Access and privacy

Access by the landlord

Your landlord has rights under the Residential Tenancies Act 2010 (NSW) (the RT Act 2010) to access the premises for certain purposes (section 55). For certain purposes, there are also limitations as to when your landlord can access the premises (section 57). The purposes for access are set out at Table 3.1, below, along with the period of notice required, and other limitations noted. Written notice is not required.

Table 3.1. Access

Purpose

Notice period

Notes

Emergency

None

 

Urgent repair

None

 

Serious concerns for health or safety of tenant or occupant

None

Landlord must have first tried to get tenant’s consent for access. landlord’s concerns must be reasonable

Landlord believes premises abandoned

None

Landlord’s belief must be reasonable

Inspection

Seven days

Not more than four in 12 months (must be in writing)

Not before 8 am or after 8 pm

Not on a Sunday or public holiday

Repairs and maintenance

Two days

Not before 8 am or after 8 pm

Not on a Sunday or public holiday

Valuation

Seven days

Not more than once in 12 months not before 8 am or after 8 pm

Not on a Sunday or public holiday

Show prospective tenants

‘Reasonable notice’

During the 14 days preceding termina- tion

Not before 8 am or after 8 pm

Not on a sunday or public holiday

Show prospective purchasers

48 hours

Must first try to agree on a schedule of access

Not more than twice in a week

Not before 8 am or after 8 pm

Not on a Sunday or public holiday

Note that no provision is made for access for the purposes of taking photographs of the premises for use in advertisements, erecting ‘for sale’ signs, conducting an ‘open house’ or conducting an auction. You may refuse access for these purposes.

If your landlord accesses the premises without giving the right amount of notice, or for a purpose not permitted by the RT Act 2010, they are in breach of the tenancy agreement (see ‘Quiet enjoyment and reasonable peace, comfort and privacy’, below).

Where your landlord has given the required notice, they may enter the premises whether or not you are present, and whether or not you consent to them entering, and if you prevent their entry access (for example, by changing the locks, or physically blocking their entry), you are in breach of your agreement.

If you feel strongly that the landlord should not enter the premises at a certain time, try to negotiate: suggest another more convenient time for access,and point out that if you suffer any loss as a result of their accessing the property, they will be liable to compensate you (section 61).

Agents

As noted above, the real estate agent you deal with works for your landlord, not you.

Generally speaking, you can treat anything that your landlord’s agent does (or does not do) as if it was done (or not done) by your landlord – including where the thing is a breach of your tenancy agreement.

Likewise, you can treat your dealings with the agent (for example, paying money to them, or informing them of the need for a repair) as if you had dealt directly with the landlord.

Therefore, if the agent does something wrong, it is generally best to seek a remedy against your landlord (and if the landlord wants to take action against the agent, that’s up to the landlord).

Agents are required to be licensed or registered under the Property, Stock and Business Agents Act 2002 (NSW), which sets certain ‘rules of conduct’ for the different types of agents (for those applying to real estate agents, see Schedules 1, 2 and 6 of the Property, Stock and Business Agents Regulation 2003 (NSW) (the PSBA Reg 2003)). These rules of conduct include that an agent must:

  • Act honestly, fairly and professionally with all parties in a transaction, and not mislead or deceive any parties (Schedule 1, clause 3);
  • Not engage in high pressure tactics, harassment or harsh or unconscionable conduct (Schedule 1, clause 5);
  • Give immediately to a person a copy of any document signed by the person (Schedule 1, clause 17);
  • Not ask you to sign a document for the refund of the bond before termination of the tenancy (unless it is to be paid to you, or transferred to another property, in full: Schedule 2, clause 17).

Tip

You can complain to NSW Fair Trading about conduct by an agent that is in breach of the rules of conduct.

Noise, nuisance and neighbours

It is a term of your agreement that you must not cause or permit a nuisance (section 51(1)(b)) or any interference with the peace, comfort or privacy of any of your neighbours (section 51(1)(c)). These obligations are sometimes referred to as terms about ‘nuisance and annoyance’ or ‘noise and nuisance’, and they cover a wide range of objectionable behaviour, from serious assaults on neighbours, verbal abuse and harassment, to noisy parties, loud music and disagreements between neighbours.

Cases about nuisance often arise in social housing, not least because the neighbours have a common landlord to whom to direct their complaints. Housing NSW, in particular, is a heavy user of nuisance proceedings.

Be aware that you are liable for the disorderly conduct of occupants and guests – see ‘Occupants and visitors’, below. (And in at least one case, the conduct has included the tenant’s sometime partner yelling at and assaulting the tenant: NSW Land and Housing Corporation v Peters [2007] NSWCTTT 681.) If an occupant or visitor is getting out of hand, consider telling them to leave – and if they refuse, consider calling the police. They may be putting your tenancy at risk.

What can I do about nuisance neighbours?

It is a term of your agreement that your landlord must take all reasonable steps to ensure that the landlord’s other neighbouring tenants do not interfere with your reasonable peace, comfort or privacy in using the premises (section 50(3)). If you’ve notified your landlord of the problem and they fail to respond, you can take action against your landlord for breach – including compensation.

Note, however, that depending on the circumstances, the ‘reasonable steps’ required of your landlord may be quite minor: for example, warning the neighbouring tenant not to breach their own tenancy agreement (Ingram and Ingram v Department of Housing [2002] NSWCTTT 84). If your landlord takes further action against your neighbour – in particular, termination proceedings for breach – you should expect to be asked to provide evidence in support of your landlord’s case.

