Welcome to the fourth edition of The Letterbox, NSW Fair Trading’s enewsletter on tenancy issues. If you are a tenant, a landlord or a property manager, this newsletter is for you.
This edition focuses on Privacy and access and provides answers to many questions from our subscribers on this topic.
In the next edition of The Letterbox, due for release in late February 2012, our in-depth feature subject will be safety and security. We invite you to email us your questions on this topic by Friday 13 January 2012 at firstname.lastname@example.org and we will do our best to include the answers in the February edition.
Privacy and access
Tenants have a right to privacy and quiet enjoyment of their rented residential premises. A landlord, agent or anybody else acting on the landlord’s behalf must not interfere with this reasonable peace, comfort and privacy.
For this reason, the law restricts the access a landlord or agent can have to a rented property and entry is only allowed at certain times for certain reasons and in most cases, notice must be given first. A landlord must not 'drop by' unannounced, look over the fence or do anything else to disturb the tenant's privacy and quiet enjoyment.
The amount of notice the landlord or agent must give a tenant depends on the reason for entering the premises. There are a number of circumstances where it is necessary for a landlord to give written notice, such as putting up the rent, notifying access for an inspection or to terminate the tenancy agreement.
More information about privacy and access is available from the Fair Trading website:
For more information about giving written notice, go to the Serving notice page.
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Answers to your questions on privacy and access
Q: What rights do tenants have when the owner is selling the property and requires frequent access for inspections? Can tenants be asked to leave during inspections?
A: If a landlord wants to sell a rental property, the tenant must be given 14 days written notice before the first property inspection. If the landlord intended to sell the premises but did not inform a new tenant of this fact before the lease was signed, the tenant can terminate the lease with 14 days notice and doesn’t have to compensate the landlord.
When a property is put up for sale, the landlord, agent and tenant should all be reasonable about what days and times would be suitable for inspections. Clearly, it is in everyone’s best interests to reach a mutually acceptable arrangement. However, tenants do not have to agree to more than two inspection times per week and do not have to leave the premises during inspections.
If the landlord and the tenant cannot agree on inspection times, the landlord or the agent can enter the premises without the tenants’ consent to show the property to prospective buyers up to twice per week, but only if the tenant is given 48 hours notice each time.
A landlord or tenant can apply to the Consumer, Trader and Tenancy Tribunal for orders about property inspection times.
Q: Where does the agent or landlord stand when they have advised tenants that access is required at a specific time and the tenant refuses entry or does not reply to the request, particularly in the case of inspections when the property is listed for sale? Does the notice have to be in writing?
A: The residential tenancy law sets out a range of circumstances where a landlord or agent is able to access the premises. As long as the correct notice has been given to the tenant, their consent is not needed. NSW Fair Trading’s web pages on Privacy when renting and Right of entry page
include information about how much notice must be given. Notice does not have to be in writing. However giving written notice can help to avoid disputes about whether the correct amount of notice was given.
Landlords and agents must try to notify the tenants of the proposed time and day they want to enter the premises. Access can only be between 8am and 8pm, and not on a Sunday or public holiday. Landlords and agents cannot stay on the premises for any longer than necessary.
Q: I am a tenant and my landlord wants to update the bathroom. Am I entitled to any compensation for not being able to use the bathroom during this time?
A: If a landlord reduces or withdraws any goods, services or facilities that were provided with the premises, the tenant can make a written request for a reduction in rent. A tenant can apply to the Consumer, Trader and Tenancy Tribunal for orders about a rent reduction under such circumstances.
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A recent Tribunal case: Access when selling a rental property
This case was recently brought before the Consumer, Trader and Tenancy Tribunal and its outcome provides useful guidance for tenants and landlords.
A landlord came to the Tribunal seeking orders to allow access to her rented residential property for the purpose of showing the property to prospective purchasers.
At the hearing, the landlord advised the Tribunal member that she had, in writing, notified the tenant of her intention to sell, at least 14 days prior to the proposed first inspection. On the day of the first open inspection, the tenant refused to give the landlord access to the premises.
The law states that a tenant must not unreasonably refuse to agree on days and times the premises are to be available for inspection by prospective purchasers.
After hearing evidence from all parties, the Tribunal member was satisfied that the tenant had breached the terms of the tenancy agreement by not allowing the landlord reasonable access to the premises.
The Orders made by the Tribunal member authorised the landlord to enter the premises at 5pm once a week to show prospective purchasers as well as on one additional occasion each week providing 48 hours notice was given to the tenant. The tenant was ordered not to obstruct the landlord in carrying out the Tribunal’s Orders.
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How safe are the windows and balconies in your home?
Whether you rent or own a property, it is important to be aware of home safety issues in order to prevent injury. Home owners, landlords and tenants all have a duty of care to ensure their homes provide a safe environment for children.
Each year around 8,000 children are taken to hospital as a result of a fall, including approximately 50 who have fallen from a window or balcony. For a small number of children, this will be fatal.
Falls occur more often in the warmer months when families leave windows and doors to balconies open both during the day and at night. Children aged from one to five years are most at risk as they are naturally curious but lack the ability to recognise danger. They can fall out of a window which is open more than 10cm, even if a flyscreen is present.
