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3. During the Tenancy

This chapter is Contributed by staff of Tenancy WA and current to December 2018

3.1 Rent

3.1.1 Rent in advance

It is a term of prescribed residential tenancy agreements forms 1AA and 1AB that the tenant pays rent in advance.(1) The lessor must not require the tenant to pay more than two weeks’ rent in advance before or during the first two weeks of the tenancy.(2)

Similarly, the lessor must not require the tenant to pay more than two weeks’ rent in advance during the tenancy. Further, rent (other than the first payment) must not be required until the period in respect of the previous payment has elapsed.(3)

There is a potential fine of up to $5 000 for contravening the above requirements.(4)

A tenant may choose to pay more rent in advance (eg choose to pay rent monthly), but it cannot be an enforceable term of the agreement and the tenant can go back to paying fortnightly if they wish to do so.

Rent is commonly paid fortnightly, but the parties may agree that it be paid at any other interval. The only limitation is that, if rent is paid in advance, the lessor must not require more than two weeks' rent in advance. So, if rent is to be paid in advance, the parties may agree that it is paid weekly or fortnightly, but not every 15 days, nor every three weeks, nor monthly, nor any other period greater than two weeks. If rent is agreed to be paid at the end of each rental period, then the parties can agree that it be paid for any rental period. For example, the rent could be paid at the end of each month, for the month just gone. Having said all this, the prescribed forms 1AA and 1AB only provide for rent to be paid in advance, and on either a fortnightly or weekly basis. As a written tenancy must use the prescribed form the effect of this is that the parties may only agree, in writing, for rent to be paid in advance on a weekly or fortnightly basis. The same limitation does not apply, however, to verbal residential tenancy agreements, because there is nothing in the Residential Tenancies Act 1987 (WA) itself which says that rent may only be paid in advance on a weekly or fortnightly basis.

If the tenant mistakenly pays too much rent, the tenant could apply to the Magistrates Court to recover the outstanding amount from the lessor, or deduct the amount from the upcoming rental payments.(5)(6)

Limitation period: the tenant has six years to commence proceedings, running from each date the tenant has overpaid rent.

What does 'Rent in Advance' Mean? Paying rent in advance means that the tenant pays the rent at the start of the period for which the rent is paid. For example, in the case of rent paid fortnightly, when a tenant moves in(7), they pay 14 days’ rent on day one. This runs down over the fortnight so that at the end of day 14, the tenant is no longer in advance. The next day is the start of the next 14-day period, so the tenant has to pay rent again.

3.1.2 Payment methods

A residential tenancy agreement will usually specify the method by which the rent must be paid.(8) If the method of payment is not specified, the tenant can choose to pay the rent in the form of cash, a cheque or by direct deposit.(9)

3.1.2.1 Cash or cheque

If a person pays rent in the form of cash or a cheque, the lessor must provide a receipt for the payments (unless the lessor is the Housing Authority(10)) and keep a record of the rent received (see 3.1.3. Receipts/Records for further discussion).

The lessor must not require the tenant to pay by post-dated cheque or by any other post-dated instrument.(11) A ‘post-dated cheque’ is a ‘cheque that is dated later than the date of execution.’(12)

3.1.2.2 Direct Deposit

A tenant may pay rent into an account at an ADI (authorised deposit taking institution) nominated by the lessor.(13) An ADI is defined in the Banking Act 1959 (Cth) as a body corporate granted written authority to carry on banking business in Australia.(14) In other words, a tenant can pay rent into the lessor’s nominated bank account (or other authorised deposit taking institution).

If the tenant pays rent by direct deposit, the lessor is not required to provide a receipt for the payments.(15)

3.1.2.3 Other methods

3.1.2.3.1 Deduction from pay

An employer may grant an employee a right to occupy premises as a condition of the employment. In such cases, the employer need not give a separate receipt for rent(16) where:
  1. the rent is paid by direct deduction of the employee’s salary or wage; and
  2. the employee's pay slip or salary advice details the rent component.(17)

For further discussion of employment-related tenancy agreements, see 12.1.21.
3.1.2.3.2 Direct debit

A direct debit is an agreement by which a person (here, the tenant) authorises another person (the lessor) to withdraw money from the tenant's bank account. A direct debit may be set up to pay recurring debts such as rental payments automatically as and when they fall due.

A tenant who is asked to pay their rent by direct debit should read their direct debit request form very carefully before they sign it. The direct debit request may be on whatever terms the tenant agrees to grant, but the form is usually created by the lessor's real estate agent, rather than the tenant. As a result the direct debit request form may give the lessor the right to debit any amount that the lessor deems owed by the tenant under the agreement. This may result in the tenant having amounts deducted directly from their account in circumstances where the tenant disputes liability for the payment in question. For example, the lessor may increase the rent without giving the required notice under the Residential Tenancies Act 1987 (WA). If the tenant has an unrestricted direct debit agreement in place, the lessor would be able to debit the increased rent from the tenant without notice to the tenant. In the absence of a direct debit agreement, the lessor would have to ask the tenant to increase their rent payments, and the tenant would be able to dispute the increase before they paid it.

It is difficult to imagine why, given the choice,(18) a tenant would want to give a direct debit authority to a lessor when they can simply set up a recurring direct transfer request with their bank with no charge and retain control of their own finances. A clear explanation of the direct debit system, and discussion of its disadvantages and benefits for tenants is found at https://www.tenantsact.org.au/what-rent-payments-options-are-there/. Direct debit arrangements may have considerable advantages to real estate agencies if they are integrated with book keeping software to automatically create rent ledgers and trust account management records.

If the lessor is the Housing Authority, the tenant can set up the direct debit by downloading and completing the Direct Debit Request form available on the Housing Authority website or obtaining a copy from the tenant’s local Housing Authority office.

3.1.2.3.3 Centrepay

A tenant who receives Centrelink can choose to use Centrepay to arrange regular rental deductions from their Centrelink payments. The tenant will need to give Centrelink permission to do so. Centrelink will charge the lessor a fee to accept Centrepay, however, the lessor cannot pass this fee onto the tenant or charge the tenant a fee for using Centrepay.

Further information on Centrepay can be found on the Centrepay website.(19)

3.1.2.3.4 Third party payment methods (e.g. DEFT)

Rent may be paid through a third-party processor such as PayPal or DEFT. Third parties invariably charge fees which, in most cases, the parties could avoid simply by paying by direct deposit.

DEFT currently charges fees of $0.85 per transaction for bank account transactions other than BPAY, and credit card surcharges of between 1.5% and $3.773%. For example, over the course of a year, paying $400 per week rent fortnightly by DEFT would result in the following fees:

1. Using a credit card at

a. 1.5% - $312;
 
b. $3.773% - $784.

2. Using direct debit $22.10 (if the rent was paid weekly, this amount would double).

DEFT fees and surcharges are charged to the biller. In the case of a tenancy the biller is the lessor. The DEFT Payer Product Disclosure Statement states:
When a payment is made by an option described in the table below, we may charge fees and surcharges to your Biller. Your Biller may choose to pass these fees and surcharges on to you. Where your Biller has chosen to pass on any of the fees and surcharges, we collect the fees and surcharges on behalf of your Biller as part of the overall payment transaction.

The lessor, however, would appear to be prohibited from passing on these fees and surcharges to the tenant by s 27(1) of the Residential Tenancies Act 1987 (WA), which prohibits the lessor from receiving any monetary amount from a tenant for or in relation to a residential tenancy agreement other than rent and a security bond. Breach of the section is punishable by a fine of up to $5000. The lessor who chooses to specify that rent must be paid by DEFT, should therefore be prepared to pay any associated fees him or herself.

In the case of PayPal, the person receiving the payment currently has to pay a fee of 2.6% plus 30 cents for each online payment. As an example, over the course of a year, a lessor would incur fees of about $550 on a $400 per week tenancy paid fortnightly. The lessor who tried to charge these fees directly to the tenant would also probably fall foul of s 27(1) of the Residential Tenancies Act 1987 (WA) (see above in respect of DEFT).

3.1.3 Receipts/records

The lessor must give the tenant a receipt within three working days after receiving the rental payment, unless the rent is paid directly into an account nominated by the lessor,(20) if the lessor is the Housing Authority,(21) or if the parties have entered into an employment-linked residential tenancy agreement where the rent is deducted from the employee’s salary or wage and the employee receives a pay slip or salary advice detailing the rent component deducted from the salary or wage.(22)

Where rent is paid directly into an account nominated by the lessor, the lessor does not have to provide a receipt for it. If the tenant later needs proof of such payments it may be provided by the tenant’s own bank statements and/or receipt from the bank (or other financial institution) given at the time of the deposit.(23)

Where the lessor does have to provide a receipt, the rent receipt must state the date the rent was received, the name of the person paying the rent, the amount paid, the period of the tenancy, and the address of the rental premises.(24)

The lessor is also required to keep a proper record of rent (rent ledger) stating:
  • the fact that the payment is for rent;
  • the date the rent is received;
  • the name of the person paying the rent;
  • the amount paid;
  • the rental period covered by the payment; and
  • the address of the rental premises.(25)

The lessor must not make any entry in the rental ledger that they know is false or misleading in a material particular. There is a potential fine of $5000 for doing so.(26)

3.1.4 Overpayment and apportionment

Rent accrues from day to day and must be apportioned accordingly when the agreement terminates.(27) This means that the tenant will only be liable for rent up until the date that the tenancy terminates (even if this date is not at the end of the payment period).

For example, if the tenant delivers up vacant possession on the day the tenancy terminates on 22 May 2018, but the tenant has already paid rent in advance for the rest of the week until 27 May 2018, the tenant should be refunded the excess five days’ rent.

If the lessor refuses to refund the tenant the excess rent, the tenant can commence proceedings against the lessor under s 83 of the Residential Tenancies Act 1987 (WA) (recovery of amounts paid under mistake of law or fact).

Limitation period: the tenant has six years to commence proceedings, running from the day that the tenant mistakenly overpaid.

3.1.5 Failure to pay rent with intention it be recovered from the security bond

It is an offence for a tenant to fail or refuse to pay any rent due with the intention that it be recovered by the lessor from the security bond.(28) There is a potential fine of up to $5000 for a tenant who contravenes this requirement.

3.1.6 Rent increases

The amount of rent the tenant pays under the agreement can only be increased in accordance with the Residential Tenancies Act 1987 (WA). Rent increases are covered by two sections:
  • 30. Variation of rent (except where calculated by reference to tenant's income); and
  • 31A. Variation of rent where calculated by reference to tenant's income.

3.1.6.1 Rent increases (Except Where Rent is Calculated by Reference to the Tenant's Income)s30

Where rent is not calculated by reference to the tenant's income, section 30(1) of the Residential Tenancies Act 1987 (WA) sets out the only circumstances in which a lessor may increase the rent:

  • Any rent increase cannot take effect until six months have passed since the commencement of the agreement or the date of the last increase.(29)
  • The lessor must provide not less than 60 days’ written notice of the increase.(30) The notice must be on a Form 10 (Notice to Tenant of Rent Increase), and must specify the amount of the increased rent and the day from which the increase becomes payable.(31)

3.1.6.2 Rent increases Where Rent is Calculated by Reference to Tenant's Income

This usually applies if the tenant is renting from Housing Authority or a community housing provider.

The method by which rent is calculated from the tenant’s income may be changed only in accordance with the process set out in s 31A of the Residential Tenancies Act 1987 (WA). This applies to both periodic and fixed term agreements, if the rent is calculated by reference to the tenant’s income.

If the rent is calculated by reference to income, the restrictions on increasing the rent only apply if the method of calculating the rent is changed.(32) They do not apply if the rent increases as a result of changes in the tenant or household income. So the rent may increase (or decrease) at any time in accordance with the residential tenancy agreement – eg if it is 25% of the tenant’s income, and the tenant's income increases, then so will the rent.(33) If however, the lessor increased the percentage to 30% of the tenant’s gross income, then the lessor must provide the required notice.

The lessor must provide not less than 60 days’ notice for the change to the calculation method.(34) The method of calculation must not be changed during the first six months of the tenancy, or within six months of the last time the method was changed.(35)

Notice must be on the prescribed Form 11 (Notice to Tenant of Rent Increase Calculated by Tenant’s Income), and must set out the change to the method, and the day from which the change will take effect.(36)

Some community housing providers work out the rent based on the tenant’s income, and then provide the tenant with a fixed term agreement with a set amount of rent. This is a normal fixed term agreement, and is covered by the rules for a fixed term, not the rules for a tenant with rent set with reference to the tenant’s income.

Rent rates and collection practices differ across the social housing sector and are covered by a range of policies, including the Housing Authority’s policy on Community Housing Rent Setting which is available here: http://www.housing.wa.gov.au/HousingDocuments/CH_Rent_Setting_Policy.pdf and the Community Housing income and Asset Limits policy which is here: http://www.housing.wa.gov.au/HousingDocuments/CH_Income_and_Asset_Limits_Policy.pdf

These issues are covered in more detail in the Social Housing Chapter, which is under development.

3.1.6.3 Rent increases and fixed term agreements

Rent can only be increased during a fixed term if the amount of the increase, or the method of calculating the increase, is set out in the tenancy agreement.(37) For example, the agreement could set out the increase as being $20 per week (amount of increase), or that it will be increased by the same rate as the CPI(38) or a percentage amount (method of calculating increase). It is not unknown for a fixed term agreement of more than six months to contain a rent increase term or terms. The vast majority of fixed term agreements are for 12 months, and these sometimes provide for a rent increase six months into the agreement. Tenants should be careful to check any proposed fixed term residential tenancy agreement for a rent increase clause before they sign it. The prescribed form agreements (Forms 1AA and 1AB) both contain a rent increase clause (under the heading RENT INCREASE in Part A).

If a fixed term agreement is for longer than 12 months, it may also have a term providing for (additional) increases after the first 12 months.(39) It is important to also check the residential tenancy agreement for these clauses (they may be contained in the Special Conditions – Form 1AA Part C).

Where a fixed term agreement ends and the parties immediately enter into a new agreement for the same premises for a higher rent,(40) the lessor does not have to provide 60 days’ notice to increase the rent, but for the first 30 days of the new agreement the tenant cannot be required to pay an amount of rent more than the amount payable under the old agreement.(41)

A lessor who contravenes s 30 is not in breach of agreement because the limitations on increasing rent under s 30 are not stated to be ‘a term of every residential tenancy agreement’.(42) Therefore, a tenant who pays an increased rent that has not been validly increased in accordance with s 30, may not be able to recover this amount under s 15.MacCallum and Moore in the context of the equivalent s 34 of the now repealed Residential Tenancies Act 1978 (SA)_: Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, _Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 308 [1116].">(43) However, it is likely that the tenant would be able to recover such an amount under s 83 (mistake of law or fact) in which case the tenant could apply to the court to recover the amount or deduct it from the rent payable under the agreement.

3.1.6.4 Fixed term agreements entered into before 1 July 2013:

Note that for a fixed term agreement entered into before 1 July 2013(44)(when s 27(2) of the Residential Tenancies Amendment Act 2011 came into operation), s 30(2)(a) is modified so it states that the rent can be increased in accordance with s 30(1) of the Residential Tenancies Act 1987 (WA) if ‘the agreement provides that the rent may increase or be increased’.(45) In other words, the residential tenancy agreement does not need to specify the amount of the increase, or the method of calculating the increase.

3.1.6.5 Government employees housing and certain other tenancies where the Crown is the lessor

Pursuant to Residential Tenancies Act 1987 (WA) s 6; Residential Tenancies Regulations 1989 (WA) reg 5B certain government agencies are not subject to section 30(1) and the above rules do not apply:

1. Where the lessor is one of the following agencies:

(a) The Housing Authority(46);
(b) The Botanic Gardens and Parks Authority;
© The Commissioner of Main Roads;
(d) The department of the Public Service principally assisting in the administration of the Agriculture Act 1988 ;
(e) The department of the Public Service principally assisting in the administration of the Sports Drug Testing Act 2001 ; or
(f) The West Australian Meat Industry Authority. :

2. Where the tenant is a Government employee renting premises under the Government Employees' Housing Act 1964 and the lessor is the Housing Authority or a Department as defined in s 5 of that Act.

3. Where the tenant is both employed by and rents their premises from one of the following bodies:

a. The Electricity Generation and Retail Corporation;
b. The Electricity Networks Corporation;
c. The Public Transport Authority of Western Australia; or
d. The Regional Power Corporation.

4. Where the tenant is an officer of the Public Service employed in the department principally assisting in the administration of the Health Legislation Administration Act 1984, and the lessor is the Crown or a person or agency acting on behalf of the Crown.

5. Where the rented premises are ‘Butler's Cottage’, Government House, Perth.(47) Government employees with queries about their Government Regional Officers Housing (GROH) agreements or entitlements may be able to seek advice from their Union for assistance, or seek further advice from a tenant advocate. This resource does not cover GROH policies in detail and there are some exemptions.

3.1.7 Rent reductions

For discussion of rent reductions in the context of the lessor’s failure to conduct repairs and maintenance, see 3.2.1.7 (Orders, compensation and rent reduction).

See template letters for request for rent reduction and rent reduction after excessive increase at the end of this chapter.

There are limited circumstances where a tenant may be able to argue that rent is excessive under the Residential Tenancies Act. These include where there has been a significant reduction in the facilities provided with the premises after the tenant has entered into the agreement, or where rent has been increased unreasonably.

A tenant who thinks a rent increase is excessive can negotiate with the lessor to lower or withdraw the increase. If the lessor does not agree to do so, the tenant can apply to the Magistrates Court for an order declaring that the rent is excessive.(48) The tenant can make the application even if the tenant has paid, or agreed to pay, the increased rent.(49)

Limitation period: the application must be made not more than 30 days after:
  1. receiving a rent increase notice;
  2. receiving notice of a change in the method of calculating rent that results in a rent increase; or
  3. there has been, without any default on the part of the tenant, a significant reduction in the chattels or facilities provided with the premises.(50) The Court may extend the 30-day limitation period having regard to the justice and merits of the case.(51)

In determining whether the rent is excessive, the Court must have regard to:(52)
  • the general level of rents for similar premises in the same or similar area;
  • the estimated capital value of the premises at the date of the application;
  • the amount of the outgoings in respect of the premises which the lessor is responsible for under the agreement;(53)
  • the estimated cost of any servicesMacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 334 [1220].">(54) provided by the lessor or tenant under the agreement;
  • the value and nature of the chattels (furnishings, fixtures and facilities) provided with the premises for use by the tenant;
  • the accommodation and amenities provided in the premises and the state of repair and general condition of them;(55) and
  • any other relevant matter.(56)

A tenant who applies to the Court to have the rent reduced will need to bring evidence about each of the above issues to Court.

If the Court determines that the rent is excessive, it may (having regard to the justice and merits of the case) order that from a specified day (which may be a day earlier than the date of the application by the tenant) the rent payable must not exceed a specified amount.(57) The effect of this subsection (s 32(4)) is that rent reductions can be backdated.

The order will have effect until the tenancy agreement expires or for a period not exceeding six months from the day the order was made, whichever is the earlier.(58)

A lessor who demands or receives any rent of an amount exceeding the amount fixed by a court order commits an offence, subject to a potential fine of up to $5000.(59)

If a lessor disputes an order made by the Court that the rent is excessive, the lessor may apply to the Court to vary or revoke the order.(60)

Section 65 of the Residential Tenancies Act 1987 (WA) provides protection for tenants from the risk of retaliatory eviction if the tenant invokes s 32 by applying for an order that rent is excessive. Under s 65(1), where the lessor gives the tenant a notice of termination under s 64 of the Residential Tenancies Act 1987 (WA) while proceedings are pending for an order (or an order is in force) fixing the maximum rent, the notice will be ineffectual.(61) Any other notice of termination given by the lessor is also ineffectual unless first authorised by the Court. In authorising the notice, the Court needs to be satisfied that neither the commencement of the proceedings for the order that rent is excessive nor the making of the order has wholly or partly motivated the lessor to give the notice of termination.(62)

3.1.8 Rent not to be used for other purposes

The lessor or property manager must not use rent paid by the tenant for any purpose other than the payment of rent.(63) For example, the lessor cannot use the tenant’s rent to pay for utility bills or repairs to the premises caused by the tenant’s negligent damage.

3.1.9 Penalties for failing to pay rent

The lessor cannot charge a penalty to the tenant for a failure to pay rent. See 3.21 (Penalty clauses) for further discussion. However, if the lessor has to pay extra fees to their own financial institution as a result of the tenant's failure to pay rent on time, this is recoverable as compensation for loss caused by breach of the agreement.

3.1.10 Rent arrears

Failure to pay rent is a breach of agreement. If the tenant fails to pay rent on time, the lessor may issue a notice of termination, and if the rent is still not paid in full, commence proceedings to terminate the agreement.(64)

For further discussion see 4.3.2.1 (Rent Arrears).

Precedent resources

Request for rent reduction after excessi.docx

Request for rent reduction template lett.docx

3.2 Repairs and Maintenance

3.2.1 Lessor's duty to repair

3.2.1.1 General duty to repair (s 42)

‘It is a term of every residential tenancy agreement that the lessor - (a) must deliver up to the tenant vacant possession of the premises in a reasonable state of cleanliness and a reasonable state of repair having regard to its age and character; and (b) must maintain the premises in a reasonable state of repair having regard to its age and character and conduct any repairs within a reasonable period after the need for repair arises; and © must comply with all requirements in respect of buildings, health and safety under any other written law insofar as they apply to the premises.’(65)

The lessor is also responsible for the repair of fixtures (e.g. lights, fitted carpets and swimming pools) and chattels (e.g. white goods and furniture) provided with the premises.(66)

The lessor is not, however, required to repair any fixture or chattel they disclosed as not functioning before the agreement was entered into, or ‘any other fixture or chattel that the tenant could not reasonably have expected to be functioning at the time the agreement was entered into.’(67)

The duty to maintain the premises may include some work in anticipation of likely defects, to prevent further maintenance later (‘stitch in time which saves nine’).MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Ltd, 1983) [1317], citing the following from the judgment of Pearson L.J. in Day v Harland and Wolff Ltd [1953] 2 All ER 387 at 388: 'Very broadly speaking, I think that to repair is to remedy defects, but it can also properly include an element of the "stitch in time which saves nine". Work does not cease to be repair work because it is done to a large extent in anticipation of forthcoming defects or in rectification of defects which have already become serious. Some element of anticipation is included.'">(68) This means that work is still repair work even if it is done in anticipation of repairs that are not yet necessarily required, but could become major issues if work is not done soon.

3.2.1.1.2 Before moving in:

Tenants should check that the premises are in a reasonable state of repair and cleanliness before moving in. Note maintenance and repairs issues on the property condition report. If the premises are not satisfactory, contact the lessor as soon as possible to discuss repairs and maintenance. Get any agreement for repairs, maintenance or cleaning in writing.

3.2.1.1.3 What does 'premises' mean?

Section 42 requires the lessor to repair ‘premises’. ‘Premises’ is defined in s 3 of the RT Act as including ‘(a) any part of premises; and land and (b) appurtenances appurtenant to premises’. For the purposes of s 42, 'premises' includes ‘fixtures and chattels provided with the premises, but does not include - (a) any fixture or chattel disclosed by the lessor as not functioning before the agreement was entered into; or (b) any other fixture or chattel that the tenant could not reasonably have expected to be functioning at the time the agreement was entered into.’ The combined effect of these two definitions is that the lessor has a duty to not only repair the physical structure of the building itself, but also any furniture or other items provided with the premises (eg air-conditioners, fridges, carpets, beds, garage, fences, swimming pool). The lessor does not, however, have to repair a fixture or chattel included with the premises if:
  1. before the tenant entered into the agreement, the lessor told the tenant it was not working; or
  2. the tenant could not reasonably have expected it to be working at the time the agreement was entered into.(69)
3.2.1.1.4 What does 'maintain' mean?