If your neighbour is a tenant of another landlord, you are free to complain to that landlord, but they do not owe you any special obligation to respond.

Instead of treating a neighbour’s nuisance as a tenancy problem, you might get better results from the following actions:

  • General disputes – consider contacting a Community Justice Centre to conciliate between you and your neighbour;
  • Noise – consider contacting the local council or the police;
  • Threats and assaults – contact the police, and consider applying for an apprehended personal violence order;
  • Behaviour that appears related to a mental health problem – consider contacting the Mental Health Team of the Area Health Service.

Occupants and visitors

You can have other persons (for example a partner, or dependent children) occupy your premises with you, subject to the term of your agreement that sets the maximum number of persons who may reside in the premises (section 51(1)(e)). If you have more than that number of persons residing at the premises, the landlord can take action against you for breach, including by giving you a termination notice. Your landlord cannot, however, directly remove people or tell them to leave the premises.

You may be responsible for the conduct of occupants, visitors and other persons on the premises in two ways under the RT Act 2010. First, you are vicariously liable for the acts or omissions of persons who are lawfully on the premises, except for persons who have a right to enter without your consent (for example, the landlord, agent or a tradesperson engaged by the landlord to do a repair) (section 54). This means that if a person is not on the premises lawfully (for example, the person is a trespasser, or you’ve told them to leave), you are not liable under section 54 for their acts or omissions. However, if they are on the premises lawfully, you are strictlyliable for any damage or other losses caused by them – so you may be liable even if you did not know about, or could not have prevented, their actions.

Secondly, you are also liable where you have ‘permitted’ another person to damage the property, or make a nuisance, or commit other breaches of the agreement under section 51. For this sort of vicarious liability, it is relevant whether you could have prevented the breach from happening; however, it is not limited to the acts or omissions or persons lawfully on the premises.

Peace, comfort and privacy, and quiet enjoyment

It is a term of your tenancy agreement that your landlord or agent must not cause or permit interference in your reasonable peace, comfort or privacy in using the premises (section 50(2)). Most breaches of this term occur as a result of the landlord accessing the premises other than in accordance with the RT Act 2010 (see ‘Access by the landlord’, above), but it can be breached in other ways too.

It is also a term of your tenancy agreement that you are entitled to ‘quiet enjoyment’ of the premises (section 50(1)). This is a legal term that does not necessarily have anything to do with noise: it means that your occupation of the premises is not to be disturbed or diminished by the landlord, their agent, or anyone claiming an interest in the property through or under the landlord, or who has a superior title to the landlord (that is, a head-landlord).

The most obvious breach of quiet enjoyment is where the landlord tries to force you out of occupation of the premises, by locking you out, physically removing you or cutting off the electricity. A landlord may also be in breach of your quiet enjoyment where they fail to do repairs and the defect substantially affects your occupation of the premises, or where they are doing work to the premises and the work substantially affects your occupation of the premises.

Sale of premises

Landlords are entitled to sell premises that are subject to a tenancy agreement – even during the fixed term of an agreement. If your landlord decides to put the premises on the market for sale, there are a number of implications for your tenancy.

Being told the premises are for sale

You are entitled to be told that the premises are for sale. If your landlord entered the tenancy agreement intending to sell the premises, this should have been disclosed before you signed the agreement (section 26 – see section on Starting a tenancy). Otherwise, if your landlord decides during the tenancy to sell, you are entitled to be notified that the premises are for sale two weeks prior to the landlord showing the premises to any prospective purchasers (section 53(1)).

Sale during a fixed term

If the premises are put on the market for sale during the fixed term of your agreement, you may give a 14-day termination notice and end the tenancy (section 102). You cannot give this notice, however, if your landlord informed you before you entered into the tenancy agreement that the premises would be put on the market for sale. See section on Ending a tenancy for more on how to terminate a tenancy.

Sales and access

Your landlord must make all reasonable efforts to agree with you as to the days and times when the premises will be available for inspection by prospective purchasers (section 53(2)) – and you must not unreasonably refuse to agree (section 53(3)). You do not have to agree to the premises being available for inspection more than twice a week (section 53(4)).

If you and your landlord cannot agree, your landlord can access the premises on 48 hours’ notice, up to twice a week, to show the premises to prospective purchasers. The other general limits on your landlord’s right to access (section 57) also apply (so, for example, not on a Sunday or public holiday, and not before 8 am and not after 8 pm).

Your landlord is also entitled to access for the purpose of valuing the property, provided they give you one week’s notice, and do so not more than once a year (section 55(2)(d)).

Landlords and agents often seek access to premises for other purposes, such as taking photos of the premises, erecting ‘for sale’ signs, conducting an ‘open house’, and even conducting the auction of the premises. They do not, however, have a right under the RT Act 2010 to access the premises for these purposes. It is up to you whether you allow them on the premises.

If the premises are sold

When the premises are sold, your landlord is required to notify you in writing and give you the name of the purchaser and a direction to pay the rent to them in future (section 76).

If you are in a periodic agreement, and the sale contract requires vacant possession of the premises to be given to the purchaser, your landlord can give you a 30-day termination notice. If the premises are sold during the fixed term of a tenancy agreement, the purchaser takes the premises subject to the fixed term, and you cannot be given a 30-day termination notice. See section on Ending a tenancy for more about termination notices and the termination process.