Help For West Australians

If you are renting a home in Western Australia or thinking of doing so soon, the information in this guide will help you find the right home, avoid common renting pitfalls and help you have a harmonious (and lawful) relationship with the property owner or agent.

Renting a home in Western Australia is governed by a set of laws called the Residential Tenancies Act 1987 (the Act) and the Residential Tenancies Regulations 1989. You can buy copies of the Act and Regulations from the State Law Publisher online at www.slp.wa.gov.au or by phone on 6552 6000. You can also download free copies at https://www.legislation.wa.gov.au. We advise you to check whether any changes have been introduced.

This guide doesn’t take the place of the Act, nor does it pretend to cover everything; but it will give you a good working knowledge of your rights and responsibilities as a tenant. It is not legal advise.

FAQ Guide for Western Australia

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, Tenants Advice Service claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

In general terms anyone who has a residential tenancy agreement is entitled to the protection of the Residential Tenancies Act WA (1987). The Act defines a “residential tenancy agreement” as: “

Any agreement, whether express or implied [written or verbal], under which any person [the owner] grants to any other person for valuable consideration [for example, rent] the right to occupy, whether exclusively or otherwise, any residential premises, or part of residential premises, for the purpose of residence.”

However, the Residential Tenancies Act does not apply to any residential situation where the resident is a boarder or lodger (RTA, section 5(2)(d)). In some cases, boarders and lodgers may have signed a “license to occupy premises”.

This is NOT necessarily the same as a tenancy agreement. See chapter 2.08 The Tenancy Agreement for more information. Boarders and lodgers are NOT protected by the Residential Tenancies Act (1987).

Are boarders and lodgers the same as tenants?

No! Not everyone who pays money for the right to occupy is a tenant. For example, a person who stays in a hotel room pays money for the right to occupy a room but is not a tenant.

Such a person is referred to legally as a “licensee” rather than as a “tenant” (The Macquarie Easy Guide to Australian Law, 1987). The general difference between a tenant and “licensee” is that a tenant has an exclusive right to occupy, whereas a licensee does not.

For example, in boarding or lodging arrangements, the owner may have the right to enter your room (and does not have to give notice as would be the case if you were a tenant).

Another example is that unlike tenants, boarders and lodgers can be evicted from the premises with very little notice. Only tenants have rights as prescribed by the Residential Tenancies Act.

It can sometimes be difficult to determine whether there is a license or a tenancy, but the distinction is very important since tenants have far greater legal rights than licensees.

Who is considered to be a “boarder” or “lodger”?

It is not always easy to determine the difference between boarders, lodgers and tenants. Many factors may be relevant and it is important that all these factors are considered. You should always seek advice to clarify your situation and your rights and obligations.
Typical boarding and lodging situations include:

  • Hostels and boarding houses, where you rent a room and can use common facilities but generally have no say in the overall running of the establishment.
  • If you are subject to house rules, for example, no visitors after midnight.
  • If the landlord keeps overall control of the house, including your room (for example, enters your room without needing your permission).
  • If you receive services from your landlord or head‐tenant (such as cleaning, washing or providing linen).
  • If your landlord provides meals.
  • If you pay for an accommodation “package” including such things as food, heating and cleaning (for example, a homestay situation).

Who is a “lodger”?

Generally speaking, a “lodger” is someone who occupies part of premises but whose occupation/residency is still under the control of the owner.

For example, the owner may live at the premises. Even when the owner does not live at the premises, the occupier/resident may still be classified as a lodger if the owner retains control of the outer door of the building, or if s/he provides other services such as cleaning the room or making the bed (Bradbrook, McCallum and Moore, 1983, Residential Tenancy Law and Practice – Victoria and South Australia, Ch. 4).

It can be difficult to determine whether a person is a “boarder” or a “lodger”.

Who is a “boarder”?

A “boarder” is someone who apart from being a lodger, also receives meals.

There may be an issue as to whether the amount of food a person receives is enough for the person to be classified as a boarder.

It has been said that “board” lies somewhere between an early morning cup of tea, and bed and breakfast. However, the question to ask is probably whether the food received is “not so trifling in value or in amount as to be negligible”.

Further, it is important to remember that, even if the food received is insufficient for the person to be classified as a boarder, s/he may still be a “lodger” and therefore not covered by the Act (Bradbook, McCallum and Moore, 1983, Residential Tenancy Law and Practice – Victoria and South Australia, Ch. 4).

A “boarder is someone who apart from being a lodger, also receives meals.

Some useful questions

The definitions of a “lodger” and “boarder” are not settled or definite and applying them to a person’s situation may often be difficult. In attempting to determine whether or not a person is a lodger or a boarder, there are some useful questions which can be asked:

  • Does the person have a key to the front door?
  • Can the tenant come and go as they please?
  • Is the tenant subject to any rules while at the premises?
  • Does the agreement provide for a daily rate of charge, rather than weekly or fortnightly amounts?
  • Is the term of the agreement for a fixed term, periodic or purely at the will of the owner?
  • Are other parts of the agreement of the kind typically found in a tenancy agreement (for example, obligation of the occupier to insure the premises, or a term which grants quiet enjoyment to the occupier)?
  • Does the occupier have exclusive use of a bathroom and toilet?
  • Does the agreement refer to a “tenancy”, “rent”, “board” etc.?
  • Is the tenant provided any linen, food or other services by the owner? Tenants Advice Service ‐ Tenants Rights Manual March 2010 | Infosheet 1.09 | Page 2 Tenants Advice Service ‐ Tenants Rights Manual March 2010 | Infosheet 1.09 | Page 3
  • What is the character of the premises, and the purpose/s for which occupation is made available (for example, is it a women’s refuge, a hostel?)
  • Are the premises registered as a boarding house with the Local Council?
  • Is the person expected to pay the same amount of bond as a tenant?

This list is not comprehensive and the answer to any of them will not necessarily mean that a person is or is not a boarder or a lodger!

Resolving Disputes

It is usually advisable to first try and resolve a dispute by dealing directly with the other party. One of the agencies listed in chapter 1.12 Community Contacts may be able to help you resolve a dispute. If you and the other party cannot resolve the dispute, it is suggested you seek advice on your situation and your options for taking action. You can apply to the Magistrates Court to have your legal status defined.

Taking a dispute to Court

If you can prove your status as that of a tenant, rather than as boarder or lodger, you will be covered by the Residential Tenancies Act and may wish to pursue a claim through the courts against the landlord. See chapter 3.09 When the Owner is in Breach of the Agreement for more information.

However, if a tenant makes a claim under the Residential Tenancies Act and the court rules that the tenant is a boarder or lodger, their application will be dismissed.

Another option is to pursue your claim through the court regardless, as it is up to another party in the court hearing to raise the issue of whether or not the person is actually a boarder and lodger and to prove this to the court on the balance of probabilities.

However, if you think you may be a boarder or lodger, it is best to seek advice before commencing proceedings. You are likely to have some sort of legal remedy even if you are a boarder or lodger and it is important to check this out. Contact The Department of Commerce (website: www.dmirs.wa.gov.au or phone 1300 30 40 64).

List of Tenants’ Rights Manual chapters referred to in this info sheet:

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, Tenants Advice Service claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

What is TAS?

The Tenants Advice Service Inc (TAS) is an independent, not for profit, specialist community legal centre. TAS was established in 1979 and has remained the only specialist service for tenants in Western Australia. TAS receives most of its funding from the interest earned on private tenants’ bond money (held in the Rental Accommodation Fund that is administered by the Department of Commerce).

TAS provides the following services:

  • Residential tenancy information, advice and advocacy;
  • Community education and training;
  • Works to increase awareness of residential tenancy issues;
  • Advocates for improvements to residential tenancy law and housing policies in State and Commonwealth governments; and
  • A range of free publications for the benefit of residential tenants.

The Department of Commerce

The Department of Commerce (www.commerce.wa.gov.au) is a State Government department with responsibilities and functions under the Residential Tenancies Act 1987 (WA). These responsibilities include the provision of information and advice to tenants and owners, as well as conciliation functions in disputes between owners and tenants.  www.commerce.wa.gov.au/consumer-protection/renting-home

TAS Telephone Advice Line for Tenants

TAS provides a free, specialist phone information service for private, public and community housing tenants. TAS’ advice line workers can also mail out tenancy information free of charge to advice line callers.

  • Metro Advice Line: (08) 9221 0088 (Mon–Fri: 8.30am–3.30pm)
  • Country Advice Line : 1800 621 888 (Free call) (Mon–Fri: 1pm–3.30pm)
  • Country callers can leave a message on the answering machine and TAS will return your call during the country advice line operating hours.
  • If you need an interpreter, TAS will bear the cost. Contact the Translating and Interpreting Services (TIS) on 13 14 50 – available 24 hours.
  • TAS’ phone advice line is funded for only a certain number of hours each week and often experiences heavy demand. If you are having problems getting through to an advice line worker try calling the Department of Commerce’s information line or Legal Aid (details provided below).
  • Tenants and community workers can also access tenancy information and TAS’ publications from the TAS website at www.taswa.org.

Legal Aid (WA)

Legal Aid provides a free telephone information service on legal problems including tenancy (www.legalaid.wa.gov.au). Advice Line: 1300 650 579 TTY: 1800 241 216

Assistance for People Working with Tenants

TAS supports community workers who assist tenants by providing them with training, advice, information and publications. People working with tenants can contact TAS’ administration line on (08) 9221 9499. Please note: Tenancy advice is not available to tenants on this telephone number.

WA Tenancy Network

The WA Tenancy Network consists of Local Service Units (LSU) that employ advocates to provide tenancy advice to tenants throughout WA.

These agencies are funded to provide face‐to‐face advice, assistance (such as negotiation and representation) and education services to residential tenants in WA.

TAS is funded to act as the Central Resource Unit (CRU) for the Network. Contact the LSU closest to you to see what services they may be able to offer you. Please note: the following services operate independently of TAS

Metropolitan Local Service Units

Fremantle Community Legal Centre
Shop 11, Queensgate Building
10 William Street
FREMANTLE WA 6160
Ph: (08) 9432 9790

Gosnells Community Legal Centre
Suite 1, Gosnells Community Lotteries House
2232 Albany Highway
GOSNELLS WA 6110
Ph: (08) 9398 1455
www.gosclc.com.au

Midland Information Debt and Legal Advocacy Service (MIDLAS)
Midland Junction Lotteries House
39 Helena Street (cnr Great Eastern Highway)
MIDLAND WA 6056
Ph: (08) 9250 2123
www.midlas.org.au

Northern Suburbs Community Legal Centre (Joondalup Office)
Building 1, 270 Joondalup Drive
JOONDALUP WA 6027
(Located at the Edith Cowan University Campus)
Ph: (08) 9301 4413 Tenants Advice Service ‐ Tenants Rights Manual March 2010 | Infosheet 1.12 | Page 2

Northern Suburbs Community Legal Centre (Mirrabooka Office)
10 Cobbler Place
MIRRABOOKA WA 6061
Ph: (08) 9440 1663
TTY: (08) 9440 1680

Sussex Street Community Law Service
29 Sussex Street
EAST VICTORIA PARK WA 6101
Ph: (08) 6253 9500
TTY: (08) 9470 2831
Free call: 1800 642 971
www.sscls.asn.au

Welfare Rights and Advocacy Service (WRAS)
98 Edward Street
PERTH WA 6000
Ph: (08) 9328 1751
TTY: (08) 9328 6069
www.wraswa.org.au

Country Local Service Units
Agencies for South West Accommodation Inc (ASWA)
40 Charles Street
BUNBURY WA 6230
Ph: (08) 9791 3213
Free call: 1800 115 799
www.aswa.org.au

Geraldton Resource Centre
180 Marine Terrace
GERALDTON WA 6530
Ph: (08) 9964 3533
TTY: (08) 9964 5822
www.grc.asn.au

Goldfields Community Legal Centre
23 Maritana Street
KALGOORLIE WA 6430
Ph: (08) 9021 1888
Country call: 1300 139 188

Kimberley Community Legal Services
4 Papuana Street
KUNUNURRA WA 6743
Ph: (08) 9169 3100
Free call: 1800 686 020 Tenants Advice Service ‐ Tenants Rights Manual March 2010 | Infosheet 1.12 | Page 3

Peel Community Legal Service
Suite 6, 2 Sutton Street
MANDURAH WA 6210
Ph: (08) 9581 4511
www.peelcls.com.au

Pilbara Community Legal Services
South Hedland (main office)
Unit 9, Lotteries House
2 Leake Street
SOUTH HEDLAND WA 6722
Ph: (08) 9140 1613

Karratha
Welcome Lotteries House
7 Morse Court
KARRATHA WA 6714
Ph: (08) 9185 5899

Newman (details from February 2010)
Lotteries House
Roger Place
NEWMAN WA 6753
Ph: (08) 9177 8708

Roebourne
2 Padbury Street
ROEBOURNE WA 6718
Ph: (08) 9182 1169

Wheatbelt Community Legal Centre
123 Fitzgerald Street
NORTHAM WA 6401
Ph: (08) 9622 5200

Community Legal Centres

In addition to the Community Legal Centres mentioned already the centre listed below may also be able to assist with tenancy issues.

Albany Community Legal Centre
77 Albany Highway
ALBANY WA 6330
Ph: (08) 9842 8566
Free call: 1800 606 060

Tenants Advice Service ‐ Tenants Rights Manual March 2010 | Infosheet 1.12 | Page 4

Bunbury Community Legal Centre
101 Victoria Street
Bunbury WA 6230
Ph: (08) 9791 3206
Free call: 1800 999 727

Citizens Advice Bureau
25 Barrack Street
PERTH WA 6000
Ph: (08) 9221 5711
www.cabwa.com.au
(Various branches in WA‐ see the website or phonebook for other locations)

Frontier Services (Meekatharra)

The Red Sandbox
71 Darlot Street
MEEKATHARRA WA 6642
Ph: (08) 9980 1901
www.frontierservices.org

People with Disabilities (WA)

Oasis Lotteries House
37 Hampden Road
NEDLANDS WA 6009
Ph: (08) 9386 6477
Free call: 1800 193 331
TTY: (08) 9386 6451
www.pwdwa.org

Other Community Centres

Blue Sky Community Group
34 Diana Crescent
LOCKRIDGE WA 6054
Ph: (08) 9376 9999
www.blueskygroup.com.au

Boogurlarri Community House Association
82 Langford Avenue
LANGFORD WA 6147
Ph: (08) 9350 6236
www.boogurlarri.net.au

Jacaranda Community Centre
Unit 2, 142 Epsom Avenue
BELMONT WA 6104
Ph: (08) 9477 4346
www.jacarandacommunitycentre.org.au Tenants Advice Service ‐ Tenants Rights Manual March 2010 | Infosheet 1.12 | Page 5

Outcare (for ex‐offenders and family members of ex‐offenders)
27 Moore Street
EAST PERTH WA 6004
Ph: (08) 6263 8622
www.outcare.com.au

Other Community Services
Crisis Care – 24 hour emergency accommodation and referrals
Ph: (08) 9223 1111
Free call: 1800 199 008
TTY: (08) 9325 1232

Financial Counsellors

Financial Counsellors provide information and support to people who are experiencing money problems (including rent arrears, outstanding bills, etc).

To find out where your closest financial counsellor is located, contact the Financial Counsellors Association of WA (Inc). Ph: (08) 9325 1617 Financial Counselling hotline: 1800 889 364 (Mon‐Fri: 10am‐4pm; Sat: 10am‐2pm) www.financialcounsellors.org

Equal Opportunity Commission

The Equal Opportunity Commission (www.equalopportunity.wa.gov.au) is a government department that can investigate complaints about discrimination in a number of areas including the provision of housing. Ph: (08) 9216 3900 Free call: 1800 198 149 TTY: (08) 9216 3936

The Department of Housing

Department of Housing provides public housing and various housing services.

The Department also works with other agencies to provide community housing. Contact the Department of Housing to discuss the services it may be able to provide to you.
99 Plain Street
EAST PERTH WA 6004
Ph: (08) 9222 4666
Free call: 1800 093 325
TTY: (08) 9221 3985
Tenants Advice Service ‐ Tenants Rights Manual March 2010 | Infosheet 1.12 | Page 6
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Migrant Resource Centres

Particular community centres operate specifically for migrants. Migrants are encouraged to contact the Migrant Resource Centres or other community organisations listed below for help with tenancy issues.

CASE for Refugees
245 Stirling Street
PERTH WA 6000
Ph: (08) 9227 7311
www.caseforrefugees.org.au

Fremantle Multicultural Centre Inc
241‐243 High Street
FREMANTLE WA 6160
Ph: (08) 9336 8282
www.fmcwa.com.au

Metropolitan Migrant Resource Centre (Clarkson office)
237a Ocean Keys Boulevard
Clarkson WA 6030
Ph: (08) 9345 5755
www.mmrcwa.org.au

Metropolitan Migrant Resource Centre (Mirrabooka office)
1/14 Chesterfield Road
MIRRABOOKA WA 6061
Ph: (08) 9345 5755
www.mmrcwa.org.au

Multicultural Services Centre of WA (Inc)
20 View Street
NORTH PERTH WA 6006
Ph: (08) 9328 2699
www.mscwa.com.au (Other WA offices can be located by contacting the North Perth Head Office)

Multicultural Services Centre of WA (Bunbury)
9a Wittenoom Street
BUNBURY WA 6230
Ph: (08) 9791 5271
www.mscwa.com.au

Multicultural Women’s Advocacy Service
Level 1 Carillon Tower
Murray Street
PERTH WA 6000
Ph: 9328 1200
mwas@whs.org.au
(This service assists refugee and migrant women with tenancy issues only when the tenancy issues are part of broader domestic violence issues.)

Section 15 of the Residential Tenancies Act (1987) WA enables a tenant to apply to the Magistrates Court for an order that the owner compensate them for any loss or injury (except personal injury) the tenant may have suffered as a result of the owner breaching the tenancy agreement.

The tenant will need to show a breach of the tenancy agreement was committed by the owner. Remember, the tenant is under an obligation to “mitigate loss” caused by the breach of the owner (see chapter 3.11 The Duty to Mitigate Loss for further information).

Tenants can claim compensation from the owner for costs they incur due to the owner breaching the agreement. The Magistrates Court has jurisdiction to hear an application for compensation up to $10,000. Claims for over $10,000 but less than $75,000 will still be heard in the Magistrates Court but are subject to a different procedure. See chapter 6.01 The Magistrates Court for more information.

Some examples of claims may include:

  • Reimbursement for the cost of goods stolen from the property where the owner failed to provide the property with locks or other devices to ensure the property was reasonably secure (also see chapter 3.04 Locks and Security);
  • If the tenant was illegally evicted by the owner, the costs incurred by the tenant as a result of this, for example removal and storage of furniture costs and staying in alternative accommodation (also see chapter 4.07 Evictions);
  • Cost of damage done by tradespeople allowed entry by the owner (also see chapter 3.05 Maintenance and Repairs);
  • Costs incurred because the owner did not keep the premises in a reasonable state of repair which lead to the tenant suffering a loss, for example damage to personal goods caused by a leaking or collapsed roof (also see chapter 3.05 Maintenance and Repairs);
  • You may be able to claim compensation because of a reduction in the facilities provided with the property caused by a breach by the owner. For example, you entered the tenancy on the understanding that the property was air conditioned. 2 months into the tenancy the air conditioner broke and was not fixed for 4 months and during the whole period of time you continued to pay the full rent (also see chapter 3.01 Rent, Rent Increases and Rent Reductions); and
  • There may also be scope for a tenant to apply for compensation where a right under the agreement was lost. For example, the owner interfered with the tenant’s reasonable peace, comfort or privacy by failing to provide the required notice prior to entry of the property (also see chapter 3.03 Privacy and Quiet Enjoyment).

Applying for a Court Hearing

The application must be made to the Magistrates Court on a Form 12: Application for Court Order. The Form has two main sections.

  • 1. Reason for Application

In this section the tenant should provide details of the breach by the owner, and identification of what loss and/or injury resulted from it. The claim must be quantified to include a monetary value, and supported by receipts and/or quotes.

  • 2. Order Required

In this section the tenant should state that they are seeking an Order for the owner to pay compensation for the breach by the owner. If there are a number of costs, specify each one individually as well as giving the total value of the claim.

You may also apply for reimbursement of the application fee. See chapters 6.03 Preparing for Court and 6.04 Going to Court for more information on applying and appearing in court.

OWNER OR AGENT?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act WA 1987. If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

List of Tenants’ Rights Manual chapters referred to in this info sheet:

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, Tenants Advice Service claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

A sample Form 12 can be viewed on the TAS website: www.taswa.org or downloaded from the Magistrates Court website: www.magistratescourt.wa.gov.au. The Perth Magistrates Court can be contacted on (08) 9425 2222.

What should I do before I leave?

At the end of the tenancy you may be moving a long way away, to another state or even overseas. If you are going to be moving a long distance you should take a few simple steps to try and protect yourself.

  • Do a Property Condition Report before you leave and get a witness to sign it. See chapter 2.10 The Property Condition Report, for more information about this process
  • Try to arrange with the owner/agent for a final inspection to be carried out before you leave the area
  • Try to be there when the final inspection is carried out. If you can’t be there, arrange for a friend to be at the final inspection
  • Ask the owner/agent for a written inspection report
  • Arrange for a friend or relative to be a local contact or representative for you for any issues that may come up after you move away

The most common problem that can happen at the end of the tenancy is a disagreement about your bond, see chapter 5.01 Getting the Bond Money Back for more information.

As with any dispute, first try to negotiate with the owner/agent to come to an agreement and always get the arrangement in writing, even if you have to write to the owner/agent yourself. If you cannot agree, either you or the owner/agent will eventually have to apply to the court to get the issue resolved.

The court will listen to both sides of the story and decide what is fair in the circumstances, see chapter 6.04 Going to Court for more information.
Always try and negotiate an agreement in writing

What happens if I cannot get to Court?

You may have problems if your case is going to be heard in court and you can’t be there. Arrangements may be made for you to participate in the hearing by a telephone or video link.

NOTE: Different courts have different facilities so contact the particular Magistrates Court where your hearing will be held to discuss the facilities that are available and the costs involved.

Once you know the date of your hearing you will need to complete and lodge a Form 23 application to use the phone or video link service and attach an affidavit which outlines the reasons why you are not able to attend the hearing in person.

You should lodge the application and affidavit as soon as you are informed of the hearing date so that the court has time to process the application and make the arrangements if your application is approved. A booking fee and an hourly charge may be payable to the court to use the service.

A sample copy of the Form 23 and affidavit are available to download from the TAS website (www.taswa.org). The forms are available at the Magistrates Court or can be downloaded from the Magistrates Court website (www.magistratescourt.wa.gov.au).

Another option you can take if you are not able to attend the hearing is to make arrangements for someone to be there on your behalf.

If you can’t get to the court hearing because you have moved away, you may need to organise for someone to be there on your behalf

How do I get someone to represent me at court?

The Residential Tenancies Act (1987) (WA) (“Residential Tenancies Act”) says that if you can’t be there yourself you may be represented by another person as long as the owner won’t be unfairly disadvantaged (section 22(2)).

The person you ask to represent you should be someone you trust and who is willing to give his or her time to get ready for the hearing and go to court on the day.

If you want someone to represent you it is very important that you give your written permission (see the sample letter that follows).

This letter can be sent to the court before the day of the hearing, or you can give it to your representative to give to the court staff before the start of the hearing.

Sample Letter
(Your Name)
(Your Current Address)
(Your Telephone Number)
(Date)
Dear Sir / Madam
My name is (your name) and I was the tenant of (the address of the rented premises) from (date tenancy started) until (date you vacated the property).
Since the end of the tenancy I have relocated to (place where you now live) and I am unable to return to (place where the court hearing is) at this time.
I have asked (name of person representing you) to represent me in this matter. I am appointing this person as my agent under section 22 (2) of the Residential Tenancies Act 1987 (WA).
Yours sincerely,
(Your Name) Tenants Advice Service

How do I give my evidence to the Court?

The purpose of the court hearing is to let the person hearing the case, usually a Magistrate, listen to the evidence given by the tenant and the owner/agent and make a decision based on the law.

If you will not be at the hearing you will need to make a “sworn statement” called an affidavit. Blank affidavit forms are available at the Magistrates Court or can be downloaded from the Magistrates Court website (www.magistratescourt.wa.gov.au).

You need to write your evidence down, including an explanation of why you can’t be at the hearing, details of your side of the story and details of any proof that you may have.

You must also swear that what you are saying is the truth. You must sign the statement in front of a Registrar, or Justice of the Peace (or another authorised witness) who will witness your signature. You can find one of these people by looking in the telephone book.

Do the normal “rules of evidence” apply?

The Residential Tenancies Act states that the Court “shall not be bound by the rules of evidence but may inform itself upon any matter relating to the proceedings in such manner as it thinks fit” (section 21).

This means that a magistrate can take into account types of evidence that they wouldn’t in other courts. The “rules of evidence” are a complicated set of legal rules that say what evidence may be given in Court, and how the evidence must be given.

One part of this is that there are rules about giving documents into evidence. For example, if a photograph is to be used, the person who took the photo should be there to prove they took it and when.

In residential tenancy matters, even though the rules of evidence don’t apply as they normally would, it is likely that the evidence will be given more weight if the creator of the document, the photographer in this case, is at the hearing. The normal “rules of evidence” do not necessarily apply

Tested and Untested Evidence

It is always best to have the witness, or yourself, appear in court at the hearing to give the evidence about your dispute. This allows the owner/agent to ask questions about the evidence and allows the magistrate to hear the answers.

This is called “tested” evidence, and is always given more weight, by the magistrate, than “untested” evidence. “Untested” evidence is where the witness is not at the hearing to be questioned about their story.

You can help your representative by preparing questions you would like them to ask the witnesses in cross‐examination. Your representative can use these questions to try and challenge (“test”) the owner/agent’s evidence.

The magistrate may also ask questions to “test” the evidence. A written statement cannot be questioned so the evidence is “untested”. Your affidavit will also be “untested”.

When there are two different stories the court will usually prefer the tested evidence when it is different to untested evidence (e.g. if the owner/agent is at the hearing and gives evidence that can be “tested” then the court will probably prefer the owner/agent’s evidence).

This is the problem for tenants who can’t be at the hearing.

When there are two different stories the court will usually go with the tested evidence when it is different to untested evidence

However, it is always worth trying to defend yourself against unreasonable claims. If you are the one taking the action the only cost involved is the cost of the application and your time.

If the owner/agent applies to Court and you don’t argue their unfair claims, they may not even have to prove their case. If you are not there and you don’t send a representative, an order can just be made to give the owner what he or she is asking for.

It is always worth trying to defend yourself against unreasonable claims

Can my representative make an agreement with the owner/agent?

Your representative may be able to negotiate a solution to the problem for you in a “conciliation conference”. This is where both parties try and negotiate an agreement outside the court room, often immediately before the hearing is about to start.

The court can then write the agreement up as a court order which gives the agreement more legal power. You will need to give your representative written permission to negotiate on your behalf. You should say in writing to your representative, the limits to which they can negotiate.

In other words, tell them what your “bottom line” is.

Owner or Agent?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act (1987). If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

List of Tenants’ Rights Manual chapters referred to in this info sheet:

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, Tenants Advice Service claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

The Department of Housing (DH) provides subsidised rental accommodation for individuals and families on low to moderate incomes. Subsidies are designed to ensure that DH tenants do not pay more than 25 per cent of their income in rent.

Special programs are also available to assist those with special housing needs. This includes priority assistance for people in extreme need of housing and housing programs for people with disabilities, Aboriginals, youth and other low income groups. The Department owns some 39,000 rental properties, making them the largest landlord in Western Australia.

Are DH tenants covered by the Residential Tenancies Act?

Yes! DH tenants are covered by the Residential Tenancies Act (1987) WA. DH also has rental and maintenance policies which it should follow when managing its tenancies. These policies are available on the DH website: www.housing.wa.gov.au DH has been given exemption from three sections of the Residential Tenancies Act. These provisions are set out in the Residential Tenancies Act Regulations (1989) WA, s.5(B). They are:

  • Rent increases: DH does not have to give tenants 60 days notice to increase the rent, as the rent is based on tenants’ income and changes if their income changes. This does not apply to some DH tenants who are paying market rent as a term of the tenancy agreement;
  • Rent receipts: DH is not required to provide rent receipts in accordance with the Act. However, they are required to keep a record of rent received (s.34) and tenants may request a copy of this. Quarterly rental account statements are currently provided to tenants; and
  • Bond lodgement: DH does not have to lodge the bond in accordance with the Residential Tenancies Act.

Am I eligible for a DH property?

To be eligible for subsidised rental accommodation, you must meet the following criteria:

  • Be an Australian citizen or permanent resident;
  • Live in Western Australia and receive your income here;
  • Meet current income limits;
  • Not own property or land;
  • Not have cash assets in excess of $36,400 (singles) or $60,600 (couples), $80,000 (Seniors 60 years plus, singles or couples);
  • Be able to prove your identity; and
  • Be 18 years of age or above.

Previous DH tenants must ensure that all rental, water consumption or tenant liability debts from their most recent tenancy, and 50 per cent of any other DH debts, are repaid before being eligible for further accommodation.

To be eligible for subsidised rental housing or other assistance through DH, the combined gross (before tax) weekly income of applicants, their partners and any co‐applicants must not exceed limits set by DH.

See the DH website for more details: www.housing.wa.gov.au If you believe you meet all eligibility criteria, you can lodge an application for rental accommodation at any of DH’s regional and branch offices.

Do I still have to pay a bond?

All DH tenants must pay a bond equal to four weeks of the full market rent (NOT the subsidised rent) when they enter into a tenancy agreement. You will usually have to pay a $60.00 deposit but this can be negotiated depending on your circumstances. You can arrange to pay the bond to DH in affordable instalments of a minimum of $5.00 per week (as at January 2010). If you request a transfer, your bond will be transferred with you. For more information, refer to DH’s “Bond Accrual Policy” in their Policy Manual: (www.housing.wa.gov.au)

Getting the bond back

According to DH policy, no monies can be deducted from the bond account until the property is vacated. DH may take deductions out of the bond money for any monies owed, for example, outstanding water account or rent arrears. DH does not have to get your agreement before taking deductions out of your bond money. If you do not agree to the deductions, you can appeal through the DH Appeals Mechanism (see section below) or make an application to your local Magistrates Court.

See the following chapters for further information:

Are there any special conditions placed on DH tenants?

Like any landlord, DH may impose special conditions on its tenants. Any special conditions should be written into the tenancy agreement, must comply with DH policy, and not be inconsistent with the Residential Tenancies Act (s. 82).

Can a tenant appeal a DH decision?

Tenants can appeal a decision made by DH about their application, tenancy or liability, subject to a few exceptions. The tenancy agreement, the Residential Tenancies Act and DH Policy Manual should be referred to when dealing with a DH tenancy problem.

Certain decisions cannot be appealed. These include decisions:

  • Of a general nature such as an increase in rent for all DH tenants;
  • You received more than 12 months ago;
  • Where legal action has been taken by DH;
  • That are being or have been considered by the Minister or the State Ombudsman; or
  • Relating to the purchase or sale of DH assets, including properties.

How do I lodge an appeal against an adverse decision?

To lodge an appeal you must complete and return to DH an appeal form:

It is important you provide DH with any extra information such as medical reports, support letters from other Government agencies or people who are helping you, when you lodge your appeal.

This is to make sure that all of your concerns are looked at during the appeal hearing. After DH receives your appeal form and supporting documentation, your appeal is looked at according to a formal process involving two levels of appeal:

Tier 1: An internal review by a Senior Review Officer who has not previously been involved in your case. Your case will be reviewed to see if:

  • All relevant factors have been looked at;
  • If the decision was reasonable given your circumstances;
  • If sufficient evidence was available to reach the decision;
  • Whether the original decision should be overturned; and
  • Whether your case is eligible to be heard by the Regional Appeals Committee (See Tier 2 below).

The Review Officer may contact you to ask for extra information during this process. You will be notified of the outcome of the Tier 1 review within 30 days of your appeal being received by DH. Sometimes your appeal will be forwarded on to the Regional Appeals Committee (Tier 2).

Tier2: An Appeal Hearing by the Regional Appeals Committee.

If an appeal hearing is arranged for you, the Regional Appeal Committee will invite you to attend the hearing so you can discuss your case. DH recommends that you bring someone along to help you ‐ this may be a friend, family member or someone who has been helping you with your situation. The Committee will ask you questions to make sure that all the issues are understood. After hearing your case the Committee will look at all of the facts before reaching a final decision.

What If I still disagree with the Decision?

Depending on the decision which is being appealed, DH tenants may also have a matter heard in the Magistrates Court. However, in the court, DH policies are usually not considered by the Magistrate and you will need to rely solely on the Residential Tenancies Act to present your case.

See the following chapters for more information:

If you have further queries or need more advice on how to lodge an appeal against a DH decision, contact Tenants Advice Service, or a local tenancy worker (see chapter Community Contacts).

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, Tenants Advice Service claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

TAS’ free telephone advice for tenants is also available for DH tenants:

Metropolitan Callers : 9221 0088
Regional Callers (Freecall) : 1800 621 888

What is discrimination?

Broadly speaking, discrimination is when a person is treated less favourably than another person in the same or similar circumstances because of certain personal characteristics.

Not all forms of discrimination are prohibited by law. For example, it is not against the law to discriminate against someone because they have a low income.

Tenants experience discrimination most commonly when they apply for accommodation, although discrimination may also be experienced during a tenancy and when the owner/agent is seeking to terminate your tenancy.

Discrimination is classified as being either direct or indirect (see section on next page). The Equal Opportunity Act 1984 (WA)

Under the Equal Opportunity Act 1984 (WA), it is unlawful to refuse someone accommodation (including tenancy) because of their (or their relative or friend’s):

  • sex
  • age
  • marital status (including de facto partners)
  • pregnancy
  • race (includes colour, ethnicity or national origin or descent)
  • religious and political conviction (or lack of)
  • impairment (includes physical disability, intellectual handicap, psychological disorders)
  • sexual orientation
  • gender history

If you believe your access to accommodation has been discriminated against according to one or more of the “grounds” as listed above, you should contact the Equal Opportunity Commission (EOC) to discuss your situation and get advice on what to do next.

Equal Opportunity Commission
Metro: (08) 9216 3900
TTY: (08)9216 3936
Country Freecall: 1800 198 149
Fax: (08) 9216 3960
Website: www.equalopportunity.wa.gov.au

Free publications about discrimination, as well as complaint forms, can be downloaded from the EOC’s website: www.equalopportunity.wa.gov.au

Commonwealth Anti-Discrimination Laws

In addition to WA laws on discrimination, there are also Commonwealth laws prohibiting discrimination, such as the Sex Discrimination Act (1984), the Race Discrimination Act (1975), the Disability Discrimination Act (1992), the Age Discrimination Act (2004) and the Human Rights and Equal Opportunity Commission Act (1986).

If you feel you have been discriminated against, you may have a choice of which legislation to use in your support of your case. To get more information and advice about this, contact the Australian Human Rights Commission information line on Phone: 1300 656 419.

Direct Discrimination

Direct discrimination is when your access to public services, such as accommodation, is denied due to a direct link with a ground specified under the Equal Opportunity Act (such as age, sex, race, etc)

Some examples of direct discrimination are:

  • Putting extra conditions in an agreement because you have a disability
  • Refusing to rent a property to a person because they are Aboriginal.

Direct discrimination can still be difficult to prove as owner/agents do not have to give you a reason as to why your tenancy application was unsuccessful.

Many owner/agents may also be alert to discrimination laws and know not to say that your application was rejected “because you’re Aboriginal” or “because you’re too young/old”.

Despite this, you may still have suspicions that your application was rejected due to your personal or physical characteristics as listed under the Equal Opportunity Act.

For example:

  • You were told by the real estate agent that you could rent the house that you had applied for only for this decision to be changed at the last minute. Perhaps this change of decision had something to do with you showing your friend (who happens to be Aboriginal) the house while the owner was there making some last minute renovations?
  • You inquire at a real estate agent’s office about vacant rental properties and start to notice that all the vacant properties you are being told about/shown are all run-down and old. You wonder if this has anything to do with your race/ethnicity?

If you suspect accommodation is being withheld from you due to a personal characteristic as defined in the Equal Opportunity Act, try having a friend who is of a different race/age/sexual orientation etc go to the same real estate agency and/or apply for the same property.

If they are shown different properties or told that the place is still available, for example, then you may have evidence that direct discrimination against you did occur.

Indirect Discrimination

Indirect discrimination is when a rule, practice or policy appears to be neutral but may in fact have a worse affect on a particular group of people (grouped according to race, sex, age or other category as covered by the Equal Opportunity Act).

This effect may contribute to the rule, practice or policy not being “reasonable in the circumstances”. Indirect discrimination is difficult to prove without providing sufficient information on the outcomes or effects of the rule/practice/policy on one group of people as compared to another group.

Discrimination Against Tenants with Children

Although there are health and safety laws about the number of bedrooms needed to house a certain number of people including children, no person can normally refuse to offer you a tenancy because of your intention to have a child live with you at the place.

There are however, some exceptions to this. Section 56 of the Residential Tenancies Act 1987 (WA) makes it unlawful for an owner/agent to discriminate against tenants with children, unless the rental premises are the owner’s principal place of residence, or the owner or agent appointed to manage the premises lives in the adjoining premises (next door).

However, there is another section in the Residential Tenancies Act 1987 (WA) which allows the owner/agent to “contract out” of (or be excluded from) section 56.

This “contracting out” is usually written into the tenancy agreement as a “special condition”. For more information, see the section on contracting out in chapter 2.08 The Tenancy Agreement.

Even though it is lawful for the owner/agent to contract out of section 56 of the Act, you can still choose to lodge a complaint to the Department of Commerce (‘DoC’) about the unfair practice of this section of the Act and how it has affected your access to accommodation.

You can get free advice about this matter from the Department’s advice line for consumers, Ph: 1300 304 054. Formal complaint forms can be downloaded from DoC’s website: www.commerce.wa.gov.au

Making a Complaint About Discrimination

Although real estate agents and owners do not have to give you a reason as to why your application for tenancy was rejected, they DO have to answer to the Equal Opportunity Commission (EOC) or to the Australian Human Rights Commission if you or someone on your behalf lodges a complaint.

It is a good idea to seek advice as to what anti-discriminatory legislation (Commonwealth or State) you will use to support your complaint. This will affect which agency you lodge your complaint with (the Commonwealth’s Australian Human Rights Commission or the State’s EOC), as well as the wording of the complaint, the processes involved, and possible outcomes.

If you want to make a formal complaint to the Equal Opportunity Commission, it must be in writing (in any language) and it must be lodged within 12 months of the discriminatory act occurring. There is no fee involved in making a complaint.

Written complaints to the EOC must:

  • Refer to one or more “grounds” (such as race, disability, sex, etc) of discrimination;
  • Refer to an area of discrimination (such as accommodation or the provision of goods and services);
  • Identify the person (state the name of the owner/agent, for example) and/or the organisation/agency;
  • Have relevant documents attached (for example, copies of letters sent to the owner/agent); and
  • Be signed by you and dated

The written complaint should also set out the full details of what happened/is happening, including:

  • When it happened;
  • Where it happened;
  • Any concern you may have about the situation getting worse
  • Contact details of any witnesses
  • How the discrimination affected you and made you feel
  • Whether any other people (family members, for example) were affected by the discrimination you experienced;
  • What you did to try to resolve the problem;

AND most importantly,

  • What you want to happen as a result of your complaint being lodged (for example, would you like the owner/agent to apologise to you?)

See chapter 1.12 Community Contacts for a list of agencies that may be able to help you prepare and/or lodge a complaint. Agencies acting on your behalf can prepare the written complaint but must attach a letter signed by you (the tenant) confirming the complaint.

Complaint forms are also available from the Equal Opportunity Commission.

