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During a Tenancy

Contributed by Peter Christensen and Tenancy Advice Service (a division of Legal Aid ACT) and current to March 2020.

Access and Privacy

A tenant is entitled to 'quiet enjoyment' of the premises. This means they are entitled to use the premises free of any interference from the lessor, and that the premises and any facilities provided with the premises are kept in good repair. A lessor or agent is not entitled to come onto the premises unless they have arranged an inspection as required under the residential tenancy agreement.

The Standard Tenancy Terms permit:
  1. one routine inspection in the first month of the tenancy;
  2. one inspection in the last month the tenancy; and
  3. no more than 2 routine inspections in every year of the tenancy.
For these inspections, the lessor must give one week's written notice. A tenant does not have to agree to a proposed inspection time and can negotiate another time. If the parties cannot agree, either party may apply to ACAT to determine the time. It is often the case with real estate agents that they indicate they will have an inspection on a particular day between 9:00 am and 5:00 pm. A tenant is entitled to object to such a wide window and negotiate a more specific time.

Inspection for repairs

In addition to the above, the lessor may come onto the premises to make or inspect repairs. Generally one week's notice should be given for this but it will depend on the nature of the repairs. It is generally in a tenant's interest to have repairs carried out expeditiously.

Bond

If a bond is required it is paid by the tenant and held by the ACT Revenue Office: Rental Bonds. It remains with the ACT Revenue Office: Rental Bonds for the duration of the tenancy.

Although the bond is normally calculated at, and is not allowed to exceed, 4 weeks rent, a lessor cannot require the bond to be increased if the rent increases.

Payment of Rent

A tenant is required to pay rent on time and in full during the tenancy. Failure to pay rent is a ground for terminating the tenancy.

The agreement may specify the mode of payment of rent, with which the tenant should comply. The lessor must provide at least one mode of rent payment that does not impose additional costs on the tenant. Unless the rent is paid by direct debit into a bank account nominated by the lessor, the lessor is required to provide a receipt. The lessor is required to keep records of the payment of rent for at least 12 months after the tenancy ends.

Maintaining the property

During a tenancy, the tenant is required to look after the property and keep it reasonably clean.

A tenant must take reasonable care of the premises and not negligently or wilfully cause damage to it. This includes being careful not to drop heavy objects on tiled floors, not spilling red wine onto carpets and protecting polished floors. If the tenant keeps a pet they should ensure the pet does not cause damage to the premises.

A failure to comply with these requirements may lead to a claim by the landlord against the bond for the repair or cleaning at the end of the lease.

Repairs

The lessor is required to keep the premises in a reasonable state of repair. This means undertaking necessary repairs during the course of the tenancy to maintain the property at the state it was in at the commencement of the tenancy and always in a reasonable condition. This obligation applies to facilities provided with the premises (e.g. washing machines, dryers, air conditioners etc.). It is no answer for a lessor to fail to repair these items on the basis that the lessor was not required to provide them in the first place.

A necessary corollary to this is that the tenant has an obligation to advise the lessor of the need for repairs. Some repairs are urgent repairs. These are set out in clause 60 of the Standard Tenancy Terms ('STT') as follows:
(a) a burst water service;

(b) a blocked or broken lavatory system;

(c ) a serious roof leak;

(d) a gas leak;

(e) a dangerous electrical fault;

(f) flooding or serious flood damage;

(g) serious storm or fire damage;

(h) a failure of gas, electricity or water supply to the premises;

(i) the failure of a refrigerator supplied with the premises;

(j) a failure or breakdown of any service on the premises essential for hot water, cooking, heating or laundering;

(k) a fault or damage that causes the residential premises to be unsafe or insecure;

(l) a fault or damage likely to cause injury to person or property;

(m) a serious fault in any door, staircase, lift or other common area that inhibits or unduly inconveniences the tenant in gaining access to and use of the premises.

Urgent repairs should be carried out as soon as necessary depending on the nature of the repair required. Other repairs should be carried out within 4 weeks of notification (unless otherwise agreed by the tenant). A failure to repair entitles the tenant to damages for a reduction in amenity of the premises.

If a lessor fails to undertake a repair, or withdraws any service or appliance in the premises or causes any other interference with the tenant's use of the premises, the tenant may have grounds for an application to reduce rent under s 71 of the Residential Tenancies Act 1997 (ACT) ('the Act').

COVID-19 NOTICE: On 22 April 2020 the ACT Government made the Residential Tenancies (COVID-19 Emergency Response) Declaration 2020. This declaration changed the timeframe in which lessors are required to complete non-urgent repairs from 4 weeks to within a reasonable period as agreed with the tenant. For more information, see the Tenancy Advice Service Tenancy and COVID-19 factsheet.

Rent increases and reductions

Rent cannot normally be increased during a fixed term unless the agreement specifically sets out the amount of the increase or a method for working out the increase. In other circumstances, the rent can generally be increased once in every 12 months. To seek a rent increase the lessor has to give 8 weeks' notice of the proposed rent increase. However, the lessor cannot increase the rent by more than 'the prescribed amount'.

The formula used to find the prescribed amount is linked to the rents component of the house group of the Consumer Price Index ('CPI') for Canberra published by the Australian Bureau of Statistics. The prescribed amount is 110% of the percentage increase for Canberra. In other words, the lessor can increase the rent on a property by ten percent more than the increase in the CPI without it before it becomes excessive.

