Residential Tenancy in Western Australia An educational guide

Transcription

1 Residential Tenancy in Western Australia An educational guide An educational guide and teaching aid about the laws, rights and responsibilities of residential tenants in Western Australia.

2 Contents Produced by the Northern Suburbs Community Legal Centre Inc (a not for profit community legal service) at 10 Cobbler Place, Mirrabooka, WA Phone: (08) Introduction... 1 Who does the law apply to?... 2 Who does the law not apply to?... 3 Definitions... 4 Starting a tenancy How to find a rental property... 5 Before applying for a rental property... 6 What are option fees?... 7 How to apply for a rental property... 8 Department of Housing: Priority Housing... 9 Two weeks rent in advance Security bonds Assistance with the bond and rent The tenancy agreement Types of tenancy agreements Property Condition Report (PCR) What to look for when moving in Get your information organised! During a tenancy Your responsibilities Paying rent on time Utility bills: gas, electricity and water Rent increase Tenants right to privacy and enjoyment Routine inspections Tenants conduct Maintenance and repairs Summary of responsibilities When you breach the agreement When the lessor breaches the agreement Ending a tenancy Returning the property in the same condition Final cleaning Witnesses, photos and retuning keys Getting back your bond money Contacts... 33

3 Introduction This guide was designed to be an educational resource and guide for people who rent residential properties and also to be used as a teaching aide to help people, in particular those from indigenous and culturally and linguistically diverse backgrounds understand the laws and issues concerning residential tenancy in Western Australia. This guide does not cover issues concerning commercial leases that involve businesses, offices or retail shops. The guide begins by examining some basic concepts concerning tenancy and then chronologically explores tenancy issues from the perspective of a residential tenant in three phrases, namely: 1. Starting a Tenancy; 2. During a Tenancy; and 3. Ending a Tenancy. The goal of this guide is to provide legal education of a preventative nature in order to increase social inclusion and integration in our community. This guide was produced by the Northern Suburbs Community Legal Centre Inc. (a non for profit community legal service) which operates a residential tenant advocacy service as part of their community legal services. In partnership with Mercycare we are now implementing usage of this guide as part of the Rental Ready Course where the guide is used in conjunction with teaching and illustrative roleplay to help people become better tenants. Disclaimer This booklet is a general guide only and while we made every attempt to present accurate information, it does not constitute legal advice and it does not replace the Residential Tenancies Act The Northern Suburbs Community Legal Centre Inc. disclaims liability for any loss or damage arising from its use. Readers needing legal advice should consult a qualified legal practitioner or tenant advocate. This publication covers tenancy agreements entered into after 1 July For information about agreements entered into prior to 1 July 2013, contact your local tenancy advocate or the Department of Commerce on or go to The Northern Suburbs Community Legal Centre Inc is a non profit community legal service that was established in July 2013 Residential Tenancy in Western Australia 1

4 Who does the law apply to? Residential Tenancy laws Renting a property in Western Australia is governed by the law called the Residential Tenancies Act 1987 (RTA) and the Residential Tenancy Regulations The RTA provides a legal framework for regulation of the rights and responsibilities for all residential tenancies whether they are private rentals or properties owned by the Department of Housing. The RTA applies to both written and verbal leases or agreements. Note: The Department of Housing has a few exemptions relating to rent increases, rent receipts and bond lodgment but otherwise the laws contained in the RTA also applies to their properties. The RTA does not apply to commercial properties such as shops or office buildings. In other words if you are renting a place to live regardless of whether there is a written agreement or not, the RTA will always apply. Discrimination laws In Australia it is unlawful under the Equal Opportunity Act 1984 for a lessor or real estate agent to discriminate against any person renting or seeking rental accommodation based on race, age, sex, pregnancy or marital status. On these grounds you cannot be refused an application; have your application s priority changed or be charged higher rent. You also cannot be refused a rental simply because you have children. For more information about discrimination see the Equal Opportunity Commission s website: or contact a tenant advocate. If a dispute arises between the tenant and lessor and it cannot be resolved, then the RTA provides the legal framework for the matter to be decided in the Magistrate s Court of Western Australia. 1 July 2013 Residential Tenancy in Western Australia 2

5 Who does the law not apply to? Important: Boarders and lodgers are not tenants Borders and lodgers do not have any protection under the RTA and sometimes determining whether someone is a tenant, a border or a lodger may be difficult. Generally, borders or lodgers are people who pay fees to sleep in a room such a dormitory or boarding house. Often they share accommodation with other people and the fees they pay may include meals and utility costs. Borders and lodgers generally do not have keys and thus do not have exclusive possession to any part of the property. It should be noted that lessors can evict borders and lodgers anytime without notice and do not have to provide a reason why. While a border and lodger cannot dispute an eviction under the RTA they may be able to undertake a civil action in the Magistrate s Court. It is highly recommended however, that any legal action be undertaken only after getting qualified legal advice. If you live in shared accommodation and have any issues it is recommended you seek legal advice. The RTA also does not apply to holiday accommodation, hotels/motels, most colleges and educational institutions, hospitals, nursing homes, clubs, some homes for aged and disabled persons and most long stay caravan and park home residents. For more information contact the Department of Commerce advice line on or download the brochure Boarders and Lodgers from 1 July 2013 Residential Tenancy in Western Australia 3

6 Definitions Breach of agreement: When you or the lessor break a term or condition of the tenancy agreement. Department of Housing: Is the government agency that provides rental properties to people on low incomes. The Department of Housing is also known as the lessor. Fair wear and tear: Anything that occurs during ordinary use of a property e.g. curtains that become faded in the sun. Intentional damage or negligent damage is not fair wear and tear. Fixed-term tenancy: A tenancy agreement that states the date you have to move out. Lessor: A person who rents out a property to you. Sometimes called the owner or landlord. Option fee: A fee charged when a prospective tenant makes an application to rent a property. Periodic tenancy: A tenancy agreement that does not state when you have to move out. Pet bond: Money you pay if you want to have a pet in the property. Not all lessors will allow you to have a pet. Property: Includes the building (house, unit, flat, duplex, apartment), garden, sheds, etc. Property condition report (PCR): This states the condition of the property e.g. cupboards, walls, ceilings, doors, furniture and appliances. PCRs must be done when you move in and move out of the property. Property manager: A person who rents out a property to you, but does not own the property e.g. real estate agent. Property managers are referred to as lessors in this document. Rent: The money you pay to the lessor to stay in the property. Security bond: Money you pay in case you damage the property. This money must be kept with the Bond Administrator and not the lessor. Tenant: A person who rents a property from a lessor. 1 July 2013 Residential Tenancy in Western Australia 4