The duty to provide and maintain premises in a reasonable state of repair does not require the lessor ‘to replace items which are undamaged and in good working order’.(70) Further, the duty does not require the lessor to improve the premises or necessarily replace the structure of the premises if it does not have any defects but is merely aging. However, in some cases replacement of the structure may be necessary – this will depend on the facts of each individual case.MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) [1317].">(71) Whether improvements to or replacement of a structure is classed as ‘repairs’ and therefore required under the lessor’s obligation, was discussed by Latham CJ in Graham v Market Hotels Ltd: It is now well established that the repair of a structure may involve the removal or rebuilding of part of it and that all repairs involve renewal to some extent. There is a difference between repairing a house and building a new house in place of an old house. It is a question of degree whether rebuilding part of a house does or does not fall within the category of repairing a house. The covenant to repair does not involve the covenantee in an obligation to make improvements but if he cannot perform his covenant to repair without making improvements, then the expense of making the improvements falls upon him. This is the case whether the necessity arises from physical causes or from legal causes.MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) [1315].">(72)
3.2.1.1.5 Reasonable [...] having regard to its age and character

‘Reasonable’ is defined in the Macquarie Dictionary as ‘not exceeding the limit prescribed by reason; not excessive’.(73) The term is defined in The New Shorter Oxford English Dictionary as ‘[w]ithin the limits of reason; not greatly less or more than might be thought likely or appropriate; moderate’.(74)

With regard to the previous South Australian legislation (which also referred to a ‘reasonable’ state of repair) Bradbrook, MacCallum and Moore submit that ‘reasonable’ is synonymous with ‘good'. The authors base this conclusion on dicta in Anstruther-Gough-Calthorpe v McOscar (1924) 1 KB 716, 729 (CA) (Scrutton LJ) and Proudfoot v Hart (1890) 25 QBD 42, 55 (Lopes LJ).MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) [1366].">(75) Lopes LJ in Proudfoot v Hart defines ‘good tenantable repair’ as ‘such repair as, having regard to the age, character, and locality of the house, would make it reasonably fit for the occupation of a reasonably minded tenant of the class who would be likely to take it.’(76)

‘A reasonable state of repair is a higher standard that [sic] habitability and requires a reasonable comfort by the inhabitants judged according to contemporary standards of the time and place….(77)

It is important to remember that what is a ‘reasonable state of repair’ must be measured according to the ‘age and character’ of the premises. For example, brand new premises with non-structural cracks in interior walls might not be in a reasonable state of repair, but the same could probably not be said for a house built in the 1940s.

3.2.1.1.6 Latent defects

The duty of a lessor to inspect premises prior to the commencement of the tenancy has been considered by the High Court in both Northern Sandblasting Pty Ltd v Harris and Jones v Bartlett .(78) The question particularly arises as to whether the lessor’s obligation to deliver up the premises in a reasonable state of repair involves inspecting the premises for latent defects. A ‘latent defect’ is defined as ‘[a] flaw, fault, imperfection, or irregularity not readily observable or easily discovered: not patent. Such a defect only comes to light when it causes an accident.’(79) A ‘latent defect’ is a defect of which the lessor ‘has no notice and is reasonably unaware.’(80) The significance of Jones v Bartlett and Northern Sandblasting for the purposes of residential tenancy law in WA is that subsections 42(2)(a) and (b) of the RT Act(81) do not require the lessor to inspect the premises for latent defects before the tenant moves in and to guarantee that everything in the premises are in good working order at all times as there is no guarantee of absolute safety. The lessor’s duty to deliver up the premises in a reasonable state of repair does not generally ‘require a landlord to commission experts to inspect premises to look for latent defects, nor is it a duty to make premises as safe as reasonable care can make them. In general terms, the duty of the landlord is to be determined by reference to foreseeable risk of harm and what a reasonable person who do in response to that risk.’(82) The nature and extent of the duty will depend on the circumstances of the case.(83)

The reasoning of both decisions is set out in further detail below:

In Northern Sandblasting Pty Ltd v Harris(84) the High Court by a 4:3 majority held that the lessor was liable for breach of its duty of care to inspect the premises prior to the tenant taking possession. This overruled the common law position as set out in Cavalier v Pope that the lessor owed no duty of care to the tenant or any other user of the premises to ensure the premises were kept in a reasonable state of repair.(85) In this case the tenants’ daughter was electrocuted and suffered severe brain damage after she grasped a water tap affected by an electrical fault (caused by an incompetent repair two days earlier). The lessor was unaware of the electrical fault and no inspection was carried out prior to the tenants moving into the premises. The decision of Northern Sandblasting Pty Ltd v Harris (by her next friend Harris) contains no ratio – while the majority held that the lessor was liable in negligence, there is ‘no majority in favour of any particular ground justifying it’ as the Judges all had different reasons for coming to the conclusion.(86) Three years later, the High Court had the opportunity to clarify the law in the case of _Jones v Bartlett.

In Jones v Bartlett , the tenants’ son was injured when he walked into an internal glass door on the premises. The appellant argued that the lessor breached their duty of care by failing to have an expert inspect the premises before the tenancy commenced, and failing to have the glass door replaced with thicker glass which would comply with safety standards at the time of the accident. In this case however, the High Court rejected the appellant’s claim by a 6:1 majority (McHugh J dissenting) in finding that there was no breach of sections 42(1)(b) and 42(1)(c) of the RT Act, and even if there was a breach, the appellant was not a party to the agreement and therefore had no rights against the lessor under the agreement.(87)

According to Gummow and Hayne JJ in Jones v Bartlett , the lessor has a duty to ‘not let premises that suffer defects which the landlord knows or ought to know make the premises unsafe for the use to which they are to be put. The duty with respect to dangerous defects will be discharged if the landlord takes reasonable steps to ascertain the existence of any such defects and, once the landlord knows of any, if the landlord takes reasonable steps to remove them or to make the premises safe. This does not amount to a proposition that the ordinary use of the premises for the purpose for which they are let must not cause injury; it is that the landlord has acted in a manner reasonably to remove the risks.’(88) Examples of ‘dangerous defects’ may include defective flooring (which a person falls through), live wires or electrical circuits that are incorrectly installed, light switches delivering an electric shock when turned on with dry hands, defective stairs, and a defective roof (that could not support a person authorised to work on it), and possibly untempered panes of glass that could easily shatter.(89)

Callinan J confines the duty to ‘no more than a duty to provide, at the inception only of the tenancy, habitable premises.’(90)

In referring to her own judgment in Northern Sandblasting, Gaudron J was of the view that ‘before the tenancy commenced, it was reasonable both to inspect the premises and to remedy existing defects that gave rise to a foreseeable risk of injury. And in the case of defects or potential defects which posed special dangers (for example, electrical wiring and gas connections), it was reasonable to have an inspection carried out by persons skilled or expert in that regard. So far as concerns defects which were not present at the commencement of the lease, reasonable care required only the remedying of those defects of which the landlord was or ought to have been aware.’(91)

Gleeson CJ states that the duty on the lessor is ‘to take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of their household.’(92) He goes on to state that “reasonableness” will depend on the circumstances of each case – ‘There is no answer which is of universal application.’(93) Gleeson CJ’s reasoning is based on the principle of control – the lessor is in control of the premises prior to the tenants entering into occupation and therefore the lessor is required to inspect the premises. Once the tenant however enters into occupation of the premises the duty shifts to the tenant to inspect the premises for repairs and to inform the lessor accordingly.(94) Gummow and Hayne JJ state further that this rule ‘would not cover cases in which the landlord never had control, either de facto in the case of back-to-back tenancies, or de jure in the case where a landlord assumes ownership after the tenant has gone into possession.’(95)

Kirby J in the majority states that the lessor may discharge the duty ‘by undertaking an inspection of the premises prior to each lease or renewal of a lease, by responding reasonably to defects drawn to notice, and by ensuring that any repairs are made which such inspection or notice discloses to be reasonably necessary’.(96)

3.2.1.1.7 Light bulbs, tap washers, batteries and similar items.

According to Anforth, Christensen and Bentwood, ‘[t]he general rule is that structural repairs (not being those caused by the tenant) are the landlord’s responsibility. Repairs of a consumable nature such as washers, globes, batteries etc…are the tenant’s responsibility.’(97) It is important to note that:

  • by clause 16.4 the NSW standard form residential tenancy agreement the tenant agrees "that it is the tenant's responsibility to replace light globes and batteries for smoke detectors on the residential premises"
  • by clause 17.5 of the same agreement the tenant agrees to "make sure all light fittings on the premises have working globes" at the end of the tenancy"
  • by clause 18.2 of the same agreement the lessor agrees to "make sure that all light fittings on the residential premises have working light globes on the commencement of the tenancy"

There is nothing in the NSW standard form agreement making washers, batteries (other than smoke alarm batteries) or any other "repairs of a consumable nature" the tenant's responsibility to replace. It is not clear why, in the absence of any agreement between the parties, they should not be the lessor's responsibility.(98)

In WA, there is nothing in the prescribed form residential tenancy agreements which covers responsibility for such items. It is fairly common, however, for lessors to add additional terms which purport to make the tenant responsible for replacing light bulbs. For example, the following term:

Light Globes 2.17. The tenant agrees to replace all broken light globes and fluorescent light tubes and save for matters required to be attended to by the lessor as part of its obligations to maintain the premises in a reasonable state of repair (having regard to its age and character), ensure all light globes and fluorescent light tubes are kept in good working order.(99)

Even without the express reference to s 42,(100)this term would not be inconsistent with the Act so long as it was read to only apply where the tenant has actually negligently or intentionally broken the light globe or tube.(101) However, light globes or fluorescent tubes cease working after a number of hours of normal use, due to fair wear and tear – they simply wear out. See section 4.7.3 Fair Wear and Tear. It is also difficult to see how light bulbs or fluorescent tubes could not be covered by section 42 of the RT Act, given they are either a chattel or part of a fixture or chattel, without which the fixture or chattel does not function.(102)Strictly speaking, therefore, light bulbs or fluorescent tubes should probably be the lessor's responsibility to replace, both during the tenancy (under s 42)(103)and at the end of the tenancy (due to clause 38.2 of the prescribed form 1AA and clause 40.2 of form 1AB).(104) In practice, most tenants replace their own light bulbs during the tenancy as and when they fail. At the end of the tenancy, however, lessors sometimes claim against the security bond for dead light bulbs. It is submitted that such claims cannot be maintained, unless the tenant has negligently or intentionally broken the bulbs. If the tenancy agreement contains a clause purporting to make the tenant liable for replacing light bulbs whatever the reason for their failure, such a clause would be void for contracting out of the RT Act.(105)

The same arguments also apply to other "consumables", such as batteries and tap washers. If they are provided with the premises they are caught by s 42 and are the lessor's responsibility to replace when they wear out in normal use.

In the case of tap washers, we should note here that it is also illegal in WA for a person who is not a licensed plumber to change them, subject to a fine of up to $5000.(106)

3.2.1.2 Urgent Repairs (s 43)

In Western Australia, urgent repairs are divided into two categories:

Repairs necessary for the supply or restoration of an essential service:

  • electricity;
  • gas;
  • a functioning refrigerator (if provided with the premises);
  • sewerage, septic tank or other waste water management treatment; or
  • water, including the supply of hot water (burst or broken hot water service).(107)

Other urgent repairs:

These are repairs that are necessary to avoid:
  • exposing a person to the risk of injury;
  • exposing property to damage; or
  • causing the tenant undue hardship or inconvenience.(108)

If the repairs are urgent, the tenant is required to contact the lessor as soon as practicable.(109) If it is after hours and the premises are managed by a real estate agent, contact the after-hours numbers they have provided.

Once the tenant has notified the lessor of the need for urgent repair, the lessor is required to arrange for the repairs to be carried out by a suitable repairer as soon as practicable – within 24 hours (for repairs to an essential service), or within 48 hours (for other urgent repairs).(110)

If the tenant is unable to contact the lessor within the prescribed period or the lessor fails to ensure the repairs are carried out by a suitable repairer as soon as practicable, the tenant may arrange for the repairs to be carried out by a suitable repairer. The repairs must be made to the minimum extent necessary and be carried out by a suitably qualified tradesperson. The lessor must then reimburse the tenant for any reasonable costs as soon as practicable after the repairs are carried out.(111)

If the lessor fails to reimburse the tenant for reasonable expenses incurred in arranging (and paying) for the repairs to be carried out, the tenant can apply to the Court for a tenant compensation order against the lessor.(112) The Court will determine the amount, and make the order if satisfied that it is appropriate to do so in the circumstances.(113) The Court may also order the lessor to pay a tenant compensation bond to the Bond Administrator to cover any future tenant compensation orders that might be made against the lessor in respect of a tenant or residential premises of the lessor.(114) The lessor may, however, apply to the Court for an order that the whole, or part of, the tenant compensation bond be paid back to the lessor.(115)

A ‘suitable repairer, in relation to urgent repairs, means a person who is suitably qualified, trained or, if necessary under any written law, licensed or otherwise authorised to undertake the work necessary to carry out the repairs’.(116)

The lessor is not required to reimburse the tenant for repairs necessary to rectify the tenant’s breach of agreement (e.g. the tenant negligently or wilfully caused the damage, or it was caused by using the premises for an illegal purpose).(117)

Modified requirement for urgent repairs if Housing Authority premises outside metropolitan region:

If the Housing Authority is the lessor and the premises are outside the metropolitan region (as defined in the Planning and Development Act 2005 (WA) s 4(1)),(118)section 43(3) is modified to the effect that: if the lessor fails to ensure that the repairs are carried out by a suitable repairer as soon ‘as practicable after that notification [by the tenant], or fails to keep the tenant regularly informed of the efforts being made to do so’(119) the tenant may arrange for the repairs to be carried out by a suitable repairer to the minimum extent necessary, and the Housing Authority must, as soon as practicable, reimburse the tenant for any reasonable expense incurred.(120)

3.2.1.3 Tenant's duty to notify lessor of repairs

The tenant is required to notify the lessor ‘as soon as practicable’ after the need for urgent repair arises, in the case of both urgent and non-urgent repairs.(121)

3.2.1.4 Limitation periods for repairs

Section 42 repairs: the tenant has 6 years from when a reasonable time in which to carry out the repairs has passed, after the need for repair arises, to commence proceedings against the lessor. What is a reasonable time in which to carry out the repairs will depend on the facts and circumstances of each case. In every case, however, time cannot start running before the lessor has become aware of the need for repair.

Section 43 urgent repairs: the tenant has 6 years from as soon as practicable after notification of the need for urgent repairs to commence proceedings against the lessor.

3.2.1.5 Contracting out of repairs and maintenance

The lessor cannot ‘contract out’ of any of the above responsibilities. This means that the lessor cannot include any special conditions in the agreement that ‘purports to exclude, modify or restrict’ their responsibilities.(122) See 3.20 (‘Contracting Out’) for further discussion.

3.2.1.6 Practical tips for getting repairs done

The first step to getting repairs or maintenance done is to make sure that the lessor knows about the issue. The tenant is responsible for notifying the lessor as soon as the need for repair or maintenance arises. Even if that were not the case, the lessor cannot be held responsible for not carrying out repairs where they have no knowledge of the need for them.

Process for getting repairs or maintenance done:
  1. Discuss the problem with the lessor and ask them to fix it. Confirm this in writing.
  2. Write to the lessor with the request, stating clearly what needs to be repaired or replaced, and by when. Include details of how the problem is affecting you. Template letters for requests for maintenance, repairs, reimbursement and compensation are included at Appendix.
  3. If no response is received or no action is taken, the tenant can issue the lessor with a Form 23 (Notice to Lessor of Breach of Agreement) from the Consumer Protection website.(123) On the form, clearly outline the required maintenance and repairs and give a time frame for the lessor to fix the issues. It is important to keep a signed copy on record.
  4. If all of the above has been done and the problem has not been fixed, the tenant can apply to the Magistrates Court for a performance order to carry out the maintenance or repairs. This application is made on a Form 12 (Application for Court Order) from the Magistrates Court of WA website.(124) The tenant can apply to the Court without issuing a breach notice first, but it is advisable to put the lessor on notice of the breach to try to resolve the issue before commencing court proceedings.
  5. If the lessor fails to conduct the work within the time periods set out under the legislation, the tenant can seek a rent reduction for loss of use of the facilities provided with the premises, and/or compensation for inconvenience, loss or damage suffered as a result of the breach. See further discussion at 3.2.1.7 (‘orders, compensation and rent reduction’).

Withholding rent

Withholding rent because of a lessor’s failure to complete maintenance is a very high risk strategy.(125) Even where a lessor is in breach, failure to pay rent is a breach of agreement. A tenant withholding rent is then at risk of termination proceedings, even where a lessor is also in breach. A court considering a termination application may consider the failure to pay rent a more serious breach, and may make termination orders. This is because the Court expects a tenant to make application for orders for the lessor to complete maintenance, rather than breaching the agreement by withholding rent – see below for more about these applications, and for details about rent reductions. If the tenancy is terminated by the Court because of the non payment or rent, or the tenant owes more than the bond at the end of the tenancy, withholding rent in a maintenance dispute could ultimately lead to the tenant being listed on a residential tenancy database (blacklisting).

Ending the tenancy early by abandoning a fixed term tenancy because the lessor has failed to conduct repairs may result in the tenant owing significant compensation to the lessor. The tenant may be able to counterclaim for some compensation, but this is generally limited as the Court expects the tenant to mitigate their losses by applying to Court for orders that lessor complete the maintenance, or applying to Court for termination of the lease because of the lessor’s breach by failing to maintain the premises. The tenant however, does have the option of paying rent to the Magistrates Court and they can withhold it from the lessor.(126) The tenant would still need to make a court application before doing this.

3.2.1.7 Orders, compensation and rent reduction

If the lessor does not carry out repairs within the required time period, the tenant can apply to the Magistrates Court for a specific performance order(127) to carry out the repairs and/or orders for compensation and rent reduction. The tenant can apply for termination of the agreement, however, this is ordered in rare cases.

Rent reduction:

The tenant can request a rent reduction where there has been a significant reduction in the chattels or facilities provided with the premises, through no fault of the tenant.(128) For example, if the tenant has not been able to use the bedroom due to a collapsed ceiling and the lessor has failed to arrange for repairs despite the tenant notifying the lessor 3 weeks ago, the tenant could claim a rent reduction for loss of use of this room. The tenant and the lessor can negotiate an amount they both feel is reasonable in the circumstances. If the lessor refuses to provide a rent reduction, the tenant can apply to the Magistrates Court.(129) The tenant has 30 days to apply from when the facilities were first reduced, however, the Court can extend this period having regard to the justice and merits of the case.(130) Rent reductions can be backdated.(131) The Court will decide how (and if) the rent should be reduced and the extent to which the facilities have been reduced.

Compensation:

The tenant could apply in the alternative for compensation for the inconvenience, loss or damage caused by the lessor’s breach.(132)For compensation, the tenant has 6 years to commence court action for breach of the RT Act, which starts running - for urgent repairs: from as soon as practicable after notification of the urgent repair; and for general repairs: from a reasonable time period after the need for repair arises.

Compensation for personal injury cannot be claimed under the RT Act,(133)however that does not mean that a residential tenant cannot bring a personal injury claim against their lessor in the appropriate court. Seek separate legal advice for personal injury claims.

The tenant has a duty to mitigate loss and must take reasonable steps to reduce their losses as a result of the lessor's breach. A failure to do so will result in a reduction of the compensation which the tenant is entitled to. In some interstate cases the tenant's compensation has been restricted by reference to the period up until which the tenant would likely have obtained a performance order, and had it carried out. In Hewage v Vanikiotis , the tenant’s claim for compensation for the lessor’s failure to maintain the premises in a reasonable state of repair (which was made 3 weeks from the end of the agreement for longstanding breaches) was significantly reduced for the tenant’s failure to mitigate by not seeking performance orders or doing urgent repairs themselves when it became apparent that the lessor was not going to take action to repair.(134)

Termination orders:

See 4.1.2. for discussion of termination for breach by the lessor (fixed or periodic).

3.2.2 Tenant's responsibility for cleanliness and duty not to damage the premises

The tenant must ‘keep the premises in reasonable state of cleanliness’.(135) The tenant is also obliged to ‘not intentionally or negligently cause or permit damage to the premises.’(136) These responsibilities extend to chattels provided with the premises for use by the tenant (whether under the agreement or not).(137)

If any damage is caused to the premises (including chattels), the tenant must notify the lessor ‘as soon as practicable’ after that damage occurs.(138)

A tenant is not responsible for damage resulting from fair wear and tear. See discussion of fair wear and tear at 4.7.3 (‘Fair wear and tear’).

If repairs are required because the tenant (or someone with permission from the tenant to be on the premises(139) caused damage, the tenant is required to pay for the repairs. The tenant should negotiate with the lessor about the repairs, and should not undertake their own repairs without the lessor’s consent. If the tenant undertakes their own repairs, they could be liable for further damage from poor or faulty repairs. The lessor may want the tenant to arrange for the repairs, or may prefer to arrange their own repairs (at the tenant’s cost). The lessor may also choose to claim under their insurance, in which case the insurance company is likely to pursue the tenant for the whole cost of repairs.

The lessor has a duty to mitigate loss under s 58 of the RT Act.(140) For discussion of the duty to mitigate, see 4.7.5 (‘Mitigation of loss and bond disposal’).

3.2.3 Examples of repairs and urgent repairs

RCDs and smoke alarms

A lessor who fails to install RCDs and smoke alarms will be in breach of the term implied in every residential tenancy agreement by s 42(2)(c) of the RT Act,(141) by failing to comply with building, health and safety laws.

Smoke alarms:

Part 8 Division 3 of the Building Regulations 2012 (WA) sets out the requirements as to smoke alarms. Under these Regulations, the lessor must ensure the smoke alarms fitted are:

  • No more than 10 years old
  • In working order; and
  • Permanently connected to the mains power supply.(142)

The Building Regulations permit installation of battery-powered smoke alarms so long as:
  • There is no mains power supply to the building;(143) or
  • There is no hidden space in which to run the necessary electrical wiring and there are no appropriate alternative locations for the smoke alarms; or
  • Local government approval is granted, which requires the local government to be satisfied that installation of a mains powered smoke alarm would involve - (a) a sufficient problem of a structural nature; or (b) a sufficient problem of any other nature, the cause of which is not within the control of the property owner.(144)

If battery-powered smoke alarms are used, they must have a 10-year life, non-removable battery.(145)

RCDs:

Regulations require all rental premises to be fitted with at least two Residual Current Devices (RCDs) protecting all power and lighting circuits in the premises.(146) Tenants should check RCDs are working every 3 months by pushing the test button. To restore power simply move the ‘on/off’ switch. If power is not lost, contact the lessor for a licensed electrical contractor to further test the RCD. If there are no RCDs installed, contact the lessor to request installation. If the lessor refuses to install RCDs, contact EnergySafety.

Repairs to smoke alarms and RCDs are urgent (if they stopped working during the tenancy) as urgent repairs include repairs that are necessary to avoid exposing a person to the risk of injury.(147)

Replacement of batteries in battery-powered devices supplied with the premises is generally the responsibility of the lessor. See above 3.2.1.1.

Note that the REIWA standard Residential Tenancy Agreement places the responsibility on the tenant to check RCDs and smoke alarms, however, this does not extend to cover the situation where a lessor has not complied with building regulations: The tenant must take reasonable steps to regularly check and test whether all smoke alarms and residual current devices on the premises are in good working order. If any smoke alarm or residual current device is not at any time in good working order, the tenant must give the lessor immediate notice in writing of that fact. Note: Nothing in this clause lessens the obligations upon lessors in relation to smoke alarms under the Building Regulations 2012 and/or in relation to residual current devices under the Electricity Regulations, 1947.(148)

Gutters and tree lopping

In Long v Paetzold the NSW Tribunal held that the lessor was responsible for cleaning the gutters on a two-storey building because the tenant could not have cleaned the gutters themselves.(149)

Cleaning of gutters appears to be the lessor’s responsibility more broadly (even if the gutters are not located in a hard-to-reach area such as the second floor of a building). In Zahle v Bowman the Tribunal held that pipes and guttering are maintenance issues that are the responsibility of the lessor.(150) Similarly, the Tribunal in Batkin v Kinna stated that gutter cleaning is maintenance and would not be the tenant’s responsibility.(151) In Foster v Gardiner the Tribunal stated that the tenant is not responsible for cleaning gutters or pruning trees.(152)

Tree lopping (as opposed to pruning of shrubs or hedges) probably comes under the lessor’s responsibility for maintenance, at least where it involves large trees and specialist skills and/or equipment.(153)

Note however that the tenant has an obligation to deliver up the premises in as close as possible to the same condition as when the tenant moves in, minus fair wear and tear. This could mean that a tenant who does not prune could be in breach for failing to deliver up the premises to the required standard. It is also important to check the RT Agreement to see if there are any clauses on gardening and/or pruning. The REIWA standard Residential Tenancy Agreement has the following clause regarding gardens: Gardens 2.18. The tenant must attend to the garden, lawns, lawn edges, hedges, shrubs and trees so that they are kept in the same condition as at the commencement of this lease as described in the Property Condition Report, to water and fertilise them regularly and adequately, to keep all the grounds clean and tidy and free from rubbish, to keep the flower beds and lawns free of weeds, and not to remove or cut down any plants, trees or shrubs.

