Terminating Your Lease

The below information has been directly sourced from Safe Tenancy WA. We recommend you seek independent legal advice to understanding your legal rights with regards to your lease.

New laws introduced in 2019 in Western Australia provide a range of options to people experiencing domestic violence on managing their tenancy agreement, including being able to terminate a tenancy agreement (lease) on domestic violence grounds. Remember, whatever path you choose, your safety is paramount and there are support agencies around to help you.

Tenants affected by family and domestic violence in WA are able to:

  • GO – leave a tenancy agreement without going to court and with as little as seven (7) days’ notice (you can leave right away for safety but will need to pay rent until the end of the notice period)
  • STAY – apply to court to have a perpetrator’s name removed from a lease
  • SECURE – Make a rental home safer through lock changes or security upgrades
  • RESOLVE – Sort out disputes about property damage, unpaid rent or bonds
  • Seek removal from, or avoid being listed on, a tenancy database if the listing was because of family or domestic violence.

When you want or need to break a tenancy agreement due to family or domestic violence. What forms / evidence do I need to provide?

If you or your dependant have been affected by family violence during the tenancy, you can give the lessor/property manager at least seven (7) days’ notice that you want or need to terminate your interest in the agreement and vacate with immediate effect.

You must provide the lessor/property manager with a:

  • ‘Notice of termination’ on the grounds of family or domestic violence for a:
  • AND one of the following evidence documents:
    • an official Consumer Protection Family violence report – Evidence form signed by a designated professional who can be:
      • a doctor;
      • a psychologist;
      • a social worker;
      • the person in charge of a women’s refuge;
      • a police officer;
      • a child protection worker;
      • a family support worker; or
      • a person in charge of an Aboriginal health, welfare or legal organisation.
    • a Domestic Violence Order (includes Family Violence Restraining Order);
    • a family court injunction or an application for a family court injunction;
    • a copy of a prosecution notice or an indictment detailing a charge relating to family violence having been committed against you or your dependant; or

The lessor/property manager cannot challenge your request to break the agreement if the notice and supporting evidence have been completed properly and provided with at least seven (7) days’ notice.  If the documents are not completed properly lessor/property manager can appeal the termination notice in court.

If there are co-tenants on the lease

If you issue a Notice of Termination of Tenant’s Interest in Residential Tenancy Agreement on Grounds of Family Violence the lessor/property manager must provide a copy of the form (but not accompanying evidence) to any co-tenants and give them seven (7) days to decide if they want to continue with the tenancy agreement.  If a co-tenant wants to stay the lessor/property manager must let the lease continue. If the co-tenant decides to leave they must give the lessor/property manager 21 days’ notice.

The lessor/property manager is required to keep any family or domestic violence evidence (eg. Consumer Protection family violence report – evidence form, copy of restraining order, family court order) you provide in a safe and secure manner. If they disclose the details, for example to a co-tenant, the lessor/property manager can be prosecuted.

Please note, if the alleged perpetrator is a co-tenant, the lessor/property manager cannot make them leave if you leave. If an alleged perpetrator wants to remain in the tenancy, the lease continues.

If the alleged perpetrator is a co-tenant, you may need to consider having a safety plan in place before issuing a Notice of Termination of Tenant’s Interest in Residential Tenancy Agreement on Grounds of Family Violence. As the lessor/property manager is obligated to give a copy of the termination notice to any co-tenants, the perpetrator would become aware of your intention. If you or your property is threatened, harassed, or intimidated and you are concerned that it will continue, you may also want to consider having a Restraining Order taken out against the person concerned – you can do this online.

If you want to stay and remove the perpetrator from the agreement

If a perpetrator is named on the tenancy agreement and you want to stay, you can apply to the court (using a Residential Tenancies Form 12) to have the perpetrator removed from the agreement. The lessor/property manager and any co-tenants will find out about this hearing via a notice from the court.

Dealing with debt and liability

In the case of damage to the premises or unpaid rent because of family and domestic violence the Magistrate can assign liability to the perpetrator. Either a vacating or remaining tenant will need to apply for this court order. If there is no court order, all tenants remain jointly liable for any damages and or debt.

This provision can only be used if a tenant’s interest in the tenancy has been terminated due to family and domestic violence circumstances. A Notice of Termination of Tenant’s Interest in Residential Tenancy Agreement on Grounds of Family Violence and required supporting evidence must have been provided to the lessor/property manager.

The court can also make an order to pay out some of the security bond

  • to any tenant who is leaving the tenancy, if they don’t owe the lessor/property manager any money; and/or
  • to the lessor/property manager if they are owed money for any damages and debt.

If part of the security bond is paid out and the tenancy is ongoing, the lessor/property manager will be entitled to ask the remaining tenant(s) to top up the security bond to the maximum amount permitted under the Act.

If a remaining tenant does not top up the bond, a Notice of Breach of Agreement (Form 20) can be issued and if the tenant continues to refuse to top up the bond, then this may result in a Notice of termination (Form 1C).

Changing the locks without permission

You can change the locks without first seeking the landlord’s permission either

  • after the perpetrator’s interest in the tenancy agreement has been terminated; or
  • if it is necessary to prevent family violence that you suspect is likely to be committed against you or your dependant.

You have to pay for the lock change (although it could be funded by a home safety scheme or, for Housing Authority tenants, the Government may pay) and you  must give the lessor/property manager a copy of the new key(s) within seven days unless the lessor/property manager is the alleged perpetrator. The lessor/property manager is prohibited from giving a copy of the key(s) to anyone that you specifically instruct them in writing not to.

Making security upgrades without permission

You can make prescribed security upgrades to the premises without a lessor/property manager’s permission:

  • after a perpetrator’s interest in a tenancy agreement is terminated; or
  • if necessary to prevent family violence that you suspect is likely to be committed against you or your dependant.

You must inform the lessor/property manager about your intention to make the security upgrades, which must be installed by a qualified tradesperson. You are responsible for any associated costs and to supply a copy of any invoice to the lessor/property manager. All upgrades should comply with strata by-laws and take into consideration the age and character of the property. If the landlord asks you to restore the premises to original condition at the end of the tenancy, you are required to do so.

 

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