Tenants Rights in New South Wales

If you reside in your house as a tenant, it is important to know your rights. The law for renting is different around the country. In New South Wales, the body that governs landlord and tenant relationships is New South Wales Fair Trading. The legislation that governs this area is the Residential Tenancies Act 2010 ). There are different rights to consider at the beginning of a tenancy, during the tenancy and at the end of a tenancy agreement.

Tenants’ rights at the start of a lease

The rights to which tenants are entitled at the beginning of a lease are set out below.

Minimum standards

A landlord must ensure that the property they are renting is livable, safe, secure and reasonably clean, taking into account things such as the age of the property and the amount of rent being paid. In addition, as a tenant, you have a right to a rental property that meets some minimum standards which include:

• That it is structurally sound;
• That it has adequate lighting and ventilation;
• That is can have electricity and gas supplied to it and enough outlets for appliances;
• That it has sufficient plumbing and drainage;
• That it has a water connection that supplies adequate hot and cold water for residential uses; and
• That it has adequate bathroom facilities that allow for privacy

Required disclosures

A landlord must tell you the following information at the start of your tenancy:

• If there are plans for the property to be sold;
• If there are repossession proceedings afoot, i.e., the mortgagee is seeking to reacquire the property; and
• If the property is a part of a strata scheme or there are plans in place for it to become a part of a strata scheme.

A landlord also must not conceal certain information about a property before you rent it, including that it:

• Has been subject to flooding or a fire in the past five years;
• Has inherent significant health or safety risks;
• Has been the scene of a major crime, e.g. murder;
• Has issues with asbestos;
• Has been used as a place of production of prohibited drugs;
• Has an issue with combustible cladding;
• Is part of a strata scheme that has major rectification work scheduled;
• Has issues with parking;
• Has different waste services to other properties in the area; and
• Has an easement legally accessible by other people.

If the landlord does not properly disclose any of these things, you may be able to end the tenancy.

Landlords must not discriminate

Landlords must abide by the relevant anti-discrimination laws when deciding who to allow to be their tenants. They also must not advertise their premises for rent in a manner that is discriminatory or apply a rule to the tenancy that is discriminatory, e.g. having a rule that no pets are allowed when some prospective tenants require a pet to assist them.

Rental bidding

If a property is popular, prospective tenants may offer a higher amount of rent than what is advertised. Landlords and agents cannot make misrepresentations related to rental bidding, e.g. indicating that an applicant has made a higher offer for rent when this has not occurred.

Condition report, written rental agreement, rental bonds and landlord’s details

A landlord must complete a report detailing the condition of the property at the beginning of the tenancy. The tenant must be given time to review this report.

A tenant is entitled to a written tenancy agreement. However, if for some reason, the agreement is only oral, it will still be binding.

A rental bond is usually lodged at the commencement of a tenancy. It must be lodged with New South Wales Fair Trading and a landlord is not allowed to ask for more than four weeks rent to be paid as a bond.

A tenant must be given contact details of the landlord so that they can contact them directly.

Tenants rights during a tenancy agreement

Tenants rights during a tenancy agreement are set out below.

Rent

A tenant must pay rent to the landlord in accordance with the tenancy agreement. Should they be unable to pay rent for a short period of time, they may be able to reach an agreement with their landlord to rectify this issue. However, if they cannot pay their rent as required, and no agreement can be reached, the landlord can end the tenancy agreement, and they will be required to leave the property.

If a tenant is in a dispute with your landlord about an issue, such as something relating to repairs, it is important that they continue to pay the rent, or the landlord may still be able to end the tenancy agreement.

Generally, a landlord cannot increase the rent during a fixed-term tenancy agreement. However, a landlord can increase the rent annually during a periodic tenancy (a tenancy agreement that does not have an end date).

Repairs, maintenance, damage and alterations to the property

A tenant is responsible for minor maintenance on the property such as replacing light bulbs, general cleaning and garden maintenance. However, if something more significant needs repair, this is the responsibility of the landlord. If a repair is required, before trying to fix it themself or hiring someone to do so, they should ask for permission from the landlord in writing. However, if the repair is urgent, this is not required.

Landlords are also responsible for ensuring smoke alarms are in working condition.

A tenant is responsible for any damage done to the property by themself or their visitors. However, if the damage was done to the property in the context of the tenant being a victim of domestic violence, they will not be responsible for the repairs.

If a tenant wishes to make an alteration to the property, they should ask the landlord for permission to do so. If the alteration is minor in nature, the landlord cannot unreasonably withhold their consent. The tenant will be responsible for the costs of the alterations unless otherwise agreed with the landlord.

Right to be given notice when the landlord wishes to enter the property

A tenant has the right to comfort, peace and privacy in their home. This means that the landlord must give them notice if they intend to enter the property. Different notice periods apply depending on the purpose for which the landlord intends to enter the property. There are some situations, such as in an emergency, when no notice is required to be given.

Tenants rights at the end of a tenancy agreement

The usual way that a tenancy is ended is by one party giving written notice to the other that they wish to end the tenancy. Where the tenancy agreement is for a fixed term, a party cannot end the agreement early unless there is a lawful reason e.g. the tenant discovers that the landlord did not properly disclose certain information to them at the beginning of the tenancy.

If one party wants to end the tenancy agreement early, they may be required to compensate the other party for any loss they suffer as a result. The fixed-term agreement will state what notice will be required to be given by either party, should they wish to end the tenancy agreement at the end of the fixed term. If a tenancy is periodic, and not for a fixed term, generally, the agreement will also state what the notice requirement is for advising that you want to end the tenancy.

A landlord may serve a termination notice on a tenant and require them to vacate the premises if they breach the tenancy agreement.

If a tenant wants to end their tenancy due to the breach by a landlord of a term in the residential tenancy agreement, they can serve a notice on the landlord of their intention to do so. It is a good idea to first try to resolve the dispute with the owner directly or through New South Wales Fair Trading or the New South Wales Civil and Administrative Tribunal.

Domestic violence

If a tenant or their children are subject to domestic violence during a tenancy agreement, they can end the tenancy without penalty.

Dispute resolution

If a tenant has a dispute with their landlord that cannot be resolved, they may want to try using New South Wales Fair Trading’s dispute resolution service. This service is free. It is also voluntary, and so may not be a suitable path for resolution if the landlord does not want to participate in the service.

If a resolution cannot be reached through this service, or parties are not willing to participate,  a party can lodge a claim with the New South Wales Civil and Administrative Tribunal. This Tribunal can make orders including:

• That a term of the tenancy agreement be complied with;
• That compensation be paid;
• That the agreement is ended; and
• That a rental bond be paid.

Fees may apply for using this service.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.