either the landlord or the legal personal representative of the tenant may give notice to terminate the tenancy. There is no prescribed period of notice.
  • The termination may be given during the fixed term
  • If the landlord serves a termination notice, the estate of the deceased tenant is not liable for any rent after the legal personal representative delivers up vacant possession of the premises to the landlord
  • Property managers must sight the authority of anyone purporting to be the legal personal representative of the tenant. A legal personal representative is an executor to whom probate has been granted by the Supreme Court, or the administrator to whom letters of administration have been granted by the Supreme Court. If a person purporting to deal with the estate cannot furnish these documents, property managers deal with them at their own risk.
  • See also section 78 of the RTA 2010 which deals with the death of one co-tenant. Where one co-tenant dies leaving other co-tenants, section 78 provides that the remaining co-tenants can elect to continue the tenancy, or give a termination notice giving not less than 21 days notice. Such notice can be given during the fixed or periodic term.
  • Accordingly, the death of any tenant will now give rise to a right to terminate the tenancy either under section 78 or section 108 RTA 2010 during the fixed or periodic term.
 
Agreement frustrated – destruction of, or uninhabitable, premises – section 109   

  • The wording of this section has changed from section 61 RTA 1987, but the intent is essentially the same
  • A termination notice can be given by the landlord or the tenant and can be given during the fixed or periodic term
  • Termination may be immediate
  • There is now an express right within the section to allow a Landlord or Tenant to apply to the Tribunal to enforce the termination notice
  • Section 43(2) and section 45 of the RTA 2010 now govern rent abatement where premises are unusable but the agreement has not been terminated


MISCELLANEOUS   

Tenant’s liability for rent after service of termination notice – section 110   

  • This is a new provision
  • Once served with a termination notice, or once a tenant gives a termination notice to the landlord, a tenant can give vacant possession prior to the termination date specified in the notice.
  • When the landlord initiates the termination, a tenant is only liable for rent up until they give vacant possession 
  • This applies to all termination notices, including termination notices for termination of periodic tenancies for “no grounds”. In such circumstances, a tenant is no longer required to give 21 days’ notice after being given a “no grounds” notice – they can just give vacant possession and pay to that date. A landlord is thus no longer guaranteed a minimum 21 days rent during a “no grounds” termination as is currently the case.
  • If you wish to challenge a termination notice given by a tenant, you must make an application to the CTTT within any specified limitation period, or the tenancy will terminate.
  • However, as a result of REINSW lobbying, this section does not apply to “end of fixed term” termination notices given by the landlord – refer clause 13 RTR 2010.
 

Disputes about termination – section 111   

Either party may take a dispute about a termination notice to the CTTT 


Withdrawal of termination notices – section 112   

The party who gives a termination notice may, at any time, revoke the notice with the consent of all other parties to the residential tenancy agreement. 


Defects in termination notices - section 113   

This section is worded differently from section 66 in the RTA 1987. It applies to notices served by landlords as well as those served by tenants.

Whilst this section is in the RTA 2010 – agents using best practice should never need to rely on it!

The power of the CTTT is now extended to ignoring defects in the service of notices, not just in the wording of notices.

The CTTT must now be satisfied that it is appropriate to ignore the defect, taking into account “the circumstances of the case” rather than the stricter “special circumstances of the case” (i.e. exceptional circumstances) which was the test in the RTA 1987.

The party given the notice must also not have suffered any disadvantage as a result of the defect. 


Suspension of possession orders - section 114   

The CTTT may suspend a possession order if it is satisfied that it is desirable to do so, given the relative hardship to the landlord and the tenant.

Where the CTTT has suspended a possession order it may order the tenant to pay an occupation fee for the period of the suspension. 


Retaliatory evictions – section 115   

The CTTT may declare that a termination order has no effect, or may refuse to make a termination order if it is satisfied that it was retaliatory.

A notice or application will be retaliatory where the landlord was wholly or partly motivated by the fact that:

  • The tenant had applied, or had proposed to apply, to the CTTT for an order
  • The tenant had taken, or had proposed to take, other action to enforce their rights under the residential tenancy agreement
  • A CTTT order was in force between the landlord and tenant
A tenant must make an application for a declaration that a notice or application was retaliatory within the period prescribed by the regulations – which is 14 days except where the notice was issued under section 85 (“no grounds” notice of periodic agreements) when the time limit is 30 days. 


Accrual of rent on termination – section 116   

This section makes clear that rent accrues from day to day. This means that if rent is paid, say fortnightly, then upon termination of an agreement the tenant will still be liable for rent for each day they are in possession. 


Acceptance of rent after termination notice – section 117   

The acceptance of rent following a breach by a tenant (other than failure to pay rent) does not operate to waive any of the landlord’s rights with respect to that breach, or any termination notice issued with respect to that breach.


Other notices – section 118   

If a landlord or tenant gives a termination notice and subsequently revokes it, they are not prevented from re-issuing another notice on the same grounds.

If a notice is issued and not revoked, a further notice on different grounds can also be given. 


Time periods for application to CTTT   

The period prescribed by the RTR 2010 for the making of an application by a landlord for a termination order is within 30 days after the termination date specified in the relevant termination notice (refer section 83(2)(a) of the RTA 2010. 

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