Rental rights you didn't know

 

These days the prospect of home ownership is slipping further out of reach for many Australians, and not just those on lower incomes.

The growing ranks of renters face a shortage of properties, high rents, low quality rental stock, and the likelihood of having to find a new place to live on a regular basis.

In short, it's ugly out there and getting uglier. Now more than ever, Australian renters need to be across their rights and be willing to exercise them. 

"Renting can, and should, be a legitimate long-term housing option for those who want it," says Yaelle Caspi from the Tenants Union of Victoria.

"Unfortunately, tenants are often unaware of their rights or are reluctant to enforce the rights they do have for fear of possible reprisal, particularly given the shortage of affordable rental properties."

With the outbreak of the coronavirus at hand, renters in Australia now have some new rights, although they're only temporary.

The federal government has agreed to a moratorium on evictions over the next six months for residential tenancies "in financial distress who are unable to meet their commitments due to the impact of coronavirus".

Tenants will also be able to terminate leases and/or seek mediation or conciliation on the grounds of financial distress. 

How all this will play out remains to be seen, but CHOICE welcomes the move. 

Aside from special measures rolled out to help Australians get through the pandemic, we outline your rights around some critical and longstanding issues.

How often can your rent be increased and by how much?

While you're on a fixed-term tenancy agreement of two years or less your rent generally can't be increased unless it's written into the agreement.

But once the term is up you'll move onto a periodic agreement or rolling lease, unless you sign another agreement. 

On these types of agreements the rent can be increased, but generally only once every six to 12 months (depending on your state or territory).

This right is notably absent in NSW, where there's no limit to how often your rent can be increased.

But you are entitled to a notice period of around 60 days around the country for any rent increase (except in the NT where it's only 30 days).

Excessive rental increases

While there are no official limits, a landlord cannot increase your rent "excessively".

If you believe the increase is excessive, you can try disputing it through your state's appropriate service – in most cases its civil and administrative tribunal.

If deemed excessive, the tribunal can issue an enforceable order preventing all or part of the increase and set a period of time during which no further increases can be applied.

How can you know if the increase is excessive?

Nothing is written in stone, but the tribunal may consider things such as:

• the range of market rents charged for similar properties in the area
• the condition of the property
• the level of repairs the landlord has done and the amount they've had to spend
• how long it's been since the last increase
• if you've paid for any work to be done
• the proposed increase compared to the current rent

While there's no uniform definition of "excessive", ACT legislation, for instance, specifies that an increase of 20% more than the average increase in rents in a given area is excessive.

When you're entitled to repairs

There's generally a distinction in tenancy legislation between urgent or emergency repairs and those that are less urgent. 

Urgent repairs are generally specified as posing a danger or likely to cause undue inconvenience, such as a dangerous electrical fault or a blocked or broken toilet.

Beyond these types of repairs, each state and territory – in theory – requires landlords to conduct repairs to maintain the property in a reasonable condition, but in practice this doesn't always happen.

Research by Consumer Affairs Victoria found that 53% of tenants had experienced problems in getting repairs completed, and only 40% who had requested non-urgent repairs reported that they were completed promptly and to an acceptable standard.  

You can't stop paying your rent if your landlord doesn't do the repairs. But you may be entitled to apply to your tenancy tribunal to have your rent paid into a special account until the repairs are done.

What sort of repairs and maintenance are covered? For non-urgent repairs, the standard of repairs you can expect will differ depending on:

• the state of the property when you moved in
• the age of the property and its prospective life, and
• the price you pay for the property (potentially).

Excessive mould as a result of structural issues or broken elements on a stove top are common, non-urgent issues where tenants should be entitled to repairs, according to the Tenants' Union of Victoria.

But many tenants are too scared to ask for repairs for fear of being kicked out.

A survey by the Tenants' Union of NSW found 77% of respondents had put up with a problem because they were worried it would adversely affect their tenancy if they asked to get it fixed.

Tenancy database blacklisting

Tenancy databases such as the National Tenancy Database provide lists of problem tenants that real estate agents can review when conducting tenant history checks.

According to our research, around 50% of renters are fearful of being "blacklisted" on such databases because it would make it harder to find a place to rent in the future (although only three percent of renters actually reported this happening to them).

While you may think exercising your rights will tarnish your rental record, there's regulation across Australia around how these databases can be used (with the NT somewhat of an outlier).

There are only two scenarios in which your name can be put on a tenancy database, and you can only be listed once your tenancy has ended:

• your rent is in arrears by an amount in excess of the bond, or
• you've breached your tenancy agreement.

You can't be listed simply because you exercised your rights.

Also, the agent or landlord is required to tell you if they intend to list you so you have time to consider and dispute the information.

You must also be told if the agent finds a listing on you when they make their checks. And listings older than three years must be removed.

Getting your bond back

In most states and territories you're required to lodge your bond with the relevant bond authority. If there's a dispute at the end of your lease, the money is held with a third party – out of reach from an agent or landlord who may not be playing fair. 

The arrangement also means you can apply to get your bond back independently if the landlord doesn't authorise its release in a timely fashion, or if there is a disagreement over the bond.

"The idea that your landlord won't give your bond back is a bit of a furphy," Ned Cutcher told us when he was a senior policy officer at the Tenants' Union of NSW. 

As soon as your tenancy is over in NSW, you have the right to unilaterally apply to the NSW Civil and Administrative Tribunal (NCAT) to get your bond back – that is, "you don't need to wait for your landlord to sign off", Cutcher says.

The landlord must then make a case to the bond board in a timely fashion if there's anything they want to complain about.

It's a similar story in Victoria. As a tenant you can apply directly to the Victorian Civil and Administrative Tribunal (VCAT) if you can't reach an agreement with the landlord on your application to the bond board.

If the landlord intends to make a claim on the bond, they must do so within 10 days of the tenancy agreement finishing.

Do you have to steam-clean the carpets when you move out?

You've scrubbed the house from top to toe, only to find your agent or landlord wants a receipt for carpet steam-cleaning before they'll give your bond back.

In New South Wales, the law is clear – it's prohibited to include a term in a lease requiring you to have the carpets professionally cleaned, unless you've agreed to it as a condition for keeping pets at the property.

Elsewhere, whether you have to steam clean the carpets or not is a little hazier. Legislation generally requires you to ensure the house is "reasonably clean" (the definition of "reasonably" will depend on the condition of the house when you moved in).

While no tenancy laws specifically require that the carpets be professionally cleaned, a landlord or agent may include it as a special term on a lease.

Some fair trading and consumer affairs bodies outside New South Wales say that if it's written into a lease (regardless of whether it was done prior to moving in) you need to honour it.

However, some consumer affairs agencies and tenants' unions suggest that carpets should only need to be cleaned if the landlord/agent cleaned the carpets prior to you moving in (it's about leaving the house in the same condition as when you moved in).

For example, Caspi argues that, in Victoria, lease provisions requiring the carpets to be cleaned aren't automatically enforceable.

"Tenants are obliged to leave the premises reasonably clean, and if carpets meet this standard by normal cleaning then nothing further is legally required," Caspi says.

"The Tenants Union of Victoria has successfully argued these types of cases at VCAT; however, many tenants continue to pay for professional cleaning even in situations where it is not required or enforceable."

If you do decide to clean the carpets, it's worth keeping the receipt, and you shouldn't be forced to use a particular company.

 

Our professional cleaning companies have a goal to earn your respect, your repeat cleaning business and your referrals. 

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