7 Starting a tenancy How to find a rental property Where to look The most common ways of finding a rental property are through: real estate agents; newspaper advertisements (such as the West Australian, Quokka or local community newspapers); internet (such as word of mouth; notice boards at shopping centres; applications to the Department of Housing. Generally people search for rental properties and then visit the actual property during certain opening times called open home which is arranged by the lessor. Other things to think about It is important that you consider rental properties that you can afford and that they are located where you want to live. You should also think about whether you need the rental property to be near public transport, school, daycare centres and shops. How much will it cost? Once you find a suitable property you need to we aware of the legalities of renting a property as well as up front costs such as: option fees two weeks rent in advance a security bond (and pet bond if applicable) The Department of Housing has its own processes for people looking to rent their properties and this begins by completing an application for housing and lodging it at one of their offices. 1 July 2013 Residential Tenancy in Western Australia 5

8 Starting a tenancy Before applying for a rental property What are the costs? Before applying for a rental property you need to make sure that you can afford to pay the rent and all the upfront fees. Example: If the rent is $380 per week it could cost you $2,280 to move in. You might have to find the money to pay for: Rent in advance (2 weeks rent) = $760 A security bond (4 weeks rent) = $1520 If you have a pet you may have to pay up to $260 as a pet bond Other costs such as transporting belongings to the property, costs for telephone, internet, gas and electric connections. Reference letters It is a good idea to have two or three reference letters from people who can tell the lessor that you are a good tenant. Help if you are on a low income If you have a low income you can apply for a bond loan and the 2 week rent in advance form the Department of Housing. You can get a good idea of what you can get for your money by looking the to let section of newspapers, real estate agent s windows or searching on the internet. Option fees The lessor may ask you to pay an option fee when you make an application to rent a property. The most that you will pay depends on how much the weekly rent is. More about option fees on the next page. 1 July 2013 Residential Tenancy in Western Australia 6

9 Starting a tenancy What are option fees? What is an option fee? An option fee is sometimes charged by a lessor or property manager (real estate agent) when you make an application to rent a house. The Department of Housing does not charge an option fee. Why do I have to pay an option fee? Lessor and property managers sometimes charge an option fee to make sure you really want to rent the house. How much is an option fee? If the rent is $500 or less per week then you cannot be charged more than $50. If the rent is more than $500 per week then you cannot be charged more than $100. Do I get the option fee back? Yes. If you do get the house the option fee must be returned to you or put towards your payment of rent. If you don t get the house the option fee must be returned to you within seven days. The option fee must be given back to you in cash or put into your bank account (Electronic Funds Transfer EFT). It must not be given back to you in a cheque. 1 July 2013 Residential Tenancy in Western Australia 7

10 Starting a tenancy How to apply for a rental property Filling out the application If you are applying for a rental property you may have to fill in an application form and pay an option fee. When you sign the application form you are giving the lessor permission to check Residential Tenancy databases (RTDs). Some application forms require a 100 point identity check Submitting an application does not mean that you will get the property There is no standard application form In the case of a private lessor an application may not be required and some of them may want to interview you. It may take several days or longer before you are notified if your application was successful or not. It is also a good idea to submit reference letters from people who will say you are a person of good character. The Department of Housing has their own eligibility requirements and do not charge application costs or Option Fees. For more information about qualifying for Department of Housing properties please see their website: or visit one of their offices. What is a Residential Tenancy Database (RTD)? RTDs are used to check your rental history and lessors/property managers use them to find out if you have breached a tenancy agreement in the past. Lessors/property managers want to have the best tenants for their properties so it is a good idea not to get placed on a RTD. If you have been listed on a RTD you should contact your local tenant advocate for advice. 1 July 2013 Residential Tenancy in Western Australia 8

11 Starting a tenancy Department of Housing: Priority Housing Urgent housing needs People with an urgent housing need and no other viable accommodation options can apply to the Department of Housing for priority assistance. This involves an application form and a personal interview. Such applications however, are not automatic and the grounds for priority assistance are based on the following situations: homelessness medical needs family or domestic violence racial or other harassment the need to reunite children with family The Department of Housing has their own eligibility requirements and do not charge application costs or option fees. For more information about qualifying for Department of Housing properties please see their website: or visit one of their offices. Important: You will not be eligible for priority housing if you simply cannot afford private rental or do not have a job. You should also note it is your responsibility for keeping the Department of Housing updated with your current address. If for example your turn for priority housing comes up and the Department cannot locate you because you have not provided them with your new address, you may be removed from the list. For more information about Priority Housing contact the Department of Housing directly. If accepted on a priority status you are placed on a waiting list and the time frame for being offered a property could be years depending on each situation and availability. 1 July 2013 Residential Tenancy in Western Australia 9

12 Starting a tenancy Two weeks rent in advance Before moving into a rental property a lessor is entitled to request from the tenant up to two weeks rent in advance. In other words your next rental payment will be two weeks later. Typically this two week advance payment is paid along with your security bond when signing the lease. The lessor must not ask you for more than 2 weeks rent in advance through out the tenancy agreement. You can pay your rent monthly if that suits you better, but you can go back to paying every two weeks at any time. If you are on a low income and don t have the two weeks in advance when you first move in you may be able to get a loan from the Department of Housing. 1 July 2013 Residential Tenancy in Western Australia 10