Lodging a Complaint

Once the complaint is lodged, the Commissioner for Equal Opportunity will decide whether or not to investigate further. It is the Commissioner’s role to conciliate between complainants and respondents and attempt to resolve the matter to the satisfaction of both parties.

This takes place within a conciliation conference/meeting, where all relevant parties meet face-to-face. Tenants are allowed to take someone with them to conciliation, such as a friend or support worker.

However, no-one acting as a lawyer is allowed to attend. You can ask for the conciliation to be adjourned (delayed) in order for you to seek more advice.

Also, at any time during the conciliation, you can ask for a break or to speak privately with the EOC (Equal Opportunity Commission) officer in attendance.

Before conciliation, you should be clear about what you would accept as a reasonable solution/outcome. Possible outcomes of conciliation may be:

  • An apology (personal or public);
  • A change in the real estate agency’s policy or practice;
  • A promise of the owner/agent to stop discriminating;
  • An agreement by the real estate agency to provide anti-discriminatory training to its staff;
  • Compensation paid for any loss you may have suffered as a result of being discriminated against; and/or
  • Damages paid for any injury you may have sustained as a result of being discriminated against (can include feelings of hurt and humiliation).

If the complaint is resolved satisfactorily, all parties involved will be requested to sign the agreement reached through the conciliation process. If you are not happy with the terms of the agreement, you should contact the Commissioner again to discuss your concerns.

You should not sign the agreement unless you are happy with everything it states. Any complaints not settled the Commissioner can refer it to the State Administrative Tribunal (SAT).

If this happens, the EOC may provide legal assistance to the tenant. The SAT is independent of the Commission. The SAT holds formal hearings and can make final orders on matters that are enforceable It is recommended that you get legal advice before pursuing your own course of action through the SAT. See chapter 1.12 Community Contacts for a list of agencies that may be able to assist you.

The Department of Commerce (DoC)

DoC is the state government authority responsible for regulating the activities of real estate and business agents and their sales representatives in WA. Do not confuse DoC with REIWA, which is an industry association for real estate agents in WA.

If you are dissatisfied with the conduct of a licensed real estate agent or property manager, or believe that they may have discriminated against you, you can choose to lodge a complaint also with DoC. The complaint should be in writing and include full details of the matter. Complaint forms can be downloaded from DoC’s website (www.commerce.wa.gov.au).

Prior to lodging a complaint with DoC you should first try to raise your concerns and resolve the matter directly with the agent/manager. You can also call DoC’s phone advice line for further information and assistance, Ph: 1300 30 40 64.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

List of Tenants’ Rights Manual chapters referred to in this info sheet:

Most residential properties in Western Australia have a Western Power meter for recording the amount of electricity that is used by the occupants.

In such circumstances Western Power is responsible for maintaining the meter and other equipment such as electricity poles. Synergy is the company which deals with the bills generated from use of the electricity meter.

Most city and town houses also have an Alinta Gas meter for recording gas usage. Note that for many rural properties, there may be a gas connection to the premises but no gas meter as occupants are expected to purchase their own gas supply in the form of gas cylinders which are then delivered to the premises.

Getting connected

Before moving into your new place, make sure to contact Synergy (Ph: 13 13 53) and Alinta Gas (Ph: 13 13 58) direct in order to get electricity and gas connected to your new premises.

Usually the person whose name is on the tenancy agreement is the one to make these arrangements, although you can list more than one person as the account holder (a good idea if you are sharing a house).

Be aware that there will be an “account application” (connection) fee charged for getting gas and electricity turned on to your house.

Both Synergy and Alinta Gas have customer charters which provide guidelines on their service standards. For example, Synergy’s customer charter states that new connections are to be completed within 2 business days for metro areas and 6 business days for rural areas.

In some situations Alinta Gas are requiring that a copy of the written tenancy agreement be lodged with them prior to the gas being connected.

This is particularly for when the gas has been previously disconnected at the rental property due to non-payment by previous tenants, or when the new tenant has outstanding debts with Alinta Gas.

This requirement can create problems for tenants if they have a verbal rather than written tenancy agreement. In this case, Alinta Gas will accept a copy of the bond lodgement certificate as issued by the Bond Administrator in lieu of the tenancy agreement. Contact the Department of Commerce for assistance with this (Ph: 1300 304 054).

Be sure to get the electricity and gas disconnected and your account cancelled when moving out of your rental premises. Both Alinta Gas (www.alinta.net.au) and Synergy (www.synergy.net.au) have online facilities for opening and/or closing an account.

Paying the bills

Electricity bills are sent to the account holder usually every two months. Gas bills are sent usually every three months. If you are a pensioner and/or hold a Health Care Card, you may be eligible for discounted rates for your electricity supply charge. Check with Synergy (Ph: 13 13 53).

There are a number of payment options for paying your electricity or gas bill. These options are listed at the bottom of your bill statement. Be aware that with BPay (payment arranged directly from your bank account), there may be a time lapse of 2-3 days before the account is actually paid.

If you are having difficulties paying your bill on time, try contacting Synergy or Alinta Gas BEFORE the bill’s due date to arrange a payment option that suits you (for example, paying it off in instalments).

If you fail to pay your bill on time, the gas/electricity may be disconnected and you will have to pay a reconnection fee to have it put on again.

Check your tenancy agreement

Most tenancy agreements/leases will include clauses about the use and supply of electricity and gas. REIWA’s (Real Estate Institute of Western Australia) standard tenancy agreement and some other tenancy agreements often contain a clause stating that “the tenant agrees to comply with all the rules and by-laws governing the use of the premises and the common areas issued by the owner, strata company or strata council”.

These rules may include paying “common area” electricity (particularly if you are renting a flat) and/or gas charges and service fees.

Service management fees

Owners/agents sometimes arrange the electricity and gas accounts on behalf of the tenant/s. This can sometimes result in owners/agents charging tenants an extra “service” or “management” fee for each utility bill they send to tenants.

This is sometimes also referred to as a “utilities service charge”. Such charges may actually be illegal regardless of whether or not they have been written in as a special condition in the lease.

If you are being charged an extra service or management charge or fee on top of your electricity and/or gas actual usage, contact the Department of Commerce (Ph: 1300 304 054).

Shared meters

Some properties may have only one electricity or gas meter which is shared between several dwellings, for example, duplexes or properties with a house and a granny flat.

In such situations, the division of electricity and gas charges may not be shared equally. It is important to clarify with the owner/agent the situation regarding shared meters BEFORE you sign the tenancy agreement.

Common charges

Charges are sometimes made for the supply of electricity to common areas, especially if you are living in a flat or villa situation. Common areas may include a shared laundry/kitchen/bathroom, reticulation for shared gardens, and/or outside lights.

The common area electricity or gas should be on its own sub-meter, and the total for that meter divided evenly between all dwellings.

Sub-meters

Properties that have multiple dwellings such as units, town houses, flats and/or duplexes, often have a master meter/sub-meter system. In this situation, Synergy or Alinta Gas measures the total electricity or gas supplied to the building by reading the master-meter, and then sends a bill for the total electricity/gas consumption to the holder of the master-meter.

Each unit or flat still has its own sub-meter which should be read at the same time as the master-meter reading. The sub-meters are usually read by the owner, agent or caretaker of the complex.

The master-meter bill should then divided up between each dwelling according to each dwelling’s individual consumption.
Tenants need to be aware of the following problems associated with sub-meters.

  • Electricity supplied to the master-meter is charged per unit at a price set by Synergy. However, Synergy has no control over the price charged per unit consumed once the electricity leaves the master-meter. This means that owners/agents may set the price per unit themselves, and may charge more per unit than Synergy. The same applies to Alinta Gas supply charges.
  • If you think you are being overcharged for electricity or gas, ask the person who is billing you to explain how the bill was calculated. If you have a sub-meter, it is a good idea to also ask for a copy of the total (master-meter) bill. If the owner/agent is refusing to provide information regarding the calculation of sub-meter charges, contact Tenants’ Advice Service (metro: 9221 0088; country: 1800 621 888) or the Department of Commerce (1300 304 054).
  • Many owners/agents charge each tenant for the preparation of their bill. This may be called a service or utilities management fee. Such extra charges may be illegal (see previous section about this).

Tenants renting a property with a sub‐meter should check to see how their bill is being calculated.

Residual Current Devices (RCDs)

RCDs are safety devices which monitor the flow of electricity from the main switchboard. They prevent electrocution by stopping the electricity supply if a problem with the electricity current occurs.

From 9 August 2009, an owner must ensure that at least 2 RCDs are installed on the switchboard of the property before a new residential tenancy agreement is signed. For properties with an existing tenancy, owners have until 8 August 2011 to ensure the RCDs are fitted. Penalties apply for failing to comply with this requirement. (Electricity Regulations 1947, ss 14-17).

Smoke Alarms

From 1 October 2009, an owner must ensure that smoke alarms are fitted within 14 days after the start of a new residential tenancy agreement.

For properties with an existing tenancy, owners have until 1 October 2011 to ensure that smoke alarms are fitted. Any smoke alarm fitted has to be replaced after 10 years. Penalties apply for failing to comply with these requirements. (Building Regulations 1989, ss38I-38Q).

The number of smoke alarms that must be installed in the property depends upon the design of the property, for example the number of bedrooms and where they are located. Further information is available from Fire and Emergency Services Authority of Western Australia (FESA), phone: 9323 9816, website: www.fesa.wa.gov.au.

Generally the smoke alarms are required to be connected to the mains power supply, however in certain circumstances a battery powered smoke alarm can be fitted. The local government for the area where the property is located is responsible for approving the installation of battery powered smoke alarms.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, Tenants Advice Service claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

The Residential Tenancies Act (1987) provides for the tenancy agreement (periodic or fixed term) to be terminated and/or the rent reduced if the agreement becomes ‘frustrated’ for reasons other than a breach of the agreement (section 69). The agreement may be terminated and/or the rent reduced if the agreement becomes frustrated for reasons other than a breach of the agreement.

When can an agreement become ‘frustrated’?

The agreement may become frustrated because the premises or part of the premises:

  • destroyed, or
  • are rendered uninhabitable, or
  • cease to be lawfully useable as a residence, or
  • are appropriated or acquired by any authority by compulsory process.

This does not apply if any of these situations arises as a result of the tenant breaching the agreement.

Examples of events which frustrate the agreement may include:

  • if the house is destroyed by fire, or
  • the roof is blown off during a storm, or
  • the property becomes zoned for non-residential use, or
  • the land is taken over to build a highway.

You may need evidence to prove the premises are uninhabitable (for example, a report by a structural engineer or local council environmental health officer). Get more advice if you think this situation applies to you (see chapter 1.12 Community Contacts).

Reducing the rent when the agreement is ‘frustrated’

When the agreement becomes frustrated otherwise than as a result of a breach of agreement, the rent shall abate (decrease) accordingly. You and the owner should negotiate a rent reduction or waiver. However, if no agreement can be reached, the matter may be referred to Court for a decision.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS disclaims liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

Terminating the agreement when it becomes frustrated

Either party can give the other party notice to end the agreement.

  • The tenant must give the owner not less than 2 days notice in writing.

The written notice can be either a letter or a Form 22: Notice by tenant of Termination. The Form 22 can also be referred to as an example of what to include in your written letter.

Keep a copy of the letter or the Form 22 that you give to the owner/agent in case there is any dispute. You can get a Form 22 from the State Law Publisher (10 William St, Perth. Ph: 9321 7688). A sample Form 22 is attached to the end of this chapter.

  • The owner must give the tenant not less than 7 days notice by issuing them with a Form 1C: Notice of Termination of Agreement.

The owner must specify the grounds/reasons for termination on the Form 1C. A sample Form 1C is attached to the end of this chapter.

If a tenant has not moved after receiving a Notice of Termination (Form 1C), the owner must apply to the Court to have the tenant removed. The owner may never physically force or lock a tenant out of the premises after issuing a Notice of Termination (Form 1C).

The owner may face a $4000 penalty for forcing the tenant out of the premises without a Court order (s. 80). You should leave a forwarding address when you vacate your tenancy, otherwise you could be fined (s.53: Penalty $1000).

The forwarding address that you give to the owner/agent need not be the address of your new residence. It may be a PO Box or care of (c/-) someone you can rely to pass mail onto you.

List of Tenants’ Rights Manual chapters referred to in this info sheet:

SAMPLE FORMS ATTACHED TO THE END OF THIS CHAPTER:

“IMPORTANT INFORMATION FOR TENANTS”:

Even though a Notice of Termination will tell you that you have to move out by a certain date, the Notice is NOT an Eviction Order.

If you receive a Notice of Termination, you can stay until the owner applies to court and a decision is made about your situation. You should go to court and tell your side of the story to the court and explain why you think your tenancy should not be terminated. See chapters 6.2 Preparing for Court and 6.3 Going to Court for more information. Also see chapter 4.7 Evictions for more about eviction orders.

The Notice of Termination is not an Eviction Order.

It is illegal for any owner to evict a tenant without a court order – Penalty $4000.

It may be possible to end your tenancy agreement if the owner is in breach. How your tenancy can be ended is set out in the Residential Tenancies Act (1987) and differs depending on whether you have a periodic or fixed term tenancy.

BEWARE! You could be liable for costs if you do not end your tenancy agreement according to tenancy laws.

What can I do if I have a periodic tenancy?

You can end a periodic tenancy at any time by giving 21 days written notice to the owner that the agreement is being terminated (s.68). You do not have to say why you are leaving.

Your notice must include:

  • the address of the rented premises,
  • the day on which you will hand back possession of the premises
  • your signature.

The notice does not have to be on a special form, but it must be in writing. See chapter Ending a Periodic Tenancy for more information.

What can I do if I have a fixed term tenancy?

A tenancy agreement can be terminated/ended at any time if both the owner and tenant agree but it must be in writing (s. 60(1)(g)). This applies to both periodic and fixed term tenancy agreements.

Unless the owner agrees that the tenancy may be ended early, you must apply to court for your fixed term tenancy to be terminated. This applies even if the owner has seriously breached the tenancy agreement and refuses to fix the problem.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS disclaims liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

OWNER OR AGENT?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act (1987). If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices. Tenants Advice Service – Tenants’ Rights Manual January 2004

A fixed term tenancy agreement may be terminated by a Court Order.

For the court to grant an order to end the tenancy, the breach of the agreement by the owner must be considered serious (s. 75). It is up to the court to decide if the agreement will be terminated. If the court orders that your agreement be terminated, you will not be liable for any costs associated with re-letting the premises beyond the date the court sets to terminate the agreement.

To prove a breach by the owner it is helpful to provide evidence that the owner has been requested to perform their duties and that they have failed to do so.

You should provide copies of letters or documents you sent to the owner as evidence they were aware of the problem but failed to solve it, along with any evidence of the problem itself. See chapter Ending a Fixed Term Tenancy for more information.

BEWARE! You could be liable for costs if you break your fixed term agreement without a Court Order or agreement from the owner.

How do I make an application to Court?

An application to have the tenancy agreement terminated due to a serious breach by the owner must be lodged on a Form 12: General Court Application at the Local Court nearest to the rented premises. A sample Form 12 is attached to the end of this chapter. The Form 12 application has two main sections:

  • 1) Reason for Application

List here every breach by the owner so that the Court knows what the problem is. State briefly how the problem has affected the tenancy and how you have tried to solve it. If you know what section of the Act has been breached, include the section number.

This is helpful to the Court (but not necessary if you do not know). If you need more room you can attach a separate piece of paper. You must provide four copies of anything you attach to your application.

  • 2) Order Required

State here that you are seeking an order for termination of the tenancy agreement due to breach by the owner. You can ask for it to end on a particular date to give you time to organise your move. You can also ask for compensation if you have suffered or will suffer any loss because of the owner’s breach, for example, relocation costs. Also see chapter Compensation for Loss Incurred Due to a Breach by the Owner.

The Court Hearing

When you go to Court you will have to give evidence that the breach of agreement has occurred and that you have tried to sort the problem out with the owner.

You must give a clear statement of what the owner has done to breach the tenancy agreement, and describe the effect the breach has had on you and your tenancy.

Make sure you tell the Court the date that you wish the agreement to end so the date can be written on the Court Order. If your application is successful the court will order that the agreement be terminated.

This means you will not have to pay ‘break of lease’ costs. See Chapter Ending a Fixed Term Tenancy for more information on these costs.

See chapters Preparing for Court and Going to Court for more information on applying to and representing your case in Court. You should leave a forwarding address when you vacate your tenancy, otherwise you could be fined (s.53: Penalty $1000).

List of Tenants’ Rights Manual chapters referred to in this info sheet:

SAMPLE FORMS ATTACHED TO THE END OF THIS CHAPTER:

What is a Breach of the Agreement?

Being in breach of your agreement means you have broken one or more of the rules of your tenancy agreement (lease) with the owner/agent. A tenancy agreement may be verbal or written.

If you breach a condition (rule) of your tenancy, the owner/agent may take action to make you fix the problem and/or for your tenancy to be terminated.

The action taken depends on the type of breach. It may involve the issuing of a breach notice, a termination notice and/or an application to court. You may have to pay costs associated with breaking the agreement if your tenancy is terminated because you breach the agreement.

If you breach the agreement, the owner must take certain steps before they can end your tenancy.

Breach Notice

The Notice of Breach of Agreement is the written notice the owner/agent may give you if you have broken any of the terms or conditions of your tenancy agreement.

This breach notice can be on a standard form such as a Form 20: Notice of Breach of Agreement (by tenant) or a Form 21: Notice for Non-Payment of Rent or it can be just a letter, but it must be in writing if the owner wants to take any further legal action against you.

A sample Form 20 and Form 21 have been attached to the end of this chapter. The Breach Notice should tell you what the breach is and give you time to fix it. The time given must not be less than 14 days (s 62.). If the breach is not fixed by you in the time stated, the owner/agent may give you a Notice of Termination.

A breach notice must give you at least 14 days to fix the problem.

If the breach is for rent arrears, the owner/agent may give you a Notice of Termination straight away, without first giving you a Breach Notice. This Notice of Termination must be on a Form 1B: Notice of Termination for Non-Payment of Rent (No Notice) (s 62.). See chapters 3.2 Rent Arrears and 3.8 When the Tenant is in Breach of the Agreement for more information about breach and termination notices.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS disclaims liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

Termination Notice

The owner/agent may give you a Notice of Termination if you do not fix a breach within the time given in the breach notice. There are three different Notice of Termination forms, depending in the type of breach.

The Notice of Termination is not legal if it is not on the correct form. The Notice of Termination must be on a Form 1A: Notice of Termination for Non-Payment of Rent (14 days) or a Form 1B: Notice of Termination for Non-Payment of Rent (No Notice) if the breach was for rent arrears.

For breaches other than rent arrears, the Notice of Termination must be on a Form 1C: Notice of Termination (s 62.) Fixing the breach after the time given in the Breach Notice does not stop the owner from issuing a Notice of Termination.

Court Application

The owner/agent may apply to court for your tenancy to be ended and to be given back possession of the premises if you do not move out in response to the Notice of Termination (s.71).

The application to court must be made within 30 days of the date you were told to vacate on the Notice of Termination. See chapter Evictions for more information.

The owner/agent can’t force you out of the premises if you don’t move out after getting a Notice of Termination. The owner/agent must get an order from the court to evict you. The owner/agent may apply straight to court for your tenancy to be ended if the breach is about serious damage or injury (s. 73).

The owner/agent may take this action if they believe you are causing or allowing (or likely to cause or allow) serious damage to the rented premises or injury to the owner, agent, neighbours or their guests. See chapter Evictions for more information.

If I move out is that the end of it?

Not necessarily. A Notice of Termination doesn’t mean you are released from the tenancy agreement, it just means you are being told to move out by the owner/agent.

A court order doesn’t release you from all obligations under the tenancy agreement either. Even after you move out, you may still be liable for costs associated with breaking the tenancy agreement, for example (see over page):

Under a periodic tenancy agreement, the owner/agent may be able to claim compensation if they suffer any loss because of your breach of agreement.

For example, rent equal to three weeks notice or until new tenants move in (whichever is less). See chapter Ending a Periodic Tenancy for more information.

Under a fixed term tenancy agreement, you may have to pay costs incurred as a result of ending the tenancy. This may include:

  • Rent payments until the agreement expires or new tenants move in;
  • Advertising costs if the owner/agent agrees to try and find a new tenant;
  • You may also be responsible for the property’s condition, inside and outside, until it is re-let or the agreement expires (for example, lawn mowing and watering).

See chapter Ending a Fixed Term Tenancy for more information. Beware of other charges that the owner/agent may try to charge you, such as a “break of lease” fee, a “final inspection” fee or a “re-inspection” fee.

Such charges may be unlawful under section 27 of the Residential Tenancies Act (1987) which prohibits any charges other than rent, bond, stamp duty* and a letting fee (if dealing with a real estate agent).

*NOTE: Recent changes to the Stamp Duty Act have resulted in stamp duty no longer being payable on leases executed on or after January 1, 2004. As a general rule, there is no legal basis for the charging of such fees.

However, if the agent/owner can show that they have incurred additional expenses or costs as a direct result of you breaching the tenancy agreement, then they may be entitled to claim such costs back from you.

For example, the owner/agent may try to charge a re-inspection fee because they had to come to make sure you had fixed up whatever the alleged breach was. If this is the case, you may still be able to dispute a re-inspection charge if you do not agree that you were in breach in the first place, or that the breach was minor and did not justify the agent coming back to re-inspect.

If you feel a reinspection charge is unfair you should write to the owner/agent and explain why and ask them to reconsider the charge. See chapter 3.13 Writing a Letter to the Owner/Agent. You should also seek advice on your individual situation (see chapter Community Contacts). Other charges such as “break of lease” fee, “final inspection” fee or “reinspection” fee may be unlawful under Section 27 of the Residential

What if I want to stay?

You can stay until the owner/agent applies to court and a decision is made about your situation. You should go to court to tell your side of the story and explain why you think your tenancy should not be terminated.

You can dispute the termination in court if (for example):

  • you have fixed the problem;
  • you have not breached the agreement;
  • the breach doesn’t justify the termination (s. 71 (2)(b));
  • you can demonstrate the owner/agent was partly motivated to end the agreement because you had previously complained to an authority or taken steps to enforce your tenancy rights (s. 71 (3)(b)). This is referred to as “retaliation”.

The court will advise you of the hearing date and time. You should attend the hearing to tell the court your side of the story. The court can take all the circumstances into account (s.71(2)(b)). See chapters Preparing for Court and Going to Court for more information. Also see chapter Community Contacts for a list of organisations that may be able to assist you.

Can the owner/agent evict me without a court order?

NO! It is illegal for the owner/agent to evict a tenant without a court order – Penalty $4000. The Notice of Termination is not an Eviction Order.

A Notice of Termination will tell you that you have to move out, but this does not necessarily end the tenancy agreement. List of Tenants’ Rights Manual chapters referred to in this info sheet:

SAMPLE FORMS ATTACHED TO THE END OF THIS CHAPTER:

“IMPORTANT INFORMATION FOR TENANTS”:

Even though a Notice of Termination will tell you that you have to move out by a certain date, the Notice is NOT an Eviction Order.

If you receive a Notice of Termination, you can stay until the owner applies to court and a decision is made about your situation.

You should go to court and tell your side of the story to the court and explain why you think your tenancy should not be terminated. See chapters Preparing for Court and Going to Court for more information.

Also see chapter Evictions for more about eviction orders. The Notice of Termination is not an Eviction Order. It is illegal for any owner to evict a tenant without a court order – Penalty $4000.

What is an eviction?

An eviction is where the owner legally recovers the rented premises from the tenant. The owner must get an order from the court to end the agreement and to take back possession of the premises.

The owner is never allowed to evict you without an order from the court (Residential Tenancies Act 1987 (WA), section 80).

What is an illegal eviction?

Forcing you out of the rented premises without a court order is illegal. It is a serious breach of the Residential Tenancies Act 1987 (WA) to illegally evict a tenant. The owner, or any other person, who forces you out of the premises without a court order may be liable for a penalty ($4000 (s.80)). It is illegal for any owner to evict a tenant without a court order – Penalty $4000.

Is the Notice of Termination an Eviction Order?

NO. A Notice of Termination is one of the first steps an owner/agent can take if they want to end the tenancy. The Notice of Termination does not end the tenancy. The owner/agent must apply to court for an eviction order if the tenant doesn’t move out after being given a Notice of Termination.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

When can an eviction happen?

The Residential Tenancies Act 1987 (WA) requires the owner/agent to follow certain steps before the court can give them an eviction order. This often involves giving the tenant a Notice of Termination and always involves applying to court for an order for termination and possession (eviction order).

The owner/agent can apply to the court for an order for termination and possession if:

  • You fail to move out after the owner/agent gives you a Notice of Termination.

If this happens, the owner/agent must apply to court within 30 days of the date you were told to move out on the termination notice. If they don’t apply within this time the owner/agent must start their action to terminate your tenancy again (give you a breach notice and/or another termination notice).

  • You don’t move out at the end of your fixed term tenancy.

The owner/agent must apply to court within 30 days of the fixed term tenancy ending. If the owner/agent doesn’t apply within this time, you may argue you have a continuing tenancy being a periodic tenancy and that the owner/agent must follow other steps in the Residential Tenancies Act 1987 (WA) before they can end your tenancy.

  • You have (or are likely to) intentionally or recklessly caused or allowed serious damage to the rented premises or injury to the owner, agent, neighbours and/or their guests.

Where the court gives the owner an order under this section, the order for possession takes effect immediately (s 73).

  • The owner would suffer undue hardship if s/he were required to terminate the tenancy under any other section of the Residential Tenancies Act 1987 (WA).

If the court gives the owner an order to end the tenancy, the court can decide when the tenancy is to end and may order compensation to the tenant for any loss caused by the tenancy being ended (s 74 (2)(b)).

If the court gives the owner an order to end the tenancy, you can ask the court to consider your ‘hardship’ and to suspend the order for up to 30 days (s71 & s72).

How will I know if the Owner has applied to court?

The court should send you a copy of the application (Form 12) that the owner/agent has filed. This application will give you details of the owner’s application and the time, date and place of the hearing. The notice can either be sent to your last known address or place of employment; given to you or to the person who normally pays the rent; or given to a person who seems to be living at the rented premises and who seems to be over the age of 16 (s 85).

Should I go to court?

YES! It is important for you to go to court and explain why you shouldn’t be evicted. The court won’t know if giving the eviction order is unfair if you don’t go to the hearing and explain why. See chapters Preparing for Court and Going to Court for more information.

What if the owner is trying to evict me in retaliation?

You can tell the court that the owner/agent should not be given an order to evict you if you believe the owner/agent is trying to evict you out of revenge (retaliation) for action/s you have taken to secure or enforce your rights as a tenant.

This might be because you complained to a public authority or asked the owner/agent to carry out their responsibilities (such as to do repairs).

You will need to show the court what steps you took to secure or enforce your rights. The court will then require the owner/agent to show that their action to evict you is not motivated by retaliation (s. 71(3)(b) & (4)).

The court may refuse to give the owner/agent an eviction order unless the owner/agent proves they were not wholly or partially motivated to end your tenancy because you enforced your rights.

What if the owner is trying to evict me for a minor breach, or a breach I have remedied (fixed)?

You should explain to the court why you think the breach is minor and why it does not justify your tenancy being ended. The court can consider all the circumstances of your case in deciding whether the breach is serious enough to justify your tenancy being ended (s.71 (3)(b).).

You should show the court proof that you have fixed the breach that the owner/agent has applied to court about. Be aware the court can take into account any previous breaches of your agreement when considering whether to give the owner an eviction order (s.15 (4)). See also chapter When the Tenant is in Breach of the Agreement.

What happens if the court gives the owner an eviction order?

If the court gives the owner an eviction order and you don’t move out by the date on the order, you can be physically removed. The owner will need a Property Seizure and Delivery Order for a Bailiff (court official) to remove you from the premises. The owner can claim the cost of this order from you. The order will be dated one day after the court order and is effective for twelve months (Civil Judgments Enforcement Act 2005 (WA)).

What if I wasn’t in court when the order was made?

You can apply for the eviction order to be “varied” or “set aside” if you were not in court when a decision was made (s17(1)). You will need to fill out a Form 16: Application to Vary or Set Aside Order (see sample form at the end of this info sheet).

The cost for lodging this application is $26.70 (as at January 2008). Upon lodgement you will be given a new Hearing date. The Form 16 application must be lodged within 14 days of the order having been made (s.17(2)). However, if you have good reasons for not being able to lodge it within 14 days, the court may be able to give you an extension of time (s. 20(f)).

If the order was for termination of your agreement, you will need to act quickly before the owner gets a Property Seizure and Delivery Order and you should seek advice about applying for a “suspension” of that Order. If the owner already has a Property Seizure and Delivery Order, and the Bailiff enforces it you will have to leave the premises and the Application to Vary or Set Aside Order may not be successful. (see chapter Community Contacts).

At the hearing to vary or set aside the order, you will have to have a valid reason as to why you were unable to attend the first hearing. You will also need to convince the court that there are good reasons why your case should be reheard.

This means, you will need to show the court that you have a good defence to the owners application to eviction (eg: that your rent was paid up to date). If you are successful, some courts will set aside the order or make a date to come back for the application to be heard. Others will immediately hear the case, so you will need to be well prepared (see chapter Preparing for Court).

Can I be evicted if I am a Department of Housing (DH) tenant?

DH can evict tenants and, like any other owner, must follow the Residential Tenancies Act 1987 (WA). DH can never evict you without a court order.

If DH is trying to evict you, try negotiating with them directly. Make sure to ask DH for information on how you can have the decision to evict you reviewed or appealed.

Also get help from your local community agency if DH is trying to evict you. See chapter Community Contacts for a list of advocates and community workers that may be able to assist you with tenancy matters.

DH have their own policies which may give public housing tenants additional options to avoid being evicted. DH policies can be obtained from their website (www.housing.wa.gov.au – click on Rental Housing, then Housing Policies).

Contact Tenants Advice Service for more information.

List of Tenants’ Rights Manual chapters referred to in this info sheet:

SAMPLE FORM ATTACHED –

What is “fair wear and tear”?

Fair wear and tear generally means damage that happens through:

  • the ordinary day-to-day use of a place by a tenant (e.g. carpet gets worn from people walking on it); and
  • the ordinary operation of natural forces (e.g. sunlight, rain).

Fair wear and tear can be an issue:

  • at the end of the tenancy when you are trying to get your bond money back. (See chapter Getting the Bond Money Back for more information.)
  • in disagreements about who is responsible for repairs to the rented premises. (See chapter Maintenance and Repairs for more information.)

What does the Residential Tenancies Act say about fair wear and tear?

There is no definition of fair wear and tear in the Residential Tenancies Act (1987). However, the Act (section 38) does describe the tenant’s responsibilities
for cleanliness and certain repairs.

What are my responsibilities?

According to section 38 of the Residential Tenancies Act, you have the responsibility to:

  • keep the place reasonably clean (s38(1)(a));
  • tell the owner within three days if there is any damage (s38(1)(b));
  • make sure you don’t cause or allow damage to be caused, either on purpose or by being careless (s38(1)(c)).

If you have done these three things you may be able to argue that the owner is responsible for fixing any damage (as set out in section 42 of the Residential
Tenancies Act). See chapter Maintenance and Repairs for more information.

Remember to always report any damage whether it is your fault or not. It is always best to do this in writing and keep a copy of the letter.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS disclaims liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

Can I ever be held responsible for fair wear and tear?

Generally, you are not responsible for fair wear and tear. However you must check your tenancy agreement. Be aware that an owner/agent can, in a written
agreement, get out of some of their responsibilities under the Residential Tenancies Act.

This is called “contracting out”. See chapter The Tenancy Agreement for more information on contracting out. Generally, you are not responsible for fair wear and tear.

Fair wear and tear can be an uncertain issue if you and the owner/agent cannot agree on the cause of the damage. Sometimes it can be difficult proving which damage was from fair wear and tear and which was not.

Any argument over what is fair wear and tear should be decided on the individual circumstances of your case.

However, you can argue that you are only responsible if you intentionally (on purpose) or negligently (not taking enough care) caused or permitted damage to occur.

Here are some examples of what could be considered fair wear and tear and what probably wouldn’t be: Fair Wear and Tear (Owner/agent responsible)

What if the owner is unfairly charging me for fair wear and tear?

If the owner/agent is trying to charge you for damage which you think is fair wear and tear, you should question the charge and ask them to explain why they are trying to charge you for these things.

It may be useful to refer back to your property condition report (PCR). This report describes the condition of your rented home when you first moved in. In the case of a dispute over whether you or the owner/agent has looked after the place properly, a property condition report will be proof of the condition the premises are or were in.

See chapter The Property Condition Report for more information.

It is always good to explain in writing why you disagree with what the owner/agent is trying to claim.

See chapter Writing a Letter to the Owner/Agent for more help with this. If a disagreement over fair wear and tear can’t be resolved by negotiation, either you or the owner/agent can take the case to court and ask for a decision on what is fair in the circumstances.

See chapter Going to Court for more information. If you don’t agree with the owner/agent about fair wear and tear, the Court can make a decision.

List of Tenants’ Rights Manual chapters referred to in this info sheet:

If you are a low income tenant you may be eligible for financial assistance to help meet the cost of renting. Below is an outline of the assistance which may be available to tenants

Bond Assistance Loan

The Department of Housing (DoH) offers bond assistance as an interest-free loan to help people obtain accommodation in the private rental market. If you plan to share accommodation, you can still receive a proportion of the bond loan.

Applicants must meet public housing income limits; have only limited cash assets, be 16 years or over and should not own any property or land.

The bond loan cannot be used for other expenses, and the rent cannot be more than 60 per cent of the household gross income. The bond must not have already been paid.

The loan is repaid in regular payments of at least $15 per fortnight. You must repay DoH the entire loan even if the owner/agent for various reasons does not return the full bond to you at the end of the tenancy.

Applications for the Bond Assistance Loan can be made at any regional DoH office (see the DoH website at www.housing.wa.gov.au). You can call into any Department of Housing office (no appointment is necessary) and your application will be processed immediately.

You will need to supply documents to show proof of your income and identity. If approved for bond assistance, DoH will confirm this immediately with your landlord and arrange for prompt payment.

The owner/agent is then required to lodge the bond in accordance with the Residential Tenancies Act 1987 (WA) – See chapter The Security Bond for more information on bond lodgement requirements.

If bond assistance is declined, you can ask for the decision to be reviewed.

If you haven’t repaid your bond in full and you are ending your tenancy (moving out), the outstanding debt on your bond loan should be paid by the owner/agent direct to DoH.

However, it is not uncommon for tenants who have had bond assistance loans in the past to discover that the previous owner/agent did not return the bond to DoH as agreed. In this case, you can either write to the owner/agent asking for the money to be returned or apply to Court for the return of the bond (see Applying to the Magistrates Court for a Bond Disposal Order).

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

Private rental “ingoing fees”

The Department of Housing also provides assistance in certain circumstances with private rental “ingoing fees” such as rent in advance. Check at your nearest DoH office to see if you are eligible Centrelink Rent Assistance.

If you receive a Centrelink pension, benefit or allowance you may be eligible for rent assistance paid by Centrelink. Assistance is available for people paying:

  • Rent on a private rental property;
  • Rent in some community housing accommodation;
  • Lodging or board;
  • Nursing home fees;
  • Maintenance or service fees for a unit in a retirement village if the “early contribution” paid to get the unit was below a certain amount;
  • Site fees for a caravan, houseboat, mobile home or tent; and/or
  • Mooring fees for a boat.

Rates and methods of payment vary according to the amount of rent paid and the type of payment you receive. Rent assistance is currently not available to DoH tenants.

Ring Centrelink on:

  • 13 28 50 (if you receive an unemployment allowance)
  • 13 61 50 (if you receive family assistance)
  • 13 24 90 (if you are under 21 years of age)

For more information and to see whether you are eligible for rent assistance.

Financial Counselling Services

Having enough money to pay for the rent and everything else can be hard to do, especially if you are trying to manage on a small income. Financial counsellors provide information and support to people who are experiencing money difficulties. If you are having problems paying your rent, then financial counsellors may be able to help.

They can give free publications, advice and help with:

  • The rules and laws relating to payment of debts and bills;
  • Negotiating with creditors;
  • Accessing any government assistance that you may be eligible for;
  • Advising on some consumer problems;
  • Household budgeting;
  • Bankruptcy information;
  • A referral to other organisations that may help.

Contact the Financial Counsellors Resource Project on (08) 9221 9411 to find out where your closest financial counsellor is located.

WA No Interest Loans Network (WA NILS) WA NILS provides interest free loans to people on low incomes who need to purchase essential household appliances/whitegoods such as fridges, washing machines and beds. Loan amounts range from a minimum of $200 to a maximum of $1500. Loans are not provided for general expenses such as food or clothing or paying off other debts and unpaid bills.

Contact the WA NILS Network on 1300 365 301 or visit their website at www.wanils.asn.au to find out more information on how to apply for an interest free loan.

When should I get my bond money back?

All of the bond money should be returned to you at the end of the tenancy unless you owe the owner money for rent, damage, water or other costs you are responsible for. If you owe money you should be paid the bond less anything you owe. You will have to pay the owner extra if you owe more than the bond money. Be aware the owner/agent may charge rent until you vacate the property. This includes returning the keys.

What should I do before handing back the keys?

  • Make sure the property is in the same condition as when you moved in (except for normal wear and tear – see chapter Fair Wear and Tear for more
    information).

Have a copy of the ingoing Property Condition Report available to compare with the condition of the premises at the end of the tenancy. If you don’t have a copy, ask the owner/agent for one. Explain you want it so you can make sure you do everything you need to do.

  • Check your written tenancy agreement for any special conditions; such as having the carpets professionally cleaned. Ask the carpet cleaner to give you a receipt and a written report on the carpet’s condition after it has been cleaned.
  • Go through the premises with an independent person (someone who has not lived there) to be a witness to the condition of the premises at the end of the tenancy. It is better if this person saw the premises when you moved in.

Put the details in a property condition report. If possible, take photographs (showing the date) or video the condition of the property. This can be used as evidence if there is a dispute.

  • Arrange a date for the final inspection with the owner/agent. Have a witness present at the final inspection. Ask the owner, in front of your witness, what they want to deduct from the bond and to put it in writing. Let the owner know if you disagree and why.
  • Make sure you keep your documents and copies of letters between you and the owner/agent in a safe place where you can find them easily after you move.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS disclaims liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

What is the bond recovery process?

One of two things must happen for the bond to be withdrawn from the account at the end of the tenancy:

  • 1) the original signatories to the bond lodgement account must sign a Joint Application for Disposal of Security Bond Form (Form 4); OR
  • 2) an order for the release of the bond money must be made by the court.

The bond cannot be taken out of the account by you or the owner unless you both agree OR the court makes an order.

What if you are a Homeswest tenant?

Homeswest does not have to lodge your bond in the same way as a private owner/agent does. See chapter The Security Bond for more information.

The bond recovery process also differs from the one described above for private rental tenants. One difference is that Homeswest can take money from your bond without telling you first. This is called “Vacated Tenant Liability”.

Homeswest tenants have the right to appeal against tenant liability charges. If the appeal is unsuccessful, you can apply to Court for a decision on what is fair. For further information, refer to TAS’ Tenants Rights Manual for Homeswest Tenants – Tenant Liability (download from www.taswa.org).

Signing the Bond Disposal Form (Form 4)

You should not sign the Form 4: Joint Application for Disposal of Security Bond if there is any dispute over who should get the money, or how much each party gets. Instead, either you or the owner/agent can apply for a bond dispute hearing in the local court.

See Applying to the Local Court for a Bond Disposal Order for more information.

You and the owner/agent should negotiate bond deductions and agree on how much money each person will get BEFORE the Joint Application for Disposal of Security Bond Form is signed.

