Who Pays for What?
A tenant should ask for a statement of all expenses before signing the residential tenancy agreement. A tenant should also get receipts for all expenses. Under the Act, real estate agents and property owners are required to give receipts for rent if the rent is paid by cash or cheque. The Act specifies what should be contained on receipts (s21). Often agents or property owners ask tenants to pay costs associated with drafting the lease, however the Act states that expenses for preparing agreements are to be borne by the property owner.
Property owners who employ agents to manage their rental properties should also note the costs involved. Property owners should ensure that the agents they engage to manage their properties do so in a way that meets the responsibilities to both the property owner and the tenant. Tenancy problems have arisen in the past because some agents, acting unprofessionally, have not properly carried out their obligations to either the owner or the tenant. Under the Property Agents and Land Transactions Act 2016, there are requirements for registration of property managers to ensure that they are qualified to act as managers (Part 2).
Rates and Taxes
The property owner cannot force the tenant to pay rates and taxes. The payment of the rates and taxes would normally be the property owner’s responsibility in the case of residential tenancies.
Water consumption charges have to be paid by the tenant but only if there is an individualised water meter for the property and only the usage component of the bill. This means that in circumstances where a tenant lives in a block of units in which there is one water meter for a number of different properties the tenant is not required to pay for water. Nor is the tenant required to pay the fixed charge of the water bill. It is strongly recommended that tenants ask the landlord to see a copy of the water bill before payment.
Inspecting the house or flat is the first step. Condition Reports, compulsory under the Act if a security deposit is required, detail the condition of the premises. Damaged items such as broken windows or carpet stains should be carefully noted. Condition Reports must be completed and signed by the agent or property owner and given to the tenant who must respond to the report within two days of the tenancy commencing. The tenant is entitled to a condition report and it should be attached to the agreement and kept in a safe place. The property owner or agent should also keep a copy of the condition report. A condition report should also be filled out at the end of the tenancy. Keeping photographic evidence of the condition of the property is also very useful. This will be central to return of a bond.
If the property owner or agent refuses to sign the Condition Report, then that person is in breach of the Act. In such circumstances, the tenant should fill out their own report and have a responsible family member or friend check off the items and sign it. This signed copy should then be sent to the property owner or agent with a letter stating why the tenant was forced to proceed in this manner. Blank Condition Reports are available from the Hobart Community Legal Service or the Real Estate Institute of Tasmania. A tenant may wish to photograph any damaged items. The prints should be initialled and dated and kept with the agreement. As well as being a requirement under the Act, condition reports make it easier for the tenant and property owner to resolve possible disputes about damage that occurred before the tenancy commenced.
The tenant should take time to properly read the agreement. A tenant who does not understand part of an agreement should not be satisfied with just any explanation. They should have it carefully explained by a person from a community legal service such as the Tenants’ Union or by a private lawyer. Any difficulties should be resolved at the outset. A tenant who is not satisfied with the agreement is free to ask the property owner or agent to change, add or remove clauses, provided this does not breach the Act.
If, after negotiation, changes to the agreement are mutually agreed to, the tenant should confirm these changes and make sure that neither their copy nor the original has any blanks ‘to be filled in later’. They should also make sure that all alterations are initialled and also the bottom of any extra attached sheets are initialled. This prevents changes being made on any copy after the tenant has signed. The tenant should also make sure that any verbal agreements are put in writing, otherwise they may be meaningless.
Repairs and Maintenance
The Act requires an owner to maintain the premises as they existed at the commencement of the tenancy, except for fair wear and tear. This means that a tenant should inspect premises as thoroughly as possible before agreeing to rent them. Any obvious signs of needed repair or maintenance should be discussed with the owner or agent at the outset. Any agreement to undertake maintenance, prior to the tenancy commencing, should be obtained in writing and signed by the agent or owner. If there are problems that pre-exist the tenancy, you may not be able to have them repaired at the expense of the owner.
Under the Act there are three categories of repairs: general, urgent and emergency. A property owner is required to provide the tenant with the names and contact details of nominated repairers who will charge the owner directly for any repairs done which were not the fault of the tenant. However, a tenant must follow specific procedures as detailed in the Act and outlined below.
A tenant is to notify the owner of general repairs needed within seven days of the need arising. The owner or agent is to carry out these repairs as notified within 7 days in the case of boarding premises, or in any other case, within 28 days, provided the need for repair is not the fault of the tenant (s32). A cooking stove element must be repaired within 14 days.
If the owner fails to carry out the required repairs, a tenant may make a complaint to the Residential Tenancy Commissioner seeking an order for the owner to carry out general, reasonable repairs. An example of a general repair would be a hole in the ceiling that appears because of the general condition of the house. Tenants are expected to undertake minor repairs that arise from general wear and tear. For example, tenants are required to replace accesible light globes and tap washers. However, where tap washers or light globes are reasonably inaccessible the owner has an obligation to replace rather than the tenant.
In the case of urgent repairs (such as repairs to an essential service like a hot water system) a tenant is to notify the owner immediately the need for the repair arises (s33). If the owner is unable to be contacted or fails to act within 24 hours of being notified, a tenant can arrange for the nominated repairer to restore the essential service to functioning level. If the owner has failed to provide a list of nominated repairers, the tenant may arrange for a suitably qualified repairer to do the required work. The suitable repairer may then repair the problem to a workable condition only. The owner is then obliged to reimburse the tenant these costs within 14 days of the account being paid. When a nominated repairer is not available and a tenant cannot afford the option of employing a suitable repairer, a tenant can seek an order for repairs in the Magistrates Court, Civil Division. Essential services include:
- removal of waste water from kitchens, bathrooms and laundries
- cooking stove (total breakdown)
- hot water service
Emergency repairs can also be urgent repairs. In the case of emergency repairs (such as severe storm damage or fire damage) the tenant is to notify the owner immediately after the emergency occurs. If the owner is unable to be contacted or fails to act and the damage will result in further deterioration of the premises, a tenant can arrange for a nominated repairer to carry out the repairs needed to prevent further damage. If the name of a nominated repairer has not been provided, the tenant can arrange for a suitable repairer to carry out the required repairs and recover the costs from the property owner within 14 days of the account being paid. Again, a tenant can have repairs enforced by the court if they cannot afford to cover the initial costs.
Reimbursement for Repairs
Reimbursement of costs requires the tenant to provide a statement from the repairer as to the need for repair, a copy of the account and a receipt of payment. If the owner disputes the need for repair, the owner may apply to the Residential Tenancy Commissioner to determine liability within 14 days after receiving these documents. The owner may succeed with their case (and be found not liable) if:
- they were not notified; or
- the need for repair was the fault of the tenant; or
- the repairs were carried out before the expiry of 24 hours notice (s36).