13 Address continued... Starting a tenancy Security bonds Rental Property Details Address Address continued... Lodgement of Security Bond Money Residential Tenancies Act Section 29, Schedule 1 Residential Parks (Long-stay Tenants) Act Section 22 Bond Administrator Postal Address: Bond Administrator 219 St Georges Terrace Locked Bag 14 Perth WA 6000 Cloisters Square WA 6850 Is this a residential park (long-stay) bond? Yes Booklet Number of Page 1 of 4 Advice Line: Web: IMPORTANT: If you require additional space (for example, more than three tenants) then please fill in additional forms and link them together by indicating the number of booklets below. Suburb Postcode Tenancy Start Date (DD / MM / YYYY) Tenant(s) / / Postal Address (If different from Rental Property Details) Address continued... Is the tenant an organisation? * Yes Suburb State Postcode What is a security bond? A security bond is a deposit (of no more that four weeks rent) that you give to the lessor. This money is used at the end of the tenancy to cover any costs for property damage, water usage or outstanding rent. If there is no dispute about you owing money at the end of the tenancy you are entitled to receive a full refund of the full bond. What happens when you pay the bond? When you give the bond money to the lessor you should also be asked to sign a Lodgment of Security Bond Money form. As soon as you pay the lessor the bond money they must give you a receipt for the money. Where is the bond deposited? For tenancy agreements that start after 1 July 2013, the lessor must deposit the bond with the Department of Commerce s Bond Administrator within 14 days of receiving the money from you. What you are responsible for You are responsible for damage to the property caused by your friends and family. When your tenancy ends you should leave the property in the same condition as it was when you moved in otherwise the lessor can claim part or all of your bond money to cover the cost of cleaning and repairs. You are not responsible for fair wear and tear. Department of Housing The Department of Housing can provide bond loans for private rental properties if you need assistance paying the bond money. As of 1 July 2013 new Department of Housing tenants are no longer required to pay a bond. 1 Address Family Name / Organisation Name Given Name / Organisation Name continued... Other Names Contact Number Signature (please stay inside border) 2 Family Name / Organisation Name Given Name / Organisation Name continued... Other Names Address Date of Signature (DD / MM / YYYY) / / Please continue on next page IMPORTANT - Do not sign this form until you have read the information on the last page of the form *Not to be used for Commercial Tenancies July 2013 Residential Tenancy in Western Australia 11

14 Starting a tenancy Assistance with the bond and rent Department of Housing The Department of Housing can provide bond loans for private rental properties if you don t have enough bond money. As of 1 July 2013 new Department of Housing tenants are no longer required to pay a bond. Centrelink rent assistance If you receive any Centrelink payment, other than Family Tax Benefit, you may be eligible for rent assistance. This is an additional payment to help pay the cost of private or community housing and the amount will depend on your family size and how much rent you pay. Rent assistance is not available to Department of Housing tenants. For more information contact Centrelink directly or go to gov.au/internet/internet.nsf/payments/rent_eligible.htm 1 July 2013 Residential Tenancy in Western Australia 12

15 into occupation of the premises. Starting a tenancy The tenancy agreement PART A This agreement is made between: FORM 1AA RESIDENTIAL TENANCY AGREEMENT RESIDENTIAL TENANCIES ACT 1987 (WA) Section 27A Space for AGENT S CONTACT DETAILS Lessor [name of lessor(s)] [lessor(s) contact details] ADDRESS: TELEPHONE: (optional) (optional) and Tenant [name of tenant(s)] [tenant(s) contact details] ADDRESS: TELEPHONE: Lessor s property manager [name of lessor s property manager (if any) and contact details] TERM OF AGREEMENT (* delete as appropriate) * This residential tenancy agreement is periodic - starting on / /. * This residential tenancy agreement is fixed - starting on / / and ending on / /. Note: The start date for the agreement should not be a date prior to the date on which the tenant is entitled to enter RESIDENTIAL PREMISES What is a tenancy agreement? From 1 July 2013 a standard tenancy agreement (Form 1AA) must be used if there is a written agreement between you and the lessor/ property manager. The conditions in the standard agreement cannot be contracted out of, but additional conditions can be added. If you are successful in your application you will be asked to sign a tenancy agreement. It gives you the right to live in rental housing in exchange for rent (money). There are two types of tenancy: 1. A fixed term tenancy is for a definite amount of time. A fixed term tenancy has a start date and a end date. 1. A periodic tenancy is for a indefinite amount of time. There is no definite end date. What does the agreement say? The tenancy agreement is a legally binding contract between you and the lessor and it sets out the conditions of the tenancy. The residential premises are [insert address] and include/exclude*(* delete as appropriate): [include any additional matters, such as a parking space or furniture provided, or any exclusions, such as sheds] MAXIMUM NUMBER OF OCCUPANTS No more than [insert number] persons may ordinarily live at the premises at any one time. RENT (* delete as appropriate) The rent is [insert amount] $ per week/calculated by reference to tenants income [insert calculation] Payable weekly/fortnightly* in advance starting on / /. The method by which the rent must be paid is: (* delete as appropriate) (a) by cash or cheque*; or (b) into the following account or any other account nominated by the lessor*: BSB: Account number: Account name: Payment reference: or (c) as follows*: FORM 1 AA Residential Tenancy Agreement Page 1 of 9 The agreement guides what happens if either you or the lessor breaks one of the conditions. Read the agreement carefully and make sure you understand and agree with the conditions and obligations that are in the agreement before you sign it. If you do not understand any part of the agreement ask to have it explained to you. If English is not your first language you should make sure you have the help of an interpreter. Do not sign it unless you fully understand it! 1 July 2013 Residential Tenancy in Western Australia 13