While this clause does not specifically cover pruning, the duty to 'attend to the garden…hedges, shrubs and trees so they are kept in the same condition as at the commencement of this lease’ may mean that it is required.

Oven

Repairs to an oven are given as an example in the Explanatory Memorandum to the Residential Tenancies Amendment Bill 2011 as a 48-hour urgent repair.(154)

Swimming pool and spa

The lessor is responsible for repairs to swimming pools and spas.(155) The tenant is responsible for keeping the pool/spa clean.(156) Responsibility for pool maintenance during the tenancy, including who is responsible for the purchase and use of items such as necessary pool chemicals, should be set out clearly in the agreement.

The REIWA standard Residential Tenancy Agreement has a clause about pool and spa cleaning being the tenant’s responsibility: If the premises includes a swimming pool or spa, the tenant must keep the pool or spa and any associated equipment in a properly treated and clean condition and observe all legal requirements relating to pools and/or spas during the period of this lease. The tenant must not drain the pool without the lessor’s written consent.

*If a tenant becomes aware of any matters that may render any swimming pool or spa on the premises unsafe, the tenant must report those matters to the lessor as soon as practicable. Further, tenants should note that they are entitled to notify local governments about matters relating to the safety of swimming pools or spas.*(157)

Pool and spa fences:

Lessors must ensure that pools and spas are adequately fenced in accordance with the Building Act 2011 (WA) and the Building Regulations 2012 (WA). Failure to comply with the legislation would be a breach of the term of the residential tenancy agreement implied by s 42(2)(c) of the RT Act.(158) The Department of Mines, Industry Regulation and Safety has developed a publication called ‘Rules for Pools and Spas’, which can be found on the Consumer Protection website.(159)

In Knowles v Anthony , the NSW Consumer Trader and Tenancy Tribunal ordered the tenancy to be terminated for the lessor’s failure to provide and maintain the premises in a reasonable state of repair by having a pool fence that did not comply with the relevant pool fence regulations and was in fact dangerous for the tenant’s 3-year-old daughter.(160)

Blinds and curtains

Product safety legislation requires that all blind and curtain cords and chains supplied since 2004 meet national safety requirements to prevent child strangulation.(161) This means that Lessors are responsible for ensuring blinds & curtains meet these standards, for all blinds and curtains supplied since 2004. For disputes about blinds supplied before 2004, seek further advice, as the above legislation may not cover the lessor, however at common law a lessor who supplies premises with corded curtains or blinds that it was reasonably foreseeable could be dangerous could be liable in negligence for any injury which occurred to a child as a result. The potential for liability in negligence may be a good basis for negotiating for a lessor to ensure that older blinds and curtains meet standards.

Tenants are still responsible for securing blinds and curtain cords with the supplied safety devices, and to ensure furniture is not placed near curtain cords.

The Department of Mines, Industry Regulation and Safety has developed a guide to blind and curtain cord safety, which can be found on the Consumer Protection website.(162)

Roof/ceiling

Repairs to the roof and ceiling are given as an example in the Explanatory Memorandum to the Residential Tenancies Amendment Bill 2011 as requiring urgent repairs. The Explanatory Memorandum states that ‘prescribed essential repairs [requiring repair within 24 hours] are likely to include…holes in any of the external surfaces of the premises, including the roof, windows and doors. Urgent repairs requiring attention within 48 hours are likely to be repairs to…minor leaks in the ceiling’.(163)

In Van Ristell v Director of Housing , the Victorian Civil and Administrative Tribunal found the lessor liable for damage to the tenant’s possessions and the tenant’s moving costs due to a ceiling collapse after the tenant had complained of cracks and dust falling down, and the lessor had inadequately repaired it several years earlier. The Tribunal found that the lessor merely replacing the ceiling plaster and a few tiles without investigating the cause of the cracking and whether other parts of the ceiling needed to be replaced failed to meet the lessor’s duty to ensure the premises were in good repair.(164)

In Matthews v Huppert the development of damp areas in the ceiling in 2014, and the tenant’s reporting of this matter to the real estate agent, put the lessor on notice as to the propensity of the premises to sustain water damage. For this reason, the Tribunal found that the lessor breached her obligation to ensure the premises were maintained in good repair.(165)

Taylor v Wise involved a similar situation, whereby 2.5 metres of the ceiling was damaged by water in the past and roughly repaired, which meant the area looked unsightly and the tenant had some concerns about its safety. The ceiling remained unrepaired for 2 years. The District Court of South Australia found that the lessor had failed to keep the premises in a reasonable state of repair, however, compensation was reduced to $300 because the problem was mostly aesthetic, and the tenant did not pursue repairs vigorously and delayed in bringing an application for compensation.(166)

In Sulusulu v Trumble , the NSW Consumer Trader and Tenancy Tribunal found the lessor’s delay in repairing was unreasonable and awarded the tenant 2.5 weeks’ rent ($862.50) as compensation.(167) In this case, 3 serious roof leaks caused water to run down the walls of the lounge room for 3 months. The tenant made a number of complaints to the real estate agent. There was no damage to furniture or belongings.

Burst water pipe

A burst water pipe is an urgent repair because repair is necessary for the supply of water.(168) However, the lessor will not be in breach if they arrange for repairs in accordance with the time periods set out in s 43 of the RT Act.(169)

For an example of a case involving a spontaneous bursting of a water pipe in the bathroom, see Mcalindon v Maddock . In this case the lessor was found not to be in breach of his obligation to repair because the flood was a spontaneous event unrelated to any failure by the lessor to maintain the premises, and upon notification by the tenant the lessor and his agent acted immediately to have a plumber conduct the repairs that evening.(170)

Similarly, in Xiao v Duggan the Tribunal held that the lessor was not in breach in regards to a burst water pipe because the agent sent a plumber the same day as the tenant notified the agent about the burst pipe.(171)

In Bersten v Di Sarno there was a burst water pipe that was not due to any act of the tenant or lessor, which was apparently repaired within 2 or three days. The Tribunal held that the pipe had not been repaired as quickly as it should have been done and ordered the tenant's water bill to be reduced accordingly.(172)

Hot water system

A repair to a hot water system is an urgent repair because it is necessary for the supply of hot water.(173)

In Sanders v Hughes , the South Australian Residential Tenancies Tribunal found that the lessor was not liable for excessive electricity bills received by the tenant due to a leak in the valve in the hot water system. After the tenant reported the high bills, the lessor promptly engaged an electrician who found no problem with the hot water system. The tenant then abandoned the premises and engaged his own plumber who found a leak in the system, but said the problem was ‘impossible to see’. The Tribunal found that the lessor was not liable because, after being notified by the tenant of the issue, she ‘acted reasonably and without delay to engage a reputable electrical contractor to investigate the problem and on the strength of that report found no reason to carry out further investigation’, along with the fact that the plumber engaged by the tenant said the problem was ‘impossible to see’.(174)

The lessor is only liable to arrange for the repairs once they are notified of the issue.

In Pabon v Fang , the Victorian Civil and Administrative Tribunal found that the lessor had no way of knowing of a stuck float in the water tank which led to a high water bill of $10 600 for one quarter.(175) The tenant did not report the issue to the lessor, and the first the lessor heard of it was when the real estate agent noticed water on the ground and heard water flowing. The same month, the real estate agent sent a plumber around to investigate, and the plumber found and fixed the problem.

Call out fee where no actual repair is needed

Sometimes a tenant informs the lessor of an item requiring repair and the lessor engages a tradesperson, who finds that the item did not need repair after all. For example, the tenant may complain that there is an electrical fault because the RCD is constantly tripping. The lessor promptly engages an electrician who finds that there is a fault with one of the tenant's appliances which is causing the RCD to turn off the power. In these circumstances the lessor may be entitled to charge the call out fee to the tenant, so long as the RT Agreement contains a term which makes the tenant liable for unwarranted callouts.(176)

3.3 Cleaning

3.3.1 Definition of 'cleanliness'

The words ‘clean’ and ‘cleanliness’ should be given their ordinary meaning. The Macquarie Dictionary defines ‘cleanliness’ as ‘the condition or quality of being clean or cleansed; freedom from dirt or filth or anything that contaminates’.(177)

3.3.2 Lessor's duty to deliver up premises in a reasonable state cleanliness

3.3.2.1 The Duty under the Residential Tenancies Act

The lessor ‘must deliver up to the tenant vacant possession of the premises in a reasonable state of cleanliness and a reasonable state of repair having regard to its age and character’.(178) Reference to a ‘reasonable’ state of cleanliness means that the lessor does not need to deliver up the premises in a spotless condition. Bradbrook, MacCallum and Moore in Residential Tenancy Law and Practice: Victoria and South Australia provide the following example:
Thus, for example, while the landlord will clearly be liable if the carpets are stained or grease marks exist on the kitchen walls at the commencement of the tenancy agreement, it is doubtful if he would be liable merely if a few cobwebs are detected by the tenant in corners of the ceiling or a layer of dust is found on the shelves.MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 431 [1405].">(179)

‘Generally a lack of cleanliness at the start of a tenancy can be remedied by cleaning at the landlord’s cost.’(180)

The tenant could request compensation for the lessor’s failure to comply with this obligation, and potentially, compensation for cleaning materials and time(181) if the tenant ended up cleaning the premises themselves. If the lessor refused, the tenant could commence court proceedings under s 15 of the Residential Tenancies Act 1987 (WA) for a specific performance order to get the lessor to clean the premises and/or compensation for loss if the tenant had personally cleaned the premises. In some cases, the tenant may be able to claim the cost of alternative accommodation if the premises were so dirty as to be uninhabitable at the commencement of the agreement. The tenant is not required to issue a breach notice to the lessor before commencing court proceedings, however, it is recommended that the tenant put the lessor on notice of the potential breach to see if the issue can be rectified outside of court.

In rare cases, the tenant may be able to bring about the termination of the agreement. The Court ‘may…terminate the agreement, if it is satisfied that the lessor has breached the agreement and the breach is in the circumstances of the case such as to justify termination of the agreement.’(182) If the Court terminates under this section, it must also make an order for possession and specify a day from which the orders must operate.(183) It is unlikely that the Court will terminate for breach of the lessor’s duty to deliver up in a reasonable state of cleanliness unless the premises are extremely unclean. The Court tries to uphold agreements where possible, and is likely to make performance orders or compensation orders (or orders for a rent reduction) before it makes orders to terminate the agreement.

3.3.3 Tenant's duty to keep the premises in a reasonable state of cleanliness

3.3.3.1 General Duty

While the lessor has a duty to provide reasonably clean premises at the commencement of the tenancy, the tenant has an ongoing duty to ‘keep the premises in a reasonable state of cleanliness’ during the tenancy.(184) This obligation extends to ‘chattels provided with the premises (whether under the agreement or not) for use by the tenant.’(185)

A ‘reasonable state of cleanliness' means that the tenant is not required to keep the premises in a spotless condition. Bradbrook, MacCallum and Moore in Residential Tenancy Law and Practice: Victoria and South Australia draw a distinction between untidiness and uncleanliness, and state that the tenant is not liable for the former.MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 443 [1425].">(186)

The differing language between s 38(1)(a) of the Residential Tenancies Act 1987 (WA) (the tenant’s obligation to keep the premises in a reasonable state of cleanliness during the tenancy), and clause 38.2 of the standard form tenancy agreement (Form 1AA) (the tenant’s obligation to deliver up the premises in as close as possible to the same condition as when they moved in minus fair wear and tear), suggests two distinct standards regarding the level of cleanliness of the premises. This will likely turn on the facts of each individual case. For example, if the premises are unclean when the tenant moves in, the level of cleanliness required of the tenant when they move out may be the same or lower than what is reasonably required during the tenancy. On the other hand, if the premises are spotless when the tenant moves in, arguably the standard of cleanliness required at the end of the tenancy will be higher than what is reasonably required for day-to-day living during the tenancy.

If the tenant breaches their duty to keep the premises in a reasonable state of cleanliness, the lessor may issue a breach notice requiring the premises to be cleaned accordingly within 14 days.(187) If the breach is not remedied, the lessor could apply for a specific performance order that the tenant clean the premises.

Alternatively, the lessor could send a notice of termination (Form 1C), giving the tenant not less than seven days to deliver up vacant possession.(188) If the tenant does not vacate within the time stated on the Form 1C, the lessor has 30 days after that date to apply to the Court for termination of the agreement and an order for possession of the premises.(189) To make a termination order the Court would need to be satisfied that the breach occurred, and that the breach justified termination in all of the circumstances, and uncleanliness on it’s own is unlikely to the justify termination, unless the tenant did not rectify the issues after specific performance orders or adjournments to allow for cleaning.

The lessor could also seek compensation for any loss or injury (other than personal injury) resulting from the tenant’s failure to keep the premises in a reasonable state of cleanliness.(190)

3.3.3.2 Professional Cleaning

Some residential tenancy agreements include a clause that states that the tenant agrees to have carpets professionally cleaned upon vacation (at the tenant’s expense), and/or that a particular method of carpet cleaning (usually steam cleaning) or even that particular cleaning contractors be used. Some agreements also include the requirement for the tenant to engage professional window cleaners.

The tenant may be able to argue that they do not need to get carpets or windows professionally cleaned and any agreement to have this done is contracting out of the tenant’s responsibilities for cleanliness and damage under the Residential Tenancies Act.(191) Non-binding interstate decisions suggest that carpet and window cleaning clauses in residential tenancy agreements are void because they impose a higher burden on the tenant for cleaning than the requirements under the residential tenancy legislation.(192)

Note that the NSW legislation now specifically disallows the lessor from including terms in the agreement ‘that the tenant must have the carpet professionally cleaned, or pay the cost of such cleaning, at the end of the tenancy’ unless the tenant was allowed to keep a pet.(193)

Even if such terms are not void, it does not necessarily follow that the lessor is entitled to any more than nominal compensation in the event that the tenant breaches them. For example, the tenant may breach a professional carpet cleaner term by cleaning the carpet him or herself but nevertheless leave the carpet in as close as possible the same condition it was in at the start of the tenancy, less fair wear and tear.(194) In those circumstances it is submitted that the tenant's breach of the term has not caused any loss or damage to the lessor, and the lessor is therefore not entitled to any compensation for breach.

3.3.3.3 "Hoarding"

There is a difference between untidiness or clutter and a lack of cleanliness. Whether the disorganised amassing of large quantities of objects constitutes a failure to keep the premises in a reasonable state of cleanliness will depend on the circumstances of each individual case.

The Victorian Civil and Administrative Tribunal in Director of Housing v Bennett (Residential Tenancies) stated that ‘in numerous unreported decisions of the Tribunal it has been held that hoarding which may involve a fire or occupational health and safety risks may constitute unreasonable uncleanliness’.(195) In this case, the Tribunal held ‘that the premises are not in a reasonably clean condition because of gross untidiness…their state would more likely than not constitute a fire or occupational health and safety risk if persons other than the tenant are legally entitled and or required to enter the premises…and the presence of so much hoarded material is such that, in the view of the Tribunal, it would be nigh on impossible for anyone to clean them at all.’(196)

The South Australian Civil and Administrative Tribunal in Manfield v Sunman points to the distinction between tidiness and cleanliness, and states that there is no requirement that the premises be kept tidy. The Tribunal does however ‘recognise that very serious cases of untidiness may breach the obligation to maintain the property in a reasonable condition, eg where the tenant is a “hoarder” and has accumulated massive amounts of junk at the property.’(197)

Even if a tenant is in breach of their obligation to maintain the premises in a reasonable state of cleanliness due to hoarding, it does not necessarily follow that termination of the agreement is justified. If the tenant is willing and able to dispose of belongings and de-clutter, such that cleaning is possible, then a performance order would be more appropriate than a termination order, at least in the first instance. On the other hand, if the hoarded items are so great in number and stored in such a way that they present an actual threat to health and safety, termination may be justified.

3.4 Pests and vermin

There are no specific provisions in the RT Act about pest control, but this issue is usually addressed under question of cleanliness and maintenance.

The tenant has an obligation to keep the premises in a reasonable state of cleanliness (s 38(1)(a) of the RT Act) and this is a significant component of pest control.

The lessor has an obligation to provide the premises in a reasonable state of cleanliness, which should include free from pest and vermin infestations, pursuant to section 42(2)(a).

The REIWA standard Residential Tenancy Agreement contains a clause about pests and vermin under the heading ‘Tenant to Keep Premises Clean’:`

2.13. In accordance with the tenant's obligation to keep the premises in a reasonable state of cleanliness pursuant to section 38(1)(a) of the Act, the tenant must keep the premises in a clean and sanitary condition and free from dirt, oils, grease, insects, and vermin.(198)
 
2.14. The tenant is responsible for the eradication of insect and vermin infestations caused by the tenant's activities or lack of cleanliness.

In some cases, however, the tenant may be able to argue that an infestation has not occurred due to the tenant’s activities or lack of cleanliness, and therefore, liability should not flow to the tenant.

At the beginning of the tenancy

If the premises are not reasonably clean at the commencement of the tenancy due to the presence of pests or vermin, the tenant could argue that the lessor has breached their obligation to deliver up the premises in a reasonable state of cleanliness under s 42(2)(a) of the RT Act.

DURING THE TENANCY

If an infestation has occurred during the tenancy, the tenant may argue that the lessor is in breach of their obligation to maintain the premises in a reasonable state of repair under s 42(2)(b) of the RT Act where there are holes or cracks in the structure that require repairs that are allowing pests or vermin to enter the premises.(199)

If an infestation has occurred and the tenant has already taken reasonable steps to try to eradicate the pests, and the infestation is not caused by the tenant’s actions, the tenant may be able to argue that the lessor has an obligation to take further reasonable action.(200) This was the case in Edwards v Pang & Lee , where the NSW Consumer, Trader and Tenancy Tribunal found that the lessors had breached their obligation to maintain the premises in a reasonable state of repair because the lessor failed to take further reasonable action after the tenant notified the lessor that they had laid their own mouse baits (with no success) and had contacted the pest controller that the lessors had provided a receipt for, at which point the pest controller agreed he had been out to remove an infestation of spiders, silverfish, cockroaches, ants, bees and wasps, but not mice.(201) The Tribunal set out their reasoning as follows:
The Tenants are liable to take reasonable measures to prevent vermin being attracted to their premises. If they have done so (which I am satisfied they did in this case) they are then entitled to notify the owners to take further reasonable action. It is not an answer to this claim to say that the location of the premises means that there is likely to be a mouse infestation, or that a pest control was carried out prior to the commencement of the tenancy, particularly where that action did not deal with the relevant pests. I am satisfied that the presence of extensive mouse droppings in the kitchen indicates a substantial problem that was within the Landlords’ power to act on.(202)

It is important to remember that the above interstate decisions are not binding, although they may be persuasive. It is possible that a Magistrate in WA will find that the lessor is not in breach of their obligation to maintain the premises in a reasonable state of repair by failing to rectify pest infestations, even where there are similar circumstances.

AT THE END OF THE TENANCY

If there are pests in the premises when the tenant moves in, there is no obligation on the tenant to get rid of these pests when they move out. This is because the tenant is only required to deliver up the premises in as close as possible to the same condition as when the tenant moved in, minus fair wear and tear. If however, the tenant has caused the pest problem to get worse, for example by not keeping the premises clean, then the tenant will likely be liable to the lessor to some extent.

If there are pests in the premises that were not present when the tenant moved in, then the tenant will likely be in breach for failure to deliver up the premises in as close as possible to the same condition as when they moved in, minus fair wear and tear. The lessor can ask the tenant to conduct pest control or deduct the bond accordingly. The lessor cannot require the tenant to use specific pest control products or services.

STRATA TITLED PROPERTY- PESTS IN COMMON PROPERTY

In strata titled properties the body corporate may have some responsibilities for managing vermin or pests in common areas, however this will be dependent on the causes of the infestation, the body corporate agreement, strata rules and the nature of the strata complex.

PROFESSIONAL REMOVAL REQUIRED FOR CERTAIN PESTS AND VERMIN

Some animals that are considered to be pests or vermin need to be removed professionally. This may be because they are considered threatened species, dangerous to remove without special equipment, or because they are essential to our ecosystems and in need of protection.

Threatened native fauna (animals) require special protection because they are declared ‘likely to become extinct, or is rare, or otherwise in need of special protection’.(203) The Department of Biodiversity, Conservation and Attractions (DBCA) has published a list of threatened and priority fauna, which can be accessed online.(204) The list includes species (such as types of snakes, spiders and marsupials) that may find their way into domestic premises (particularly in regional areas) and cause a nuisance (eg if they get into the roof and make significant noise). If it is suspected that a threatened species is on the premises, the first point of call is the local council, which may have a ranger that can come out to inspect. The Department of Biodiversity, Conservation and Attractions can also be contacted to safely remove the animal.

If bees or European wasps are swarming on the premises or a hive forms, it is ideal to contact an apiarist (beekeeper) to remove them. It is likely that removal of a bee or wasp swarm or hive is the responsibility of the lessor, unless this is caused by the tenant’s activities or lack of cleanliness (eg by leaving food scraps around the garden or not securing bin lids). Bees in particular are vital to our ecosystem and helping to create the food we eat, therefore, they should be removed professionally in a way that does not kill them.

3.5 Mould

3.5.1 Mould and Tenancy

Mould needs moisture and organic material to grow. When disturbed or dried out, it can release spores that can cause illness in some people. It may cause structural damage if left untreated.

Mould can cause a state of disrepair at rental premises. This can result in a breach of the tenancy agreement by the lessor or the tenant.

Mould is not specifically addressed in the Residential Tenancies Act 1987 (WA). The issue of who is responsible for mould depends on the cause of the mould. If mould is caused by the tenant’s unreasonable use of the premises, then it is likely the tenant’s responsibility under s 38 of the Residential Tenancies Act 1987 (WA).(205) If the problem is structural it is likely the duty of the lessor to repair/clean under s 42.(206) If the problem is structural, the lessor may be required to conduct the necessary repairs and compensate the tenant for mould damage to any of the tenant’s belongings. If the mould is the responsibility of the tenant, the tenant may be liable to the lessor for compensation for the cost of removing the mould and repairing any damage caused by it.

For example, if the mould appears as a result of fair wear and tear, or as a result of a property maintenance issue such as a roof leak, it is the lessor’s responsibility to have it cleaned or repaired. However, if the mould is caused by the tenant, for example, by not ventilating by using an extractor fan or opening a window, it may be the tenant’s responsibility to clean the mould.

The tenant should talk to the lessor to work out who will clean the mould. If an agreement cannot be reached, either party can lodge an application at the Magistrates Court (see further discussion below at 3.5.12).

The Parliamentary of Australia conducted an Inquiry into Biotoxin-related Illnesses in Australia, and published its report in October 2018.(207) The National Associations of Tenants Organisations has published its submission online.(208)

3.5.2 Building Regulations - Ventilation

The Building Code of Australia (BCA) includes requirements around ventilation.(209) It is important to note that the BCA only applies to buildings at the time that they are built and is not retrospective. It is reissued every three years.(210) This means that residential premises need to comply with the relevant BCA that was in operation at the time that the premises were constructed. For example, premises built in 1997 only have to comply with the BCA as it was in 1997. However, subsequent renovations must comply with the BCA at the time of the renovations. The builder is required to comply with the BCA, not the lessor. This means that a person who buys premises and subsequently rents them out without making any renovations, does not have any obligation to fix up the premises in accordance with the latest BCA (so long as the premises comply with the relevant BCA in operation at the time it was built). This point was made by Gleeson CJ of the High Court of Australia in Jones v Bartlett.(211) In this case, the applicant argued that the respondent was negligent in failing to have a glass door replaced with thicker glass complying with the safety standards at the time, after the appellant suffered injury after walking through the glass door. Gleeson CJ found that there was no breach of s 42(2)(c) of the Residential Tenancies Act 1987 (WA)(212) by the respondent in failing to replace the glass, because the glass door complied with the building standards at the time the house was constructed. The door was not required to comply with the building standards that would have applied if the house was constructed immediately before the lease was entered into, or the glass was replaced immediately before that time.(213)

3.5.3 Tenant's Responsibilities

Although the Residential Tenancies Act 1987 (WA) does not specifically refer to mould, it implies terms into every residential tenancy agreement which oblige the lessor to carry out repairs and the tenant to keep the premises in a reasonable state of cleanliness.

