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Repairs and maintenance

Light globes

The standard form of residential tenancy agreement (at Schedule 1 of the Residential Tenancies Regulation 2010 (RT Reg 2010)) provides that it is the landlord’s responsibility to ensure that all light fittings are fitted with working light globes at the start of the tenancy (clause 18(2) – but note that the numbering of your tenancy agreement may be different). It also provides that you must ensure that all light fitting have working light globes at the end of the tenancy (clause 17.5).

Note, however, that the Residential Tenancies Act 2010 (NSW) (RT Act 2010) itself makes no mention of light globes.

This is new

Neither the RT Act 1987 nor the Residential Tenancies Regulation 2006 (NSW) (the RT Reg 2006) mentioned light globes.

Locks and security

It is your landlord’s obligation to provide and maintain locks and other security devices so that the premises are reasonably secure (section 70(1)).

This does not mean that the premises have to be impregnable. What is required to make premises ‘reasonably secure’ varies, depending on the circumstances. Section 191(2) sets out a number of factors that may be relevant:

  1. the physical characteristics of the premises and adjoining areas;
  2. the requirements of insurance companies for allowing the tenant to obtain insurance for property of the tenant kept at the premises;
  3. the likelihood of break-ins or unlawful entry or risks to the tenant’s personal safety.

Note that there may be circumstances where the physical standard of the locks and security devices is reasonable, but other acts or omissions by the landlord puts them in breach of the obligation: for example, where the landlord has allowed other persons to have copies of the keys.

If the premises are not reasonably secure, your landlord may be liable to compensate you for any losses you suffer – including as a result of a break-in or theft. In determining whether to make a compensation order, the NSW Civil and Administrative Tribunal must consider the actions taken, or that should reasonably have been taken, by you and by the landlord for the security of the premises (section 191(3)).

This is changed

… but not by much. The list of relevant factors at section 191 is new, but reflects factors that the Tribunal had previously held to be relevant in cases about reasonable security.

Changing locks

You should not remove, add or change the locks at the premises unless you have either your landlord’s consent or a reasonable excuse for doing so (section71(1)). ‘Reasonable excuses’ include emergencies, the termination of a co-tenant’s tenancy, and a tenant or occupant being prohibited from accessing the premises by an apprehended violence order (section 71(2)). You should also provide a copy of the new keys to your landlord within seven days of changing a lock (section 72).

Changing a lock without consent or reasonable excuse is both a breach of your tenancy agreement and an offence under the RT Act 2010 (maximum penalty: $2200).

The same rules apply to landlords. Note that the Tribunal can make orders allowing locks to be changed, and for a copy of the new keys to be withheld from the other party (section 73).

Making alterations to the premises

‘Alterations’ include renovations and the installation of fixtures, such as airconditioners, railings, ramps and sheds. You should not make any alterations to the premises without the written consent of your landlord – it is a breach of your tenancy agreement (section 66(1)).

If the proposed alteration is ‘minor’, however, your landlord must not unreasonably withhold their consent (section 66(2)). The RT Act 2010 does not define ‘minor’, but section 68(3) sets out some circumstances where it may be reasonable for a landlord to withhold consent:

  1. if the work involves structural changes;
  2. if the work involves work that would not be reasonably capable of rectification, repair or removal;
  3. if the work involves internal or external painting of the residential premises;
  4. if the work is prohibited under any other law;
  5. if the work is not consistent with the nature of the property.

Note that if you want to make an alteration, you will be liable to pay for it. Also, if you want to remove a fixture you have installed, you may, but you will be liable to pay any removal costs, and repair or compensate the landlord for any damage done (section 67(2)).

This is changed

Previously, landlords could refuse consent regardless of whether the proposed alternation was minor or not, or whether the refusal was unreasonable or not. Landlords also could refuse consent to the removal of a fixture; however, where they did so, they were liable to compensate the tenant for the value of the fixture.

Repairs and maintenance

At the start of your tenancy, your landlord is obliged to provide premises that are:

  • Reasonably clean (section 52(1);
  • Fit for habitation (section 52(1)); and
  • In a reasonable state of repair (section 63(1));

For the duration of the tenancy, the landlord is obliged to maintain the premises in a reasonable state of repair. ‘Reasonable state of repair’ means ‘having regard to the age of, rent payable for and prospective life of the premises’ (section 63(2)). Note that your landlord is not obliged to repair damage that you have caused or permitted (section 63(3)).

You are obliged to keep the premises reasonably clean. This means having regard to the condition of the premises at the start of the tenancy (section 51(2)(a)).

Getting repairs done

The first step to getting repairs done is to make sure that your landlord or agent knows about the defect. (Note that it is also a term of your tenancy agreement that you will notify the landlord of any damage to the premises: section 51(2)(b).) Notify your landlord or agent in writing, and keep a copy. Ask them to contact you by a certain date to arrange for the repair to be done.

If your landlord fails or refuses to do the repair satisfactorily, they are in breach of the tenancy agreement and you can apply to the Tribunal for an order that the repair be done (a ‘specific performance order’, or ‘SPO’ (section 187(1)(h)). In addition to the SPO, you should also consider applying for:

  • A rent reduction (because your landlord’s failure to do repairs amounts to a withdrawal of goods, services and facilities provided (section 44(3));
  • Compensation for any loss you have suffered as a result of your landlord’s failure to do repairs (section 187(1)(d)); and
  • An order allowing you to pay your rent to the Tribunal’s account, rather than to your landlord (section 187(1)(f)).

The Tribunal will expect you to prove that your landlord is in breach. This means being prepared to show evidence that:

  • The defective part of the premises is not in a reasonable state of repair (evidence can include photographs and experts’ reports); and
  • That your landlord knew, or ought to have known, of the need for repair (evidence can include copies of your correspondence with the landlord or agent).

