Removing a commercial tenant from a property in South Australia is a formal legal procedure governed by the Retail and Commercial Leases Act 1995 (commenced 30 June 1995) for retail shops, and the Landlord and Tenant Act 1936 (commenced 1 November 1936) for general commercial tenancies. While peaceable re-entry (lockout) is a recognized remedy under the Law of Property Act 1936 (commenced 1 November 1936) if stipulated in the lease, landlords must strictly comply with notice requirements—specifically Section 124 of the Law of Property Act 1936 for non-monetary breaches—to avoid claims for wrongful eviction.

When Can a Landlord Terminate a Commercial Lease?

A commercial lease can typically be terminated by the landlord for the following reasons:

1. Non-Payment of Rent

If a commercial tenant fails to pay rent, the landlord must generally issue a formal breach notice (typically giving the tenant 14 days to remedy the breach) before taking any action to reclaim the premises.

However, certain leases may contain a clause permitting the landlord to re-enter (with a court order) for non-payment of rent without waiting the full notice period. Such clauses are enforceable in commercial settings but must be exercised carefully.

2. Other Breaches of the Lease

For non-monetary breaches (e.g., operating outside the permitted use, failing to maintain the premises, unauthorized subletting), the landlord must issue a written breach notice detailing:

• The specific breach.
• The steps required to remedy it.
• A reasonable timeframe for the tenant to fix the issue (commonly 14 to 30 days).

If the tenant fails to remedy the breach within the specified period, the landlord can seek a court or tribunal order for possession.

3. Lease Expiry (No Right of Renewal)

If a lease expires and the tenant has no contractual right of renewal or option to extend, the tenant must vacate. If they refuse, the landlord can apply for a possession order.

4. Abandonment

If a tenant appears to have abandoned the premises (ceased trading and defaulted on rent), the landlord may retake possession, but must follow strict protocols to confirm abandonment to avoid liability.

The Legal Process

Landlord's Right to Damages

In addition to seeking possession, a landlord can also claim damages for the tenant's breach, which may include:

• Unpaid rent and outgoings up to the date of possession.
• Costs to restore the premises to the condition required by the "make good" clause in the lease.
• Loss of future rental income for a reasonable period while the landlord re-lets the premises.

Best Practices for SA Commercial Landlords

• Follow the Notice Process Religiously: The most common reason a commercial eviction fails in court is a procedural error in the breach notice (e.g., insufficient detail, wrong address, inadequate cure period).
• Keep Evidence of the Breach: Compile documents—payment ledgers, photographs, inspection reports—that clearly demonstrate the tenant's default.
• Engage Solicitors Early: The financial stakes in commercial evictions are high. Engage a commercial property solicitor the moment the tenant falls into default, not months later.

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