S 38(1) of the Residential Tenancies Act 1987 (WA) makes it a term of every residential tenancy agreement that the tenant must:

(a) keep the premises in a reasonable state of cleanliness;

(b) notify the lessor as soon as practicable after any damage to the premises; and

© not intentionally or negligently cause or permit damage to the premises.(214)

If the lessor is claiming against the tenant for mould, the lessor must prove on the balance of probabilities that the tenant intentionally or negligently caused or permitted mould to damage the premises, and/or failed to keep the premises in a reasonable state of cleanliness which resulted in the mould.(215)

If the mould is caused by the tenant’s use of the premises, then it may be the tenant’s responsibility under s 38 of the Residential Tenancies Act 1987 (WA). This could include where the tenant fails to ventilate the premises appropriately by using an extractor fan or opening a window. However, it is one thing to open a window or two for a short time every now and then to air a room, and quite another to leave it open for hours at a time on a regular basis. This should not be required to prevent mould, and it is not reasonable to expect a tenant to do this. Not only is there the issue of security, but in winter or summer the premises will become either too cold or too hot.(216) The lessor who is aware that premises require extra ventilation or are inclined to condensation issues should advise the tenant, and take any necessary measures to deal with this, such as installing extractor fans, before the tenant moves in.(217)

Sometimes the exact cause of the mould is unknown, but there is no evidence that the tenant has contributed to the problem in any way. If the tenant has attempted to remove the mould using normal cleaning processes, and this does not work, removal of the mould may become the lessor’s responsibility.(218)

3.5.4 Lessor's responsibilities

Under s 42 of the Residential Tenancies Act 1987 (WA) it is a term of every residential tenancy agreement that the lessor must:

(a) provide the premises in a reasonable state of cleanliness and a reasonable state of repair having regard to its age and character;

(b) maintain the premises in a reasonable state o repair having regard to its age and character and conduct any repairs within a reasonable period after the need for repair arises; and

© comply with all requirements in respect of building, health and safety under any other written law insofar as they apply to the premises.(219)

The lessor will likely be responsible for dealing with mould if it is caused by a structural issue, such as a failure of the damp proof coursing, broken or blocked gutters or a roof leak that requires repair under s 42. The lessor’s duty to repair the premises does not commence until the tenant has notified the lessor of the issue (and this notification must be given as soon as practicable after the damage arises).(220)

The lessor cannot avoid their responsibility for repairs by arguing ‘that financial problems, problems with the builder or other such problems, precluded the repairs being done.’(221)

3.5.5 Mitigation of Loss

A party to a contract who suffers loss or damage as a result of the other party's breach of contract must take reasonable steps to reduce that loss or damage. This applies to residential tenancy agreements.(222) Where a party has not taken reasonable steps to reduce their loss the compensation they are entitled to is reduced according to the compensation that they would have been entitled to if they had taken those reasonable steps. For example, a tenant may discover that there is mould in a built-in wardrobe which is caused by the lessor's failure to maintain the premises in a reasonable state of repair. At this stage the mould has damaged some of the tenant's belongings. It will usually be a reasonable step to take to reduce loss to remove the rest of the tenant's belongings from the wardrobe immediately and store them somewhere else until the mould has been remediated. If the tenant does not do that, then the tenant will not usually be entitled to recover compensation for replacing or cleaning his or her property which is subsequently damaged as a result.

For further discussion of the duty to mitigate, see 4.7.5 (‘Mitigation of loss and bond disposal’).

3.5.6 What to do if you are worried about the type or extent of the mould

A tenant who is worried about the health consequences of the mould can contact the Environmental Health Branch of the Western Australian Department of Health, or the local government Environmental Health Officer.

Arrange an inspection and report to be completed outlining the mould and its effects. The tenant can also negotiate with the lessor to arrange a mould expert to attend the premises and provide a report.

Be aware that the local councils in the past have required people to move out because the premises were found uninhabitable.

The Department of Health WA has a fact sheet on mould which can be accessed online.HealthyWA <http://healthywa.wa.gov.au/Articles/J_M/Mould-and-dampness>.">(223)

3.5.7 What to do about mould before moving in

Before moving into premises, it is important to consider whether it could be susceptible to mould. Some particular things to consider are:

  • What level of humidity exists in the premises? Are there things in the premises that could increase humidity, such as unflued gas heating?
  • Are the premises insulated? Premises which are well insulated usually have draughts sealed, so the reduced ventilation can increase the risk of mould.
  • Is there an extractor fan above the stove and in the bathroom (or a window that can ventilate from the outside)?
  • Are there any signs of leaking near sinks, toilets and/or taps?

The tenant can request that mould issues be dealt with before moving in. Ensure any agreement with the lessor to do this is in writing.

3.5.8 What to do about mould after moving in

The lessor must provide two copies of the incoming property condition report within seven days of the tenant entering into occupation of the premises.(224) Carefully inspect the whole premises, particularly any problem areas such as bathroom, kitchen and laundry. Note any potential causes or presence of mould on the property condition report.

Request that the lessor deals with any mould in accordance with their obligation to provide the premises in a reasonable state of cleanliness and a reasonable state of repair having regard to its age and character.(225)

3.5.9 What to do when mould appears

The easiest way to deal with mould is to try and prevent it forming in the first place, if it is reasonable for the tenant to do so.

Simple ways to prevent mould forming include:

  • Use extractor fans (when they are present) when cooking, showering and doing the laundry.
  • Leave curtains/blinds open if the premises get sunlight during the day.
  • Dry clothes outside if possible and do not put them away until completely dry.
  • If condensation appears on the walls, wipe it down and dry the area thoroughly.
  • Ventilate the premises by opening windows and/or doors.
  • Leave internal doors open to allow air circulation.

If mould is already present:

  • Remove all furniture and other items away from the affected area.
  • Remove/clean mould from affected areas if it is reasonable to do so.
  • Where practicable, carefully clean and dry any items affected by mould immediately. Items which cannot be cleaned may have to be disposed of or stored where they cannot cause further contamination.

Note: Cleaning mould can potentially be dangerous to health and you should wear protective clothing and a mask. If you want to try to clean the mould yourself, follow the guidelines on the Department of Health fact sheet available online.(226)

3.5.10 Options

If the tenant has attempted to deal with the mould and it continues to appear or becomes worse, the tenant has some options, including to:

  1. stay at the premises and seek practical or legal remedies to have the mould rectified; or
  2. end the tenancy and leave (this may include compensation and costs).

If the tenant wants to stay, refer to Chapter 3.2 (Repairs and Maintenance).

If you want to leave the premises because of mould:

While the existence of mould has been held in some cases to justify early termination,(227) this will depend on the severity of the mould damage. If the mould is not harmful or can be easily fixed by the lessor, but the tenant vacates the premises anyway, the tenant may be liable to the lessor for compensation for breaking the lease. See 4.2.7.1 (Costs of breaking the lease) for further discussion of break lease compensation. In regards to mould, it can be difficult to prove that the lessor’s breach justifies termination. This will often involve proving that the mould poses a significant risk to health, which may be difficult or impossible. The court process can take a long time, and the tenant may be subject to ongoing exposure to the mould in the meantime.

The tenant may be able to terminate by mutual agreement in writing with the lessor.(228) Contact the lessor and provide them with photos of the mould and evidence of the risks that it presents to your health and ask to leave without penalty. Get any agreement in writing. See 4.1.4 (By agreement in writing) for further discussion of mutual agreement to end a tenancy.

3.5.11 Premises Uninhabitable

If the premises, or part of the premises, are condemned (usually by the local council in accordance with the Health (Miscellaneous Provisions) Act 1911 (WA)) to be destroyed, or are rendered uninhabitable, the tenant or the lessor may be able to terminate the agreement by giving a notice of termination on the ground of frustration.(229) Frustration will only apply if there is no breach by either party. This means that the mould must have occurred by way of reason other than the lessor’s failure to repair the premises or the tenant’s failure to keep the premises in a reasonable state of cleanliness.

The Tribunal in Bannister v Cheung states:
There has been a number of decisions of the Tribunal which have found that premises have been so affected by mould that premises have not been fit for habitation (e.g. Roberts v Bell [2001] NSWRT 6; Finn v Finarto [2004] NSWCTTT 179; Bartley and Zawiolkowski v Harris Park Holdings Pty Limited [2010] NSWCTTT 592). In such cases, there was evidence of significant mould in the premises and the mould problems had not been addressed by the landlord over a period of time.McEachern v Walker & Walker (Residential Tenancies) [2018] ACAT 65 (21 June 2018) [15].">(230)

In Cope v Walker (Residential Tenancies) , the ACT Civil & Administrative Tribunal stated that whether premises are fit for habitation is a question of fact, considering ‘the nature and purpose of the property, the class of persons using it and contemporary standards.’(231) Note that while the ACT legislation uses the terminology of ‘not fit for habitation’(232) rather than ‘destroyed or rendered uninhabitable’ (which is the language used in s 69 of the Residential Tenancies Act 1987 (WA))(233) it is useful for present purposes as a non-binding interstate decision. In this case, the Tribunal held that the premises were not unfit for habitation due to mould in the bathroom, as the tenants were still able to use the alternative ensuite bathroom. The Tribunal contrasts this against the decision in Bannister v Cheung where the premises were found to be uninhabitable because many of the rooms in the premises had been affected by mould.(234)

For further discussion of frustration see 4.1.8 (Where agreement frustrated).

3.5.12 Applying to the Magistrates Court for Orders

If the lessor fails to deal with the mould within a reasonable period after the tenant has notified the lessor about the mould, the tenant may be able to apply to the Magistrates Court for one or more of the following orders:

  • that the lessor carry out repairs;
  • that the rent is reduced from when the tenant told the lessor about the need for the repairs until the repairs are done;
  • that the lessor compensate the tenant for losses suffered because they did not do the repairs (e.g. for damage to personal belongings); and
  • termination of the tenancy agreement.

The tenant will need to provide evidence to the Magistrates Court. This would usually include expert evidence from a mould expert, council building/health inspector or builder. The expert evidence would have to cover:

  • the cause of the mould
  • the danger the mould presented to the health of the tenants
  • the effects of the mould on the tenant's possessions
  • any other negative effects of the mould

3.5.13 Damage to personal belongings from mould

Mould can often damage personal belongings such as clothing, furniture and toys – especially if it forms in enclosed cupboards where belongings are kept. A tenant who has had their belongings damaged by mould as a result of the lessor’s breach of s 42 of the Residential Tenancies Act 1987 (WA) is entitled to compensation for such loss. In some cases, repairs that are required to avoid exposing property to damage by way of mould would be required urgently under s 43(1)(b) of the Residential Tenancies Act 1987 (WA), and the lessor must arrange for such repairs within 48 hours under s 43(1)(b).(235) This time period starts to run from when the tenant notifies the lessor of the need for repair as soon as practicable after the need arises.(236)

A tenant claiming compensation for damage to belongings due to mould will need to prove that such ‘damage was a direct and foreseeable result’ of the lessor’s breach in failing to maintain the premises in a reasonable state of repair.(237) The tenant will need to provide evidence of the affected goods (eg through photographs and documents), be able to prove ownership of the goods and demonstrate their second-hand value before the mould damage (eg through receipts or records of goods purchased). Fixing the quantum of damages is quite often difficult, as referred to by the NSW Residential Tribunal in Ghanem v Velovski :

It is always difficult to ask parties to produce receipts or records of goods purchased in the normal course of daily events when one has no inkling that at some stage in the future one may be asked to prove a certain garment existed or indeed the cost at which that garment was purchased and the length of ownership of the said garment.(238)

Despite this difficulty, the Court must do its best to estimate the quantum of damages using the available evidence.(239) The general rule ‘is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can’.(240)

In Mazzoni v Corbino (Tenancy)(241) the tenant was not entitled to compensation for alleged damage to her furniture by mould because there was no evidence that the mould could not simply be wiped off, and the lessor’s agent was not given an opportunity to inspect the furniture before it was thrown away by the tenant. In Libner & Armour v McBride (Tenancy)McBride (Tenancy) [[http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCTTT/2010/166.html][[2010] NSWCTTT 166]] (27 April 2010) [52].">(242) there was simply no evidence provided for the alleged damage to furniture and clothing, so no compensation was awarded for this.

3.6 Asbestos

3.6.1 Lessor's Obligations around Asbestos

Asbestos is a fibrous material commonly used in the manufacture of residential building materials in Australia until the late 1980s. The use of asbestos in building products was phased out in the 1980s. A total ban on the use of asbestos came into effect on 31 December 2003. The ban does not require the removal of asbestos products installed before that date. It has been estimated that asbestos products are found in about one third of all Australian homes built or renovated before 1990.(243) The great majority of asbestos found in residential building materials is in the form of asbestos cement products, including such things as:
  • Fence panels
  • Roofing, particularly in the form of corrugated sheets, but also in shingles and tiles
  • Cladding

Asbestos is a declared hazardous substance.(244) It is a term of every residential tenancy agreement that if a need for 'urgent repairs' arises otherwise than as a result of breach of the agreement by the tenant then the lessor must ensure that the repairs are carried out by a suitable repairer as soon as practicable after being notified of the need for them by the tenant.(245) 'Urgent repairs' are defined as including repairs that are necessary to avoid exposing a person to the risk of injury.(246) Exposure to asbestos material can have serious health consequences, however, when left undisturbed asbestos cement products are relatively harmless, so long as they are in good condition.(247) A lessor will therefore not usually breach the 'urgent repairs' term of their residential tenancy agreement by failing to remove an asbestos cement product which is in good condition. The same cannot be said of friable (loose) asbestos, which may be found in such things as carpet underlays or roof insulation which are dangerous if they can be breathed in.

However, there are some situations where the lessor may be in breach of their obligations under the Residential Tenancies Act 1987 (WA) by not removing asbestos. Under s 42(2)(c), it is a term of every residential tenancy agreement that a lessor ‘must comply with all requirements in respect of buildings, health and safety under any other written law insofar as they apply to the premises.’ Asbestos is regulated by the Department of Health under the Health (Asbestos) Regulations 1992 (WA) (HAR). This means that a lessor must comply with the HAR if there is asbestos on the premises. Under the HAR, an authorised officer may serve a written notice on the owner or occupier of premises where material containing asbestos is present, directing that person to do any one or more of the following: ‘maintain, repair, remove, move, dispose of, or handle the material containing asbestos in such a manner and within such time as is specified in the direction.’(248) Failure to comply with the direction is an offence, subject to a penalty of $10 000.(249) If a lessor fails to comply with the direction, a local government may carry out (or arrange to be carried out) the work required under the direction, and the expenses incurred must be paid by the lessor.(250) Failure to pay the expenses incurred is an offence, subject to a fine of $10 000.(251)

It is an offence to carry out the repair, maintenance, removal, movement or disposal of any material containing asbestos without taking ‘reasonable measures to prevent asbestos fibres entering the atmosphere’.(252) ‘Reasonable measures’ are defined in the HAR in reg 7(4) as including:

(a) using water or other practical measures to keep airborne material containing asbestos to a minimum;

(b) not using any tools other than non powered hand tools or portable power tools that incorporate dust suppression or dust extraction attachments designed to collect asbestos fibres;

© using only vacuum cleaning equipment designed to collect asbestos fibres or wetting the area before sweeping up material containing asbestos;

(d) not using a high pressure water jet, or compressed air, unless in a manner which adequately prevents asbestos fibres entering the atmosphere and which is approved in writing by the Chief Health Officer;

(e) ensuring, so far as is reasonably practicable, that material containing asbestos is not broken or abraded;

(f) ensuring that waste material containing asbestos is disposed of in accordance with the Environmental Protection (Controlled Waste) Regulations 2004 as soon as practicable.(253)

Any damaged or disturbed asbestos should be reported to the lessor as soon as practicable.

It is possible that damaged or disturbed asbestos could be an urgent repair under s 43 of the Residential Tenancies Act 1987 (WA) as it may be exposing a person to the risk of injury.(254) If this is the case, the lessor is required to arrange for the repairs to be conducted by a suitable repairer as soon as practicable (within 48 hours) after notification of the urgent repair.(255) Depending on where the asbestos is on the premises, and the nature and extent of the damage to it, the tenant may have to vacate the premises until the asbestos has been removed and the site decontaminated. Where this occurs the lessor may be liable to pay the tenant compensation for the tenant's expenses (e.g. the cost of temporary accommodation). However, depending on the circumstances,(256) the lessor may not be in breach of the agreement from the first instance that any hazardous asbestos is discovered. For example, a sleep-out may be constructed using asbestos cement cladding and sheeting. Suppose that during a storm a tree limb falls on it and crushes some of the cladding such that it becomes friable and thus hazardous. The tenant tells the lessor at once and moves out to temporary accommodation. The lessor will only be liable for breach of the term implied by s 43(2) of the Residential Tenancies Act if the lessor fails to ensure that the asbestos is dealt with by a suitable repairer "as soon as practicable" after the tenant has told him or her about it. Perhaps the lessor makes every immediate effort to engage an asbestos removalist, but it takes two days for the asbestos to be removed. The lessor would probably not be in breach if that was the case, and would not be liable to pay compensation to the tenant. On the other hand, if the lessor did nothing to find an asbestos removalist for several weeks, the tenant would probably be entitled to compensation for breach of the agreement after a day or so.(257) The Lessor is only liable to pay compensation where they have breached their obligation under the agreement, the lessor is not responsible just because the tenant has losses which are not the tenant’s fault.

A tenant who is worried about the health consequences of asbestos should contact the Environmental Health Branch of the Western Australian Department of Health, or the local government Environmental Health Officer. The Building Commission (Consumer Protection) may also provide information on building obligations regarding asbestos.

Information on asbestos can be accessed online at:

The Housing Authority has developed an asbestos plan and policy to ensure that asbestos material in Housing Authority premises will be managed and reduced over time. The policy and plan can be accessed in full on the Housing Authority website.(258)

Limitation period for asbestos-related diseases:

There is a long period (20-50 years) between exposure to asbestos and the time an asbestos-related disease may manifest itself.(259) For that reason, special rules apply to the time limits within which legal proceedings must be commenced.

The limitation period will vary depending on when the claimant first became aware of all specified 'relevant facts' and may be three years from the date of becoming aware of the ‘relevant facts’, and different rules apply for some cases prior to 1984. Seek specialist personal injuries legal advice in relation to the limitation dates, relevant facts and potential compensation in these matters.

3.6.2 Case examples on asbestos in residential tenancies

In Smith v Anthony (Residential Tenancies)(260) the tenant was entitled to a significant amount of compensation ($5 162.33) for loss of goods due to the lessor’s failure to maintain the premises in good repair. In this case, the tenant discovered dust on his belongings stored in the shed while he was in the process of vacating the premises. A sample taken from the shed from a building inspector revealed the presence of friable asbestos. The tenant’s claim for loss of goods stored in the shed that were contaminated by asbestos included kites, tools, vehicle covers, audio equipment, wet suit, backpack, boots, cardboard boxes and cloths. The report by the building inspector revealed that the asbestos fibres stemmed from the outer roof sheeting of the shed which was damaged and deteriorating, and likely got into the shed through the openings in the roof structure. The Tribunal found that the lessor did not actually know about the presence of friable asbestos in the shed until the tenant informed them of this and a sample was taken. However, the lessor’s failure to check the shed roof or guttering for defects and deterioration constituted a failure to maintain the premises in a good state of repair. If the lessor had inspected the exterior roof, this would very likely have revealed that the exterior surface was deteriorating, and a subsequent inspection would have revealed the presence of asbestos fibres in the shed.(261) The tenant was entitled to compensation for the cost of removing the tenant’s belongings from the shed, wet wiping and vacuuming each item with a high efficiency particle air filtration (HEPA) filter vacuum, as well as Worksafe documentation, materials, equipment and signage for removal, transport and removal of contaminated materials, and items made ready for removal.(262) The tenant was also entitled to compensation for a skip bin, building inspection report, truck rental and one nights’ accommodation at a holiday park. The total compensation awarded was $5 162.33.(263)

In Fawzi El-Saiedy v New South Wales Land & Housing Corporation the Supreme Court of NSW held that the lessor (Housing Authority) was in breach of its obligation to maintain the premises in a reasonable state of repair by failing to remove unsafe asbestos.(264) The tenant was entitled to damages of $4000 for disappointment and distress, and the lessor was ordered to remove and replace all the asbestos sheets and linings.(265) The Court stated that:

Where asbestos remains undisturbed, in situ, it does not pose a risk to tenants and nothing needs to be done. However, this is not the situation here. Nor is it the situation that only one panel had been damaged. It is my view that in order for Housing to comply with its obligations under clause 11 of the lease it should carry out the work as proposed by Mr De Silva.(266)

In this case the damage was significant:
[T]he damage to the asbestos sheeting is widespread [a total of approximately 30 small and large cracks and holes detected] in the walls of the bathroom, kitchen and laundry…Some previously damaged areas that had been repatched are now showing new damages and/or the patches or parts of them have come out re-exposing asbestos edges. This means that it is likely that these panels will further deteriorate over time and will need to be further repaired.(267)

In Bethke v O’Connor (Tenancy) the lessors were ordered to repair an asbestos fence after parts of it fell off.(268) The Tribunal found that the lessor’s breach in failing to rectify the fence after being notified by the tenant should not lead to a substantial rent reduction of more than $25.00 per week, or $3.57 per day for 318 days (being a total of $1 135.26).(269)

In Koller and Cartwright v Williams (Tenancy) the tenants commissioned a report from an environmental hygienist who identified fragments of asbestos in the tenants’ backyard that should not be disturbed to avoid causing airborne asbestos (eg by mowing the lawns).(270) The Tribunal was satisfied that the lessor failed to get a proper report and appropriately treat the tenants’ claim regarding the asbestos. The Tribunal ordered $1000.00 compensation to the tenants for their inability to use the backyard over an extended period, and $330.00 for the cost of the report obtained by the tenant.(271)

In Barnett v Stockdale(272) the tenant commenced proceedings after the lessor conducted repairs to an asbestos roof, and Work Cover advised the tenants to relocate immediately. There was a factual dispute about whether the repairs had disturbed the asbestos and whether asbestos was present in dangerous (breathable) form. The Tribunal held that the tenants had failed to prove on the balance of probabilities that the presence of asbestos posed a risk to health. Therefore, the premises were not rendered uninhabitable and the tenants’ application was dismissed.

3.7 Quiet enjoyment

3.7.1 The meaning of quiet enjoyment and the right to reasonable peace, comfort or privacy

Introduction

The right to ‘quiet enjoyment’ protects the tenant against interference with their possession of the premises. At common law, a covenant for 'quiet enjoyment' is implied into every tenancy where there is not an express term. It arises, quite apart from authority, as a natural consequence of the agreement between the parties, as a matter of "principle and common sense".(273) The essence of any lease is that the tenant is given the right to possession of property, and that is entirely illusory if the lessor (or those "claiming under" him or her) can interfere with or interrupt it.(274)

'Quiet enjoyment' itself is protected by s 44(2)(a) of the Residential Tenancies Act 1987 (WA), which makes it a term of every residential tenancy agreement:

that the tenant is to have quiet enjoyment of the premises without interruption by the lessor or any person claiming by, through or under the lessor or having superior title to the lessor.(275)

'Quiet enjoyment' is a term which has acquired a technical legal meaning over several centuries. As a result, it is not easy to define, and cannot be fully understood without reference to case law. It is not defined in the Residential Tenancies Act 1987 (WA). The Residential Tenancies Act 1987 (WA) does not only protect 'quiet enjoyment', however. It also implies the following terms into every residential tenancy agreement:

  • that the lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises;(276) and
  • that the lessor must take all reasonable steps to enforce the obligation of any other tenant of the lessor in occupation of adjacent premises not to cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.(277)
Although all three of the implied terms are found in s 44, the heading of which is 'quiet enjoyment', only one of them actually refers to 'quiet enjoyment'. In stark contrast with the term implied by s 44(2)(a), the last two terms do not contain any words of technical legal meaning, and there is no need to refer to the common law in order to interpret their meaning. Confusingly, despite the heading, at common law it was often the case that breaches of the last two terms would not amount to a breach of quiet enjoyment.

