Power to terminate or replace existing tenancy agreement
Where an intervention order has been issued by the Court or domestic abuse has occurred, an application can be made to the South Australian Civil and Administrative Tribunal (SACAT) for orders to either terminate or replace the existing residential tenancy agreement (i.e. lease). The usual fee that would apply to applications to SACAT may be waived for these applications, see SACAT's fee waiver information.
As a result, victims of domestic abuse have the right to:
1. remain in the tenancy (without the alleged abuser); OR
2. have the tenancy terminated so they can leave without being adversely affected financially or otherwise (e.g. see Residential Tenancy Databases – Terminations based on domestic violence for details about tenancy database issues).
A process to remain in the tenancy is also available to non-domestic abuse victims who may choose to apply for tenancy orders in the Magistrates Court as part of their application for an Intervention Order [see What can be ordered? Tenancy Orders].
Remaining in rental premises will require the existing agreement to be replaced. The Tribunal has the power in these cases to remove the alleged perpetrator from the lease [see Residential Tenancies Act 1995 (SA) s 89A(4)(a)]. Before making such an order the Tribunal must be satisfied that the tenant/co-tenants under the new agreement are able to reasonably comply with the new agreement [s 89A(6)(a)].
Choosing to leave rental premises will require the existing agreement to be terminated and the Tribunal has the power to do this under section 89A(1) of the Residential Tenancies Act 1995 (SA).
In either instance the Tribunal must be satisfied that an intervention order is in force against a person residing at the premises for the protection of either the applicant or a domestic associate of the applicant. In the absence of an intervention order the Tribunal can terminate or replace a residential tenancy agreement if satisfied that a person residing at the residential presmises has committed domestic abuse against either the applicant or a domestic associate of the applicant.
The relationship of domestic associate covers many relationships. Two people are domestic associates if:
- they are married to each other;
- they are domestic partners;
- they are in some other form of intimate personal relationship in which their lives are interrelated and the actions of one affect the other;
- one is the child, stepchild or grandchild, or is under the guardianship of the other (regardless of age);
- one is a child, stepchild or grandchild, or is under the guardianship, of a person who is or was formerly in a relationship with the other;
- one is a child and the other person is a person who acts in loco parentis in relation to the child;
- one is a child who normally or regularly resides or stays with the other;
- they are brothers or sisters or brother and sister;
- they are otherwise related either through blood, marriage, a domestic partnership or adoption;
- they are related according to Aboriginal or Torres Strait Islander kinship rules or are both members of some other culturally recognised family group;
- one is the carer of the other (within the meaning of the Carers Recognition Act 2005 (SA)).
See Residential Tenancies Act 1995 (SA) s 3.
Liability for damage
Where a residential tenancy is terminated because of an intervention order or due to domestic abuse and the Tribunal finds that not all co-tenants under the lease are responsible for damage caused to the premises, the Tribunal may make an order for payment of compensation against those co-tenant(s) responsible [s 89A(11)].
Compensation for landlord
The Tribunal also has the power to make an order for compensation to a landlord for loss and inconvenience where termination of a residential tenancy agreement has been because of an intervention order [s 89A(10)].
Under section 89A(12), where an order has been made for payment for damage or compensation under section 89A(10) and/or 89A(11), the Tribunal may also make orders for payment of the bond to the landlord and any co-tenant who has been found not liable.
If you are in fear of, or being subjected to, domestic abuse:
In an emergency contact: 000
For police attendance call: 131 444
Domestic Violence Crisis Line: 1800 800 098
1800 RESPECT: 1800 737 732.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.