It is possible for the lessor to increase the rent by more than the prescribed amount if the tenancy agreement permits the increase, the tenant agrees to the increase in writing upon receiving notice, or the lessor obtains ACAT approval for the increase.

Even if a proposed rent increase is not excessive, a tenant has the right to dispute the proposed rent increase in ACAT. After disputing the proposed rent increase in ACAT, and before ACAT makes a final determination on the matter, a tenant is not obligated to pay the rent increase. However, if the tenant remains in the premises after the proposed rent increase is to begin without disputing it in ACAT, they are obligated to pay the rent increase.

COVID-19 NOTICE: On 22 April 2020, the ACT Government made the Residential Tenancies (COVID-19 Emergency Response) Declaration 2020. This declaration prohibits lessors from increasing rents on 'Impacted Households'. For more information, see Legal Aid ACT's Tenancy and COVID-19 factsheet.

Mould

A problem that afflicts some rental properties is mould, particularly, given Canberra's climate, in winter. Mould occurs where parts of premises remain damp over a period of time. It could occur as a result of many things: the structure of the property, lack of ventilation, leaking pipes, drying washing inside, not opening windows or using a ceiling fan when showering. Lessors often accuse tenants of failing to keep windows open or otherwise not allowing ventilation of the property causing build-up of mould.

The laws relating to mould are no different to other types of damage/repair.

A tenant is entitled to reasonable use of the premises. This includes carrying out usual living activities such as showering, washing and the like. Where activities may cause mould, a tenant is required to use the facilities provided to minimise the risk, e.g. using a ceiling fan when showering, opening windows when appropriate, mopping up spills etc. It is not generally appropriate to require tenants to keep windows open in inclement weather, or where an open window may be a security risk, or to take extraordinary measures to avoid mould.

In addition, tenants need to advise the lessor of the need for repairs which would include any signs of mould starting or water leaks and any breakdown in bathroom fans. However, if the mould builds up despite the tenant taking these reasonable steps, or the mould is as a result of a problem with the premises (including leaking pipes), it is the lessor's responsibility to repair, and potentially pay compensation for a tenant's losses. Equally, if the mould is caused by the tenant's neglect or wilful action, they may be liable for damages.

Pets

Recent amendments to the Act have changed the process for approving pets. If the tenancy agreement does not require the lessor's approval to keep a pet, there is no impediment to keeping a pet. However, a tenant is still responsible for any damage to the premises caused by the pet.

If the agreement does require the lessor's approval to keep a pet, the tenant may make an application to the lessor for permission to keep a pet. Section 71AE of the Act states that the lessor can only refuse permission with the approval of ACAT.

The lessor may grant consent and impose conditions on the keeping of the pet, if the condition relates to the number of pets kept on the premises and/or any cleaning/maintenance required as a result of having a pet. Any other conditions would require the approval of ACAT.

Making alterations to the property

Recent amendments to the Act have changed the way in which tenants may make modifications to property. Per s 71AB of the Act, if a tenancy agreement requires a tenant obtain the lessor's consent to renovate or make an alteration or addition to the premises, the tenant may apply in writing to the lessor for the lessor's consent.

The lessor may refuse consent for 'special modifications' only with prior approval from ACAT, and for any other modification the lessor must not unreasonably refuse consent. However, the lessor may impose reasonable conditions on consent.

A special modification is defined in s 71AA of the Act to be:
(a) a 'minor modification'; or

(b) a renovation, alteration or addition for 1 of the following reasons:

(i) the safety of the tenant or other people on the premises (e.g. furniture anchors, child safety gates or fittings);

(ii) on written recommendation of a health practitioner--to assist a tenant in relation to the tenant's disability (e.g. access ramps, safety rails);

(iii) to improve the energy efficiency of the premises;

(iv) to allow access to telecommunications services;

(v) the security of the premises, or the tenant or other people on the premises (e.g. deadlocks, security doors, security alarms);

(vi) any other reason prescribed by regulation.

A minor modification is further defined as:
(a) a renovation, alteration or addition that can be removed or undone so that the premises are restored to substantially the same condition as the premises were in at the commencement of the agreement, fair wear and tear excepted; or

(b) a modification prescribed by regulation.

Subletting

It is unlawful for a tenant to sub-let or assign the premises without the lessor's consent, although the lessor should not unreasonably withhold consent. Merely having a guest or visitor stay over, provided there is no commercial element, is not sub-letting.

Sub-letting occurs where the tenant lets out the whole or part of the premises to a third party. This includes short terms arrangements such as Air B-n-B. Assignment is where the tenancy is transferred to a third party.

Two consequences apply if the tenant sub-lets/assigns the premises:
  1. it is a breach of the tenancy and the lessor may seek to evict the tenant; and
  2. the sub-tenant has no legal rights and may be removed by the Police as a trespasser.

Sale of premises

Where the lessor genuinely intends to sell the premises they can end the periodic tenancy if they give the tenant 8 weeks' notice. The sale of the property does not automatically end a tenancy - the tenancy can continue with the new owners. However, many tenants find having to undergo open houses and other inspections involved with the potential sale stressful and may choose to seek to end the tenancy. If the tenancy is periodic they can do so on 3 weeks' notice.

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