The rights, responsibilities and obligations of a tenant and landlord are outlined in State regulated Tenancy Acts, as well as encompassing a wide range of other Acts, legislation and by-laws. Trying to understand and interpret the law can often be a minefield.
We often receive telephone calls wanting clear advice on specific situations; however, it is not always easy to provide a definite answer. Legislation from State to State can be slightly different, however, one of the key focus points for managing a property is that the tenant must maintain the property in a clean condition, and the landlord must maintain the property in a fit, safe and good state of repair.
You then need to take into consideration the interpretation of the word ‘reasonable’ that appears many times in the Act. Reasonable is what takes place from the normal use of the property. Then add to this the interpretation of ‘fair wear and tear’ and you have a recipe for what we call ‘the grey area’ of the law. If you were to go to the tribunal court, the decision can often vary depending on the circumstances and the mindset of the magistrate or registrar on the day.
With this in mind we would like to explore a few areas of property management that can be open to interpretation if not included in the agreement, as well as considering the risk associated to you as a landlord.
During the process of managing your property we must adhere to the legislation and we cannot contract outside of the law as there are serious penalty fines.
Replacement of Light Globes
One debatable area can be who is responsible for the replacement of light globes. Is this a fixture and fitting of the property that must be maintained by the landlord or is the tenant responsible? It can be questioned that the tenant is responsible for the replacement of all globes, while others may come to an agreement that the tenant replaces normal light globes and the landlord replaces specialised fluorescent globes, heat lamps or globes that can be too high to replace. For example: Lighting 2 metres high or on a steep stairwell.
Clearing of Gutters
Once again is clearing of gutters cleaning or maintenance? Should it be an expectation of the tenant to climb on to the roof to clear the gutters to prevent damage to the property?
Wood Heater Services
Wood heaters must be serviced annually to ensure they are safe and also running efficiently. Some property owners would insist this is a tenant responsibility just like replacing a gas bottle or paying for electricity but what happens if the tenant forgets or simply chooses not to do this every year and as a result there is a house fire? Firstly as a property owner you would carry the burden if someone was injured or worse, secondly as the owner you have a duty of care to provide a safe environment. Once again, consider the risks when making these decisions.
Lawn & Garden Care
On most occasions it is the tenant’s responsibility to keep the lawns and gardens well maintained and tidy. However, that poses the question of confusion with reference to ‘maintenance’ being a landlord responsibility. While the tenant is responsible for lawns and gardens – should they be climbing ladders with chainsaws or the like to trim back trees and large shrubs?
Tap Washers
Another "grey area" The Act does imply that the tenant is responsible to replace these however tap washers can last for years so how do we deal with tenants who have just moved into the property to find a leaking tap a week later? The other question is, what happens if the tenant attempts to replace the tap washer from our instruction and causes damage by not installing it correctly? Often tap washers are not straightforward, particularly with older and more modern fittings.
Potential Risk & Liability Claims
As your managing agent it is our duty of care to ensure that we mitigate the risk to all parties with regards to personal injury and property damage. With this in mind it would be wise to limit the exposure to risk for the tenant. For example, you would not ask the tenant to change fuses, tamper with electrical appliances that are part of the property and you would not want the tenant climbing up ladders to clear gutters, cut or prune large trees and shrubs or to change specialised light globes. As a property owner you should understand that with the changing times and increased litigation this does have an impact on the decisions you make and what you ask the tenant to maintain be it their responsibility or not.
The moral of this story is that when you make decisions about who is responsible for what you should always consider the potential risks vs. the cost of repairs.
