Residential Tenancy Termination (Landlord)

When must a landlord apply to NCAT if the tenant stays?: An application for a termination order must be made after the termination date in the notice, only if vacant possession has not been given, and within 30 days after that termination date (s 83(2) and cl 39(2)). For most notices on the landlord's grounds the Tribunal must make the order if satisfied the notice was given in accordance with the Act, the ground is genuine and the tenant has not vacated (s 89A); for a breach notice under s 87C it decides whether the breach justifies termination (s 87C(3) and (6)), and every termination order must be accompanied by an order for possession (s 83(1)).

Jurisdiction: New South Wales. Tenancy cases are heard by the NSW Civil and Administrative Tribunal in its Consumer and Commercial Division, which lists them first for conciliation and hearing. Three forks cover non-payment of rent or charges (s 88), the non-breach grounds (ss 87D to 87M) and tenants in continual possession for 20 years or more (s 94).

The Process at a Glance: The file opens with intake, a conflict check and an audit of the tenancy agreement: its type, any fixed term, how long the tenant has been in possession and the standard form terms. The practitioner identifies the statutory ground, assembles the supporting documents the regulations require, calculates the termination date and serves the notice with the termination information statement by a method s 223 allows. During the notice period the file tracks any payment of arrears, any early exit notice from a fixed term tenant and any tenant application to NCAT disputing the notice or alleging a retaliatory notice. If the tenant does not give vacant possession, the NCAT application is filed within 30 days after the termination date. NCAT lists it for conciliation and hearing and, if it terminates the agreement, makes an order for possession that is enforced by a warrant for possession.

Key Legislation and Case Law: Residential Tenancies Act 2010 (NSW) ss 82 and 83 (termination notices and termination orders), 84 to 87N (the landlord's grounds, supporting documents, the genuine-ground offence in s 86, the tenancy exclusion period offence in s 87, and the 20-year rule in s 87B), 88 to 89A (non-payment notices, repayment and termination orders), 94 (long-term tenancies), 110B (tenant's early exit), 111 and 115 (disputes about termination notices and retaliatory notices) and 223 (service). Residential Tenancies Regulation 2019 (NSW) cl 23A to 23I (termination information statement and supporting documents), cl 39 (time limits for Tribunal applications) and cl 40 (monetary limits of $30,000 for rental bond orders and $15,000 otherwise).

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