Eviction from a Non–Rent Controlled Property (Landlord & Tenant Act 1974)

If your rental unit has an Annual Rental Value (ARV) of $22,800 or more, it is not covered by Rent Control – but you still have important legal rights. Your landlord cannot simply “kick you out” because they feel like it. They must follow the Landlord & Tenant Act 1974 and the proper court process.

Unlike rent-controlled properties (which fall under the Rent Increases (Domestic Premises) Control Act 1978), landlords of non–rent controlled properties have more flexibility to end a tenancy and evict a tenant. However, they can only do so on legal grounds and by following the correct steps.

When Can Your Landlord End Your Tenancy?

Under section 13 of the Landlord & Tenant Act 1974, your landlord may seek to terminate your tenancy if:

• You have failed to comply with the terms and conditions of your tenancy agreement (for example: serious or repeated late payment of rent, damage to the property, illegal sub-letting);

• You become bankrupt (or the business tenant goes into liquidation); or

• An event occurs that makes the tenancy unworkable or void – for example, serious damage to the property or your behaviour becoming a nuisance to neighbours.
  

If you have rent arrears, your landlord will often try to recover the money and may also start the process to seek possession (eviction). They must still follow the legal procedure.

Tenants Also Have Rights If the Landlord Breaches the Agreement

Even though this Act focuses on landlord rights, you also have protections under contract law. If your landlord is breaching the tenancy agreement or the law, for example by:

• Failing to carry out repairs they are responsible for; or

• Entering the property without proper notice,

you can:

• Formally notify your landlord of the breach and give them a reasonable time to fix it; and

• End your tenancy if they do not correct the breach within that time.

This is usually done in writing and should be kept for your records.

What Is a Notice to Quit?

A Notice to Quit is a formal legal notice used when a landlord wants:

• You to fix a breach of your tenancy agreement within a set time; or

• You to leave the property by a certain date if the breach is serious.
  

Before your landlord can legally evict you, section 13 of the Landlord & Tenant Act 1974 requires that they:

• Apply to the court for permission to issue a Notice to Quit Order; and

• Once granted, serve the Notice to Quit on you.
  

The Notice to Quit should:

• Explain the reason (for example, rent arrears or serious damage);

• Give you a deadline to fix the problem (for example, pay arrears or repair damage); or

• In serious cases, give you a date by which you must leave (for example, 30 days).
  

If the breach is very serious , for example, no rent has been paid for many months, or there is a serious safety risk , the court may allow the landlord to skip the “fix it” period and go straight to telling you to leave by a certain date.

Just as a landlord can serve a Notice to Quit on a tenant, a tenant can also serve a Notice to Quit on a landlord to:

• Give formal notice that the landlord is in breach of the tenancy agreement or the Landlord & Tenant Act 1974; and

• State that you will end the tenancy if the issue is not fixed by a given date.

Challenging a Notice to Quit: “Oppressive” Evictions

If you receive a Notice to Quit and you believe the landlord’s actions are unfair or heavy-handed, you can apply to the court to pause (or “stay”) the eviction.

Under the Landlord & Tenant Act 1974, a landlord’s actions may be considered “oppressive” if, for example:

• You have taken, or are currently taking, reasonable steps to fix the breach;

• The problem is trivial (for example, minor marks on a wall); or

• It would be unreasonable to terminate the tenancy (for example, one slightly late rent payment where everything else is up to date).
  

If you want to challenge the Notice to Quit as oppressive, Consumer Affairs strongly recommends that you:

• Act immediately after receiving the Notice to Quit – do not wait until the deadline passes; and

• File your application with the court to pause the eviction within the legal timeframe.
  

Under the Act, you must give your landlord formal notice within 12 days that you intend to dispute the Notice to Quit. If you miss this window, it is more likely that:

• Your landlord will apply for a Possession Order; and

• The court will look less favourably on a late attempt to challenge the eviction.
  

Because you may incur court and legal fees, you should first review carefully:

• Whether the grounds in the Notice to Quit are valid;

• Whether your landlord’s conduct is truly oppressive; and

• What evidence you can provide to support your position.
  

If you accept that your landlord has a valid claim (for example, you know you are heavily behind on rent), you may decide not to dispute the Notice to Quit and instead focus on finding alternative housing or negotiating a payment plan.

What Happens If You Do Not Leave: Possession Orders

If you do not leave by the date stated in the Notice to Quit and do not correct the breach, your landlord can apply to the court for an Order for Possession.

• When deciding whether to grant a Possession Order, the court will consider:

• Whether the landlord acted reasonably in starting legal proceedings;

• Whether the landlord told you about the breach before going to court;

• Whether you had a reasonable chance to fix the problem; and

• If you did fix the breach, whether you have continued to comply with the tenancy agreement.
  