16 into occupation of the premises. Space for AGENT S CONTACT DETAILS Starting a tenancy Types of tenancy agreements PART A This agreement is made between: FORM 1AA RESIDENTIAL TENANCY AGREEMENT RESIDENTIAL TENANCIES ACT 1987 (WA) Section 27A Lessor [name of lessor(s)] [lessor(s) contact details] ADDRESS: TELEPHONE: (optional) (optional) and Tenant [name of tenant(s)] [tenant(s) contact details] ADDRESS: TELEPHONE: Lessor s property manager [name of lessor s property manager (if any) and contact details] TERM OF AGREEMENT (* delete as appropriate) * This residential tenancy agreement is periodic - starting on / /. * This residential tenancy agreement is fixed - starting on / / and ending on / /. Note: The start date for the agreement should not be a date prior to the date on which the tenant is entitled to enter RESIDENTIAL PREMISES The residential premises are [insert address] and include/exclude*(* delete as appropriate): What is a fixed term tenancy agreement? A fixed term tenancy is for a definite amount of time. A fixed term tenancy has a start date and a end date. Fixed term leases are usually for a period of 6 or 12 months, but can be as short as three months or as long as two or more years. The rent cannot be increased during the fixed term unless the increase, or the method of calculating the increase, is set out in the tenancy agreement. The rent cannot be increased more than once every six months and you must be given at least 60 days notice of the increase. The notice must be in writing and it must be made using a Form 10. If your fixed term tenancy is coming to an end and you want to enter into a new agreement for the same property, the lessor does not have to give you 60 days notice but the rent cannot increase for the first 30 days of the new agreement. Neither you, nor the lessor can end a fixed tenancy before the end date (except by mutual agreement) without a lawful reason to do so. What is a periodic tenancy agreement? A periodic tenancy is for a indefinite amount of time. There is a start date but no definite end date. [include any additional matters, such as a parking space or furniture provided, or any exclusions, such as sheds] MAXIMUM NUMBER OF OCCUPANTS No more than [insert number] persons may ordinarily live at the premises at any one time. RENT (* delete as appropriate) The rent is [insert amount] $ per week/calculated by reference to tenants income [insert calculation] Payable weekly/fortnightly* in advance starting on / /. The method by which the rent must be paid is: (* delete as appropriate) (a) by cash or cheque*; or (b) into the following account or any other account nominated by the lessor*: BSB: Account number: Account name: Payment reference: or (c) as follows*: Typically periodic tenancy agreements involve situations where a fixed term tenancy has expired and you have been allowed to continue living there. Periodic tenancy agreements can also be verbal and rent receipts can be used as proof that a periodic tenancy exists. The rent cannot be increased more than once every six months and you must be given at least 60 days notice of the increase. The notice must be in writing and it must be made using a Form 10. To end a periodic tenancy where their is no breach of agreement: If the lessor wants to end the tenancy agreement they must give you 60 days notice in writing (no reason is necessary); or If you want to end the tenancy agreement you must give the lessor 21 days notice in writing. FORM 1 AA Residential Tenancy Agreement Page 1 of 9 1 July 2013 Residential Tenancy in Western Australia 14

17 Starting a tenancy Property Condition Report (PCR) HOW TO COMPLETE THIS FORM FORM 1 Property Condition Report RESIDENTIAL TENANCIES ACT 1987 (WA) Section 27C(6) Space for AGENT S CONTACT DETAILS 1. Before the tenancy begins, the lessor or the property manager should inspect the residential premises and record the condition of the premises by indicating whether the particular room item is clean, undamaged and working by placing Y (YES) or N (NO) in the appropriate column. Where necessary, comments should be included in the report. 2. Two copies of the report, which has been filled out and signed by the lessor or the property manager, must be given to the tenant within 7days of the tenant moving into the premises. 3. As soon as possible after the tenant receives the property condition report, the tenant should inspect the residential premises and complete the tenant section on both copies of the report. The tenant indicates or disagreement with the condition indicated by the lessor or the property manager by placing Y (YES) or N (NO) in the appropriate column and by making any appropriate comments on the form. 4. The tenant must return one copy of the completed property condition report to the lessor or the property manager What is a Property Condition Report (PCR)? A PCR is a report that describes the condition of your rented premises when you move in and when you move out. From 1 July 2013 PCRs are compulsory. The PCR describes the condition of the property, such as: state of repair, cleanliness, existing damage, state of the garden, condition of the walls etc Why are PCRs important? When a tenancy ends the PCR will be used as evidence should there be a dispute between you and the lessor about maintenance and repairs or about the return of bond money. How is the PCR prepared? When you rent a property the lessor must give you two copes of the PCR within 7 days of you moving in. Check the report carefully and change anything you disagree with on both copies. Keep a copy of the changes and send one copy back to the lessor within 7 days of receiving it. Important: If you do not return a copy of the changes to the lessor, you are considered to have agreed with the one you were given. Tips for completing a PCR: Inspect the property with an independent witness Both you and the witness should sign and date the PCR Take photographs of any damage to the property when you move in (make sure they are dated). within 7 days after receiving it. The tenant should keep the second copy of the property condition report. 5. If photographs or video recordings are taken at the time the property inspection is carried out, it is recommended that all photographs or video recordings are signed and dated by all parties. NOTE: Photographs and/or video recordings are not a substitute for accurate written descriptions of the condition of the property. 6. As soon as practicable, and in any event within 14 days after the termination of the tenancy agreement, the lessor or the property manager should complete a property condition report, indicating the condition of the premises at the end of the tenancy. This should be done in the presence of the tenant, unless the tenant has been given a reasonable opportunity to be present and has not attended the inspection. IMPORTANT NOTES ABOUT THIS PROPERTY CONDITION REPORT 1. This property condition report is an important record of the condition of the residential premises when the tenancy begins. It may be used as evidence of the state of repair or general condition of the premises at the commencement of the tenancy if there is a dispute, particularly about the return of the security bond money and any damage to the premises. It is important to complete the property condition report accurately. 2. A property condition report must be filled out whether or not a security bond is paid. 3. At the end of the tenancy the premises must be inspected and the condition of the premises at that time will be compared to that stated in the original property condition report. 4. A tenant is not responsible for fair wear and tear to the premises. Fair wear and tear is a general term for anything that occurs through ordinary use such as the carpet becoming worn in frequently used areas. Wilful and intentional damage, or damage caused by negligence, is not fair wear and tear. 5. If you do not have enough space on the report, attach a separate sheet. All attachments should be signed and dated by all of the parties to the residential tenancy agreement. 6. Information about the rights and responsibilities lessors and tenants may be obtained by contacting the Department of Commerce on or visiting further information about tenancy rights, refer to the Residential Tenancies Act 1987 or contact the Department of For Commerce on or Protection. For Translating and Interpreting Services please telephone TIS on and ask to speak to the Department of Commerce ( ) for assistance. CP02625/2012 JULY 2013 FORM 1 version 05 FORM 1 PROPERTY CONDITION REPORT Page 1 of 5 Remember to check the outside of the property including yards (back, front, sides), sheds, garages, letter box, driveway etc. What happens at the end of the tenancy? When you leave the property the lessor must give you another updated PCR within 14 days. You must also be given a reasonable opportunity to be present at the final inspection. 1 July 2013 Residential Tenancy in Western Australia 15

18 Starting a tenancy What to look for when moving in What to look out for: In addition to checking the condition of house with what it specifically says in the PCR, there are other important things you should check to avoid future problems such as: Is the house (doors, windows, locks etc) secure? Does the stove and hot water system work? Is the property free of vermin like termites, mice, cockroaches or fleas? Are there any leaking taps? If you notice that these things are not working properly when doing the inspection, you should request them to be fixed and also to specify a deadline. Important: You should always put such requests in writing. Under the law the lessor has to make sure that at the start of a tenancy the house is secure and is in a reasonable state of cleanliness and repair. They must also fix major faults straight away. 1 July 2013 Residential Tenancy in Western Australia 16

