(a) ... and you're a co-tenant or a head tenant

If a tenant is a co-tenant or head tenant, they are covered by the Residential Tenancies Act and the procedure for eviction is clear. The eviction process consists of four parts:

1. The landlord must give a notice of termination in writing which states the reason that notice is being given. The period of notice they have to give you depends on whether you are in a fixed-term or continuing agreement:

• If you are on a fixed-term agreement, the landlord/agent only has to give you 14 days written notice that the agreement will terminate at the end of the fixed term. However, they cannot make you leave during the fixed term unless you have seriously or persistently breached the lease.

• After the fixed term of the agreement has expired, your lease automatically becomes what is known as a continuing agreement. From this point, the landlord must give you 60 days written notice of termination for a no-cause eviction (i.e. you haven't breached the lease), or 30 days if the place has been sold with vacant possession. If you think the landlord is evicting you as a pay back for asserting your rights, you can challenge the eviction in the Tribunal. Contact your local tenancy service for further advice.

• If you have breached the lease either during the fixed-term or continuing agreement, the landlord only has to give you 14 days written notice of a termination. Examples of a breach are if you are more than 14 days behind in rent, or you have seriously damaged the property.

2. If you have not moved out by the date specified on the notice of termination, the landlord can (within 30 days) apply to the Consumer, Trader and Tenancy Tribunal for orders of termination and possession of the premises, i.e. an eviction order. A hearing will be held at the Tribunal and a decision will be made as to whether or not you should be evicted. The Tribunal will look at the circumstances of the case in making a decision, including the nature of the breach (if there was one) and the reasons why the breach may have occurred, for example, if you are experiencing hardship which may have affected your ability to keep up-to-date with the rent.

Be sure to attend the hearing as you might be able to negotiate to have the notice withdrawn or for extra time to move out. If you don't turn up and take the opportunity to explain the problem, you can guarantee the case will go against you. It will help your claims if you have been able to catch up with the rent before the hearing. Contact the Tenants' Union Hotline or your local tenants' service for advice about how to prepare for a Tribunal hearing (see Contact Points).

3. If the Tribunal terminates the agreement, it will make an order ending the agreement and an order giving possession of the premises to the landlord. The possession order will usually give you between 5 and 28 days‘ to leave the premises, but not in all cases. If you’re not out by the date in the order, the landlord can get a ‘warrant for possession’ from the registry of the tribunal and go t the Sheriff’s Office. A Sheriff can remove you from the premises, with the police help if needed. If the landlord/agent attempts to do this before the Tribunal makes an order of possession, they are committing an illegal act. This is known as a lock out and can result in a fine of up to $22,000 for your landlord.

4. The agent or landlord should not remove your goods from the premises for at least two working days after the enforcement of the warrant. It is very important to collect your goods within this time. You should arrange with the landlord for a time to collect them.

• If two days have elapsed after you have left, then the landlord may store the goods of monetary value and destroy the rest (this includes valuable documents such as photos). The landlord must give you written notice that your goods have been stored. The landlord should also publish in a newspaper within seven days after the goods are stored a notice that the goods are being held.

• If you fail to collect your goods after they have been stored by the landlord for 30 days, the landlord can dispose of the goods by public auction. He or she can retain the reasonable costs of removal, storage and sale of the goods, but must return the balance of the monies to you.

• It is illegal for the landlord to refuse to return a former tenant’s goods because they owe rent or monies other than the reasonable costs of removal and storage. If the landlord refuses to allow you to collect your goods, you should apply to the Consumer, Trader and Tenancy Tribunal for an order that the agent or landlord give you access to your goods.

• If the agent or landlord disposes of your goods illegally or damages them, you can apply to the Local Court for compensation. You should contact your local community legal centre for further advice. (See contact points)
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(b)... and you're a subtenant

A head tenant must give their subtenants the same notice as the landlord is required to give them (i.e. 60 days or 14 days as explained above). So, when a head tenant gets the news that the landlord is terminating the tenancy, they must pass the notice on to you straight away - and this notice should be in writing. After that, the same procedure as in the above scenario applies.
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(c) ... and you're a boarder / lodger

As a boarder or lodger you are not covered by the Residential Tenancies Act and have virtually no protection against eviction. Generally, only 'reasonable' notice is required before you can be required to leave. What is reasonable depends on the particular circumstances. The only way to determine whether you were given reasonable notice is to sue the landlord in court. A court would take into account many things including: the length of occupation; the interval of rent payment; the type of premises and the difficulty moving. Generally, reasonable notice would be the same period for which you pay your rent (e.g. if you pay rent fortnightly, two weeks notice would be required). If you decided to take action in the Local Court, the only remedy you could obtain would be compensation for breach of contract. Court action is expensive and will take too long to solve the immediate problem of losing your housing.

The story gets worse. As a boarder or lodger, you have no protection against being locked out of your premises. It is an offence to physically evict someone who has good reason to be on the premises, however, this does not stop the landlord locking you out when you pop down to the corner shop to buy some milk!

There is little you can do to protect your possessions if you are locked out. The landlord could be charged with stealing if they refuse to return your goods. It is possible to sue the landlord in court but this can be expensive. Contact the Tenants' Union Hotline, your local tenants' service or a community legal centre for advice in this situation (See Contact Points).

If you are threatened with eviction, there is one argument you should keep in mind. You may in fact be a subtenant rather that a lodger or boarder and be covered by the Residential Tenancies Act. It is important to look at the rights and obligations that you have, rather than what the landlord has labelled the agreement, such as a licence rather than a residential tenancy agreement. If in doubt, you can apply to the Consumer, Trader and Tenancy Tribunal for an order regarding an issue such as the landlord to stop breaching your right to quiet enjoyment of the premise, and the Tribunal will determine whether you are covered by the Act as part of the proceedings. If the application is successful and the landlord or head tenant still locks you out, they may face a fine of up to $22,000. If you have been recognised as a tenant, the landlord must also deal with your possessions according to the Residential Tenancies Act. (see scenario 1. a)