This Factsheet can also be downloaded as a PDF file: Defending-an-Eviction
This leaflet outlines how to represent yourself in the ACT Civil and Administrative Tribunal to defend an eviction.
See the Tenancy Factsheet “Eviction in the ACT” for information about the steps a landlord must take in seeking to terminate a tenancy.
All tenancies in the ACT are regulated by the Residential Tenancies Act 1997 (RTA). The terms of your tenancy agreement are set out in the RTA and Standard Lease, and are known as the Standard Terms. References here are to sections in the RTA.
If a landlord wants a tenant to vacate the premises and the tenant does not do so, the RTA (s 36 – 39) requires the landlord to apply to the ACT Civil and Administrative Tribunal (ACAT) for an order to terminate the tenancy. This order is called a Termination and Possession Order (TPO). There is no other lawful way a landlord can take possession of a property that you, the tenant, are still living in.
Why am I being evicted?
The very first step a landlord must take if they want to evict a tenant is to give them a valid written notice to vacate, stating the reason or ground for terminating the tenancy. However in a ’no grounds’ notice to vacate, the landlord is not required to give a reason for ending the tenancy outside the fixed term, but 26 weeks written notice must be provided. For details about the eviction processes see Tenancy Factsheet: Eviction in the ACT.
The grounds specified in a notice to vacate may be a breach of the tenancy agreement or may be some other reason. A common breach is where the tenant is behind in the rent (this is called ‘rent arrears’ — see Tenancy Factsheet: Rent Arrears).
How long can I stay in the property?
You are entitled to remain in the premises until ACAT makes a TPO ordering that the tenancy ends on a specific date.
So, if you intend to defend the eviction, you may remain in the premises after the date specified in the landlord’s notice to vacate. If the landlord applies to the tribunal, the hearing will take place after the notice period has ended.
A word of warning
If you remain in the premises after the hearing and after the date specified by the tribunal in a TPO, the landlord may seek compensation from you under s 56. This could amount to rent for the period you remain in premises after the tenancy is terminated, and the reasonable costs the landlord incurs in seeking a warrant for your eviction.
The landlord’s application to ACAT
When a landlord applies to ACAT for a TPO, the landlord is called the Applicant and the tenant is called the Respondent.
When the landlord’s application for the TPO is received by the ACAT registry, they will send a copy of the whole application to the tenant, including the tenancy agreement and various letters or other evidence lodged by the landlord. The registry will also send a Notice to Respondent, which gives the date and time of the hearing and a date by which the tenant should submit a defence.
Defending eviction for breach: what is my defence?
- If you believe you have not breached the agreement in the way the landlord says you have, your defence is obvious – you need to convince the tribunal that there is no breach and therefore there is no basis to terminate the tenancy. For example, you have not failed to pay rent and the landlord’s calculations are incorrect; or the fact that you had a guest in your home is not a breach of the Standard Terms.
- If you have breached the agreement, your defence may be that you have remedied the breach and there is no loss to the landlord in the tenancy being allowed to continue. For example, you missed a rent payment but have now made that up; or you have now mowed the lawn and removed the rubbish.
- If you have breached the agreement but have not yet been able to remedy the breach, your defence may be that you have a proposal for a method and a time frame in which the breach will be remedied. Eg, you will pay off rent arrears of $500 by paying an extra $50/week for the next 10 weeks; or you will mow the lawn within 1 week and remove the rubbish within 2 weeks.
- If you have breached the agreement but believe that it is a very minor breach, your defence may be that the breach does not justify eviction. For example, you have installed a picture hook without the written permission of the landlord, but this does not undermine the tenancy in any significant way.
Grounds in clause 96
The most common non-breach reasons for a landlord to end the tenancy are the grounds given in clause 96 of the Standard Terms.
These grounds will only apply during a periodic tenancy, not a fixed term. Reasons provided are that the landlord:
- Wants to move in or wants a family member or somebody else close to the landlord to move into the property (cl 96(1)(a) – (c));
- Wants to sell the property (cl 96 (1)(d)); or
- Wants to do major repairs, renovation or demolish the property (cl 96(1)(e)).
Another reason for the landlord to terminate may be that the landlord has been posted back to the ACT for work, and he or she wants to move back in to the premises. You would need to have an additional term in your lease allowing either party to give notice to terminate because of being posted to or away from the ACT (s 8(2)). A posting clause may be used to terminate a fixed term tenancy.
