The following is a summary of what actions are available to a landlord where a tenant has breached the residential tenancy agreement. Most of these apply to both fixed and periodic tenancies. At the end of a fixed term, a landlord may also terminate a tenancy for a prescribed reason which includes that the tenant has been given 2 notices under section 80 for the same or substantially similar breach by the tenant, and has then breached the agreement in the same or substantially similar way a third time [Residential Tenancies Act 1995 (SA) s 83A and reg 16].
From 1 July 2024, new provisions in the Residential Tenancies Act 1995 (SA) seek to ensure that a landlord is genuine, and not retaliatory, in their reasons for terminating a tenancy. A tenant may apply to SACAT for a declaration that a landlord's termination notice has no effect or refusing a landlord's application for termination if it is retaliatory in nature [s 90A(1)]. SACAT may find that the notice or application is retaliatory in nature if satisfied that the landlord was partly motivated to terminate because of a SACAT order, or because the tenant applied or proposed to apply to SACAT for an order or take an action or enforce a right under tenancy [s 90A(3)]. New provisions also seek to protect a tenant or a domestic associate of a tenant who normally or regularly resides in the premises and has been subjected to domestic abuse from suffering the consequences of a breach caused by an act of a person who subjected them to domestic abuse, The tenant in these circumstances may apply for an order that the notice of termination is invalid [s 90B(1)]. This application must be made within 30 days of the notice of termination [s 90B(2)].
Unpaid rent [s 80] – by notice
Where the rent (or any part of the rent) remains unpaid for at least 14 days the landlord may give a notice (Form 5– also referred to as a breach notice) to the tenant requiring them to remedy the breach. The tenant then has 7 clear days to pay the rent owing. If the rent is not paid within the time given the tenancy terminates automatically [Residential Tenancies Act 1996 (SA) s 80(2)(c)]. This is distinct from other circumstances when a tenant breaches an agreement [see s 80(1)], where the tenant is given a further 7 days to leave. See below, Other breaches.
However, the breach notice will be ineffectual unless served the day after rent becomes due. For example, if rent has been paid until 1 September the rent is next due on 2 September. This means that a tenant would not be in arrears until 3 September, making the earliest date for which a notice can be issued 17 September.
Other breaches [s 80] – by notice
For breaches other than non-payment of rent and serious breaches, the landlord must give the tenant at least 7 days notice (Form 5) to remedy the breach. The tenant then has a further 7 days to vacate if the breach is not rectified [Residential Tenancies Act 1995 (SA) s 80(1)(b)(ii)].
If a tenant wishes to preserve the tenancy, the tenant may apply to SACAT for an order declaring that they are not in breach, or have remedied the breach or to have the tenancy reinstated [see 80(4)]. Such an application can be made at any time after receiving the notice but before giving vacant possession to the landlord. There is provision under section 80(5) for SACAT to reinstate a tenancy, even where satisfied that it has been validly terminated, if SACAT concludes that it would be just and equitable to reinstate the tenancy.
Repeated failure to pay rent [s 87(1a)] – by application to SACAT
A landlord may apply to SACAT to terminate a residential tenancy agreement where the tenant has failed to pay rent and has already been given notice under section 80 on at least 2 previous occasions in the 12 months. However, under section 87(1b) SACAT may make alternative orders requiring the tenant to comply with specified conditions relating to payment of rent.
Serious breaches [s 87(1)] – by application to SACAT
A landlord may apply to SACAT for an order terminating a tenancy and granting possession of the premises where there has been a breach of the agreement that is sufficiently serious to justify termination of the agreement [s 87(1)] .This procedure may be preferable to termination by notice under section 80 where the breach is not capable of being remedied.
Serious damage or injury [s 87(2)] – by application to SACAT
A landlord may apply to SACAT to terminate a residential tenancy agreement if the tenant intentionally or recklessly causes, or is likely to cause, serious damage to the premises or injury to the landlord or people in adjacent premises [s 87(2)].
Example of an breach that cannot be rememdied by tenant
Yeomans v Janoska & Parry (RT10/1337)The tenants were responsible for serious damage to the rental premises including a hole in the front door and a bedroom screen that was destroyed and removed during an altercation. In addition, there were frequent loud arguments between the tenants which disturbed their neighbours. The male tenant had threatened several of the neighbours, some of who were elderly, with violence to themselves or, in one case, to a pet dog. The Tribunal found that the tenancy agreement had been breached under section 87(2) and ordered termination of the agreement.
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