Finding a place to rent

Most private rental properties in New South Wales are advertised to let and managed by real estate agents. Agents increasingly rely on websites to advertise rental properties, but they also continue to advertise through newspapers and their own offices. Agents usually show properties to prospective tenants at specified times, often in 15 minute blocks on a Saturday – so be prepared to devote the day to rushing from one property to next for a very quick inspection. Some agents might agree to show you through at some other, mutually agreed time.

Self-managing landlords and occupants of share housing also increasingly advertise online as well as through newspapers. A lot of share housing is also advertised at universities and TAFEs: check the student accommodation office and flyers posted on noticeboards and elsewhere.

Scams

When using the internet to find a place to rent, beware of scams. Scammers often use fake copies of genuine ads and other documents, but you may be able to spot them because they often insist on communicating solely by email (sometimes claiming to be out of the country) and ask you to pay money or provide personal information before showing you the premises. Insist on being able to inspect the premises (actually go inside – don’t just drive by) before transferring any money or providing personal information.

Landlords’ representations and disclosures

When they advertise premises or negotiate with prospective tenants, landlords and agents must not make false or misleading statements, representations or promises (Residential Tenancies Act 2010 (NSW) (the RT Act 2010) section 26). In addition, landlords and agents must not knowingly conceal certain prescribed ‘material facts’. These are defined at clause 7 of the Residential Tenancies Regulation 2010 (the RT Reg 2010):

  • If the premises have been subject to flooding or bushfire in the preceding five years;
  • If the premises are subject to significant health and safety risks that are not apparent to a reasonable person on inspection of the premises;
  • If the premises have been the scene of a violent crime in the preceding five years;
  • If council waste services will be provided on a different basis than generally applies to residences in the area;
  • If, because of zoning or development conditions, the tenant will not be able to get a parking permit in a paid parking area; or
  • If there is a driveway or walkway on the premises that other persons are entitled to use.

There is a question as to whether a landlord or agent ‘conceals’ a fact by merely remaining silent on the matter: in relation to similar provisions in other legislation, the courts have held that silence may be a breach of a duty not to conceal (see the Federal Court’s decision on section 52 of the Trade Practices Act 1974(Cth) in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1)(1988) 39 FCR 546).

If you enter into a tenancy agreement on the basis of a false representation or the concealment of a material fact, the landlord or agent may be prosecuted and fined (maximum penalty: 20 penalty units ($2200)). However, the Act does not directly provide you with a remedy (as distinct from a penalty for the landlord or agent). In other words, a false representation is not a breach of a term of the tenancy agreement, so you cannot give a termination notice on the ground that the landlord has breached the agreement, or apply to the Tribunal for compensation because of a breach.

You may, however, have a remedy under the Australian Consumer Law, which prohibits misleading and deceptive conduct (or conduct likely to mislead or deceive) in the course of trade or commerce (clause 18(1)). Real estate agents are involved in trade and commerce; not every landlord may be. Where it applies, the Australian Consumer Law provides for a range of remedies, including damages (that is, compensation: clause 236). For remedies under the Australian Consumer Law, you must apply to a court – not the Civil and Administrative Tribunal, which is the usual forum for resolving tenancy disputes – unless you already have proceedings on a connected matter in the Tribunal (perhaps an application for termination because of hardship), in which case the Tribunal can order damages for breach of the Australian Consumer Law (Fair Trading Act 1987(NSW), section 74(3)).

Note: The Australian Consumer Law is a piece of Federal legislation (Competition and Consumer Act 2010(Cth), Schedule 2) that has been adopted by each State and Territory (for New South Wales, see Fair Trading Act 1987(NSW), section 27).

This is new.

There were no provisions about landlords’ disclosures in the Residential Tenancies Act 1987(NSW) (the RT act 1987). Agents were (and continue to be) subject to the Property, Stock and Business Agents Act 2002(NSW) (the PSBA Act 2002), which at section 52 prohibits false, misleading or deceptive representations and concealment of material facts. Note that there is no prescribed definition of ‘material facts’ for the purposes of that Act. The Australian Consumer Law is also new: it commenced January 2011. It replaced the Trade Practices Act 1974(Cth) and various State and Territory-level pieces of consumer legislation with a single, nationally consistent consumer law.