A tenant who owes rent and refuses to leave puts you in a difficult position. You cannot change the locks, cut off utilities, or force them out yourself. Australian residential tenancy law requires a formal process, and skipping steps can cost you months of lost rent and legal fees.
The first formal step is a Notice to Remedy Breach. This document gives the tenant a statutory deadline to pay the arrears or vacate. If they do neither, you can apply to the tribunal for a termination order and eviction warrant.
Why You Cannot Self-Evict
You cannot physically remove a tenant, even if they owe months of rent. Self-help eviction is illegal in every Australian state and territory. Actions that constitute illegal eviction include:
- Changing the locks or denying access to the property
- Removing the tenant’s belongings
- Cutting off electricity, water, or gas
- Harassing or threatening the tenant to force them out
If you take any of these actions, the tenant can apply to the tribunal for compensation, re-entry orders, and damages. You may also face fines or criminal charges.
The only lawful way to remove a non-paying tenant is through the tribunal process, starting with a Notice to Remedy Breach.
What Is a Notice to Remedy Breach?
A Notice to Remedy Breach is a formal written notice issued under residential tenancy legislation. It notifies the tenant that they have breached the tenancy agreement by failing to pay rent and gives them a statutory period to fix the breach or vacate.
The notice must comply with the prescribed form and timeframes in your state or territory. If the tenant does not pay the arrears or leave within the notice period, you can apply to the tribunal for a termination order.
State-Specific Names and Forms
Each state uses slightly different terminology and forms. The notice serves the same function across all jurisdictions: formal written notice that the tenant must pay or leave.
How Much Notice You Must Give
The notice period depends on how much rent is owed and which state you are in. Most states use a tiered system based on the number of days the rent is overdue.
Typical notice periods range from 2 to 14 days, with shorter periods available when rent is significantly overdue or when the tenant has previously breached for non-payment.
Check your state’s residential tenancy legislation for the current thresholds, as these rules change periodically.
What the Notice Must Include
A valid Notice to Remedy Breach must include:
- Your details (landlord or agent name, contact details)
- Tenant’s details (full name, rental property address)
- Breach description (specific amount of rent owed, dates unpaid)
- Remedy period (the statutory notice period for your state)
- Consequences (if the tenant does not pay or vacate, you will apply to the tribunal)
- Date and signature
The notice must be served in accordance with the service rules in your state (typically personal service, registered post, or email if previously agreed).
If the notice contains errors, is not on the prescribed form, or does not comply with the required timeframes, the tribunal may reject your application.
What Happens After You Serve the Notice
Once the tenant receives the Notice to Remedy Breach, three outcomes are possible:
1. The tenant pays the arrears in full
If the tenant pays all outstanding rent within the notice period, the breach is remedied and the tenancy continues. You cannot terminate the lease for that breach.
2. The tenant vacates the property
If the tenant leaves before the notice period expires, you can inspect the property, claim any unpaid rent or damage from the bond, and re-let the premises.
3. The tenant does neither
If the tenant does not pay and does not leave, you can apply to the tribunal for a termination order. The tribunal will typically schedule a hearing within 2-4 weeks. If the tribunal grants the order, you can request a warrant of possession to have the sheriff or police remove the tenant.
Applying to the Tribunal
If the notice period expires and the tenant has not paid or vacated, you apply to the tribunal in your state. You will need to complete the prescribed application form, attach a copy of the Notice to Remedy Breach, provide evidence of service, and pay the filing fee (typically $50-$100).
The tribunal will issue a termination order if satisfied that:
- The tenant breached the agreement by failing to pay rent
- You served a valid Notice to Remedy Breach
- The tenant did not remedy the breach within the notice period
Once you have the termination order, you can apply for a warrant of possession if the tenant still refuses to leave.
What If the Tenant Disputes the Arrears?
If the tenant claims they do not owe the amount stated, or that you have breached the agreement (for example, failed to carry out repairs), they can dispute the notice at the tribunal hearing.
The tribunal will consider both parties’ evidence. If the tenant can prove they paid the rent, or that you failed to meet your obligations, the tribunal may refuse the termination order.
To avoid disputes, keep accurate records:
- Rent ledger showing all payments received
- Copies of rent receipts or bank statements
- Written communication with the tenant about the arrears
- Proof of service of the Notice to Remedy Breach
Serving the Notice and Following Through
Once you have the Notice to Remedy Breach, you must serve it correctly. Most states require personal service, registered post, or email (if the tenant has agreed to email service in the tenancy agreement).
Keep proof of service. If you serve by post, use registered or tracked mail. If you serve in person, have a witness present or take a photo of the notice being handed over.
After the notice period expires, apply to the tribunal immediately. Every week you wait is another week of lost rent.
If the tribunal grants a termination order and the tenant still refuses to leave, apply for the warrant of possession. The sheriff or police will attend the property and physically remove the tenant if necessary.
Throughout the process, do not engage in self-help eviction. Follow the formal steps, keep records, and let the tribunal enforce the order.
When to Get a Lawyer
You do not need a lawyer to issue a Notice to Remedy Breach or apply to the tribunal. The process is designed for landlords to handle themselves.
However, consider getting legal advice if:
- The tenant is disputing the arrears and you need to prove the debt
- The tenant has made a counter-claim (for example, for repairs or compensation)
- The arrears exceed $10,000 and you want to pursue a judgment in a higher court
- The tenant is engaging in illegal activity or causing serious damage to the property
For straightforward rent arrears, the tribunal process is fast and affordable.
How ClaimDone Helps
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Frequently Asked Questions
Can I evict a tenant immediately if they owe rent?
No. You must serve a Notice to Remedy Breach giving the tenant the statutory notice period (typically 7-14 days depending on your state). If they do not pay or leave, you can apply to the tribunal for a termination order.
What if the tenant pays part of the arrears but not all of it?
Partial payment does not remedy the breach unless you agree to accept it in full settlement. You can still apply to the tribunal for the remaining amount. However, the tribunal may consider the partial payment when deciding whether to grant a termination order.
Can I deduct unpaid rent from the bond without a tribunal order?
No. You cannot claim the bond unilaterally. You must apply to the tribunal or bond authority for a bond claim order. If the tenant disputes the claim, the tribunal will decide how the bond is divided.
How long does the tribunal eviction process take?
From serving the Notice to Remedy Breach to obtaining a warrant of possession, the process typically takes 4-8 weeks. The notice period is usually 7-14 days, the tribunal hearing is typically scheduled within 2-4 weeks, and the warrant is issued within 1-2 weeks of the termination order.
What if the tenant leaves but still owes rent?
You can claim unpaid rent from the bond. If the bond does not cover the full amount, you can apply to the tribunal for a monetary order against the tenant. If the tribunal grants the order, you can enforce it through debt recovery proceedings.
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