13 April 2021

How to correctly end a tenancy

Western Australia's temporary changes to renting laws due to COVID-19 ended on Sunday 28 March 2021. From Monday 29 March 2021, the usual rental laws under the Residential Tenancies Act 1987 (WA) came back into force. This bulletin will help you identify the steps necessary to legally end a tenancy.

When does a tenancy end?

A residential tenancy will end when a tenant vacates the premises under a notice of termination lawfully issued by the landlord or when a court orders a termination.

What does a valid termination notice have to include?

When you issue a notice of termination for a tenancy agreement, there are some specific requirements you must follow to make it valid. It must:

• be in writing on the appropriate prescribed form;
• specify the address of the property;
• specify the reason, if there is one, for terminating the tenancy;
• state the exact vacate date; and
• be signed by you or the property manager.

These are the prescribed forms commonly used to terminate a tenancy agreement:

• Notice of termination for non-payment of rent (Form 1A) - used after issued a 14-day breach of agreement notice.
• Notice of termination for non-payment of rent (Form 1B) - used if no breach notice was issued.
• Notice of termination (Form 1C) - used for the seven listed non-rent related reasons for terminating a tenancy agreement.

If your reason for terminating a tenancy does not appear in these forms, contact Consumer Protection on 1300 304 054 for advice.

What timeframes make a notice valid?

There are different timeframes for terminating a tenancy agreement depending on the reason for the termination.

A fixed-term tenancy agreement does not automatically end on the listed expiry date and requires advance written notice of the intention to terminate the agreement, provided by either the landlord or the tenant. When the Form 1C notice is issued by you, the vacate date must be at least 30 days after the tenant should receive the notice. The vacate date cannot be before the expiry date of the agreement. If the vacate date is after the expiry date of the agreement, the tenant can choose to vacate the property at any time after the expiry date but before the vacate date.

Similarly, you may choose to terminate a periodic tenancy without having to provide a reason why. This is perhaps the most common choice for ending a periodic tenancy. When the Form 1C notice is issued by you, the vacate date must be at least 60 days after the tenant should receive the notice.

A notice may not be valid if it does not allow for the correct method of delivery, or count of days for receipt of the notice or for the tenant to vacate. This means that the notice may not be lawfully enforceable, and the Magistrates Court may dismiss your application.

If the tenant does not vacate the premises

If the tenant does not vacate the premises on the vacate date, you need to apply to the Magistrates Court for an order terminating the tenancy and requiring the tenant to provide you with vacant possession of the premises by a specific date.

The tenant must continue to pay rent if they remain in the premises.

You need to apply to court within 30 days from the day after the tenant should have vacated the premises. The allocation of a hearing date will depend upon the demand for the associated court's assistance. This allocation can range from several weeks to several months.

If the tenant does not vacate by the date in the court order and there are no further court proceedings about the termination, you will need to seek the court's bailiff services to remove the tenant from the premises and change the locks. A tenant cannot legally be removed from the premises, nor can the locks be changed, without this bailiff assistance.

Can a tenant stop a termination?

A tenant has the following options to try to stop a termination and eviction action:

• Try to reach a written agreement with you, perhaps extending the notice period.
• Within seven days of receiving a 60-day periodic tenancy termination notice, the tenant can apply to the Magistrates Court for an order to extend the period of notice for another 60 days. The magistrate may extend the notice period, however they may also order compensation to you as a result of the extension. The magistrate can decide the agreement is not terminated. 
• Pay the full amount of the rent before the vacate date (Form 1B only).
• The day before the court date, pay the full amount of the rent and reimburse you for the court application fee (Form 1B only).

If an application is made to court for termination of a tenancy, both sides will have the option of stating their case. The magistrate may declare the tenancy is terminated, is not terminated, or that any order is suspended for a specified period of time.

Residential Rent Relief Grant Scheme

If a tenant is experiencing rental hardship due to COVID-19, they may be eligible for assistance via our Residential Rent Relief Grant Scheme. To assess their eligibility, they can try our two-minute Residential Rent Relief Grant Scheme eligibility check.

Helpful information and resources

The below additional resources may help you with terminating a tenancy:

• Lessor ending a tenancy
• Renting out your property - a lessor's guide
• Residential tenancies - COVID-19 response
• COVID-19 Ending a fixed-term tenancy agreement
• Homeless and emergency accommodation Western Australia