Defending a non-breach eviction
In order to defend a non-breach eviction you would need to show that either the notice or the grounds given were incorrect.
If what you need is just more time, it is best to try to negotiate with the landlord when you receive the notice to vacate. A negotiating point is that ACAT can order the termination of the tenancy but suspend that order for up to 21 days if satisfied the tenant would otherwise suffer significant hardship, greater than the hardship to the landlord if the order was suspended (s 47 (2)).
A defence based solely on the fact that the notice period given is incorrect may not succeed because the landlord can apply for a waiver of a defect in the notice (s 59). The tribunal may grant this if satisfied the tenant will be no worse off than they would have been had the notice been correct. Alternatively, the tribunal could correct the defect, so that the tenant gets the correct period of notice (s 83(k)).
If you believe the grounds are incorrect, you would need to have some evidence for the tribunal to consider. For example, if the ground for the notice was that the landlord intends to sell the property and, at the same time, the property is advertised in the To Let section of the paper, this is a basis for the tribunal to require the landlord to prove that the grounds are genuine. If not satisfied that the grounds exist (s 47(1)(a)) the tribunal may refuse to order the termination of the tenancy.
Another ground for termination is where the landlord can demonstrate that if the tenancy was to continue, he or she would suffer significant hardship (s 50). Notice is not required in this case; the landlord can apply direct to ACAT for a TPO. To defend such an application, you would need to show the tribunal how you would suffer greater hardship if the tenancy was ended than the landlord would suffer if it was not ended.
Under s 57 if you have evidence that the landlord or agent is trying to evict you because you have taken some action to determine and/or assert your rights, you will need to show evidence of the action you took (e.g. details of complaints, statements from complaint or advice bodies). If the tribunal is satisfied on your evidence, the landlord will then need to persuade the tribunal that seeking your eviction was not in retaliation against you for taking this action. If not persuaded, the tribunal must refuse to make a TPO.
Submitting a defence
The documents from the Registry include a form called ‘Statement Contesting/Defending Application’. Instead of using this form you can type or write out your own statement, but it is best to use this heading.
The point of this statement is to give a clear and accurate account of your position: why you believe you should not be evicted. You should use numbered points to give the facts or the relevant sequence of events – this is easy to read and helps you to write logically. You do not have to argue the case in the statement of defence – that will happen at the hearing – but the statement must include the key facts on which you will rely.
Wherever possible the statement of defence should be sent to or handed in at the Registry in time for the tribunal member to read it before the hearing and for the landlord to receive a copy.
What if I don’t lodge a defence?
You may appear at the hearing and present a defence, even if you have not submitted anything in writing beforehand. However, whilst it may make no difference to the outcome, advance notice of your position may result in a better and more sympathetic understanding on the part of the tribunal member and a greater willingness to negotiate on the part of the landlord.
Preparing for the hearing
- ACAT is open to the public and it’s a good idea to sit in on a hearing or two before your hearing date to get familiar with the place and the proceedings. ACAT registry has a list of the hearings (daily lists) that you can use to plan a visit, go to http://www.acat.act.gov.au/.
- Find out how the law supports you in defending the eviction – and how it may support the landlord in seeking the eviction so you are prepared for the landlord’s arguments.
- Create a folder for your case, arrange your documents in chronological order and label them with stick-on flags so that you can quickly find what you need during the hearing.
- Assemble your evidence and, if you have any witnesses, make sure they are able to attend on the day and know where to go.
Assembling your evidence
ACAT is not bound by the rules of evidence that apply to courts, but in order to convince the tribunal member that you should not be evicted, you need to have reliable evidence to support the statements you make in your defence. For example, a receipt is evidence that a payment has been made; a dated photograph is evidence of the condition of the premises; a statement from a neighbour that there has been no loud music for the last 2 weeks is evidence that you have remedied the breach. (See Tenancy Factsheet: Evidence Checklist for the Tribunal).
The things you say yourself at the hearing are also evidence, so make sure that the statements you are planning to make are clear and accurate.
Write a list of points you want to make, and the evidence you have to support each point.
What if I can’t attend on the hearing day?
