TENANCY LAW FOR OLDER TENANTS. Residential Tenancies Act 2010

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1 TENANCY LAW FOR OLDER TENANTS Residential Tenancies Act

2 RESIDENTIAL TENANCIES LAW Most NSW residential tenancies covered by Residential Tenancies Act 2010 Residential Tenancies Regulation 2010 These are the sources of your rights as a tenant! You also have obligations 2

3 YOUR RIGHTS AS A TENANT Residential Application Tenancy forms Before you Agreement move in Holding fees Bond Disclosure Condition reports During your tenancy Ending your tenancy Rent Security Access and privacy Notice periods Repairs Water charges Pets Uncollected goods 3

4 APPLYING FOR A TENANCY Application forms are not covered by the Act, but are quite common: If you are on a tenant database, the landlord or agent must notify you within seven days and tell you how you can have the listing removed. You can be charged a holding fee of up to one week s rent. The fee counts as part of your first rent payment. Disclosure: You cannot be induced to enter into a residential tenancy agreement with information the landlord or agent knew to be false; Further information that must be disclosed is discussed later. 4

5 STARTING A TENANCY Before you move in, you need to know about: Residential tenancy agreement Additional terms Material facts Costs Condition reports 5

6 RESIDENTIAL TENANCY Can be oral, but is usually written. AGREEMENT If it s oral, it is considered to be for a term 6 months and the rent can t be increased during that time. Remember: this is a legally binding contract. There is no cooling off period. Understand what you are signing! Two types: Fixed term - for a specified period Periodic - fixed term has expired or no fixed term is specified 6

7 ADDITIONAL TERMS An agreement includes all terms of the standard form agreement. Additional terms may be added if: You and the landlord agree to them AND They do not conflict with the Act. Some terms may not be included in the agreement, such as: tenant must pay for carpet cleaning (unless you have a pet). If it does, these provisions are void. Seek advice if you are unsure about an additional term. 7

8 CASE STUDY: ASBESTOS Hilda has been issued with a notice of termination due to the condition of the premises. Hilda s agreement has an additional term that allows her landlord s husband to dump waste from his building company in her backyard. Amongst the waste is a white powdery substance and the real estate agent told her that it was asbestos. Because the cost of getting this waste tested for asbestos is prohibitive, Hilda contacted the Department of Environment and Climate Change (DECC). The DECC visits the premises and determines that it is asbestos, fines her landlord and orders them to remove all waste. Her landlord shortly after issued Hilda with a no grounds termination notice. The Tribunal took evidence of the DECC s action into account, and refused to terminate the tenancy. The Tribunal made it very clear that the additional terms were void if they contract out of the Act. 8

9 MATERIAL FACTS Your landlord/agent must tell you if: the premises have been affected by flood or bush fire in the last 5 years; there are significant health risks not visible on inspection (eg, asbestos); premises has been the subject of a serious violent crime in the last 5 years; you will not be able to get free residential parking; there is a right of way on the premises; they propose to sell the premises. Make sure you get this information in writing and it is signed by your landlord or agent! 9

10 COSTS Your landlord or agent can ask you to pay: Rent in advance (no more than 2 weeks), A bond (only once, equal to four weeks rent), No fee can be charged for preparation of an agreement. Always get a detailed receipt 10

11 BOND Start of tenancy: Landlord/agent must deposit with NSW Fair Trading. You must receive a Bond Lodgement form detailing how much you have paid. You cannot be asked to top up your bond. You can only be asked to pay once during one tenancy agreement. End of tenancy: To claim your bond, fill in Claim for Refund of Bond Money form. If you and landlord/agent agree on amount, both of you can sign it. If you disagree, fill in your amount and return it to Fair Trading. If your landlord does not dispute it, Fair Trading will pay in 14 days. Do not sign a blank form If the landlord claims your bond, Fair Trading will notify you. Seek advice to dispute their claim. 11

12 CASE STUDY: BOND DISPUTE Neville has just vacated his premises. He initially paid a bond of $1400 and a further $340 to top-up his bond when his rent was increased two times. His landlord is claiming $4050 for wear and tear to the premises, including carpet stains, cleaning costs and mould on the ceiling. The landlord and tenant had differing records on the condition of the premises at the start of the tenancy. The end-of-tenancy inspection was carried out in the presence of both Neville and his landlord. However, the condition report was filled out later separately by Neville and his landlord. Neville has photos to support his version of events. The Tribunal found that the landlord s condition report lacked credibility, as it was not filled out at the time of the final inspection. The tenant only had to pay half the initial bond. 12

13 CONDITION REPORTS You must be given two copies of the condition report when you move in. Both you and your landlord/agent must complete both copies. Inspect the premises carefully and note any cracks, stains etc... Take photos and include dates they were taken. If the landlord agrees to undertake any repairs, this should be noted in writing on the report. This is important and can be used as evidence in a dispute over the bond. Return within 7 days. 13

