We have had a couple of cases recently that has led us to question the Tenancy Act and the requirements around secondary heating repairs/replacement.
Scenario - We rent a property with two options of heating however there is an obvious main source which is a 9KW heat pump. The heat pump is in the lounge room. In addition to the heat pump there is a small "potbelly" wood heater in the same living room.
The wood heater is deemed unsafe during the tenancy and required replacement. The owner preferred not to replace it as it was only ever a secondary heating source and the heat pump was more than adequate and generally more cost effective to run.
The tenant quoted the Act and said the owner must replace it as an urgent repair. We advised the owner that our interpretation of the act was that he needed to repair or replace the wood heater on the basis it was pre existing and offered as a part of the lease agreement. We advised the owner the tenant could terminate the tenancy if he decided not to replace it regardless.
The owner replaced the wood heater at a cost of around $2000.
I questioned the RTC on the matter after a similar scenario came about. The acting RTC suggested that while it should be based on the fact there is adequate replacement heating or existing, the Act is clear on repairs/replacement. The response from the RTC is below:
"Section 32 sets out an owner’s obligation to maintain the property during the course of the tenancy, ‘in the condition that existed on the day on which the tenancy agreement was entered into.’
The condition of the item at the beginning of the tenancy would be highly relevant. If a property had a heating service, particularly one for which the tenant has spent money on running (i.e. purchasing wood), it seems the owner has an obligation to maintain that heating source. Where they fail to do so, the tenant could lawfully terminate the lease."
Lesson - If you have added a new more efficient heating source and you are advertising a home for rent be clear that the secondary heating source is not included as a part of the tenancy agreement and is not to used, you may also need to add this to the advertising to be safe. Even better, remove the secondary heater to avoid any confusion.
