31 October 2019

Uninhabitable tenancy complaints on the rise 

Consumer Protection has recently received a high number of complaints regarding unacceptable living conditions in rental properties, many of which may not have been appropriately managed by property managers and landlords, including: 

• Faulty electrical wiring – tenants were required to vacate a property as it was deemed uninhabitable due to faulty electrical wiring. The property manager was aware of electrical faults yet failed to notify the tenant. 
• Plumbing (sewage and other water) – a burst pipe resulted in ankle depth water accumulating throughout a property and the property manager failed to have the issue rectified by the lessor within a reasonable time.  
• Asbestos – tenants exposed to health risks due to presence of uncovered asbestos in property. 
• Mould – tenants exposed to health risks due to continued exposure to mould. 
• Clandestine laboratories – tenants have become unwell due to exposure to production residue from meth and other toxic gases used in its manufacture.

Termination of a tenancy agreement when property is uninhabitable

Under the Health Act 1911, local government may declare a house, or specified area/s, unfit for human habitation due to:

• a lack of cleanliness or essential services; or 
• situations where the property is dangerous and poses serious health and safety risks for the occupiers. 

Under the Residential Tenancy Act 1987 (RTA), one of the reasons a landlord or tenant can terminate a tenancy agreement is when the whole or part of the premises is rendered uninhabitable due to damage or declared as such by the local government or any other authority.

Your responsibility as a landlord

To protect the health and safety of your tenants and any visitors to the property, you are required to ensure the property complies with all building, health and safety laws. With this in mind, your obligations as a landlord include: 

• ensuring the premises is in a reasonable state of cleanliness and a reasonable state of repair having regard to its age and character both at the start and for the duration of the tenancy; 
• maintaining the premises in a reasonable state of repair and conducting any repairs within a reasonable period after the need for the repair arises; and 
• complying with all requirements in respect of building, health and safety laws. 

As a landlord, you may be liable for costs associated with any negligence if an injury or death occurs as a result of a failure to ensure the rental premises is safe, regardless of whether you or an appointed agent manages the property. You should ensure that your property manager is able to communicate with you as necessary in relation to any necessary repairs or that your property management authority includes specific instructions as to what steps will be taken should repairs become necessary to your rental property.

Emergency Situations 

Please ensure your tenants are advised to report all electrical hazards directly to Western Power (or Horizon Power in some regional areas of WA) and any gas leaks (or the smell of gas) to ATCO Gas immediately.  Once any immediate danger has been reported to the appropriate authority, tenants should then notify the property manager.

If the property you are managing is severely damaged due to an accident or other major event (storm, damaged roof etc.) and becomes unfit to live in, the lease will have effectively ended and the tenant is not expected to stay at the property. The lessor is not required to help the tenant find alternative accommodation or pay for relocation costs in the event the lease ends due to an accident or major event. It is not the responsibility of the tenant to conduct the repairs or pay for the repairs out of the bond.

Best Practice Tips

The below tips will help you meet your obligations as a landlord by ensuring a property being leased is safe and habitable:

• Exercise due care and diligence with maintenance etc. and do not allow a property to be leased if it is not fit for human habitation;
• Use periodical rental and final inspections as an opportunity to check the necessity for repairs and act on your findings;
• Do not knowingly mislead or deceive any parties, for example tenants or agents, in negotiations or a transaction, or make any false statements about essential services at the property;
• Act in the best health and safety interests of the tenant; and
• Act on requests for repairs from tenants as soon as practicable. Keep in mind your obligations under the RTA to respond quickly to essential and urgent repair requests.  

Remember keeping the property in a good condition will help you keep good tenants. Keeping a good tenant is much easier and more financial viable than trying to find a new one.

A final note

Tenants have a right to live in a property that does not pose any health and safety risks.  If an issue arises you should not dismiss or penalise a tenant for reporting an issue, requesting a repair, or exercising their rights under the legislation.