The meaning of the 'quiet enjoyment' term implied by s 44(2)(a)

In Spathis v Hanave Investment Co Pty Ltd & Anor [2002] NSWSC 304, the Supreme Court of NSW said of a similarly worded covenant for quiet enjoyment,

These are ordinary English words, and it is a question of fact whether they have been broken in any case. The only constraint which arises as a matter of law, in deciding whether there has been a breach of the covenant, is that because the covenant is a standard form covenant contained in legislation, a construction ought be adopted of it which is conformable with other cases construing the same words.(278)

So, in order to know what might constitute a breach of the term implied by s 44(2)(a) for quiet enjoyment (which we will refer to from now on as 'a breach of quiet enjoyment' for the sake of convenience), we have to know both:

(a) the ordinary meaning of the words of s 44(2)(a) itself; and
(b) what the common law has held them to mean over the centuries.

What is the plain and ordinary meaning of the term 'quiet enjoyment'? The relevant definitions from the Shorter Oxford English Dictionary(279) are as follows:

quiet Of an action, state, etc. (formerly also of a person): undisturbed, uninterrupted; not interfered with
enjoyment The action or state of enjoying something
enjoy Have the use or benefit of (something pleasant or advantageous)

Combining these definitions, the meaning of 'quiet enjoyment' is: Having the use or benefit of [the premises] without disturbance, interruption or interference. For now, we will leave to one side the meaning of the other words of s 44(2)(a)(280), but we will return to them later.

What does the common law say about the covenant for 'quiet enjoyment'?

[T]he word "quiet" in such a covenant does not refer to the absence of noise. It means without interference. The covenant for quiet enjoyment was originally regarded as a covenant to secure title or possession. It warranted freedom from disturbance by adverse claimants to the property: see Dennett v. Atherton (1872) L.R. 7 Q.B. 316; Jenkins v. Jackson (1888) 40 Ch. D. 71; Hudson v. Cripps [1896] 1 Ch. 265. But its scope was extended to cover any substantial interference with the ordinary and lawful enjoyment of the land, although neither the title to the land nor possession of the land was affected: Sanderson v. Berwick-upon-Tweed Corporation (1884) 13 Q.B.D. 547, 551(281)

The common law on quiet enjoyment has varied over the centuries, and it has not always been entirely clear what kinds of actions would constitute a breach of it. It was also not clear whether or not the implied covenant extended to interruptions by superior title holders, in all or some circumstances.(282) Nor was it always clear to what extent it prohibited interference by third parties, and in what circumstances. At common law the covenant only protected the tenant against breaches of the tenant's quiet enjoyment which resulted from the rightful (as opposed to wrongful) actions of other parties claiming 'by, through or under' the lessor. It was said that in respect of wrongful actions the tenant had other means to enforce their rights, such as an action in trespass or tort. There was a body of case law which held that the lessor would not be liable for the actions of tenants of adjacent premises of the same lessor unless the lessor had consented to or actively participated, in them, or they were reasonably foreseeable.(283)

Further, many cases held that the covenant for quiet enjoyment would not be breached unless there was actual physical interference with the tenant's enjoyment of the property. So the covenant was not broken where a lessor erected an external staircase which passed the tenant's bedroom windows. In that case(284) Parker J said that:

"to constitute a breach of such a covenant there must be some physical interference with the enjoyment of the demised premises, and that a mere interference with the comfort of persons using the demised premises by the creation of a personal annoyance such as might arise from noise, invasion of privacy, or otherwise is not enough" [emphasis added]

It has to be said that, in the last century, the common law has gradually moved away from the strict position that there must be some physical interference. So some 40 years later the English Court of Appeal held that a lessor who erected scaffolding on the footpath outside rented premises had breached the tenant's quiet enjoyment.(285) For another example, it is now the case that regular excessive noise would usually be capable, at least in principle, of constituting a breach.(286)

It will not always be clear whether or not there has been a breach of the 'quiet enjoyment' term implied by s 44(2)(a). The answer will usually depend on case law (most of it English) going back several centuries. That is because, in order to understand the meaning of s 44(2)(a) one has to understand the technical legal meaning of the term "quiet enjoyment". So, in a case where the tenants of flats complained that normal living noise from other tenants of the same lessor in neighbouring flats disturbed their 'quiet enjoyment' of their premises, Lord Hoffmann said:

I shall consider first the covenant for quiet enjoyment. This is contained in clause 1 of Mrs. Tanner's tenancy agreement. It says: "The tenant's right to remain in and to enjoy the quiet occupation of the dwelling house shall not be interfered with by the Council. . . " Clause B4 of Ms. Baxter's agreement says "The Council shall not interfere with the tenants' rights to quiet enjoyment of the premises during the continuance of the tenancy." Read literally, these words would seem very apt. The flat is not quiet and the tenant is not enjoying it. But the words cannot be read literally. The covenant has a very long history. It has been expressed or implied in conveyances and leases of English land for centuries. It comes from a time when, in a conveyancing context, the words "quiet enjoyment" had a technical meaning different from what they would today signify to a non-lawyer who was unacquainted with their history. So in Jenkins v Jackson (1888) 40 Ch.D. 71, 74, Kekewich J. felt obliged to point out that the word "quietly" in the covenant "does not mean undisturbed by noise. When a man is quietly in possession it has nothing whatever to do with noise… 'Peaceably and quietly' means without interference - without interruption of the possession." Likewise in Kenny v. Preen [1963] 1 QB 499, 511 Pearson L.J. explained that "the word 'enjoy' used in this connection is a translation of the Latin word 'fruor' and refers to the exercise and use of the right and having the full benefit of it, rather than to deriving pleasure from it."(287)

In many cases where it is not clear whether or not there has been a breach of the right to 'quiet enjoyment' under s 44(2)(a), there may well be a clear breach of the terms implied by sections 44(2)(b) and ©.

'Any person claiming by, through or under the lessor, or having superior title to that of the lessor'

What about the meaning of the rest of the words in s 44(2)(a)? The majority of them have also acquired a technical legal meaning and we have to look at case law to see what they mean.

'Any person claiming by, through or under the lessor'

The question which naturally arises here is what exactly must 'any person' be 'claiming by, through or under the lessor'? Is it to be read as 'any person claiming title by, through or under the lessor'? Or something else? The answer is that it is 'construed to mean those who claim under the lessor the right to do the act or acts in question which are said to be the cause of the relevant interruption or disturbance: Harrison, Ainslie & Co v Lord Muncaster [1891] 2 QB 680, 685, 689.'(288) Given that meaning, 'any person claiming by, through or under the lessor' is a very wide category, and could include the following:

  • the lessor's real estate agent(289)
  • contractors engaged by the lessor(290)
  • other tenants of the lessor in adjoining premises(291)
  • other tenants of the lessor under a previous lease granted by the lessor – so where a tenant was unable to take possession of premises at the start of the lease due to the previous tenant's holding over the lessor would be liable under s 44(2)(a)(292)
  • other tenants of the lessor under a subsequent lease granted by the lessor
  • any personal representative, successor or assignee of the lessor(293)
  • a mortgagee of the lessor(294)
'Or having superior title to that of the lessor'

At common law disturbances caused by superior title holders do not constitute a breach of the covenant for quiet enjoyment.(295) For an in depth discussion of what a superior title holder is, see Superior Title and Mortgagee Repossessions. In brief, a person having a superior title to that of the lessor will be a person who has a better right to possession than the lessor, and includes the following:

  • a head lessor (so where a sub-lessor lets premises to a tenant, the sub-lessor's lessor will have a superior title)
  • a mortgagee(296)
By expressly referring to superior title holders, s 44(2)(a) extends the quiet enjoyment term to cover breaches by them.

What may constitute a breach of the quiet enjoyment term implied by s 44(2)(a)

As can be seen from the above discussion, it will not always be clear whether or not a particular action is a breach of the term implied by s 44(2)(a). However, the following actions would usually breach it:
  • unlawful eviction or an attempt at one(297)
  • the lessor or real estate agent entering the premises otherwise than in accordance with a right of entry under s 46(298)
  • the lessor's tradesperson entering the premises to carry out non-urgent repairs without proper notice or the consent of the tenant;
  • the lessor's contractors causing damage to the premises when carrying out work authorized by the lessor(299)
  • failure to carry out repairs or necessary maintenance (where that results in substantial interference with the usual use of the premises);(300)
  • violent and abusive behavior;(301)
  • noise alone, in some cases.(302)
  • the lessor disconnecting the power or other utilities to the premises,(303) or removing the doors and windows in order to evict a tenant(304)
  • the lessor defaulting under their mortgage causing the mortgagee to exercise its right to possession(305)
The terms implied by sections 44(2)(b) and (c)

Unlike s 44(2)(a), which ultimately owes its existence to the common law implied term for quiet enjoyment, s 44(2)(b) and s 44(2)(c) are relatively recent inventions. Their purpose, and effect, is to extend the reach of the common law covenant for quiet enjoyment to cover situations and actions which, at common law:

(a) would not have been covered by the usual covenant; or
(b) where there would have been uncertainty as to whether or not they were covered by the usual covenant.

S 44(2)(b)

S 44(2)(b) was taken, in practically identical form, from the Residential Tenancies Act 1978 (SA),(306) but it seems to have its earliest ancestor in Canada. In March 1976 the Ontario Law Reform Commission published its 'Report on Landlord and Tenant Law'. The report detailed the lack of clarity at common law as to what actions constituted a breach of the implied or usual express covenant for quiet enjoyment. It was recommended(307) that the Landlord and Tenant Act 1970 (Ontario) and related legislation be amended to 'give effect to the recommendation that a wider, more comprehensive, covenant for quiet enjoyment should be implied in every tenancy agreement', by the 'enactment of a new section in the following or similar terms:

In every tenancy agreement the landlord shall be deemed to have covenanted, for the term thereby granted, that the tenant shall have the right to quiet enjoyment, including the right to peaceably possess and have the full benefit of the rented premises, together with the right to use and enjoy them in reasonable peace, comfort and privacy, without interference, interruption or disturbance from the landlord or any other person or persons lawfully claiming by, from or under him.'(308) (emphasis added)

Sections 44(2)(a) and (b) of the WA Act are strikingly similar to the above section. The main difference is that the single term proposed by the Ontario Law Reform Commission has been split into two separate terms. What was said of the Canadian term is also true of our sections 44(2)(a) and (b):

'[…] the ambit of the suggested covenant not only preserves that which is viewed as being of value in the present law concerning the covenant,(309) but also is sufficiently wide to allow a court to assess each individual case on its merits, in the light of contemporary tenancy problems, and without the constricting influence of the imposition of arbitrary and artificial distinctions.'(310)

The Commission also recommended that 'legislation should be enacted to give effect to the […] supplementary requirement […]' that:

the nature of the acts constituting a breach of the covenant should not necessarily be limited to those which at present comprise a breach of the implied or usual express covenant for quiet enjoyment. Without limiting the generality of the foregoing, a breach of the covenant should arise from any acts which result in the tenant's reasonable peace, comfort or privacy being interfered with, whether due to liquids, gases, vapours, solids, odours, vibration, noise, abusive language, threats, fire, the total or partial withholding of heat, electricity, water, gas or other essential services, or the removal of windows, doors, walls or other parts of the rented premises. The Commission recommends, however, that the proposed legislation should not expressly delimit the types of acts which might constitute a breach of the covenant; rather, it should be left to the court to determine whether, in all the circumstances of the case, the covenant has been breached.'(311)

It is submitted that the above could be adopted as a relevant guide to the kinds of actions which may constitute a breach of the terms implied by subsections 44(2)(a) and (b).

There is no WA case law on the meaning of s 44(2)(b). However, in Re Magistrate Raelene Natasha Johnston; Ex Parte Wallam(312) the Supreme Court had to consider the meaning of s 75A(1)(a) - © of the Residential Tenancies Act 1987 (WA). S 75A permits the court to terminate a social housing tenancy agreement where it is satisfied that the tenant has:

(a) used the premises for an illegal purpose;(313)or
(b) caused or permitted a nuisance by the use of the premises;(314)or
© 'interfered, or caused or permitted any interference, with the reasonable peace, comfort or privacy of any person who resides in the immediate vicinity of the premises'(315)

and that the behaviour justifies termination.

Pritchard J said:

'It is appropriate to commence by considering the proper approach to statutory construction. The task of statutory construction begins and ends with the words of a legislative provision, but those words must be considered in their context, which includes the legislative history and the general purpose and policy of the provision. The starting point in that exercise of construction is to give the words used their ordinary meaning.

(a) The ordinary meaning of the words in s 75A(1) 39 The behaviour which may trigger an application under s 75A is set out in s 75A(1)(a)-(c). The behaviour covered by the provision is of a very diverse nature, and ranges from the trivial, such as playing music a little too loudly at night sufficient to interfere with a neighbour's peace, to extremely serious criminal conduct.'(316)

Her Honour was plainly not referring to nuisance here, because she uses the words 'interferes with […] peace', and in any event, a 'trivial interference […] is not a nuisance'. Substantial interference with enjoyment of land must be shown to prove nuisance.(317)

The NSW Consumer, Trader & Tenancy Tribunal in Ingram v Department of Housing (Tenancy)(318) stated that the phrase ‘peace, comfort or privacy’ is an expansion of the common law concept of quiet enjoyment ‘as a breach of “comfort and privacy” may not necessarily also constitute a breach of quiet enjoyment.’ The Tribunal stated further that the term ‘permit’ in ‘not cause or permit any interference’ includes an omission by the lessor, rather than being limited to a commission.(319)

The South Australian Residential Tenancies Tribunal in South Australian Housing Trust v B(320) regarded ‘privacy’ as ‘an inanimate thing that can be breached by prying or eavesdropping, or similar’. They defined ‘comfort’ as ‘more than the physical ease of a person, and it may well apply to a person’s mental faculty. A person may feel uncomfortable because of fear, or apprehension of an imposition.’

‘Premises’ includes fixtures and chattels provided with the premises, except those that the lessor had disclosed as not functioning before the agreement is entered into, or that the tenant could not reasonably have expected to be functioning at the time the agreement was entered into.(321)

Under s 59E of the Residential Tenancies Act 1987 (WA), a lessor who causes or permits interference with the reasonable peace, comfort or privacy of the tenant in the tenant’s use of the premises commits an offence, subject to a fine of $10 000. A tenant can report the lessor to Consumer Protection if the tenant feels that the lessor has breached the tenant’s quiet enjoyment.

The lessor will also be in breach of the term implied by s 44 of the Residential Tenancies Act 1987 (WA).(322)

This means that the tenant can commence proceedings against the lessor for compensation, a specific performance order to stop the lessor interfering with their quiet enjoyment, or in some cases, termination of the agreement. The court will only terminate the agreement if it is satisfied that the lessor has breached the agreement and the breach is in the circumstances of the case such as to justify termination.(323)

3.7.4 Lessor entering the premises or contacting the tenant

The lessor is entitled to enter the premises in accordance with the lessor’s right of entry provisions under s 46 of the Residential Tenancies Act 1987 (WA).(324) A lessor who enters the premises without complying with this section may be in breach of both ss 46 and 44 of the RT Act.(325) In Rose v Mitchell police were called and injunctive orders were made after the lessor entered the premises on at least 4 occasions without the tenant’s consent and without any purpose permitted under the RT Act.(326) The Victorian Civil and Administrative Tribunal held this was a serious breach of the tenant’s quiet enjoyment.(327) The Tribunal ordered $2000 compensation to the tenant ($500 for each of the four incidents) – offset against the rent arrears owed by the tenant.(328)

It is unlikely that a lessor who merely contacts a tenant to arrange or discuss something legitimately connected with the tenancy will be in breach of the tenant’s quiet enjoyment. In Yau Hang Chan v Kerry Reynolds; Yau Hang Chan v Department of Housing the tenant had alleged that, by sending him a letter by which the lessor sought access to the premises to complete a property assessment survey, the lessor had contravened the then NSW equivalent of s 44(2)(b).(329) The Supreme Court rejected that, stating, "[…] the proposition that the sending of a letter from a landlord to a tenant could amount to interference with the tenant’s right to quiet enjoyment is not reasonably arguable".(330) It is not necessarily the case that the sending of a letter or any other written communication could never amount to an interruption of quiet enjoyment however. Where the contents are threatening or abusive, or communications are delivered repeatedly without reasonable cause or at an unreasonable time, there could well be a breach of s 44(2)(a) or (b).(331)

3.7.6 Disputes with neighbours

Under s 44(2)(c) it is a term of every residential tenancy agreement ‘that the lessor must take all reasonable steps to enforce the obligation of any other tenant of the lessor in occupation of adjacent premises not to cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.’

A tenant who interferes with the reasonable peace, comfort or privacy of another tenant in adjacent premises may, by the same acts, also be in breach of other terms in their own agreement. These may be implied by the Residential Tenancies Act 1987 (WA), including:
  1. S 39(a) – that the tenant shall not use, or cause or permit the premises to be used, for any illegal purpose;
  2. S 39(b) – that the tenant shall not cause or permit a nuisance; and
  3. S 38 – that the tenant shall keep the premises in a reasonable state of cleanliness
There may also be other relevant terms in their agreement which are not required by the Act, and which are not void for inconsistency, for example, a term that a tenant may not keep any pet at the premises.

Taking ‘all reasonable steps’ where the offending behaviour was also a breach of a term of the second tenant's agreement could involve requesting that the tenant rectify the breach or sending a breach notice. If the breach is rectified, then it is unlikely that the lessor will need to take further steps. If, however, the breach is not rectified, further reasonable steps taken by the lessor may require him or her to seek either:
  1. an order that the offending tenant stop the action which is in breach of the relevant term; or
  2. an order for termination of the offending tenant's tenancy.MacCallum and Moore suggest that, if the tenant does not rectify the breach, the lessor must terminate the offending tenant’s agreement to satisfy the obligation to take all reasonable steps: Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 459 [1517].">(332)
The lessor will only be in breach of s 44(2)(c) of the Residential Tenancies Act 1987 (WA) if the lessor rents out two adjacent properties, and the tenants of one property are causing or permitting an interference with the reasonable peace, comfort or privacy of the tenant of the adjacent one.

If the lessor is not also the lessor of the neighbouring premises, the tenant will not be able to argue that there has been a breach of the term implied by s 44(2)(c) of the Residential Tenancies Act 1987 (WA). The tenant may however, have a civil claim under other laws (such as under the tort of nuisance), and should seek separate legal advice on these matters. Where unreasonably excessive noise is being caused by neighbours, the tenant may complain to their local government or the police, who may take action under the Environmental Protection Act 1986 (WA). Some Community Legal Centres also offer mediation for neighbourhood disputes, for those that live in their catchment area. Legal Aid WA has a useful information sheet called Dealing with Neighbours that includes a list of helpful services (access online).(333)

Limitation period for interference with quiet enjoyment by neighbouring premises owned by the lessor: the tenant has six years to commence legal proceedings, running from when the lessor fails to take all reasonable steps to enforce the obligation of other tenants of the lessor in occupation of adjacent premises not to cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.

3.8 Security

There are new family violence provisions in the Residential Tenancies Act – these new laws are not yet included in this chapter. The family violence provisions in the Residential Tenancies Act came into effect on 15 April 2019, and they make changes with respect to terminating the lease, removing a perpetrator from a lease, changing the locks and liability under the lease and return of the bond. Check http://www.tenancywa.org.au/family-violence for information about these new laws.

3.8.1 Lessor's duty to ensure premises are reasonably secure

3.8.2 Locks and keys

3.9 Lessor's right of entry

Section 46 of the Residential Tenancies Act 1987 (WA) sets out the lessor’s right of entry. A tenant has a right to exclusive occupation under the residential tenancy agreement and a right to quiet enjoyment, and peace, comfort and privacy.(334) Section 46 sets out the only means by which the lessor can enter the premises during the tenancy without impinging on the tenant’s rights (which are the very essence of what the tenant is paying rent for).

3.9.1 When Can the Lessor Enter the Premises?

The lessor may enter the premises in the following circumstances:(335)

Residential Tenancies Act 1987 (WA) sectionSort Purpose When can the lessor enter?
46(2)(a) In any case of emergency At any time
46(2)(b) Conducting routine inspections (or for any other purpose) At a reasonable time, after giving at least seven but not more than 14 days’ written notice
46(2)(c) Collecting rent under the agreement, where it is payable not more than once per week and it is agreed that the rent be collected at the premises At any reasonable time
46(2)(d), 77(4) Under s 77(4), where the lessor suspects that the tenant has abandoned the premises 24 hours after giving the correct notice
46(2)(e) Carrying out or inspecting necessary maintenance or repairs At any reasonable time, after giving the tenant not less than 72 hours written notice
46(2)(f) Showing the premises to prospective tenants Only in the last 21 days of the residential tenancy agreement. At a reasonable time, on a reasonable number of occasions after giving reasonable notice in writing
46(2)(g) Showing the premises to prospective purchasers At a reasonable time, on a reasonable number of occasions after giving reasonable written notice
46(2)(h) With consent of the tenant, given at, or immediately before, the time of entry As soon as consent is provided
Each provision is discussed in more detail below.

Limitation period for breach of lessor’s right of entry: The tenant has six years to commence proceedings for compensation, running from the date of the wrongful entry.(336)

3.9.1.1 Emergency: Section 46(2)(a)

Section 46(2)(a) gives the lessor a right to enter the premises in any case of emergency.(337) The lessor is not required to provide any notice in such cases. According to Bradbrook, MacCallum and Moore, the term ‘emergency’ must be construed strictly to protect the tenant’s right to privacy – the lessor should only enter ‘if prompt action is required to prevent serious damage to the property or serious injury to a person on the property and the landlord is in a position to act so as to avoid such damage or injury.’(338)

3.9.1.2 Routine Inspections: Section 46(2)(b)

Under section 46(2)(b), the lessor may enter the premises:

for conducting routine inspections of the premises or any other purpose, on a day and at a reasonable time, specified by notice in writing given to the tenant – (i) not less than 7 days before the proposed entry; and (ii) within 14 days before the proposed entry;(339)

A lessor may only conduct up to four routine inspections in a 12 month period after giving the tenant at least seven, but not more than 14 days’, written notice.(340)

It is unclear whether this also includes re-inspections (where the property manager/lessor comes back soon after the initial inspection to see if issues have been fixed). Tenancy WA’s position is that re-inspections are included in the four routine inspections. This means that a lessor choosing to do another inspection soon after a routine inspection, would have to count the subsequent inspection as one of four. Consumer Protection’s position on the other hand, is that the lessor can do a reasonable number of routine re-inspections under s 46(2)(e) of the Residential Tenancies Act 1987 (WA).(341) It is difficult, however, to see how such inspections could be ‘for carrying out or inspectingnecessary repairs to or maintenance of the premises’.(342) For a more in-depth discussion of this issue, see 'How Many Re-Inspections are Permitted?'.

The lessor could also do a re-inspection with the tenant’s consent under s 46(2)(h).(343) If the tenant does not want this to occur, the tenant should make it very clear that they are not consenting to a re-inspection. There may be circumstances where it is in a tenant's interests to consent to a re-inspection, for example where the tenant had breached the agreement, had rectified that breach, and an inspection would avoid the lessor seeking compensation for or taking further action in relation to it. Alternatively, the tenant could send the lessor photographs of the rectification.

Routine inspections must be conducted at a reasonable time. The meaning of ‘reasonable time’ is discussed below.

Section 46(2)(b) not only permits the lessor entry for routine inspections, but also for ‘any other purpose’. This is very broad. With reference to the equivalent provision of the then South Australian Residential Tenancies Act 1978 (SA), Bradbrook, MacCallum and Moore suggest that this provision:

…appears to allow the landlord to enter the premises for any purpose at all provided that he gives the tenant seven days’ notice. For example, a landlord who wishes to show the premises to his relatives may be able to do so by giving the tenant the required period of notice that he (the landlord) intends to enter. If such a wide interpretation were given, it is suggested that a tenant’s privacy could be substantially interfered with.(344)

Note that in the relevant provision in the then South Australian Residential Tenancies Act 1978 (SA), the number of inspections under the section was unlimited, whereas under the Residential Tenancies Act 1987 (WA) it is limited to four per year.

3.9.1.3 Collecting Rent: Section 46(2)

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Under s 46(2)(c), the lessor can enter the premises ‘at any reasonable time for the purpose of collecting the rent under the agreement, where it is payable not more frequently than once every week and it is agreed that the rent be collected at the premises’. The lessor does not need to provide any additional notice that they will be entering to collect the rent, so long as the initial agreement is in place.

‘Reasonable time’ is discussed below.

3.9.1.4 Under s 77(4): Section 46(2)(d)

Section 77 of the Residential Tenancies Act 1987 (WA) deals with the situation where the lessor 'suspects on reasonable grounds'(345) that the tenant has abandoned the premises. Section 77(4) of the Residential Tenancies Act 1987 (WA) states that ‘[i]f the tenant fails to notify the lessor within 24 hours after notice has been given under subsection (3) that the premises have not been abandoned, the lessor may enter the premises for the purposes of inspecting and securing them.’ Section 77(3) requires that a copy of the notice provided by the lessor to the tenant be left at the premises and at the tenant’s last known place of employment.