19 Starting a tenancy Get your information organised! It is strongly recommended you keep all your tenancy documents and related information in one central organized folder. It doesn t matter what kind of folder but the important thing is that all your tenancy documents are readily accessible and don t get lost. For example: if you lose your Property Condition Report (PCR), you may not be able to successfully defend yourself against unfair costs deducted from your bond when you end the tenancy. You should keep copies of your lease agreement, a copy of your PCR, rental receipts and all other written notes, letters, and so on. You should also write down times, dates and details (including exactly who you spoke to) of any phone calls or contact you have with your lessor or property manager. For example: If you call the property manager to notify them of a broken water tap, you should write down the date, time, who you spoke to at the property managers office. This written information will be needed in case any potential dispute arises about who should pay the repairs of the broken water tap or who has to pay any excessive water bills. 1 July 2013 Residential Tenancy in Western Australia 17

20 During a tenancy Your responsibilities Your responsibilities After signing the lease and moving in you should always pay your rent on time, keep the premises reasonably clean and tidy, and notify the lessor/agent of any property damage. You should notify the lessor within three days of any damage to the property and be aware if you cause or allow damage to occur intentionally or by being negligent you will likely be held accountable. It is also recommended to keep the rental property free from vermin such as mice, cockroaches, fleas and termites. If you have a dispute with the lessor If however, you do experience a dispute with your lessor or Department of Housing it is strongly advised you get assistance from agencies that deal with residential tenancy (see Contacts at the end of this document). Prevention of such problems is always the best course of action and this section of this booklet titled During a Tenancy discusses important issues that can prevent tenancy problems from arising. If for example you get evicted from a property you may be placed on a Residential Tenancy Database (RTD). A RTD is database that lists undesirable tenants, thus a lessor can check these lists to see if potential renters are desirable or not. It can be difficult to get your name removed from a RTD. The lessor has certain obligations to you in relation to the use of RTDs. Lessors must inform you if they use RTDs, if they find your name on an RTD and if the they are going to place your name on an RTD. For more information on RTD s download a factsheet from Important: You should also always ask for and keep receipts for any money transactions made concerning your tenancy. 1 July 2013 Residential Tenancy in Western Australia 18

21 During a tenancy Paying rent on time You should always try to pay your rent on time and many tenants today arrange to have their rent paid automatically through direct debit payments. To avoid legal action it is important that you contact the lessor to explain your financial situation and what arrangements you will make to pay the rent arrears. Get the agreement in writing if the lessor agrees with you repaying the rent arrears by a certain date or by installment. If you are unable to pay your rent due to financial hardship, you should seek assistance with a financial counsellor, community worker or a tenant advocate as soon as possible to arrange negotiations between you and the lessor. If you fail to pay your rent on time the lessor can commence legal action to have you evicted. This does not happen automatically and there are processes that must be followed. These processes have different time frames and it will take a minimum of 21 days for the matter to be heard in Court. Either way you will first receive a written notice that you are in rent arrears (haven t paid your rent). We strongly recommend that you seek assistance from a tenant advocate upon receiving any notice concerning eviction or non payment of rent. It is generally recommended that you make paying rent a priority over other outstanding bills. Important: You do not have to vacate the premises if there is no Court order and the Court will always notify you in writing of any upcoming legal action. 1 July 2013 Residential Tenancy in Western Australia 19

22 During a tenancy Utility bills: gas, electricity and water When you sign a tenancy agreement with the lessor it is your responsibility to organise the gas and electricity bills to be put in your name. You may have to show a copy of your tenancy agreement to the utility company. When leaving a tenancy it is also your responsibility to ring the utility companies at the end of the tenancy to cancel their accounts or transfer their account to their new address. If you do not cancel/transfer your utility accounts when you leave a tenancy then you might end up paying utility bills for any new tenant that comes into that property after you leave. Most tenancy agreements also require you pay for water they use, but water bills are usually sent to the lessor of the property. The lessor will then pass this bill onto the tenant for payment (water bills usually are issued on a 6 monthly basis). 1 July 2013 Residential Tenancy in Western Australia 20

23 During a tenancy Rent increase FORM 10 Space for AGENT S CONTACT DETAILS Notice to Tenant of Rent Increase (except for rent calculated by tenant s income) RESIDENTIAL TENANCIES ACT 1987 (WA) Section 30 To: (name of tenant/s) Rent increases in a fixed term tenancy The rent cannot be increased during the fixed term unless the increase, or the method of calculating the increase, is set out in the tenancy agreement. The rent cannot be increased more than once every six months and you must be given at least 60 days notice of the increase. The notice must be in writing and it must be made using a Form 10. If your fixed term tenancy is coming to an end and you want to enter into a new agreement for the same property, the lessor does not have to give you 60 days notice but the rent cannot increase for the first 30 days of the new agreement. For the lessor to be able to increase the rent during the term of a fixed term tenancy, the tenancy agreement must set out the amount of the increase (e.g. $20 per week) or the method of calculating the amount of the increase (e.g. increase by CPI or a percentage amount). Rent increases in a periodic tenancy The rent cannot be increased more than once every six months and you must be given at least 60 days notice of the increase. The notice must be in writing and it must be made using a Form 10. Important: It should be noted that the lessor and the tenant can always come to a mutual agreement on the amount of any rent increase. (name of tenant/s) I hereby give you notice of an increase in rent in relation to premises at: (address of premises) As from / / your rent will be increased by $ per week The new total of rent payable including the increase shall be $ per week / / is the date that the first payment of increased rent is due The total amount of rent payable on that date is $ See below for important information regarding certain limitations to rent increases under Section 30. Signed: Date: / / (lessor/property manager) Address: SERVICE INFORMATION FOR THE LESSOR (LANDLORD) If the matter goes to Court you will have to produce evidence of service. Service may be effected by various means, for example: by personal delivery (you may seek the assistance of a bailiff or other process server); or by post (normal post not registered post). You can deliver the notice to the tenant, a resident of the rented premises who is apparently over 16 years, or to a person who ordinarily pays the rent. Service may be on any one tenant if there are more than one. For full details about the service of notices and documents see Section 85 of the Residential Tenancies Act IMPORTANT INFORMATION FOR TENANTS By providing this notice, the lessor (the landlord) is advising you that your rent will be increased by the amount stated on this form. The rent cannot be increased more than once every 6 months and the lessor (the landlord) must give at least 60 days notice. A fixed-term tenancy is a tenancy with an end date. For a fixed-term tenancy, the rent cannot be increased during the fixed term unless the rent increase, or the method of calculating the rent increase, is set out in the tenancy agreement. You should seek advice immediately if you do not understand this notice or if you require further information. For further information about tenancy rights, refer to the Residential Tenancies Act 1987 or contact the Department of Commerce on or Protection. For Translating and Interpreting Services please telephone TIS on and ask to speak to the Department of Commerce ( ) for assistance. CP02625/2012 JULY 2013 FORM 10 version 04 1 July 2013 Residential Tenancy in Western Australia 21