Never sign this form until the amounts are filled in. If you sign the form while the “please pay” sections are still blank, you will lose negotiating power on the return of the bond. If you sign a blank form, the owner/agent can deduct whatever amount they decide on. A sample Form 4 has been attached to the end of this chapter.

Never sign a form to take your bond money out of the account until AFTER your tenancy has ended.
Make sure the Application for Refund of Security Bond section (as pictured below) is filled in correctly:

 

Things to remember:

  • NEVER sign a blank or only partially completed Joint Application for Disposal of Security Bond Form. DO NOT sign the Joint Application for Disposal of Security Bond Form unless you agree with how much bond you or the owner are to be paid.
  • DO NOT sign anything under pressure.
  • ALWAYS get a copy of what you sign.
  • If you don’t understand something, check it out before you sign.
  • You can get your bond money back without signing the Joint Application for Disposal of Security Bond Form by applying to the court. See Applying to the Local Court for a Bond Disposal Order for more information.

Never sign a blank form to release your bond.

What if I refuse to sign the Bond Disposal Form?

If you can’t reach an agreement with the owner/agent and you refuse to sign the Bond Disposal Form, either you or the owner may make an application to the Local Court for a decision on what is fair. See Applying to the Local Court for a Bond Disposal Order.

When can the bond money be released?

The bond money can be released when all parties agree on how much bond should be repaid and the Joint Application for Disposal of Security Bond Form
is completed and signed.

The completed form is then presented (by the owner/agent or by the tenant) to the place where the bond is held. Under the Residential Tenancies Act (1987), the security bond must be lodged in a joint account (in the name of the tenant/s and the owner/agent) at the beginning of the tenancy (s. 29(4)(b)) with:

  • an authorised financial institution (for example, bank or building society);
  • the Bond Administrator; or
  • a Tenancy Bond Trust Account.

The bond withdrawal is like any other bank withdrawal – you hand the release form over and the teller hands back the cash, a cheque or makes a direct debit transaction into your account for the amount written next to “Please pay tenant” on the Joint Application for Disposal of Security Bond Form.

Under the Residential Tenancies Act (1987), real estate agents must return your bond within seven days of completing and signing the Joint Application for Disposal of Security Bond (Form 4). There is no time limit for owners to return the bond.

What if there are delays in getting the bond back?

Sometimes owners/agents may give you excuses to delay the payment of your bond such as “it is being held up because we are waiting for the bank to clear its release”, or “it is still in the computer”. If this happens, make it clear that you believe the hold-up is due to the owner/agent, and that you would like the money returned immediately.

If you’re having difficulties in getting the bond money back, also try finding out where the bond is lodged. Information about where the bond money is being held will be on your copy of the Lodgement of Security Bond Money (combined Form 1 & 8) which you and the owner/agent should have signed at the beginning of the tenancy.

The Department of Consumer and Employment Protection may be able to help you get the account details from the owner/agent if you don’t know where your bond money is being held (Ph:1300 304 054).

Sending a Letter of Demand

If you and the owner/agent can’t agree, you can attempt to negotiate repayment of your bond money by sending a “letter of demand”. This needs to be done BEFORE signing the Joint Application for Disposal of Security Bond (Form 4).

If you are still unsuccessful in getting back your bond money, you can take action in the Small Disputes Division of the Local Court. The letter of demand is optional. You can apply directly to the Small Disputes Division of the Local Court.

However, it is a good idea to write first as you may be able to use your letter and the owner/agent’s response as court evidence. See chapter 5.3 Applying to the Local Court for a Bond Disposal

Order for more information.

In your letter, give a reason for each claim you don’t agree with. For example, the alleged damage was not your fault, or you are being charged too much to fix the problem, or you may be able to make an offer to solve the problem.

In the letter give the owner a deadline to reply and let them know you will take court action if they don’t respond. You can ask the owner/agent to explain their reasons for withholding the bond money and to provide copies of receipts for any work they claim to have had done and want to charge you for.

A sample letter has been included at the end of this info sheet, as a suggestion only. Make sure your letter includes all points which are relevant to your situation. Contact a tenancy worker in your area (see chapter 1.12 Community Contacts) to discuss your case if you’re not sure what to say to the owner/agent.

Always keep copies of letters to and from the owner.

What if the owner hasn’t lodged the bond correctly?

If you didn’t sign a Lodgement of Security Bond Money (combined Form 1 & 8) before you moved into the property, the owner/agent has not lodged the bond according to the Residential Tenancies Act (1987). This also means the owner/agent can get access to your bond money without your signature. If this has happened, you can make a written complaint to the Department of Consumer and Employment Protection asking that the owner be prosecuted for not complying with the Act. If prosecuted, the owner may be penalised $4000 (s 29). If your bond hasn’t been lodged correctly, you can write and demand the owner return it to you. If the owner refuses to return your money, you can apply to court. Part of your argument to the court can be that the owner should not be allowed to benefit from the illegal action of incorrect bond lodgement. See Applying to the Local Court for a Bond Disposal Order for more information.

List of Tenants’ Rights Manual chapters referred to in this info sheet:

  • Community Contacts
  • The Security Bond
  • Fair Wear and Tear
  • Applying to the Local Court for a Bond Disposal Order

SAMPLE FORMS ATTACHED:

  • Joint Application for Disposal of Security Bond (Form 4)
  • Lodgement of Security Bond Money (combined Form 1 & 8)

OWNER OR AGENT?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act (1987). If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

DISCLAIMER: This is a sample letter only. You should write your own letter telling your own story in your own words (See Writing a Letter to the
Owner/Agent
 for information on writing your own letter.)

SAMPLE LETTER

Mr P Owner
15 Hill Street
West Coast WA 6666
31 February 2003

Dear Mr Owner                                 ** WITHOUT PREJUDICE

RE: Return of Bond – (the address of the rented premises)

I lodged with you (state $ amount of the bond) when I moved into the above property on the ….. (date you paid the bond). I vacated the property on the …. (date you moved out) and left the property in a state of cleanliness and repair (equal to/better than) when I moved in, less fair wear and tear. I therefore expect the bond money to be returned to me in full and disagree to your claim that you are entitled to $… (amount of bond owner/agent said they want to keep). I disagree with your claim for the following reasons:

(List here the things the owner is claiming and state why you do not agree with the claim. For example: because the item was already damaged when you moved in, or was not in need of the repair/cleaning claimed by the owner, or you have already carried out the work (such as having the carpets professionally cleaned). Make sure you give full details of why you think each claim is unfair and include copies of receipts for any work you have carried out).

(Also list if there are deductions which you do agree should be taken from your bond. You can also agree to having work done and you paying for it in principle but query the cost being charged. You can ask for quotes if you think the amount being claimed is too high. If old items are to be replaced offer to pay only part of the cost of the replacement due to depreciation for the age or state of repair before the item was damaged during your tenancy).

I believe you are making unfair claims on my bond money. I agree to $x… (state the amount) being deducted from my bond to cover the expenses I agree to (if any). I will be happy to sign a joint application form to arrange for the disposal of my bond to this effect. If you are not agreeable to this, or I receive no reply from you within 7 days I will lodge an application for the return of my bond with the Local Court.

I look forward to your urgent reply.

Yours sincerely

A Tenant
(your forwarding address)

** PLEASE NOTE: You may choose to write ‘Without Prejudice’ on a letter to the owner/agent, however you need to understand the legal implications of doing so. ‘Without Prejudice’ is a statement made without an intention to affect the legal rights of any person. This means you can write a letter using ‘Without Prejudice’ and it cannot be used in court as evidence against you. You can still bring the letter into court but you cannot give it to the Magistrate as evidence. You can verbally refer to it but only to show that you tried to negotiate a solution to the problem. You may decide to not write ‘Without Prejudice’ in your letter if you think you may want to present the letter in court as evidence.

This information sheet explains the process involved in making an application to, and appearing in, the Magistrates Court.

What is the Magistrates Court?

The Magistrates Court minor cases is the court which deals with disputes between owners and tenants under the Residential Tenancies Act 1987 (WA).

Applications for hearings must be lodged as a minor case at the Magistrates Court closest to the address of the property being rented.

If you are unsure, check with the Magistrates Court. It may be possible for another Magistrates Court to hear an application if both the owner and tenant give their consent at the time of lodging the application.

Why should I go to court?

You should go to the court if you want to take action against the owner, or if the owner takes action against you.

PLEASE NOTE: Do not withhold your rent to try and make the owner fix a problem (e.g. repairs) because you will be in breach of your tenancy agreement and the owner can take action against you.

Going to court is usually a last resort action if you and the owner have a dispute you can’t sort out. You can apply straight to the court to try and sort out the problem. This may be appropriate if the owner has indicated they will not do what you ask. Otherwise it is usually more appropriate to try and resolve the problem before going to court.

The dispute might be about the owner’s failure to meet their responsibilities to you (such as for repairs and maintenance, or your privacy and quiet enjoyment of the premises) or the owner’s claim that you have failed to meet your responsibilities (such as to pay the rent owing and keep the place reasonably clean and undamaged).

The dispute might also be about the return of bond monies and/or whether the tenancy should be terminated. If you are seeking a rent reduction, keep in mind that the court can only make an order that rent be reduced from the date of the court application.

OWNER OR AGENT?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the responsibilities under the Residential Tenancies Act 1987 (WA). If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

Do I have to have a lawyer to go to court?

No! The Magistrates Court is a relatively low cost, informal court. Tenants and owners (parties to the proceedings) represent themselves. A party may be represented by an “agent”, such as a real estate agent or tenant advocate, if the court is satisfied that:

  • “the party is unable to appear personally or conduct the proceedings properly himself”, and
  • “no other party will be unfairly disadvantaged by the fact that the agent is allowed to so act” (Residential Tenancies Act 1987 (WA), section 22(2)).

It is quite common for private owners to be represented by a real estate agent, and for the Department of Housing to be represented by one of its regional recovery officers. It is not common for tenants to be represented by an agent.

You can ask the court for permission to have another person to present your case for you. However, you will need to convince the court that it is fair that you have help that other tenants don’t usually get.

For example, if you have a medical reason (in which case a doctor’s letter of support will be useful).

If you are representing yourself but would like some support, you can have a “friend” in court sitting beside you to help by taking notes and providing support (commonly known as a McKenzie’s Friend).

The “friend” may not address the court or act on your behalf without the court’s permission.

A party may only be represented by lawyers in special circumstances. For example, if both parties agree and the court is satisfied that it will not unfairly disadvantage the other party, or if one of the parties is a legally qualified person (s.22(3)).

When will my case be heard?

You may have to wait two to three weeks before your dispute is heard (s.14). Waiting times for hearings vary from court to court. Further information can be obtained from the Registrar at the Magistrates Court.

Urgent applications may be listed at short notice but you will need to convince the court as to why your case should be given urgent consideration.

What will it cost me?

When you lodge the application, you will need to pay a fee of $26.70, or $19.70 if you have a Health Care Card or a pension card (as at February 2008). If you are financially disadvantaged you may make application for the fees to be reduced.

You can include the refund of the fee as a claim on your application if the application is made on a Form 12: Application for Court Order (see a sample Form 12 attached at the end of this chapter). The court may order the owner to pay the application cost to you if you are successful.

You will be charged $18.00 (as at February 2008) if applying to defend a bond dispute. You will be charged this fee when the owner/agent applies to court on a Form 6 and you have to lodge a Form 5 stating why you dispute the owner/ agent’s claims. See chapter 5.03 Applying to the Magistrates Court for a Bond Disposal Order for more information

What orders can the court make?

The Residential Tenancies Act 1987(WA) allows the court to make various orders depending on the individual circumstances.
The court may issue an order to:

  • terminate the tenancy agreement (section 60);
  • stop further breaches of the agreement (s 15(2)(a)(i));
  • make sure obligations, under the agreement are acted on (s 15 (2)(a)(ii));
  • pay any amount payable under the agreement (s 15(2)(b));
  • award compensation for loss or injury (except personal injury) caused by a breach of the agreement (s15(2)(c));
  • authorise payment of rent into a registry (the court) until the owner carries out an order (eg. repairs)(s15(2)(d)); and
  • provide for anything else the Magistrate considers appropriate (s 15(2)(e)).

How do I apply for a hearing?

To apply for a hearing you must lodge an application form with the Magistrates Court. There are two types of application forms, a Form 12 Application and a Form 6 Application. Samples of each are attached to the end of this chapter.

PLEASE NOTE: Tenants and advocates should also refer to the information sheets relating to particular tenant problems.

A Form 12 Application

You must lodge this form for a general dispute, and sometimes if you are trying to recover bond money not lodged in a joint account, or you are applying for the return of your bond plus other orders.

This application form asks for you (the applicant) and the owner’s (the respondent) details. You should name the owner as the respondent, even if the property is managed by an agent. If you do not know the owner’s address, list it as care of the agent’s address.

If you’re not sure about the owner’s name check your tenancy agreement; the name should be written there.

The Form 12 Application has two main sections:

  • 1) Reason for Application:

You should state what you have asked the owner to do or not do, and that they refused to do what you have asked. Give brief details of the attempts you have made and the owner/agent’s response. Provide as much information as necessary in brief point form. Attach a separate piece of paper if more space is needed. You will need to provide the court with four copies of any attachments when you lodge your application.

  • 2) Order Required:

You must state the orders that you want the court to make. If it is a number of things you should list each one. For example:

  • that the owner carry out maintenance and repairs (list them) (s. 42)
  • that the owner install locks (list them) (s. 45)
  • that the owner not enter the premises unless they have given the required notice (s. 46)
  • that the owner reimburse the cost of urgent repairs (list them) (s. 43). (Make sure you have receipts and can claim under this section of the Act.)
  • that the rent be reduced to $XXX (s. 32). (Rent can only be reduced from the date of the court application.)
  • that the tenancy be terminated for the owner’s serious breach of agreement (s. 75). (State the date you would like this to be effective from.)

As a general rule, while in the court you can only raise the issues and request the orders listed on the application form. The court can allow an amendment to your application (s. 20) but this is not guaranteed. You should try to list all the problems when you apply.

A Form 6 Application

You must lodge this application for bond disputes when the bond is held by the Bond Administrator, in a joint bank account or a Tenancy Bond Trust Account. For further information see 5.03 Applying to the Magistrates Court for a Bond Disposal Order.

You must provide the following information:

  • your full name and address;
  • the owner/agent’s full name and address;
  • the address of the rented property;
  • when the tenancy started and ended;
  • the weekly rent;
  • the amount of bond money you paid;
  • which bank/building society/credit union the money is in;
  • the amount of money you want returned and how much should be kept by the owner/agent (if any); and
  • why there is disagreement on how the bond is to be given back or divided up.

What if I want to make an application in response to the owner’s application?

This is called making a “cross application”. A cross application may be necessary if you believe there are issues which should be taken into account by the court but they are not stated on the owner’s application.

This is because the court may only hear matters which have been listed for hearing. If you try to bring up other issues, the court may not be able to hear them and you would have to apply separately about those matters; even if you believe they should be heard at the same time.

A cross application is made when a Form 12 Application has been made to the court and the other person wants to have their claim heard at the same time.

Cross applications do not apply if the owner has applied on a Form 6. If the owner has applied on a Form 6 (Application for Disposal of Bond Money), you will be sent a Form 5 (Notice of Intention to Dispute Application for Disposal of Bond Money) to make your response.

How do I make a “Cross Application”?

A cross application is made on a Form 12. When you lodge your form with the court you should take the owner’s application with you so that it can be listed for hearing at the same time (s.20(j)).

You will usually have to pay a fee for a cross application. However, some Magistrates Courts do not charge a fee for a cross application as they consider it to be part of the dispute. Others do charge the usual filing fee and your cross application will carry a different Case number.

When the matters are heard by the court, the person hearing the case may choose to hear them both at the same time, or first one, then the other. See Preparing for Court for more information on how to prepare for the hearing.

What is a Conciliation Conference?

Before appearing in court, the clerk may ask if you and the owner/agent want to try and come to an agreement at a conciliation conference or pre-trial conference. This is not compulsory.

If you prefer, you can go straight to court. However, it is a good opportunity to find out what the owner wants to present to the court and if there is any chance of settling the matter.

If you work out a solution with the owner/agent at the conciliation conference it will be confirmed in court as a Consent Order without you having to go through a full hearing. A Consent Order is binding, the same as if your case had been heard in the court.

What happens at the court hearing?

You should arrive at the court before the listed hearing time and notify the bailiff (court official) that you are there.

The court will have informed the owner/agent of the hearing date and time. Yours will not be the only case listed for a hearing at that time so you may have to wait a while to be called into the court.

Sometimes it can take several hours so you might like to take some reading material and refreshments to keep you going! If you have children, it’s a good idea if child care can be arranged or if someone can go with you to the court to look after them while your case is being heard.

If the owner/agent does not appear, you can tell the court that you want the hearing to go ahead and that you oppose any adjournment (putting the hearing off for another day) because you need the problem resolved as soon as possible.

If there was no conciliation conference, the court may ask you and the owner/agent to go outside and try to solve the problem before the hearing starts. If you feel that this would not be appropriate, you should say so and why. If you do go outside and reach an agreement, the court may confirm it as a Consent Order. Do not agree to anything you are not happy with. If your dispute is not sorted out the court will hear your case.

How do I present my case?

Each court has its own way of conducting a hearing, so what happens might be different to what is written on this information sheet. The general process is if you lodged either a Form 12 application or a Form 6 application you are the applicant and you should be allowed to speak and call your witnesses first.

You should take prepared notes to help you give clear evidence and remind you of what to say. Use your notes only as a prompt as the court will expect you to present evidence from memory. When presenting the case you should state:

  • Each problem or issue and, if appropriate, how it affected your tenancy. Tell the court when and how you asked the owner/agent to resolve the problem. Present any copies of letters and/or breach notices as evidence; and
  • What orders you would like from the court. Make sure you ask for a deadline for the owner to do whatever it is and, if relevant, ask that the rent be paid to the court until the problem is fixed.

What is cross-examination?

Once you have presented your case, the Magistrate may ask you some questions or ask the respondent (the owner) or the respondent’s agent if they would like to cross examine you.

This means that the owner/agent will ask you questions to “test” your evidence. Answer questions clearly and accurately. Take your time and if you do not know or cannot remember something just say so.

If you don’t understand the question, just ask for the owner/agent to ask it in a way that you can understand.

You may not have to respond to questions which are not relevant to the dispute. A question like “Do you always pay your rent on time?” may not be relevant to whether the owner should have done necessary repairs and you can ask the court if you have to answer it.

However, under section 15(4), the Magistrate can take any previous breach by a tenant into account.

After you have called your witnesses (if you have any) and asked them questions that support your evidence, they may be cross-examined by the owner.

Can I question anything the owner/agent says in court?

When the owner/agent is asked to tell their side of the story you should listen carefully and take notes on anything you disagree with.

When the owner/agent has finished the court will ask if you want to question (cross examine) the witness. Say yes if you want to ask any questions or challenge any evidence they have given.

You should question the owner/agent about anything they have said which is not true or is only partly true. If you don’t question the owner/agent’s evidence the court may think that you do not dispute the information.

You will also get a chance to question the owner/agent’s witnesses once they have presented their evidence. The Magistrate or Registrar may also ask some questions.

When does the Court make a decision?

Once all the evidence has been presented the court will make a decision and read it out. In some circumstances, You should receive a copy of the order from the court in the mail a few days later or you can arrange to collect it. (Make sure the court has your right address so you get the order.)

If you have a good reason, some courts will let you wait while the order is written up. After the hearing, please contact Tenants Advice Service to let us know how it went, and any suggestions for other tenants going to court.

What if I wasn’t in Court when a decision was made?

You can apply for a court order to be “varied” or “set aside” if you were not in court when a decision was made (s.17(1)). You will need to fill out a Form 16: Application to Vary or Set Aside Order (see sample form at the end of this info sheet).

The cost for lodging this application is $18.00 (as at February 2008). Upon lodgement you will be given a new hearing date.

The Form 16 application must be lodged within 14 days of the order having been made (s.17(2)). However, if you have good reasons for not being able to lodge it within 14 days, the court may be able to give you an extension of time (s.20(f)).

If the order was for termination of your agreement, you will also need to act quickly before the owner gets or applies for a Property Seizure and Delivery Order. See chapter 4.07 Evictions for more information.

At the hearing to set aside the order, you will have to have a valid reason as to why you were unable to attend the first hearing. You will also need to convince the court that you have a good case and that you may be successful at a new hearing.

If you are successful, some courts will set aside the order and make a date to come back for rehearing. Others will immediately hear the case, so you will need to be well prepared (see chapter 6.02 Preparing for Court).

In addition to the application to vary or set aside, section 15 Civil Judgments Enforcements Act 2004 (WA) (CJEA) allows a party to apply for an order suspending any order if ‘special circumstances’ justify doing so.

The application process under the CJEA is a little different to normal residential tenancy matters. In addition to filling out the form, the applicant must complete an affidavit (a written declaration made under oath), outlining the reasons for wanting the order suspended.

Remember to include any ‘special circumstances’ (such as extreme hardship) in your affidavit to show why the Court will be justified in suspending the order. If you are successful in this application, the Magistrate may suspend the order for up to an indefinite period of time.

What happens after the hearing?

If the court order is to pay money:

If the court has ordered the payment of money and the money is not repaid, the person who is owed the money has the choice to:

  • Apply for a Property (Seizure and Sale) Order. This means a bailiff can seize goods or land to the value of the order if the money is not paid. The bailiff can then sell the goods or land to get the money. There is a charge for a Property (Seizure and Sale) Order. The person who owes the money must also pay this back if the bailiff is successful.
  • Apply for a Means Enquiry. This means the person who owes the money must go to court and explain their financial circumstances. If the person cannot afford to pay all the money owing at once, the court can order the person to repay the money at a reasonable rate (by instalment) according to what is affordable given the budget of the individual.

If either of these circumstances apply to your case, you should seek advice from Legal Aid, a financial counsellor or a community legal centre (see chapter 1.12 Community Contacts).

If the court order is to evict:

If an order is made that you must give “vacant possession” of the premises, this means you and all your belongings must be out of the premises by the date stated on the order.

If you are not out by then you can be physically removed by the Bailiff. See Evictions for more information.

You should leave the premises in the same condition as when you first moved in, less fair wear and tear. If you don’t, the owner/agent can seek another order that you pay for anything that needs fixing.

It is good to have a witness to the condition you left the premises in. Write out your own property condition report and have your witness sign it.

If you have left any of your belongings at the premises you should try to arrange with the owner to get them back. Any arrangements should be confirmed in writing. See Abandoned Premises and Goods for more information on what happens to goods left at premises.

How secure does the owner have to make the place?

Under the Residential Tenancies Act (1987) WA, in relation to a rented property the owner must provide and maintain locks or any other devices needed to make the premises reasonably secure (s.45 (1)(a). ‘Other devices’ may include windows which can be secured properly.

The Residential Tenancies Act does not give a definition of “reasonably secure”. The definition will depend on the circumstances of each case.

The Residential Tenancies Act allows for the owner/agent to exclude or modify their responsibility to provide reasonable security. Make sure you check for this in your Tenancy Agreement.

What if my place is not secure?

If you believe your rental property is not reasonably secure, you may be able to ask the owner/agent to take steps to provide better locks or ‘other devices’.

Before you write to the owner/agent about a security problem (see Writing a Letter to the Owner/Agent), you should begin by checking your Tenancy Agreement for special conditions relating to the security of your property.

Writing a letter may be important later if you have to prove you told the owner/agent about the problem (see the section “Can I be compensated if I suffer a loss?” ).

There are a few steps you may be able to take to support your argument that the premises are not reasonably secure:

  • Contact your local neighbourhood watch committee or police station for an opinion and for statistics on crime in your area. Ask also what they recommend for adequate security.
  • Check what security conditions insurance companies require for contents insurance at your place. Ask the insurance company to write to you about what they consider would be necessary to make the premises reasonably secure (Note: insurance standards can sometimes be higher than what is seen to be the owner’s responsibility).

What if the owner won’t make my place secure?

If the owner/agent does not agree with you and won’t fix the problem, you can apply to the Magistrates Court and ask for a decision on what is fair in the circumstances (see Going to Court for more information).

Can I be compensated if I suffer a loss?

If the owner does not provide premises which are reasonably secure and your premises are burgled as a result, you can apply to the Magistrates Court for an order that the owner pay you compensation for any goods stolen or damaged.

Your claim would relate to two sections of the Residential Tenancies Act:

  • Section 45 (1)(a) which says the owner must provide locks or other devices to make the premises reasonably secure; and
  • Section 15 (2)(c), under which you can claim compensation for loss or injury (other than personal injury) incurred as a result of breach of the tenancy agreement.

If you want to apply to the court for compensation, it may be important to be able to prove that the owner/agent knew that the premises were not reasonably secure but did nothing about it.

It will help if you have copies of letters sent to and from the owner/agent, and/or a witness. For further information see Compensation for Loss Incurred due to a Breach by the Owner.

Changing the locks

There are rules about changing the locks in rented property. Locks can only be changed with permission from the other person (owner or tenant depending on who wants to change the locks) beforehand or under the authority of a court order.

Changing the locks unlawfully is a serious breach of tenancy law.

You are not allowed to alter, remove or add any locks or other devices without the owner/ agent’s permission (s.45(1)(b)) or an order from the court. If you do you are in breach of the Residential Tenancies Act and may be liable for a penalty of $4,000.

Similarly, the owner could face a penalty of $4,000 if they alter, remove or add any locks or other devices without your permission (s.45(2)) or an order from the court.

The owner/agent is not allowed to change the locks without your agreement or an order from the court.

What if I change the locks unlawfully?

The owner may send you a Notice of Breach of Agreement, giving you 14 days to change the locks back or supply a key for the new lock.

If the breach notice is not complied with within 14 days, the owner may seek an order from the court that you fix the problem or they may serve a Notice of Termination of the Agreement.

See When the Tenant is in Breach of the Agreement and Ending the Tenancy When the Tenant Breaches the Agreement for more information.

Can I go back in if the locks are changed unlawfully?

You are entitled to re‐enter the property if the locks are changed by the owner/agent without your permission or without an order from the court. The difficulty is knowing the best way to go about it.

You may be able to get a locksmith to assist you to regain access to the property and to provide a key to the new locks that were unlawfully changed by the owner/agent. Keep receipts for any payments you make to the locksmith.

Make an urgent application to the Magistrates Court requesting an order that you be given keys to the premises so you can regain possession of the property. You may also request an order to be compensated for any losses incurred by the lockout.

Compensation may be claimed from the owner/agent for the cost of entry and any expense incurred due to being locked out, for example alternative accommodation or locksmith fees. See Compensation for Loss Incurred Due to a Breach by the Owner for more information.

In any event, you should also make a complaint to the Department of Commerce (Ph: 1300 30 40 54) who can investigate the unlawful lockout by the owner/agent, and negotiate on your behalf with the owner/agent for you to regain possession of the property.

Contact Tenants Advice Service for more information.

DISCLAIMER: This is a sample letter only. You should write your own letter telling your own story in your own words (See Writing a Letter to the Owner/Agent for information on writing your own letter.)

SAMPLE LETTER

Mr P Owner
15 Hill Street
West Coast WA 6666
1 February 2010

Dear Mr Owner ** WITHOUT PREJUDICE

Re: Locks and Security
I refer to our discussions about the lack of window locks and the faulty back door lock at the property I am renting at 136 Resident Street, Newtown. I confirm that I have informed you that I do not believe the locks provided with the property are enough to make the place reasonably secure. It is my understanding that you disagree.

I have been advised that Section 45 of the Residential Tenancies Act (1987) WA requires the owner to provide locks or other devices which are necessary to make the property reasonably secure.

My insurance company has informed me that I cannot get insurance for my belongings at the property because there are no deadbolts on the doors, and no locks on the windows. Clearly they are of the opinion that the property is not reasonably secure.

I have also spoken to our local police branch. They say that deadbolts and window locks are essential to make the property reasonably secure. I have also spoken to our local neighbourhood watch representative and he told me the same thing as the police.

You can appreciate the urgency in fixing this problem. I request that you provide the necessary locks and devices within 7 days. Please be advised that I intend to apply to the Court for a performance order if this is not done. Please also be aware that if I suffer any loss as a result of your failure to provide the locks I will hold you responsible and seek compensation under section 15 of the Residential Tenancies Act.

Yours faithfully

Mrs J Tenant
136 Resident Street
Newtown WA 6666

** PLEASE NOTE: You may choose to write ‘Without Prejudice’ on a letter to the owner/agent, however you need to understand the legal implications of doing so.
‘Without Prejudice’ is a statement made without an intention to affect the legal rights of any person.

This means you can write a letter using ‘Without Prejudice’ and it cannot be used in court as evidence against you. You can still bring the letter into court but you cannot give it to the Magistrate as evidence. You can verbally refer to it but only to show that you tried to negotiate a solution to the problem.

You may decide to not write ‘Without Prejudice’ in your letter if you think you may want to present the letter in court as evidence.

Looking for a private rental

Private rental accommodation can be found listed under ‘To Let’ in the Classified sections of newspapers. Check out “The West Australian” on Wednesday and Saturday, “The Sunday Times”, “Quokka” (comes out every Thursday) and local or regional community newspapers.

To understand the many abbreviations used in newspaper ‘To Let’ ads, refer to Abbreviations Used in ‘To Let’ Ads.

Real estate companies are also increasingly using the internet to advertise their rental properties. Search ‘available rental properties in WA’ to locate the websites.

You may also like to let some of the real estate agencies know you are looking for a rental place as they sometimes have properties for rent which are not advertised in the newspaper.

Looking for share accommodation

Community noticeboards at libraries, café’s, bookshops, youth centres, TAFE and University campuses are a good place to find share accommodation (a room in a share house).

Ads for share accommodation can also be found in the newspapers mentioned above. Some universities also maintain share accommodation registers (a list of students seeking to share) – contact your campus’ housing officer.

There is also a specific accommodation registry for gay, lesbian, bisexual, transgender and HIV positive people: Ph: 9420 7201 (Accommodation Referral Service); 9486 9855 (Shared Accommodation Registry).

NOTE: Tenants who rent a room in a shared house and do not have their name on the tenancy agreement, may not be protected by the Residential Tenancies Act (1987). See Boarders and Lodgers and Shared Tenancies for more information.

Department of Housing Rentals

The Department of Housing (DH) is the WA state government department that provides housing for people on low incomes. Contact DH to see if you are eligible.

Rent is usually calculated as a proportion of your income. There is usually a long waiting time before you are allocated DH housing, so it is a good idea to put your name down on the waiting list as soon as you can.

If you have an urgent need for housing, you may be able to get housed sooner on a “priority” basis. Get assistance with making this application from one of the agencies listed in chapter Community Contacts.

Caravan Parks

If you stay in a caravan park for more than three months, make sure you get a tenancy agreement as required by the Residential Parks (Long Stay Tenants) Act (2006).

According to the Residential Parks Act, if your stay is for less than three months it can be classified as holiday accommodation rather than as a tenancy. This means that you do not have any rights as a tenant.

For more information, see Boarders and Lodgers. This chapter also covers your legal status if you choose to live in a hostel, homestay or boarding house situation.

What to look for – Tenant Beware !

There are a number of things to look out for so as to avoid running into problems later. Things to check before applying for the tenancy include:

  • Is the property close to amenities such as shops, schools and public transport?
  • Is the property clean?
  • Does everything provided work, especially things like fridges, washing machines and stoves?
  • Is the property free of mice, cockroaches and fleas? (Check in drawers and cupboards for any signs.)
  • Are there power points in all the rooms?
  • Are there any gaps around doors or windows which would let in the cold, dirt or rain?
  • Is any mould appearing on walls or doors?
  • Can the doors and windows be closed and locked?
  • Do the taps (inside and outside) leak?
  • Does the hot water in the shower work if you have any other tap turned on?
  • What sort of heating/cooling is provided? Does it work?
  • Is the guttering free from leaves?
  • Is the property fenced?
  • Is there parking space for you and your visitors?
  • Who is responsible for maintaining the garden? Who pays for fertiliser, hoses, the lawn mowing? Who does the pruning and clears the guttering?
  • If there is a pool, who is responsible for cleaning, chemicals, repairs, etc?
  • If you are in a unit or a strata titled property are you liable for any communal and additional fixed charges, for example, common area lighting and power?
  • Ask if the previous tenants had pets, and if so was the property fumigated? Ask for evidence, eg: receipts.
  • Do you have to pay for a phone line, even if you do not necessarily want one?

Do not let an owner/agent pressure you into renting a place that you are not sure about.

Look out for hidden costs

Owners/agents sometimes arrange the electricity and gas accounts on behalf of the tenant. This is sometimes referred to as a utilities service charge.

This charge can also include other utilities such as the telephone, water, lawn mowing costs and common area maintenance.

A utilities service charge can sometimes result in the owner/agent charging more for the utilities than when accounts are paid directly by the tenant.

Inspecting the property

If you want to look inside the house or flat, usually you can arrange to turn up at the place at the same time the owner/agent is there.

For other times, you will probably need to pick up a key from the agent’s office. You may be asked to pay a key deposit– MAKE SURE YOU GET A RECEIPT. You must get the money back when you return the key.

Applying for a tenancy

When you are starting a tenancy you will usually have to apply for the property by filling out a Tenancy Application form. The owner/agent will decide if they accept your application.

If you are accepted you will need to decide whether or not you want to take up the tenancy. However, depending on the clauses in the application form you filled in, you may have already committed yourself to the tenancy!

A tenancy agreement may be either a written or verbal agreement. See The Application for Tenancy and The Tenancy Agreement for more information.

If you can’t find what you want, try to arrange housing on a short term agreement until you find something better. Be careful though of entering into more than one tenancy agreement at a time, as you may end up having to pay two lots of rent!

Get it fixed before moving in

If there are problem areas, ask the owner/agent if they intend getting any work done to fix it. Make sure you write the things you want fixed on the Application for Tenancy.

If they still haven’t been fixed by the time you fill out the tenancy agreement, you can make it a requirement of your agreement that the owner/agent fix certain things.

It is also a good idea to specify a deadline for completing work. See Maintenance and Repairs for more information.

How much rent can you afford?

On average, expect to pay no more than 25% – 30% of your income on rent. Otherwise, you could find yourself under financial stress.

The cost of housing can vary depending on type and area. Be sure you are not paying too much by comparing the rent of the place you are looking at with others in the area.

If you are not sure whether the advertised rent is reasonable, you can check out the average rent by suburb on the REIWA (Real Estate Institute of WA) website: www.reiwa.com.au.

It may also be worth trying to negotiate down the rental price ‐ owner/agents may be anxious to find tenants if the place has been empty for a while.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, Tenants Advice Service claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, Tenants Advice Service claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

Who is responsible for maintenance and repairs?

Both the owner and the tenant have certain responsibilities.

The owner
Under the Residential Tenancies Act (1987) WA (s.42), the owner must:

  • provide the property in a reasonable state of cleanliness;
  • provide and maintain the property in a reasonable state of repair, consistent with the age, character and life expectancy of the property; and
  • comply with all building, health and safety regulations that relate to the property.

The owner’s responsibilities outlined above extend to the chattels provided with the property, for example whitegoods and furniture.

However, under s. 82 of the Residential Tenancies Act, the owner/agent can ‘contract out’ of some of their above responsibilities.

The term ‘contracting out’ refers to clauses that can be included in your written Tenancy Agreement that change your tenancy rights as set out in the Residential Tenancies Act.

For example, the owner/agent may ‘contract out’ of their responsibility to carry out maintenance and repairs by stating in the Tenancy Agreement:

  • that the tenant must maintain the property; or
  • that the tenant accepts the tenancy in an ‘as is’ condition.

Be wary about signing a tenancy agreement which makes you responsible for maintenance and repairs, as this can be very expensive.

The tenant

Under the Residential Tenancies Act, you must:

  • keep the premises in a reasonable state of cleanliness (s.38(1)(a));
  • notify the owner/ agent of any property damage within three days of it occurring (s.38 (1)(b)); and
  • not cause or permit damage to the property, intentionally or by being negligent (s.38 (1)(c)).

The owner/agent may serve a Notice of Breach of Agreement if you don’t keep the premises reasonably clean, or if you cause or allow any damage, intentionally or by being negligent.

You must repair this type of damage at your own expense, or repay the owner for the cost of repairs. It is important to be aware that you may be held responsible for damage caused by any person on the premises with your consent (s.50). See When the Tenant is in Breach of the Agreement for more information.

Do not withhold rent payments in an attempt to force the owner to carry out repairs or maintenance. This will result in you breaching the agreement.

What can I do if the owner doesn’t fulfil their responsibilities?

There are a number of options for action you can take if the owner does not maintain or repair the property to a satisfactory standard:

  • You can discuss the problem with the owner/agent and ask them to fix it. Make sure you confirm what has been agreed in writing.
  • You can write to the owner/agent with a specific request, stating clearly what you want repaired or replaced, and by when. It is also a good idea to say in your letter how the problem is affecting you. See the sample letter at the end of this section for an example and Writing a Letter to the Owner/Agent for more information.
  • You may also serve a Notice of Breach of Agreement (see below and chapter 3.09 When the Owner is in Breach of the Agreement).
  • You can apply to the Magistrates Court and ask them to order the owner to carry out repairs (s.15) and/or for the agreement to be terminated due to a breach by the owner (see chapter 4.04 Ending a Tenancy when the Owner Breaches the Agreement).
  • You can claim compensation if you suffer a loss due to the owner’s failure to do maintenance and repairs (see further section in this chapter).
  • You can seek a reduction in rent (see chapter 3.01 Rent, Rent Increases and Rent Reductions).

OWNER OR AGENT?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act (1987).

If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

How do I serve a Notice of Breach of Agreement?

The first step is to request, preferably in writing, that the owner carry out the work. Clearly state what needs to be done and state reasonable times for a repair person to do the work.

Ask the owner/agent Tenants Advice Service to contact you as soon as possible to arrange the repairs.

If you rent through a real estate agent send the letter to the owner care of the agent in the post or via email. See Writing a Letter to the Owner/Agent for more information.

You can also send the letter with a Notice of Breach of Agreement (Form 20A), A sample Form 20A is available to view on the TAS website: www.taswa.org.

Always keep a copy of any letter or breach notice.

What happens if the owner ignores my request for repairs?

If the owner ignores your letter or Notice of Breach of Agreement, you can have URGENT repairs carried out by a licensed repair person and claim the reasonable costs back from the owner as long as the tenancy agreement does not say:

  • you must have the owners consent to get repairs done;
  • that the tenant will not be compensated for work done; or
  • that sections 42 and/or 43 of the Residential Tenancies Act are excluded from the agreement.

Read the tenancy agreement thoroughly and carefully before arranging for anyone to do work on the property.

A ‘contracting out’ clause may read something like “the tenant is not authorised to undertake or authorise any repairs without the prior written consent of the owner or the owner’s agent”.

All REIWA tenancy agreements contain a clause that states you shall not undertake or authorise any repairs without prior written consent of the owner/agent.

 

How do I claim compensation?

If your tenancy agreement does not say you must have the owner’s consent before you can authorise urgent repairs, or otherwise exclude s.43 from the agreement, then you may get a tradesperson to do the work and claim the reasonable costs back (compensation) from the owner.

You can claim compensation (s.43 and s.15) if you can show that:

  • you, or someone living in the premises, or a guest, did not cause the damage;
  • the damage or necessary repair was likely to cause injury to a person or property or undue inconvenience to you;
  • you made a reasonable attempt to inform the owner about the damage;
  • you made a reasonable attempt to inform the owner that you intended organising the repairs, incurring costs yourself;
  • the repairs were carried out by a licensed tradesperson; and
  • you gave the owner a report by the tradesperson detailing the apparent cause of the damage (disrepair).

See Compensation for Loss Incurred Due to a Breach by the Owner for more information.

Getting a Court Order to have repairs done

If the owner refuses to compensate you for the costs of urgent repairs, you can apply to the Magistrates Court for reimbursement. See chapter 6.02 Seeking a Performance Order from the Magistrates Court for more information.

