Darwin Community Legal Service

Termination by tenant

There are different ways to end a tenancy, depending on the type of tenancy agreement and the reason for ending the tenancy. Some common examples include:

To end a fixed term tenancy agreement (i.e. where tenancy is for a certain period of time): 14 days before the last day of a fixed term tenancy

To end a periodic tenancy agreement (i.e. where no fixed term or where fixed term has expired): 14 days

If the premises are flooded, unsafe or uninhabitable:  2 days

If an offer of public housing is made to tenant: 14 days, provided the tenant notified the landlord that they had applied for public housing before they entered into the tenancy agreement

Notice to remedy breach: If a landlord fails to rectify a notice to remedy breach within the time-frame written in that notice, you may have grounds to apply to NTCAT for termination of the tenancy.

Direct Application to NTCAT: If there has been a serious breach of the tenancy agreement by the landlord, you may apply directly to NTCAT for termination of the tenancy agreement without first issuing a breach notice on the landlord.

Terminating a tenancy early

If you have a fixed term tenancy agreement (with a finish date that has not yet expired) and are looking to move out early there are generally 4 options available to you.

You might have heard the term “break lease” used when describing ending a tenancy agreement early. Note that break lease is just one of the options available to you and you should consider other alternatives carefully before breaking the lease. Never sign a break lease form or agreement. These are against the law.

Option One: Mutual Termination

Mutual Termination means that you and the landlord have come to an agreement that you can leave the property early. This is different from a break lease as both parties in a mutual termination have agreed to end the tenancy, with no further obligations to you. This agreement needs to be in writing and state a specific date the tenancy is to end. It does not have to be a written document, but can be made up from email communications or text messages.

The benefits?

  • You will not have to pay any penalty or fee for moving out early.
  • You can both agree on a date for when the tenancy should come to an end.

The difficulties?

  • You need the landlord’s consent
  • You need the consent of anyone else signed onto the tenancy agreement (whoever else you live with)
  • You need something in writing

Option Two: Assignment

Assignment means that you pass on your rights and obligations under the tenancy agreement to another person with the landlord’s consent. This other person can be a new tenant you find through your own advertising or someone who is already named on the agreement.

An assignment is a variation of your existing tenancy agreement, so you would not be required to do an outgoing condition report and the new tenant would adopt your original ingoing condition report. The new tenant you find needs to meet the same criteria you had to meet when you first applied for the property. The landlord cannot unreasonably refuse to consent to an assignment. If you think they have unreasonably refused, you can apply to the Northern Territory Civil Administrative Tribunal  (For further information see ‘Going to NTCAT’) to have the matter resolved.

The benefits?

  • You will not have to pay any penalty or fee for an assignment.
  • You can both agree on a date for when you move out and the new person moves in
  • The landlord cannot unreasonably refuse to consent to an assignment.

The difficulties?

  • You need the landlord’s consent
  • You need the consent of anyone else signed onto the tenancy agreement (whoever else you live with)
  • It can sometimes be difficult in finding someone new to move in

Option Three: Hardship

You can make application to NTCAT to terminate tenancy on the grounds of hardship. You need to satisfy the NTCAT of two things to be successful in a hardship application:

  1. That the continuation of the tenancy would result in undue hardship to you the tenant; and
  2. That the circumstances of hardship were not reasonably foreseeable when you first entered into the tenancy agreement.

It is recommended that you seek legal advice before making a hardship application. If you are planning on making an application on grounds of hardship, it is important that you do not give your keys back to the property until NTCAT have made their decision.

The benefits?

  • You will not have to pay any penalty outside the application fee to NTCAT.
  • You do not need the landlord’s or anyone else’s consent
  • If you are successful, the NTCAT will make an order terminating the tenancy on a specific date.

The difficulties?

  • Hardship is a high bar or hurdle and in the past financial circumstances alone have not been enough to terminate the tenancy
  • You will need strong evidence to support your argument of undue hardship at NTCAT
  • Your interests in terminating the tenancy early will be weighed up against the landlord and anyone else who is signed onto the lease agreement.

Option Four: Break Lease

‘Break lease’ or ‘abandonment’ is where the tenant decides to leave the property without the landlord’s consent. As a tenant, you have the right to break lease at any time. You should give the landlord as much written notice as possible of your intention to move out and should only pay rent up until the day that you move out and return the keys. You should never sign a break lease form or agreement as these are illegal.

IMPORTANT – Breaking lease allows the landlord to seek compensation for unpaid rent up to either the end of the fixed term or until a new tenant is found (whichever is earlier). The landlord can also seek to recover other losses such as reasonable advertising costs or re-letting fee (also known as break lease).

The landlord can only seek compensation where they can prove that they have taken reasonable steps to minimise their loss. You can negotiate with the landlord about any compensation amount once new tenants move in. Any agreement for compensation should be in writing and signed. If you do not reach an agreement, the landlord may apply to the NTCAT for compensation but must do so within 3 months of when you hand back the keys.

Break leases can be difficult and there is a lot of false information about how much money a tenant has to pay and what their responsibilities are if they decide to break the lease. If you are unsure or would like clarification, please seek legal advice.

The benefits?

  • A tenant can break lease at any time
  • You do not need to landlord or agent’s consent

The difficulties?

  • You may be liable for unpaid rent while the property is vacant until either the end of your lease or when a new tenant moves in
  • You may have to pay advertising costs and a break lease fee
  • There is a risk that you could be placed on a tenancy database (blacklist). Please see our factsheet Tenancy Databases (Blacklists) for more information.

Notice of termination

To be valid, a notice of termination must be dated and signed by you and any other tenant/s named on the tenancy agreement. It must also contain:

  • the address of the premises;
  • the date you are moving out; and
  • the reason for ending the tenancy agreement.

 

Darwin Community Legal Service 2015: Non-profit community groups have permission to reproduce parts of this publication as long as the original meaning is retained and proper credit is given to DCLS, as the publisher.

Disclaimer: The information contained in this publication is a guide to the law in the Northern Territory. It is not a substitute for legal advice. You should talk to a lawyer about your particular legal issue. The information contained in this factsheet is current as at September 2014.