A tenant refusing to leave the rental is one of those nightmare scenarios no landlord or agent wants to have to deal with. But it’s one you might have to. So if your tenant isn’t budging, what’s next?
Not paying and not leaving… It’s all well and good to have legitimate grounds to request your tenants vacate the property, but what if they won’t go? It’s not unheard of for a tenant to dig their heels in and refuse to leave the rental. If this happens to you, you need to know what you can – and can’t – do.
In insurance-speak, we call this situation ‘denial of access’. In a nutshell, it means your tenant refuses to leave the rental (so they’re denying you access to your property) despite having been lawfully evicted.
The key thing here is the lawful eviction bit.
If you want your tenants out, you need to go about it the right way. That means carefully following the procedures to end a lease/evict a tenant set out in your state or territory residential tenancy legislation.
How do you evict a tenant?
The process may vary, depending on the jurisdiction, but in general you should:
- check that your reason for wanting to evict your tenants is acceptable (several Residential Tenancy Authorities (RTAs) have been amended or are being amended to remove ‘no grounds’ evictions), so having a valid reason is likely to be a prerequisite)
- make sure that you use the right procedure based on the grounds for eviction (in some jurisdictions the process is different, depending on the reason)
- provide your tenants with written notice to vacate (carefully following the requirements for issuing the notice because if you don’t do it correctly, you’ll find yourself having to do it all over again)
- strictly follow the necessary procedures and timeframes (word to the wise: tribunals have been known to throw out a landlord’s case because they didn’t follow the right process)
- use the correct forms and have the right documentation.
What happens if the tenant ignores the notice to vacate?
If you’ve followed the process to lawfully evict your tenant and they’ve ignored the notice to vacate, your next step is to involve the authorities. You’ll need to apply to the relevant tribunal and apply for a court order.
If the court/tribunal agrees your tenant needs to leave, an order will be made (it may be called a termination order, possession order, warrant of possession or order to vacate). This order will set out a date by which the tenant must vacate. Before you give the order to your tenants, check how to go about it, as the process varies in each state/territory – and you don’t want to find yourself in hot water with the authorities for conducting an unlawful eviction!
And if the tenant still won’t get out?
If they still don’t leave, you may need to go back to court to obtain an eviction order (again, both the process and what the orders are called varies by jurisdiction). This enables a bailiff, sheriff or police officer to step in and evict the tenant, forcibly if necessary. You must arrange for the appropriate authority to evict the tenant – you can’t do it yourself or you’ll be the one in trouble.
Once the tenant has been evicted by the authorities, you may be able to change the locks but be sure to follow the requirements set out in the legislation. The same applies when it comes to dealing with any of the tenant’s possessions left behind.
Is there any insurance cover for this?
Not all landlord insurance providers offer this type of loss of rent cover and, when they do, how much cover they offer can vary too.
EBM RentCover Platinum and Ultra policies offer up to 52 weeks’ cover for loss of rent when a tenant refuses to leave the property (known as 'denial of access' cover in EBM RentCover policies). For landlords running short-stay rentals, there’s cover of up to $50,000 if a guest refuses to vacate at the end of the contracted rental booking, under our ShortTerm policy. Note: There is no provision for loss of rent in our Householders Rental policy as tenant-related issues aren’t covered. How long the cover extends is an important consideration too – it’s not unusual for it to take weeks and even months to get a court hearing, during which time you aren’t receiving any rental income. With EBM RentCover, a claim can be lodged for the period from when the notice to vacate was given to the time that possession of the property is returned to you, up to the maximum benefit allowed in the policy. Remember: to make a claim, the legal eviction process needs to be followed.
Once your tenants have been evicted by the authorities and possession has been returned to you, conduct a final property inspection. Outgoing condition reports, with supporting photos and videos, can be used as evidence if there are any further outstanding issues once the tenant has vacated the property. You will likely also want to retain the bond to cover some expenses (subject to the bond rules), so apply to your local bond authority to have the bond refunded to you. Once the tenant has vacated the property, you can submit an insurance claim.
Are you currently dealing with a ‘denial of access’ situation? We know it can be complicated and confusing. If you need help, please contact the EBM RentCover team – 1800 661 662.
*While we have taken care to ensure the information above is true and correct at the time of publication, changes in circumstances and legislation after the displayed date may impact the accuracy of this article. If you need us we are here, contact 1800 661 662 if you have any questions.
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