Many landlords are unclear about the details and extent of their legal rights and responsibilities towards tenants. That can be a perilous position, especially as laws have become more protective of renters, and renters have become savvier about their rights.
So let’s do a brush up, with the full recognition that unusual situations with tenants may require more particular advice.
Under the Residential Tenancies Act 2010, a landlord in NSW must, at the beginning of a tenancy:
prepare (and pay for the preparation of) a tenancy agreement
provide the prospective tenant with a “New Tenant Checklist” before he or she signs the tenancy agreement
complete an entry report of the property and give a copy to the tenant
ensure the property complies with safety regulations, including rules requiring smoke detectors, swimming pool fencing and the provision of locks on windows and doors
if the landlord takes a bond, limit the bond to one week’s rent and file it with Fair Trading NSW
In addition, throughout the tenancy, the landlord must also keep the property in a reasonable state of repair, at the landlord’s expense unless the tenant has caused the damage.
A landlord may not:
require a tenant to have the carpet professionally cleaned, or pay the cost of such cleaning, at the end of the tenancy – unless the cleaning is required because animals have been kept on the premises during the tenancy
require the tenant to take out a specified, or any, form of insurance
exempt the landlord from liability for any act or omission by the landlord, the landlord’s agent or any person acting on behalf of the landlord or landlord’s agent
require a tenant to pay all or any part of the remaining rent, a penalty or liquidated damages in the event of a breach
On the other hand, a landlord has certain rights, but many of these are subject to very specific limits and restrictions. A landlord may, for example:
increase the rent during a fixed lease of less than two years, providing the agreement permits an increase. The tenant is entitled to 60-day notice, in any event.
end a tenancy without giving a reason, but only at the end of the tenancy period
refuse to rent to a smoker, a pet owner, someone with a bad tenancy history, or someone not demonstrably able to pay. Landlords may not, however, reject a prospective tenant because of race, sex, pregnancy, marital status, disability, homosexuality, age, transgender status, or because they are friends, relatives and associates of anyone falling into these categories.
keep, sell or dispose of property that the tenant leaves behind but only after 14 days for items of value and 90 days for personal documents. If items are sold for fair value, the proceeds must be remitted to the tenant.
enter the premises without notice in an emergency, or with legally required notice for regular inspections, maintenance or repairs, property valuation or to show to prospective buyers
require a tenant to replace light bulbs, batteries or air conditioner filters, unless doing so would be dangerous to a tenant because of the height of the ceiling or some other factor.
Landlords and tenants have mutual rights and obligations, but the proper exercise of these can be a somewhat nuanced affair, subject to very strict conditions and limits. Knowing your rights and responsibilities upfront can prevent any issues down the track.
Rolf is Managing Partner of Owen Hodge Lawyers. He has been in the legal practice since 1986 and a partner of Owen Hodge Lawyers since 1992. Rolf focuses on assisting clients to proactively manage legal responsibilities and opportunities to achieve competitive advantage.
Rolf concentrates on business planning and formation, directors’ duties, corporate governance, fund raising and business succession. His major interest is to assist business owners and their financial advisers plan and implement strategies to build and exit from successful... Read more