If the court finds that you have repeatedly breached your obligations under the tenancy agreement or the Landlord & Tenant Act 1974, it may:

• Grant the landlord an Order for Possession;

• Treat the tenancy as terminated; and

• Order you to fix the harm caused, such as paying all outstanding rent and repairing damage.
  

The Possession Order will usually specify a date by which you must leave. The court can grant different types of orders:

• Outright Possession Order

  • You must leave the property by a set date.

  • If you do not leave, your landlord can apply for a Warrant of Eviction.
    

• Suspended Possession Order

  • The court sets a possession date but postpones it as long as you keep to agreed conditions (for example, paying current rent plus an amount each month towards arrears).

  • If you break the agreement, your landlord can ask the court to issue a Warrant of Eviction.

  • If the order is more than 6 years old, your landlord will usually need permission from the court before enforcing it.

Postponed Possession Order

• Similar to a suspended order, but no specific date is fixed in advance.

• If your landlord believes you have broken the conditions, they must:

  • Write to you at least 14 days before applying to court;

  • Explain the alleged breach (for example, how much rent is owed or what damage is unrepaired); and

  • Inform you that they intend to apply for a possession date and a Warrant of Eviction.

• If you disagree with the landlord’s claims, you should reply within 7 days, explain why they are wrong, and provide any supporting evidence. This may stop or delay further action.
  

If you still do not leave after a Possession Order takes effect, your landlord can apply for a Warrant of Eviction, which allows a bailiff to attend and remove you from the property. In some limited cases (for example, where you share living accommodation with your landlord), a Warrant may not be required.

Your Right to Defend the Claim in Court

If your landlord applies for a Possession Order, you will receive:

• A copy of the landlord’s claim form (their application to the court); and

• A defence form, which you can use to explain why the court should not grant possession, or why the eviction should be paused or delayed.
  

If you want to fight or delay the eviction, Consumer Affairs recommends that you:

• Complete the defence form fully and truthfully;

• Attach as much supporting evidence as possible (for example, bank statements proving rent was paid, photos, emails, letters); and

• Submit it within the deadline stated on the form (usually 12 days).
  

If you miss the deadline, you should still submit your defence as soon as possible, but the court may be less likely to refuse or delay the Possession Order.

If you struggle with the defence form, you can:

• Type or write your defence in a separate letter;

• Write your case number (from the claim form) on the letter;

• Attach the letter and all evidence to the defence form; and

• Keep copies and obtain proof of submission to the court.
  

The more clearly you explain your situation and the more evidence you provide, the better the court can assess whether:

• You have a strong defence; and/or

• Your landlord’s behaviour is oppressive.

The Court Hearing: Attendance Is Critical

After your defence is filed, the court will schedule a possession hearing and notify both you and your landlord of the date, time, and place.

Consumer Affairs cannot overstate how important it is that you attend this hearing. This is your chance to:

• Tell the court your side of the story; and

• Answer any questions the judge may have.
  

If you do not attend and do not give a good reason, the court may:

• Ignore your defence; and

• Grant your landlord a Possession Order “in default” (automatically).
  

If you cannot attend (for example, because of illness, an emergency, or a requirement to self-isolate), you should:

• Contact the court immediately to explain; and

• Provide supporting evidence (for example, a medical certificate, police report, or other documentation).
  

The court may then:

• Rearrange the hearing; and/or

• Allow you to attend by phone or video.
  

If you miss a hearing due to a genuine emergency and could not give advance notice (for example, a car accident on the way to court), Consumer Affairs recommends that you:

• Contact the court as soon as possible;

• Provide supporting evidence; and

• Ask for the judgment to be set aside and the case to be relisted for a new hearing.

  
  

After the Possession Hearing: Decisions and Appeals

After the hearing, the court will send both you and your landlord a written decision. That decision might:

• Postpone the eviction, allowing you extra time to find somewhere else to live;

• Stop the eviction, if the court decides the landlord’s case has no merit; or

• Allow you to stay only if you meet certain conditions, such as paying rent on time and sticking to a repayment plan.
  

If the court rejects your defence and orders you to leave, the Possession Order will usually give you a date by which you must move out.

You can appeal the court’s decision, but only if you can show that the court made a legal or procedural mistake (for example, failed to consider key evidence or misapplied the law). Appeals are difficult to win and can be expensive, as you may have to pay:

• Court filing fees; and

• Legal costs for your own lawyer and possibly your landlord’s lawyer.
  

If you do not leave by the date in the Possession Order, your landlord can apply for a Warrant of Eviction, which allows a bailiff to attend your home and remove you. (For more detail on Warrants of Eviction, you would refer back to the relevant section in your guide.)