WHEN IS A FIXED TERM RESIDENTIAL TENANCY NOT A FIXED TERM RESIDENTIAL TENANCY?

On expiry of a fixed term residential tenancy it automatically continues as a periodic residential tenancy unless:

• the tenant has given the landlord written notice of intention to vacate on expiry of the term, or
• the landlord has given the tenant written notice requiring the tenant to vacate on expiry of the term.

Such a notice must be given within a strictly prescribed timeframe - at least 21 days, but not more than 90 days, before the expiry date.

This is the effect of the new section 60A inserted into The Residential Tenancies Act 1986 as from 1 October 2010 by The Residential Tenancies Amendment Act 2010.

If no notice is given the tenant may continue to stay in possession and must continue to pay the rent. 

The tenancy (and liability to pay rent) can then be terminated by the tenant (by 21 days written notice) or the landlord (by 90 days written notice).

The 90 days notice landlord from the landlord can be reduced to 42 days only in limited circumstances.

If the parties wish a fixed term residential tenancy to come to an end on the expiry date then the requisite written notice must be given within the correct timeframe.  We suggest that a diary be used to ensure this happens.