14 DURING YOUR TENANCY Rent increases Repairs Security Access and privacy Enforcing your rights 14

15 RENT INCREASES A landlord/agent may increase the rent provided that: A rent increase is permitted under your agreement, AND They give you correct written notice. This must include: 60 days written notice until the rent increase takes effect. Add 4 days if it was posted. Housing NSW and the Aboriginal Housing Office do not have to give 60 days notice to change your rent rebate. Seek advice if you believe it is invalid. 15

16 HOW OFTEN YOUR RENT CAN BE INCREASED? Agreement Type Fixed term greater than 2 years Fixed term 2 years or less Periodic Permitted Frequency Once in any 12-month period No increase unless your agreement says otherwise No limit Oral agreement None for first 6 months 16

17 RENT ARREARS If you have not paid rent by the date it is due, you are in arrears. If your landlord tells you you re behind in your rent, do not ignore it. Check your receipts and records. Seek advice if you believe your landlord/agent is mistaken. 17

18 IF YOU ARE IN ARREARS Pay the arrears immediately, or Contact your landlord/agent to ask for an arrangement to pay them off over time. Ask for this in writing. The landlord may seek a termination if you fall more than 14 days behind. The termination notice must inform you that if you pay the rent owing, or comply with a repayment plan, you are not required to vacate. 18

19 REPAIRS: WHO S OBLIGATION? Landlord s Obligation Premises should be reasonably clean and fit to live in when you move in Tenant s Obligation Keep the premises reasonably clean Tell the landlord about any damage to the premises ASAP Keep the premises in reasonable repair. They should have regard to the age of the premises, the rent you pay and the prospective life of the premises Leave premises in same condition as when you moved in, except for fair wear and tear Do not damage the premises Do not add or remove fixtures or do any alterations without landlord s written consent Replace batteries in smoke alarms 19

20 GETTING REPAIRS DONE Urgent repairs Are defined in the Act, ie burst water service, blocked toilet. Notify landlord/agent (preferably in writing) about what needs fixing. Keep a copy. Seek advice if they don t carry out the repairs in a timely manner. DO NOT arrange urgent repairs yourself without getting advice as conditions apply for reimbursement. Non-urgent repairs Notify landlord/agent in writing about what needs fixing and by when. Give a clear deadline and keep records. If you wish to carry them out yourself, you must have the landlord s written consent. Ask the landlord to pay you back for costs. 20

21 IF THE LANDLORD FAILS TO DO REPAIRS KEEP PAYING YOUR RENT Seek advice The Tribunal can order repairs to be carried out 21

22 MODIFICATIONS TO THE PREMISES You must have written consent from your landlord to do minor alterations. A landlord cannot unreasonably refuse, provided any damage caused is repaired by the tenant before vacating. Major alterations require written consent, and may be refused even if the request is reasonable. If the landlord consents either: The tenant pays the cost of the alterations, removes them before vacating and repairs any damage; OR The landlord pays the cost of the alterations and they are left behind when the tenant vacates. Different conditions apply to social housing tenants Seek advice before doing alterations 22

23 TELEPHONE AND TV CONNECTIONS Your landlord is not required to provide telephone, internet or TV connections, BUT: If these are connected, they should work. Check your condition report If the connections exist but do not work, your landlord has to repair it. If the connections do not exist and you wish to pay for them, get written consent from your landlord before doing anything. 23

24 SECURITY Your landlord must provide locks and other security devices to keep the premises reasonably secure. Reasonable is not defined in the Act. Ask your home insurer what level of security is required. You must not alter or remove these devices. 24

25 WATER CHARGES You have to pay for the water you use, provided: you have a separate water meter, OR the water is delivered by a vehicle. Different rules apply to social housing tenants Your landlord must provide you a copy of the water bill within 3 months of them receiving it. You must pay it within 21 days. If you have difficulty paying, Sydney Water have a Payment Assistance Scheme 25

26 WATER SAVING MEASURES If your tenancy commenced after 31 January 2011: Your landlord must have installed water efficiency devices that have a flow rate of 9 litres per minute on all showerheads, internal cold water and single mixer taps on kitchen and bathroom sinks. There must be no leaking taps. If your tenancy commenced before 31 January 2011: Your landlord has until 31 January 2012 to comply. 26

27 ACCESS AND PRIVACY You are entitled to reasonable peace, comfort and privacy in your premises. Your landlord/agent must not interfere with this. Unless you give consent, or certain notice requirements are met, your landlord may only enter the premises if: There is an emergency; They believe the premises are abandoned; The Tribunal orders it. 27

28 ENTRY WITHOUT CONSENT Purpose Maximum Frequency Minimum Notice Inspect the premises Assess or carry out non-urgent repairs Value the property 4 times in any 12 month period as required Once in any 12 month period 7 days written notice 2 days each time 7 days each time Show the premises to prospective tenants Show the premises to prospective buyers A reasonable number of times no more than 14 days before your agreement ends 2 times in any period of a week Reasonable notice each time 14 days before first showing, before each showing as agreed, otherwise 48 hours each time 28

29 PETS AND TENANCIES The new standard form tenancy agreement has a clause relating to pets If you are allowed to have pets, make sure this clause is not crossed out If your tenancy is verbal and you are allowed pets, get this in writing If you have pets with consent, you may be required to get the carpets professionally cleaned when your tenancy ends if damage has occurred. You do not need consent for a guide dog or a hearing dog. 29

