What to do if a tenant has breached the lease

So your tenant has breached the Lease and you want to know what to do next? Under what circumstances has your tenant breached the Lease?

  • Have they breached a fundamental obligation under the lease;
  • Are they behind in rent (i.e more than 14 days in arrears); or
  • Failure to comply with notice served by the landlord for a breach under the Lease.

Repudiated the Lease

If the tenant has breached a fundamental obligation under the lease, then this may be deemed repudiation by the courts.  A fundamental obligation under a lease may include:

  • Abandonment of the premises;
  • Abandonment of premises including a failure to pay rent and other covenant breaches;
  • Gross breaches of covenant for quiet enjoyment.

If you, the landlord, then wish to treat the breach as a repudiation you can then terminate the lease.  To terminate the lease the landlord needs to serve a notice specifically stating the breach leading to repudiation and then state the date the lease will come to an end.  After this date the Landlord can re-enter the premises.

Rental Arrears

If the tenant is in arrears by more than 14 days the Landlord can proceed with re-entering the Premises.  The items left at the premises by the lessee under clause 12.3 of the Lease become the property of the lessor and you can charge the lessee for the cost of making good the premises (back to the state and condition that the lease required the property to be kept in) and for the removal of the remaining items.

Under clause 12.6 you must do all things to avoid increasing any losses including by selling the items left by the lessee and applying any security deposit or bank guarantee to the arrears.

Failure to comply with Notice

The Landlord must ensure they serve a notice clearly stating the particular breach complained of.  If that breach can be remedied, then the Landlord can require the Tenant to remedy the breach.  If the Landlord has the right to claim compensation or the breach then the notice must state the amount of compensation being sought.

Once that notice is served the tenant has until the date stated (which must be a reasonable period of time in the circumstances) in the notice to remedy the breach or pay the required compensation then the Landlord can act on their right to re-enter the premises.

If the tenant does not comply with the notice within the period of time required then the Landlord gains the right to re-enter the premises.

If you would like to know more or seek specific advice on a particular situation please contact Kylie Fuentes at Coutts Lawyers and Conveyancers.