If you are not able to get the repairs done and claim compensation from the owner, you can ask the Court to allow you to pay your rent to the Court until the repairs are done.

This may motivate the owner to carry out the repairs quickly in order to recover the rent. If the court allows this, the owner will have to provide evidence that repairs have been done, or that they have reimbursed the tenant for repairs, before they can collect the rent money.

If the breach (failure to do repairs) is serious and you would like to move out, you can apply to the court for the agreement to be terminated due to the owner’s breach (s.75). See Ending a Tenancy when the Owner Breaches the AgreementPreparing for Court and Going to Court for further information.

SAMPLE LETTER

Mr P Owner
c/o Wright Real Estate
15 Hill Street
West Coast
1 February 2010

Dear Mr Owner

Re: Repairs to Hot Water System

I write further to our telephone conversations about problems with the gas hot water system. I confirm that I first informed you two weeks ago that the pilot light keeps blowing out leaving us with no hot water.

This problem is urgent and causing us a great deal of inconvenience. We have tried relighting it as you suggested but this hasn’t worked.

The problem is also leading to increased expenses. I have to heat water on the gas stove for the children’s bath. I am worried that my next gas bill will be much higher than usual.

I am also very concerned about possible health risks. My baby has a skin condition and I have been advised that I should wash his nappies in hot water. However, it has been very hard to do so because of the problems with the hot water system.

I believe you are in breach of section 42 of the Residential Tenancies Act. I request that you send a qualified person to repair the hot water system within 3 days. Please be advised that if the problem is not fixed within that time I intend to apply to the Court for a performance order under section 15 of the Act.

I look forward to your prompt response.

Yours faithfully
Mrs J Tenant
136 Resident Street
Newtown WA 6666

Tenants, agents and property owners who breach the Residential Tenancies Act (1987) may be prosecuted and fined.

Under section 8 (1)(d) of the Residential Tenancies Act, the Department of Commerce (DoC) has the power to investigate:

  • An offence committed under the Act, and/or
  • The infringement of a party’s rights arising out of a residential tenancy agreement. This can include the investigation of a person who was a prospective or former party to a residential tenancies agreement.

The Commissioner for Fair Trading is the only person who may prosecute a party for an offence committed under the Residential Tenancies Act (s.9).

How can I complain about a breach of the Residential Tenancies Act?

If you wish to make a formal complaint you can complete a residential tenancy complaint form or write a letter. Complaint forms are available from the Department of Commerce (website: www.commerce.wa.gov.au; phone: 1300 30 40 64) or Tenants Advice Service.

Send your complaint form to:

The Consumer Protection Division, Department of Commerce Locked Bag 14, Cloisters Square PERTH WA 6850 Australia

Your complaint should clearly detail the breach (dates, people, places), and ask the Commissioner to investigate the matter and, if appropriate, prosecute the offending party. The complaint must be made within three months of the termination of the tenancy agreement (s.9(3)(b)) to enable the Commissioner to take action on the complaint.

The Commissioner may negotiate or otherwise seek to resolve a problem rather than prosecute. If you believe the owner/agent should be prosecuted and charged the relevant penalties, you will need to state why (s.8(1)(d)).

What can a tenant be penalised for?

Below is a list of tenant breaches of the Residential Tenancies Act and penalties they may attract:

  • Failing to pay rent with the intention that it be recovered from the security bond ‐(s.52). $1000
  • Giving the owner a false name or place of occupation (s.53(1)), or not notifying the owner that their place of occupation has changed within 14 days of the change ‐ (s.53(2)). $1000
  • Not leaving a forwarding address when vacating the property ‐ (s.53(3)). $1000

What can an owner be penalised for?

Below is a list of owner/agent breaches of the Act and penalties they may attract:

  • Requiring or receiving money from a tenant or prospective tenant for entering into, renewing, extending or continuing a tenancy agreement (s.27(1)). NOTE: A tenant can be asked to pay an option fee or any money as authorised by the Act (s.27(2)). $1000
  • Asking a tenant to pay more than a fortnights rent before or during the first two weeks of a tenancy agreement, or requesting another rent payment before the first payment has expired (s.28 (1) and (2)). $1000
  • Asking for more than one security bond (s.29(1)), or requesting more than four weeks rent as a bond (unless allowed under s29(2)). $1000
  • Not providing a receipt for security bond monies received, or not depositing the bond into an account as required under Schedule 1 of the Act (s.29(4)). $4000
  • Demanding or receiving any rent that is beyond an amount set by a Court Order (s.32(7)). $1000
  • Not giving a receipt within three days of receiving the rent (except where the rent is paid into a bank, building society or similar body (s33(2)), or if the receipt does not show all the required details (s.33(1)). $1000
  • Falsely stating the grounds for termination when the owner has in fact entered into a contract for sale of the premises (s.63(3)). $2000
  • Refusing a tenant on the grounds that a child will be living on the premises (s.56(1)) or instructing any person, or stating their intention in an advertisement, not to accept a tenant should a child be living with them (s.56(2)). NOTE: This penalty does not apply if the premises are the principal residence of the owner, or if the owner or agent lives in adjoining premises (s56(3)). $1000
  • Not providing the tenant with a copy of the written tenancy agreement document at the time it is signed by the tenant and ensuring that a fully executed copy of the document is delivered to the tenant within 21 days or as soon as reasonably possible (s.54(1)). $1000
  • Where the tenant is required to be told of the owner’s name and address, not notifying the tenant of any change in name or address within 14 days ‐(s.51(4)). $1000
  • Failing to notify the tenant of their full name and address (the address can be care of a real estate agent (s.51(1)); or the name and address of any other person that has superior title on the property; or if the owner is a body corporate, the body corporate’s name and address, at the time of entering into the agreement (s.51(1)). $1000
  • Altering, removing or adding any lock by the agent of the owner without the consent of the tenant in the absence of a reasonable excuse (s45(2) and (3)). $4000 plus any civil liability
  • Requiring a post‐dated cheque for payment of rent ‐ (s.35). $1000
  • Not keeping records showing the rent received from the property (s.34(1)), or knowingly making a false entry in the records showing the rent received (s.34(2)). $1000
  • Entering premises for the purpose of recovering possession of the property without a Court Order whilst the tenant is still in possession of the property (legally or otherwise (s.80). NOTE: A Termination Notice is not a Court Order. $4000
  • Entering into an agreement or arrangement that is inconsistent with a provision of the Act or with intent to directly or indirectly defeat, evade or prevent the operation of the Act (s.82(2)). $2000

What can both owners and tenants be penalised for?

Below is a list of breaches of the Act that could apply to owner/agents and tenants, and the penalties they may attract:

  • Ignoring a Court Order (s.16(1)) or failing to appear in court after being summonsed or not producing summonsed documents (s.19(2)) without reasonable excuse. $2000
  • Demanding or receiving money or a reward for representing or helping someone in legal proceedings (except in certain circumstances) (s.22(5)). $1000
  • Altering, removing or adding any lock without the prior consent of the other party in the absence of a reasonable excuse (s.45(2)). $4000 plus any civil liability

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, Tenants Advice Service claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

This information sheet will help you prepare for a court hearing in the Magistrates Court.

Each court has a different way of hearing cases and this may catch you off guard, so it is important to be well prepared.

The person hearing your case has to sit in court all day listening to peoples’ stories. Your job is to make it easier for them to understand your case.

This is the only chance to tell your side of the story, therefore it is worth spending the time to organise yourself for the court hearing. Being prepared can also help you feel more confident.

Here are some helpful hints:

  • Organise your documents
  • Sort all relevant letters, quotes, receipts and agreements into some order. For example, sort by date or the type of problem.

One way is to attach post‐it notes to your documents or different coloured dividers for categories such as rent receipts or items needing repair.

This will ensure you can easily find documents when they are being discussed, or if you want to give them as evidence.

Write a history of what happened

While organising your evidence, make notes about the history of what happened and when.

Re‐write your notes in a clear and easy to read format that can be used to keep track of what is being said in court.

If there has been a series of incidents, you can use one as an example and ask the court if they would like to hear more. Make an extra copy of your history to give to the court.

List points of importance and relevance

Prepare a list of important points to tell the court. They will only want to hear information relevant to what has been written on your application form.

If you try to raise new issues you may drag out the hearing, and everyone may get distracted from why you are there.

Write details on each point

Write details for all the points on your list. Talk to people who know about the incidents to remind you of all the details. Make different coloured headings for each point. Under each point note any supporting documents.

An example of a point and relevant details may be:

  • “I rang the owner on 15/1/08 and 21/1/08 to ask for the stove to be fixed. There was no response, so I wrote a letter on 26/1/08 to say…”
  • show letter you wrote dated 26/1/08;
  • show owner’s reply dated 15/2/08.

Now make a brief summary of everything you are going to say to use as an introduction

Practise making your statements

You do not have to memorise your statements, but you will want to avoid getting tongue tied when in court.

You must know your story without forgetting any of the important or relevant points. You should be able to tell the story in your own words as the court may ask you not to refer to notes.

Decide on your questions

Prepare the questions you want to ask the owner/agent. Write down any questions and refer to Going to Court for some further suggestions on questioning the owner/agent.

When in court ask your questions one at a time, making sure they are not statements, and try to get the owner to give as much information as possible about what happened. For example, “Did you receive a letter from me about the leaky roof?” and “What did you do about it?”.

Making sure your witnesses come to court

It is important that your witnesses go to court on the day of the hearing. If you think there is a chance your witness won’t turn up you can ask the court registry to issue a summons.

This does not cost you anything; you just need to fill in a Form 13: Summons to Give Evidence and to produce Documents.

You will need to lodge your Form 13 (“summons”) at the Court where the hearing is to take place no less than 14 days before the date of the hearing.

The summons will then need to be served on the witness. The court can arrange this for a fee or you can serve it yourself. Ask the court for details on how the summons needs to be served.

When the summons is served on the witness, the witness also needs to be provided with an amount of money to cover their reasonable expenses to attend court, for example the amount of a bus fare from their house to court.

You will need to provide this money to the court when you lodge the summons if you wish the court to arrange service of the summons. If you personally serve the summons, you will need to give the money to the witness at the time of service.

A summons will ensure your witness turns up for the hearing. You can let your witness know that they will be served with a summons. You can explain it is for their benefit as it can be used as proof if they have to miss work or classes to appear in court.

If your witness attends the court hearing to give evidence you may need to reimburse them for any costs they have had to bear in order to attend court.

For example, if they lost a day’s pay or their expenses were more than the money you provided to them when the summons was served.

Role play

Get your friends or family together; have someone play the magistrate and another the owner/agent. Practise presenting your case and finding the documents relevant to your story.

Have someone play the part of the owner/agent and ask the difficult questions you may be asked on the day. Practise staying focussed on the question.

Remember tell your story to the court. Do not argue with the owner/agent.

Role playing is good preparation. You are less likely to get upset or forget something because you are stunned by what someone has said or things are not going the way you expected.

You will have rehearsed and it will be easier to stay calm. If you do not have anyone to role play with, practice presenting your case with a tape recorder, play back the tape and listen to how it sounds.

Maybe there is a better way to say it, or perhaps you have forgotten to mention something important.

Court checklist : be ready on the day

  • Know where the court is located and how long it will take to get there.
  • Know the time of the hearing.
  • Organise childcare (if you need to) for the whole day, just in case.
  • Ring your witnesses and arrange a meeting place and time.
  • Have your clothes ready. Dress in business clothes.

Have a checklist so you do not forget:

  • your tenancy agreement;
  • all your other documents (letters, receipts etc);
  • pens for taking notes;
  • blank pages of paper;
  • the bus/train timetable; or
  • parking money, and check where parking is available;
  • take something to do while you are waiting (such as a book)
  • go through your papers one last time

Get to the court ahead of time to:

  • keep an eye out for the court official and tell them you have arrived; and
  • check where the toilets and telephones are

Try not to worry, everyone else is nervous too!

After your hearing, please contact Tenants Advice Service to let us know how it went, and to pass on any suggestions you may have for other tenants preparing for court.

If you have any questions while preparing to go to court, contact Tenants Advice Service or your local Tenancy worker (listed in chapter Community Contacts)

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, Tenants Advice Service claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

You can refuse to sign the Bond Disposal Form and instead apply to the Magistrates Court for an “order for the disposal of the bond money”.
You may need to do this if after leaving the tenancy:

  • you have not been able to get your bond money back; OR
  • you have not been able to reach an agreement with the owner/agent about how much bond you should get back.

The court application should be made to the Magistrates Court. The Magistrates Court may hear Bond Disputes applications of any amount. You should go to the court nearest to the tenancy that you have vacated. Application forms are available from the Court.

You will need to either fill out a:

List your name and address in the “Applicant” section, and the owner’s name and address in the “Respondent” section.

A sample Form 6 and Form 12 have been attached to the end of this chapter.

What if I am a Department of Housing tenant?

You will need to make your Court application on a:

For the owner’s name and address (to be filled in the “Respondent” section), put down “Department of Housing”, with the address of the DH office that was managing your tenancy.

Just remember that DH does not have to put your bond into a special account or with the bond administrator. The bond cannot be taken out of the account by you or the owner unless you both agree OR the court makes an order.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

What if the bond is still in a joint account?

For tenants renting privately owned housing, the bond money must be lodged by the owner/agent according to the conditions as set out in the Residential Tenancies Act 1987 (WA). The Act states that the bond must be lodged in an approved account, which can be one of the three options listed below:

  • lodged with the Bond Administrator; or
  • a joint bank account between you and the owner entitled ‘Tenancy Bond Account’; or
  • a Tenancy Bond Trust Account held by a real estate agent.

If your bond has been lodged in this way, you will need to lodge your application with the Magistrates Court on a:

If you are not sure of where your bond money is being held, the Department of Commerce may be able to help you get the account details (Ph: 1300 304 054).

What if the bond hasn’t been lodged properly?

There may be two reasons why your bond is not in a joint or approved account:

  • If you signed a blank Bond Disposal Form (Form 4 Joint Application for Disposal of Security Bond); or
  • If the owner/agent did not lodge the bond money according to the Residential Tenancies Act 1987 (WA) (s 29 and schedule 1).

If this is the case, it is probably easier to lodge your application with the Magistrates Court on a:

If the owner/agent has not lodged the bond correctly and your bond dispute goes to court, you can argue the owner should not be able to benefit from the illegal action of incorrect bond lodgement by claiming deductions.

The Court may order the entire bond be returned, even if deductions appear to be valid and the owner can prove the claims. While there are no guarantees in a court hearing, it is worth bringing it to the court’s attention.

If the owner/agent hasn’t lodged the bond according to the Residential Tenancies Act 1987 (WA), they may be penalised $4000 (s.29) if prosecuted by the Department of Commerce. You will need to make a written complaint to the Department.

OWNER OR AGENT?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act 1987(WA). If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

How do I apply to Court?

The following information will help you fill out the court application forms (either a Form 6 or Form 12) and understand the owner’s response options.

The form uses the terms “applicant” and “respondent”. The person who fills out and lodges the form is the applicant; the person who the form is lodged against (and who is requested to also turn up at court so as to answer allegations), is the respondent.

If it is the owner/agent who has applied to court, you should read the the owner’s three options (as listed in the section below on “What happens once the Form 6 application is lodged?”) as if they were your own options.

Making a Form 6 Application

When making a Form 6 application, you will need to complete the following details:

  • your name and address;
  • the owner’s name and the owner/agent’s address – the owner is the respondent even if the tenancy has been managed by an agent. The owner’s name can be found on your tenancy agreement. The address can be care of the agent.
  • the address of the rented property;
  • when the tenancy started and ended;
  • the weekly rent;
  • the amount of bond money paid;
  • the place where the bond is lodged (if you don’t know, the court may let you put the owner’s name. Ask your Magistrates Court if you can do this);
  • the amount you believe that should be returned;
  • the amount of money (if any) you agree to give to the owner; and
  • briefly state why there is disagreement on how the bond is to be divided.

If you don’t have enough room on the Form 6, you can attach a separate piece of paper. Always retain a copy for yourself and attach a copies for the Court and for the other party.

If you believe you should get all of your bond money back, you may seek an order for the full amount to be returned. This means the owner will have to prove they are entitled to any of the deductions they are claiming from the bond money.

When you lodge the application, you will need to pay a fee of $26.70, or $19.70 if you have a Health Care Card or a pension card (as at February 2008). If you are financially disadvantaged you may make application for the fees to be reduced.

What happens once the Form 6 application is lodged?

Once you lodge the application, the court will send a copy to the owner and inform them that they have seven days to respond to your court application.

On receiving the notice the owner has three options (see over page):

  • 1. Ignore the notice

If the owner/agent has not responded within seven days, the Court may issue an order for you to be paid the money you have asked for. If this happens, you won’t have to present your case in Court (RTA Schedule 1, Part D, section 8).

  • 2. Send the bond back within 7 days

When the Court sends out the notice to the owner informing them they have received your court application, some owner/agents realise they can’t provide a legitimate reason for keeping the bond and choose to return the money. If this happens, inform the Court that you have received the bond money and no longer require an order. The Court will then cancel your application.

  • 3. Lodge a Notice of Intention to Dispute the Application (Form 5)

The owner/agent may choose to dispute the application. If so, the owner/agent must lodge a Form 5: Notice of Intention to Dispute Application for Disposal of Bond Money with the Court within seven days of receiving notice of your application. A sample Form 5 has been attached to the end of this chapter. What happens when your Form 6 application is disputed by the owner.

If your application is disputed by the owner, you will be advised of the date when you and the owner/agent should appear in the Magistrates Court for a dispute hearing.

You should also receive a copy of the owner/agent’s Form 5 which explains why the owner is disputing your claim. This will help you prepare a response to the owner/agent’s allegations. See chapter 6.02 Preparing for Court and 6.03 Going to Court for further information.

If you have not received a copy of the owner/agent’s Form 5, you should ring the Court and ask them to send it to you.

Making a Form 12 Application

If you are a private tenant and your bond money has not been lodged in an authorised joint account, or if you are a DH tenant, you may use a Form 12 application instead of a Form 6 when applying to the court for an order for the owner to return the bond.

The Form 12 has two main sections:

  • 1) Reason for Application:

Clearly state you want the bond money returned, that the owner has refused to give it back and why. If you need more space you can attach an extra piece of paper. You must provide four copies of anything you attach to your application. If your bond is not in a joint account, state in your Tenants Advice Service – Tenants’ Rights Manual July 2009 5.03 page 5 reasons that the owner hasn’t lodged the bond in accordance with the Residential Tenancies Act 1987 (WA) (s. 29). 2)

Order Required:

If the bond was not in a joint account, state that you are seeking the following orders:

  • Return of the full bond;
  • Return of the court application fee;
  • Owner to pay the interest payable to the Rental Accommodation Fund (RTA Schedule 1, Part C, section 6).

What happens once the Form 12 application is lodged?

When you (the applicant) lodge a Form 12 application, you will be given a date when the court will hear the claims of both you and the owner/agent. The owner (the respondent) will also be sent a copy of the application and a notice of the hearing date and time.

Unlike the Form 6, the owner doesn’t have to let the court know if they intend disputing the application. They may attend the hearing to tell their side of the story if they want to. If the property is managed by a real estate agency, the agent may appear on the owner’s behalf. See chapter 6.03 Going to Court for more information.

How much will it cost to make an application to the court?

When you lodge the application, you will need to pay a fee of $26.70, or $19.70 if you have a Health Care Card or a pension card (as at February 2008).

If you are financially disadvantaged you may make application for the fees to be reduced. If you believe it is unfair that you have to bear the cost of the court application, you can ask the Court to order the owner to refund it to you.

However, you cannot do this on a Form 6 application if you are claiming the full amount of your bond. This is because the Court cannot order the financial institution or bond administrator to pay more money than is in your bond account. Instead, you can ask the Court if you can use a Form 12 application.

A Form 12 allows you to claim compensation for costs over and above the bond. A Form 6 does allow reimbursement for the cost of the court application, but only if you are claiming part of your bond (as there would be sufficient funds left in the balance of your bond account to cover the cost).

What happens at the court hearing?

Once the Court has heard all the evidence, they will make a decision and issue a Court Order. You and the owner will be legally bound by this decision.

The order will state how much money each party will receive. If the order states the owner must pay the money, you can approach them immediately. Arrange a deadline for the owner to return the money if the order does not specify a particular date.

What happens after the court hearing?

A copy of the Court Order stating the amount of bond money to be returned to you, will be sent to you and the owner. If the bond was lodged correctly, the order will also be sent to the financial institution or place where the bond is lodged.

When the financial institution holding the bond money receives the Court Order, they will send a cheque for the amount payable to you at the address on the court application form. Alternatively, you can take your copy of the Court Order to the place where the bond is being held and ask for immediate payment.

If the owner doesn’t return the bond money, you will need to make an applicaton under the Civil Judgments Enforcement Act 2004 (WA). See chapter 6.03 Going to Court for more information.

The owner can take the same action against you if the court orders that you owe the owner more than the bond money.

Contact Tenants Advice Service for more information.
List of Tenants’ Rights Manual chapters referred to in this info sheet:

  • The Security Bond
  • Applying to the Magistrates Court for a Bond Disposal Order
  • Preparing for Court
  • Going to Court


SAMPLE FORMS ATTACHED:

Tenants have a right to quiet enjoyment and reasonable peace, comfort and privacy of the property (Residential Tenancies Act WA (1987), section 44).

The owner cannot write anything into the tenancy agreement to change or remove this right.

This means that the tenant is entitled to enjoy the premises without undue interference by the owner. Unannounced visits by an owner/agent or anyone acting on their instructions, (like a tradesperson) are not permitted unless you receive a reasonable amount of notice beforehand.

Some interruptions to your reasonable privacy may be able to be stopped by applying to the Magistrates Court for an order restricting the owner’s right of entry (see section in this chapter on “What can I do if owner/agent interferes with my privacy”?).

Owner’s right of entry

Under Section 46 of the Residential Tenancies Act, the owner/agent has the right to enter the property after giving notice to the tenant stating why and when they intend to enter the property.

The owner/agent is entitled to enter the premises for bona fide (genuine) reasons, taking into consideration the tenant’s right to reasonable privacy and quiet enjoyment.

The owner/agent may only enter the premises without advance notice in cases of emergency (s.46(1)(a)) or if the tenant agrees (consents) at the time of or immediately prior to them entering (s.46(1)(h)).

The tenant does not have to give their consent if the owner/agent arrives unannounced and wants to enter. Likewise if the owner/agent phones the tenant immediately before turning up, the tenant is still not obliged to agree to this visit.

The owner/agent is allowed to hold a key to the premises.

Advance notice of an intended visit or inspection is usually given to the tenant in written form, either as a letter or a Form 19: Notice of Intended Inspection. This form is available to download from the TAS website (www.taswa.org).

It is not appropriate for a written message to be placed on your doorstep as this has meant that the owner/agent has already entered the premises (which includes front and back yards).

Advance notice does not always have to be in writing and can be given verbally to the tenant in some cases.

How much notice does the agent/owner have to give?

The Residential Tenancies Act (s.82) provides scope for the owner to “contract out” of the provisions relating to their right of entry in terms of how much notice they are required to give to the tenant (s.46).

Check the tenancy agreement to make sure the owner has not contracted out of this section. See The Tenancy Agreement for more information.

Otherwise, if the owner/agent has not contracted out of Section 46, the owner/agent must observe the tenant’s right to reasonable peace, comfort and privacy in their use of the premises.

The owner may only enter the premises in any case of emergency, if the tenant allows them to, or they satisfy one of the following requirements (s. 46):

  • 1. For the purpose of inspecting the premises or any other purpose: at least 7 days but no more than 14 days written notice in advance should be given. This notice should be in writing and specify the day at which the inspection will be done. The inspection should be done at a reasonable hour.
  • 2. To carry out or inspect NECESSARY repairs or maintenance: at least 72 hours notice should be given. The owner/agent or tradesperson may only enter at a reasonable hour. This does not include general renovations; only necessary repairs or maintenance.
  • 3. To show prospective tenants through: in the last 21 days of your tenancy providing they come at a reasonable hour, after having given you reasonable notice and only a reasonable number of times.
  • 4. To show prospective purchasers through: providing they come at a reasonable hour, after having given you reasonable notice and only a reasonable number of times. A phone call from the owner/agent telling the tenant they are on their way may or may not be considered ‘reasonable’ notice, depending on the agreement the tenant may have about this with the owner.
  • 5. To collect rent: where rent is paid at least on a weekly basis IF you and the owner/agent have agreed rent will be collected at the premises, providing they come at a reasonable hour.
  • 6. To inspect the property while collecting rent: BUT not more than once every 4 weeks.

The owner/agent must give the tenant notice BEFORE they enter the property.

Coming at a reasonable time

The owner/agent does not require your consent to enter the property if they have given you the correct notice. However, they do have to arrange to come at a reasonable hour.

If you have been given written notice check the notice to see if the time is specified and if it is reasonable.

What is “reasonable notice”?

The Residential Tenancies Act does not provide a definition of “reasonable”. As it is a general term it is open to interpretation and negotiation.

This means the tenant can specify what they consider to be reasonable given their circumstances and day to day commitments, especially if the owner is intending to enter the property repeatedly to bring in prospective tenants or purchasers.

If there is a problem with the owner/agent not respecting the tenant’s right to quiet enjoyment; TAS suggests that the tenant write to the owner/agent outlining what hours are convenient and on which days, along with any times which are always out of the question, and any other special needs they may have.

Send a copy of the letter to the owner, and if relevant the selling or re‐letting agent, and always keep a copy of any letter you write for your own records.

For further information, see Writing a Letter to the Owner/Agent.

Let the owner/agent know in writing how much notice you consider to be reasonable.

Do I have to be there for the owner/agent’s visits?

NO! There is no requirement that the tenant must be present when an inspection is carried out.

However, the owner cannot stop you from being present; you cannot be required to leave the premises during any inspection or “home open”, although you may agree to do so.

If you cannot be present at the time arranged for the owner/agent to enter the property then you might like to get a friend or relative to be there instead.

Do I have to pay for inspections?

NO. Section 27 of the Residential Tenancies Act prohibits any charges other than rent, bond and an option fee. However, sometimes agents/owners will try to charge a tenant for a “re‐inspection” or “final inspection” fee.

This is most commonly done when the tenant has breached the tenancy or has terminated the tenancy earlier than expected (usually under a fixed term agreement).

As a general rule, there is no legal basis for the charging of such fees. However, if the agent/owner can show that they have incurred additional expenses or costs as a direct result of you breaching the tenancy agreement, then they may be entitled to claim such costs back from you.

For example, the owner/agent may try to charge a re‐inspection fee because they had to come and inspect to make sure you had fixed up whatever the alleged breach was.

On the other hand, being charged a final inspection fee has no legal basis as an inspection is normally carried out at the end of a tenancy anyway.

If you are being charged a re‐inspection fee, you should seek advice on your individual situation (see Community Contacts).

For example, you may be able to dispute the charge if you do not agree that you were in breach in the first place, or that the breach was minor and did not justify the agent coming back to re‐inspect.

If you feel a re‐inspection charge is unfair you should write to the owner/agent and explain why and ask them to reconsider the charge. See chapter 3.13 Writing a Letter to the Owner/Agent.

When the rented premises are “For Sale” through multi-listing

Sometimes when a property is on the market to be sold it will be “multi-listed”.

This means any estate agent can show prospective buyers through the house. Any agent who wants to show people through the house must give you reasonable notice of the inspection.

They are not permitted to leave a key anywhere on the premises so that any agent can enter at any time. All agents must give you notice every time they want to come through the house.

Even if the property is in the hands of only one agent, the tenant must receive notice of every intended inspection by a prospective buyer.

The owner/agent cannot make the tenant leave the premises during a “home open” or any other inspection but they are allowed to enter the property without the tenant being there if the correct notice of entry has been given to the tenant.

The tenant does not have to leave the premises during a ‘home open’ or any other inspection.

OWNER OR AGENT?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act (1987).

If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

Changing the locks

Changing the locks may seem like a tempting solution to the problem of inspections without any or unreasonable notice.

However, section 45 of the Residential Tenancies Act only allows for a party to change the locks if they have the consent of the other party. An owner/agent may also be able to change the locks if they have authorisation in the form of a Property (Seizure and Delivery) Order from the Magistrates Court. (Also see Locks and Security).

They may also be able to intervene to stop the owner/agent from locking you out.

If the owner/agent has changed the locks during the term of the tenancy agreement without the tenant’s consent, or without an Order from the Magistrates Court, the tenant is still entitled to possession of the property. The tenant is within their rights to re‐enter the property and/or get a locksmith to cut a key to the lock.
Anyone who unlawfully changes the locks without the other person’s consent may be fined up to $4000.

The cost of the re‐entering may be claimed back under section 15 of the Residential Tenancies Act, which provides for the tenant to claim for any loss (other than personal injury) or expense incurred due to a breach of the Act by the owner.

See Compensation for Loss Incurred Due To A Breach By The Owner for more information.

Neither the tenant nor the owner/agent may change the locks without the other’s consent or an order from the Magistrates Court.

What can I do if the owner/agent interferes with my privacy?

If the owner/agent enters the property without giving the required notice, OR enters so often that the tenant’s quiet enjoyment of the premises is being affected, there are a number of options:

  • 1. You may inform the owner/agent that you regard your privacy as having been violated and request the owner/agent to behave more appropriately in future by giving the notice required under Section 46 of the Residential Tenancies Act. You can advise that a Performance Order may be sought from the Magistrates Court if the owner/agent does not observe your right to quiet enjoyment. Make this request in writing and keep a copy for your records. See chapter 3.13 Writing a Letter to the Owner/Agent for more information.
  • 2. If the property is managed by an agent, you may request a meeting with the Principal of the real estate agency and discuss the problem with her/him. Be clear about how much notice you require before each entry, what notice you are entitled to under the Residential Tenancies Act, and what times you consider reasonable. If you come to some agreement, write down what you agree to and both sign it.
  • 3. The option of serving written notices as outlined above will provide you with evidence that the owner/agent has been notified that you consider they have interfered with your privacy. You do not have to take these steps, you can apply straight to Court if you choose to, although the Court should generally be an avenue of last resort. For more information in applying and appearing in Court see Preparing for Court and Going to Court.
  • 4. You may serve a Notice of Breach of Agreement by Owner (Form 20A) on the owner/agent. This is a formal notice which notifies the owner/agent that they have breached the terms of the tenancy agreement or the Residential Tenancies Act and that they must remedy the breach as soon as possible within 14 days. Keep a copy of this notice for yourself as you will require it for evidence. The notice may be a letter or a standard form available from the State Law Publisher (Ph: 9426 0000), Department of Commerce website (www.commerce.wa.gov.au) and some newsagencies. On the breach notice you should state that the owner has breached the owner’s right of entry requirements under the Residential Tenancies Act (Section 46) or your quiet enjoyment (Section 44) and give details of the breach. This step is optional, and you do not have to do this before taking the Court action referred to below. See  When the Owner is in Breach of the Agreement for more information.
  • 5. You can also apply for a Performance Order from the Magistrates Court nearest the premises you are renting, requiring the owner/agent to perform in accordance with the Residential Tenancies Act. See Seeking a Performance Order from the Magistrates Court for more information.
  • 6. You may also apply to the Magistrates Court to have the fixed term tenancy agreement terminated on the grounds that the owner has breached the agreement (s. 75). You must be able to convince the Magistrate hearing the case that the breach of the agreement is serious enough to warrant terminating the contract. See Ending the Tenancy When the Owner Breaches the Agreement for more information.
  • 7. See also the chapter on Rent, Rent Increases and Rent Reductions for information on the possibility of a rent reduction.

What about noisy neighbours?

Tenants sometimes call TAS’ advice line when they’re having a problem with a neighbour. TAS can only offer advice and information when the owner/agent can somehow be held responsible under the Residential Tenancies Act.

For example, the owner can be held accountable if you and your neighbour share the same owner. In this situation, the owner must take all reasonable steps to make sure that their other tenants do not interfere with your peace, comfort or privacy.

This is useful for tenants in duplexes, flats and Department of Housing accommodation where there is the same owner for a number of properties. If the owner does not take all reasonable steps to perform this obligation, you can apply for a performance order through the Magistrates Court to terminate the agreement.

See Seeking a Performance Order from the Magistrates Court for more information.

Neighbourhood disputes about nuisance, noise and/or animals are generally matters for the police or your Local Council. But before going to these authorities, make sure to try to resolve the issue by talking to your neighbour or by seeking the help of an independent mediator.

If possible, try to approach the neighbours first to sort out any noise or nuisance problems.

What is noise?

Noise is a subjective term – what one person thinks is noise, another may consider music! Basically, noise is any unwanted sound.

Keep in mind that in medium to high density housing some noise disturbance from other residents is normal, especially where a common wall is shared between residents.

If the neighbours are making too much noise, they may be in breach of noise pollution regulations, for example, if they use power tools at night or early in the morning.

Contact the Environmental Health Officer at your Local Council to check what noise restrictions apply in your area.

Local Government Authorities can also do noise readings. If the noise level is over the limit and interferes with another person, the Council can take action.

This applies to both residential and commercial noise, for example, loud music or televisions, machinery, air conditioners, pool pumps, construction noise, regular loud parties.

There are also strict rules that apply to the licences of nightclubs and hotels about the amount of noise that can be made in residential areas.

What about noisy dogs?

According to the Dog Act (1976), you are responsible for ensuring that your dog is not a “public nuisance” by excessive barking.

There are fines for allowing your dog to create a public nuisance. Contact your Local Council’s Environmental Health Officer for more information.

 

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, Tenants Advice Service claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

What is a fixed term tenancy?

A fixed term tenancy is an agreement that is for a fixed time (such as 6 or 12 months). The agreement has a definite start and end (expiry) date.

A fixed term tenancy agreement is usually written. Rent may be payable weekly, fortnightly, monthly or any other period agreed by the owner and tenant.

When does a fixed term tenancy end?

The agreement ends on the date written in the tenancy agreement. The owner/agent does not have to give notice if they want you to move when the agreement expires. You also do not have to give notice to end the tenancy if you move out on the day the agreement expires (s.68 (3) Residential Tenancies Act 1987(WA)).

It is always a good idea to talk with the owner/agent before the expiry date to be clear about whether your tenancy will end or continue and to help avoid any confusion or disagreements. You should leave a forwarding address when you vacate your tenancy, otherwise you could be fined (s. 53(3): Penalty $1000).

Can I stay in the premises after the agreement ends?

You can continue to rent the premises after your fixed term tenancy expires if you and the owner/agent agree, or the owner/agent does not take the correct action to make you move out. Depending on the agreement between you and the owner, you may continue in the tenancy as a fixed term tenant or become a periodic tenant.

You may have to sign another tenancy agreement if you want to continue renting the same premises. Be sure you agree to all the terms in the new tenancy agreement before signing it, and add any new conditions you want to be included. See chapter 2.08 The Tenancy Agreement for more information.

If the owner/agent does not agree to you staying in the premises and you do not move out, they can apply to court to evict you. The owner/agent must make the application to the court within 30 days. See chapter 4.07 Evictions for more information.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice. The owner can not force you to move out without a court order. Penalty $4000.

Can the owner end my fixed term agreement before the expiry date?

The owner/agent can only end a fixed term agreement before the expiry date if:

  • You and the owner agree
  • You and the owner can end the agreement at any time if you both agree. The owner can not make you end the agreement early.

If the owner/agent wants you to move out before your agreement expires, you can ask the owner to compensate you for the reasonable costs you will incur in moving out early (such as electricity, gas and telephone re-connection fees and removal costs).

If you want to move out before the agreement expires, the owner may ask you to pay the reasonable costs they will incur as a result (such as advertising and rent until new tenants are found). Make sure you get any agreement in writing.

You breach the agreement

The owner/agent has some options if you have breached your tenancy agreement by not complying with any of the terms or conditions of your tenancy agreement. They may give you a Breach Notice stating a time (not less than 14 days) to fix the breach.

This breach notice can be on a standard form such as a Form 20: Notice of Breach of Agreement (by tenant) or a Form 21: Notice for Non-Payment of Rent or it can be just a letter, but it must be in writing if the owner wants to take any further action against you.

The breach notice must give you details of how the owner claims you are in breach of your agreement. See chapter 3.08 When the Tenant is in Breach of the Agreement for more information. A breach notice must give you at least 14 days to fix the problem.

If you do not fix the breach in the time given in the breach notice (no less than 14 days), the owner/agent may then give you a Notice of Termination.

NOTE: If you are in rent arrears, the owner/agent has the choice of whether to first give you a Breach Notice followed by a Notice of Termination, or to Tenants Advice Service – Tenants’ Rights Manual July 2009 4.02 page 3 immediately issue with you a Notice of Termination. See chapter 3.02 Rent Arrears for more information.

There are three different Notices of Termination. Samples of each form/notice are attached to the end of this chapter.

  • Form 1A Notice of Termination for Non-Payment of Rent

The owner/agent can give you a Form 1A if you are in rent arrears and were given a breach notice but still didn’t pay the rent owing in the given time (s.62(4)(a)). Paying rent after the Form 1A notice has been issued doesn’t stop the owner from continuing with their action of going to court and seeking an eviction order (s. 62(4)(b)). See chapter 3.02 Rent Arrears for more information.

  • Form 1B Notice of Termination for Non-Payment of Rent–

The owner/agent can choose to give you a Form 1B immediately if your rent is in arrears without first giving you a breach notice. If you do not pay the rent, or move out, within the time stated on the form, a court hearing may be requested by the owner to order you to pay the rent owing and terminate your tenancy.

The court hearing will not take place until 21 days after the notice was given (s. 62(5)(c)). When using the Form 1B the owner/agent must stop their action of going to court if you pay the rent owing at any time up to one day before the day of the court hearing (s.62(5)(b)).

  • Form 1C Notice of Termination

The Form 1C can be given if there are other breaches apart from rent arrears. For example, if you have been accused of not keeping the place clean, or of causing a nuisance to the neighbours (see chapter 3.08 When the Tenant is in Breach of the Agreement).

With the Form 1C, the owner/agent must fill out the section of the form stating the grounds for terminating the tenancy according to the relevant section of the Residential Tenancies Act 1987 (WA). A Notice of Termination will tell you that you have to move out, but this does not necessarily end the tenancy agreement. The Notice of Termination is not an Eviction Order. Tenants Advice Service – Tenants’ Rights Manual July 2009 4.02 page 4

The premises are destroyed or taken over

The owner/agent can end the tenancy by giving you 7 days notice if the property is destroyed (eg. by a cyclone or fire), is rendered uninhabitable (eg. is condemned), or taken over by any authority by a compulsory process (eg. the state government resuming the land) other than because of a breach by the owner (s 69.). In this situation you must be given a Form 1C Notice of Termination with the correct part filled in.

The tenancy agreement should not be terminated using the above process if the property can not be lived in because of a breach by the owner (eg. not doing necessary repairs). The owner should take immediate steps to fix the property or seek to end the tenancy with your approval. In this situation you can ask the owner to compensate you. See chapter 3.12 Compensation for Loss Incurred due to a Breach by the Owner for more information.

You cause serious damage or injury

The owner/agent may immediately apply to court for your tenancy to be ended and to take back possession of the premises if you have, or are likely to, intentionally or recklessly cause or permit serious damage to the rented premises or injury to the owner, agent, neighbours or their guests (s 73). An order given under this section takes effect immediately.

The owner will suffer undue hardship

The owner may apply to court for your tenancy to end on the grounds that they would suffer hardship if they had to terminate the tenancy under any other section of the Residential Tenancies Act 1987 (WA) (s. 74).

If the court gives the owner the order to end the tenancy, the court can decide when the tenancy is to end and order compensation to you for any loss caused by the tenancy being ended (s.74 (2)(b)).