30 PETS AND STRATA TENANCIES If your premises are strata scheme (units with an owners corporation): You must be given a copy of the By-Laws. Read it carefully for provisions relating to pets. If you need the owner s corporation written permission, make sure you get it before signing your tenancy agreement. If this is not possible, make an additional written term in your agreement. 30

31 ENFORCING YOUR RIGHTS Consumer, Trader and Tenancy Tribunal (CTTT) You may apply to the CTTT for orders for breach of your residential tenancy agreement. The Act sets out all the criteria for applications. Fair Trading penalties Fair Trading NSW may issue penalty notices in some instances, or prosecute landlords in some cases. Get advice before you seek to enforce your rights. 31

32 ENDING YOUR TENANCY SEEK ADVICE Your notice of termination has to meet certain criteria, including notice period and service. A tenancy service can assist you. Before you vacate the premises. You may be liable to pay compensation. 32

33 NOTICE PERIODS - FIXED TERM AGREEMENT Ground for Notice End of fixed term Hardship of tenant Amount of Notice 14+ days before fixed term expires Not applicable Liable for compensation? No Possibly, depends if break fee is crossed out in Agreement Fixed term of more than 2 years where rent is increased more than once in 12 months Early termination on extraordinary ground* 21 days No 14 days No Death of co-tenant* 21 days No Death of sole tenant* Not applicable No 33

34 Early termination on extraordinary grounds. 14 days notice with no liability to pay compensation or additional amounts if: you have accepted an offer of a social housing tenancy; you are moving into an aged care facility; landlord intends to sell the premises and did not disclose this to you before the agreement was entered into. Death of co-tenant: Remaining tenants can continue as sole tenants, or give 21 days notice. Death of sole tenant: Landlord or tenant s representative can give notice to each other. Vacant possession prior to that date ends any rental liability. 34

35 CASE STUDY: BREAKING FIXED TERM AGREEMENT EARLY Some elderly people sell their homes when they become too big to manage. They may move into a rental property whilst they are looking for smaller premises or a place in a retirement village. They find the rental property is not suitable for various reasons. Many of these tenants contact OPTS to break their agreements early. Reasons such as your dog is upset by the new surroundings, or the next door neighbour keeps racing pidgeons are insufficient reasons for the Tribunal to break the fixed term agreement early. You need to make sure the premises are suitable to you before you move in. 35

36 NOTICE PERIODS - PERIODIC AGREEMENTS Ground for Notice No grounds Amount of Notice 21 days No grounds - by co-tenant Breach by landlord Death of co-tenant Death of sole tenant 21 days 14 days 21 days Same as fixed term 36

37 LANDLORD WANTS YOU TO LEAVE SEEK ADVICE if you receive a notice of termination or a notice of CTTT hearing about the termination of your tenancy. A termination notice specifies the date you have to vacate by. If you vacate before this date, you are not liable to pay rent. If you do not leave by the date specified in the notice, the landlord can apply to the CTTT for a termination order. If you are not out by the day specified in the order, the landlord can get a warrant of possession and a Sheriff s officer can remove you from the premises. In some cases the landlord can apply to the CTTT without giving you a notice. 37

38 NOTICE PERIODS - LANDLORD S NOTICE Ground for notice Amount of notice No ground* 90 days Sale of premises 30 days Breach by tenant 14 days Tenancy 20 years or more* Not applicable 38

39 No grounds: On the landlord s application, the Tribunal must terminate the agreement. Tenancy 20 years or more: The landlord does not need to issue a termination notice to apply to the Tribunal, BUT The Tribunal must consider the circumstances of the case (eg. how long you have lived there) and decide if it is appropriate to terminate. NOTE: A social housing provider can end a tenancy on other grounds as well, eg you have not accepted alternative social housing premises. 39

40 UNCOLLECTED GOODS If you leave goods behind when you vacate: The landlord can dispose of perishable goods immediately; The landlord must give you or your legal representative notice of disposal in writing or verbally that: Personal documents (photographs, passports) will be kept for 90 days. Other goods will be kept for 14 days. If you do not collect the goods within that time, or make arrangements to collect them the landlord can legally dispose of the goods. This includes selling them. Seek advice urgently if you have goods left behind. There are strict time limits for applying to the Tribunal. 40

41 YOU SHOULD GET ADVICE IF Either you or your landlord/agent have made an application to the Consumer, Trader and Tenancy Tribunal You are in share housing You would like to transfer your tenancy or sublet part of your premises You are listed on a tenant database The landlord defaults on their mortgage The premises are unforeseeably uninhabitable, eg storm damage You are a tenant in a Strata Scheme 41

42 WHERE TO GET MORE ADVICE Fair Trading CTTT Law Access NSW Tenants Advice and Advocacy Services Housing NSW EWON Older Persons Tenants Service NSW Home Modification & Maintenance Services Tenant Resource Participation Services Smoke Alarm Battery Replacement for the Elderly (SABRE) The Aged Care Rights Service 42