24 During a tenancy Tenants right to privacy and enjoyment FORM 19 Notice of Intention to Enter Premises Space for AGENT S CONTACT DETAILS RESIDENTIAL TENANCIES ACT 1987 (WA) Section 46 To: (name of tenant/s) (name of tenant/s) I hereby give you notice that I will enter the premises at: As a tenant you have a right to quiet enjoyment and reasonable peace, comfort and privacy of the property. The lessor or anyone acting on their instructions (like a tradesperson) are not permitted to enter the property unless you have been given a reasonable amount of notice. How often can the lessor inspect the property? From 1 July 2013 a lessor may only conduct four routine inspections in any 12 month period. Does the lessor have to give me notice? The lessor is entitled to enter the rental property in certain circumstances, but cannot do so and come on the property unless they have given the tenant proper lawful notice when they want to do so. If the lessor does not provide proper notice to you, by law they cannot enter the rental property without your consent. For example: If the lessor drops by your rental property unannounced and asked to come in, you have the legal right to refuse them entry. Do I have a right to be present when the lessor enters the property? You have a right to be present when the lessor or a third party enters the property, but there is no rule stating that you must be present. If you cannot be present at the time stated on the notice and you cannot arrange another time you should try and get a friend or relative to be there instead. If you have been unable to arrange another time with the lessor, the lessor can use their spare key to enter the property regardless of whether you are home or not. (address of rented premises) on: / / before 12 noon / after 12 noon (strike out whichever does not apply), at: am/pm (time see information sections below). The reason for the entry to the premises is: The period of notice given in accordance with section 46 is (see information sections below). Date: / / Signed: Address: SERVICE INFORMATION FOR THE LESSOR (LANDLORD) (lessor/property manager) If the matter goes to Court you will have to produce evidence of service. Service may be effected by various means, for example: by personal delivery (you may seek the assistance of a bailiff or other process server); or by post (normal post not registered post). You can deliver the notice to the tenant, a resident of the rented premises who is apparently over 16 years, or to a person who ordinarily pays the rent. Service may be on any one tenant if there are more than one. For full details about the service of notices and documents see Section 85 of the Residential Tenancies Act IMPORTANT INFORMATION FOR LESSORS (LANDLORDS) AND TENANTS This notice has been issued by the lessor (landlord) or their property manager to let you know that they intend to enter the premises. Tenancy laws limit the situations in which a lessor or their property manager can enter rental premises. For example, a lessor/property manager can enter rental premises for routine property inspections a maximum of four times in 12 months. 1 July 2013 Residential Tenancy in Western Australia 22

25 During a tenancy Routine inspections FORM 19 Notice of Intention to Enter Premises Space for AGENT S CONTACT DETAILS RESIDENTIAL TENANCIES ACT 1987 (WA) Section 46 To: (name of tenant/s) (name of tenant/s) I hereby give you notice that I will enter the premises at: Routine inspections From 1 July 2013 a lessor may only conduct four routine inspections in any 12 month period. If a lessor wants to carry out an inspection of your property, the lessor has to give you written notice and specify the date and time (it has to be at reasonable hour of the day) when they want to come to the property. The lessor and you can then both agree to a reasonable day and time for inspection depending on the urgency of the matter. For normal inspection, notice has to be not less than 7days and not more than 14 days in advance. For maintenance issues the lessor has to give you not less than 72 hours notice. If the lessor wants to show the property to prospective tenants or prospective purchasers, they have to give the current tenant reasonable notice. Important: The actual Notice of intended inspection can just be a letter from the lessor/agent and doesn t necessarily have to be on a prescribed form. (address of rented premises) on: / / before 12 noon / after 12 noon (strike out whichever does not apply), at: am/pm (time see information sections below). The reason for the entry to the premises is: The period of notice given in accordance with section 46 is (see information sections below). Date: / / Signed: Address: SERVICE INFORMATION FOR THE LESSOR (LANDLORD) (lessor/property manager) If the matter goes to Court you will have to produce evidence of service. Service may be effected by various means, for example: by personal delivery (you may seek the assistance of a bailiff or other process server); or by post (normal post not registered post). You can deliver the notice to the tenant, a resident of the rented premises who is apparently over 16 years, or to a person who ordinarily pays the rent. Service may be on any one tenant if there are more than one. For full details about the service of notices and documents see Section 85 of the Residential Tenancies Act IMPORTANT INFORMATION FOR LESSORS (LANDLORDS) AND TENANTS This notice has been issued by the lessor (landlord) or their property manager to let you know that they intend to enter the premises. Tenancy laws limit the situations in which a lessor or their property manager can enter rental premises. For example, a lessor/property manager can enter rental premises for routine property inspections a maximum of four times in 12 months. 1 July 2013 Residential Tenancy in Western Australia 23

26 During a tenancy Tenants conduct Private rental properties A tenant should not unreasonably disturb the peace or safety of other neighbors whilst residing in the rental property. For example: a tenant who plays loud music at night or causes other disturbances may annoy or potentially harm other tenants or neighbors, thus interfering with their rights to quiet enjoyment. In these cases the neighbours may complain to the police who can investigate and even take legal action in serious cases where tenants break laws in regards to such disturbances. Department of Housing properties The Department of Housing has a Disruptive Behavior Unit that deals with such complaints and they have procedures and policies in place to deal with disturbances and disruptive behavior that include a three strikes policy. Depending on the severity and frequency of the proven disturbances a tenant may face being evicted from the property. For more information contact the Department of Housing directly. 1 July 2013 Residential Tenancy in Western Australia 24