It is important you go to court to discuss your situation if the owner makes this type of application. The Residential Tenancies Act 1987 (WA) has no provision allowing the tenant to terminate the tenancy due to hardship. Contact Tenants Advice Service for more information.

You abandon the premises

If the owner/agent believes you have abandoned the premises they may seek an order from the court declaring that the premises have been abandoned (s 77).

To avoid this happening it is important that you tell the owner/agent if you are going away for a holiday or other circumstances which might make the place look abandoned. See chapter 4.06 Abandoned Premises and Goods for more information.

Can I end my fixed term tenancy before the expiry date?

You can only end a fixed term agreement before the expiry date if:

  • You and the owner agree

You and the owner/agent can end the tenancy at any time if you both agree, but any agreement to terminate must be in writing (s. 60(1)(g)).

Some owners/agents are willing to come to some arrangement for you to break the contract early. However, this can be expensive and can involve you being liable to pay the owner for all reasonable loss they will suffer (such as having to pay for advertising costs).

You will probably also be liable for rent until the end of the agreement or until new tenants are found, and for the maintenance of the premises (such as lawn mowing). Make sure you understand all the costs you will be liable for.

The details of the arrangement should be in writing. For example, that the owner/agent agrees to take all reasonable steps to re-let the premises and you agree to pay for advertising. It can be a good idea to specify where to advertise, the size of the advertisement and the total number of advertisements as costs can vary considerably.

Beware of other losses that the owner/agent may try to claim from you, such as a “break of lease” fee, a “final inspection” fee or a “re-inspection” fee. If you have any concerns about the fairness of the losses the owner is claiming as a result of your terminating the agreement, you should seek advice (see chapter 1.12 Community Contacts).

The property is destroyed or taken over

You can end the tenancy by giving the owner/agent 2 days notice if the property is destroyed (eg. by a cyclone or fire), is rendered uninhabitable (eg. is condemned), or taken over by any authority by compulsory (eg. the state government resuming the land) (s. 69).

You must give the reason you are ending the tenancy, and it cannot be caused by a breach of the agreement. Get more advice before giving notice if you think this situation applies to you (see chapter 1.12 Community Contacts).

The owner is in serious breach of the agreement

If the property can not be lived in because of a breach by the owner (eg. not doing necessary repairs), you may apply to court for the agreement to be ended due to a breach by the owner. In considering whether to give you the order, the court must be satisfied that the breach is serious enough to justify ending your tenancy. See chapter 4.04 Ending the Tenancy when the Owner Breaches the Agreement for more information.

It is important that you keep any letters or other evidence to show the court the seriousness of the breach. You can also call witnesses to support your application. See chapter 6.02 Preparing for Court for more information.

Tenants Advice Service – Tenants’ Rights Manual July 2009 4.02 page 5 Tenants Advice Service – Tenants’ Rights Manual July 2009 4.02 page 6 You may also ask the court to order the owner to pay you compensation for any loss you have incurred due to the owner’s breach and for having to end the tenancy early. See chapter 3.12 Compensation for loss incurred due to a breach by the owner for more information.

What if I have to end my agreement early but the owner won’t agree?

This is a problem! In some situations (for example: job transfer, offer of a Department of Housing (DH) place, domestic violence) you may need to move out before the end of your tenancy. If this is the case you will need to consider your options carefully and weigh up the consequences. See chapter 1.12 Community Contacts for agencies that may be able to give advice and/or assistance on negotiating with the owner/agent.

You do not have the legal right to end your fixed term tenancy early without the owner’s/agent’s permission or an order from the court. Your tenancy agreement is a contract which is legally binding. You can only ask the court to end the tenancy if the owner is in serious breach (see above).

You can ask DH to defer the offer of a place until your fixed term tenancy is due to end if the owner/agent won’t agree for your agreement to end early. Contact DH for more information about their “Allocations Policy”.

Move out and be liable for costs

If the owner/agent won’t agree that you can end your agreement early and you move out anyway (s.60 (1)(f)). This is called “abandonment”. You will be liable for the costs of breaking your tenancy contract (s. 78).

As discussed above, costs associated with breaking a tenancy agreement can be expensive. Sub-let the premises Sub-letting the premises when you have moved out means that you let another person take over your tenancy and you assume the role of the owner (eg, you collect rent off tenants to then give to the agent/owner).

Even though you may have a tenancy agreement with the sub-tenant, you are still legally liable for the terms of your tenancy agreement with the owner. You may only sub-let if your tenancy agreement with the owner allows for this or you have asked the owner/agent for permission to sub-let and they have agreed in writing.

The owner/agent cannot unreasonably refuse permission for you to sub-let if your tenancy agreement has a clause allowing you to sub-let. Sub-letting may not be the best option. For example, you are liable for any costs the sub-tenant may incur (such as rent arrears, damage to premises, etc. Tenants Advice Service – Tenants’ Rights Manual July 2009 4.02 page 7

What if the owner/agent agrees that I can end my agreement early but doesn’t find new tenants?

It is important that you and the owner/agent are clear about what is involved with you breaking your agreement and what steps the owner/agent agrees to take for new tenants to be found (see the previous section “Can I end my fixed term tenancy before the expiry date?”).

If the owner/agent agrees you may break your agreement but does not take reasonable steps to find new tenants, you may be able to argue that the owner has failed to mitigate (minimise the costs involved in you breaking the contract) and reduce any claim of costs by the owner/agent. For more information see chapter 3.11 Duty to Mitigate Loss. List of Tenants’ Rights Manual chapters referred to in this info sheet:

SAMPLE FORMS ATTACHED TO THE END OF THIS CHAPTER:

What is a Periodic Tenancy?

A periodic tenancy is an agreement that runs for an indefinite length of time; there is no set finishing date.

A periodic tenancy can be written or verbal. Rent may be payable weekly, fortnightly, monthly or any other period agreed by you and the owner. See chapter 2.08 The Tenancy Agreement for more information.

When can a Periodic Tenancy end?

A periodic tenancy may end if:

  • You and the owner/agent agree (in writing)
  • After you or the owner/agent give the correct notice in writing; or
  • An order is made by the court.

How can I end my Periodic Tenancy?
You can end your periodic tenancy at any time after giving the owner the correct notice. The notice you give must:

  • Be in writing
  • State the address of the rented premises
  • State the day (date) you will hand back vacant possession (give the premises back to the owner)
  • Include your name, signature and date.

The written notice can be either a letter or a Form 22: Notice by tenant of Termination. The Form 22 can also be referred to as an example of what to include in your written letter.

You do not have to give a reason for ending your tenancy. Keep a copy of the letter or the Form 22 that you give to the owner/agent in case there is any dispute.

You should leave a forwarding address when you vacate your tenancy, otherwise you could be fined (s.53: Penalty $1000). The forwarding address that you give to the owner/agent need not be the address of your new residence. It may be a PO Box or care of (c/-) someone you can rely to pass mail onto you.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

If you decide to move out for no particular reason

You must give the owner/agent written notice of not less than 21 days (s.68 Residential Tenancies Act 1987 (WA)).

If the property is destroyed or taken over

You can end the tenancy by giving the owner/agent 2 days notice if the property is destroyed (eg. by a cyclone or fire), is rendered uninhabitable (eg. is condemned), or taken over by any authority by a compulsory process (eg. the state government resuming the land) (section 69). This is called termination where the agreement is frustrated.

You must give the reason you are ending the tenancy. You may need evidence to prove the premises are uninhabitable (for example, a report by a structural engineer or local council environmental health officer).

Get more advice if you think this situation applies to you (see chapter 1.12 Community Contacts). The agreement should not be terminated using the above process (s.69) if the property can not be lived in because of a breach by the owner (eg. not doing necessary repairs).

Instead, you may choose to go to court for the agreement to be ended and to claim compensation from the owner. See chapters 3.09 When the Owner is in Breach of the Agreement, 3.10 Requesting that the Owner Remedy a Breach of Agreement and 3.12 Compensation for Loss Incurred Due to a Breach by the Owner for more information.

If you and the owner agree

You and the owner/agent can end the periodic tenancy at any time if you both agree (s.60 (1)(g)). The details of your agreement must be in writing.

OWNER OR AGENT?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act 1987 (WA).

If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

How can an owner end my Periodic Tenancy?

An owner can end your periodic tenancy at any time after giving you the correct notice. The notice must be in writing and in the correct Notice of Termination form as required by the Residential Tenancies Act 1987 (WA). An exception to this is where the owner/agent and you have both agreed to end the tenancy, but this agreement must be in writing.

There are three different Notice of Termination forms, which are sometimes printed on different coloured paper:

Which notice the owner/agent gives you will depend on the reason the owner/agent is seeking to terminate your tenancy. Each form must be signed by the owner/agent and filled in correctly for it to be legal (s.61). Samples of Form 1A, 1B and 1C Above.

How much notice does the owner have to give me?

The amount of notice the owner/agent must give you differs depending on the reason the owner/agent is seeking to terminate your tenancy.

If the premises are sold

The owner/agent must give you at least 30 days notice (s 63.) if the rented property is sold and it is a condition of sale that the property be provided vacant to the new owner. In this situation you must be given a Form 1C: Notice of Termination with the correct part filled in.

If the premises are destroyed or taken over

The owner/agent can end the tenancy by giving you 7 days notice if the property is destroyed (eg. by a cyclone or fire), is rendered uninhabitable (eg. is condemned), or taken over by any authority by a compulsory process (eg. the state government resuming the land) (section 69).

In this situation you must be given a Form 1C: Notice of Termination with the correct part filled in.

The owner must fix the property or seek to end the tenancy with your agreement if the property can not be lived in because of a breach by the owner (eg. not doing necessary repairs).

In this situation you can ask the owner to compensate you. See chapter 3.12 Compensation for Loss Incurred due to a Breach by the Owner for more information.

If the tenant and owner agree

You and the owner/agent can end the periodic tenancy at any time if you both agree (s 60. (1)(g)). The details of your agreement must be in writing, it does not have to be on a special form. The owner/agent can not end your tenancy in this way unless you give your consent.

If the tenant breaches the agreement

The owner/agent may give you a breach notice giving you time to fix a breach of your agreement (rent arrears or other breach). The breach notice does not have to be on a special form, it may be a letter, but it does have to be in writing.

The owner/agent may give you a Form 1C Notice of Termination if you do not fix the breach in the time given in the breach notice (for example not less than 14 days). The Notice of Termination must be in the right form. See chapter 3.08 When the Tenant is in Breach of the Agreement for more information.

If the breach is for rent arrears the owner/agent must follow a breach notice with a Form 1A Notice of Termination for Non-Payment of Rent.

The owner/agent may decide not to give you a breach notice and to give you a Notice of Termination immediately you are in rent arrears. In this situation you must be given a Form 1B Notice of Termination for Non-Payment of Rent. See chapter 3.02 Rent Arrears for more information about the different actions the owner/agent may take if you are in rent arrears.

For no particular reason

The owner/agent can end your tenancy for no reason by giving you not less than 60 days notice (s 64.). In this situation you must be given a Form 1C Notice of Termination with the correct part filled in.

Are there any rules about how Notices should be given?

s.85 Residential Tenancies Act 1987 (WA) outlines the law regarding service of notices. A notice may be given personally or sent by ordinary post (not certified mail) to the owner/agent’s or tenants last known address. The address can be the last known place of residence, employment or business.

Where the notice is to the owner it can be given to the owner, the agent of the owner, any person who seems over the age of 16 who seems to be living with the owner, or to the person who ordinarily receives the rent under the agreement (eg. a caretaker). Remember to state the name of the owner on the notice, not the agent’s name, and send it to care of (c/-) the agent.

Where the notice is to the tenant it can be given to the tenant, any person who seems over the age of 16 who seems to be living with the tenant, or the person who ordinarily pays the rent under the agreement.

If the owners or tenants address is unknown, a notice is deemed to have been given if copy of the notice is published in a daily newspaper that is distributed throughout the state (eg. The West Australian).

What if I don’t move out after the owner gives me a Notice of Termination?

Even though a Notice of Termination will tell you that you have to move out by a certain date, the Notice is NOT an Eviction Order. It is illegal for any owner to evict a tenant without a Court Order – Penalty $4000.

If you do not move out after you are given a Notice of Termination the owner/agent can apply to court for your tenancy to be ended and to be given permission to take back possession of the premises (eviction order). The owner/ agent must apply to court within 30 days of the termination date on the notice or start their action again.

You may continue to live in the premises until the owner’s/agent’s application is heard by the court. The owner/agent can never force you to move out without a court order (s. 80: Penalty $4000).

If you receive a Notice of Termination, you can stay until the owner applies to court and a decision is made about your situation.

How can I stop the owner from evicting me?

The court will let you know about the owner’s application and the time and date of the hearing. You should go to court and tell your side of the story to the court and explain why you think your tenancy should not be terminated. See chapters 6.02 Preparing for Court and 6.03 Going to Court for more information.

The owner/agent may not be successful in getting an eviction order if the court finds:

  • You have not breached your agreement
  • You were given a Form 1B Notice of Termination for Non-Payment of Rent but paid the owner/agent the rent owing and court application fee at least one day before the hearing (see chapter 3.02 Rent Arrears for more information)
  • You have taken steps and remedied the breach (s.71 (3)(b)(ii))
  • In all the circumstances the breach doesn’t justify terminating your tenancy (s.71 (2)(b))
  • The owner/agent hasn’t taken the correct steps for your tenancy to be terminated; and/or
  • The owner/agent is trying to evict you in retaliation for you taking steps to uphold your rights (s.71 (3)(b)(i))(see the section above).

If the court agrees to give the owner/agent the eviction order it may be made effective for not more than 7 days after the hearing (s.71 (5)). If this would cause you hardship you can ask the court to suspend the eviction order for up to 30 days (s71 (3)). See chapter 4.07 Evictions for more information.

Retaliatory Eviction

If you believe that the owner is wholly or partially motivated to terminate your tenancy in response to you taking steps to enforce your rights as a tenant (such as by complaining to a public authority), then you may have grounds to dispute the action in court. This is commonly called a ‘retaliatory eviction’ and is prohibited by the Act, regardless of the grounds claimed by the owner to justify the eviction (s 71(3)(b)(i))

Can I become a Periodic Tenant after my Fixed Term Tenancy ends?

Some tenancy agreements state that at the end of the fixed term you can remain as a periodic tenant. Sometimes the agreement states you can stay on as a periodic tenant but that the owner’s permission is required.

You should negotiate another agreement (periodic or fixed term) before the end of your agreement. If the owner/agent continues to accept rent after the end of the fixed term tenancy, but nothing has actually been agreed about the terms under which the tenancy will continue, you may argue that you have been accepted as a periodic tenant.

In this situation all the other conditions of your agreement would continue (s. 60 (2)). If you have remained in the property after the agreement has expired, the owner has 30 days to apply to court for an order to terminate the tenancy (s. 72 (1)). See chapter 4.02 Ending a Fixed Term Tenancy for more information.

Contact Tenants Advice Service for more information if your situation is not clear.
List of Tenants’ Rights Manual chapters referred to in this info sheet:

SAMPLE FORMS ATTACHED TO THE END OF THIS CHAPTER:

DISCLAIMER: This is a sample letter only. You should write your own letter telling your own story in your own words (See Chapter 3.13 Writing a Letter to the Owner/Agent for information on writing your own letter).

SAMPLE LETTER

Ms IM Wright
Wright Real Estate
22 Smith Street
Perth WA 6000
14 November 2008

Dear Ms Wright

Re: 298 Sydney Street, North Perth

As required under the Residential Tenancies Act I am writing to give you 21 days notice that I will be leaving the above premises. I will be moving out of the premises on 8 December 2008. Please contact me prior to the 8 December 2008 to arrange a time to inspect the premises and to organise for the speedy return of my bond money.

My forwarding address will be………………………………………..

Yours sincerely

A Tenant
136 Resident Street
Newtown WA 6666

TENANTS ADVICE SERVICE’
“IMPORTANT INFORMATION FOR TENANTS”:

Even though a Notice of Termination will tell you that you have to move out by a certain date, the Notice is NOT an Eviction Order.

If you receive a Notice of Termination, you can stay until the owner applies to court and a decision is made about your situation. You should go to court and tell your side of the story to the court and explain why you think your tenancy should not be terminated. See chapters 6.02 Preparing for Court and 6.03 Going to Court for more information. Also see chapter 4.07 Evictions for more about eviction orders.

The Notice of Termination is not an Eviction Order. It is illegal for any owner to evict a tenant without a court order – Penalty $4000.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, Tenants Advice Service claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

Altering or Adding to the Premises

Usually you cannot add to, alter or renovate the premises without the owner/agent’s consent. However, sometimes tenancy agreements may contain a clause which specifies that you can affix a fixture or make alterations, renovations or additions to the premises PROVIDING the owner/agent’s consent is obtained first (Residential Tenancies Act, section 47).

Consent cannot be unreasonably withheld. BEWARE: Even If your tenancy agreement allows you to make renovations, alterations or additions, you may have to return the premises to the owner/agent in the same condition it was in at the beginning of the tenancy, unless otherwise agreed.

For example, if the owner/agent gives permission for the walls to be painted in new colours, it is important to find out whether you will be required to re‐paint them (or pay for them to be repainted) back to the original colour when the tenancy agreement ends.

Getting the owner/agent’s consent

If your tenancy agreement has not included a clause regarding additions or alterations, you must notify the owner/agent BEFORE doing any alterations, for example, painting, building, removing, etc. You must seek permission (preferably in writing) from the owner/agent about any changes you would like to do to the property.

If you go ahead and alter the property or remove fixtures from the property without the owner/agent’s consent, the owner/agent may claim that you are in breach of your tenancy agreement and may seek to terminate your agreement. See chapter 3.08 When the Tenant is in Breach of the Agreement for more information.
Keep a record or photograph of the state of the property before and after you do any alterations.

Can I move a fixture?

According to section 47(2) of the Residential Tenancies Act (1987):

  • Any fixtures added by the tenant with the owner’s consent remain the property of the tenant and may be removed by the tenant during the tenancy as long as the removal does not cause irreparable damage to the property; and
  • Where the tenant causes any damage to the premises by removing any fixture, they must notify the owner/agent and, at the option of the owner/agent, repair the damage or pay any cost reasonably incurred by the owner in repairing the damage.

What happens when I vacate the property?

The owner/agent cannot make you leave the addition/alteration to the premises unless otherwise agreed (s. 47(2)(b)). The tenant owns these additions and is entitled to take them when they leave (as long as the property is returned to the owner in the same condition it was in at the beginning of the tenancy, less fair wear and tear).

The owner/agent may offer to pay you for the addition/alteration to be left on the premises. It is wise to get such an agreement in writing before you do this.

Abandoned premises

The premises may be considered abandoned when the tenant leaves the premises and stops paying rent without giving or having been given notice to terminate the agreement.

The owner may apply for an order from the court that the premises are abandoned, however this is optional (Residential Tenancies Act (1987), section 77).

To avoid confusion over whether rented premises are abandoned, it is important that the tenant notifies the owner if they are going to be away from the property for a period of time (for Homeswest tenants they should notify Homeswest if they are going to be away for more than two weeks).

The tenant can still be charged for costs incurred from breaching the tenancy agreement if they abandon the property. Where the tenant under an agreement abandons the premises, the owner is entitled to compensation from the tenant for any loss this causes them, including loss of rent.

The owner has an obligation to take all reasonable steps to keep the costs as low as possible (s. 58 and s. 78). A tenant with a fixed term agreement does not avoid break of lease costs by abandoning the premises.

The tenant may still be liable for all the costs to relet the premises, including advertising costs and break of lease fees (if the premises are rented through a Real Estate Agent), and rent until the agreement expires or new tenants move in.

A tenant under a periodicagreement may be liable for rent in lieu of the required notice period of 21 days. See chapters Ending a Periodic Tenancy and Ending a Fixed Term Tenancy for more information.

Abandoned Goods

Where an agreement is terminated (it may be considered terminated if the tenant abandons the premises under section 60(1)(f) of the Residential Tenancies Act), and goods are left on the premises, the owner/agent may remove and dispose of or destroy the goods (s. 79(1)) if:

  • (a) the goods are perishable foodstuffs, or
  • (b) the estimated value of the goods is less than the total estimated cost of the removal, storage and sale of the goods.

The owner/agent can only start these actions 2 days after the tenancy agreement was terminated.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS disclaims liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

The owner may request a statement from the Commissioner of Fair Trading that it is reasonable to remove and destroy or dispose of particular goods (s. 79(4)).

The owner may dispose of perishable goods after two days; other goods must be stored for 60 days.

Where goods are left on the premises and they are not disposed of under the provisions the owner must store them in a safe place for a period of not less than 60 days, Where the owner has stored the goods s/he must inform the tenant of this within 7 days, either by writing to the tenant at their forwarding address or by putting a notice in a newspaper with daily statewide circulation (s.79(3)).

The tenant may reclaim goods held by the owner within 60 days. However, the tenant must first pay the owner any reasonable cost incurred to remove and store the goods, (s. 79(7)).

The tenant does not have to pay the owner any money owed for any other reason than to reclaim the goods. The former tenant may reclaim abandoned goods after paying the owner the removal and storage costs.

After 60 days the goods may be sold at a public auction. The owner may deduct from the proceeds of the sale any money owed to her/him by the tenant and the cost of removal and storage of the goods.

If there is a surplus of funds the owner MAY pay the surplus into the Rental Accommodation Fund via the Local Court (s. 79(10)). A receipt to this effect is sufficient to discharge the owner from any further liability for the money or the goods. This is optional. The owner is not obliged to pay any surplus funds to the Rental Accommodation Fund or to the owner of the goods.

If the owner refuses to return the goods on payment of the removal and storage costs or if there is any other dispute over abandoned goods the tenant may apply to the Small Disputes Division for a resolution of the problem (s. 79(15)).

This application is similar to an application for a Performance Order under section 15 of the Residential Tenancies Act (1987). See chapter 6.1 Seeking a Performance Order from the Local Court for more information.

The application should be made on a Form 12: General Court Application and under section 79(15) as the Magistrate then has jurisdiction to hear any Tenants Advice Service – Tenants’ Rights Manual January 2004 dispute over abandoned goods and make any relevant order.

For more information about the Form 12, see chapter 6.3 Going to Court. Also see chapter 1.12 Community Contacts for getting assistance with making a court application.

List of Tenants’ Rights Manual chapters referred to in this info sheet:

OWNER OR AGENT?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act (1987). If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

Many tenants rent privately owned properties that are managed by a property manager or real estate agent. In these situations, managers/agents often become the primary contact person for the property.

If you believe that the property manager you are dealing with is not conducting themselves in a professional manner, you can complain (see section on next page).

Even if you have no direct contact with the property owner, it is important that you have a clear understanding of who is the best person to contact in various circumstances.

For example, an owner may arrange for the property manager/agent to collect the rent, but may still wish to deal with other tenancy related matters (such as maintenance and repairs) themselves.

Property Managers, Agents and the Law

How the Residential Tenancies Act (1987) applies to your tenancy depends upon your lease agreement.

If the behaviour of the property manager/agent places them in breach of the terms of your tenancy agreement or the Residential Tenancies Act, you can serve them with a Notice of Breach of Agreement. See The Residential Tenancies Act,The Tenancy Agreement,  When the Owner is in Breach of the Agreement and Requesting that the Owner Remedy a Breach of the Agreement for more information.

Owner or Agent?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act (1987).

If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

What does a Property Manager do?

Duties of a private rental property manager may include:

  • Showing tenants through properties;
  • Assisting with the selection of a tenant;
  • Advertising for tenants;
  • Lodging bond;
  • Collecting rent and issuing receipts;
  • Conducting property inspections;
  • Arranging for repairs and maintenance if necessary (with the approval of the property owner);
  • Forwarding accounts and collecting payments (for example, water consumption costs);
  • Issuing breach or termination notices to the tenant;
  • Arranging court proceedings if the tenant breaches the lease agreement

When you apply for a property through a property manager or real estate agent, you will be required to complete an Application for Tenancy form.

These vary from one company/business to another. See The Application for Tenancy for more information.

Do Property Managers and Agents have to be qualified?

Yes! Property managers and agents must be registered real estate sales representatives and the real estate agency must be licensed.

This licensing and registration system is administered by the Real Estate and Business Agents (REBA) Supervisory Board.

***Check REBA & REIWA websites!!!

REBA is a state government authority responsible for regulating the activities of real estate and business agents and their sales representatives in WA.

Do not confuse REBA with REIWA, which is an industry association for real estate agents in WA.

Property managers and agents are required to complete a property management course and also be registered before working in the industry.

REBA requires aspiring property managers to provide a police clearance and to be of “good character and repute” before obtaining a certificate of registration.

Code of Conduct

REBA’s Code of Conduct for Agents and Sales Representatives provides a detailed explanation of acceptable standards of practice for agents and property managers.

The Code of Conduct states that agents and property managers:

  • Must act fairly and honestly (section 5(1));
  • Must not knowingly mislead or deceive any person in negotiations or transactions (s. 5(2)).
  • Must not engage in “harsh or unconscionable conduct” (s. 5(3)), meaning property managers/agents must behave reasonably and not unfairly in their dealings with tenants.
  • Must not knowingly induce or attempt to induce a person to breach a contract of sale, letting or agency (s. 3(1));
  • Must exercise skill, care and diligence (s. 7).

If you become concerned that the property manager/agent you are dealing with is not conducting themselves according to the Code of Conduct, you may have grounds to lodge a formal complaint to REBA.

It is essential that you are able to prove that your claims are founded in fact. You will need to provide a detailed explanation of what has happened and include all supporting documents, evidence and witness statements with your complaint.

If you do not have any evidence to support your claims and it essentially comes down to your word versus the property manager/agent’s, it may still be worth lodging a complaint as you may be one of several tenants that have had similar dealings with the same manager/agent.

Who do I address the complaint to?

You may choose to first forward a written complaint to the Principal of the real estate agency that has been managing your tenancy. It is important that you include your contact details, the date, the name of the agent, and the address of the property.

It may be useful to include a timeline of events if your complaint has involved several events. You may also wish to request that they send you an acknowledgement or response within a specific period of time (for example, 7 or 14 days). State clearly in the letter what outcome you wish to achieve.

If you would like to pursue a more formal complaint, you may wish to contact the Department of Commerce (DoC) or the Real Estate and Business Agents’ (REBA) Supervisory Board.

Complaints may be received more favourably if you have tried to first resolve the matter with the manager/agent concerned and the Real Estate Agency/Licensee.

Both DoC and REBA have formal complaint forms that may be downloaded from the internet (www.commerce.wa.gov.au; www.reba.wa.gov.au).

Alternatively, you may wish to contact them directly and request that the forms be sent to you. Tenants Advice Service also provides these forms to tenants.

Department of Commerce (DoC)

Street Address 219 St. George’s Terrace, Perth WA 6000

Postal Address Locked Bag 14, Clositers Square WA 6850

Phone Advice Line 1300 30 40 54

Real Estate & Business Agents (REBA) Supervisory Board

Street Address The Forrest Centre, Level 6, 219 St. Georges Terrace, Perth WA 6000

Postal Address Locked Bag 14, Clositers Square WA 6850

Phone Advice Line 1300 30 40 64

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, Tenants AdviceService claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitutefor legal or other professional advice.

Under the Residential Tenancies Act (1987), if you are in rent arrears (behind in rent) the owner/agent can take legal action immediately.

To avoid legal action it is important that you contact the owner/agent to explain your financial situation and what arrangements you will make to pay the arrears.

Get the agreement in writing if the owner/agent agrees to you repaying the arrears by a certain date or by instalment.

The owner may take legal action immediately you are behind in the rent (rent arrears).

Two alternative actions

There are two alternative actions the owner/agent may take against a tenant in rent arrears – see the sections on Option 1 and Option 2 below.

The owner/agent may follow the Option 1 process if they want to end your tenancy, as well as get you to pay monies owing. For Option 2, the owner/agent will want you to pay the monies owing but may not necessarily want to end your tenancy.

Samples of forms have been attached to the end of this chapter.

  • Option 1

WARNING: If you do not pay the rent owing in the breach notice period of the Option 1 process, the owner/agent may take steps to evict you. (See the Option 1 flow chart on the next page).

The Option 1 process is:

  • You fall into rent arrears.
  • The owner/agent may give you a written breach notice immediately your rent is in arrears. The breach notice may be a letter or a Form 21: Breach Notice for Non-Payment of Rent.
  • You must be given not less than 14 days to pay the rent owing.
  • If you pay the rent owing, the owner/agent can not take further action.
  • Under section 62(4) of the Residential Tenancies Act, the owner/agent may give you a Form 1A: Notice of Termination for Non Payment of Rent if you do not pay the rent owing.
  • Even if you pay the rent owing after you have been given the Form 1A, the owner/agent may still apply to court to evict you. Under the Residential Tenancies Act (section 71), the owner must apply to court within 30 days of the expiry of the Form 1A. See Evictions for moreThe Option 1 (Alternative One) process is shown in the flow chart below:

 

Acknowledgment: The Department of Consumer and Employment Protection is acknowledged for providing permission to Tenants Advice Service to reproduce its flow charts as shown in this information sheet.

  • Option 2

Under Option 2, the owner/agent must stop their court action if you pay the rent owing to the owner/agent any time up to one day before a court hearing date (s.62(5)(a)).

You will also need to pay the court application fee if the owner has made an application to court (s.62(5)(b)). See the Option 2 flowchart below.

The Option 2 process is:

  • You fall into rent arrears.
  • The owner/agent may give you a Form 1B: Notice of Termination for Non Payment of Rent immediately your rent is in arrears.
  • The owner can not apply to the court if you pay the rent owing within the seven days of the notice.
  • If you do not pay the rent owing, the owner/agent may apply to court for an order for the rent owing to be paid.
  • The owner may also apply to court for an order to terminate your tenancy and get back possession of the premises. (See Evictions for more information).
  • The court hearing to hear the owner/agent’s application can not be earlier than 21 days from when you were given the Form 1B.
  • The owner/agent’s court application cannot be continued if you pay the owner/agent the rent owing and the cost of the court application up to one day before the court hearing.

The court can not give the owner/agent an order to evict you if you pay the rent owing (and owner/agent’s court application cost) to the owner/agent up to one day before the court hearing.

Acknowledgment: The Department of Consumer and Employment Protection is acknowledged for providing permission to Tenants Advice Service to reproduce its flow charts as shown in this information sheet.

Serving Notices

There are a few things the owner/agent must consider when serving a notice for rent arrears (Form 1A or 1B).

  • 1) The owner/agent may choose to arrange for the notice to be hand delivered to the tenant. The notice cannot be left in the tenant’s letterbox nor can it be hand delivered to a person who ‘appears’ to be a minor (that is, 16 years of age or under).
  • 2) The owner/agent may choose to mail the notice. The time taken to deliver the notice by the standard postal system needs to be taken into consideration before the notice can take effect. The owner/agent needs to allow at least 2 days (if in Perth), or 3 days (in the country). Certified mail is not acceptable.
  • 3) The notice period should not include the day on which the notice is served (the day the tenant receives the notice) or the last day of the notice period.

What should I do if I get a notice about rent arrears from the owner/agent?

  • Check the notice to see which Option the owner\agent is following and how long you have to respond before further action can be taken.

If the notice is a breach notice for the non-payment of rent, this indicates the owner/agent is following Option 1 and will probably give you a Form 1A Notice of Termination if the rent is not paid. If the notice is a Form 1B Notice of Termination this means the owner/agent is following Option 2. For this Option, make sure you pay any monies owing or sort the problem out in time to stop the owner/ agent from taking further action.

  • Check that the owner/agent’s calculations are correct.

Mistakes in rent calculation do happen. It is important to check that the arrears the owner/agent calculates are correct. Compare your rent records to the owner/agent’s calculations. Check your rent receipts. Ask the owner to provide you with a copy of the rent schedule/calendar showing how you are in arrears.

  • Let the owner know straight away if you think you are not in arrears.

If you think the owner/agent’s calculations are wrong, write a letter and explain why. See Writing a Letter to the Owner/Agent for more information. Include a copy of your rent receipts and/or documents that support your calculations. Always keep your original rent receipts.

  • If you are in rent arrears – try and come to an arrangement with the owner/agent.

Explain to the owner/agent why you are in arrears and when you will be able to pay the rent owing. If you can, pay the rent arrears before the owner/agent takes further action. If you can’t, see if the owner/agent is willing to give you extra time to pay the rent owing. Get any agreement
confirmed in writing.

  • Seek financial assistance – a financial counsellor may be able to help.

See Financial Assistance for Tenants for more information.

Do I have to go to court if I pay the rent owing and the owner’s court fee (Option 2)?

Under Option 2, if the owner has applied to court and you have paid the rent and court application fee at least one day before the court hearing, the owner/agent should contact the court to withdraw the application before the court hearing.

You can check with the court to see if the owner/agent has withdrawn the application. If the application has not been withdrawn, you can ask the court to have it withdrawn because you have paid the rent.

However, if the application has not been withdrawn by the owner/agent or you are not able to have it withdrawn, it is important that you go to court on the date of the hearing.

It is important that you go to court (unless the court hearing has been cancelled) to prove you have paid the monies owing so that no further action is taken.

Will the court automatically grant the owner/agent an eviction order if I haven’t paid the rent owing (Options 1 and 2)?

The court may give the owner/agent an Order for Termination (eviction order) if satisfied that:

  • 1) The Form 1A or Form 1B Notice of Termination for Non Payment of Rent was given to the tenant, and that it complied with and was given in accordance with the Residential Tenancies Act (s 71 (2)(a)).
  • 2) The owner/agent has proved that you are in rent arrears, that you didn’t pay within the time allowed and that the rent arrears breach is serious enough to justify termination of the tenancy (s 71 (2)(b)).

This means the owner/agent must give the correct rent arrears notices (Form 1A or Form 1B) and have followed the right process.

You can ask the court to consider the circumstances that you believe don’t justify the tenancy being ended. For example, that you have been living in the premises for a long time and have always paid rent on time before, or that you fell into arrears because you lost your employment.

However, it is not clear which circumstances the court will take into account or on what basis they will consider the termination of the tenancy agreement is not justified. See Going to Court for more information.

The court is likely to give the owner/agent the order if you do not attend the court hearing to present your side of the story.

Rent Receipts

Am I entitled to receipts for rent payments?

The owner/agent must give you a receipt within three days of receiving a rent payment (Residential Tenancies Act WA (1987), s. 33 (1), penalty $1000).

The only time the owner/agent doesn’t have to give you a receipt is if you pay rent directly into an authorised deposit-taking institution, for example a bank or a building society, chosen by the owner (s.33(2)) OR if you are a DH tenant (see Department of Housing Tenants).
The rent receipt must show:

  • the date the payment was made;
  • who paid the rent;
  • the amount paid;
  • the rental period covered by the payment; and
  • the address of the rented property.

Receipts should always be kept as proof of rent paid. This helps avoid any confusion or dispute over rent owing.

Rent Increases

When can the owner increase my rent?

If you are in a periodic tenancy, the owner/agent can only increase the rent IF they have given you 60 days notice in writing AND it has been at least six months since the last increase.

If you are in a fixed term tenancy, the owner/agent can only increase the rent IF there is a specific clause in your tenancy agreement which provides that rent may be increased AND the owner/agent has given you at least 60 days notice in writing AND it has been at least six months since the last increase. Your tenancy agreement may already contain a clause relating to the amount of increase and the date that the rent increase starts from. It is important to check your agreement for such clauses.

Notices of rent increases must:

  • be in writing (either a letter OR a Form 18: Notice to Tenant of Rent Increase Pursuant to Section 30 – a sample Form 18 can be viewed on the TAS website, www.taswa.org);
  • state the amount of the increase; and
  • state the day from which the increase becomes payable (which must be at least 60 days from the day the notice was given).

If your fixed term tenancy is coming to an end and you want to enter into another agreement at the same property, the owner/agent does not need to provide formal or written notice of their intention to increase the rent in the new agreement.

The owner/agent can increase the rent from the date you enter into a new agreement.

Some owner/agents may write to you prior to the end of a fixed term tenancy asking if you want to enter into a new agreement at the same property. They may also provide notice of a rent increase with the new agreement within these letters.

What if you are not given the correct notice?

  • If the owner/agent does not give the correct notice for a rent increase, the rent must stay the same.
  • You can refuse to pay the rent increase until the correct notice is given.
  • You can also refuse if the notice does not include the required information, or the notice is given verbally.
  • The 60 day notice period begins when the correct notice is issued, not from when incorrect notice was given.
  • You do not have to pay the rent increase if the owner/agent has not given the correct notice.

How often can the rent be increased?

The owner/agent can not increase the rent more than once every six months (s.30). This applies even if more people move into the premises.

Is there a limit to how much the rent can be increased?

There are no rent control laws in Western Australia.

This means there is no limit to how much rent can be increased by the owner. However, there are very limited circumstances where you might be able to argue that the rent is excessive. See the section below. Rent Reductions

What can I do if I believe the rent is too high?

Under the Residential Tenancies Act (s.32), you can apply to the Magistrates Court for a rent reduction or to prevent an attempted rent increase in very limited circumstances.

If you have already agreed to the rent increase, you can still apply to the Court.

For your application to be successful you must show that:

  • 1. Since you entered into the tenancy, without any fault on your part, there has been a significant reduction in the chattels provided with the property (for example, furniture or whitegoods) or in the facilities provided (for example, the toilet can’t be used) (s.32(2)(a)); or
  • 2. The owner/agent has applied an excessive rent increase in an attempt to force you to move out (s.32(2)(b)).

The court will consider a number of factors when deciding if the rent increase is excessive (s.32(3)). It is your responsibility to provide this information to the court. These factors include the:

  • General level of rent for similar properties in the area;
  • Estimated value of the property and chattels;
  • General state of repair and condition of the property and chattels;
  • Outgoings to be paid by the owner (eg. rates); and/or
  • Estimated cost of any services provided by the tenant or owner under the agreement.

If you are successful, the court will order that the rent is excessive and may order that from a certain date the rent shall not exceed a set amount.

You should apply to the Magistrates Court as soon as a problem arises because if you are successful, the Court can only backdate the order to the date of your application, not when the changes to the rent or the property occurred (s.32(4)).

However in your application you could also seek compensation for any loss you suffered during the period of time prior to the date of your application IF the owner/agent has breached the tenancy agreement. For example, if the washing machine was broken without any fault on your part, the owner refused to fix it, and you had to pay to use washing facilities elsewhere – see Compensation for Loss Incurred Due to a Breach by the Owner.

(Also see Seeking a Performance Order from the Magistrates’ CourtPreparing for Court and Going to Court for more information).

Are there any other situations where I can get a rent reduction?

If a temporary situation arose in your rented property which has had or could have a negative effect on your use of the property, part of the property, items contained within the property or facilities at the property, you can contact the owner/agent and request a reduction in rent for the period of time the situation lasted or will last. Some examples are:

  • The air conditioner broke down, through no fault of yours, and for 2 months in the summer you couldn’t use it;
  • The owner wishes to sell the property and proposes to have a number of people viewing the property over the next few weeks; and/or
  • When you moved into the property, for the first month the owner stored their own items in the shed and you couldn’t use it.

It is advisable to seek to negotiate a rental reduction by writing to the owner/agent (see Writing a Letter to the Owner/Agent for assistance). Keep a copy of your letter and all letters/correspondence sent to you from the owner/agent.

If, following negotiation, the owner/agent refuses to reduce your rent for the temporary period you could try to seek an order for compensation from the Court. You will need to show that the owner/agent has breached the tenancy agreement and that you have suffered a loss as a result (see above together with the chapters referred to).

OWNER OR AGENT?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act.

If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

Writing to the Owner

If you believe the owner is in breach of the agreement, you can write to the owner stating what you consider the problem to be and what you believe the owner should do.

It is a good idea to refer to any specific section of the Residential Tenancies Act or clause in the tenancy agreement (even if the agreement was verbal) that is being broken. See The Residential Tenancies Act and The Tenancy Agreement for more information.

