Is this termination notice valid? (ACT)

This fact sheet will deal with the requirements for a termination notice to be valid under ACT tenancy law. Both tenants and landlords can issue termination notices, but this overview focuses on those issued by landlords. Further, this fact sheet will not deal with terminations that are based on a breach of the agreement by either tenants or landlords. Our focus is on ‘no fault’ terminations. You can read more about how this category of termination functions around Australia here.

At the end of a fixed-term lease agreement, you automatically enter a periodic tenancy agreement. During this periodic tenancy, your landlord is able to terminate the tenancy on a number of grounds. (Currently, they can also terminate ‘without grounds’, but the ACT Government is moving to end this unfair provision.)

The key requirement of a notice is that it is delivered in writing to the address provided at the beginning of the tenancy for the sending of notices. This may include an email address. A notice has to be in writing - you cannot be served notice by a phone call.

The notice requirements differ according to the grounds your landlord wants to evict you on.
If they have no reason at all they need to give you 26 weeks’ notice - this is the longest notice requirement. But if they want you to vacate so they can move into the property, the landlord needs to give only 8 weeks’ notice:

Schedule 1 - Standard Residential Tenancy Terms: 96 Termination of periodic tenancy
(1) If there is a periodic tenancy, the lessor may serve on the tenant a notice to vacate for the following periods on the following grounds:

(a) 8 weeks notice if the lessor genuinely intends to live in the premises;

(b) 8 weeks notice if the lessor genuinely believes the lessor’s immediate relative intends to live in the premises;

(c) 8 weeks notice if the lessor genuinely believes an interested person intends to live in the premises;

(d) 8 weeks notice if the lessor genuinely intends to sell the premises;

(e) 12 weeks notice if the lessor genuinely intends to reconstruct, renovate or make major repairs to the premises and the reconstruction, renovation or repairs cannot reasonably be carried out with the tenant living in the premises.

A notice to terminate must tell you why they want to terminate the lease because this has implications for the rest of the notice requirements. For instance, if the reason is because they want to move in themselves then they have to give 8 weeks’ notice. However, if they want to renovate the property an additional 4 weeks’ notice is required (12 weeks total). You might be wondering, what if a landlord wants to kick you out sooner than 26 weeks and they simply pretend to want to move in? This is a valid concern and one considered by the legislation:

96 (1A) If the lessor serves a notice to vacate on the ground of an intention or belief mentioned in subclause (1) (a), (b) or (c), the lessor must also give the tenant a statutory declaration about the intention or belief.

So, if your landlord wants to kick you out because they want to move in and they do not provide a statutory declaration to that effect, then they have served a defective notice. You are well within your rights to request they provide a statutory declaration. 

The statutory declaration has to provide particulars which justify the belief or intention. In Mohammadian v Samani & Anor the landlord provided a statutory declaration to the effect of: “[this property] will be used for my immediate relative and/or interested person [upon vacation]”. This is worthless as a statutory declaration because it does not explain why the belief or intention is held.

Ignoring a defective notice to terminate is not advisable. ACAT has discretion to waive certain notice requirements in specific circumstances, and this could leave you open to further issues. If you have concerns about a notice you should contact Legal Aid ACT