Other issues during a tenancy

Death of a tenant or co-tenant

Tenancies do not automatically end when a tenant dies. If the tenant is the sole tenant of the premises (that is, they do not have any co-tenants), either the landlord or tenants’ legal personal representative (the executor or administrator of the tenant’s estate) may give a termination notice. There is no prescribed period for the notice. This termination notice can be given whether the tenancy is subject to a fixed term or a periodic agreement (Residential Tenancies Act 2010 (NSW)(RT Act 2010) section 108).

If you’re the co-tenant of a tenant who has died, you have a choice as to whether to continue with the tenancy or terminate it. To terminate it, you can give the landlord a 21-day termination notice on the ground that your co-tenant has died (section 78(1)). This termination notice can be given whether you are in a fixed term or a periodic agreement (section 78(3)).

If you’re an occupant of premises (that is, you live there but are not a tenant) and the tenant dies or moves out, you may move out (there’s no obligation on you to give notice to the landlord) or you can try to stay at the premises as a new tenant. The most straightforward way of doing this is by agreement with the landlord. Alternatively, you can apply to the NSW Civil and Administrative Tribunal for an order recognising you as a tenant, which has the effect of vesting a tenancy in you on such terms as the Tribunal thinks fit (section 77).

Discrimination

The prohibition of discrimination on grounds of race, sex, sexual orientation, marital status and other grounds is discussed in Starting a tenancy, in relation to applications for tenancies. Discrimination is also generally unlawful in relation to the conduct of landlords and agents during a tenancy.

Examples of discrimination during a tenancy include:

  • Your landlord refusing to make or allow modifications, such as a ramp or handrail next to the bath, that you need because of a disability;
  • The agent conducting extra inspections because you are a young person;
  • Your landlord giving you a termination notice because of your partner’s race or religion.

If you are discriminated against by your landlord or agent, consider making a complaint to the Australian Human Rights Commission or the NSW Anti-Discrimination Board. Note that the Civila nd Administrative Tribunal has very limited ability to enforce the prohibition of unlawful discrimination.

Domestic violence

Under New South Wales law (the Crimes (Domestic and Personal Violence) Act 2007 (NSW)), courts can make orders to protect persons from domestic violence and personal violence. These orders are called apprehended violence orders (AVOs).

Applications for AVOs may be made by the person in need of protection, or by the police, and the courts can make interim or provisional AVOs before making final AVOs. In making an AVO, the court can impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court – including a prohibition on the defendant from having access to premises occupied by the defendant or the protected person.

Apprehended violence orders also have consequences for tenancies. If a final AVO prohibits a person from having access to premises of which they are a tenant or co-tenant, that person’s tenancy is terminated. In the case of a co-tenant, the termination does not affect the tenancies of any other co-tenants (section 79(1) – except that they then have grounds to terminate the tenancy during a fixed term without compensation to the landlord (section 100(1)(d)).

If you are a non-tenant occupant of premises (for example, the agreement is in your partner’s name only, or you’re an occupant in a shared household) and the tenant’s tenancy is terminated by a final apprehended violence order, you can apply to the Tribunal for an order recognising you as a tenant (section 79(2)). This order has the effect of vesting a tenancy in you, on such terms of the previous agreement as the Tribunal thinks fit (for example, the rent payable).

Getting in contact with your landlord

It is a term of your agreement that the landlord will provide you with their name, telephone number and other contact details and, if they have an agent, the agent’s name, telephone number and contact details (section 27(1)(a)). If the landlord does not have an agent, the landlord must also provide you with their own business address or residential address (section 27(1)(b)). They must also advise you of any changes in this information within 14 days (section 27(2)).

If your landlord has an agent, it is usually a good idea to deal with the agent, rather than the landlord – that’s what the landlord is paying the agent to do. Sometimes, however, it can be useful to contact your landlord directly, especially if the agent is behaving unreasonably. Be prepared, however, for the landlord to direct you back to the agent (or to behave just as unreasonably).

If you don’t know your landlord’s name, you can find out from the title documents for the property kept at Land and Property Information, an agency of the NSW State Government. You can do a title search online, but there is a fee. (You might also be able to find out your landlord’s name free of charge by asking your local council who is the rate payer for the property, but some councils refuse to release this information.)

In rare circumstances, there may be a legal problem that prevents you from lawfully occupying the premises, even though you are the tenant under a tenancy agreement. The most common of these circumstances is where the landlord does not have development approval from the local council for use of the premises – usually a granny flat or converted garage – as a residence. It may also occur where the premises were developed subject to restrictions as to who can reside there (for example, premises for seniors or persons with disability).

It is a term of your tenancy agreement that the landlord takes all reasonable steps to ensure that at the commencement of the tenancy there are no legal impediments to your occupation for the period of the tenancy (section 49(1)).

