Commercial Evictions in Tasmania: Forfeiture and Re-entry

Evicting a commercial tenant in Tasmania—legally known as "forfeiture of the lease" or "re-entry"—is a rigid legal procedure governed by the Conveyancing and Law of Property Act 1884 and the Landlord and Tenant Act 1935. Despite what the commercial lease agreement might claim regarding swift evictions, a landlord's right to lock a tenant out of their business is regulated by strict property statutes and equitable principles.

The Right of Re-entry

First and foremost, a landlord can only attempt to evict a commercial tenant if they have a "Right of Re-entry".

If the written lease is silent on the right of re-entry, Section 11(b) of the Landlord and Tenant Act 1935 (Tas) implies a covenant into every lease allowing the landlord to re-enter and take possession of the premises if the rent is in arrears for a period of 15 days. If the lease does contain an explicit re-entry clause, the specific timeframe mentioned in that clause (e.g., 7 days or 14 days) will typically prevail.

The Notice to Remedy Breach of Covenant

The requirement to serve notice depends entirely on the nature of the tenant's breach.

Under Section 15(7) of the Conveyancing and Law of Property Act 1884 (Tas), a landlord is not required to serve a statutory notice prior to forfeiture for the non-payment of rent. The landlord may proceed to re-enter as soon as the grace period in the lease (or the 15-day statutory period) has expired.

However, for non-monetary breaches (e.g., failure to repair, unauthorized use, or illegal subletting), the landlord must serve a formal Notice to Remedy Breach of Covenant under Section 15(1) before executing forfeiture.

This critical legal document must precisely state:

1. The exact breach that has occurred.
2. The specific action the tenant must take to remedy the breach (if it is capable of remedy).
3. The specific amount of compensation the landlord requires for the breach (if any).

The "Reasonable Time" Requirement

For non-monetary breaches, the Notice must give the tenant a "reasonable time" to remedy the matter. What constitutes a "reasonable time" depends on the nature of the breach:

• For Non-Payment of Rent: There is no statutory "reasonable time" notice requirement under Section 15. The timing is governed by the lease agreement or the 15-day statutory implied proviso in the Landlord and Tenant Act 1935.
• For Non-Monetary Breaches: A reasonable time might be anywhere from 14 to 30 days, or longer, depending on what is required to fix the breach (e.g., hiring specialized contractors for repairs).

Executing the Eviction (Peaceable Re-entry)

If the tenant fails to remedy the breach (for non-monetary issues) or the rent remains unpaid after the allowed period, the landlord may execute forfeiture via Peaceable Re-entry.

The re-entry must be "peaceable," meaning it must be achieved without a breach of the peace or the use of force against persons. While landlords often attend the premises outside of business hours to avoid confrontation, they must ensure the process does not involve physical force against the tenant or others. Once the landlord secures the premises (e.g., changing locks) and posts a formal "Notice of Re-entry" on the door, the lease is forfeited.

Relief Against Forfeiture

Commercial tenants have the right to apply to the Supreme Court of Tasmania for "Relief Against Forfeiture" to have their lease reinstated.

• For Non-Monetary Breaches: Tenants may apply for relief under Section 15(2) of the Conveyancing and Law of Property Act 1884.
• For Non-Payment of Rent: Because Section 15(7) excludes rent from the statutory notice provisions, relief for rent defaults is granted under the court's equitable jurisdiction.

If the tenant pays the outstanding rent, covers the landlord's legal costs, and demonstrates they can comply with the lease moving forward, the court will almost always grant relief. The courts generally view forfeiture as a security for the payment of rent rather than a tool to terminate a lease for a remediable default.

Automating Default Procedures

Executing a commercial eviction requires an impeccable paper trail. Landager provides institutional-grade ledger tracking for Tasmanian properties, ensuring that when commercial rent hits severe arrears, property managers are automatically reminded of the precise statutory notice workflows, preventing costly procedural missteps that could invalidate a peaceful re-entry action or expose the landlord to wrongful eviction damages.

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