27 During a tenancy Maintenance and repairs Maintenance and repairs The lessor and you both have shared responsibilities when it comes to maintenance of the rental property. In general major repairs and upkeep of the property such as hot water heaters, plumbing, secure locks and windows, stoves/ovens are the responsibility of the lessor. The lessor is responsible under the RTA to provide the premises in a reasonable state of cleanliness and carry out maintenance and repairs. If maintenance or repairs need to be done to the rental property then you should notify the lessor in writing as soon as possible. What if my repairs are urgent? If your repairs are urgent you should contact the lessor as soon as possible. If within 24 hours (for restoration of essential services) or 48 hours (for other urgent repairs), you are unable to contact the lessor or the lessor fails to arrange the repairs, then you can arrange for the repairs to be made. Repairs by you must be to the minimum extent necessary by a qualified repairer. The lessor must reimburse you for any reasonable costs. Important: DO NOT withhold rent payments in an attempt to force the lessor to carry out repairs or maintenance. This will result in you breaching your agreement. Department of Housing properties The Department of Housing has its own maintenance department thus tenants in their properties should direct all maintenance issues to them directly. 1 July 2013 Residential Tenancy in Western Australia 25

28 During a tenancy Summary of responsibilities You, as a tenant must: Pay rent on time; Pay the utility bills (gas, electric, water); Keep the property reasonably clean; Report any damage to the lessor; Fix damage caused by you, children and visitors (unless the damage is fair wear and tear ); Behave reasonably in the property and not disturb neighbours with unreasonable noise or other disruptive behaviour. The lessor must: Give the tenant receipts for rent payments Keep the property in a habitable state by complying with building, health and safety codes; make sure the property is reasonably secure with adequate locks on doors and latches on windows; Fix urgent repairs not caused by you such as plumbing, hot water and weather damage within the time frames given in the RTA; Repair damage caused by fair wear and tear ; Pay the council rates for the property. 1 July 2013 Residential Tenancy in Western Australia 26

29 on: / /. (date the agreement was made) (address of rented premises) During a tenancy When you breach the agreement... FORM 20 Notice to Tenant of Breach of Agreement (other than failure to pay rent) RESIDENTIAL TENANCIES ACT 1987 (WA) Section 62(3) Space for AGENT S CONTACT DETAILS To: (names of tenant/s) (names of tenant/s) at: I hereby give you NOTICE that you are in breach of the Residential Tenancy Agreement entered into with me A lessor can take legal action against you if you do not fulfil your responsibilities such as not paying rent. The lessor can seek to end the tenancy (have you evicted). This action however, cannot be done without an order from the Court and must begin with either a breach notice or a notice of termination that notifies you that you are in breach of your responsibilities. In other words a lessor can go to the Court under the RTA and request that you be evicted from the rental property but they must follow the legal notification process and time frame. The lessor must first serve notice on you about the breach giving you an opportunity to remedy (fix) the problem. Important: if you receive a breach notice from a lessor this does not mean that you have to leave immediately. A breach notice only means that you are being advised by the lessor that a breach exists and that you should remedy the breach. If you ignore or deny the breach the lessor can bring the matter to the Magistrate s Court and a Magistrate will make a decision on the matter. FORM 21 Space for AGENT S CONTACT DETAILS Breach Notice for Non-payment of Rent RESIDENTIAL TENANCIES ACT 1987 (WA) Section 62(4)(a) To: (name of tenant/s) (name of tenant/s) at: (address of rented premises) I hereby give you NOTICE that: 1. You currently owe $ in rent arrears and are in breach of your residential tenancy agreement; and 2. I require you to pay this outstanding rent without delay and in any event within 14 days. Date: / / Signed: (lessor) Address: (address of lessor) SERVICE INFORMATION FOR THE LESSOR (LANDLORD) If the matter goes to Court you will have to produce evidence of service. Service may be effected by various means, for example: by personal delivery (you may seek the assistance of a bailiff from the Magistrates Court or other process server); or by post (normal post not registered post). You can deliver the notice to the tenant, a resident of the rented premises who is apparently over 16 years, or to a person who ordinarily pays the rent. Service may be on any one tenant if there are more than one. For full details about the service of notices see section 85 of the Residential Tenancies Act IMPORTANT INFORMATION FOR TENANTS By providing this breach notice, the lessor (the landlord) is advising you that you have breached the residential tenancy agreement by not paying the rent. Do not ignore this notice. If you do not pay the outstanding rent within 14 days the lessor can give you a NOTICE OF TERMINATION requiring you to vacate the premises. If you believe that your rent has been paid up to date, you should show the lessor your rent receipts or proof of payment and your calculations showing you are not in arrears. You should contact the lessor immediately to try and resolve this matter. You should seek advice immediately if you do not understand this notice or if you require further information. For further information about tenancy rights, refer to the Residential Tenancies Act 1987 or contact the Department of Commerce on or Protection. For Translating and Interpreting Services please telephone TIS on and ask to speak to the Department of Commerce ( ) for assistance. CP02625/2012 JULY 2013 FORM 21 version 05 I claim the breach of the agreement is: TAKE NOTICE that I require you to remedy this breach within 14 days of giving this notice. Date: / / Lessor: SERVICE INFORMATION FOR LESSOR (LANDLORD) If the matter goes to Court you will have to produce evidence of service. Service may be effected by various means, for example: by personal delivery (you may seek the assistance of a bailiff from the Magistrates Court or other process server); or by post (normal post not registered post). You can deliver the notice to the tenant, a resident of the rented premises who is apparently over 16 years, or to a person who ordinarily pays the rent. Service may be on any one tenant if there are more than one. For full details about the service of notices see section 85 of the Residential Tenancies Act IMPORTANT INFORMATION FOR TENANTS By providing this breach notice, the lessor (the landlord) is advising you that you have breached the residential tenancy agreement (other than a failure to pay rent) and you are required to remedy the breach. If you do not remedy the breach within 14 days, the lessor may issue you with a notice to terminate the agreement or apply to the Magistrates Court for an order for you to remedy the breach. You should seek advice immediately if you do not understand this notice or if you require further information. For further information about tenancy rights, refer to the Residential Tenancies Act 1987 or contact the Department of Commerce on or Protection. For Translating and Interpreting Services please telephone TIS on and ask to speak to the Department of Commerce ( ) for assistance. CP02625/2012 JULY 2013 FORM 20 1 July 2013 Residential Tenancy in Western Australia 27