If there is an impediment to your lawful occupation of the premises, you will have to move out (local councils can make orders to this effect: Environmental Planning and Assessment Act 1979 (NSW), section 121B). When you move out, seek compensation from your landlord for your losses: for example, if the tenancy is ending during the fixed term, you may claim for your moving expenses and, if your new premises are more expensive, the difference between the rent amounts for your old and new premises.

Note that in a number of cases, the Tribunal has also ordered repayment to the tenant of all rent paid under the ‘unlawful agreement’, but there is some doubt as to whether this correctly reflects the principle that compensation should be for the value of a person’s loss.

Pets

You might think that whether you can keep a pet is your business – not your landlord’s – provided you comply with the terms to keep the premises reasonably clean and not to cause or permit damage or nuisance. However, many landlords presume to make this decision for you.

Can I keep a pet?

There is no term in the Residential Tenancies Act 2010 (NSW) that prohibits you from keeping a pet, or that requires you to ask for your landlord’s consent before you keep a pet. Section 19, which deals with prohibited additional terms, contemplates that a landlord may ‘permit’ a tenant to keep an animal on the premises (section 19(3)), which implies that a landlord may prohibit the keeping of a pet, at least in some circumstances.

The standard form of agreement, however, includes the following additional term of three clauses:

43. The tenant agrees not to keep animals on the residential premises without obtaining the landlord’s consent.

44. The landlord agrees that the tenant may keep the following animals on the residential premises:

45. The tenant agrees to have the carpet professionally cleaned or to have the residential premises fumigated if the cleaning or fumigation is required because animals have been kept on the residential premises during the tenancy.

Any or all of these clauses may be crossed out when you and the landlord sign the agreement.

Note also that strata schemes will have a by-law about the keeping of animals. The by-law might allow an animal to be kept with the prior written approval of the owners corporation, or prohibit animals (except guide dogs) altogether.

Do I have to have the premises professionally cleaned?

Additional terms that require you to have the premises professionally cleaned or fumigated when you move out are usually illegal and invalid (section 19(2)(a)); but there is an exception where you have been permitted to keep an animal on the premises (section 19(3)).

There is a question as to whether you can be required to have professional cleaning or fumigation done regardless of the actual state of the premises at the end of the tenancy (in other words, if you leave the premises spotless, are you liable to have them professionally cleaned anyway?). The additional term at clause 45 of the standard form of agreement is not clear in this regard; nor is section 19(3).

Pet bonds

Sometimes landlords and agents ask for additional amounts of bond (that is, over and above the usual four weeks’ bond) if you keep a pet. These ‘pet bonds’ are usually not lodged with Renting Services and instead are kept in an account maintained by the landlord or agent. Both practices are unlawful (sections 159(1), 160(1), 161(1) and 162(1)).

Residential tenancy database listings

Under the Residential Tenancies Act 2010 (NSW), you may be listed on a tenancy database only for certain reasons, and only after your tenancy has been terminated.

If you are listed during a tenancy for whatever reason, tell your landlord or agent and the tenant database operator that the listing is unlawful and that it should be removed. If the listing is not removed, apply to the Tribunal for an order that the listing be removed.

Subletting

You sublet premises when you grant another person a contractual right to occupy premises, or part of premises, of which you are the tenant. This other person is your sub-tenant or lodger, and you are effectively their landlord. They have no contractual relationship with your own landlord.

You should not sublet premises without the written consent of your landlord – it is a breach of your tenancy agreement (section 74(1)).

If you propose to sublet the whole of your tenancy – that is, you will no longer occupy the premises and the sub-tenant will have the place to themselves – your landlord is entitled to refuse consent, even if the refusal is unreasonable (section 75(1)).

If you propose to sublet part of your tenancy – that is, you will continue to occupy the premises, along with the sub-tenant or lodger – your landlord may refuse consent, but not unreasonably. The Residential Tenancies Act 2010 (NSW) gives the following specific examples of reasons for refusing consent:

  • The subletting would cause more persons to occupy the premises than are permitted by the tenancy agreement or any relevant development consent or approval (section 75(3)(a));
  • The sub-tenant or lodger is listed on a residential tenancy database in accordance with the RT Act 2010 (section 75(3)(b));
  • The subletting would cause the premises to become overcrowded (section 75(3)(c)).

If you think your landlord’s refusal is unreasonable, you can apply to the Tribunal to resolve the dispute.

Whether the person to whom you sublet is a sub-tenant (with the rights and obligations of a tenant under the RT Act 2010) or a lodger (excluded from the RT Act 2010) depends on the nature of the agreement and other arrangements between you and the person. See the section on Share housing for more about subletting and sub-tenancies.