Section 51 of the Residential Tenancies Act – Termination by Notice
A landlord may terminate a periodic tenancy, or a fixed term tenancy on or after the end date, by giving at least 90 days notice if:
Extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and—
(i) it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and
(ii) the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date.
What should be considered before terminating the tenancy using this provision in the Residential Tenancies Act 1986 (RTA)?
When considering extensive renovations to a property and potentially terminating a tenancy, consider first whether the work could be performed with the tenant living in the property, or if the tenant could simply move out for a short period of time.
If the tenant simply needed to vacate the premises for a short period of time, could they leave their belongings at the property or would they need to remove their belongings? In the case of renovating a bathroom, is there another bathroom that they have access to? In some cases, temporary bathrooms can be provided for the occupier to use during a bathroom renovation.
Consult with your tradespeople about whether it is practicable for your tenants and their belongings to stay in the property while the work is being carried out and how long the work will take. If it would be impractical for the tenant to stay, get this in writing, the reasons why, and how long the work is expected to take. You may be required to provide proof that the work was extensive enough to require the property to be vacant and the tenancy to terminate.
If the tenant can stay
If the tenant can stay at the property, consult with them about how long the work will take and what will be involved. Consider offering the tenant a rent reduction to compensate them for any inconvenience the renovation may cause. If they need to vacate for a short period of time and can do Landlords are not required to provide somewhere else for the tenants to stay, and tenants that move out while work is being performed are not required to pay rent until they are able to move back into the property. Any agreements that are made must be recorded in writing with all parties receiving a copy of the agreement.
Only give notice using this provision IF the notice is legitimate
Landlords and their property managers must not use this provision to terminate a tenancy if the reason is not legitimate, as they would be committing an unlawful act.
Landlords cannot act to terminate a tenancy without grounds
It is an unlawful act for a landlord to give notice to terminate a tenancy or apply to the Tribunal for termination knowing that they are not entitled to do so.
Retaliatory notice
A notice can be deemed ‘retaliatory’ if the Tribunal considers that the notice to terminate the tenancy is not legitimate and the motivation by the landlord is not for the reason stated. A ‘retaliatory notice’ is where a landlord gives notice to a tenant to end a tenancy in retaliation for a tenant standing up for their rights. For example, if the tenant made a complaint about the tenancy such as requesting maintenance to be carried out.
It is an unlawful act for a landlord to issue either a termination notice without grounds or to issue a retaliatory notice. The Tenancy Tribunal can award exemplary damages payable to the tenant of up to $6,500.