Preventing falls is particularly relevant today with many families choosing to live or rent in medium to high rise developments, where unsupervised or unsecured windows and balconies could be dangerous to curious children. There are a few simple and straightforward steps that can be taken to reduce the risk of a fall injury to children in the home. If you are renting, seek your landlord’s approval to make necessary changes to protect children from preventable injuries in the home.
Window safety, steps you can take:
- Do fix windows open at no more than 10cm (and ensure they can only be opened by adults), or fit secure window guards.
- Do keep furniture, and other things children can climb on, away from windows.
- Do keep an eye out for potentially dangerous windows when visiting other people’s homes and keep a close eye on your child.
- Do cover low windows with shatter resistant film if safety glass is not installed, to prevent children from cutting themselves if they run into them.
- Don’t rely on flyscreens to keep children in – they are designed to keep insects out, they are not strong enough to hold children in.
Balcony safety, steps you can take:
- Do lock doors and windows when the balcony is not being used.
- Do take notice of balcony rails/fences. The standard that older buildings were built under (and which continue to apply to them) may be different from today’s standards. New rails/fences on balconies must be at least 1m high, with no gaps wider than 12.5cm. On high balconies footholds must be restricted to prevent climbing.
- Do keep an eye out for potentially dangerous balconies when visiting other people’s homes and keep a close eye on your child.
- Don’t put furniture and pot plants near balcony edges, because children can climb or stand on them.
- Don’t put lightweight furniture on the balcony. Children can drag it to the edge.
This information is available in brochure (FT454) and poster (FT455) format. If you are a landlord or an agent, you can help to raise awareness of this important child safety issue by distributing copies to your tenants. Order your free copies from the Order publications page on the Fair Trading website.
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Spot the problems with carpet cleaning clauses
There are certain terms which, by law, cannot be included in residential tenancy agreements. Terms requiring a tenant to have the carpet professionally cleaned or to pay for the cost of having the carpet cleaned are prohibited under the Residential Tenancies Act 2010. A carpet cleaning term can only be included if the landlord allows the tenant to keep an animal, such as a dog or cat.
These requirements came into effect on 31 January 2011, as part of the new tenancy laws. Before that, many tenancy agreements stated that the tenant had to pay for professional carpet cleaning, even though this was not supported by the law. The new laws have made the situation a lot clearer.
However, there is still confusion on the part of some landlords and agents, who think that the tenant cannot be made to pay for cleaning of stained carpet unless there is a carpet cleaning term in the tenancy agreement. This is not the case.
Tenants are required to keep the premises reasonably clean and to leave the premises in the same condition as they were at the start of the tenancy, other than fair wear and tear. Where a tenant moves out leaving the carpet dirty, for example by spilling red wine, the landlord can ask the tenant to pay for cleaning or can make a claim on the tenant’s bond. However, where a tenant regularly vacuums and looks after the carpet and leaves it clean, there is no automatic right to ask the tenant to pay for professional cleaning.
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Don’t let your tenancy go away with you
With the holiday season fast approaching, many tenants may be planning to visit friends or relatives or go on an extended holiday. It is good practice to notify the landlord or agent if you are going to be away for an extended period. This ensures that the landlord or agent does not think you have abandoned the premises if they can’t contact you or if your rent payments stop for some reason.
In a recent case, a tenant did not advise the agent that she would be away for several months. There was a banking problem with the tenant’s automatic rent payments and her rent fell behind without her knowledge. The landlord thought she had abandoned the premises and considered terminating the tenancy.
In this case it was simply a misunderstanding that fortunately was able to be sorted out, but it could have resulted in the tenancy being ended while the tenant was away. Just like you might tell the neighbour to keep an eye on your place and empty the mail while you are away, it is a good idea to let the landlord or agent know when you will be absent from your rental property for several weeks or months. It is also good practice to regularly check your bank statements while you are away to make sure your rent payments are continuing to be made.
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The NSW Home Building Act is changing
The recent reforms to the NSW Home Building Act would be of interest to many property industry professionals and home owners in NSW. The first round of changes took effect on 25 October 2011, while a second round is due to commence on 1 February 2012.
Some of the key areas impacted by these changes include:
- home warranty insurance
- definition of a developer
- statutory warranty periods
- cooling off periods
- written contracts for jobs worth between $1,001 and $5,000.
For more detailed information about these reforms, go to the Home Building Amendment Act 2011 page on the Fair Trading website.
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New Scam Buster app to help in fight against con men
The Scam Buster app.
NSW Fair Trading has released a new FREE mobile phone app Scam Buster to help fight con men.
Scam Buster allows you to:
- learn about current scams doing the rounds in Australia
- get NSW Fair Trading’s expert tips on how to bust scams
- report a scam to Fair Trading.
Research shows that 1 in 20 Australians falls victim to scams. This app is designed to help consumers stay one step ahead of scammers and assist NSW Fair Trading compile valuable intelligence about scams.
Scam Buster is available from the App Store and Android Market today.
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In the next edition
Remember, in our next edition, due for release at the end of February 2012, we will be focusing on the topic of safety and security. If you have any questions on this subject, email them to us by Friday 13 January at firstname.lastname@example.org and we will do our best to include the answer in the February 2012 edition.
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