Key facts
- A writ of distress can cover rent for up to 12 completed months before the application
- No landlord may distrain for rent except in the manner the Distress Act provides
- The Small Claims Tribunals hear residential tenancies of up to 2 years, not commercial leases
- Arrears of rent can be sued on for 6 years from when they fell due
Gather the paper trail first
Every route below depends on proof. Before you contact the tenant again, put these together:
- The signed tenancy agreement and its stamp duty certificate. The Small Claims Tribunals ask for both in residential disputes.
- A rent ledger showing each month due, what was paid and when.
- Bank transfer records, receipts and any messages where the tenant admits the arrears or promises to pay.
- The deposit amount and the clause on how it may be used.
Send a letter of demand
A clear written demand settles many cases. State the months unpaid, the total, the deadline to pay and what you will do next. Under the Rules of Court 2021, a party has a duty to consider amicable resolution, and should make an offer of amicable resolution in writing before starting a court action unless there are reasonable grounds not to. That offer must stay open for at least 14 days unless both sides agree otherwise. A demand that offers a payment plan does this job. Our letter of demand page explains what a good one contains.
The security deposit
Your tenancy agreement sets out when the deposit may be applied against arrears. Read the clause before you deduct, and tell the tenant in writing what you deducted and why. If the deposit does not cover everything, the balance remains a debt you can pursue.
The writ of distress
The Distress Act 1934 lets a landlord recover rent by having the court’s sheriff seize and sell the tenant’s movable property on the premises. It applies to any premises let under a lease or tenancy agreement, residential or commercial, but not to rent owed to the Government.
| Point | What the law says |
|---|---|
| How to apply | The landlord, or an agent authorised in writing, applies to a judge or registrar without notice to the tenant. Under the Rules of Court 2021 this is an originating application supported by affidavit |
| How much rent | Rent for up to 12 completed months of the tenancy immediately before the application |
| After the tenancy ends | Still possible, if the tenant is still in occupation or the tenant’s goods are still on the premises |
| What cannot be seized | Things in actual use, the tenant’s necessary clothing and bedding, goods the tenant holds to work on or deal with in the ordinary course of trade, and tools not in use where other property covers the debt |
| Before the sale | The sheriff gives notice of seizure. The sale is at least 6 days later, unless the tenant pays within 5 days or gets a court order |
| Tenant’s challenge | The tenant may apply to discharge or suspend the writ, within 14 days of the seizure |
If a tenant has abandoned the premises, left nothing of value and owes at least 2 months of rent, the Act has a separate process in the High Court for the landlord to recover possession.
Small Claims Tribunals for residential tenancies
The Small Claims Tribunals can hear disputes on a tenancy agreement for residential premises of up to 2 years. They cannot hear leases of commercial or industrial premises, or licences of any premises. The claim limit is $20,000, or $30,000 if both sides sign a Memorandum of Consent, and the claim must be filed within 2 years of the event that gave rise to it. An order can cover payment of money or delivery of vacant possession. See our guide to the Small Claims Tribunals.
Court claims for commercial leases and larger sums
A commercial landlord, or a residential landlord whose case falls outside the Tribunals, sues in the civil courts. The Magistrate’s Court hears claims of up to $60,000 under a simplified civil process. The District Court hears claims of up to $250,000. A judgment still has to be enforced if the tenant ignores it.
The time limit for an action to recover arrears of rent is 6 years from the date the arrears became due, under the Limitation Act 1959.
Where Speedy helps
Most tenants who fall behind can pay something. They need a firm, steady push and a plan they can keep. Speedy Debt Collection sends the demand, follows up by call, message and visit, and negotiates a lump sum or instalments, including with tenants who have already moved out. We are not a law firm: we cannot apply for a writ of distress, act for you at the Tribunals or in court, or give legal advice. Our debt recovery service works on a success based commission, so if nothing is recovered you pay nothing.