Residential Tenancies in NSW

The majority of residential tenancies in NSW are subject to the terms of the Residential Tenancies Act 2010, which sets out (together with the common law) the rights and obligations of both landlords and tenants in relation to their tenancy arrangements.

Disputes under the Residential Tenancies Act 2010  were heard by a specialist tribunal called the Consumer, Trader and Tenancy Tribunal until January 2014, when it became a part of the NSW Civil and Administrative Tribunal (the ‘Tribunal’), which now hears all residential tenancy disputes.

To lodge a complaint with the Tribunal, you need to fill out the appropriate forms.  NSW Fair Trading also operates a tenancy complaint service which both landlords and tenants involved in residential tenancies in NSW can lodge complaints with in certain circumstances, but this is a voluntary process.

What are ‘residential tenancy agreements’?

The Residential Tenancies Act 2010 places rights and obligations on both landlords and tenants in respect of residential tenancies in NSW (for example, a tenant’s obligation to pay rent and a landlord’s obligation to keep the premises in good repair).

A ‘residential tenancy agreement‘ means an agreement under which a tenant is given the right to occupy residential premises for use as a residence. However, certain residential tenancy agreements are not covered by the Act and therefore have different dispute resolution mechanisms.

These include (but are not limited to):

• tenancies under a mortgage
• if the tenant is a boarder or lodger
• tenancies relating to part of a hotel or motel, or
• a residence contracts under the Retirement Villages Act 1999.

The following discussion does not apply to these kinds of tenancy arrangements.

How does the Tribunal work?

The Tribunal has jurisdiction to hear residential tenancy disputes with a value of $15,000 (or $30,000 for rental bond disputes). More expensive disputes must be brought before a court.

Once a dispute is lodged by a landlord or tenant, the Tribunal will send out a ‘Notice of Hearing’ to both parties, which explains when the hearing will be and why it is being held. Before conducting a hearing into a dispute, the Tribunal will encourage the parties to take part in a confidential conciliation process. If this fails, a Tribunal member will hear the dispute and give both parties the opportunities to explain their case.

The Tribunal member will explain to you the order of events at the hearing itself. If a party wants to give evidence, they will usually be required to take an oath or affirmation. If a party is unhappy with the Tribunal’s decision it can request an internal appeal of the decision, including on questions of law.

Handling rental payment disputes

The Residential Tenancies Act 2010 contains a comprehensive set of rules dealing with the payment of rent, changing the amount of rent payable, and resolving rent disputes.

Tenants must pay their rent by the day set out in their residential tenancy agreement. However, a landlord cannot require a tenant to pay more than two weeks’ rent in advance at any time, or pay rent for a period before the end of the previous period for which rent has been paid. The tenant will be entitled to a rent receipt after each payment if they pay the rent in person.

If rent remains unpaid for a period of 14 days, the landlord may give the tenant a ‘non-payment termination notice‘ and seek a termination order from the Tribunal to terminate the tenancy if the termination date in the notice passes. If the tenant fully pays the amount of rent owing before such a termination order is made, then the Tribunal can only make the termination order if the tenant has frequently failed to pay rent on time.

Alternatively, if the tenant has overpaid rent, they may give the landlord a written request for repayment of the overpaid rent and, if the landlord does not make the repayment within 14 days, apply to the Tribunal for an order that the landlord must do so.

Handling disputes for increases in rent payable under residential tenancies in NSW

A landlord can increase the amount of rent payable under a residential tenancy agreement by giving the tenant written notice at least 60 days before the rent is increased. If the landlord fails to do so, the tenant can apply to the Tribunal for an order that the rent increase is not payable (provided the application is made within 12 months after the rent is increased).

The tenant can also request an order from the Tribunal that the proposed rent increase is excessive, in which case the Tribunal (in its discretion) can specify a maximum amount of rent for 12 months.

The rent cannot be increased for residential tenancy agreements that have a fixed term of less than two years unless the increase is specified in the agreement itself. If the rent is increased in contravention of this rule, the landlord may face a fine of $2,200. If the agreement has a fixed term of greater than two years, the tenant can terminate the tenancy for a rent increase by giving the landlord a termination notice.

Handling disputes for reductions in rent payable

A tenant may request in writing that a landlord reduce the amount of rent payable if the premises become lawfully unusable (eg they breach safety regulations) or if certain goods and services provided with the premises (eg a washing machine) are removed by the landlord. In both cases, if the landlord disagrees with the tenants’ request, the tenant can make an application to the Tribunal for a reduction in rent.

Handling repairs and maintenance disputes in residential tenancies in NSW

Under the Residential Tenancies Act 2010, the landlord has a general obligation to keep the residential premises in a reasonable state of repair.

If the tenant has to make urgent repairs (up to a maximum of $1,000) and those repairs were not as a consequence of the tenant breaching their residential tenancy agreement, then the landlord must reimburse the tenant for the cost of those repairs within 14 days after being requested to do so by the tenant. If the landlord does not reimburse the tenant, the tenant may apply to the Tribunal for orders requiring reimbursement.

Alternatively, a tenant can apply to the Tribunal for an order that the landlord is required to carry out the repairs.

Social housing disputes

The Residential Tenancies Act 2010 also applies to social housing arrangements provided by social housing providers such as the NSW Land and Housing Corporation and the Aboriginal Housing Office.

A landlord may request that the Tribunal terminate a social housing tenancy arrangement if the tenant is no longer eligible for social housing, has been offered alternative accommodation, or (if the landlord is the New South Wales Land and Housing Corporation) has breached the terms of any acceptable behaviour agreement between them.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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