Section 77 is discussed in further detail at 4.2.7 (Ending a Fixed Term Agreement Early – By Abandoning the Premises).

3.9.1.5 Repairs and Maintenance: Section 46(2)(e)

Under s 46(2)(e) the lessor may enter the premises ‘for the purpose of carrying out or inspecting necessary repairs to or maintenance of the premises, at any reasonable time, after giving the tenant not less than 72 hours notice in writing before the proposed entry’.

The repairs must be ‘necessary’. Bradbrook, MacCallum and Moore suggest that ‘necessary repairs and maintenance are confined to those which the landlord is obliged to perform under the Act.’(346) See 'How Many Re-Inspections are Permitted?' for a discussion of the history and apparent legislative intent of s 46(2)(e).

‘Reasonable time’ is discussed below.

3.9.1.6 Prospective Tenants: Section 46(2)(f)

Section 46(2)(f) states that the lessor may enter the premises ‘for the purpose of showing the premises to prospective tenants, at any reasonable time and on a reasonable number of occasions during the period of 21 days preceding the termination of the agreement, after giving the tenant reasonable notice in writing’.

‘Reasonable time’, ‘reasonable number of occasions’ and ‘reasonable notice in writing’ are discussed below.

3.9.1.7 Prospective Purchasers: Section 46(2)(g)

Section 46(2)(g) states that the lessor may enter the premises ‘for the purpose of showing the premises to prospective purchasers, at any reasonable time and on a reasonable number of occasions, after giving the tenant reasonable notice in writing’.‘Reasonable time’, ‘reasonable number of occasions’ and ‘reasonable notice in writing’ are discussed below.

In relation to the equivalent provision in the Residential Tenancies Act 1978 (SA), Bradbrook, MacCallum and Moore noted the potential for unreasonable use:
Conveivably, entries for the purpose of showing the premises to prospective purchasers could occur on a regular basis throughout the tenancy. […] If the landlord is to be permitted a right of entry to show the premises to prospective purchasers during the tenancy agreement it is submitted that the right should be more carefully circumscribed than it is at present. The landlord should be required to produce proof that the property is for sale and the length of time it is on the market should be limited in some way.(347)

3.9.2 What constitutes written notice?

The written notice must state the day of entry and whether the entry will be before or after 12pm.(348)

There is no requirement that the notice states who will be attending the premises.(349)

3.9.3 Lessor must enter in a reasonable manner

The lessor must exercise a right of entry in a reasonable manner and must not (without the tenant’s consent) stay or permit others to stay longer than is necessary to achieve the purpose of the entry.(350)

3.9.4 What is a 'reasonable time'?

‘Reasonable time’ means:
  • Between 8am and 6pm on a weekday;
  • between 9am and 5pm on a Saturday; or
  • at any other time agreed between the lessor and each tenant.(351)

The tenant does not need to agree to the lessor entering the premises at any other time.

The lessor must make a reasonable attempt to negotiate a day and time for entry that does not unduly inconvenience the tenant, if the time and/or day in the inspection notice is unduly inconvenient to the tenant.(352)

3.9.5 What is 'reasonable notice' and 'reasonable number of occasions'?

‘Reasonable notice’ and ‘reasonable number of occasions’ for showing prospective tenants and purchasers through the premises are not defined in the Residential Tenancies Act 1987 (WA).

3.9.5.1 Reasonable Notice

‘Reasonable notice’ is likely to take into account the fact that the tenant may need to make arrangements to be present at the inspection. The same day, or the night before, may not be reasonable notice.(353) If the lessor wishes to take prospective tenants or purchasers through the premises frequently, the tenant may be able to negotiate a rent reduction or compensation for the inconvenience.

In Edmunds v Thomas , the Consumer Trader & Tenancy Tribunal (now NSW Civil and Administrative Tribunal) considers ‘reasonable notice’ to be at least 48 hours by telephone or in writing.(354)

However, Bradbrook, MacCallum and Moore suggest that ‘as a general rule a period of 24 hours’ notice is required to satisfy the requirement that reasonable notice is given.’(355) They state that the purpose of the provision is to maintain the tenant’s privacy, while also ensuring the lessor does not need to give several days’ notice to show the premises to prospective tenants.

3.9.5.2 Reasonable Number of Occasions

While ‘reasonable number of occasions’ is not defined in the Residential Tenancies Act 1987 (WA), the Residential Tenancies Act 2010 (NSW) states that the ‘tenant is not required to agree to the residential premises being available for inspection by prospective purchasers more than twice a week.’(356) This could be used as a negotiation point in WA to argue that more than two inspections per week is unreasonable and may be a breach of s 46(2)(g) of the Residential Tenancies Act 1987 (WA) (and potential breach of quiet enjoyment under s 44(2)). In Fisher v Appleby & Mc Keown , the Consumer Trader & Tenancy Tribunal found no breach by the lessor by allowing access to the premises to show prospective purchasers twice a week for four weeks for one hour on each occasion.(357) However, interstate legislation and case law are not binding on a WA Court and it is ultimately up to a Magistrate to decide.

Bradbrook, MacCallum and Moore suggest that the phrase ‘reasonable number of occasions’ means that the lessor:
can enter with prospective tenants as many times as are necessary to find a new and suitable tenant for the premises. However, the landlord must ensure that he shows the premises only to persons who really are prospective tenants of the premises in question. For example, he should only show the premises to persons who wish to rent premises of that approximate size and at the approximate rent.(358)

‘Reasonable number of occasions’ will likely depend on the circumstances of the case.(359) In Stojilijkovic v Prentice , the Consumer Trader & Tenancy Tribunal took into account both the lessor’s financial hardship and the length of time the premises had been on the market. The Tribunal stated that reasonableness must take into account both the rights of the lessor and the tenant, as well as the particular circumstances of the specific tenant and lessor (if applicable).(360) In this case, the Tribunal ordered that the tenant provide access for one hour on Saturday afternoon between 4:00pm and 5:00 pm after receiving 48 hours’ notice from the lessor. If either party requested a change or addition to this time, that request had to be made in writing with 48 hours’ notice. No access was to be granted between 22 December 2004 and 7 January 2005.(361)

In Edmunds v Thomas (Tenancy)(362) the Tribunal held that acess every Saturday morning between 9.00am and 11.00am would constitute a reasonable number of occasions.

The lessor may be in breach of the tenant’s right to quiet enjoyment under s 44(2) if the Court finds that the number of inspections is unreasonable.

In any case, a tenant is likely to suffer some inconvenience as a result of viewings by prospective tenants and purchasers, and this in itself does not necessarily amount to a breach of quiet enjoyment – ‘[a]ll that is required is the access and notice is reasonable.’

3.9.6 'Open for inspections' to the general public

It is likely that the legislation only permits the lessor to show the premises to specified prospective purchasers, rather than holding home opens for the public at large. In Ferris v Rizzica, the Victorian Civil and Administrative Tribunal found that ‘open for inspections’ to the general public are not permitted under the Victorian legislation. The grounds of entry under the equivalent sections in the Victorian legislation to s 46(2)(g) in the Residential Tenancies Act 1987 (WA) are intended to allow lessors/agents ‘to show the premises to specified persons who are in the market for a premises in the price range and meeting the description of the rented premises’ rather than allowing a wide range of people to enter the premises for a number of purposes beyond that of inspecting for potential purchase.(363) Note that this is a non-binding interstate decision and it is unclear whether a Magistrate in WA would reach the same conclusion.

3.9.7 The tenant has a right to be present when the lessor enters the premises

A tenant has the right to be present when the lessor (or property manager/third party) enters the premises to show to prospective tenants or purchasers.(364) However, there is no rule stating that the tenant must be present. If the tenant has been given the correct notice and has failed to negotiate an alternative time, the lessor can use their spare key to enter the premises.

If the tenant cannot be present at the time stated on the notice, and cannot negotiate an alternative time, the tenant can ask a friend or a relative to be there instead.

3.9.8 The tenant does not have to pay for inspections

Under s 27(1) of the Residential Tenancies Act 1987 (WA), a lessor cannot ask a tenant to pay additional money other than rent and security bond . This means that the lessor cannot pass on any administration, re-inspection fees or other charges to the tenant. There is a potential penalty of $5 000 for doing so.(365)

There are exceptions to this rule as set out in s 27(2) of the Residential Tenancies Act 1987 (WA). These are as follows:

(2) Subsection (1) does not apply to —

(a) any amount, not exceeding a prescribed amount, required or received as consideration for an option to enter into a residential tenancy agreement if —

(i) upon the option being exercised, the amount is refunded in cash or applied towards the rent payable under the agreement; or

(ii) upon the option being refused, and within 7 days of the decision to refuse the option, the amount is refunded in cash, by electronic means or in any other prescribed way;

and

(b) any amount that the lessor is authorised by any other provision of this Act to require or receive; and

[ (c) deleted]

(d) any other payment of a prescribed class.

3.9.9 If belongings are damaged by the lessor entering the premises

It is a term of every residential tenancy agreement that the lessor must compensate the tenant for any damage caused to the tenant’s goods by the lessor or any other person accompanying the lessor.(366) This means, for example, that if the tenant’s goods are damaged during a home open by prospective purchasers, the tenant can pursue the lessor for compensation for breach of that term. It is unclear whether ‘damage’ is wide enough to cover loss of belongings which are stolen.(367) A tenant whose property is stolen by a third party during a home open may, depending on the circumstances, be able to sue the lessor and/or real estate agent in negligence.

In Lovett v Shaw (Tenancy)(368) the tenant’s photograph frame containing a limited edition photograph was irreparably damaged by the agent during a routine inspection. The Tribunal found this to be a breach of the tenant’s reasonable peace, comfort or privacy of the premises, and ordered the cost of a replacement photograph to be borne by the lessor.

3.9.10 Practical steps if the lessor breaches the right of entry provisions

If the lessor enters the premises without giving the required notice, or enters so often that the tenant’s quiet enjoyment of the premises is being affected, there are a number of options available:
  1. Write to the lessor and inform them of their obligation to provide notice to enter the premises under the Residential Tenancies Act 1987 (WA). Request that in future, the correct notice is given. If the complaint is about a real estate agent, tell the lessor about the agent’s behavior.
  2. If the property is managed by an agent, request a meeting with the Principal of the real estate agency and discuss the problem with them. Be clear about how much notice is required before each entry under the Residential Tenancies Act 1987 (WA).
  3. Make a complaint to Consumer Protection about the lessor or property manager’s behavior, they may assist with conciliation, or investigate serious breaches to issue a warning or to prosecute. A lessor who causes or permits interference with the reasonable peace, comfort or privacy of the tenant in the tenant's use of the premises is liable to a fine of up to $10,000.(369)
  4. If the case involves a real estate agent, make a complaint to REIWA who may assist to rectify the problem.
  5. If negotiations fail, contact a local tenant advocate for assistance.
  6. Apply to the Magistrates Court for orders:
    • to stop the lessor entering the premises;
    • to specify or limit the days and times on which, and purposes for which, the lessor or other authorized person can enter;
    • to end the tenancy (must be a serious breach); and/or
    • for compensation for loss of or damage to the tenant’s belongings.
  7. A tenant has the option to report trespass to the police. Trespass will occur where the lessor enters or remains on the premises, without the consent of the tenant, otherwise than in accordance with the Residential Tenancies Act 1987 (WA) and the terms of the residential tenancy agreement. Trespass is punishable by imprisonment for up to 12 months and a fine of up to $12,000.(370)

3.9.11 Tenant refuses access

The tenant could also be in breach by refusing to allow access to the premises, despite the lessor complying with the requirements of s 46(2). The lessor has the option of applying to the court for an order that the tenant grants access to the premises.

If the lessor suffers loss or injury as a result of the tenant refusing access, the lessor may be able to apply to court for compensation. An example of this could be where the lessor incurs costs by hiring a tradesperson to conduct repairs on the premises, and the tenant subsequently refuses access. The lessor could pass the cost of the tradesperson’s callout fee on to the tenant.

Alternatively (or additionally), the lessor can give a breach notice if the tenant wrongfully refuses access to the premises. If the tenant does not remedy the breach in the notice period of not less than 14 days, the lessor can give the tenant a termination notice (Form 1C) giving the tenant not less than seven days to give vacant possession.(371) If the tenant fails to deliver up possession on the day specified, the lessor may within 30 days of that day, apply to court for an order terminating the agreement and an order for possession of the premises.(372) For further discussion of termination for breach other than rent arrears, see 4.3.2.2 (Termination for Breach Other Than Rent Arrears).

How many "re-inspections" are permitted?

Introduction

What are the lessor's rights of entry to carry out "re-inspections" of premises after a tenant has "failed" a property inspection? Usually this will only occur when the premises are managed by a real estate agent, and the agent considers that the premises are not in a reasonable state of cleanliness.

DoC 's view is that agents may carry out a "reasonable number" of "re-inspections" under s 46(2)(e) of the Act:

"Negotiating a time and day for inspections
Under the amended RT Act, no more than four routine inspections are allowed in any 12-month period. The limit of four inspections in any 12-month period commences on 1 July 2013. Any inspection conducted on or before 30 June 2013 is not included.Furthermore, routine inspections are no longer allowed when collecting rent.Re-inspections to check whether cleaning, gardening, or damage caused by tenant has been carried out [sic. – presumably this should read 'repairs to damage caused by etc.] are not included in the four routine inspections. However, the lessor must give at least 72-hours’ written notice prior to entering the property."(373)

Is this arguable, or are "re-inspections" limited to four per year?

Relevant Sections of the Act

Section 46(2) of the Residential Tenancies Act 1987 (WA) provides that it is a term of every residential agreement that the lessor may only enter the premises in certain circumstances. These include:
  • 46(2)(b) - "for conducting routine inspections of the premises or any other purpose"; and
  • 46(2)(e) - "for the purpose of carrying out or inspecting necessary repairs to or maintenance of the premises"

Section 46(3) makes it a term of every residential tenancy agreement that "the lessor may enter the premises under subsection (2)(b) for the purpose of inspecting the premises not more than 4 times in any 12 month period".

History of the Relevant Sections of the Act

At common law, the tenant had a right to quiet enjoyment of the premises and the lessor was not permitted to enter to inspect them unless the lease had a term permitting that. In general, historically the tenant was responsible for the maintenance and repair of leased premises. Where there was an express or implied covenant that the lessor would keep the premises in good repair, however, he or she had an implied licence to enter to carry out and inspect necessary repairs.(374) This licence to enter was a recognised qualification on the implied covenant for quiet enjoyment. S 46(2)(e) makes the common law implied licence an express term of every residential tenancy agreement; this makes sense where it is also an express term of every residential tenancy agreement that the lessor is responsible for repairs.(375) Under s 46(2)(b) the lessor has the right to enter for "routine inspections [..] or any other purpose". However this may only be done four times a year (s 46(3)).(376) Under the RT Act as originally passed, there was no such limitation (as was the case with the South Australian Residential Tenancies Act 1978 from which the section is derived).(377) Not only that, but the Act permitted the owner to enter "for the purposes of inspecting the premises, on the occasion of a rent collection […] but not more frequently than once every four weeks."(378) This right to inspect at the time of rent collection up to 13 times a year was removed in 2013.(379) The issue of "re-inspections" therefore did not arise in the past– the lessor could carry out as many as they wanted under s 46(2)(b), and where rent was collected at the premises, inspections could be carried out every four weeks. The fact that there is still a perfectly valid power to carry out "re-inspections" under s 46(2)(b) is another factor which supports the restrictive construction of s 46(2)(e).

Bradbrook has said of the virtually identical provision in the RT Act (SA) 1978, "The landlord can only enter to carry out necessary repairs and maintenance. It is suggested that necessary repairs and maintenance are confined to those which the landlord is obliged to perform under the Act."MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 459 [1622].">(380) This narrow construction is consistent with both the common law implied licence being an exception to the quiet enjoyment covenant. It is also consistent with the common law right of the lessor to enter in order to carry out his or her repair obligations under the lease. It therefore follows that the lessor has no right to inspect cleaning or gardening or other issues arising at inspection, unless the repairs or maintenance are necessary, and fall within the lessor’s obligations to maintain the premises in good repair. There is no right to reinspect to see whether the the tenant’s obligations have been completed.

Extrinsic Materials

The Explanatory Memorandum

The explanatory memorandum states that s 46(3) "inserts a limit on the number of routine inspections that may be carried out on residential premises to four in a 12 month period".

Hansard

There is nothing in Hansard to suggest that it was the intention of the legislature that "re-inspections" were to fall outside of the 4 per year limit set by s 46(3). There was no mention of "re-inspections":

The second thing raised by Hon Adele Farina was the frequency of inspections and whether four inspections a year gives landlords enough opportunity to create the required confidence in their new tenant, particularly if they are a bit unsure about them. I guess there is a need to balance the interests of a landlord who is protecting their investment in the property against the natural entitlement and right of a tenant to the quiet enjoyment of the property that they inhabit. An option provided for in this bill is for landlords to perhaps take out a shorter fixed contract time of six months, for example, to give them a concentrated time to exercise their inspections and be satisfied that the tenant is honouring their obligations. A figure had to be arrived at, and a maximum of four inspections in 12 months, having weighed all the other submissions that were made, was seen as a reasonable balance between the two conflicting interests.(381)

Conclusion

The lessor's right to enter the premises is a qualification on the tenant's right to quiet enjoyment. Unrestricted entry rights (even if they are subject to notice requirements) make the quiet enjoyment term virtually meaningless. It seems to have been the intent of the legislature to "balance" these competing rights.

The frequency with which lessors are permitted to enter to carry out "property inspections" has varied considerably across Australian jurisdictions over the years. For example, in Victoria, the 1981 Act only permitted entry for inspections every 6 months (i.e. twice a year). By contrast, the then South Australian Act permitted an unlimited number of inspections. The WA Act followed the original South Australian Act, but was relatively recently amended to limit the number of routine inspections to four every twelve months.

It is difficult to see how "carrying out or inspecting necessary repairs to or maintenance of the premises" could include checking to see whether cleaning or gardening had been carried out by a tenant. That is because, given the history of s 46(2)(e), it seems clear that it was created as a statutory re-statement of the implied term which gave the lessor the right to enter to carry out his or her (the lessor's) repair obligations. In most residential tenancy agreements, the tenant is responsible for garden upkeep. In all tenancy agreements, the tenant is responsible for keeping the premises in a reasonable state of cleanliness.(382) In most circumstances, gardening and cleaning could not be considered "maintenance" or "repairs", but even if they were, they would be the tenant's responsibility, not the lessor's.

Does a lessor have the right under s 46(2)(e) to enter to inspect and carry out necessary maintenance or repairs which result from the tenant's actions? Under the Act, the lessor has a responsibility for carrying out repairs regardless of the cause.(383) Although the tenant may be liable to pay the lessor compensation for, say, a window broken negligently by the tenant, the lessor is nevertheless responsible for repairing it. In that case, the lessor would be entering to carry out the lessor's obligation to repair in accordance with s 42(2)(b), and there is no inconsistency with the apparent purpose of the section.

It is submitted, in light of the above, that the lessor does not have any right, under s 46(2)(e) to "re-inspect" premises after a "failed" inspection to check whether a tenant has subsequently carried out his or her obligations under the lease. The lessor may enter to "inspect the premises", no more than 4 times in any twelve month period, in accordance with s 46(3). That includes "re-inspections". The purpose of s 46(2)(e) is to permit the lessor to gain entry in order to carry out his or her necessary repair or maintenance obligations under s 42(2)(b) and ©. It should be interpreted narrowly.

Tenants may wish to consent to a reinspection, which would be permitted under s46(2)(h) to promote a good working relationship, to avoid escalation of a dispute, or to reach agreement about settlement of an issue. This is quite reasonable.

3.10 Alterations, fixtures and renovations

There are new family violence provisions in the Residential Tenancies Act – these new laws are not yet included in this chapter. The family violence provisions in the Residential Tenancies Act came into effect on 15 April 2019, and they make changes with respect to terminating the lease, removing a perpetrator from a lease, changing the locks and liability under the lease and return of the bond. Check http://www.tenancywa.org.au/family-violence for information about these new laws.

3.10.1 Tenant's right to affix fixtures etc.

3.10.1.1 Private Rentals

A residential tenancy agreement may provide that the tenant must not affix any fixture or make any renovation, alteration or addition to the premises.(384)

Alternatively, the agreement may provide that the tenant may affix any fixture or make any renovation, alteration or addition, but only with the lessor’s consent.(385) If this is the case, the lessor must not unreasonably withhold consent.(386) Consent need not be given in writing. Non-binding interstate decisions suggest that once the lessor provides consent, they cannot later withdraw this.(387) Another justification for this is that the lessor cannot unilaterally alter the terms of the residential tenancy agreement.

If the lessor has given consent for the tenant to affix fixtures to the premises, the tenant may remove any fixture during the term of the agreement, unless the removal would cause irreparable damage to the premises.(388)

If the tenant causes any damage to the premises by removing any fixture, the tenant must notify the lessor. The lessor can ask the tenant to repair the damage, or alternatively to compensate the lessor for any reasonable expenses incurred by the lessor repairing the damage.(389)

3.10.1.2 Public Housing

If the lessor is the Housing Authority the requirements on affixing and removing fixtures differ slightly from those for private rentals. The differences are:
  1. If the residential tenancy agreement provides that the tenant may affix any fixture or make any renovation, alteration or addition to the premises, but only with the lessor's consent, then the lessor's consent must be in writing;(390) and
  2. The prescribed form 1AB for a written residential tenancy agreement with the Housing Authority contains a term which permits the tenant to make minor improvements to the premises so long as the tenant makes good to the absolute satisfaction of the lessor, any damage to the premises caused by the minor improvements or their removal.(391)

The Housing Authority must use Form 1AB, unless the tenancy is subject to a housing management plan, or entered into by the Housing Authority on the basis that the premises will be sub-let.(392)

Limitation period if tenant damages the premises while removing a fixture: the lessor has six years to commence action for breach of agreement, running from when the tenant damages the premises by removing a fixture.(393)

3.10.2 Lessor's right to affix fixtures etc.

‘It is a term of every residential tenancy agreement that the lessor may affix any fixture or make any renovation, alteration or addition to the premises, but only with the tenant’s consent’. The tenant must not unreasonably withhold consent.(394)

3.10.3 Meaning og fixtures

The terms ‘fixtures’ is not defined in the Residential Tenancies Act 1987 (WA).

The Butterworths Concise Australian Legal Dictionary defines ‘fixture’ as follows:
An item of tangible personal property annexed to land in such a way as to become a part of the land. Ownership of a fixture follows ownership of the land and an item which is a fixture thus ceases to be personal property of the person who attached it in the first place. Whether an item is a fixture depends on the degree and purpose of annexation as well as the rebuttable presumption that what is fixed to land is a fixture and that which is not remains a chattel: Holland v Hodgson (1872) LR 7 CP 328; [1861-73] All ER Rep 237.(395)

Conti J in National Australia Bank Ltd v Blacker & Anor,(396) discusses the law of ‘fixtures’ as applied in Australia. His Honour states that ‘[w]hether an item has become a fixture depends essentially upon the objective intention with which the item was put in place…relevant to determining the intention with which an item has been fixed to the land are first, the degree of annexation, and secondly, the object of annexation.’(397) However, Conti J goes on to state that these are not the only considerations, and ‘there is no single test which is sufficient to determine whether an item of property is a chattel or a fixture…the Court ought to have regard to all the circumstances of the case’.(398) In some circumstances, a chattel that is securely fixed to the realty may remain a chattel, and in other cases a chattel resting on its own weight may become a fixture.(399)

In Harley v District Council East Torrens, the Hon Judge Bowering of the Environment Resources and Development Court of South Australia found that a freestanding spa ‘is not a fixture (nor a structure) and will not become one unless it is securely affixed to the land to a sufficient degree to render it, in effect, part of the dwelling in which it is proposed to be located.’(400)

Anforth, Christensen and Bentwood distinguish fixtures from fittings – fixtures being ‘chattels that are brought onto the premises and become part of the realty [as distinct] from “fittings” which retain their character as chattels and do not become part of the land.’(401)

Anforth, Christensen and Bentwood set out examples of fixtures and fittings, as follows:(402)

Chattels that are usually fixtures include:
    • carpets (Palumberi v Palumberi (1986) NSW ConvR 55-287);
    • gas stove (Palumberi v Palumberi (1986) NSW ConvR 55-287);
    • built-in air conditioner (Fagotter v Dowell Australia P/L (1994) ANZ ConvR 249);

The following chattels are usually fittings:
    • venetian blinds (Palumberi v Palumberi (1986) NSW ConvR 55-287);
    • portable electric stove (Abercrombie v Wollington (1956) 73 WN (NSW) 336);
    • free-standing shed (Webb v Frank Bevis [1940] 1 All ER 247);
    • portable air conditioner (Belgrave Nominees Pty Ltd v Barlin-Scott Air-conditioning (Australia) Pty Ltd [1984] VR 947, 955 (Kaye J)).

