This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

Tenants' Rights (WA)


When renting a home, it can be comforting to know about tenants’ rights.  In Western Australia, the legislation that governs residential tenancies is the Residential Tenancies Act 1987 and the Residential Tenancies Regulations 1989.  The government department that is concerned, among other things, with residential tenancy agreements, is the Department of Mines, Industry Regulation and Safety.  This department can provide free advice to all parties to a residential tenancy agreement.  It also considers complaints and helps resolve disputes, where possible.  Sometimes, where disputes cannot be resolved, the parties may have to attend the Magistrate’s Court to have their matter settled.

Tenants’ rights at the beginning of a lease

Tenants’ rights at the beginning of a tenancy are outlined below.

Tenants’ rights not to be discriminated against

As a prospective applicant for a tenancy, a person has a right to not be discriminated against.  This right is enshrined in the Equal Opportunity Act 1984.  This Act prevents discrimination, based on things such as sex, race, age, disability and more.

Option fee

Upon applying for a tenancy, a person may be asked to provide an option fee.  This fee is to show that the rental application is genuine and can be paid towards rent if the application is successful.  The amount chargeable for this fee is limited according to the amount of weekly rent payable and the location of the property.

Residential Tenancy Agreement

There is a standard form agreement for residential tenancies.  The clauses in this agreement must not be altered.  However, clauses can be added if both parties consent to this.  Any added clauses need to comply with provisions relating to unfair contract terms in the Fair Trading Act 2010.  Residential tenancy agreements can be periodic or for a fixed-term.

Subletting

Subletting is where a tenant rents the property or part of the property out to another tenant.  If the agreement does not refer to whether or not this is allowed, then your agreement is presumed to allow for this in circumstances where the tenant has obtained the landlord’s written consent.

Inspection report and condition of the property

Upon commencement of a tenancy, the landlord may provide the tenant within seven days with a report about the condition of the property in detail.  The tenant will have a further seven days to review this report and mark anything on it with which the tenant disagrees.

The landlord must ensure the premises are clean, vacant and that all utilities and appliances are working on the day the tenant enters the property to commence the tenancy.

Bond

The tenant will most probably be required to pay a security bond to the landlord at the commencement of the lease.  This is for any damage to the property or unpaid rent that the tenant may be liable for at the end of the tenancy.  The landlord must issue a receipt for this bond and must lodge the money with the Department of Mines, Industry Regulation and Safety to the Bond Administrator.

In Western Australia, a separate bond can be charged where the tenant is keeping a pet on the premises.

Tenants’ rights during a lease

During the lease, the landlord and the tenant have responsibility for different things.  A tenant must keep the property clean and tidy and is responsible for general household maintenance, while the landlord must keep the premises in a reasonable state of repair and ensure the property complies with health and safety laws. The tenant is responsible for damage that is done to the property but not for damage as a result of fair wear and tear.

Responsibility for repairs and maintenance

If something breaks or needs repairing, the tenant will generally need to seek the landlord’s consent before attempting to fix it or hire someone to come to the premises to fix it. The exception to this rule is where something breaks that urgently needs to be repaired in order to restore an essential service such as gas or electricity or to ensure safety or further damage is not done to the property.  In these circumstances, the tenant must inform the landlord that urgent repairs have been done as soon as possible.

Landlord’s right to enter

A tenant is entitled to the “quiet enjoyment of the property”, or, in other words, peace, comfort and privacy.  Landlords may enter the property for various reasons.  However, in almost all circumstances, they are required to give notice when they intend to do so.  The amount of notice that they are required to give depends on the purpose for which they intend to enter the property.

Landlord’s right to increase rent

Rent increases are only allowed in fixed-term tenancy agreements if the agreement allows for this and there have been more than six months since the previous increase.  With periodic tenancy agreements, rent cannot be increased more than once each six months, and the landlord must serve the tenant with the proper notice for increasing the rent.

Tenants’ rights at the end of a lease

Fixed-term residential tenancy agreements do not automatically expire at the end of their specified term. For the tenancy agreement to end, either the landlord or the tenant must give notice to the other party of their intention to end the agreement. This notice must be given 30 days or more before the end of the fixed-term lease. If the agreement is not ended in this way, it will continue as a periodic tenancy agreement.

For a periodic tenancy agreement to end a landlord must give 60 days’ notice to the tenant, and a tenant must give 21 days’ notice to the landlord of their intention to end the agreement.

If a tenant needs to leave a tenancy early due to some unforeseen circumstances, it is a good idea to explain the circumstances to the landlord at the earliest opportunity. The tenant may be liable to pay for costs incurred by the landlord as a result of leaving early, such as the cost of advertising for new tenants.  They may also be liable to pay rent until a new tenant is found. However, there is an obligation on the landlord to mitigate his or her losses.  This means they must do the things in their control to reduce their loss due to your leaving, e.g. doing what they can to find new tenants.

Evictions

A landlord may seek to evict a tenant due to their belief that they have breached the tenancy agreement. They may serve a notice outlining the breach and requiring the tenant to vacate the premises within a certain timeframe. If the tenant does not vacate the premises, they may apply to the magistrate’s court for an order that they must leave. The order can be enforced with a warrant.  A tenant cannot be evicted from a property without a court order.

Final inspection and return of bond money

After a tenant moves out the landlord will conduct a final inspection of the property.  They will advise the tenant if they feel there is any damage done to the property for which they feel the tenant is responsible.  They may seek to take money out of the bond paid at the beginning of the tenancy to pay for repairs.  If the tenant disagrees with the landlord’s assessment of the damage, they can refer to the inspection report completed at the beginning of the tenancy.  If the issue cannot be resolved, an order may need to be sought from the magistrate’s court about the damage.

Resolving disputes

If a tenant believes the landlord has breached the residential tenancy agreement, it is a good idea to try to, at first, resolve the issue with them directly and informally. If this is unsuccessful, there is a more formal path that involves the use of a specific form that outlines the breach.  The tenant then serves this form on the landlord. If this process does not resolve the dispute, a claim may need to be made in the magistrate’s court.

Tenants’ rights and domestic violence

If a tenant is a victim of domestic violence there are ways by which they can get out of the lease without penalty or have the perpetrator removed from the property.

If you require legal advice or representation in relation to tenants’ rights or in any other legal matter, please contact Armstrong Legal.

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