This step is useful even if you have made repeated verbal requests, because it gives you proof that you have brought the problem to the owner’s attention and tried to resolve the matter.

State clearly to the owner what you want done and when you want it done by.

If you have already spoken to the owner/agent, state in the letter when you have done this and the response you received, and why the response was not good enough.

This may seem like stating the obvious but it is good to have this evidence in writing if you have to take the matter further at a later date. Always keep a copy of the letter. Either post this letter, or hand it to the owner/agent when you see them. Also see chapter 3.13 Writing a Letter to the

Owner/Agent.

Sending a Notice of Breach of Agreement

This step is optional. Sometimes it is appropriate to send a breach notice to the owner/agent with a letter, or instead of a letter.

Your letter can serve as a breach notice, but if you want to be more formal you can send the owner/agent a Form 20A: Notice of Breach of Agreement (by owner).

This is an official notice to the owner telling them they are in breach of the tenancy agreement, what the breach is and that you require the breach to be remedied (fixed).

The form requests that the owner/agent fix the problem within 14 days, but you can reduce the time limit if the problem is urgent or put whatever amount of time you consider to be appropriate.

It is a good idea to send a letter with the breach notice. This allows you to describe the problem in detail (especially if it involves a number of issues).

On the breach notice form 20A state briefly what the breach is and refer to the attached letter.

Getting a work order from Synergy or the Local Council

If the item that needs repairing is something that is covered by Local Council by‐laws, Synergy regulations, Alinta Gas regulations, or building, health and safety laws, you can contact the relevant department and ask an inspector to come out and see the problem.

Each Local Council has a health inspector or an environmental protection officer for these purposes. Synergy and Alinta Gas also have their own safety inspectors.

If the premises do not meet with relevant regulations, the inspector may put a work order on the owner to have the problem fixed, and set a date by which the repairs must be completed.

If the repairs are not done within the time allowed, the Council may state that the premises are uninhabitable. This only happens in extreme circumstances and when the premises are dangerous or a fire hazard. Many councils can be reluctant to do this to a rate payer (the owner), so they will often negotiate more time when necessary.

Be aware that if the power or gas service is in a dangerous state, Synergy or Alinta Gas may disconnect the service. You should also be aware that if the premises are in a dangerous state, you may be required to vacate. You should be compensated for the costs that you may incur as a result of this. See chapter 3.12 Compensation for Loss Incurred due to a Breach by the Owner.

The Residential Parks (Long-stay Tenants) Act 2006 (WA) (“Residential Parks Act”) is legislation that sets out the rights and responsibilities of those that live in caravan parks in Western Australia as their long term residence.

The Act commenced on 3 August 2007. The Residential Parks (Long-stay Tenants) Regulations 1989 (WA) set out rules relating to the Act.

There are very significant differences between the Residential Parks Act and the Residential Tenancies Act 1987 (WA) (‘Residential Tenancies Act’), so it is important to be aware of the Residential Parks Act and how it will affect your tenancy.

Who is not covered under the Residential Parks Act?

Not all people living in caravan parks are covered under the Residential Parks Act (sections 5, 6 & 8). The Residential Parks Act does not apply to:

  • Holiday makers;
  • Employees of the caravan park living on site;
  • Retirement villages;
  • Strata titled caravan parks; or
  • Those who have a fixed term agreement in writing that commenced before 3 August 2007.

What kind of agreement do I have?

It is important to know whether you have:

  • A ‘site-only’ agreement where you have your own relocatable home and rent the site; or
  • An ‘on-site’ agreement where you rent the site and the relocatable home.

In addition to these two types of agreements, your agreement will also be a ‘fixed term’ or ‘periodic’ agreement. For further information regarding these types of agreement, see The Tenancy Agreement.

Am I covered under the Residential Parks Act?

You are covered under the Residential Parks Act if you have:

A periodic agreement (on-site or site-only) for 3 months or more; or

A fixed term agreement (on-site or site-only) that is entered into, renewed or extended after 3 August 2007.

If you are in a fixed term tenancy agreement that was entered into before 3 August 2007 and is in writing then the Residential Tenancies Act will apply to your tenancy agreement until it is terminated or replaced.

The Residential Parks Act will apply in the following scenarios only to the extent it can be applied:

  • A written fixed term agreement that was made before 3 August 2007 and is extended on or after 3 August 2007; or
  • An oral fixed term agreement made before 3 August 2007.

Under the Residential Parks Act, regardless of whether you are on a fixed or periodic agreement, your agreement must be in writing (Residential Parks Act, s 10).

If the park operator will not give you a written agreement, you may apply to the State Administrative Tribunal (‘SAT’) to either terminate the agreement or to determine the terms of the agreement (Residential Parks Act, s 7). For more information on applying to the SAT see The State Administrative Tribunal.

Cooling off period

If you enter into a site-only agreement there is a cooling off period during which you can cancel (rescind) the agreement (Residential Parks Act, s 18). You must rescind the agreement within 5 working days after the date of agreement.

However, if the park operator does not give you the required documents (see the section ‘What should I receive when I enter into an agreement?’) before you enter into the tenancy agreement, you may rescind the agreement within 10 working days after the park operator gives you the required documents.

If you take possession of the premises the cooling off period does not apply.

Ingoing costs

When applying for a tenancy you may be charged an option fee. If your application is successful and you enter a tenancy agreement the option fee must either be refunded or applied towards the rent.

At the beginning of your tenancy you may only be charged:

  • Rent to a maximum of 2 weeks in advance (Residential Parks Act, s 25);
  • A security bond (maximum amount equivalent to 4 weeks rent) (Residential Parks Act, s 21);
  • A pet bond (usually $100 maximum);
  • Bond for keys or remote control entry devices (usually $100 maximum); and
  • A letting fee equivalent to a maximum of two weeks rent (Residential Parks Act, s 13).

If the long-stay tenant pays an option fee when applying for a long-stay agreement and the application is successful, that option fee must be refunded or applied towards the rent in advance (Residential Parks Act, s 12).

What should I receive when I enter into an agreement?

There are several documents that you must receive before entering into a tenancy agreement (Residential Parks Act, s11) being:

  • a copy of the proposed tenancy agreement including an explanation of how and when the rent may be changed;
  • a copy of a Department of Commerce information booklet;
  • a written schedule of fees and charges;
  • a property condition report;
  • a copy of the park rules;
  • written information on membership and functions of the park liaison committee (if applicable);
  • a written copy of any restrictions on the ability to sell or assign the tenant’s relocatable home; and
  • a written copy of any restrictions on assigning the tenant’s rights.

Rent increases for on-site agreements
If you have an on-site agreement and the park operator wants to increase the rent they must give you notice in accordance with the Residential Parks Act which states (s30 (2) (a), (b) & (c)):

  • the park operator must give you written notice;
  • giving at least 60 days notice of the increase, and
  • the increase cannot take effect earlier than 6 months since the beginning of the tenancy or the last increase .

If your on-site agreement is for a fixed term, there must be a clause in your agreement allowing for an increase of rent during the fixed term (Residential Parks Act, s 30 (2) (d)).
The park operator may increase the rent before the first 6 months of your tenancy has elapsed but only if they have given you a schedule outlining the dates of the rent review prior to the tenancy agreement being entered into (Residential Parks Act, s 30 (3) (a) & (b)).

The time frames for rent increases described above do not apply if your agreement expressly excludes or limits the provisions of the Residential Parks Act (Residential Parks Act, s 30 (5)). Therefore, it is important to check your tenancy agreement to see when the rent may be varied.

Rent increases for site-only agreements
If you have a site-only agreement, the rent can only be reviewed under terms which are specified in your agreement. In your agreement, it is unlawful for the rent to be reviewed in periods less than 12 months apart (Residential Parks Act, Schedule 1, clause 4).

The rent can only be reviewed on a single basis. That means that the rent can only be calculated in one way – such as a rent review in line with Consumer Price Index (CPI) for example.

The agreement may have a different basis per review – such as the first rent review being CPI, the second rent review a year later being an increase of $10 per week. However, there cannot be more than one basis per review.

If the way your rent is calculated leads to a decrease in rent (eg. if the CPI decreases for the year) it is unlawful if the park operator keeps your rent the same or increases your rent.

Often, certain parks may have a set schedule by which the rent is reviewed. This may mean that your rent will be reviewed not long after you move into your park home.

If you are given a notice of the set schedule of rent reviews prior to you accepting your tenancy, it is lawful for the park operator to increase the rent in accordance with that schedule even if it has not been 12 months since you entered into the agreement.

Rent increases for on-site and site-only agreements
If the tenancy agreement provides for a review of rent based on market rent, the park operator must have regard to a report obtained by a licensed land valuer (Residential Parks Act, s 31).
Tenants may apply to the SAT for an order to reduce the amount of rent payable if there has been:

  • a significant reduction in the size or quality of the premises;
  • a significant reduction in the number or quality of the chattels provided (such as furniture or whitegoods); or
  • a significant reduction in the facilities provided (such as electricity connection or common bathroom facilities).

The SAT may have regard to factors such as rent paid for similar premises in a similar area, the park operator’s expenses or the cost of the services provided by the park operator.
The SAT has the power to reduce the rent if it believes that the rent has been increased in an attempt to get the tenants to move out.
Park liaison committee
If the park you are living in has 20 or more long-stay sites, the park operator must set up and maintain a park liaison committee (Residential Parks Act, s 59). This committee must consist of:

  • at least one of the park’s long-stay tenants chosen by the other tenants of the park; and
  • at least one representative of the park operator.

There must be more long-stay tenant members on the committee than members who represent of the park operator.

The park liaison committee has numerous functions, including working with the park operator on park rules and developing guidelines and policies of the park. The committee also needs to assist the park operator to ensure that the park rules are observed and disputes within the park are resolved.

Tenants’ obligations

If you have an on-site agreement you must keep the site and the relocatable home (both inside and out) in a reasonable state of cleanliness. If you have a site-only agreement you must keep the site and the outside of your relocatable home in a reasonable state of cleanliness.

If you have given the park operator details of your place of occupation and those details change, you must inform the park operator within 14 days (Residential Parks Act, s 16). When you vacate the premises you must give the park operator details of your next residential or postal address (Residential Parks Act, s 16).

If the premises (or an on-site home) is damaged you must notify the park operator as soon as possible, but within 3 days.

You must not cause or allow a nuisance anywhere in the park (Residential Parks Act, Schedule 1, clause 10).

Park operators’ obligations

When you enter a tenancy agreement the park operator must give you written notice of their name and address (and the details of any one who has superior title) and the terms of the park’s operating licence (Residential Parks Act, s15).

The park operator must give you written receipts for rent unless you pay into an account of a financial institution (such as a bank account). The receipt must specify (Residential Parks Act, s 26):

  • The date rent was received;
  • The amount paid;
  • The period which the rent relates to;
  • Your name; and
  • Particulars of the premises.

The park operator must (Residential Parks Act, Schedule 1, clause 7):

  • Provide the premises and shared park areas (such as the common laundry) in a reasonable state of cleanliness;
  • Maintain the shared park areas in a reasonable state of cleanliness;
  • Provide and maintain the premises and the shared park areas in a reasonable state of repair; and
  • Comply with health and safety laws.

Locks and security

If you lease an on-site home, locks and other devices must be provided and maintained by the park operator to ensure the home is reasonably secure (Residential Parks Act, Schedule 1, clause 12).

For any tenancy agreement, you or the park operator need consent from the other to change or remove any locks to the premises (Residential Parks Act, Schedule 1, clause 12).

You will also need the park operators consent to change or remove locks to shared park areas. If the park operator changes or removes locks to shared park areas you must be notified beforehand and given a way to access those areas.

Urgent repairs

Where an urgent repair is required (for example to repair a gas leak or broken hot water system) and you spend money to fix it, the park operator must reimburse you for the expense (Residential Parks Act, Schedule 1, clause 8). In order to get a reimbursement:

  • The issue must be likely to cause injury or to unduly inconvenience you;
  • The issue must not have been caused by a breach by you;
  • You need to make a reasonable attempt to notify the park operator of the issue and your intention to pay for repairs;
  • If the repair is required to be completed by someone who holds a licence then the repairer must hold that licence; and
  • The repairer must write a report stating how the issue was caused and you must give the report to the park operator.

Quiet Enjoyment and the park operator’s right of entry

You have the right to quiet enjoyment of your premises (Residential Parks Act, Schedule 1, clause 11).

The park operator must not cause or allow any interference with your reasonable peace, comfort or privacy in your use of the premises and your reasonable use of shared park areas.

The park operator must also take reasonable steps to enforce this obligation on other park tenants.

The park operator may enter your premises with your consent or if there is an emergency (Residential Parks Act, Schedule 1, clause 13). In any other case the park operator must give you notice before they enter your premises:

  • To inspect or complete maintenance or repair work to the site, written notice of at least 24 hours is required;
  • For inspections, a written notice which states a day and a reasonable time must be given 7 to 14 days before the inspection;
  • Collecting rent can be done at any reasonable time but no more than once each week;
  • To inspect or carry out repairs or maintenance to your premises at a reasonable time, at least 72 hours notice is required;
  • Showing prospective tenants the premises may be done at a reasonable time and on a reasonable number of occasions in the 21 days before the tenancy agreement ends. Reasonable notice is required; and
  • Showing prospective purchasers the premises may be done at a reasonable time and on a reasonable number of occasions after you have been given reasonable notice.

Termination

There are different ways that tenancy agreements can be terminated under the Residential Parks Act (s 33):

  • The SAT may terminate the agreement;
  • A person or company may claim superior title over the property (see chapter 4.08 A “Superior Title” Claim: Takeover of the Property);
  • The mortgagee of the premises (eg. a bank) takes possession of the premises under the mortgage;
  • The tenant abandoned the premises;
  • There is a written agreement between the parties to end the agreement; or
  • By merger.

Form of Notice of Termination

The notice of termination must be in writing, signed by the party giving notice, and identify the premises that are rented (Residential Parks Act, s 38).

Termination due to rent arrears

Termination due to rent arrears may be done in one of two ways.

  • 1. If a default notice is given it must give you at least 14 days to pay the rent owing.

If you do not pay the rent within that 14 days, the park operator then has 7 days (after the 14 day period given in the default notice) in which they can issue a notice of termination.

After the notice of termination expires the park operator has 30 days to make an application to the SAT for a termination and eviction order. The order can be given even if you pay the rent owed (Residential Parks Act, s 39 (4)).

  • 2. If you receive a notice of termination first you must be given at least 7 days to pay the rent owed.

If the park operator then applies to the SAT for a termination order and you pay the rent owing plus the filing fee more than 24 hours prior to the hearing date, the park operator must withdraw the application (Residential Parks Act, s 39 (5)).

Termination by the park operator for breaches other than rent arrears

If you breach your agreement, the park operator may give you a default notice (Residential Tenancies Act, s 40). This default notice needs to:

  • describe the breach;
  • state the day it occurred;
  • specify a day by which the breach is to be fixed (which must be at least 14 days); and
  • state that the park operator is entitled to terminate the agreement if the breach is not rectified in that time frame.

The default notice must be in writing and signed by the park operator and identify the premises.

If the breach is not fixed the park owner may issue a notice of termination. This notice of termination must state the grounds for the termination and specify the day that the tenant is to move from the premises (at least 7 days from the notice being given to the tenant).

If the tenant does not move by that date, the park operator must apply to the SAT for an order terminating the tenancy. A tenant cannot be forced to move without this order (Residential Parks Act, section 54).

Termination by the park operator without grounds

If you have a ‘periodic’ agreement the park operator can terminate your tenancy without giving a reason.

This is known as a termination without grounds (Residential Parks Act, s 42). A fixed term agreement cannot be terminated without grounds before the end of the fixed term.

The park operator will need to give you a notice of termination. If you have an on-site agreement the notice of termination must give at least 60 days for you to move from the property.

If you have a site-only agreement, the notice must give at least 180 days for you to move from the property.

Termination by tenant without grounds

If you have a periodic agreement you can terminate your tenancy without giving a reason. You must give a notice of termination which gives at least 21 days before you give the vacant property back to the park operator.

If you have a fixed term agreement you can only give the park operator this notice of termination if you want to give the vacant property back to the park operator on or after the date your fixed term agreement ends. (Residential Parks Act, s 44).

Termination if vacant possession is required for the sale of the park

If the park operator sells the park and it is a term of the sale that the new owners require vacant possession, then the park operator may terminate your agreement.

If you have an on‐site agreement the notice of termination must give at least 60 days for you to move from the property. If you have a site‐only agreement, the notice must give at least 180 days for you to move from the property.

Termination by Frustration

Situations where the premises becomes uninhabitable and unusable (other than due to a breach of the agreement), or where the park is compulsorily acquired by an authority are called ‘frustration’.

Either the park operator or a tenant can give a notice of termination to end the agreement (Residential Parks Act, s 45).

If the park operator gives a notice of termination due to frustration they must give at least 7 days for you to move from the property. If you give the notice of termination you must give at least 2 days notice before you move from the property.

Termination due to hardship of the park operator

If the park operator is experiencing hardship they may apply to the SAT to have your tenancy terminated.

The SAT may terminate your tenancy agreement if it is satisfied the park operator will suffer undue hardship if required to terminate the agreement by another way provided in the Residential Parks Act (section 73).

Compensation when a tenancy agreement is terminated

If you have a fixed term tenancy agreement you may be entitled to compensation if your tenancy is terminated:

  • without grounds;
  • because the park operator has sold the park; due to frustration; or
  • due to hardship of the park operator.

The compensation payable can be an amount that you and the park owner agree to. If an agreement can not be reached then an application can be made to the SAT for a decision on the amount of compensation owed. (Residential Parks Act, s 46).

Can I sell my park home?

You are entitled to sell your relocatable home on site unless your lease agreement prohibits it (Residential Parks Act, s 55).

However, you have an obligation to inform the park operator that you are selling your home and to inform the park operator if you are going to assign your lease to the purchaser.

The park operator cannot unreasonably restrict potential buyers from inspecting the premises.

The park operator may act as an agent for the tenant in selling the property and charge a commission if there is a written agreement to do so (Residential Parks Act, s 57).

The amount of commission (or a method to calculate the commission) must be written into this agreement for the park operator to act as an agent.

Commission cannot be charged if the relocatable home is sold by means other than the agency agreement or if the relocatable home does not sell.

Contracting Out

Any agreement or provision of an agreement that tries to exclude or change the effect of the Residential Parks Act is unlawful and will not be valid unless the Residential Parks Act allows for that section to be excluded or changed (s 9). Tenants Advice Service ‐ Tenants Rights Manual

If a particular section can be excluded or changed, the change or exclusion needs to be stated in the written tenancy agreement and signed by the tenant and the park operator.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, Tenants Advice Service claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

If you are unable to resolve a dispute with the owner/agent, or the owner/agent is not doing something they are obliged to do, you may choose to proceed directly to the Magistrates Court. You do not need to go through the process of issuing written requests and/or breach notices to the owner/agent.

If the problem is urgent, or the owner/agent has made it perfectly clear that they have no intention of doing what ever it is you are asking them to do, it may be quicker and more effective to go directly to court.

Section 15 of the Residential Tenancies Act (1987) enables the tenant to apply to the Magistrates Court for an Order.

An order may be made:

Do not withhold or make deductions from the rent in an effort to get the owner/agent to do repairs. This constitutes a breach of your tenancy agreement.

OWNER OR AGENT?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act (1987).

If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

Making the Application to the Magistrates Court

You will need to make application on a Form 12: Application for Court Order. The Form 12 asks for you (the applicant) and the owner’s (the respondent) details. You should name the owner as the respondent, even if the property is managed by an agent. If you do not know the owner’s address, list it as care of the agent’s address.

If you’re not sure about the owner’s name check your tenancy agreement; the name should be written there.

The form has two main sections which must be filled in:

  • Reason for Application State what you have requested the owner to do or not do. Give brief details of the attempts you have made to resolve the problem and the owner’s response. Attach a separate piece of paper if more space is needed to write the details. On the application form write “See Attached”. Copies of any significant documents may also be attached. The court will require you to provide four (4) copies of any attachments.
  • Order Required State clearly what you want the owner to do or not to do (whichever is applicable). You can also ask for a time limit. For example, that the owner fix the hot water system within three days. Make sure to be reasonable when specifying time limits. A reasonable time limit will vary according to what is required to be done.

PLEASE NOTE: Tenants and advocates should refer to the chapters in this Manual that relate to particular tenant problems as specific details need to be included on the application form and considered when presenting the case.

Also see Going to Court for more details about the Form 12, and Preparing for Court for more information on presenting your case in court.

A sample Form 12 can be viewed on the TAS website: www.taswa.org or downloaded from the Magistrates Court website: www.magistratescourt.wa.gov.au. The Perth Magistrates Court can be contacted on (08) 9425 2222.

Whilst often being a fun and affordable way to live, shared housing/tenancies can be one of the most complex situations in terms of establishing the rights and obligations of the people involved.

In shared tenancy situations, tenants have different rights and obligations depending on whether they are a head-tenant, a co-tenant, a sub-tenant, a boarder or a lodger.

These terms are explained in the sections below. The information provided in these sections is intended to be used as a guide only as it does not cover every situation.

PLEASE NOTE: Tenants Advice Service assists tenants and will not advise in a co-tenancy dispute.

For disputes between co-tenants, please call the Department of Commerce advice line, Ph: 1300 30 40 54. If you are a tertiary student, the housing officer in your student guild may be able to help. Also see Community Contacts.
People living in shared housing can have different legal status to each other.

Types of shared tenancy situations

People in shared living arrangements are not necessarily covered by the Residential Tenancies Act WA (1987).

The status of the tenant in a shared house situation will depend on the tenancy agreement and/or the living arrangement.

Therefore this section should be read in conjunction with the tenancy agreement (also known as a lease) – see The Tenancy Agreement. Also refer to the “How to Figure Out What Tenancy Relationship You Are In” flowchart attached to the end of this chapter.

A shared tenancy situation can occur in a number of ways:

  • Where a group of people enter into a tenancy agreement (written or verbal agreement) with the owner/agent. If there is a written agreement, the group of people may all have their signatures on the agreement. If this is the case, the people will have equal rights and obligations in relation to the tenancy agreement with the owner/agent and with each other. They may all equally liaise with the landlord. These people are referred to as co-tenants.
  • When a person/s who has a tenancy agreement with the owner/agent sub-lets a room to share part of the premises with another person (or people). The person/s in this situation is referred to as the head-tenant, and the person/s they have sub-let a room or rooms to are referred to as sub-tenants.
  • When the owner lives in the premises and rents part of the premises to another person/s. Depending on the agreement, the person renting from the owner may be a sub-tenant or a boarder/ lodger.

Know Your Legal Status

Your legal rights and obligations may depend greatly upon a range of factors. When moving in, ask who is listed on the tenancy agreement and seek advice about what legal status you will have in relation to your living arrangements.

If you are still in doubt about your legal status, you can apply to the Magistrates Court to have your legal status defined.

What is the legal status of a co-tenant?

If there are a number of tenants who hold (are signatories to) a single tenancy agreement with the owner/agent, you may each be a co-tenant (or joint tenant) and therefore have equal rights and obligations in relation to the tenancy.

This is also the case if there is a verbal, rather than written, tenancy agreement with the owner/agent. For example:

  • A couple are renting with the rent being paid from a joint account. Each person is also liaising with the landlord from time-to-time. This is likely to be a co-tenancy arrangement.
  • Three people are sharing a house and each pays a share of the rent to the landlord and each liaises with the landlord. This could also be a co-tenancy arrangement.

Co-tenants may be held individually (severally) or jointly liable in the event of there being a breach of the tenancy agreement.

This means the owner/agent can act against any or all of the co-tenants when there has been a breach of the agreement, even if only one person is responsible for the problem. For example, if the rent is in arrears because one person in the property has not paid their share, the owner can still commence the process for termination against all tenants and seek the entire rent arrears from any of the co-tenants.
If a co-tenant wants to move out of the premises before the others, and the other co-tenants agree to this, it is suggested that you try and negotiate with the owner/agent to have that tenant’s name removed from the agreement so that s/he can’t be held liable for any breach of the agreement after s/he moves out.

Any agreement should be in writing and any change to the written agreement should be signed or initialled by all parties to the agreement. If negotiations fail, seek advice about your options before moving out. Also see Writing a Letter to the Owner/Agent.

The Residential Tenancies Act WA (1987) does not cover disputes between co-tenants.
The Residential Tenancies Act is not available for the purpose of dealing with disputes between co-tenants.

It is advisable for co-tenants to each seek individual advice with a view to drawing up their own contract in relation to their own living arrangements.
Some disputes of a financial nature which occur between co-tenants, for example, recovering a co-tenant’s unpaid proportion of electricity costs, may be dealt with through the Magistrates Court.

Disputes between tenants in relation to debts which involve amounts under $10,000 are heard in the Minor Case Division of the Magistrates Court (the same court as disputes between owners and tenants but not under the Residential Tenancies Act).

If the dispute involves more than $10,000 it will be heard in the General Division of the Magistrates Court. The court will look at a number of factors including the agreed arrangements to determine whether or not a co-tenant is liable for the amount claimed.

Seek legal advice before commencing any legal action (see Community Contacts).

What is the legal status of a head-tenant?
The head-tenant is a tenant who holds an agreement with the owner/agent and then enters into an agreement with a third person (the sub-tenant) for them to occupy part of the premises.

That third person does not have a direct tenancy agreement with the owner/agent, but rather has an agreement with the head-tenant.

For the purposes of the agreement under the Residential Tenancies Act, head tenants have the rights and responsibilities of a landlord in relation to their sub-tenants.

This means, for example, that they are responsible for collecting the rent and getting the owner/agent to do any necessary repairs.

It also means that they can ask their sub-tenants to move out but, like an owner/agent, they must give the appropriate amount of notice (for more information on ending a tenancy, see the various chapters under the heading 4: Ways a Tenancy May be Ended).

If you are the head-tenant, you will need to check the tenancy agreement to see if it allows sub-letting a room to another person. If your tenancy agreement does not contain any provisions for sub-letting then you may only do so with the written consent of the owner/agent.

The owner/agent cannot unreasonably refuse permission for you to sub-let and can only charge reasonable expenses which are incidental to them giving the consent (s.49(2)(a)). If you do not get written consent from the owner/agent, they may claim that you are in breach of your tenancy agreement (see When the Tenant is in Breach of the Agreement).

If you take the responsibilities of a head-tenant, the owner/agent can hold you liable for damage caused by your sub-tenant, or your sub-tenant can hold you liable to carry out repairs the owner/agent has failed to do. If in doubt, get advice (see Community Contacts).

What is the legal status of a sub-tenant?
When moving into a share house, if your name is not on the tenancy agreement, and you pay your rent to another tenant, it is likely you are a sub-tenant.

As a sub-tenant, you have the same rights and obligations as other tenants under the Residential Tenancies Act. A sub-tenant has an agreement with the head-tenant rather than direct with the owner/agent.

What is the legal status of a boarder/lodger?

Boarders and lodgers are not covered by the Residential Tenancies Act. The law provides them with little protection, for example, they can be evicted with little notice.

Boarders and lodgers are NOT protected by the Residential Tenancies Act

Whether you are a sub-tenant (and have rights under the Act), or you are a boarder or lodger, depends on a range of factors, including the tenancy agreement between you and the owner and your living arrangements. You should always seek advice to clarify your situation and your rights and obligations.

Typical boarding and lodging situations include:

  • Hostels and boarding houses, where you rent a room and can use common facilities but generally have no say in the overall running of the establishment.
  • If you are subject to house rules, for example, no visitors after midnight.
  • If the landlord keeps overall control of the house, including your room (for example, enters your room without needing your permission).
  • If you receive services from your landlord or head-tenant (such as cleaning, washing or providing linen).
  • If your landlord provides meals. Tenants Advice Service – Tenants Rights Manual March 2010 | Infosheet 1.10 | Page 3

See Boarders and Lodgers.

Avoiding problems – Share Housing Tips

  • Sort it out before you move in! Because of the difficulties in determining the legal status of an occupant in a shared housing arrangement, it is suggested that advice be sought prior to entering into such an arrangement.
  • It is also recommended that people in shared housing complete their own agreement between themselves, setting out how rent and other costs are to be divided, how domestic chores are to be organised, etc.
  • Get any agreements recorded in writing and signed by all parties. Clearly state each person’s rights and obligations. Never sign an agreement unless you agree with and understand the terms and conditions. Seek advice before you sign. Ensure that every person who signed the agreement is provided with a copy.
  • Think carefully about whose name the different service accounts (phone, electricity, gas, etc) will be in. The person who has their name on the account will be held liable if the account is left unpaid for any reason. It can be a good idea to spread the financial responsibility by getting different housemates to organise different services.

Even the best of friends sharing rented premises can have tenancy problems.

  • FLOWCHART ATTACHED: “How to Figure Out What Tenancy Relationship You Are In”

OWNER OR AGENT? It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act (1987).

If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

Have you received a letter or notice telling you that the property you are renting is being taken over because the owner is no longer in charge of the property? If so, the letter is probably from someone claiming “superior title”.

What is superior title?

A person who is claiming “Superior title” is claiming a better right of ownership over the property than the current owner. This can happen, for example, when:

  • the current owner is not keeping up with mortgage payments to the bank, and the bank wants to take over the property;
  • the current owner has died with mortgage payments still owing to the bank and the bank wants to take over the property; or
  • Government authorities take over a property for redevelopment purposes such as roads, etc.

What effect does this have on my tenancy?

If you have been granted the right to occupy a residential property or part of a residential property in return for valuable consideration (usually for rent or work on the property), then you do still have a tenancy.

Remember: your tenancy agreement is between you and the owner (as named on the tenancy agreement)

Until the person claiming superior title actually takes or becomes entitled to take possession of the premises (usually via a court order) your tenancy agreement still exists and you remain bound by the agreement with the original owner. You (and the owner) must continue to honour your agreement with each other which includes you paying rent to the original owner. Your agreement with the original owner will continue until it is terminated – usually by a court order.

It is illegal for any person to evict a tenant without a court order Penalty : $4000

Will I be evicted?

It is important to note that while you do still have a tenancy; it is likely you may be evicted with very short notice if the person claiming superior title obtains a court order for possession of the premises. You should contact the owner/agent of the property about the situation as soon as you receive any notice that the property you are renting is being taken over.

Can I claim compensation?

If the new owner obtains a court order that forces you to vacate the property, you can seek compensation from your original owner for a breach of your right to quiet enjoyment of the premises (see Privacy and Quiet Enjoyment (notice of entry requirements).

Likely amounts you could claim include any reasonable out of pocket expenses incurred as a result of being forced to move, such as utility reconnections and removalist expenses. See When the Owner is in Breach of the Agreement for more information.

Always keep a copy of any letters you send to the owner/agent plus any receipts for out of pocket expenses incurred as a result of the breach

Do I have to wait for the new owner to obtain a court order before moving?

You do not have to vacate the property until the new owner obtains a court order for possession of the property. However be aware that if the new owner obtains a court order, they may seek to force you to vacate the property, often at very short notice.

Should you wish to vacate the property prior to this occurring, you will need to contact your current owner/ agent and seek to terminate your agreement usually by:

  • Obtaining permission in the form of a written agreement between the current owner and you terminating the tenancy, or
  • If you are a periodic tenant you may provide 21 days written notice to the owner terminating the agreement.

If the new owner has not yet taken possession of the property and you ‘break your lease’ by leaving the property prior to the agreement terminating without the consent of the owner, or without providing the required notice (if you are a periodic tenant), you will be liable to the owner for continued rent payments (and possibly other amounts) until such time as your tenancy agreement is terminated.

What does Section 81 mean?

Section 81 of the Residential Tenancies Act directs a court not to make an order terminating a tenancy agreement when a person is claiming superior title unless the tenant has received reasonable notice of the proceedings. You must get reasonable notice if a person claiming superior title makes an application to the court to evict you.

Can I stay in the property? What if I can’t move out?

If an application is or has been made to the court seeking possession of your rented property by a person with superior title, you have the right under section 81 to apply to the court yourself, asking for an order vesting a tenancy in the new owner. In effect, you will be asking the Court to impose the obligations of a landlord on the new owner, on whatever terms and conditions the court thinks fit.

To apply for a court hearing at the Magistrates Court, you will need to fill out a Form 12: General Court Application. This form can be downloaded from the Tenants Advice Service website at www.taswa.org

The Court will hear both sides of the story and decide whether you can stay and if so, under what terms and conditions. See Preparing for Court and Going to Courtfor more information about court costs, what to expect on the day and how to prepare.

If you require further information or support please call TAS’ free advice line for tenants (Metro Ph: 9222 0888; Country Ph: 1800 621 888) or contact your nearest tenant advocate (see Community Contacts for details).

What are Tenant Databases?

Tenant databases are sometimes called “Tenant Blacklists”. The databases are lists containing information about tenants and their rental history from the perspective of those who can use the database. A database may state breaches of the terms of a tenancy agreement as alleged by the owner/agent.

A company (database operator) who sells access to the database keeps this list.

Who can use a Tenant Database?

Owners and agents (and even debt collection agencies) can use a database by paying a fee to the company that keeps the list.

They can contact the company to put a tenant’s personal and tenancy details on the database or search the database for information about particular tenants.

Could I be on a Tenant Database?

YES! A number of standard tenancy application forms and tenancy agreements include a part (clause) which may in effect say that the tenant agrees to have their details listed on a tenant database.

If you sign a form or agreement with such a clause then you are giving permission for your details to be listed on a database.

Some tenancy applications forms may require you to sign a statement supplied by a tenancy database company.

The statement may be titled “Tenant Privacy Disclosure Statement”. If you sign it, you will be authorising the release of your personal information to various services and authorities. However, if you don’t sign, your application for tenancy may not be approved.

This can put tenants in an unfair situation – see the end of this chapter for information on how to lodge a complaint about such practices.

The most likely scenario to prompt a database listing after entering a tenancy agreement is when the owner/agent decides a breach has taken place.

The breach does not have to be serious – it is up to the owner/agent to decide. For example, one tenant thought they had been listed on a database because they were two days late with their rent! For more information see When the Tenant is in Breach of the Agreement.

Are there laws about Tenant Databases?
The Residential Tenancies Act WA 1987 (WA) currently does not provide tenants with any clear legal protection from tenant database listing. Some magistrates in the Magistrates Court have refused to listen to such matters for this reason.

However, there are other laws regulating privacy and the use of personal information, such as the Privacy Act 1988 (Cth) (“Privacy Act”).

What about my right to privacy?

Tenant database companies have operated for many years without regulation. However, changes were made to the Privacy Act in December 2002 and now tenants can only be listed on a tenant database if they have given their permission/consent for the real estate agent to pass on information to tenant database companies.

The Privacy Act also states that individuals should be made aware that information about them is being collected.

However, because the changes affect only those who are listed after December 2002, some tenants may already be listed without their knowledge.

The changes to the Privacy Act have opened up a possible legal course of action for challenging tenant database listings as a breach of a tenant’s right to privacy.

Complaints lodged by tenant organisations on behalf of tenants with the Federal Privacy Commissioner have referred to:

  • The high cost of accessing personal information held by the database company;
  • Database companies not notifying tenants about being listed or about why they are being listed;
  • The range of obligations that prospective tenants are being asked to consent to in their tenancy applications; and
  • The length of time that the listings remain on the database.

The Privacy Commissioner

The Commissioner has recommended that one particular database company and/or its members:

  • Advise tenants at the time when an adverse listing has been made;
  • nsure tenants have access to the listing categories;
  • Use the terms ‘objectionable behaviour’ and ‘repeated breaches’ only if there is a relevant court order;
  • Provide tenants with the ability to add a statement to any listings which they dispute; and
  • Remove tenants from a listing after a specified time (four or five years depending on the database use).

Compensation for tenants
Tenants listed with a tenancy database may be entitled to compensation if they:

  • Paid ‘excessive’ amounts of money to the tenancy database company in order to find out whether they were listed or not;
  • Suffered loss or damage (suffering and hardship) as a result of being listed on a tenancy database for more than four years and were rejected for a tenancy on the basis of being listed;
  • Suffered loss or damage as a result of a listing that states ‘tenancy history only’;
  • Suffered loss or damage as a result of not being informed of a listing at the time it was made (for listings made after 21 December 2002);
  • Suffered loss or damage as a result of being listed inaccurately and without validation.

Tenants will need to have some evidence of their loss or damage, such as being rejected for a tenancy and having nowhere to live due to being listed with a database company.

Compensation claims can be lodged with the Privacy Commissioner as part of the complaint procedure. Compensation will become a factor after a complaint has been lodged with the Privacy Commissioner and investigated. Information about the complaint and compensation process is outlined below under the heading ‘Making a complaint’.

What can I do if I am listed on a Database?

If your name has been listed on a tenant database you can:

  • 1. Write to the owner/agent who told you that you are on a database, or who you think listed you on a database. Ask them if you are listed, who with and why. Keep a copy of the letter and any reply you receive.
  • 2. If you find out you are listed, write to the owner/agent again, or the database operator (see contact details below). If the information is wrong, or it involves a past problem that has been fixed, explain your case and ask the owner/agent or the database operator to correct the information. Keep a copy of the letter and any reply you receive. Owner/agents who subscribe to database companies are able to remove listings from the database as well as amend listings.
  • 3. Make a complaint to the Privacy Commissioner (see section ‘Making a complaint’ at the end of this chapter).

Contacting the Database companies

The two largest database companies in Australia are TICA (Tenancy Information Centre of Australia) and NTD (National Tenancy Database).

There also many other smaller database companies operating in Australia.

You can either phone or write to TICA and NTD to request access to your database listing and/or request that your listing be removed.

Contact details for TICA:
Contact details for NTD:
PO Box 120
PO Box 156
CONCORD NSW 2137
COLLINS STREET WEST VIC 8007
www.tica.com.au
www.ntd.net.au
Ph: 1902 220 346
Ph: (03) 8629 1682

Beware that as at December 2009, TICA’s phone service costs $5.45 per minute (higher from a mobile or pay phone).

If you choose to mail your request, TICA will charge a $14.30 fee (to be processed within 5 working days and then 8 working days to forward the information to you).

TICA requires a stamped, self addressed envelope to be included for return. To access the information from TICA free of charge you will need to specifically request free access to the information. A free access request may take up to 28 days to be processed. Your request can be faxed through to TICA on (02) 9743 4844 at a charge of $22.

When asking TICA if it holds information about you, you will need to supply your name, date of birth and a driver’s licence number. If you don’t have a driver’s licence you will need another form of identification.

Contacting NTD can be done via mail, fax ((03) 8629 1628) or email (info@ntd.net.au). NTD’s service is free if you are prepared to wait up to 10 working days for a response.

However, a $15 charge is payable for an immediate response. NTD have a “Request for Personal Information Form” available online which is free to lodge unless your request requires significant research or preparation time. NTD do require you to provide a photocopy of you drivers licence or another form of identification.

Making a complaint

If you wish to make a complaint to the Privacy Commissioner about Tenant Databases on the grounds that the database listing is a breach of your right to privacy as set out in the Privacy Act, you can write to:

Director of Compliance
Office of the Privacy Commissioner
GPO Box 5218
SYDNEY NSW 2001

A complaint may also be lodged via fax ((02) 9284 9666) or email (privacy@privacy.gov.au).

Complaint forms can be downloaded from www.privacy.gov.au/complaints.

The Privacy Commissioner is happy to assist people to make a complaint, and can be contacted on Freecall 1300 363 992.

When making a complaint, bear in mind that you may have signed a disclosure form which consents to your details being put on a tenancy database.

What if the owner/agent is threatening to list me on a Database?

If the owner/agent is threatening to list you on a database to force you to do something that you don’t have to do, they may be committing an offence (under section 338A of the Criminal Code).

For example, an owner/agent may say: “If you don’t agree to sign the bond disposal form for all of your bond to be paid to me, I will put you on a database and you will never be able to rent in this state again”, even though the tenant had a right for the bond to be refunded (in whole or part).

