Welcome to the fifth 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 safety and security and provides answers to many questions from our subscribers on this topic.
In the next edition of The Letterbox, due for release in May 2012, our in-depth feature subject will be rent increases and paying rent. We invite you to email us your questions on this topic by Thursday 12 April 2012 at email@example.com and we will do our best to include the answers in the May edition.
Safety and security
By law, a landlord must ensure the rented premises are in a reasonable state of repair and are reasonably secure. This includes providing and maintaining locks and security devices. The landlord must also comply with all relevant health and safety laws.
Tenants should also take steps to make the property as safe and secure as possible taking any special needs of their own into consideration. Window, balcony and swimming pool safety is extremely important, especially if young children live at or visit the premises. The landlord cannot unreasonably refuse permission for tenants to make minor changes, such as installing child safety window locks.
There are certain situations when a tenant can change or add locks or security devices. This includes when the landlord’s consent is provided or in an emergency situation, for instance if a tenant obtains an Apprehended Violence Order which prohibits another person from accessing the rented premises.
There are a number of other safety and security matters that you may need to think about. More information is available on the Fair Trading website, as follows:
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Answers to your questions on safety and security
Q. Who is responsible for installing and maintaining smoke alarms? Can I remove a smoke alarm because it goes off every time I cook food?
A: The landlord is responsible for installing and maintaining smoke alarms. If a smoke alarm is battery operated you are responsible for replacing the batteries and notifying the landlord if the alarm is damaged or not working. You are not allowed to remove or interfere with smoke alarms. If the alarm goes off every time you cook you may need to get the alarm settings checked. You could also check if the alarm has been installed in the wrong place and talk to the landlord or agent about the problem.
Q: Who is responsible for making sure premises are secure? If I lose my keys, who is responsible for replacing them?
A: The landlord is responsible for making sure rental premises have enough locks or other devices to be reasonably secure. The landlord must provide you with a set of keys when you sign the lease, but if you lose your keys you will have to pay for the replacements.
Q. When a domestic violence situation arises between co-tenants and an Apprehended Violence Order (AVO) is taken out, what happens to the tenancy?
A: If a final AVO is made excluding a person who was named as a tenant on the lease from the property, that person’s tenancy ends. If you are a co-tenant named on the lease the tenancy transfers to your name. There is no need for you to sign a new agreement or do anything else if you want to stay. If your name is not on the lease, talk to the landlord or agent about putting the lease in your name. Any share of the bond belonging to the excluded person does not have to be paid back until you move out. If you have changed the locks, make sure to give the landlord or agent a copy of the key within seven days.
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A recent Tribunal case: Security and safety responsibilities
The Consumer, Trader and Tenancy Tribunal (CTTT) recently had a case regarding the security and maintenance of rented premises.
The tenant signed the residential tenancy agreement and in the ingoing condition report listed a number of defects with the property including missing or broken locks which stopped the tenant from obtaining insurance, safety hazards in the form of broken or missing tiles, a faulty power point, and, problems with the gas oven. After the tenant took possession of the premises, they logged onto the managing agent’s website and followed the repair procedure stipulated in the agreement.
The landlord acted promptly with the oven repair, but was slow to remedy other defects listed in the condition report. The tenant ended up buying and installing door and window locks themself.
Five months later, and after bringing these and other subsequent defects to the landlord’s attention on two occasions, the tenant lodged an application with the Tribunal and the CTTT Registry referred a copy to the landlord. Within days the repairs commenced and took a month to complete. Towards the end of that month the tenant vacated the premises.
At the hearing, the tribunal found the tenant had met their obligations under the Act in following the agreed procedure for reporting defects and had also followed up via emails to the agent. The Tribunal also found that the landlord had failed to maintain the premises in accordance with the legislation throughout the tenancy, and that the replacement of locks by the tenant to secure the premises was justified given the urgency. The landlord was ordered to pay for the locks hardware, and other costs associated with the tenant’s claims.
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Swimming pool safety
Whether you rent or own a property with a swimming pool, it is important to be aware of pool safety. Home owners, landlords and tenants all have responsibilities to ensure the home environment is safe for children. There are a number of things you can do to make your pool safer.
Proper and well-maintained pool fencing and gates are a key safety measure. The fence should be strong and secure, at least 1.2 metres high, and should not be easy for young children to climb over. The gate should open outwards away from the pool, have a child resistant lock and be self-closing. The gate should never be propped open.
Lightweight furniture or other objects that could be easily moved by children and used to help them climb a pool fence should be kept away from the pool area.
Even with a secure pool fence, young children should be under adult supervision at all times when they are near a pool or other water. Parents and other family members should also consider learning first aid. Basic first aid skills can be essential in an emergency.
In rental properties, landlords are legally required to comply with all relevant health and safety laws. This includes the requirements for pool fences under the Swimming Pools Act 1992 and Swimming Pools Regulation 2008.
Before you move in, check that the pool fence is in good repair and the gate is working correctly. Notify the landlord or agent if not.
Download a Protect your pool, protect your kids checklist from the Children's Hospital of Westmead's website.
Download information about Swimming pool laws from the NSW Division of Local Government's website.
Swimming pool case study
One morning a tenant of a rental property found his three year old daughter playing near the swimming pool, inside the pool fence. The child had managed to open a side gate on the fence. A safety check indicated that the pool fence failed to meet 10 out of 11 requirements, and soon after the tenant gave notice to end the tenancy. The Consumer, Trader and Tenancy Tribunal ruled that the landlord’s failure to maintain the pool fence was a breach of the lease agreement, especially as landlord knew that the fence was defective before the tenant and his family moved in. The Tribunal made an order terminating the tenancy.
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Clarification - Terminating a lease
The last edition of The Letterbox included an answer to a reader’s question about tenants’ rights when a rented property is being sold. We answered, in part, that ‘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.’
Fair Trading wants to clarify that regardless of whether the owner had any intention of selling the property or not the tenant has the right to terminate a lease during the fixed term with 14 days notice if they were not informed about the sale prior to signing the lease.
For more information about this issue see the Ending a tenancy web page.
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New Fair Trading videos give tips on property matters
NSW Fair Trading has released a series of short videos on the Fair Trading You Tube channel about property matters. The videos provide independent advice on the rights and responsibilities of tenants, landlords, real estate agents, strata scheme owners and property managers, and people considering retirement village living.
The new videos cover the following topics:
Everybody deserves a fair go when renting.
Information on anti-discrimination laws and how they affect you when renting or leasing property in NSW.
Your rights and responsibilities when living in or managing a strata scheme in NSW.
Tips and information on retirement village living for potential residents and their families.
This is the second instalment of property related videos produced by SKY Business Real Estate News for Fair Trading.
NSW Fair Trading welcomes your feedback on the videos and would like to hear your ideas on topics for future real estate videos. Email your feedback and ideas to: firstname.lastname@example.org
For more information about real estate matters, visit the NSW Fair Trading website.
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If you own an investment property in NSW or rent out your former residence that you still own, you may be liable to pay land tax if the total land value exceeds the land tax threshold. Read more about land tax and online registration with the Office of State Revenue at http://www.osr.nsw.gov.au/taxes/land/
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In the next edition
Remember, in our next edition, due for release in May 2012, we will be focusing on the topic of rent increases and paying rent. If you have any questions on this subject, email them to us by Thursday 12 April 2012 at firstname.lastname@example.org
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