Tenant’s terminating agreements due to unattended maintenance.
Since the introduction of the amended Residential Tenancy Act, there has been a significant increase in tenants terminating rental agreements due to the owner’s failure to attend within the prescribed time frame under the Act.
It is important that as a property owner you are aware of your obligation to maintain the premises as near as possible to the condition at the commencement allowing for normal wear and tear. Tenants have more access to information and advice about their rights and some will use this section of the Act to their advantage.
When we report legitimate maintenance issues to our clients that have occurred during the course of the tenancy, we will follow through until we have a result, we often need to remind our clients that while we act for them we also understand the law and the ramifications if they fail to action the repairs.
What is considered a reasonable repair request?
The repairs do not necessarily need to impact the tenant’s standard of living to be considered necessary repairs, the section of the act relates to general (non urgent) repairs, urgent and emergency repairs, with specific notice periods for each classification. If the owner fails to attend the repairs within the prescribed time frame the tenant can either make a complaint to the tenancy commissioner to seek an order for repairs or they can terminate the agreement with 14 days’ notice to the owner. This notice does not provide the opportunity for the owner to attend the repairs, the tenant can simply vacate with no further obligation to pay rent. Our role as property managers is to avoid this course of action and protect our clients by providing the best advice we can to mitigate loss and manage the risks.
Can we dispute the early termination notice?
There have been some cases where tenants have taken this action and our clients have requested that we dispute the early termination. In all cases we have prepared the best defence possible however it will ultimately come down to facts, did the owner attend the reported repairs within the required timeframe or not. Our office spends a considerable amount of time preparing a defence for clients in these situations, often knowing what the outcome will be based on the requirements under the Act.
How will we respond as Property Managers?
Our office will determine our action based on this question, has our client attended the reported maintenance within the required timeframe or not? If the answer is no, we will notify our client that the tenants have given notice to terminate under the Act and we therefore must release them from the agreement at the end of the 14 day notice period. If we feel that our client has met their obligations under the act we will most certainly defend the claim. Regardless of the outcome, it will be our advice that repairs are made prior to re-letting the property.
Below is some information regarding maintenance requirements under the amended Residential Tenancy Act 1997.
General (non-urgent) repairs
• Both the tenant and the property owner must maintain the premises in as near as possible to the same condition it was in when the tenancy started - apart from reasonable wear and tear.
• If repairs are needed: A tenant must notify an owner/agent within 7 days; If the tenant is not at fault for the repairs, the property owner must make the repairs at their own cost. If the tenant caused the need for repair the tenant must pay any costs.
• While it is not a legal requirement that the tenant notify the property owner/agent in writing of the need for repair, it is recommended that this is done in writing (letter/email/text message) and that the tenant keep a copy of this notice. This may assist in dealing with any disputes over repairs at a later stage.
• The property owner/agent has 28 days from when they were notified by the tenant to do the repair except if the repair relates to a cooking stove in which case the owner has 14 days;
Urgent & emergency repairs
Are usually required when damage occurs (eg, a broken window from a storm). If this happens the tenant must notify the property owner of the urgent repair as soon as they are aware of the problem. Essential services include: • water • sewerage • removal of waste water from kitchens, bathrooms and laundries • electricity • heating • cooking stove • hot water service If an essential service has ceased to function, the property owner has an obligation to carry out the repairs as soon as practicable after being notified of the need for repair. An essential service requiring repair can be replaced if the replacement is of the same standard.
As an owner
You must maintain the property during the course of the tenancy agreement, to make sure it stays in a similar condition as agreed at the start of the tenancy. You must allow for reasonable wear and tear. You are responsible for the replacement of: inaccessible light globes and light tubes, tap washers, fuses not in a fuse box
As a tenant
You must keep the property in a reasonable state of cleanliness, to make sure it stays in a similar condition as agreed at the start of the tenancy. You are responsible for replacing common items such as: light globes and light tubes that are reasonably accessible, fuses in a fuse box.
Disputes and orders for repair
• The property owner must complete repairs within the required time otherwise they may be in breach of the tenancy agreement.
• Where the property owner fails or refuses to carry out repairs, the tenant should: o contact Consumer Affairs and Fair Trading on 1300 654 499 or o email firstname.lastname@example.org; or o contact the Tenants Union of Tasmania.
• As of 1 October 2014, a tenant may apply to the Residential Tenancy Commissioner, using the Online Complaint form, for an order requiring the owner to carry out repairs if the owner fails, refuses or delays the repair.
• If the tenant has a fixed term agreement they may choose to leave the tenancy by serving the property owner/agent with a 14 day Notice to Terminate for failure to carry out repair.