Although you can appoint someone to represent you or be your agent in your absence, it is best to be there yourself to defend an eviction. If you can’t attend, phone the registry and let them know. If you need to get the hearing adjourned to a later day, try first to get the agreement of the landlord and then write/fax the registry that the parties have agreed to an adjournment and why.
If you have good reason for being unable to attend, the tribunal may order an adjournment, even if the landlord opposes it. You would need to provide the tribunal with a medical certificate or some other evidence of incapacity to attend.
What if the hearing goes ahead without me?
If you do not turn up at the hearing the tribunal has several options under s 44, however it is not likely to adjourn the matter. If the landlord argues against adjournment and the member is satisfied that the landlord has grounds for eviction, the hearing is likely to go ahead and orders made in your absence (s 44(2)(d)).
If you do not agree with these orders when you receive notice of them, you can apply to have them set aside (s 56(c)). The member can decide to rehear your application, but it would be essential that you could satisfy the member on 2 matters:
- Why you did not turn up to the first hearing, and
- Why you should not be evicted.
When your case is called, you need to be ready to go into the hearing room and take your place at either the left or right side of tables (neither side is particularly designated for tenants but you may find that some landlords or agents have a preferred side). The tribunal member sits in the centre, with an assistant who takes notes and ensures the proceedings are tape-recorded.
ACAT procedures are set out on their website. The ACT Civil and Administrative Tribunal Act 2008 says that it must be as simple, quick, inexpensive and informal as is consistent with achieving justice (s 24).
Generally the member will introduce him/herself and invite the parties to introduce themselves. The landlord or agent, being the applicant, will usually go first, with their case for eviction. The tenant will then present their case against eviction. Each party should have the opportunity to question the evidence of the other.
It is useful to make notes of the points the landlord makes so that you can counter his/her arguments and answer any incorrect or misleading statements.
The member can ask questions and make comments at any point in the proceedings. You should have an opportunity to summarise your case before the member makes any orders.
The member may briefly adjourn the hearing and suggest the parties meet outside the hearing room to negotiate a settlement. If the parties come to an agreement, the tribunal can make orders by consent. Be very cautious about what you agree to as once the tribunal makes this order, you are bound by it.
The tribunal’s orders are binding on the parties. The member may:
- Dismiss the landlord’s application and order that the tenancy is to continue; or
- Where the breach is rent arrears, issue a conditional termination order (s 49(4)) that the termination is suspended on certain conditions (e.g. that the tenant repay rent arrears, in addition to rent, by instalments or within a certain time); or
- Issue an unconditional termination order, but delay the date by which the tenant is to vacate for up to 21 days; or
- Issue an unconditional termination order effective immediately
Unconditional orders will either state that if the tenant fails to vacate, the landlord can apply to ACAT registrar for a warrant for eviction, or that the order itself is effective as a warrant (s 39).
Under conditional orders if the tenant fails to comply with the conditions, the landlord can apply for a warrant of eviction (s 42A). The tenant will be notified of the landlord’s application, and the matter will then be listed for hearing. The tribunal may either allow or dismiss the application for warrant. The tribunal will dismiss the application if the member is satisfied that the tenant has complied with the conditional orders. In practice, the tribunal may also dismiss the application if the member is satisfied there are compelling reasons for the tenant’s failure to comply with the orders.
Warrant of eviction
The warrant is issued by the ACAT registry and authorises the police to ensure that the landlord gains vacant possession of the premises. The warrant will specify the day and time the eviction will take place, and the police must give the tenant at least 2 days notice of that day, unless the landlord can show there are special circumstances that justify eviction without such notice (s 40).
What if I disagree with the tribunal orders?
Tribunal orders can be changed (s 56(c)), but this would need to be on the basis that there has been some change in your circumstances since the orders were made. For example, you could ask the tribunal to reduce an arrears repayment amount because your income has reduced or you have other debts to repay.
The tribunal may also set aside orders if satisfied that those orders were based on evidence that was fraudulent.
A decision can be appealed through the internal ACAT process or the Supreme court. You should seek legal advice before taking such a step.
Don’t ignore tribunal orders
It is not wise to ignore the tribunal’s orders. If you fail to comply with an order, the tribunal can order you to pay a fine of up to $5,000.
If you fail to vacate by the date the ACAT ordered the tenancy to end the landlord can seek compensation for their reasonable costs in having a warrant issued and executed (s 56).
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