The examples provided above should only be used as a guide as a chattel may be classified as a fitting in one situation, but as a fixture in another situation.

3.10.4 Fixing furniture to the walls

Heavy furniture that is not fixed to walls may pose a hazard to young children. Consumer Protection have received reports that one child under nine dies each year from domestic furniture toppling on them.(403)

The Consumer Protection Amendment Bill 2018 is currently before parliament (as at December 2018). This Bill proposes amendments to the Residential Tenancies Act, called “Reef’s Law”, which provide tenants with the right to affix furniture to the wall, with the lessor’s consent, and constrains the lessor’s right to refuse to a limited number of circumstances (for example where asbestos would be disturbed or where the property is heritage listed).

The Bill proposes to amend the Residential Tenancies Act by adding the following into section 47:

(2A) It is a term of every residential tenancy agreement that -

(a) a tenant may affix either or both of the following items to a wall of premises the subject of the agreement for the purpose of ensuring the safety of a child, but only with the lessor’s consent —

(i) furniture;

(ii) a thing to affix the furniture to the wall; and

(b) the lessor may only refuse consent —

(i) if affixing the item to the wall would disturb material containing asbestos; or

(ii) if the premises are entered in the Register of Heritage Places compiled under the Heritage of Western Australia Act 1990 section 46; or

(iii) if the premises is a lot in a scheme under the Strata Titles Act 1985, the by-laws for the scheme prohibit affixing the item to the wall of the premises; or

(iv) for a prescribed reason; and

© the tenant must remove the item from the wall when the tenant vacates the premises; and
(d) the cost of affixing the item to the wall, and removing it from the wall, must be borne by the tenant; and
(e) if the tenant causes damage to the premises by affixing or removing the item —
(i) the tenant must notify the lessor that damage has been caused to the premises; and

(ii) the lessor may require the tenant to repair the damage or compensate the lessor for any reasonable expenses incurred by the lessor in repairing the damage.

The above is extracted at the time of writing, and may be amended by parliament and passed in a different form.

The current law - prior to the passage and commencement of the above amendments

Lessors may prevent tenants from drilling holes in the walls by including a clause in the residential tenancy agreement that expressly forbids the tenant from affixing fixtures or making any renovation, alteration or addition to the premises under s 47(1)(a) of the Residential Tenancies Act 1987 (WA).

Consumer Protection are taking the position that lessors should be encouraged to give tenants permission to anchor furniture to the walls in an effort to protect children. As Consumer Protection says, ‘[a] hole in a wall can be patched or repaired at the end of a rental agreement, but a child’s life cannot be replaced.’(404) It is recommended that this consent is provided in writing.

Consumer Protection further states that if the lessor provides unstable furniture with the premises, the lessor should ensure it is securely anchored before the premises are let out, regardless of whether there will be a child living in the premises.

If a lessor is refusing a tenant permission to anchor furniture to the wall, the tenant should call Consumer Protection immediately as they may be able to intervene.

3.11 Land tax, council rates and water supply or sewerage charges

3.11.1 Land Tax

It is a term of every residential tenancy agreement that the lessor must bear all rates, taxes or charges imposed in respect of the premises under the Land Tax Act 2002 (WA).(405)

The rate of land tax is calculated based on the taxable value of the land. As at the 2017-18 assessment year, all owners of land (excluding exempt land) with an aggregated taxable value exceeding $300 000 are required to pay land tax.(406)

Further information on land tax can be found on the Department of Finance website.(407)

3.11.2 Council Rates

It is a term of every residential tenancy agreement that the lessor must bear all rates, taxes or charges imposed in respect of the premises under the Local Government Act 1995 (WA).(408)

This provision applies to all residential tenancy agreements from 1 July 2013. For agreements prior to 1 July 2013 that have not been renewed, extended or assigned, provisions regarding council rates will continue to apply.

3.11.3 Water supply or sewerage charges

The tenant is only required to pay for water consumption,(409) and the lessor pays the service charge (water rates).(410) It is a term of every residential tenancy agreement that the lessor must bear all rates, taxes or charges under ‘any written law under which a rate, tax or charge is imposed for water supply or sewerage services under the Water Agencies (Powers) Act 1984 (WA), other than a charge for water consumed.’(411)

The price of water increases as more water is used during the billing year. The Water Corporation website provides details of the pricing tiers for metro and regional areas, and this should be referred to for further detail.(412)

3.11.4 Restriction on consideration for tenancy agreement and contracting out

A lessor who charges a tenant for any of the above is in breach of the contracting out provisions of the Residential Tenancies Act 1987 (WA) if they have purported to make this a term of the agreement,(413) which attracts a penalty of up to $10 000.

3.11.5 Recovery of amounts paid under mistake of law or fact

The tenant may apply to court for an order that the lessor refund any of the above charges which they ought not to have been charged or deduct the amount from their rent.(414) The tenant has six years to commence proceedings, running from the date that the amount was paid under mistake of law or fact.(415)

3.12 Strata Company Contributions

3.13 Utility Services

Services to premises such as electricity, gas, water and sewerage are called ‘utility services’. This chapter explains what costs the tenant and the lessor are responsible for.

Section 48 of the Residential Tenancies Act provides as follows:

48 Lessor to bear outgoings in respect of premises

(1) It is a term of every residential tenancy agreement that the lessor shall bear all rates, taxes or charges imposed in respect of the premises under any of the following written laws

(a) the Local Government Act 1995;

(b) the Land Tax Act 2002;

© any written law under which a rate, tax or charge is imposed for water supply or sewerage services under the Water Agencies (Powers) Act 1984, other than a charge for water consumed. :

(2) It is a term of every residential tenancy agreement that a contribution levied on a proprietor under the Strata Titles Act 1985 section 36 cannot be passed on to a tenant.

The effect of that section is that the lessor must pay the following charges and cannot make it a term of the tenancy agreement that the tenant must pay them:

(a) Council Rates;

(b) Land Tax;

© Water supply charges except for consumption charges;

(d) Sewerage service charges; and

(e) Strata Title Fees.

The water supply and sewerage service charge are distinct from the charge for water consumed.

3.13.1 Connection and disconnection of utility services

3.13.1.1 Moving in

The lessor should notify the Water Corporation, and arrange a special meter reading to ensure the tenant is not charged for the previous tenant’s water usage. This reading should be recorded in Part C (special conditions) of the residential tenancy agreement, and in the property condition report.

It is important for new tenants to ensure that the lessor arranges for a special meter reading to be done, to ensure the tenant is not charged at a higher pricing tier (of the previous occupant). If no special meter reading is done, the tenant will be billed at the rate of the pricing that the previous occupant was up to in the billing cycle.

It is likely that the lessor is responsible for the cost of a special meter reading. The Water Corporation website states that it is the lessor or agent’s responsibility to organise a special meter reading, and that the tenant only needs to confirm with them that this will happen.(416) This suggests that the lessor is responsible for the cost of the reading. Another argument pointing towards a special meter reading being the responsibility of the lessor, is that s 49A(2) of the Residential Tenancies Act provides that the tenant must pay a charge in relation to a public utility service only if it is calculated by reference to consumption at the residential premises by the tenant. A special meter reading is a ‘charge in relation to a public utility service’ which is not ‘calculated by reference to consumption’ therefore the tenant is not liable to pay it.

If a residential tenancy agreement states that the tenant is required to pay for a special meter reading, this clause may be void as it contracts out of the Residential Tenancies Act.(417)

3.13.1.2 Moving out

There are no disconnection fees when moving out of the premises. Where the tenant has accounts with utility providers, it’s up to the tenant to advise utility providers when they are moving out so they can arrange for the final meter reading and disconnection of utilities, including the telephone.

Special meter readings can be requested by lessors, agents or tenants. A reading will not be done at the end of the tenancy unless the Water Corporation is requested to do so. The tenant should confirm in writing with the lessor that a special meter reading will be done at the end of the tenancy.

3.13.2 When does a tenant need to pay a charge for a utility service?

The tenant may enter into agreement with utility companies by him or herself. In such cases the tenant will be liable under the terms of the agreement with the company. For example, if a tenant moves into premises, and enters into an agreement with Synergy to provide electricity, the tenant is liable under their agreement with Synergy to pay the connection, supply and consumption charges.

On the other hand, a tenant may move into premises where the lessor already has an account with Synergy. In that case, the residential tenancy agreement may provide that the tenant agrees to pay the lessor for their electricity usage.

In the case of scheme (mains) water, it is impossible for the tenant to enter into an agreement directly with the provider. That is because under the Water Services Act 2012, the owner of land is entitled to the provision of the water service. There is no entitlement to a tenant (or anyone else other than the owner of the relevant land) to the provision of the water service.(418) Therefore, where the tenant is liable to pay for scheme water, it can only be to the lessor in accordance with a term of the residential tenancy agreement. As set out above, the tenant can only be liable to pay for consumption in respect of water usage, not for service or sewerage charges. The tenant cannot be liable to the Water Corporation for consumption. For the sake of convenience, the lessor may request that the Water Corporation issue water use accounts direct to the tenant. That is usually advisable, because it prevents any argument over whether the lessor has incorrectly billed the tenant for usage, and it practically guarantees that the lessor will have complied with s 49A(2)(c).(419) However, even where the tenant has a separate account for water usage, the lessor is still liable to the Water Corporation if the tenant does not pay them. Of course, that does not mean that the tenant is not liable to the lessor in accordance with any term in the residential tenancy agreement that the tenant will pay for water usage. But if the tenant does not pay the water account, and neither does the lessor, the Water Corporation will pursue the lessor for payment, not the tenant. Not only that, but the Water Corporation will not cut off the water for unpaid bills where the water is supplied to tenanted premises.(420)

The Residential Tenancies Act provides:

49A. Lessor’s and tenant’s responsibilities in respect of public utility services

(1) In this section —

GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth);

public utility services has the meaning given in the Land Administration Act 1997 section 3(1).

(2) It is a term of every residential tenancy agreement that the tenant must pay a charge in relation to a public utility service provided to the premises only if —

(a) the charge is calculated by reference to consumption at the residential premises by the tenant; and

(b) the tenant is given notice in writing of the charge in relation to the public utility service, specifying —

(i) if consumption at the premises is metered — the relevant meter reading, or readings, and the charge per metered unit; or

(ii) if consumption at the premises is not metered and the lessor and tenant have agreed in writing to an alternative method of calculating the charge to be paid by the tenant — the charge calculated in accordance with the agreed method;

and

© the tenant is provided with full details of the account for the charge including —

(i) any meter readings and the charge per metered unit; or

(ii) the agreed method of calculating referred to in paragraph (b)(ii),

and the amount of GST payable in respect of the provision of the public utility service to the residential premises.

Under the Land Administration Act 1997 (WA) "public utility services" means ‘drainage, electricity, gas, sewerage, telephone or water services or such other services as are prescribed for the purposes of this definition’.(421) Under the Land Administration Regulations 1998, "services provided by a telecommunications network" are prescribed. As a result, internet services are also covered by s 49A.

S 49A does not, by itself, make tenants liable to pay public utility charges under the residential tenancy agreement. Liability for paying such charges depends on whether or not it is a term of the residential tenancy agreement that the tenant will pay for them. However, where there is such a term, the tenant is not obliged to pay utility charges unless s49A is complied with.

3.13.3 Disputes over bills

If a dispute over a bill arises, the tenant should contact the provider or lessor (as applicable) as soon as possible to discuss.

A large utility bill may be a sign that there is a fault in the premises (e.g. leaks can lead to high water bills – see discussion below under 3.13.6.1; faults in hot water systems can lead to high gas or power bills). If the tenant notified the lessor about the fault and nothing was done, the lessor may be in breach of their obligation to keep the premises in a reasonable state of repair.

If there is an ongoing dispute over payment of an account and the supplier threatens disconnection, a tenant can consider writing to the supplier to explain the situation and include supporting documentation.

The Energy and Water Ombudsman may be able to help. They deal with complaints about electricity, gas and water services providers. Complaints can be submitted to the Energy and Water Ombudsman by telephone (1800 754 004), email, using the online complaint form, or in person. For further information, see: http://www.ombudsman.wa.gov.au/ewowa/making_complaints/how_to_make_a_complaint.htm (422)

3.13.4 Difficulty paying utility bills

3.13.4.1 Hardship Utility Grant Scheme (HUGS)

The Hardship Utility Grant Scheme (HUGS) assists individuals having difficulty paying their electricity, water or gas bills who have had, or are at risk of having, their supply disconnected or restricted. The amount of the grant varies according to the location of the premises in WA. A tenant may be eligible if they are a residential customer assessed as being in financial stress and having difficulty paying their utility bills.

Individuals should contact their utility provider to discuss their situation and to apply for a grant. If eligible for HUGS, the individual may be able to receive a grant directly from their utility provider, or alternatively, may be referred to a free financial counselling service in the area.

Further information can be found on the HUGS website: http://www.concessions.wa.gov.au/Concessions/Pages/HUGS-(Hardship-Utility-Grant-Scheme).aspx (423)

3.13.4.2 Pensioner and concession discounts

If you have a pensioner concession, state concession, WA senior, or both, you may be eligible for rebates or concessions on your water bill. The concession available varies depending on the location of the premises. Applications can be made by contacting the Water Corporation by telephone (1300 659 951) or on the Water Corporation website.(424)

Housing Authority tenants should contact their Housing Services Officer.

3.13.5 Water

3.13.5.1 Water leaks and excess consumption

If the tenant is uncertain about what they are being charged for or it seems excessive, the tenant should request a copy of the original bill from the lessor and check they are only charging ‘water use calculation’ not the ‘service charge calculation’.

Water leaks can often result in high water bills.

A tenant is required to pay for water consumption, but not consumption which was the result of the lessor’s failure to conduct repairs as soon as practicable (urgent repairs)(425) or when a reasonable period for repairs has passed (general repairs).(426) These periods only start to run after the lessor has become aware of the need for repair. Unless the lessor becomes aware of the need for repair themselves (or via their real estate agent)(427) they would not know about the leak until the tenant told them. The lessor is not responsible for the extra usage unless the tenant can prove that the lessor or agent became aware of the need for repair and failed to carry out the repairs as soon as practicable (urgent repairs) or within a reasonable period (general repairs). Even then, the lessor will only be responsible for the excess usage which occurred after the relevant period for repair has passed. Alternatively, the lessor may be liable if the leak was present at the start of the tenancy, and was observable on reasonable inspection (e.g. it was not hidden in a wall cavity or underground). Seek advice as cases of latent defects can be complicated.

As soon as the tenant suspects a water leak, the tenant should notify the lessor in writing.

If you suspect a water leak, see https://www.watercorporation.com.au/faults (428) or contact the Water Corporation who can explain how to check the property for leaks.

The tenant should work out their usual consumption with reference to other water bills, then write to the lessor offering to pay their normal consumption but not any excess caused by the lessor's failure to repair within a reasonable time or as soon as practicable after becoming aware of the need for repair.

If the lessor disputes the portion of the bill that the tenant is willing to pay, the lessor can commence proceedings for the full amount of the claim. Limitation period: the lessor has 6 years from the date that each bill was due to be paid by the tenant under the residential tenancy agreement to commence proceedings. Where the agreement does not specify a time for payment, it will probably be an implied term that the tenant must pay any bill within a reasonable time of being presented with it.

The lessor can potentially claim money for a leak allowance from the Water Corporation. The lessor will need to apply for a leak allowance using the Leak Allowance Application Form within 14 days of the date of repair.(429) A leak allowance is subject to the Water Corporation's leak allowance policy, which includes the following restrictions:

(a) the allowance is only payable where the leak was undetectable and repaired by a licenced plumber;
(b) only one leak allowance is permitted every five years;
© leak allowances only cover a portion of the total water use; and there is a limit of 1000 kLs per allowance. :

3.13.5.2 Late bills

In some cases, lessors will provide tenants with all the water bills at the end of the tenancy, rather than providing the bills to the tenant periodically as they fall due.

In Kaider (by Taplin Management Pty Ltd) v Howell, the South Australian Residential Tenancy Tribunal found that it "would seem unconscionable" for the lessor to give the tenant all the water bills in one go at the end of the tenancy as it did not give the tenant a chance to regulate their usage.(430)

In Taranellos and McCann v Ward (Tenancy),McCann v Ward [2005] NSWCTTT 176 (9 March 2005).">(431) the NSW Consumer Trader & Tenancy Tribunal ‘only allowed the landlord to recover the last quarter’s excess water charges from the tenants on the basis the landlord had an implied duty to provide these accounts to the tenants and demand payment as the bills were received.’(432)

It is important to note that the decision in Taranellos hinged upon some important parts of superseded NSW legislation that are absent from our Residential Tenancies Act, including that in NSW there was a limitation period of 30 days for parties to apply for compensation for breach of the RT Agreement (whereas, for most breaches, the limit in WA is 6 years).(433) Since this case was decided in 2005, a provision was inserted in the reformed NSW Residential Tenancies Act that is intended to cover the situation where a lessor provides a tenant with a late water bill. Under this provision, the ‘tenant is not required to pay the water usage charges if the landlord fails to request payment from the tenant within 3 months of the issue of the bill for those charges by the water supply authority.’(434)

Note that interstate decisions are persuasive but they are not binding on a WA Court. Ultimately it will be up to the Magistrate to decide whether this case applies to any given situation.

The Consumer Protection Legislation Amendment Bill 2018 is before parliament at the time of writing and includes an amendment to require that lessors provide utility charges to tenants within 30 days of receiving the bill. This legislation is expected to pass in 2019. See further discussion at 3.13.10 below.

3.13.6 Proposed Changes to s 49A under the Consumer Protection Legislation Amendment Bill 2018

The Consumer Protection Legislation Amendment Bill 2018 was introduced into WA Parliament in October 2018. This is an omnibus bill that proposes changes to a number of Western Australian Acts administered by the Department of Mines, Industry Regulation and Safety. Amongst these changes, clause 68 of the Bill proposes to amend s 49A of the Residential Tenancies Act 1987 (WA) ‘to clarify the circumstances in which a tenant will be responsible for the payment of charges for public utility services.’(435)

The amendment proposes to clarify that it is a term of every residential tenancy agreement that if a public utility service is in the name of the lessor or a strata company, the tenant is only required to pay for their own consumption at the premises. A definition of ‘consumption’ is inserted in s 49A to clarify that ‘consumption, in relation to a public utility service, means consumption of the utility that is calculated by metered unit’. As is the case with s 49A as it currently stands, clause 68 of the Bill reiterates that if the premises are separately metered, consumption is measured by the meter reading and the charge per metered unit. If the premises are not separately metered, the charge must be calculated in accordance with a method previously agreed to in writing by the lessor and the tenant. The key proposal for change is a requirement that the lessor gives the tenant written notice of the full details of the account for the charge within 30 days after the lessor receives an invoice for the charge. There is an exception if the tenancy ends within 30 days after the lessor receives an invoice for a utility bill, or the lessor receives the invoice after the tenancy has ended. If this is the case, the lessor must give the notice ‘as soon as practicable after the lessor receives the notice and locates the tenant.’ Under the current s 49A there is no time limit for when the lessor is required to pass on utility bills to the tenant. It is likely that the proposed amendment attempts to deal with the situation where a lessor provides utility bills late (often at the end of the tenancy) resulting in the tenant owing a large lump sum of money, and consequently not being able to regulate their usage accordingly.

3.14 Sub-letting and Assigning

Many RT Agreements prohibit sub-letting or assigning (particularly agreements drawn up by real estate agents).

An RT Agreement may state that the tenant:
  • may assign or sub-let the premises;
  • must not assign or sub-let the premises; or
may assign or sub-let the premises only with the written consent of the lessor.(436)

If the agreement permits the tenant to assign or sub-let, then the tenant may find another person to move in and either sub-let or assign their interest under the lease to that person.

If the agreement requires the written consent of the lessor, then that consent must not be unreasonably withheld, and the lessor can only charge reasonable expenses (e.g. tenancy database checks).(437)

If the agreement is silent on the issue, then it is taken to have a term that the lease may only be assigned or sub-let with the consent of the lessor, and that consent must not be unreasonably withheld.(438)

The disadvantage of assigning or sub-letting, is that the ‘original’ tenant may remain liable for any breach of the lease by the sub-tenant until the end of the term of the agreement, regardless of any subsequent assignment or sub-letting.(439) This means that assigning or sub-letting is only advisable where the ‘original’ tenant has good reason to believe the ‘new’ tenant will not default.

The High Court of Australia in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd states that the question is an objective inquiry.(440) In deciding what constitutes unreasonably withholding consent, the Court refers to the judgement of Walsh J in Colvin v Bowen(441) (referring to decisions on unreasonably withholding consent, which culminated in Houlder Bros. & Co. Ltd. v. Gibbs (1925) Ch 575). This excerpt from Walsh J is set out as follows:

… the grounds upon which a refusal may be based must be concerned either with the character and personality of the proposed assignee, or with matters affecting the use or occupation of the premises which may result from the proposed assignment. The somewhat less narrow view, to which reference is made by Sargant L.J. in Houlder's Case (1925) Ch, at p 587 , requires that the reason for refusal must be something affecting the subject matter of the contract which forms the relationship between the landlord and the tenant, and not something extraneous and dissociated from the subject matter of the contract…the principle contained in those cases would exclude from consideration, as a ground for refusal of consent, the circumstances that the lessor desires to resume possession of the property in order to occupy it.(442)

The High Court in Secured Income Real Estate goes on to state that it would, however, be reasonable for a lessor to refuse consent on the ground that the lessor doubts the tenant can pay rent promptly.(443)

3.15 Illegal use of premises

3.15.1 General

It is a term of every residential tenancy agreement that the tenant must not use the premises, or cause or permit the premises to be used for any illegal purpose under s 39(b) of the Residential Tenancies Act 1987 (WA). Section 75A also provides that a social housing tenancy may be terminated where a tenant has used the premises, or caused or permitted the premises to be used for any illegal purpose. Section 75A is discussed in Chapter 6 Social Housing, and the paragraphs below are considering sections 39 (tenant’s conduct) and 71 (termination – for breach) only.

A lessor(444) may give a notice of termination of the residential tenancy agreement to the tenant on the ground that the tenant has breached the agreement and the breach has not been remedied.(445) Before issuing a notice of termination, the lessor must send the tenant a breach notice, giving the tenant not less than 14 days to remedy the breach.(446) In some circumstances cessation of the illegal activity will be sufficient to remedy the breach, and in other circumstances a Court may consider the illegal purpose so serious that despite cessation the breach still justifies termination.

If the lessor applies to Court for termination of the residential tenancy agreement, the Court must be satisfied that the breach is such as to justify termination in all of the circumstances.(447) This means the Court usually considers how serious the illegal use is, whether the use is one-off or recurring, and whether it is affecting neighbours. The Court may refuse to order termination if ‘the tenant has remedied the breach, but in every case the court shall take into account any previous breaches of the agreement by the tenant’.(448)

For further discussion of termination for breach other than rent arrears, see 4.3.2.2 (For Breach by the Tenant (Fixed or Periodic) – Other Than Rent Arrears).

Limitation period for illegal use of the premises: the lessor has six years to commence proceedings, running from each time the premises are used for an illegal purpose.(449)

3.15.2 Pending Criminal Proceedings

A tenant who is facing termination for illegal use of the premises, may also be the subject of criminal proceedings. Civil proceedings can still go ahead, even if the outcome of criminal proceedings is yet to be determined.

The primary case is McMahon v Gould (450), where Wooten J identified that ‘neither an accused…nor the Crown…are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding’, however, each case is to be judged on its own merits, and ‘[t]he Court should consider whether there is a real, and not merely notional, danger of injustice in the criminal proceedings’. Factors which are mentioned by Wooten J include the proximity of the criminal hearing, the burden on the defendant for preparing for both sets of proceedings concurrently, and whether the defendant has already disclosed their defence to the criminal allegations. Wooten J also mentions that ‘[i]n an appropriate case the proceedings may be allowed to a certain stage, eg setting down for trial, and then stayed’.