If this has happened to you, you can make a complaint to the police. Contact your local police station to make a statement.

Even if the police don’t lay charges against the owner/agent there will be a record that you made a complaint.

If the owner/agent is threatening to put you on a tenancy database, please make a complaint to the Department of Commerce. You can download the complaint forms from www.commerce.wa.gov.au/ConsumerProtection/.

Most Real Estate Agents and some private owners will ask you to fill in anapplication form when you show interest in renting a place.

You should make sure you understand what the form says before you sign it. Ask the owner/agent to explain anything you don’t understand.

Take the form away and get advice before you sign it. Be wary if the owner/agent is unwilling to allow you to take the form away to get advice before you sign it.

Don’t sign an Application Form until you know what you are agreeing to. Make sure this is the place you really want because if the application isaccepted, you will have committed yourself to the tenancy.

For this reason, only apply for one property at a time. If you are accepted as a tenant, but you decide you don’t want the place, you could be held liable for the owner’s costs.

For example, you may have to pay advertising costs and rent until new tenants are found. Or the owner/agent may try to hold you to renting the place for time period as stated in the application form.

What Is An Application For Tenancy Form?

The Application Form does not secure your tenancy to the premises. The information asked for in the form helps owners/agents decide whether they want to rent the place to you.

There is no standard Application Form. It may be different from owner to owner and from agent to agent.

The REIWA form is used by most real estate agents. An example of an Application to Rent Residential Premises and a REIWA (Real Estate Institute of Western Australia) Standard Application and Offer of Option to Lease Residential Premises can be found at the end of this chapter.

The application form may ask for:

  • Your name
  • Your present and previous address and rental details (how much rent paid; agent or owner’s name and their address and phone number)
  • References from your previous landlord (see section in this chapter on ‘getting references’ if you have not rented before)
  • Current employment details (name, address, income)
  • Contact details (name and telephone number) of a personal reference
  • Bank details
  • Next of kin (your immediate family) name and contact details

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

The application form may also ask you to specify:

  • How long you would like to rent the place for
  • The dates you would like to start and/or finish renting the place
  • How many people (adults and children) will be staying at the premises
  • Whether there will be any pets
  • Whether you intend applying for Department of Housing (DH) Bond Assistance (this is not for DH tenants – see Financial Assistance for Tenants for more information)

The application form should also itemise all the costs involved if you were to sign up for tenancy, such as:

  • Rental payment amount
  • Security bond
  • Rent in advance required; and
  • Pet bond (if chargeable).

The amounts listed on the application form are the amounts you are agreeing to pay if successful in your application, so make sure you check and agree with this amount before signing the application form. See What Will It Cost to Move In for more information.

Supplying Personal Information

The Application for Tenancy form may require you and your friends or family (if they plan to live at the house too) to supply a lot of personal information. Some application forms may require a “100 point identity check” which can include:

  • Photo ID for each applicant, such as a drivers licence or passport
  • Written references from previous landlords or agents (see section below on how to get rental references)
  • Proof of last address (such as a copy of last phone or electricity account)
  • Copy of previous rental receipts (or bank statements if you have been using ‘direct credit’ for paying rent)
  • Copy of last rental lease/tenancy agreement
  • Proof of income such as a letter of employment or a social security/Centrelink statement

Tenancy workers may be able to assist you in getting all the necessary paperwork together for the Tenancy Application Form – see Community Contacts.

Getting References

There are three types of references:

  • 1) Work reference (a letter written about you by your current or previous employer);
  • 2) Character reference (a letter written about you by someone, other than your family, who has known you for a while);
  • 3) Real estate agent or landlord’s reference (a letter saying you paid your rent on time and were a good tenant).

If you haven’t rented before, you will have problems getting a reference from a previous landlord! However, you could try to include in a character or work reference something like the following statement: “…that he/she has known you for a long time and that he/she has good reason to believe that you would make a reliable and responsible tenant.”

You may also need to consider other rental options such as agency assisted/supported accommodation as a way to develop your rental history. See Community Contacts for a list of agencies that may be able to help you.

Know What Kind Of Tenancy You Want

Try to determine what kind of tenancy suits you best BEFORE signing the application form. There are basically two types of tenancies:

  • 1. Fixed Term tenancy agreement (meaning you rent for a fixed time period, such as for 6 or 12 months).

This type of lease has a definite end date, meaning that if you move out of the property before the finishing date on a Fixed Term Tenancy Agreement, you may have to pay advertising and rental costs until other tenants are found OR until the lease ends. See Ending a Fixed Term Tenancy for more information.

TENANTS BEWARE! Some application forms may already state you are agreeing to take the premises for a certain amount of time, for example 6 months, and may state the amount of rent that is to be charged.

If you do not agree to the time written on the form, you can change the time period and initial the change. Be aware though that this may place you at a disadvantage if there is another applicant who will agree to the time period.

  • 2. Periodic tenancy agreement (meaning you rent for an unspecified time).

This type of lease has NO fixed end date. When you want to move out, you must give the owner/agent 21 days notice and the owner/agent must give you 60 days notice to move out. See Ending a Periodic Tenancy for more information.

Some Questions To Ask Before Signing
If possible clarify these points in the tenancy application:

  • Who pays for water costs? (Try to arrange it so that you don’t pay more than 50% especially if you are maintaining the garden). Also see Water Charges.
  • Is electricity connected through Synergy or through sub-meters? If it is through sub-meters, is there any charge for the owner/agent to read the meter and send you the bill? Also see Electricity and Gas Meters.

Do I Have To Answer All The Questions On The Form?

NO! You don’t have to answer all the questions on an application for tenancy form.

Some of the information asked for can be personal. For example phone numbers, bank account numbers and drivers licence numbers. You should think very carefully about whether or not you want to let anyone have personal details before you fill anything in and sign it.

However, be aware that if you refuse to answer all the questions the owner/agent may refuse to rent the place to you. They may be suspicious about why you will not answer all the questions.

If you don’t answer all the questions, your application may not be approved.

What If I Don’t Want To Agree To Something In The Form?

You may cross out anything you don’t agree to. You may also change the wording to something more acceptable. You and the owner agent must initial any change.

Can I Add Anything To The Application Form?

YES, you can add to the application form. If there are special conditions you want met, make sure you discuss them with the owner/agent before filling in the application form. For example, any cleaning or repairs that are needed.

Write the conditions on the form and initial each of them. Ask the owner/agent to initial them too. If the owner/agent has agreed to something verbally but will not put it in writing, it may indicate that they have no intention of doing what they have said.

It will be very difficult to prove the owner/agent agreed to something if you don’t have it in writing.

Should I Worry About The Small Print?

YES! Many application forms have a section written in small print which containing conditions that can affect your application, your tenancy and sometimes take away your rights.

Always check what is written in the “special conditions” section of the form.

Some examples are discussed below:

Loss of Option Fee – the law says that option fees should be refunded if you don’t take the tenancy. However, some application forms state that you agree the option fee will be kept by the owner if you are accepted but decide not to take the place. If you sign the form agreeing to this you are agreeing to waive your right to a refund (see The Option Fee for more information).

Notice at End of Tenancy – some application forms state that you will give notice in accordance with section 68 of the Residential Tenancies Act 1987 (WA) in the event of you wanting to move out.

This would require you to give 21 days notice in writing if you want to vacate at the end of the fixed term.

However, this section of the Act only applies to periodic tenancies, not tenancies for a fixed term (see Ending a Fixed Term Tenancy for more information).

Direct Debit – some application forms state may ask you to agree to have your rent paid directly out of your bank account. You can try negotiating with the owner/agent as to when the rent is to be paid (weekly, fortnightly, monthly).

For direct debit, you do not receive rent receipts for paying rent as it should be recorded on your bank statements.

Tenancy Databases – some application forms state that you agree to your personal details being listed on a tenancy database. If there is such a clause included in the form, try to negotiate one or more of the following suggestions (although your success will largely depend on the attitude of the owner/agent you are dealing with):

  • 1) Removal of such a clause (although this is unlikely and the owner/agent may think you are trying to remove the clause because you have something to hide);
  • 2) The clause to be changed to say the owner/agent can only list you in certain circumstances and saying what those circumstances are; and/or
  • 3) The clause to be changed to require the owner/agent to tell you if you are to be listed and what information about you is going to be provided to the Tenant Database.

What If My Application Is Unsuccessful?

  • If you paid an Option Fee, it should be refunded unless you have signed something in the application form that waives this right.
  • Real estate agents and owners do not have to give you a reason as to why

you were not offered the tenancy. However, if you have suspicions that your application was not successful due to your personal or physical characteristics, you may have been discriminated against.

What is discrimination?

Under the Equal Opportunity Act 1984 (WA), it is unlawful to refuse someone accommodation because of their (or their relative’s or associate’s):

  • Age,
  • Gender (male/female),
  • Race,
  • Impairment (such as a disability),
  • Sexual orientation
  • Pregnancy,
  • Marital status (whether you are married or not),
  • Religious or political beliefs (or lack of),
  • Gender history (transgender)

The “duty to mitigate loss” is a contract law principle. The principle states if one person breaches the contract, the other person has to take reasonable steps to ensure that any costs that are incurred as a result of the breach are kept to a minimum.

Section 58 of the Residential Tenancies Act (1987)(WA) states that the duty to mitigate loss applies when tenancy agreements are breached. The law behind the duty to mitigate loss is based on cases which have been heard by courts over many years. How the rules apply to you depends on the particular facts of your case.

Example:

An owner failed to keep the premises properly maintained and the ceiling started to come down.

The owner was therefore in breach of the tenancy agreement. The tenant sent a letter telling the owner and asking them to fix it quickly.

The owner wanted to get quotes and the tenant realised that this would take time and that their furniture and TV might get wrecked while this was going on.

The tenant moved all their belongings into another room and then the ceiling collapsed.

The tenant may not have been able to claim the cost of all of their losses if the belongings had been left there: the tenant had a duty to minimise any possible loss from the owner’s breach of agreement. In this case the tenant met their duty by moving their belongings.

Ending a fixed term tenancy and the duty to mitigate loss

To end a fixed term agreement early the tenant has to get the owner/agent to agree.

The owner has a duty to mitigate any loss they may suffer because the tenant has ended the agreement early. (See Ending a Fixed Term Agreement for more information.) Even if the owner/agent does not agree to an early termination, the duty to mitigate loss applies, and the owner/agent must take all reasonable steps to keep their loss to a minimum.

When a tenant ends a fixed term tenancy early, the tenant pays to the owner/agent any costs associated with the tenant breaking their tenancy agreement. For example, advertising costs and rent until new tenants move in.

At the same time the owner has a duty to ensure that these costs are kept to a minimum. However, the owner is only obliged to take all “reasonable” steps, not anything extravagant or unusual.

Example:

In a case before the court, an owner was claiming loss of rent because the tenants broke their tenancy agreement by ending it early.

The parties had agreed that the owner would find new tenants and rent would be paid until the new tenants moved in.

The tenants gave evidence that they had given one months notice that they had to leave and the owner had accepted this.

However, the owner did not start advertising until the tenants moved out of the property. The court decided that the tenants didn’t have to pay all the rent claimed because the owner had failed to mitigate his losses by advertising earlier.

OWNER OR AGENT?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act.

If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

Does the owner have a duty to mitigate their loss when a tenant abandons the property?

When an owner and tenant do not reach an agreement about ending a fixed term tenancy, and the tenant leaves anyway and stops paying rent, the tenant has “abandoned” the property.

Section 78 of the Residential Tenancies Act says that when a tenant abandons the property, the owner is entitled to compensation from the tenant for any losses, such as loss of rent, the owner has suffered as a result of the tenant’s action.

However the owner still needs to take all reasonable steps to mitigate their loss. The owner will not be entitled to compensation for any loss that could have been avoided if they had taken those reasonable steps.

Example:

In one case, the tenant abandoned the premises after giving notice that he was leaving. The owner knew the tenant had moved out and also knew his forwarding address, but did nothing until the end of the tenancy agreement months later.

The owner then applied to the court claiming thousands of dollars in rent. The owner’s application failed because she failed to minimize her own losses.

PLEASE NOTE: Even though the court made the decisions mentioned in the above cases, it does not mean that you will get the same decision if your case is similar. In other words, there is no such thing as a precedent in the Magistrates Court where tenancy disputes are heard.

The court is not bound by earlier decisions made in the Magistrates Court. Cases are decided by a Magistrate or Registrar using their own understanding of the law in each particular case.
For more information, see Preparing for Court and Going to Court.

How can I make sure the owner takes all reasonable steps to mitigate loss?

Make sure all the terms of the agreement about what you and the owner agree to do are in writing. For example, who will pay for what and when.

Here are some tips if you are ending your agreement early:

  • Keep copies of newspaper advertisements to re‐let the property – not just your ad but also other ads to compare it to if you feel it’s not a reasonable ad. For example, is it too long or too short to attract potential tenants; are you being asked to pay for a Real Estate Agent’s logo?
  • Ask to be provided with receipts for the ads (sometimes agents/owners get a special bulk price).
  • Try to get a contact number for potential tenants. That way if the owner refuses them without good reason you can find out about it and may even be able to call on them as witnesses.

You can’t always make sure the owner/agent minimises their losses, but you can try to make sure you know what they should have done.

That way, if the owner’s claim for compensation is unreasonable you are able to prove it.

If you are in a situation where you think the owner has failed in their duty to mitigate loss, call Tenants Advice Service to get more information and discuss your particular circumstances.

See Community Contacts for details.

Jurisdiction/types of disputes

The Magistrates Court can deal with minor civil matters and minor criminal offences. Residential tenancy disputes are civil matters.

The Magistrates Court has exclusive jurisdiction to hear residential tenancy disputes up to the value of $10,000 (Residential Tenancies Act 1987 (WA) “Residential Tenancies Act”, sections 12 and 12A).

Residential tenancy disputes are disputes that arise under the Residential Tenancies Act. A residential tenancy dispute to the value of $10,000 will be heard in the Magistrates Court as a ‘minor case’.

The procedures outlined in the Residential Tenancies Act will apply.

Disputes in excess of $10,000

Although the Magistrates Court is limited to hear tenancy disputes to the value of $10,000, there are exceptions.

Any application for the disposal of bond money can be heard by the Magistrates Court no matter how much is claimed (Residential Tenancies Act, section 12). This type of application will be heard as a ‘minor case’ and the procedures outlined in the Residential Tenancies Act will apply.

If the amount claimed in a residential tenancy dispute is greater than $10,000 and it is not a bond disposal matter, the Magistrates Court can hear the dispute up to the value of $75,000 (Residential Tenancies Act, section 13).

Residential tenancy disputes valued between $10,000 and $75,000 will be heard in the Magistrates Court but not as a ‘minor case’ and will be run according to the ‘general procedure’ outlined in the Magistrates Court (Civil Proceedings) Act 2004 (WA).

However, if both parties agree in writing the case can be heard in the Magistrates Court as a ‘minor case’. If your case is taken to court but is not a ‘minor case’ you can seek advice from the Tenants Advice Service about the process and how the hearing will be run in court.

Where the amount claimed in a residential tenancy matter is greater than $75, 000 it will be heard in either the District or Supreme Court, depending on the amount claimed.

Who can appear?

Generally, the parties to a ‘minor case’ (the owner and tenant) must appear at the court hearing (Residential Tenancies Act, section 22).

However, a party may be represented or assisted by someone else if they are not able to appear themself (for example if the owner lives in Sydney) or if they are not able to present and conduct their case properly (for example because the tenant has a disability).

The party will only be able to have representation or assistance if the other party is not unfairly disadvantaged.

You or the owner may be able to be represented by a lawyer in certain circumstances.

Most commonly this will be allowed if all the parties agree and the court is satisfied that the party who does not have a lawyer will not be unfairly disadvantaged.

If your case is being heard in the Magistrates Court but not a ‘minor case’ you are entitled to be present in court and conduct your case personally (Magistrates Court (Civil Proceedings) Act 2004 (WA), section 44(1)). You may also be represented by a lawyer or, if the court gives permission, you may have another person represent you (Magistrates Court (Civil Proceedings) Act 2004 (WA), section 44(2)).

How to bring a claim

To get a hearing at the Magistrates Court you will need to complete and lodge an application form at the Magistrates Court nearest the rental property unless both parties agree for the application to be lodged at another court (section 13A (3)). A small application fee will be payable.

Particular bond matters require a Form 6: Application for Disposal of Bond Moneyto be completed and lodged.

For more information see Applying to the Magistrates Court for a Bond Disposal Order. Other residential tenancy matters (up to $10,000) require a Form 12: Application for Court Order to be completed and lodged. For more information see Seeking a Performance Order from the Magistrates Court.

If you want to bring a case that is not a ‘minor case’ and need advice on how to begin your claim please seek advice from the Magistrates Court or the Tenants Advice Service.

Costs

Generally, each party will have to pay their own expenses to attend a court hearing (such as obtaining legal advice or taking time off work to attend the hearing).

One expense that can be claimed is the reimbursement of the court application fee.

The Magistrate may award costs if all parties were represented by lawyers or if special circumstances were found to justify it (Residential Tenancies Act, section 24).

In a case that is not a ‘minor case’ the unsuccessful party will generally have to pay costs of the successful party (Magistrates Court (Civil Proceedings) Act 2004 (WA), section 25). Costs may include expenses such as lawyer’s fees and court application fees.

The Court does have power to allocate costs between the parties differently.

Who presides?

Cases in the Magistrates Court are generally heard by a magistrate. However, a registrar may hear certain ‘minor case’ matters where there is no dispute about the application or where one of the parties does not attend court (Residential Tenancies Act, section 13A).

Appeals

A court order made in a residential tenancy matter (that is heard in the Magistrates Court as a ‘minor case’) is final and binding and no appeal can be made against that order (Residential Tenancies Act, section 26).

In limited circumstances (ie a denial of natural justice or where the Magistrates Court had no jurisdiction) the Supreme Court may review an order made by the Magistrates Court.

If a residential tenancy matter was heard by a registrar the decision made by the Registrar may be appealed to a magistrate (Residential Tenancies Act, section 13B).

The appeal must be started within 21 days of the Registrar’s decision although that timeframe may be extended by a magistrate (Magistrates Court Act 2004 (WA), section 29).

If you were not at the court hearing when a decision was made you can make an application to the court for an order to vary or set aside the initial order (Residential Tenancies Act, section 17).

The application form (Form 16: Application to Vary or Set Aside Order) must be lodged at the Magistrates Court within 14 days of the initial order.

An application fee will be payable. If the application is lodged after 14 days of the initial order you would also need to apply for the timeframe to be extended explaining why it is necessary in your case (Residential Tenancies Act, section 84). A Form 16 is available from the Tenants Advice Service Magistrates Court or can be downloaded from the Magistrates Court website (www.magistratescourt.wa.gov.au).

For more information see ‘What if I was not in court when a decision was made’ in Going to Court.

Where an order is made in a case that has not been heard as a ‘minor case’, you may appeal the decision to the District Court in limited circumstances (Magistrates Court (Civil Proceedings) Act 2004 (WA), section 40).

The appeal must be started within 21 days and the District Court Rules will apply.

If you want to appeal a decision in this circumstance you may want to seek legal advice from the Tenants Advice Service or a private lawyer.

What is an option fee?

The owner/agent is allowed to charge an Option Fee while they consider your Application for Tenancy (Residential Tenancies Act 1987 (WA) (section 27(2)(a)).

You are under no obligation to pay the fee but if you refuse, it may disadvantage your application.

There is no limit on the amount that can be charged. However, the Option fee amount is usually no more than one week’s rent.

Be certain you really want the place before you make an application for tenancy and pay the Option fee. If your application is accepted, but you change your mind, you may not get the Option fee back (s.27(2)(a)). In some cases you may be bound to a tenancy you don’t want.

Be aware!

Make sure you understand what you are agreeing to before you pay the fee.

What happens to the option fee if my application is successful?

If your application is successful, the owner/agent must deduct the money you paid from your first rent payment or return the money to you (s. 27(2)(a)).

If you choose not to enter into a tenancy agreement, you may not have the money refunded.

What happens if my application is not successful?

If you have paid an Option fee and your application isn’t accepted, the owner/agent must return your money (s.27(2)(a)).

Should I pay a deposit or holding fee?

A deposit or holding fee is not the same as an Option Fee. Do not leave a deposit until you have entered into a tenancy agreement. If you leave a holding fee it could be argued that you have already committed yourself to the tenancy and it is being held for you. The owner/agent can only ask for an Option Fee.

Make certain you know what you are paying and what will happen to the money if you decide not to move in.

Always ask for a receipt for the money showing how much you paid and what it was for.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

What is a property condition report?

A property condition report (PCR) is a report that describes the condition of your rented home. Property condition reports are usually filled in at the beginning and at the end of a tenancy. A blank, sample PCR has been attached to the end of this chapter.

Always keep a copy of any Property Condition Report.

Are property conditions reports compulsory?

NO, property condition reports are not compulsory. In Western Australia owners/agents do not have to do a PCR or give their tenants a copy. However, it is common practice for a PCR to be completed and provided.

There are no laws about property condition reports in Western Australia. In some other states tenancy laws require a report to be done within a certain time after a new tenant moves into premises.

You should ask for a copy of the PCR if you believe one exists for your premises. You have a right to a copy because it affects your legal contract (tenancy agreement) with the owner of your rental premises.

Any request for a copy of a PCR should be in writing and you should keep a copy of your letter. See Writing a Letter to the Owner/Agent for more information about writing letters.

You should do your own Property Condition Report if one hasn’t been done already by the Owner/Agent.

Why are property condition reports important?

In the case of a dispute over whether you or the owner/agent has looked after the place properly, a property condition report will be proof of the condition the premises are or were in.

The owner is required by law to provide the rented premises in a reasonable state of cleanliness and repair (section 42, Residential Tenancies Act).You are required to:

  • Keep the place in a reasonable state of cleanliness during the tenancy (s.38(1)(a);
  • Not to cause or permit any damage (s.38(1)(c)); and tell the owner if there is any damage (s.38 (1)(b));
  • Leave the premises in the same condition they were in at the start of your tenancy less “fair wear and tear”.

What is fair wear and tear?

There is no definition of fair wear and tear in the Residential Tenancies Act. However, it is usually said to mean something that happens through ordinary use.

For example, carpet naturally becomes worn from walking on it; varnish wears off stair railings; flywire naturally deteriorates in the sun, and so on.

Any argument over what is fair wear and tear should be decided on the individual circumstances of your case. However, you can argue that you are only responsible if you intentionally (on purpose) or negligently (not taking enough care) caused or permitted damage to occur. See Fair Wear and Tear for more information.

When should a property condition report be done?

A property condition report should be given to you with the keys or within a very short time of moving in to a rented place. You will usually be given a certain time to add your comments and return it to the owner/agent – two weeks is often the time allowed.

A property condition report should also be done at the end of the tenancy. The differences between the ingoing and outgoing property condition reports can be used to work out who should be responsible for any work that needs doing at the place, and who should pay for this work.

A property condition report may also be done during a tenancy. For example, a real estate agent might do one as part of a regular property inspection; or you could do one to show that work is needed at your place. Always ask for, or give the owner/agent a copy of any report done during the tenancy.

Moving is a very busy time for most people but it is VERY important that you take the time do a Property Condition Report.

What if my owner/agent has not given me a property condition report?

There are two things you can do:

  • 1. Write to the owner/agent and ask for a copy of the property condition report. Keep a copy of this letter. See Writing a Letter to the Owner/Agent for more information.
  • 2. Don’t wait! Do your own PCR. Use the blank PCR at the end of this information sheet (attach extra pages if you need more room) OR simply write the whole thing on blank pages.

This gives you more room to describe the place and even add sketches (for example the size and shape of a chip out of the wall). At the start of the report write out the address of the rental premises, the names of the owner
and your name.

Make headings for every room in the place, including passages.

Some tips for doing a property condition report:

Do your inspection with an independent witness. This can be any adult who will not be and has not been living at your place and would be prepared to act as your witness if needed.

Both you and your witness should sign and date the PCR.

Always keep a copy of the PCR for your records. Give a copy to the owner/agent, and ask them to sign, date and return it to you. Don’t forget to include the condition of any built in cupboards. Also include the outside and yards (back, front, sides), sheds, garages, letterbox, driveway, etc. (Use the attached PCR as a guide to the things you should cover.)

Look out for:

  • Cracks, chips, holes, peeling paint, mould or water stains.
  • Worn or stained floorcoverings.
  • Dust, grease, grime, dirt, oil, cobwebs.
  • Dripping taps, deteriorated flywire.
  • Weeds, dry patches, dying plants, overgrowth.
  • Problems with hot water, stove, oven, reticulation.
  • Problems with locks, doors or windows.
  • Signs of mice or cockroaches.

SAMPLE FORMS ATTACHED:

What is the Residential Tenancies Act 1987?

The Residential Tenancies Act 1987 (WA)(‘RTA’) is legislation that sets out the rights and responsibilities of tenants and property owners/agents in Western Australia.

The RTA commenced on October 1, 1989. Various amendments have been made to the RTA. The Residential Tenancies Regulations 1989 (WA) contain various prescribed forms.

The RTA sets out:

  • Who is and isn’t covered by the Act;
  • Who is responsible for administering the Act;
  • Where and how disputes are determined;
  • Rights and obligations of the owner and the tenant; and
  • How tenancy agreements may be terminated.

See the relevant chapters in the Tenants Help for further information.

Definition of terms

Section 3 of the RTA explains how many of the key terms in the Act are defined and to be interpreted.

For example, a residential tenancy agreement is defined as:
“Any agreement, whether express or implied (written or verbal), under which any person (generally the owner or his/her agent) for valuable consideration (this generally means, but is not limited to, rent) grants to another person (the tenant) a right to occupy, whether exclusively or otherwise, any residential premises, or part of residential premises, for the purpose of residence”.

See The Tenancy Agreement for more information.

Who is covered by the RTA?

People with a residential tenancy agreement renting private residences, public housing (Department of Housing), or community housing in Western Australia are covered by the Act.

Those not covered by the Act include, but are not limited to: students living in educational institutional or college housing, hospital or nursing home residents, boarders and lodgers, people living in holiday accommodation or accommodation for holiday purposes, and aged people’s housing (RTA section 5).

The Residential Parks (Long Stay Tenants) Act 2006 (WA) (‘Parks Act’) applies to long stay tenants who reside in park homes, lifestyle villages and caravan parks. You are covered by the Parks Act if you have a

  • periodic on-site home or site-only agreement for 3 months or more; or
  • fixed term on-site home or site-only agreement that is entered into, renewed or extended after the commencement of the Parks Act.

The Parks Act does not apply to:

  • holiday makers
  • employees of the caravan park living on site
  • retirement villages
  • strata titled caravan parks
  • those who are on a written fixed term agreement commenced prior to the Parks Act coming into force.

For more information on how the RTA differs for these groups see:

Contact Tenants Advice Service for more information.

How do I resolve disputes with the owner/agent?

You should try to resolve a dispute with the owner/agent by yourself. If you can’t come to an agreement, or if the owner/agent refuses to do something they are required to do under the RTA, you can apply for a Performance Order from the Magistrates Court.

Alternatively, a government authority might have powers to order the owner to do certain things which would fix the problem. For example, Western Power can order the owner to fix electrical problems.
See

• 6.03 Going to Court,
and other sections in TAS’ Tenants’ Rights Manual for further information on how to resolve disputes.

What is the security bond for?

The owner/agent is allowed to ask you to pay bond money as security for the property. This is to cover any costs which you may be liable for at the end of the tenancy such as property damage or rent arrears.

How much can I be asked to pay?

The owner/agent can not ask for more than the equivalent of four weeks rent as bond (Residential Tenancies Act WA (1987), s.29), unless:

  • The rent is more than $1200 per week; or
  • The owner has lived in the premises as their main place of residence for at least three months immediately prior to you moving in.

If the exception applies, the owner/agent can ask for any amount as bond. Try and negotiate if you think the bond is too high.

The owner/agent can face a penalty of $1000 if an unlawful amount of bond is charged.

Bond assistance, paid by the Department of Housing (DH), is available to low income earners who need help to pay a bond on a private rental property. Contact your nearest DH office to see if you are eligible. Also see Financial Assistance for Tenants for more information.

Do DH tenants have to pay bond?

All DH tenants must pay a bond when they enter into a DH tenancy agreement, equal to 4 weeks market rent. You can arrange to pay the bond to DH by paying a minimum of $60 at the start of the tenancy and then in affordable instalments of at least $5 per week.

DH does not have to lodge the bond in accordance with the Residential Tenancies Act. For more information, see Department of Housing Tenants.

Can I be asked to pay extra money if I have pets?

If you are allowed to keep a cat or dog, an extra $260 (in total, not per pet) can be charged as ‘pet bond’.

This is to meet the cost of any fumigation of the property that may be required at the end of the tenancy. The money should be returned to the tenant at the end of the tenancy, less ONLY the expense of fumigation. If no fumigation is needed, the pet bond should be returned in full to the tenant.

Where does the money go?

The bond money is held during the tenancy in an account with either an authorised financial institution (either in a trust account or individual account), or with the Bond Administrator.

The bond lodgement provisions are intended to make sure the money is secure until both parties agree on how it should be disbursed at the end of the tenancy. The three options are detailed below.

The bond money must be held in an approved account during the tenancy.

  • 1. Real Estate agents (not owners) are allowed to put all collected bond monies into one account, in the name of the agent, held with an authorised financial institution (rather than separate account held jointly with each tenant). This account is called a “Tenancy Bond Trust Account”.
  • 2. Owners (not real estate agents) can pay the bond into an authorised financial institution to be held in an individual account in the names of the owner and the tenant titled “Tenancy Bond Account”.
  • 3. Real estate agents and owners can also lodge your bond with the Bond Administrator (managed by the Department of Commerce) in an individual tenancy bond account showing your name and the name/s of the owner.

A real estate agent who receives a bond must pay it to a bond holder as soon as possible. An owner who receives a bond must pay it within 14 days of receiving the bond. It is an offence to fail to take this action.

How do I know where my money has gone?

When you give your bond to an owner/agent:

  • The owner/agent must immediately give you a receipt showing the name of the person who paid it, the amount, date and the address of the rental property.
  • You should be asked to sign a Combined Form 1 and 8 (Lodgment of Bond Security Money) which states where the bond will be lodged. The owner/agent also needs to sign this Form. If the bond is paid to a financial institution, they may have their own version of this Form.
  • The owner/agent must keep a record of the bond payment, which includes the date, amount, name and number of the account into which the bond was paid, and must give you a copy of this record (usually a copy of the Combined Form, or similar version used by a financial institution) within 28 days of the bond being lodged. If your bond is paid to the Bond Administrator, the Department of Commerce will send you a record of the payment within 28 days of the payment.

A sample of the Combined Form 1 and 8 can be viewed on the TAS website – www.taswa.org.

If you are in a shared tenancy situation, make sure that everyone contributing to the bond has their name on the Lodgement form so as to protect their stake in the bond.

What happens if there is a change to one of the parties named in the bond account?

The details of the joint bond account (including the signatures) will need to be updated if the parties to the tenancy agreement change during the tenancy.

Details will change if:

  • the property is sold and there is a different owner;
  • one or more of the tenants in a shared tenancy decides to move out; or
  • the owner decides to employ a different managing agent.

If the Bond Administrator holds the bond, a Form 9 Notice of Variation of Security Bond must be filled out, listing whatever changes have taken place, signed by the new owner/agent/tenant, and given to the bond holder. If a financial institution holds the bond, they may have their own version of this Form.

A sample of the Form 9 can be viewed on the TAS website – www.taswa.org.

If a tenant or owner has changed without informing the bond holder (usually by lodging a Form 9) and is no longer available to sign a disposal form at the end of the tenancy, then the bond holder will not be able to release the bond. In these circumstances you will have to go to the Magistrates’ Court and ask the Court to make an order for the bond to be released.

Where joint tenants are named on the tenancy agreement and one or more decide to leave or is replaced (with the consent of the owner/agent) by new joint tenants, all parties can decide to change the tenancy agreement and have the bond paid out, then replaced by a new bond.

Alternatively Form 9 can be used to notify the bondholder of the change of tenants, so that at the end of the tenancy the bond can be paid out to the current tenants. The incoming tenant can pay the departing tenant their share of the bond.

Can the bond be increased?

Under the Residential Tenancies Act, the bond may be increased 12 months after the start of the tenancy or 12 months after the last bond increase.

But only if the rent has been increased in accordance with the Residential Tenancies Act during the tenancy AND as long as the bond is not more than four weeks rent, plus a pet bond if applicable (s. 31 (1) and (2)).

The owner/agent must give you at least 60 days notice in writing, of any increase (s.31 (1) (a)); unless you are a DH tenant. See Department of Housing Tenantsand Rent, Rent Increases and Rent Reductions for more information.

What if the owner/agent breaches the bond requirements?

The owner/agent is committing an offence if they:

  • Charge too much bond ($1000 penalty, s.29 (1));
  • Do not issue a receipt for the bond ($4000 penalty, s.29 (4));
  • Do not lodge the bond correctly ($4000 penalty, s.29 (4)); or
  • Do not give you a copy of the record of bond payment ($4000 penalty, s.29 (1)).

If the owner/agent does not comply with their obligations, you can tell them in writing that they have breached the Residential Tenancies Act, and ask them to remedy (fix) the breach and comply with the Act in future. Refer to Requesting that the Owner Remedy a Breach of Agreement and Writing a Letter to the Owner/Agent for further information about your options.

The Commissioner for Fair Trading has the power to prosecute a person for breaching the Residential Tenancies Act.

You can lodge a formal complaint by writing to the Commissioner and asking that the situation be investigated and that the Commissioner consider taking action against the owner/agent. Contact the Department of Commerce (Ph: 1300 304 054).

If your bond hasn’t been lodged correctly and the owner/agent won’t give your money back at the end of the tenancy, you should apply to the court.

Tell the court about the bond not being lodged correctly. Many courts have decided that illegally held bond money can’t be kept by the owner. This is because the owner can’t be allowed to benefit from an illegal act. See chapters 5.01 Getting the Bond Money Back, 5.03 Applying to the Magistrates Court for a Bond Disposal Order, 6.03 Preparing for Court and 6.04 Going to Court, for more information.

Should I be paid the interest earned on my bond money?

Under the Residential Tenancies Act, there is no interest payable on money lodged with the Bond Administrator.

If the money is held by a financial institution, the financial institution is required to pay interest at a rate set by the Residential Tenancies Regulations 1989. The tenant may be paid interest if the financial institution pays interest at a level above that set by Regulation. Financial institutions do not usually pay interest above the level set by Regulation.

What happens to the interest earned on my bond money?

The interest earned on bond monies is paid into a special fund managed by the state government called the Rental Accommodation Account.

The monies in this account can be used to pay the cost of the Court, Bond Administrator and the Department of Commerce in carrying out their functions under the Residential Tenancies Act, to community agencies for tenant advice and education purposes (such as Tenants Advice Service), and if there is a surplus, for the purpose of public housing.

What is a Tenancy Agreement?

A Tenancy Agreement is sometimes known as a lease. It sets out the conditions of your tenancy including things like:

  • How long can you stay for a fixed or unlimited time?
  • How much rent do you have to pay and how often?
  • Who pays the water costs? Are they shared?
  • How many people may live in the premises?

The Tenancy Agreement is a legal contract between you and the owner. It allows you to live in rental housing in exchange for “valuable consideration”.

This usually means money or the tenant’s labour. Some examples of tenancy agreements are available to download from the PropertyMyWay website (www.propertymyway.net).

Be aware that other tenancy agreements may differ from these.

The Tenancy Agreement must not include any conditions that break the law as set out in the Residential Tenancies Act WA (1987). However, not all agreements are covered by the Act. Check with TAS or the Department of Commerce (Ph: 1300 304 054) if you are not sure, especially if you live with the owner or in a shared tenancy.

Also see Boarders and Lodgers and Shared Tenancies.

A Tenancy Agreement must not include any conditions that break the law as set out in the Residential Tenancies Act.

Are there different types of Tenancy Agreements?

YES. A Tenancy Agreement can be a:

  • written contract;
  • spoken (verbal) contract, or
  • a combination of both.

It may be for a fixed or an open amount of time:

  • A “periodic tenancy agreement” is for an indefinite amount of time. There is no definite end date.
  • A “fixed term tenancy agreement” is for a definite amount of time. A fixed term tenancy has a start and end (expiry) date.

The Tenancy Agreement is a legally binding contract. There can be serious consequences if either party breaks or breaches the agreement.

It is important that you understand and agree with the conditions and obligations that are in the Tenancy Agreement. It is best to avoid verbal or partially verbal agreements because they are difficult to prove.

Sometimes only the basic conditions of the Tenancy Agreement are written, with other conditions being added verbally. Make sure that any verbal conditions or ‘promises’ are included in your written agreement. For example, any repairs or maintenance the owner/agent has agreed to.

Be wary if the owner/agent won’t write verbal conditions or ‘promises’ into the agreement, as this may be an indication that they will probably not carry it out when the need arises.

If you live in a flat or unit, your Tenancy Agreement may state you will agree to comply with strata company or body corporate rules. If this is the case, you should ask for a copy of the rules so you know what you are agreeing to. Make sure you know and understand the conditions of the Tenancy Agreement before you sign it (or agree).

Will the agreement include how much and when rent is paid?

YES. Your rental commitments will be agreed as part of the Tenancy Agreement. Whether the tenancy is a fixed term or periodic agreement, the rent may be paid weekly, fortnightly, monthly or at any other interval decided on by the owner and yourself.

For further information, see Rent, Rent Increases, and Rent Reductions.

Do I have to be over 18 to sign a Tenancy Agreement?

Generally you must be over 18 to enter into a contract. However contract law does allow minors to enter into tenancy agreements for necessaries.

Housing may fall under this category if you demonstrate that you cannot access other accommodation (for example, you are homeless or must leave home due to domestic violence, etc).

Housing is recognised as being a human right and a necessity of life and, it could be argued, cannot be withheld from someone just because of their age.

This is recognised in the Equal Opportunity Act (WA) which states that access to accommodation cannot be restricted on the grounds of age (see Discriminationfor more information). If you are having problems with someone who says you are too young to sign a contract, contact TAS.

NOTE: Some accommodation programs will have set age limits. To apply for Department of Housing (DH) accommodation you must be at least 17, however applicants between the ages of 16‐18 may be housed at the discretion of the DH depending on the applicant’s needs and circumstances. Many supported accommodation programs accommodate 15‐25 year olds.

What does the agreement say?

The agreement sets out the terms of the tenancy. These are known as conditions and will guide what happens if either party breaks one of the conditions.

It is important to be aware and understand all the tenancy conditions before you sign. Take the agreement home and read it carefully, get a friend to read and “witness” (sign) it.

How does the Residential Tenancies Act WA (1987) relate to my agreement?

The Residential Tenancies Act sets out the rights and responsibilities of the owner and tenant and how Tenancy Agreements may be ended.

These rules are not always written into your agreement but they will automatically apply to your tenancy.

For further information, see The Residential Tenancies Act. Certain parts of the Act can be changed in your agreement. To be legally binding, these changes must be written in the agreement, not just agreed to verbally. See the section below on “contracting out”.

What conditions should be included?

When you read the Tenancy Agreement ask the following questions to make sure you understand and agree to the conditions:

  • Is the tenancy for a fixed term or periodic?
  • If it is a fixed term tenancy, when does the tenancy start and finish, and can I stay on after the expiry date?
  • How much rent do I pay?
  • How often is the rent due (weekly, fortnightly or monthly)?
  • How can I pay the rent (by cash, cheque or any other method)?
  • Do I pay the rent to the owner, agent or the owner’s bank account? (Also see Rent, Rent Increases, and Rent Reductions).
  • Who pays the water costs? How will I be charged for water usage? (Also see Water Charges).
  • Can I rent rooms out to other people? (Also see Shared Tenancies).
  • Is the house likely to be offered for sale during the tenancy?
  • Do I have to get the carpets or curtains professionally cleaned when I move out? (This might depend on whether they were cleaned before you moved in).
  • Is the property to be rented ‘as is’? Does the owner or the tenant have to maintain or do repairs to the property? (Also see Maintenance and Repairs).
  • What happens if the owner wants to enter the property regularly for any reason? (Also see Privacy and Quiet Enjoyment).
  • Am I allowed to have pets? (Also see The Security Bond).

