Retaliatory Termination in South Australia — Section 90A Defence

What Section 90A Actually Says

Section 90A of the Residential Tenancies Act 1995 gives tenants a statutory defence against termination notices that are motivated by the tenant exercising their legal rights. If a tenant has done any of the following, and the landlord then issues a notice to vacate, the notice is vulnerable to being set aside:

• Requested urgent or emergency repairs under section 68
• Reported a minimum housing standard breach to the Housing Safety Authority
• Lodged a dispute or complaint with Consumer and Business Services (CBS)
• Applied to SACAT for any reason (rent reduction, breach remedy, excessive rent declaration)

The tenant has 30 days from receiving the termination notice to file a section 90A application with SACAT. SACAT then examines the landlord's primary motivation. If the Tribunal concludes the notice was influenced by the tenant's exercise of statutory rights, it declares the notice void.

How SACAT Assesses the Claim

The inquiry focuses on the landlord's primary motivation and whether the notice was influenced by the tenant's exercise of statutory rights. Factors SACAT typically considers:

• Timing. A notice issued within days of a repair request or complaint is harder to defend than one served months later.
• Pattern. Multiple notices following multiple complaints suggest retaliation, even if each individual notice has a superficially valid ground.
• Strength of the stated ground. A notice citing owner occupation, backed by a witnessed statutory declaration, is stronger than a vaguely documented breach notice served the week after the tenant reported a broken heater.
• Prior relationship. A history of smooth tenancy followed by sudden notice after a complaint weighs against the landlord.

What Happens if SACAT Sets the Notice Aside

If the Tribunal finds retaliation, it issues an order declaring the notice void. The tenancy continues as though the notice was never served. The landlord cannot simply re-serve the same notice on the same ground — a second notice following a voided one invites a stronger retaliation finding.

A successful section 90A application voids the notice. The landlord must restart the notice process if a genuine prescribed ground remains; a new SACAT application carries the current filing fee of $93 ($69 for concession holders under the 2026 schedule), and the process can add months of delay.

Protecting Yourself as a Landlord

The section 90A defence cannot override a genuinely substantiated notice — it catches notices driven by retaliation, not every notice that happens to follow a complaint. The practical safeguards:

1. Document your ground before the tenant's complaint arrives. If you intend to sell and have a signed sales agency agreement, the timing of a subsequent repair request does not undermine the notice — the evidence predates it.
2. Never issue a notice in the heat of a dispute. If a tenant has just lodged a CBS complaint, wait until the complaint process concludes before acting on an unrelated termination ground. The gap in time weakens any retaliation inference.
3. Use the correct prescribed form with full evidence. A Form 7 or Form 9 with all mandatory attachments (statutory declaration, sale contract, builder's quotes) demonstrates a substantive reason that stands on its own.
4. Keep written records of your decision-making timeline. An email to your accountant discussing the sale three months before the tenant's complaint is powerful evidence of genuine intent.

The key principle: a legitimate prescribed ground, properly evidenced and documented before any tenant complaint, can support the landlord's explanation, but SACAT still assesses the landlord's primary motivation.

For a step-by-step walkthrough of every prescribed ground, the evidence each one requires, and how to calculate clear days and serve the notice correctly, see the Ending a Tenancy in South Australia guide.

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