Constructive Eviction Letter Template for Australia

The letter itself is not a binding contract, but it is an important formal notice that puts the landlord or agent on notice of a breach and starts the clock on your remedies. Australian law does not use the American term "constructive eviction"; the same situation is dealt with under each state and territory's residential tenancies legislation, such as the Residential Tenancies Act 2010 (NSW), the Residential Tenancies Act 1997 (Vic) and the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), as a breach of the landlord's duties to maintain the premises and not interfere with your quiet enjoyment. Its legal weight comes from the evidence it creates when you later apply to a tribunal for compensation, repair orders or termination.

It should identify the rental address and the parties, state the date the tenancy began, and set out the specific defects or landlord conduct that have made the premises unfit or unusable, with dates and a description of each incident. It must identify the duty breached, such as failing to carry out repairs or interfering with quiet enjoyment, specify a reasonable period to remedy the problem, and state what you will do if it is not fixed. Attaching photographs, repair requests, trade reports and any correspondence is what turns a complaint into usable evidence at a tribunal hearing.

In almost every case yes, and the remedy period is why this letter exists. Victoria uses a breach of duty notice under the Residential Tenancies Act 1997 (Vic) giving the landlord at least 14 days to comply, while Queensland uses a Notice to Remedy Breach with a minimum of seven days under the Residential Tenancies and Rooming Accommodation Act 2008. Moving out without first giving written notice and a chance to remedy usually leaves you exposed to a claim for rent for the balance of the fixed term and loss of re-letting costs.

No. Withholding rent is itself a breach in every Australian state and territory and can trigger a termination notice for rent arrears against you, even where the landlord is clearly at fault. The correct route is to keep paying, or in some jurisdictions apply to the tribunal for an order reducing rent while the premises are uninhabitable, and to claim compensation for the reduced value of the tenancy. Some states also allow you to arrange urgent repairs yourself up to a capped amount and recover the cost from the landlord.

Use a method permitted by your tenancy agreement and your state's residential tenancies legislation, which typically allows personal delivery, post to the landlord or agent's address for service, or electronic service where the tenant and landlord have agreed to it in writing. Keep proof of service such as a registered post receipt, a delivery confirmation or a sent email with the attachment, because the landlord may dispute ever receiving it. The service clause and the date in the letter determine when the remedy period starts and when you may take the next step.

Once the remedy period expires you can apply to the tribunal in your jurisdiction, being NCAT in New South Wales, VCAT in Victoria, QCAT in Queensland, SACAT in South Australia, ACAT in the ACT, NTCAT in the Northern Territory and the Magistrates Court in Western Australia and Tasmania. The tribunal can order repairs, order compensation or a rent reduction, and in serious cases terminate the tenancy on the ground that the landlord has breached the agreement. Your letter and the attached evidence become the foundation of that application, which is why the dates and the description of each defect need to be accurate.

The residential tenancies Acts do not apply to commercial premises, so a commercial tenant relies on the lease terms, the implied covenant of quiet enjoyment and, for retail premises, state retail leases legislation such as the Retail Leases Act 1994 (NSW) or the Retail Leases Act 2003 (Vic). The letter should therefore cite the specific lease clauses breached and follow any contractual notice and cure procedure to the letter, since commercial leases commonly require notice in a set form to a nominated address. Failing to follow that procedure is the most common reason a commercial tenant's claim for repudiation or damages fails.