TERMINATION OF FIXED TERM RESIDENTAIL TENANCIES BY A TENANT

A fixed term lease or tenancy exists where the parties agree on a specific duration of tenancy (usually half a year or a year). S85 of the Residential Tenancies Act 1995 (SA) states that a tenant in general, cannot give notice to end a fixed term agreement, except where the landlord is found to be in breach of the agreement.

The grounds allowing a tenant to terminate a fixed term agreement :

1. The landlord enters into a contract to sell the premises within two months of the commencement of the agreement and failed to advise the tenant – s85A
2. The agreement is frustrated (i.e. premises have been destroyed, rendered uninhabitable, compulsorily acquired or no longer lawfully usable) – s86B
3. The landlord has committed a serious breach of the agreement – s88

At the end of a fixed term, if either parties do not intend to continue with the tenancy, they can provide notice of termination under s83A (for landlords) and s86A (for tenants).

In the event of a breach of the agreement, the tenant may serve a notice to terminate the agreement on the landlord providing at least seven days to remedy the breach. If the landlord does not rectify the breach within the specified period, the tenancy will be automatically terminated under s85 of the Residential Tenancies Act 1995 (SA). However, if the landlord finds themselves not in breach, they can apply to the South Australian Civil and Administrative Tribunal (SACAT) for an order to reinstate the tenancy or refuse termination before the date of termination fixed in the notice.

Where there is no breach of agreement, if either party suffer undue hardships, they can apply to SACAT to end the agreement. Tenants who are victims of domestic violence may also be able to terminate tenancy agreements.

If the fixed term has not expired but tenant no longer wants to occupy, the tenant should approach the landlord in the attempt of coming to an agreement. In some events, the landlord may allow the tenant to leave so long as the tenant gives notice, pays re-letting costs or finds a suitable replacement. The landlord can instigate proceedings against tenant if the tenant simply moves out with the assumption that the landlord will re-let the premises themselves. This is seen as a practical abandonment of the property by the tenant.

If the tenant decides to leave (or has left) without the landlord’s approval, the landlord is entitled to recover certain costs, only if they have tried to mitigate the loss by seeking a replacement tenant as soon as possible.

If you require advice regarding residential tenancies or property matters more generally, Straits Lawyers are here to help. We are now offering online services in both English and Chinese.



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Please note that this article does not constitute legal advice and Straits Lawyers will not be legally responsible for any actions you take based on this article.