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 a 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 the 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 lawful eviction
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 one should:
- Check that the reason for wanting to evict the 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)
- Ensure that you use the right procedure based on the grounds for eviction (in some jurisdictions the process is different, depending on the reason)
- provide the tenants with written notice to vacate (carefully following the requirements for issuing the notice because if it is not done correctly, you will 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 have followed the process to lawfully evict your tenant and they have ignored the notice to vacate, the next step is to involve the authorities. You will need to apply to the relevant tribunal and apply for a court order.
If the court/tribunal agrees that the 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 providing the order to the tenants, however, check how to go about it legally, 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.
What if the tenant still won’t leave?
If the incumbents 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 cannot do it yourself or you will find yourself on the wrong side of the law.
Once the tenant has been evicted by the authorities, you may be able to change the locks but be sure to follow the requirements as set out in the legislation. The same applies when it comes to dealing with any possessions that may have been 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.
Some 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). For landlords running short-stay rentals, there may also be cover of up to $50,000 if a guest refuses to vacate at the end of the contracted rental booking.
Note: Be aware that it is not unusual for it to take weeks and even months to get a court hearing, during which time owners may not be receiving any rental income. With some policies, 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, owners/managers need to 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. It is also likely that the owner will want to retain the bond to cover expenses (subject to the bond rules. Once the tenant has vacated the property, an insurance claim may be submitted.
