Eviction Rights and Wrongs

Following last week's story of the mortgagee repossession in Silverwater, we thought it may be a good time to talk about what to do if you are facing eviction.

First, it's important to note that there are a number of reasons that a tenant may have a Tribunal or court order ordering them to give up possession of the premises and as with the Silverwater tenants, many of them have nothing to do with a judgement on the tenant themselves.

In NSW, a Notice of Termination is a request to leave. It has no power of its own and does not, by itself, terminate a tenancy agreement. It is not a breach of the tenancy agreement or the Act to overstay a termination notice. For more information on how a tenancy may terminate, have a look at our factsheets.

If the Tribunal terminates an agreement, it will also make an order for vacant possession.  The date of this vacant possession is the day on which the tenant is required to leave. The amount of time the Tribunal can give is mostly discretionary- that is, it can be as long or as short as the Tribunal sees fit.  Although an order can be made effective immediately, this is generally reserved for the most severe breaches, or where the tenant may have already vacated.

Tribunal Members don't really have gavels!

Once the order is made, the tenancy agreement has been terminated, and the former tenant is legally allowed to occupy the premises until the vacant possession date as an occupant. A landlord is still not allowed to enter the premises for the purpose of taking possession early, or have someone else do it for them. In fact this behaviour comes with the danger of the largest fine in the Residential Tenancies Act 2010 - $22000, potentially to each individual concerned.

After the date of vacant possession has passed, if the tenant has not vacated, the landlord may ask the CTTT for a warrant to take to the Sheriff and ask for them to enforce the possession order. This copy is a sealed envelope containing the orders- the Sheriff will not enforce the order if the envelope was not still sealed when they receive it.

The Sheriff is required to enforce the order within 28 days of receiving the warrant. They will make an appointment for the execution of the warrant, and this is usually the soonest available time- although the Sheriffs do not operate on the weekend. The Sheriff is able to enforce the order from the day that they receive it, although generally they will have pre-existing appointments to perform. Once the appointment has been made, the Sheriff will attempt to contact the tenant to let them know when enforcement will occur.

The Sheriffs are empowered to remove any occupants in the premises, with reasonably necessary force. The Sheriffs are not empowered to remove any goods from the premises- the landlord will then have to abide by the goods left behind provisions of the Residential Tenancies Act 2010 to dispose of the goods properly. Our factsheet explains this process in some detail.

To summarise:

Termination notices have no power of their own

Only the CTTT or a court can order a tenant out

Only the Sheriffs can evict a former tenant
Always get advice!