In this series of blogs we explore the key aspects of a residential tenancy agreement (“RTA”), the statutory protections they provide, how they can come to an end, how they can be breached and what can be done to remedy those breaches.
In the previous instalments we looked at what an RTA is, their key features, how they might be brought into existence and come to an end. In this instalment we provide an overview of the types of application that might be brought before the Court when things don’t go to plan, with a particular focus on eviction proceedings.
Breaches by a tenant
A tenant may breach the terms of a RTA for any number of reasons. The most common breaches that we see in practice are non-payment of rent, anti-social behaviour or tenants causing or permitting the rental property to fall into a state of disrepair.
A tenant’s breach does not automatically terminate the RTA. Any breach, however serious, does not entitle a landlord to evict their tenant by themselves. A landlord must obtain orders from the Court as to the termination of the RTA and the eviction of the tenant where a breach has occurred.
Notice of Breach
Before eviction proceedings can be commenced, a landlord must serve notice on the tenant requiring the tenant to remedy the breach (or take reasonable steps towards doing so) within (a minimum of) 7 days of receipt of that notice. It is only after such a notice has been served on the tenant (and the tenant fails to remedy the breach) that the landlord can begin eviction proceedings.
A landlord may then apply to the Court in order to seek the termination of the RTA and the tenant’s eviction from the property. Other orders, such as for the payment of any rental arrears, can also be sought.
Before granting orders as to termination and eviction, the Court will consider whether the tenant’s breaches are capable of being remedied and whether the breaches are sufficiently serious to merit termination and eviction. If the Court takes the view that the breaches can be easily remedied, or are otherwise not sufficiently serious, the Court may refuse the landlord’s application evict the tenant. In such circumstances, it remains open to the Court to vary the terms of the lease, or adjust the rights of the parties to it, to ensure compliance going forward.
What is a sufficiently serious breach?
Whilst every case is decided on its own facts, the Court will usually grant a landlord’s application in cases involving:
- continuing non-payment of rent without reasonable excuse;
- multiple noise complaints;
- aggressive/abusive behaviour on the part of tenants; and
- circumstances where the tenant has caused significant damage to the property.
Failure to give vacant possession
Eviction proceedings can also be issued in circumstances where a tenant fails to give vacant possession of a property to their landlord either at the expiration of a fixed term of an RTA or upon the expiration of any notice to quit.
Stay of execution of eviction order
Even where an eviction order is made, the Court will invariably grant a stay of the execution of that order so as to allow the tenant a reasonable period of time to find alternative lodgings. Before granting a stay, the Court will consider a number of factors including (but not limited to):
- the nature of the breach;
- any steps taken by the tenant to remedy the breach;
- the means of the tenant and whether alternative accommodation is available to them; and
- where the balance of hardship would lie between the landlord and tenant in the event that the eviction was ordered.
Breaches by a Landlord
A tenant may also issue proceedings seeking to vary the terms of, or otherwise terminate, their RTA where the landlord has breached the terms of the RTA. There is no need for a tenant to issue a notice to their landlord before issuing such proceedings.
Where the property which is subject to the RTA is rendered uninhabitable due to any event (other than a malicious act on the part of the tenant) an application may be made to the Court for orders to vary the terms or, or otherwise terminate, the RTA. A tenant is not required to pay rent or any other sum payable under the RTA for any period during which the property remains uninhabitable.
Where a breach of an RTA occurs the party affected by the breach should bring it to the attention of the party in breach as soon as possible to see whether it is capable of being remedied without referring the matter to the Court; early engagement can often see disputes resolved satisfactorily without the need for incurring the expense of engaging a lawyer or issuing court proceedings.
Where it is apparent that the breach is too serious, or otherwise unlikely to be capable of being remedied, the party affected by the breach should issue proceedings as soon as possible to avoid any suggestion that they have accepted the breach and are content for the tenancy to continue notwithstanding. The party affected by the breach should also gather and retain any evidence that is likely to be relevant to the breach complained of. This might include rent book entries, complaints from neighbours, logs of police attendances at the property and/or photographs showing the condition of the property.