30 / / (date the agreement was made) During a tenancy When the lessor breaches the agreement... Notice to Lessor of Breach of Agreement FORM 23 RESIDENTIAL TENANCIES ACT 1987 (WA) Space for AGENT S CONTACT DETAILS To: (name of lessor) of: (address of lessor) I hereby give you NOTICE that you are in breach of the Residential Tenancy Agreement entered into with me on: I claim the breach of the agreement is: Take notice that I require you to remedy this breach as soon as practicable. If the lessor doesn t comply with their responsibilities you can take action against them by issuing a breach notice (Form 20A). Alternatively you can notify the lessor of the problem in writing (as a record of evidence). Issuing a breach notice means the lessor must remedy the breach within 14 days and failure to do so entitles you to lodge a complaint with the Department of Commerce, or take the matter to Court. Legal action is generally an action of last resort and outcomes depend on the circumstances of each case. Therefore it is strongly recommended in these situations you seek legal assistance. The most common reasons for tenants taking breach action involve situations where the lessor: hasn t carried out repairs when requested (s42 of RTA: Lessor s responsibility for cleanliness and repairs and s43 of the RTA: Urgent repairs); repeatedly visited the property unannounced to do inspections or repairs (s46 of RTA: Lessor s right of entry); frequently contacts the tenant at work or home to abuse the tenant (s44 of RTA: Quiet enjoyment); refuses to provide the tenant with a receipt for rent payments (s33 of RTA: Duty to give receipt for rent). (address of rented premises) Tenant/s: Date: / / If the matter goes to Court you will have to produce evidence of service. Service may be effected by various means, for example: by personal delivery (you may seek the assistance of a bailiff from the Magistrates Court or other process server); or by post (normal post not registered post). You can deliver the notice to the lessor (landlord), the lessor s property manager, the person or organisation that receives your rent or any person apparently over the age of 16 years living at the lessor s home. Service may be on any one lessor if there are more than one. For full details about the service of notices see section 85 of the Residential Tenancies Act SERVICE INFORMATION FOR THE TENANT IMPORTANT INFORMATION FOR TENANTS AND LESSORS If the tenant believes the lessor (landlord) has breached the tenancy agreement, the tenant should contact the lessor or the lessor s property manager to try to resolve the matter before issuing a breach notice. By providing this breach notice, the tenant is advising the lessor that the residential tenancy agreement has been breached and they require that the lessor remedies the breach. If the lessor does not remedy the breach, the tenant may apply to the Magistrates Court for an order for the lessor to remedy the breach or for some other action. The tenant should not stop paying rent to try and make the lessor fix the problem. That would breach the tenancy agreement and the lessor could issue the tenant with a notice to terminate the tenancy. The tenant should seek advice before providing this notice to the lessor. The tenant and lessor should seek advice immediately if they do not understand this notice or if they require further information. For further information about tenancy rights, refer to the Residential Tenancies Act 1987 or contact the Department of Commerce on or Protection. For Translating and Interpreting Services please telephone TIS on and ask to speak to the Department of Commerce ( ) for assistance. CP02625/2012 JULY 2013 FORM 23 version 05 1 July 2013 Residential Tenancy in Western Australia 28

31 Ending a tenancy Returning the property in the same condition When leaving a tenancy you should leave the property in the same condition that you moved in otherwise the lessor can retain your bond money. Fair wear and tear A property will always have some damage called fair wear and tear that you as the tenant are not responsible for. Fair wear and tear means minor damage that occurs through everyday use. Examples include: garden mulch breaking down over time, carpets wearing out from walking on it, curtains or blinds fading from the sun or a wooden gate in the backyard falling down from exposure to the weather. by trying to hold you responsible for damage that you think is fair wear and tear you should refer to the PCR that was completed at the beginning of the tenancy to compare the condition of the property when you first moved in. If there is a dispute To avoid going to Court you should attempt to negotiate a settlement first and put all correspondence in writing giving reasons for each claim you disagree with. If there is still a dispute over bond you should contact a tenant advocate service or you can lodge an application to have the matter heard in the Magistrate s Court. Property Condition Report (PCR) When you leave the property the lessor must give you another updated PCR within 14 days. You must also be given a reasonable opportunity to be present at the final inspection. If however, you think the lessor is being unreasonable 1 July 2013 Residential Tenancy in Western Australia 29

32 Ending a tenancy Final cleaning What you need to clean When leaving a tenancy you should leave the property in the same condition as it was when you moved in otherwise the lessor can claim part or all of your bond money to cover the cost of repairs. You should take time to: Clean both inside and outside the property Make sure the garden is tidy Cut the grass and pull up the weeds Check that the reticulation is working (if working at the time you entered the tenancy) Wash all ground level windows Wash all inside walls Clean the bathroom and toilet Clean the stove and exhaust fan grills Ensure all lights are in working order Ensure that the pool is clean and in working order (if working at the time you entered the tenancy) Generally carpets will need to be professionally cleaned and most lessors require a copy of the receipt from a professional carpet cleaner as proof (it is generally not acceptable for you to clean the carpet themselves). Final inspection You should make sure that you are present at the final inspection with the lessor, preferably with a witness. If you are present you will be able to ask the lessor what they intend to deduct (if anything) from your bond, and request this to be in writing. At this time you should tell the lessor if and why you disagree and provide this in writing to them. 1 July 2013 Residential Tenancy in Western Australia 30

33 Ending a tenancy Witnesses, photos and retuning keys Photographs If possible take photographs (or video) of the rental property before you leave in case you need evidence to prove how you left it. For example: many bond disputes involve problems about how the condition of property was left when the tenant moved out. It is also useful if you have photos from the start of the tenancy to show how the property was when you first moved in. At the time of taking these photographs you should sign and date them and try to get a witness to sign them too. Returning keys You should return the house keys as soon as possible after all cleaning and repairs you had to do are completed. Failure to do so can result in you being charged further for rent. If you do not return the keys at the end of the tenancy you will be held responsible if anything happens to the house (such as damage) regardless of whether you have already moved from the rental property as well as paying rent during this time frame also. Independent witnesses When leaving the rental property it is a good idea to have an independent person come along with you to witness the condition you leave the property in. It will also be best if you can get a person who saw the condition of property at start of tenancy and who would later be willing to be a witness in court if a dispute arises. 1 July 2013 Residential Tenancy in Western Australia 31