What happens when a tenant is locked up

By Bailey Compton 20 Oct 2023

Behind bars and behind on their rent?

I suppose it’s a regular event, but I only just discovered an issue for the first time. One of my long-suffering clients had a tenant who was incarcerated for unknown breaches.

The simple question is: if the tenant is locked up, is the tenancy agreement enforceable?

A contract is enforceable against the jailed person. You don’t get out of paying debt when you’re behind bars. This is the case with the tenancy agreement. If somebody continues to pay the rent, the tenancy agreement is still enforced and no action can be taken against the tenant.

If a person is not paying their rent, you may take action under the Residential Tenancies Act 2010 (NSW) (“RTA”) for rent in arrears.

There is a question of abandonment; it is arguable that, if a tenant is incarcerated, they have abandoned the property. Although it is difficult, you will need to ensure you have evidence that the person was locked up. Corrective services will not provide you with private information, but they will confirm if that person is incarcerated.

Generally speaking, the principle under the RTA applies whether you were inside or outside. If the property is vacant, and the person is ‘inside’, you should ensure you get an order to enforce the rules around abandonment.