The legislation is different from state to state, but they are all along similar lines, although there are different time-frames involved.
Each state or territory's residential tenancy legislation will include the following details:
- The rules for notifying the tenant that they have breached the rental agreement:
- The timeframe that a tenant must be given to remedy the breach
- The rules for issuing a notice of termination of the tenancy if they fail to remedy the breach
- The grounds upon which a landlord can terminate a tenancy
If your tenant has breached the terms of the tenancy agreement, then it's important to issue a breach notice as soon as possible as this is a vital step in the eviction process. Failure to issue a breach notice, giving the tenant the time-frame to remedy the breach that has been outlined in the state legislation and you won't be able to commence eviction proceedings.
The state or territory's official breach of notice form must be issued and delivered in a manner set out by the relevant legislation. This may include giving the notice to the tenant personally, or posting it to them. In most cases your property manager will be posting the breach notice, and legally must allow enough time for the notice to be delivered before the breach period can start.
On the notice to remedy breach it lists where they?re paid to and how much rent they must pay to stop the breach. So if they don't pay that amount by the due date, on the next day we then issue a notice to leave. If they?re paid up by the cut-off date of the notice to leave, all is forgiven. If not, then it's time to take the process to the next level.
If you have followed all of the necessary legal steps, but your tenant refuses to vacate the premises by the date specified on the notice of termination, then you can't simply throw them out. You must go down the relevant legal channels to gain permission to take back control of your property.
In Queensland for example, a landlord can apply to the Queensland Civil and Administrative Tribunal (QCAT) for a termination order and a Warrant of Possession and this application must be made within 14 days of the eviction date stipulated on the notice of termination.
If you fail to apply to QCAT within this 14-day period then you have to go back to square one again.
Once issued, the warrant will authorise a police officer or stated authorised person to enter the premises and make the tenant leave. (Usually accompanied by your Property Manager & a contractor where locks would be changed at this time.
QCAT sends a copy of the warrant to the local police station and they have about 14 days in which the police then go out and serve the warrant on the tenant, adding to that the police can forcibly remove tenants who still refuse to leave.
It's also worth noting your state or territory's regulations when it comes to dealing with any property that evicted tenants have left behind. You may well be required to organise the removal and storage of furniture.
And that is again why tenant default insurance is extremely important, because these sorts of things can run into hundreds, if not thousands, of dollars.
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If you do a quick google search then you can find multiple pieces of information.