What is the ‘contracting out’ clause?

The term “contracting out” refers to clauses that can be included in your written Tenancy Agreement that change your tenancy rights as set out in the Residential Tenancies Act.

A contracting out clause may say “Sections 42 and 43 do not apply to this contract” or “Sections 40 and 45 may have been modified, excluded or restricted”, or be specific as to what is excluded such as ”The tenant is responsible for all maintenance on the property” (which excludes s.42).

The wording of a “contracting out” clause can allow the owner to modify or exclude sections of the Act without you knowing what the sections refer to or how it will affect your tenancy rights.

Do not agree to a clause if you do not understand the sections that are being contracted out and the implications this has on your rights. As at 2006, the Real Estate Institute of WA’s (REIWA) Standard Residential Property Lease takes away some rights, as provided by the Act, such as your right to do urgent repairs and claim the cost back from the owner (s.43).

If your Tenancy Agreement contains a contracting out clause, make sure you understand how it affects your rights.

The Residential Tenancies Act sets out which sections can be altered in a written Tenancy Agreement (see s.82). These include:

  • Tenant’s responsibility for cleanliness and damage (s.38).
  • Tenant’s conduct on the premises (s.39).
  • The tenant to have vacant possession of the rented property on the day the tenant is to move in (s.40).
  • The owner/agent cannot rent out the property if they know there are legal barriers to the tenant’s occupation of the property (s.41).
  • Owner’s responsibility for providing the property in a clean condition and the owner’s responsibility for maintaining and carrying out repairs on the property (s.42).
  • Compensation where a tenant sees to URGENT repairs (s.43).
  • The owner’s responsibility to provide and maintain locks. The inability of the owner or the tenant to remove or change the locks without the other party’s permission (s.45).
  • Owner’s right of entry (s.46).
  • Right of tenant to affix and remove fixtures (s.47).
  • Right of tenant to assign or sub‐let (s.49).
  • Vicarious responsibility of tenant for breach by other person lawfully on premises (s.50).
  • Cost of written agreement to be borne by owner (s.55).
  • Cost of council rates, land taxes, and/or water rates (s.48).
  • Discrimination against tenants with children (s.56).**See note.

No other sections of the Residential Tenancies Act can be contracted out. For example, under no circumstances can the owner/agent take away your right to be served the correct notices before they evict you.

**NOTE on discrimination against tenants with children:

Section 56 of the Residential Tenancies Act makes it unlawful for an owner/agent to refuse accommodation because of your intention to have a child/children live with you at the rental premises, unless the rental premises are the owner’s principal place of residence, or the owner/agent lives in the adjoining premises (next door).

Even though it is lawful for the owner/agent to contract out of this section and to, in effect, discriminate against tenants with children, you can still choose to lodge a complaint with the Department of Commerce (DoC) about the unfair practice of this section of the Residential Tenancies Act and how it has affected your access to accommodation. You can get free advice about this matter from DoC’s advice line for consumers, Ph: 1300 304 054.

Should I Get a Copy of My Agreement?

The owner must give you a copy of your agreement at the time you sign it (s. 54 (1)(a); penalty $1000) and a booklet which sets out your rights and responsibilities (s.88(2)(c) and Regulation 14, clause 2).

You should also get a fully executed copy of your Tenancy Agreement within 21 days, or as soon as practical, after it is signed (s.54(1)(b); penalty $1000).

The owner named in a tenancy agreement must provide their full name and address to the tenant at the time of entering into the tenancy agreement. If the property is being managed by a Real Estate Agency, it is sufficient for the owner to notify the tenant of the address of that Agency.

If the property is owned by a body corporate, the full name and business address of the secretary of the body corporate must be provided.

If the owner/agent changes address, they must provide the tenant with the new address in writing within 14 days. Likewise if a new owner/agent is appointed as a result of the property being sold or taken over (see  A ‘Superior Title’ Claim: Takeover of the Property).

You must be given a copy of your Tenancy Agreement by the owner/agent.

What are vermin/pests?

Vermin and pests include rats, mice, cockroaches, fleas, termites, wasps and white ants.

When is the tenant responsible for pest control?

The tenant is generally responsible for the eradication of vermin if the infestation occurs after the tenant has moved in and if the infestation can be shown to be caused by the tenant’s activities or lack of cleanliness.

Section 38 of The Residential Tenancies Act (1987) WA deals with the tenant’s responsibility for cleanliness and damage.

If you have been living in the property for several months and an infestation of cockroaches occurs, it is generally the tenant who must pay for the fumigation (unless you organise alternative arrangements with the owner).

The tenant may not be held responsible for vermin eradication when you can show that the owner is in breach of the tenancy agreement (for example, by not offering the property in a clean and safe condition) and that this breach has caused the infestation.

Alternatively, if you can show that the infestation was caused by – for example ‐ a next door neighbour keeping uncovered rubbish in the backyard, then you may refer the matter to the Local Council for action.
The issue of who is responsible for pest control can sometimes be a grey area.

Contact TAS to discuss who may be responsible for the eradication of pests from the property. NOTE: Some tenancy agreements include a clause that vermin and pests are the tenant’s responsibility.

You should try to negotiate with the owner/agent about this clause before signing the agreement.

When is the owner responsible for pest control?

As part of their responsibility for cleanliness and repairs (s.42), the owner of the rented property is responsible for pest control (including fumigation) when the pests are evident at the beginning of the tenancy.

For tenants this means that it is very important when they first see a property to look for signs of pests such as droppings in cupboards and on floors.

It is also advisable to check if the previous tenants owned cats or dogs since fleas may be breeding and not appear for a couple of months.

Negotiate with the owner for the property to be fumigated before or within the first weeks of your tenancy if you see evidence of vermin.

Have this written into your tenancy agreement under the special conditions section of the agreement. If the owner fails to carry out the agreement to fumigate, you may argue that they are in breach of the agreement and ask them to remedy the breach. For more information see When the Owner is in Breach of the Agreement and Requesting that the Owner Remedy a Breach of Agreement.

What should I do if I discover vermin after I have moved in?

If you do not discover the vermin until you move in, then contact the owner/agent immediately by phone.

It is also a good idea to notify the owner/agent in writing and attach a copy of the letter to your Property Condition Report. Request that the owner/agent take steps to eradicate the pests immediately, including fumigation if necessary.

The sooner you contact the owner/agent with the problem, the less chance they have to claim that the infestation is a result of your tenancy. Also see Writing a Letter to the Owner/Agent.

What if the owner/agent refuses to fumigate?

You may take steps for the owner/agent to get rid of the vermin if they are present from the start of your tenancy and the owner refuses to have the property fumigated.

These include:

  • You may serve the owner/agent with a Form 20A: Notice of Breach of Agreement (by owner) on the basis that they are in breach of s.42 of the Residential Tenancies Act (to provide the property in a reasonable state of cleanliness) and/or in breach of the special condition of the tenancy agreement (if it is written in the agreement that the owner agrees to have the property fumigated). A sample Form 20A is available to view on the TAS website: www.taswa.org, and can be downloaded from the Department of Commerce website: www.commerce.wa.gov.au. For more information see When the Owner is in Breach of the Agreement and Requesting that the Owner Remedy a Breach of Agreement.
  • You may serve the owner/agent with a Form 20A: Notice of Breach of Agreement on the basis that they are in breach of s.40 of the Residential Tenancies Act in that they have not provided vacant possession of the property. Although this sounds like a highly creative argument, such a position has on occasion been successful in the Magistrates Court.
  • Alternatively, you may contact the Environmental Health Officer in your Local Council. Environmental Health Officers have the statutory authority to place work orders on both tenants and owners. In order for the work order to be placed on the owner/agent, you must be able to show them that the infestation was already there when you moved into the property. In determining if the tenant is responsible for the infestation, the Environmental Health Officer may take into account the length of time the tenant has been in the property and if the tenant reported the infestation to the owner/agent early in the tenancy.

Applying for a Court Order

If the owner does not comply with the breach notice or the Council Officer does not help solve the problem, you may apply to the Magistrates Court for a Performance Order in relation to getting rid of the vermin. See Seeking a Performance Order from the Magistrates Court for more information.

Non‐toxic pest control methods

If fumigation is necessary, you may prefer the owner use non‐toxic pest control methods.

This may be more expensive and the owner may be unwilling to bear this additional expense.

You may like to consider offering to pay the difference in fumigation if you wish to use a non‐toxic fumigation method.

For more information on safe pesticide use, contact your Local Council. Some Local Councils may also provide free bait for rats or other such measures to assist in the eradication of vermin.

Tenants  Advice Service

Phone Metro Area 9221 0088 Weekdays, 8.30am – 3.30pm

Country (Freecall) 1800 621 888 Weekdays, 1.00pm – 3.30pm

If you need an interpreter, TAS will bear the cost. Contact the Translating and Interpreting Services (TIS) on 13 14 50 – available 24 hours.

Legal Aid Western Australia

Phone 1300 650 579

For more contact information click here

The Department of Commerce

The Department of Commerce (www.commerce.wa.gov.au) is a State Government department with responsibilities and functions under the Residential Tenancies Act 1987 (WA). These responsibilities include the provision of information and advice to tenants and owners, as well as conciliation functions in disputes between owners and tenants. Advice Line:

1300 304 054 TTY: (08) 9282 0800

More Community Contacts >Click Here

What are water charges?

There are two types of water charges:

  • Water rates ‐ this is a service charge for the supply of water to and from the property.
  • Water consumption ‐ this is a charge for the water used at the premises. (There is no free water allowance for any water bills.)

Who is responsible for paying water rates?

The owner is liable for the water rates assessed on the property (Residential Tenancies Act WA (1987), section 48), unless it is written into the tenancy agreement that the tenant must pay them.

It is very unusual for the water rates to be paid by the tenant, and tenants can refuse (before signing the agreement) to agree that they will be responsible for the rates. Be aware that the Owner may not rent you the property if you refuse to pay the water rates.

The owner is usually responsible for paying water rates.

Who is responsible for water consumption charges?

The Water Corporation always charges the owner for water used at rental premises.

The owner is allowed to pass this cost on to the tenant. All tenancy agreements should have something written into them about who will pay water consumption costs.

If you have an existing tenancy agreement, you should check what you have agreed about the water.

The agreement can be renegotiated during the tenancy but any changes should be recorded in writing. If there is nothing written into your tenancy agreement about paying for water, then the amount you have to pay is negotiable.

For example, you may be able to argue that you should only pay your own consumption costs but not the cost of watering the garden.

The owner can be penalised by the Water Corporation if the bill is not paid on time. In some cases this penalty may be passed on to the tenant. If you are being charged a penalty you should seek advice from the TAS Advice Line or refer to chapter Community Contacts.

The owner and/or the tenant may be responsible for paying water consumption costs; but the owner usually requires the tenant to pay all or some of the costs.

Who is responsible for reading the water meter?

The water meter should be read at the beginning of the tenancy and written on the tenancy agreement or the Property Condition Report.

The Water Corporation should do this reading as it may save the tenant having to pay for water at a higher rate per litre.

When the Water Corporation does a special reading, the new tenant will be charged at a lower rate per kilolitre of consumption.

This means that where there is more than one tenancy during a billing period, if the first tenant used a lot of water, it doesn’t make any difference to the next tenant’s water charges. But, if the Water Corporation does not do the meter reading, you may be charged at a higher rate.

The Water Corporation should do the meter reading, otherwise you may be charged at a higher rate for your water consumption.

There is a fee involved if you request the Water Corporation to do a meter reading (contact the Water Corporation for a current list of changes).

You should ask the owner/agent who is going to pay this charge. If it is going to be your responsibility it should be written into your tenancy agreement.

If it is not written into your tenancy agreement you may be able to argue that it is not something you have agreed to and therefore you don’t have to pay.

If a reading has not been carried out by the Water Corporation then the owner/agent or the tenant can do the reading.

Check that any reading done by the owner/agent is accurate. If you do a reading yourself, you should make a note of the reading on your tenancy agreement or property condition report and have a witness to support you.

However, in all cases, the Water Corporation prefers to do the meter readings and as explained above it may save you money in the long run.

Contact the Water Corporation for more information on 13 13 85 or check out their website www.watercorporation.com.au

If the property has a shared water meter (eg. one water meter shared between two or more properties) the water charges are likely to be apportioned by the owner/agent.

This means that, depending on what agreement you have, the owner will split the charge and send a bill to the tenants.

This can sometimes lead to disagreements about water usage. You should either suggest to the owner/agent that they get a separate meter installed or negotiate how the charges will be apportioned and make sure this is written into the tenancy agreement.

Should the owner contribute to water consumption costs?

How water costs are shared between the tenant and the owner should be negotiated at the beginning of the tenancy and written into the tenancy agreement.

This is usually written into the tenancy agreement as a percentage figure (whether the tenant is to pay 0‐100% of water consumption costs).

It is fair for the tenant to ask the owner to contribute something to water costs if the tenant is being asked to water a garden.

Sharing the costs for water usage is reasonable because you are helping the owner by maintaining their asset.

The amount you should pay will depend on the individual circumstances of the tenancy and how much water is likely to be consumed. For example, is it a large garden or a small garden, a single tenant household or a large family?

NOTE: Department of Housing (DH) tenants are responsible for the payment of all water consumption, as set out in DH’s Tenancy Management Policy and stated in clause 18 of DH’s current Tenancy Agreement (it is possible that not all tenants have this particular agreement – always check the tenancy Tenants Advice Service agreement).

Tenants should always take a meter reading when they first move into DH premises so as to check that DH’s reading, as recorded on the Property Condition Report, is correct.

How will I be charged for water?

There are two different ways to charge tenants for water. Whichever method is used should be written into your tenancy agreement. What you owe for water should be worked out by either of the following methods:

  • Method 1 ‐ Full cost to the tenant

The owner may pass the full cost of the water consumption directly on to the tenant. The owner/agent should provide a copy of the actual water account to the tenant for their records.

  • Method 2 ‐ Cost apportioned

The Water Corporation’s charge for water goes up as water consumption increases.

This means that the more water used, the higher the rate charged for each litre.

Rates are subject to change each year – for more information on rates, contact the Water Corporation (details on page 2 of this document).

The Water Corporation only bills for water once every six months in the metro area (once every four months for country areas) which means more than one tenancy may occur during a billing period.

Where there is more than one tenancy during a billing period and the Water Corporation has not done a special reading, the owner/agent can apportion the water consumption account.

This means that both tenants have their charges apportioned according to the rates discussed above rather than the early tenant getting cheaper rates and the second tenant paying higher rates.

The owner/agent makes this calculation, not the Water Corporation, therefore you should ask the owner to provide you with a copy of the actual account as well as any calculations. If you think the calculations are incorrect you may wish to take the action suggested in the below sections.

You can also seek advice from the TAS Advice Line or see Community Contacts.

Do I have to pay for water leaks?

The tenant is only responsible for the water they have consumed.

This does not include any water that may have been wasted due to a failure of the owner/agent to maintain the premises (by fixing leaking taps, etc).

However, the tenant does have a responsibility to report any need for repairs to the owner/agent as soon as practical (see Maintenance and Repairs).

Paying the Account

You should always ask the owner/agent for a copy of the actual water account as well as any calculations they may have made so you can check that the correct amount is being charged.

Be aware that there is nothing in the Residential Tenancies Act forcing the owner/agent to provide copies of the bill or their calculations.

However the Water Corporation holds the owner liable for water rates and consumption, even if your agreement with the owner states that you must pay the rates, consumption or both.

Therefore it is in the interests of the owner/agent to provide a copy of the bill to you, together with their calculations, if that will ensure the water bill is paid.

The Water Corporation will not issue copies of the bill to a tenant without written permission from the owner/agent.

The account for water consumption can be changed to a tenant’s name, and the tenant will then receive the bill directly instead of the owner. In order to do this the owner/agent must contact the Water Corporation and provide written authority.

The tenant must also give their consent.

If this situation occurs, the consumption bill will be for the total amount of water used at the property, which will mean that if the owner has agreed to contribute to the water consumption the tenant will have to get the owner to pay their share.

If you are having difficulty paying a water account, you should write to the owner/agent explaining the difficulty and make a proposal as to how you will pay the account. Whatever is agreed should be confirmed in writing.

Financial counsellors may also be able to assist you – see Community Contacts.

What if I Don’t Pay the Account?

If you do not pay the water account by the due date, you may be served with a Notice of Breach of Agreement.

This gives you 14 days to make the payment or the owner/agent can start action to end your tenancy.

If you are in breach of your agreement and receive a breach notice, you should write and explain why you have not paid the water account and try to negotiate a solution. See When The Tenant Is In Breach Of The Agreement for more information.

What if I disagree with what the owner says I owe?

If you disagree with a water account you should write to the owner/agent, explain the reasons you disagree and offer to pay the amount you believe to be correct (see Writing a Letter to the Owner/Agent).

If you cannot reach agreement with the owner/agent, either you or the owner/agent can apply to the Court for a decision on what is fair. See Going to Court for more information.

Has your water been restricted by the Water Corporation?

Sometimes if money is owed to the Water Corporation, it can affect your tenancy.

For example, your water may be slowed down to a trickle. If this happens:

  • You should first contact the Water Corporation to check whether there is any fault with the water supply.
  • If the owner/agent owes the money, notify the Water Corporation about it, telling them that you are a tenant and requesting that they reinstate the supply of water.
  • If you still have problems with the Water Corporation reinstating your water supply, you can contact the Department of Water for assistance (Ph: 6364 7600).
  • You also have the choice to apply to Court for a performance order that the owner pay the debt owing to the Water Corporation. See Going to Court for more information.

You need to be certain of how much you will have to pay when you find a place to rent. If you are having problems getting enough money to meet the costs, see chapter 1.06 Financial Assistance for Tenants.
At the beginning of the tenancy you may ONLY be charged:

  • A Security Bond (in most circumstances no more than 4 week’s rent) (Residential Tenancies Act, section 29(1)(b)(i));
  • A Pet Bond (if you have a cat or dog – $260 max) (s.29(1)(b)(ii));
  • Two weeks rent in advance (s.28(1)); and
  • An Option fee (s.27(2)(a)). This is sometimes charged when making an application for tenancy. An option fee is usually no more than 1 week’s rent, and the money is returned if application unsuccessful or deducted from rent if application is successful. If you get the property and decide not to move in, you may forfeit your right to the option fee and it may not be returned.

The owner may be liable for a penalty of $1000 if they require you to pay costs you do not have to pay under tenancy laws (s.27).

Make sure you get a receipt for any money you pay. Your receipt should show how much you paid and exactly what it was for.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS claims no liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

Security Bond

The bond is paid as security to the owner for any damage to the premises that may occur and/or for any monies you may owe at the end of the tenancy.

The most you can be charged for a security bond is 4 weeks rent unless:

  • The rent is more than $1200 per week (then there is no limit) (s.29(2)(a) and Regulation 15 (b)); or
  • The owner has lived in the premised as their main place of residence for at least 3 months, and has just moved out (then there is no limit) (s.29(2)(b) and Regulation 15 (a)).

See The Security Bond for more information about the security bond.

The owner/agent can face a penalty of $1000 if an unlawful amount of bond is charged (s.29).

Pet Bond

If you are allowed to keep a dog or a cat, you can be charged $260 total as a pet bond (s.29(1)(b)(ii); Regulation 15).

You can only be charged one pet bond even if you have more than one pet.

The pet bond is to cover the costs of fumigation which may arise at the end of the tenancy because you have a pet.

If fumigation is not necessary, the pet bond must be returned in full to the tenant. The owner/agent cannot use the pet bond for any other purpose.

Rent in Advance

When you start a new tenancy the owner can ONLY ask for two weeks rent in advance (s28(1): penalty $1000).

The owner cannot ask you for the next rent payment until the first rent in advance period has run out (s28(2): penalty $1000). Your tenancy agreement should show how often you will pay rent after the first two weeks.

For example, your tenancy agreement may say that rent is payable weekly, fortnightly or monthly. It is important to work out when rent is due and try to arrange for it to coincide with your pay period.

Option Fee

You may be asked to pay an Option Fee when you apply for a place (the amount is usually no more than 1 week’s rent). If you are asked to pay an option fee and you get the place, the money should be put towards your rent payments.

If you don’t get the place, the law states that the money must be refunded (Residential Tenancies Act, s.27).

If you get the property and decide not to move in, you may forfeit your right to the option fee and it may not be returned. Also see The Application for Tenancyand The Option Fee for more information.

Other costs associated with moving in

Service Charges

When you move into rental premises you often need to have services such as gas, electricity and the telephone, connected in your name.

There may be a cost for this.

You will need to contact the relevant service providers to organise this – Alinta Gas, Synergy and Telstra (or other phone companies such as Optus).

There may be a wait period for connection, so it is a good idea to contact these companies BEFORE you move in.

If it is a term of your tenancy agreement that you pay water costs, make sure a water meter reading is done. If this has not been done, you should do it yourself and make a note on your Property Condition Report. See Water Charges for more information.

Meter Reading Charges

If the electricity and gas accounts are not in your name make sure electricity and gas readings are taken when you first move in. If the owner/agent doesn’t do this, you should do it yourself. Make sure you make a note of the readings, for example on the property condition report.

It is also best to have a witness.

If your place has sub-meters for electricity and/or gas, you may be charged a fee every time the meters are read and accounts prepared. Such charges may be in breach of section 27 of the Residential Tenancies Act even if has been written into your tenancy agreement.

For more information, see Electricity and Gas Meters.

Strata and Property Fees

The owner is responsible for all rates and taxes on the property (s.48).

However, this section may be “contracted out” in your tenancy agreement by the owner/agent, meaning that you may be held liable for the property rates and taxes!

MAKE SURE TO READ YOUR TENANCY AGREEMENT CAREFULLY – see The Tenancy Agreement for more information on “contracting out”.
Tenants Advice Service – Tenants’ Rights Manual August 2011

Other Costs
Remember to take into account:

  • Furniture removal;
  • Buying household items;
  • Paying for mail to be redirected from your previous residence.

Often the owner’s obligations (and the tenant’s rights) are not written or mentioned when a tenancy agreement is entered into.

Therefore many tenants do not know what the owner’s obligations are.

The legal obligations of both owners and tenants are contained in the Residential Tenancies Act (1987) WA.

They can also be found in the information booklet which owners are required to give to tenants at the commencement of the tenancy (Residential Tenancies Regulations 1989, regulation 14 and schedule 2).

OWNER OR AGENT?

It is important to know that whilst you may be dealing directly with the real estate agent about your tenancy, it is the owner who takes on all the landlord responsibilities under the Residential Tenancies Act.

If the agent or owner does something wrong and you have to fill out a breach notice or go to court, it is the owner you will list on the forms and notices.

All tenancy agreements, whether written or verbal, must adhere to the Residential Tenancies Act.

This means that the tenant and the owner/agent have certain legal rights and obligations. See The Residential Tenancies Act for more information.

Special conditions may also be agreed between tenants and owner/agents.

In some circumstances the owner can avoid his/her obligations by writing into your tenancy agreement that they have modified, excluded or restricted a provision of the Residential Tenancies Act.

This is referred to as a “contracting out” clause. Not all sections of the Residential Tenancies Act can be “contracted out”. See The Tenancy Agreement for more information on contracting out.

Always check the written tenancy agreement in case the owner has varied or ‘contracted out’ of the provisions of The Residential Tenancies Act.

When is an owner/agent in breach of the agreement?

If the owner/agent does something they are not supposed to do, or does not do something that the tenancy agreement or the Residential Tenancies Act says they should do, they are in breach of the agreement. Some examples of owner/agent breaches are:

Do not stop paying rent in an effort to motivate the owner to fix a problem.

By not paying rent, you are breaching the agreement.

What should I do when the owner is in breach of the agreement?

There are a number of options to try in order to get the owner to act in the way the law or the agreement says they should, including:

Can I terminate my tenancy agreement because of an owner/agent’s breach?

The tenancy agreement is not automatically terminated when a term or condition of the agreement is broken. Both parties are still bound by the agreement and you must continue to pay rent and meet all your obligations until the agreement is terminated.

You should not withhold rent in an effort to motivate the owner to fix a problem as this is a breach of the agreement by the tenant.

A tenant may apply to the Magistrates Court to terminate a tenancy agreement because of the owner’s breach.

However the court must be satisfied that the breach justifies termination (ie. is serious enough) for it to make an order for termination. See Ending the Tenancy when the Owner Breaches the Agreement for more information.

What is a Breach of the Agreement?

Being in breach of your agreement means you have broken one or more of the rules of your tenancy agreement (lease) with the owner/agent. A tenancy agreement may be verbal or written or a combination of both.

The tenancy agreement sets out the rules (conditions) that you and the owner/agent have agreed to.

These rules (conditions) must follow the Residential Tenancies Act (1987) WA. Sometimes conditions that are verbal (not written into an agreement) can also count as rules (conditions).

Some sections of the Act can be changed by a ‘contracting out’ clause being put in the written tenancy agreement.

Other provisions of the Act cannot be changed and may apply even if your tenancy agreement has a different clause written in it. See The Residential Tenancies Act and The Tenancy Agreement for more information.

If you breach the agreement, the owner must take certain steps before they can end your tenancy.

What is a Notice of Breach of Agreement?

The Notice of Breach of Agreement is the written notice the owner/agent may give you if you have broken any of the terms or conditions of your tenancy agreement.

This breach notice can be on a standard form such as a Form 20: Notice of Breach of Agreement (by tenant) or a Form 21: Breach Notice for Non‐Payment of Rent or it can be just a letter, but it must be in writing if the owner wants to take any further action against you.

The breach notice must give you details of what the owner claims you have done to breach your agreement and give you time to remedy (fix) the breach. The time given must not be less than 14 days.

A breach notice must give you at least 14 days to fix the problem.

What if the breach notice is about rent arrears?

If you fall behind in the rent (this is called being in rental arrears) do not ignore the problem!

Contact the owner/agent immediately to explain your financial situation and see if you can negotiate an agreement to pay the arrears in affordable instalments.

Put this agreement in writing and make sure that you and the owner/agent sign it.

There are two alternative options for an owner/agent wanting to take action against a tenant in rent arrears. See Rent Arrears for more information.

What if the breach notice is for something other than rent arrears?

The owner/agent can issue a breach notice (a standard form such as a Form 20: Notice of Breach of Agreement (by Tenant) or Form 21: Breach Notice for Non‐Payment of Rent or a written letter) as soon as they think you have breached a part of your tenancy agreement.

The breach notice must tell you that you have not less than 14 days to fix the problem.

If you do not fix the problem within the time given, the owner/agent can issue a Form 1C: Notice of Termination (see section on Notices further on; also see Ending the Tenancy when the Tenant Breaches the Agreement). Fixing the breach after the time given in the Breach Notice does not stop the owner from issuing a Form 1C Notice of Termination.

Should I respond to the Breach Notice?

Yes. If you are in breach and can fix the problem, you should let the owner know straight away.

When you receive a Form 20: Notice of Breach of Agreement (by Tenant) or Form 21: Breach Notice for Non‐Payment of Rent, it is a good idea to send the owner/agent an immediate written response.

You don’t have to, but it is useful to have your side of the story documented, just in case the issue becomes a dispute further down the track.

Always keep a copy of your letter so it can be used later as evidence if necessary. See Writing a Letter to the Owner/Agent for more information.

What if I want to fix the problem?

If you have breached the agreement and are willing, or able, to fix the breach, you should do so within the given time and/or inform the owner/agent that you intend to fix the problem.

Always keep copies of any letters sent to and from the owner/agent.

What if I can’t fix the problem within the time given?

If you accept you have breached the agreement, but are unable to fix the problem within the given time, write to the owner/agent and if appropriate, explain why.

Try to reach agreement on when the problem can be fixed. Be aware that the owner/agent does not have to extend the time given to fix the breach. They may serve you with a Form 1C: Notice of Termination if the breach is not fixed in the time given.

What if I don’t agree there is a problem?

Respond to the owner/agent in writing explaining your reasons if you don’t agree with the owner/agent’s claims that you are breaching the agreement.

For example, if the owner/agent says you have breached the agreement by keeping a dog, but you don’t have a dog; or you do have a dog but your agreement doesn’t say you can’t. See Writing a Letter to the Owner/Agent for more information.

What can the owner do if I don’t fix the breach?

The owner/agent may give you a Notice of Termination if you don’t fix the breach within the time given (not less than 14 days).

The Notice of Termination must be in the right form; this may be one of three forms depending on the type of breach (see section below).

The Notice of Termination is not legal if it is not in the correct form. This means it can’t be enforced and you do not have to move.

How do I know I’ve been given the right Notice of Termination?

  • Form 1A – The owner/agent can give you a Form 1A if you are in rent arrears and were given a breach notice but didn’t pay the rent owing in the given time (Residential Tenancies Act, s.62 (4)). Paying rent after the Form 1A notice has been issued doesn’t stop the owner from continuing with their action of going to court. See also Rent Arrears.
  • Form 1B – The owner/agent can give you a Form 1B if you are in rent arrears and they have not given you a breach notice about the rent arrears already. A court hearing may be requested by the owner to order you to pay the rent owing and terminate your tenancy. However, under this notice the owner/agent must stop their action of going to court if you pay the rent owing at any time up to one day before the date of a court hearing (s.62(5)(a)). You must also pay the owner the cost of the court application one day before the hearing to stop the owner’s action (s.62(5)(b)). See also chapter 3.02 Rent Arrears.
  • Form 1C – The Form 1C can be given if there are other reasons (apart from rent arrears) for the owner wanting to end your tenancy. See Ending a Periodic Tenancy and Ending a Fixed Term Tenancy for more information.

A Notice of Termination will tell you that you have to move out, but this does not necessarily end the tenancy agreement.

A Notice of Termination is NOT an Eviction order

Even though a Notice of Termination will tell you that you have to move out by a certain date, the Notice is NOT an Eviction Order.

If you receive a Notice of Termination, you can stay until the owner applies to court and a decision is made about your situation.

You should go to court and tell your side of the story to the court and explain why you think your tenancy should not be terminated. See Preparing for Court and Going to Court for more information. Also see Evictions for more about eviction orders.

The Notice of Termination is NOT an Eviction Order.

What happens if I move out after getting a Notice of Termination?

If you have a periodic tenancy, the owner/agent may claim compensation if they suffer any loss as a result of you breaching the agreement.

For example, up to three weeks rent in lieu of notice or until new tenants move in (whichever is less).

Also see Ending a Periodic Tenancy. If you have a fixed term tenancy agreement, you may have to pay rent up to the date specified in the agreement or until the property is re‐let.

You may also have to pay any extra costs such as advertising incurred as a result of breaking the agreement. See Ending a Fixed Term Tenancy for more information.

It is illegal for any owner to evict a tenant without a court order. Penalty : $4000.

What if I want to stay?

If you receive a Notice of Termination, you can stay until the owner applies to court and a decision is made about your situation.

You should go to court and tell your side of the story to the court and explain why you think your tenancy should not be terminated. See Preparing for Court and Going to Court for more information.

Sample Letters

DISCLAIMER: The following is a sample letter only. You should write your own letter telling your own story in your own words (See Chapter 3.13 Writing a Letter to the Owner/Agent for information on writing your own letter).

Mr P Owner
15 Hill Street
West Coast WA 6666
1 February 2010

Mr Owner ** WITHOUT PREJUDICE
Re: Breach Notice

I am in receipt of your breach notice dated 29 January 2010.

Please accept my apologies for the damage to the washing line.

My son has learned his lesson and he will not climb on it again.

I do recognise that it is my responsibility to repair the line.

I had intended to repair it and I regret the delay.

Please be assured that I have every intention of fulfilling my obligations, and that the line will be repaired within the next week.

I trust this will be acceptable to you.

Yours faithfully,
Mrs J Tenant
136 Resident Street
Newtown WA 6666

DISCLAIMER: The following is a sample letter only. You should write your own letter telling your own story in your own words (See Chapter 3.13 Writing a Letter to the Owner/Agent for information on writing your own letter).

Mr P Owner
15 Hill Street
West Coast WA 6666

1 February 2010 ** WITHOUT PREJUDICE

Mr Owner
Re: Breach Notice

I am in receipt of your breach notice dated 29th January 2010.

I am sorry I have not yet paid my water account. I had intended to pay it by now.

I rang your office last week and explained I had an unexpected problem and that I hoped to pay it from my next pension payment.
I write to ask whether you would be agreeable to me paying the account in two payments.

This would make it easier for me and help me to ensure that I don’t end up short again before my next rent is due.

I could make the first payment of $35 on Thursday.

I look forward to receiving your response.

Yours faithfully,
Mrs J Tenant
136 Resident Street
Newtown WA 6666

** PLEASE NOTE: You may choose to write ‘Without Prejudice’ on a letter to the owner/agent, however you need to understand the legal implications of doing so.

‘Without Prejudice’ is a statement made without an intention to affect the legal rights of any person.

This means you can write a letter using ‘Without Prejudice’ and it cannot be used in court as evidence against you.

You can still bring the letter into court but you cannot give it to the Magistrate as evidence. You can verbally refer to it but only to show that you tried to negotiate a solution to the problem. You may decide to not write ‘Without Prejudice’ in your letter if you think you may want to present the letter in court as evidence.

Why should I write a letter?

Writing a letter is a useful way of keeping a record of any problems in the tenancy and any action that needs to be or has been taken.

It is also an effective way to confirm any discussions with the owner/agent and avoid misunderstandings.

Writing a letter is useful because:

  • It documents your position.
  • You can clearly state the problem or your side of the story without getting sidetracked by arguments, other issues and emotions.
  • It allows the owner/agent to consider your point of view and respond. This opens the way to negotiation.
  • It provides an opportunity to clear up any misunderstandings.

What should I include in the letter?

You should include the following in your letter:

  • State why you are writing and that you are seeking a solution to the problem.
  • Clearly describe the problem in full; even if the owner/agent is already aware of it. If there have been previous discussions remind the owner/agent of them and state dates wherever possible. If there is more than one problem, number each issue and follow the suggestions in this sheet.
  • Describe the impact the problem is having on you or your family. For example, if it is causing an inconvenience; restricting your privacy and quiet enjoyment; has created a health or safety risk; or is causing financial loss.
  • Clearly state what you want the owner/agent to do. For example, “have appropriate repairs carried out within (specify a timeframe)”; “give receipts for rent”; or “abide by our right to privacy and quiet enjoyment by giving correct notice before entering the premises”.
  • You should give the owner/agent a time limit to address the problem. This will show the importance/urgency of the matter and give you a timeframe to take the next step in resolving the problem if your first letter is not successful. For example, “immediately stop coming to the premises without notice”; “remedy the problem within seven days (or less if it is urgent)”. The timeframe (use your own judgement) should be based on the urgency of the matter and the owner/agent’s ability to fix the problem.

DISCLAIMER: While making every attempt to present general legal information accurately in this publication, TAS disclaims liability for any loss or damage arising from its use. This publication should not be relied upon as a substitute for legal or other professional advice.

  • Sometimes you will need documents (rent schedules, quotes, receipts, invoices, reports, etc.) from the owner/agent. You should ask for copies of these documents in your letter. If you already have documents that support your argument, enclose copies with your letter. Don’t send the originals, keep them for your records.
  • Invite negotiation. For example, “I would be happy to discuss this matter with you”, or you may prefer “Please respond in writing”. It is good to ask for a response in writing because this can be used as evidence at a later date, as well as to avoid any misunderstandings.
  • If the owner/agent is prepared to talk to you but refuses to put it in writing you should follow-up any conversation with a letter to document what was discussed and any agreement made. For example, “Further to our discussion today, I write to confirm that I have informed you of …. (outline your discussion) and you informed me of …. (state the owners/agent comments) and it was agreed that ……..”
  • Don’t forget to date the letter and keep a record or diary of the dates you have discussions with, or receive letters or documents from, the owner/agent.
  • It can be a good idea to put ‘Without Prejudice’ at the top of your letter so that you don’t damage your existing rights or claims if the dispute needs to be settled in court.

‘Without Prejudice’ is a statement made without an intention to affect the legal rights of any person. This means you can write a letter using ‘Without Prejudice’ and it cannot be used in court as evidence against you.

You can still bring the letter into court but you cannot give it to the Magistrate as evidence. You can verbally refer to it but only to show that you tried to negotiate a solution to the problem.

  • You may decide to not write ‘Without Prejudice’ in your letter if you think you may want to present the letter in court as evidence.
  • Your letters should show that you have been fair and reasonable. You should accept your responsibilities as a tenant and request that the owner/agent accept their responsibilities.

Remember…

  • Always keep a copy of your letters to the owner/agent.
  • Approaches to the owner should always be polite. If this doesn’t work you may need to be more formal and insistent (see the section “When should I send a Breach Notice” below).

When should I send a Breach Notice?

Sometimes it is appropriate to send a breach notice to the owner/agent with a letter, or instead of a letter. Your letter can serve as a breach notice, but if you want to be more formal you can send the owner/agent a Form 20A : Notice of Breach of Agreement (by owner) – see sample attached to the end of this chapter.

This is an official notice to the owner telling them they are in breach of the tenancy agreement, what the breach is and that you require the breach to be remedied (fixed).

When completing the form, state simply and briefly what the problem is.

The form requests that the owner/agent fix the problem within 14 days, but you can reduce the time limit if the problem is urgent. It is a good idea to send a letter with the breach notice. This allows you to describe the problem in detail (especially if it involves a number of issues).

On the breach notice state briefly what the breach is and refer to the attached letter. See chapter 3.10 Requesting that the Owner Remedy a Breach of Agreement for more information.

What if the problem isn’t sorted out?

If you can’t resolve a problem with the owner/agent by negotiation you can take your dispute to court (s.15). If this happens, you will need to prove what happened and provide a short history of the dispute to the court.

Letters to and from the owner/agent will assist the court in understanding the incidents or discussions.

They can support your story and will assist your preparation for court.

Going to court doesn’t cost a lot of money and usually won’t involve lawyers. See Preparing for Court and Going to Court for more information.

Contact Tenants Advice Service for further information.

DISCLAIMER: This is a sample letter only. You should write your own letter telling your story in your own words.

SAMPLE LETTER

Mr P Owner
15 Hill Street
West Coast
31 February 2003

** WITHOUT PREJUDICE

Dear Mr Owner

I am writing to you about your frequent visits to the premises without giving me notice.

I do not wish to offend you but I wanted you to understand my point of view.

I feel uncomfortable when you come around when I’m not expecting you, especially when I have visitors.

I am also concerned that you came yesterday when I was not home.

I received the note you left on the kitchen table. But you forgot to lock the door on your way out leaving me at risk of burglary.

I feel this is a serious invasion of my privacy.

I have sought advice on the problem and it was suggested that I write this letter to you.

I was told that Section 44 of the Residential Tenancies Act gives me the right to privacy and quiet enjoyment of the premises without interruption from yourself.

I was also informed that under Section 46 of the Residential Tenancies Act you must give me 7 days notice in writing before you come to inspect the premises.

I ask that in future you provide me with the correct notice before you come.

I was also informed that if I suffered any loss as a result of your breaching the Residential Tenancies Act I could make a claim for those losses under section 15 of the Act.

Please understand that I am very happy in this tenancy and wish to remain here on good terms with you. However, I felt it important to inform you of how I feel about this, and to ask you to follow the proper procedures in future.

Yours sincerely

Mrs J Tenant
136 Resident Street
Newtown WA 6666

** SEE NOTE IN THIS CHAPTER ON USING THE STATEMENT ‘Without Prejudice’ .

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