The following is a summary of what actions are available to a tenant where a landlord has breached the residential tenancy agreement. These apply to both fixed and periodic tenancies.
Non serious breaches/breaches capable of being remedied [s 85] - by notice
If a landlord has breached a tenancy agreement and it is possible for the landlord to remedy (fix) the breach, the tenant may serve a notice on the landlord (using Form 11). If the breach is not remedied within a specified period (at least 7 days) then the tenancy is automatically terminated by force of the notice after the expiration of at least a further 7 days [Residential Tenancies Act 1995 (SA) s 85].
The landlord may respond by applying to SACAT at any time before the date fixed by the notice or before the tenant gives up possession for an order declaring that there is no breach, that it has been remedied or that the tenancy be reinstated [s 85(2)].
Under section 85(3) even if SACAT is satisfied that the tenancy has been validly terminated it can reinstate the tenancy if satisfied that it is just and equitable to do so.
Repeated breaches [s 85AA] - by notice
If the landlord has been in breach of the same provision on 2 previous occasions in the last 12 months, the tenant may serve a notice on the landlord (using Form 12) [s 85AA]. The notice must specify the breach and give at least 7 days notice of termination [s 85AA(2)].
Serious breaches/breaches not capable of being remedied [s 88] - by application to SACAT
Where a landlord has committed a serious breach of the tenancy agreement, a tenant may apply to SACAT for termination of the agreement [s 88]. The provision under section 88 is also appropriate where the breach is one that is not capable of being remedied.
Example of breach that cannot be remedied by landlord
Yeend v Rainsford (R0533/97)The tenant applied for an order to terminate the tenancy due to the landlord’s failure to advise about a restriction to her use of the back yard of her unit due to a neighbour’s right of access across the backyard. Under sections 64 and 65 of the Residential Tenancies Act 1995 a tenant is entitled to vacant possession of a premises and must be advised by a landlord if there is any legal impediment (such as a right of way). The landlord denied that there was any breach but the Tribunal concluded that the landlord was unable to provide possession free from the neighbour’s access to the yard and as such there was a breach to the tenant’s entitlement. As this situation could not be remedied and the tenant had suffered undue hardship termination of the agreement was ordered.
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