It is not a good idea to stop paying the rent – you will only end up in a dispute (and possibly in termination proceedings in the Tribunal) about rent arrears. It is also not a good idea to attempt the repairs yourself.

If your landlord’s failure to do repairs is such that you want to end the tenancy, you can give a termination notice, or apply to the Tribunal for a termination order, on the ground of your landlord’s breach. See the section on Ending a tenancy.

Urgent repairs

Special provisions apply in relation to ‘urgent repairs’, which the RT Act 2010 defines as:

  1. burst water service;
  2. an appliance, fitting or fixture that uses water or is used to supply water that is broken or not functioning properly, so that a substantial amount of water is being wasted;
  3. a blocked or broken lavatory system;
  4. a serious roof leak;
  5. a gas leak;
  6. a dangerous electrical fault;
  7. flooding or serious flood damage;
  8. serious storm or fire damage;
  9. a failure or breakdown of the gas, electricity or water supply to the residential premises;
  10. a failure or breakdown of any essential service on the residential premises for hot water, cooking, heating, cooling or laundering;
  11. any fault or damage that causes the residential premises to be unsafe or insecure (section 62).

If your landlord does not attend to an urgent repair within a reasonable period, you have the option of getting a tradesperson to do the repair. You will have to pay the tradesperson, but you are entitled to be compensated by the landlord, up to $1000 (section 64(3)), within 14 days (section 64(1)). If the landlord has nominated a particular tradesperson for the purpose in the tenancy agreement, you must give that tradesperson a reasonable opportunity to do the repair (section 64(2)(d)); otherwise, you can use another tradesperson, but they must be suitably qualified (section 64(2)(e)).

Note that you can use the urgent repairs provision only in relation to property owned by your landlord (or, if you’re a sub-tenant, by someone with superior title to your landlord; that is, a head-landlord). This means, for example, that you cannot do urgent repairs to common property in a strata scheme.

Alternatively, you can use the process for getting repairs done generally.

Utilities

The rules about who pays for utilities, and in what circumstances, differ according to the type of utility.

Electricity

It is a term of your agreement that you will pay all charges for the supply of electricity to you at the premises, provided the premises are separately metered (section 38(1)(a)). If the premises are not separately metered, the landlord must pay all the charges (section 40(1)(c)).

This is changed

Under the RT Act 1987, the liability of the landlord for supply charges where the premises were not separately metered was not clear, and the Tribunal had made contradictory decisions in this regard. The RT Act 2010 makes clear that the landlord is liable.

In most tenancies, you will contract directly with the electricity supply company (that is, the account is in your name, and the bills go straight to you). In some cases, however, the landlord holds the account, and on-sells the electricity to you. In these cases, the charge to you must be no more than the maximum allowable amount under section 72(3) of the Electricity Supply Act 1995 (NSW).

Any installations costs and charges for initial connection must be paid by the landlord (section 40(1)(b)).

Gas

As with electricity, you are liable to pay for the supply of gas, provided the premises are separately metered (section 38(1)(a)). It’s different for bottled gas: a separate meter is not required, but your landlord must pay for the supply or hire of the bottles at the commencement of the tenancy (section 40(1)(d)).

Any installation costs and charges for initial connection must be paid by the landlord (section 40(1)(b)). Also, if the premises are not equipped with gas appliances, and you don’t actually use any gas, any charges for the availability of gas must be paid by the landlord (RT Reg 2010, clause 12).

Garbage collection

It is a term of your tenancy agreement that you pay for any excess garbage charges relating to your uses of the premises (section 38(1)(d)).

Note that for some rural properties, there may be no regular garbage collection service, so you have to make your own arrangements and pay for them.

Sewerage and septic tanks

It is a term of your agreement that your landlord pays all charges for sewerage and drainage services to the premises, except for charges for the pumping out of a septic tank (section 40(1)(g)). If the premises have a septic tank system, you have to pay for pumping it out (section 38(1)(c)).

Water charges

The account for the supply of water from the local water authority is invariably in your landlord’s name (it is bundled up in the account for sewerage and drainage). It is a term of your agreement that you pay any water usage charges for the premises, but only if:

  • The premises are separately metered; and
  • The premises contain water efficiency measures, as prescribed; and
  • The charges do not exceed the amount payable by the landlord for the water you used; and
  • When the landlord requests payment, they provide you with a copy of the bill (or other evidence of the cost of the supply of water); and
  • The landlord’s request for payment is made within three months of the landlord receiving the bill (section 39(1)).

The prescribed water efficiency measures are:

  • All showerheads have a maximum flow rate of nine litres per minute;
  • All internal cold taps, and mixer taps for kitchen sinks and bathroom hand basins, have a maximum flow rate of nine litres per minute;
  • There are no leaking taps at the commencement of the tenancy, or when the water efficiency measures are installed, whichever is the later (RT Reg 2010, clause 11).

You have three weeks to pay a bill for water charges from when it is presented to you (section 39(3)).

Note that different provisions apply to water charges in social housing tenancies. See the section on Social housing for details.

Leaks and large bills

An unusually large utility bill may be a sign that there is a defect in the premises. Often, it is the first sign – in which case the landlord may not be in breach of their obligation to keep the premises in reasonable repair, and you may be liable to pay the bill. Tell your landlord about the bill and that they should look into what may have caused it; from this point in time, at least, they will know that there may be a defect.

On the other hand, if your landlord knew of the defect, or reasonably ought to have known of it, they may be liable to compensate you for the cost of the bill (section 65(3)(a) and (b)).