In Commissioner of the Australian Federal Police v Zhao the High Court of Australia in regard to criminal proceedings and civil proceedings stated the following:

Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required. To warrant a stay of the forfeiture proceedings, it must be apparent that the person whose property is in question is at risk of prejudice in the conduct of his or her defence in the criminal trial.(451)

In Franken v NSW Land and Housing Corporation,(452) the tenant was subject to criminal proceedings after being charged with supply of prohibited drugs at the premises under the Drugs Misuse and Trafficking Act 1985 (NSW). The tenant was also subject to civil proceedings, when the NSW Land and Housing Corporation (lessor) applied to the NSW Civil and Administrative Tribunal to terminate the residential tenancy agreement on the ground that the tenant had used the premises for an illegal purpose. The question before the Tribunal was whether the civil proceedings should be adjourned until the criminal proceedings had been concluded. In this case, the Tribunal found that it has no legal obligation to wait until criminal proceedings are finalised, before determining a civil dispute before them: ‘The guiding principle of the Tribunal is to determine the issues in dispute between the parties in a just, quick and cheap manner.’(453)

Interstate decisions highlight the differing burden of proof in civil and criminal proceedings and that acquittal of criminal charges is not definitive in relation to the civil proceedings. An adjournment of the civil proceedings may be appropriate at least until the accused has received legal advice on the criminal proceedings and indicated a plea/defence, as there is a risk of the civil proceedings prejudicing the criminal proceedings.

In practice many Western Australian Magistrates have adopted the approach of adjourning tenancy termination proceedings for illegal use of premises until the resolution of the criminal proceedings, so the any factual disputes about the criminal conduct can be determined in the criminal proceedings. Indeed some Magistrates have expressed the view that if the criminal proceedings are withdrawn by Police, then that could be persuasive in the tenancy proceedings for termination for illegal use of premises. However it would remain open to a lessor to seek to prove the illegal conduct to the civil standard in the tenancy proceedings, even if the criminal charges did not proceed or did not result in a conviction.

3.15.3 Use of part of the premises is sufficient

The term ‘premises’ includes ‘(a) any part of premises; and (b) land and appurtenances appurtenant to premises’.(454)

Therefore, it is likely to be sufficient if only part of the premises are used for an illegal purpose, rather than the whole premises.

Anforth, Christensen and Bentwood discuss NSW case law considering the corresponding section under the Residential Tenancies Act 2010 (NSW), whereby use of a single room in one case, and the front yard in another case, were sufficient to constitute ‘use’ of the premises for an illegal purpose.(455)

In The Director of Public Prosecutions for Western Australia v Sokmas, Vaughan J of the Supreme Court of Western Australia held that the whole of the premises were used for the purpose of crime within the meaning of the Criminal Property Confiscation Act 2000 (WA), even though the subject of the offence, namely the cultivation of cannabis with intent to sell or supply contrary to the Misuse of Drugs Act 1981 (WA), was restricted to the cellar located at Unit 3 (and no cannabis plants or equipment were found at either Unit 1 or Unit 2).(456)

In this case, the premises were confiscated under the Criminal Property Confiscation Act 2000 (WA) as they were used in or in connection with the commission of a confiscation offence. Consequently, the premises were forfeited to the State.

Vaughan J also discussed the meaning of ‘use’ of property within the meaning of the Criminal Property Confiscation Act 2000 (WA), and this may be relevant for interpreting the meaning of illegal ‘use’ of the premises in residential tenancies. His Honour states:

‘Use’ of property requires a deliberate act or omission, although deliberate access over or presence on land in order to commit a confiscation offence may not be sufficient by itself. The offender must exercise the control he or she has over the land and the involvement of the land must be more than merely incidental to the unlawful activity. There must be a sufficiently proximate link between the act or omission on the property and the commission or facilitation of the commission of the confiscation offence – it is not enough if the relationship is tenuous and remote.(457)

Vaughan J goes on to cite an example of ‘use’ from Director of Public Prosecutions (WA) v White, being when ‘a person in factual possession or control of land organises, facilitates or permits the sale (or supply, storage or preparation) of prohibited drugs on his or her land.’(458)

3.15.4 Use for the illegal purpose versus scene of the illegal purpose

It is unclear whether the premises must be used for an illegal purpose in order to be a breach of the Residential Tenancies Act 1987 (WA), or whether it is sufficient that the premises are merely the scene of an illegal purpose. The Victorian Civil and Administrative Tribunal has held that the corresponding section of the Residential Tenancies Act 1997 (Vic) only applies if the tenant deliberately uses the premises for an illegal purpose.(459) The same principle has been held to apply by the NSW Civil and Administrative Tribunal in NSW Land and Housing Corporation v Nihangun Ozen.(460) However, the NSW Tribunal has since gone further to suggest that, in some cases, mere use of the premises as the scene of an illegal purpose could be enough to constitute a breach of the provision.

The term ‘use’ is defined in the Macquarie Dictionary as ‘to employ for some purpose; put into service; turn to account’.(461) This ordinary meaning has been held (in the NSW decision of McGuiness v NSW Land and Housing Corporation) to align ‘with the familiar concept of use of a property for residential purposes to which use for an unlawful purpose is to be contrasted.’(462) The NSW Civil and Administrative Tribunal (Appeal Panel) further considered the term ‘use’ in s 91 of the Residential Tenancies Act 2010 (NSW) in this case. Note that s 91 only applies if the tenant has ‘intentionally or recklessly caused or permitted’ illegal use of the premises, whereas s 51 only requires mere use of the premises (without an element of intention or recklessness). The Appeal Panel in McGuiness stated the following:

What will satisfy the requirement of use for an unlawful purpose will depend on the circumstances of each case.

Matters of degree may be involved.

However, there is nothing in the words, context or purpose of the statute that leads to a construction that precludes mere presence or storage at the premises of stolen items, or items reasonably suspected of being the proceeds of crime, or prohibited substances, from amounting to use of the premises for an unlawful purpose.

The language used [in s 91(1)(b)] is broad and unqualified. The section does not provide, for example, that the use is to be:

(1) for the dominant purpose of the unlawful activity,

(2) an essential or integral component of the unlawful purpose,

(3) a substantial part, or substantially connected with, the unlawful purpose,

(4) directly related to the unlawful purpose.

The use for an unlawful purpose need not displace use of the premises for residential purposes. The uses can co-exist.

On the other hand, the connection between the premises and the unlawful purpose may be so limited that it is not sensible to say that the premises were employed, or availed of, for an unlawful purpose.

In some cases it may be said that the required use of the residential premises does not exist because the premises are merely the scene of the crime. In Schneiders case, Bankes LJ (at page 307.3) gave the example of an assault on someone who happened to be on the premises. He doubted that this would constitute use of the premises for an illegal purpose.

We share such doubt. On the other hand, if the victim of the assault had been lured to the premises so that the assault could be carried out there, a different answer may well be given.

There is no reason why a passing connection with the premises could never suffice. For example, if stolen goods were harboured at the premises for five minutes on their way to another destination this would, in our view, still be use of the premises for an unlawful purpose.McGuiness was also cited in NSW Land and Housing Corporation v Ibrahim [2016] NSWCATCD 91 (4 November 2016) [75]. See also [2016] NSWCATCD 91 (4 November 2016) [50].">(463)

3.15.5 When does illegal use of premises justify termination of the tenancy?

A tenant who uses the rented premises for an illegal purpose is in breach of the residential tenancy agreement, and the lessor may:
  • Issue a breach notice and require cessation or rectification
  • Issue a termination notice for breach of the tenancy agreement, or a without grounds termination notice
  • Apply to Court for orders to terminate the tenancy agreement
Where a lessor uses a without grounds termination processes (60 day notice in a periodic tenancy or a 30 day notice at the end of a fixed term tenancy) the lessor is required to prove compliance with the notice requirements, see further discussion at Ending the Tenancy Chapter 4.3.1.

Where the lessor proceeds with applications for termination for illegal use of the premises under s71, then the lessor will be required to prove that the breach occurred, and that the breach justifies termination in all of the circumstances.

There have been a number of Magistrate Court cases finding that in circumstances where a tenant had used, stored and sold illicit drugs at the rental premises, but has subsequently ceased the illegal use, and engaged in rehabilitation and there are children who would be adversely effected by termination of the tenancy, that the breach does not justify termination in all of the circumstances.

See further discussion on these issues at Ending a Tenancy, and also in the Social Housing Chapter, with respect to s75A applications where there here been relevant Supreme Court cases addressing illegal use of premises and s75A termination applications.

3.16 Nuisance

It is a term of every RT Agreement that the tenant must not cause or permit a nuisance.(464) This means that if the tenant (or someone that the tenant is vicariously responsible for(465)) causes a nuisance, the lessor may commence proceedings for termination and/or compensation.

Definition of ‘nuisance'

At common law a nuisance is "An unlawful interference with a person's use or enjoyment of land, or of some right over it, or in connection with it: Hargrave v Goldman (1963) 110 CLR 40 at 60.

Bradbrook, MacCallum and Moore discuss whether, in the context of residential tenancy law, the term is limited to its technical and legal meaning, or whether it should be used in its ordinary and natural meaning. After citing a number of cases with diverging opinions,(466) and acknowledging that this is a grey area, they come to the conclusion that ‘nuisance’ is likely to be confined to its technical and legal meaning (in both the Victorian and South Australian RT Acts as they existed in 1983 – both have since been superseded).(467) If this is the case, the common law tort of nuisance can provide some guidance on the interpretation of ‘nuisance’ under the RT Act.

In tort law, ‘nuisance’ is defined as ‘[a]n unlawful interference with a person’s use or enjoyment of land, or of some right over it, or in connection with it’.(468) There are 2 types of nuisances - public nuisance and private nuisance.

A public nuisance is ‘[a]n unlawful act the effect of which is to endanger the life, health, property, morals or comfort of the public’.(469) A public nuisance is ‘so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take responsibility for proceedings to stop it on his or her own’.(470) Public nuisance is beyond the scope of this publication, and is not often likely to apply to residential tenancies.

Private nuisance on the other hand, could apply to residential tenancy disputes. It is limited to interference with an individual, namely, ‘[a]n unlawful and unreasonable interference with an occupier’s use and enjoyment of land or some right over, or in connection with it’.(471) This could include the escape of smoke, dust, fire, water, noise, smell, pollution and fumes onto another person’s land.(472)

As well as an action for breach of contract under the RT Agreement, a lessor may have a cause of action under the tort of nuisance. The limitation period for an action in the tort of nuisance is 6 years from the date on which the cause of action accrued, running from each time damage occurs. A tenant should seek specialist legal advice regarding potential claims in tort.

Reasonable and ordinary use of the premises unlikely to be a nuisance

Bradbrook, Mac Callum and Moore state that reasonable and ordinary use of the premises for the purposes for which they are let is not a nuisance.(473) Furthermore, a tenant exercising rights impliedly conferred in the RT Agreement (such as use of a lift) is not a nuisance, even if it is inconveniencing neighbours.(474)

Termination by the lessor for nuisance by the tenant

If a lessor wants to commence proceedings to terminate a tenancy, the lessor will need to follow the appropriate process. This process will depend on whether the premises are a private or a public rental.

Private rental: A lessor of a private rental may give a notice of termination of the RT Agreement to the tenant on the ground that the tenant has breached the agreement and the breach has not been remedied.(475) Before issuing a notice of termination, the lessor must send the tenant a breach notice, giving the tenant not less than 14 days to remedy the breach.(476) This gives the tenant a chance to rectify the nuisance. If the lessor applies to Court for termination of the RT Agreement, the Court must be satisfied that the breach is such as to justify termination in all of the circumstances.(477) For further discussion of termination for breach other than rent arrears, see 4.3.2.2 (For breach by the tenant (fixed or periodic) – Other than rent arrears).

Public rental: If the premises are the subject of a social housing tenancy agreement, the lessor (Housing Authority) has an additional option to apply to the Magistrates Court under s75A of the RT Act for an order to terminate the tenancy if the tenant has caused or permitted a nuisance by use of the social housing premises.(478) A breach notice and termination notice are not required, however, the Housing Authority will usually issue “strikes”. See chapter 6 Social Housing.

Limitation period for causing or permitting a nuisance: the lessor has 6 years to commence proceedings, running from each time the tenant causes or permits a nuisance on the premises.

3.17 Vicarious liability

There are new family violence provisions in the Residential Tenancies Act – these new laws are not yet included in this chapter. The family violence provisions in the Residential Tenancies Act came into effect on 15 April 2019, and they make changes with respect to terminating the lease, removing a perpetrator from a lease, changing the locks and liability under the lease and return of the bond. Check http://www.tenancywa.org.au/family-violence for information about these new laws.

It is a term of every RT Agreement that the tenant is vicariously responsible for any act or omission by any person lawfully on the premises (if that act or omission would have constituted a breach of agreement by the tenant).(479) This means that the tenant must not allow anyone lawfully at the premises with the tenant’s consent to breach the RT Agreement.(480) This includes visitors, tradespeople hired by the tenant and sub-tenants/boarders and lodgers.

The onus of proof is on the lessor to prove that the tenant is vicariously responsible.(481)

The tenant is NOT vicariously responsible for those who are lawfully on the premises without the express or implied permission of the tenant.(482) This could include those who are initially given permission by the tenant to be on the premises, and the tenant then withdraws this permission.

The tenant is not vicariously responsible for those who are unlawfully on the premises, such as trespassers and burglars.

The tenant is also not responsible for damage occurring to the premises by a trespasser after the tenancy has terminated. Issues arise, however, where the tenant has abandoned the premises but has not notified the lessor of this. If the lessor is not aware that the premises are vacant, they will not be able to take steps to secure them, and if the premises are damaged by third parties as a result, the tenant may be liable for that damage.

3.17.1 Vicarious liability in the context of family violence reforms

The Residential Tenancies Legislation Amendment (Family Violence) Bill 2018 was introduced to amend the RT Act and the Residential Parks (Long-stay Tenants) Act 2007 (WA). The Bill was passed on 19 February 2019, and is expected to come into force in April 2019.

The Bill inserts a new s 17B which gives the tenant, or former tenant, a right to apply to the Court for a determination of the rights and liabilities of the parties under the agreement once the former tenant’s interest has been terminated on the grounds of family violence in accordance with the process under the RT Act. In making such a determination or order, the Court must have regard to a number of principles, including ‘the need to prevent further victimisation of a person who has experienced family violence through the unjust application of the principle of joint and several liability or the principle of vicarious liability’.(483)

3.17.1.1 Case examples

In Chew v Hein, there was insufficient evidence for the South Australian Residential Tenancy Tribunal to conclude on the balance of probabilities that a fire in the premises was accidentally started by a cigarette or incense lit by a visitor to the premises.(484)

In Hicks v Medina, the NSW Consumer, Trader & Tenancy Tribunal found that the tenant was vicariously responsible for damage to kitchen lino caused by the tenant’s removalist taking the fridge and freezer from the premises.(485)

Similarly, in Ilham Idlbi v D J Wheatley, the Residential Tribunal of NSW (now NSW Civil and Administrative Tribunal) found the tenant liable for damage to a lightshade (common property) caused by a removalist engaged by the tenant.(486)

Note however, that the tenant may be able to commence proceedings against the removalist in negligence.(487) The tenant will have 6 years to commence proceedings against the removalist from the date that the damage is caused. The tenant should seek specialist legal advice on a cause of action in negligence, as this is not covered by the RT Act. It is also possible that the tenant could commence an action against the removalist for breach of contract, namely breach of an implied term to carry out the work with reasonable care. If this is the case, the tenant would have 6 years to commence proceedings from the date of the breach, specifically from when the removalist failed to take reasonable care causing damage.

3.18 Pets

Advertisements for rental premises will often state whether or not a pet is allowed to be kept at the premises.

There are many factors affecting whether a lessor will allow pets, such as whether the premises are bound by strata by-laws, whether there is adequate room for a pet, local council laws, or simply the lessor’s preference.

A tenant who wants to keep a pet at the premises should contact the lessor or real estate agent prior to signing a residential tenancy agreement to confirm if a pet is allowed. If the advertisement for the premises says no pets are allowed, the tenant may still contact the lessor or real estate agent to negotiate allowing the tenant to keep a pet. It is advisable to contact the lessor in writing to request permission to have a pet at the premises. The letter could include positive references from previous rental premises where the pet was kept.

3.18.1 When can a pet be kept at the premises?

Unless the residential tenancy agreement specifically prohibits pets the tenant will be permitted to keep them.

The prescribed Form 1AA Part A contains the following clause:
PETS

The pets listed below may be kept at the premises : ………………………………………………

Clearly, if a pet is listed here, then it is a term of the agreement that the tenant can keep that pet at the premises. The clause is not exhaustive however,(488) and it will not be a breach of the agreement for the tenant to keep pets at the premises which are not listed there. Similarly, if no pets are listed (i.e. the space is left blank) then the tenant will still be entitled to keep pets.

The lessor who wishes to prohibit his or her tenant from keeping pets, or only to permit the tenant to keep them with the lessor's consent, must add a term to that effect to the agreement.

The usual REIWA Residential Tenancy Agreement contains a term which restricts the tenant to keeping pets which are either specifically listed in the agreement, or to which the lessor has consented in writing. Part C, clauses 2.6 to 2.8 state as follows:
Pets 2.6. The tenant must not keep any animal, bird or fish in or about the premises, unless that pet is listed in Part A of this residential tenancy agreement or without the prior written permission of the Lessor.

2.7. The tenant must not keep any restricted breed dogs as defined under the Dog (Restricted Breeds) Regulations 2002 - Dogo Argentine (Argentinian Fighting Dog), Fila Brasileiro (Brazilian Fighting Dog), Japanese Tosa, American Pit Bull Terrier, Pit Bull Terrier or any dog of a mixed breed which visibly contains any of these breeds, without the prior written consent of the Lessor.(489)

If an RT Agreement containing these clauses states that the tenant is entitled to keep a dog at the premises, then the tenant will not be in breach of agreement if they have a dog (so long as it is not a restricted breed). If the agreement states that the tenant is entitled to have a dog at the premises, but the tenant instead has a cat, then the tenant will be in breach of the agreement. However, this sort of situation does not usually arise if parties clearly negotiate before entering into the agreement as to what sort of pet the tenant wants to keep at the premises.

If the tenant breaches a term which prohibits keeping pets the lessor may seek an order from the court that the tenant stop keeping the pet in breach of the term.(490) The lessor may also seek compensation where the keeping of the pet has caused loss or damage,(491) and/or an order for termination.(492)

3.18.2 Restrictions on Where a Pet Can Go in the Premises

It is important to check the RT Agreement for any clauses about where the pet is entitled to go in the premises. For example, there may be a clause stating that the pet can only stay outdoors, or that it cannot be let into specified rooms. If the tenant is unhappy with this, it may be a matter of negotiating with the lessor before signing the RT Agreement to change these restrictions.

Tenants living in premises managed by a strata company should also check the strata by-laws for any restrictions on where a pet can go in the lot and common areas.

3.18.3 Strata By-Laws

3.18.3.1 By-laws may Permit or Prohibit the Keeping of Pets

If the premises are managed by a strata company, it is important to read the strata by-laws to see if there are any restrictions on keeping pets at the premises. The first place to look is the RT Agreement because this will indicate whether strata by-laws are or are not applicable to the residential premises.(493) If applicable, a copy of the by-laws may be attached to the RT Agreement. The tenant will be bound by the by-laws, even where the by-laws conflict with the RT Agreement.(494) If the by-laws are not attached, it is important to request a copy to determine terms that may not be in the RT Agreement or that contradict it.

The by-laws may prohibit pets, allow pets (with or without consent from the strata company) or not mention pets at all.

The model by-laws in Schedule 2 s 12© of the Strata Titles Act 1985 (WA) state that a proprietor, occupier or other resident must not ‘subject to section 42(15) of the Act, keep any animals on the lot that he owns, occupies or resides in or the common property after notice in that behalf given to him by the council.’(495) This means that animals can be kept on the lot unless the strata council gives notice otherwise. However, these model by-laws may be amended, repealed or added to by the strata company pursuant to s 42(2) of the Strata Titles Act 1985 (WA). The by-laws can only be amended, repealed or added to by the strata company in accordance with one of the following procedures as set out in s 42(2) of the Strata Titles Act 1985 (WA):

(a) by resolution without dissent (or unanimous resolution, in the case of a two-lot scheme), in the case of Schedule 1 by-laws; or

(b) in accordance with any order of a court or the State Administrative Tribunal or any written law; or

© in any other case, by special resolution.(496)

Under s 42(15), a by-law will have no force or effect if it prohibits or restricts the keeping on a lot of a guide dog used by a completely or partially blind proprietor, occupier or other resident of a lot; or the use of a guide dog on a lot or common property by a completely or partially blind person.(497)

If a RT Agreement is otherwise silent on whether pets can be kept, but the by-laws prohibit pets, the tenant will be in breach of the by-laws if they keep a pet in the premises. They will also be in breach of the RT Agreement if it contains a term that the tenant agrees to comply with the by-laws. Even if a RT Agreement permits pets, if the by-laws prohibit them then there will be directly conflicting obligations. It is unclear which term should prevail in such a case;(498) but if the by-laws were read and understood by both parties before the agreement was executed, it should not occur in the first place(499) (even if the parties did check the by-laws, the situation could still arise where the strata by-laws are changed during the term of the RT Agreement).

Lessors have a legal relationship with the strata company, and any breach of the by-laws by the tenant will result in the lessor (rather than the tenant) being liable to the strata company. However, a lessor who is fined for a tenant’s breach of the by-laws, can sue the tenant to recover the amount if the RT Agreement contains a clause that the tenant agrees to abide by strata by-laws. For further discussion of strata title issues see 12.1.19 (Strata Titles).

3.18.3.2 Keeping Pets Pursuant to By-laws

If the by-laws permit a pet to be kept on the premises, then the tenant may be required to complete a pet application and agreement form. These forms are often used within strata premises to regulate pet ownership and control the expectations of occupants. They may be required to be filled in by the strata company and/or the lessor’s agent. The application form may cover the age, breed, description, vaccinations and whether the pet is micro-chipped. The additional agreement form may cover responsibilities of the pet owner to avoid interference with other residents, an acknowledgement of liability and indemnity for any damage or injury caused by the pet as well as a dispute resolution process.

The strata company, a proprietor, administrator, owner or resident of a strata lot can apply to the State Administrative Tribunal for an order if a pet kept on the premises in accordance with the by-laws is causing a nuisance or hazard to the proprietor, occupier or resident, or unreasonably interfering with the use and enjoyment of another lot or of the common property.(500) The State Administrative Tribunal may order that the pet be removed permanently within a specified time, or for the pet owner to take such other steps as specified in the order to terminate the nuisance, hazard or unreasonable interference.(501)

3.18.3.3 Keeping Pets Contrary to By-laws

A tenant who decides to keep a pet at the premises in contravention of the by-laws, risks having the pet removed from the premises. A strata company, proprietor, administrator, a person having an estate or interest in a lot or a resident of a lot can apply to the State Administrative Tribunal for an order that the animal be removed permanently within a specified time, unless the keeping of the animal on the lot or common property is subsequently authorised by the by-laws.(502) An example of where the keeping of pets may be subsequently authorised is where the strata council decides that pets should be allowed in the premises, and the by-laws are amended to this effect. If this occurs, a pet that has been removed may be entitled to return to the premises.

In Hagh v Kong the Tribunal held that the tenant was in breach of agreement by keeping a small dog on the premises, when the notice and terms of the residential tenancy agreement and strata by-laws made it clear that it was not possible for consent to be given to having a dog on the premises, and the lessor had not given permission.(503) It was irrelevant that the strata company may have declined to enforce particular by-laws in relation to pets for one other owner whose possession appears to have predated the making of the amended strata by-law.(504)

In Cogan and Weymouth the State Administrative Tribunal ordered that the pet owner’s dogs be removed from the strata premises within 7 days on the grounds that the by-laws prohibited the keeping of animals and the dogs were allegedly causing a nuisance by barking.(505) This decision was made pursuant to sections 91 and 92 of the Strata Titles Act 1985 (WA). In this case, the pet owner had previously informed the strata company that she was selling the premises and that the dogs would be removed in due course, however, the sale never eventuated and the dogs remained on the premises, until they were ordered to be removed.

In The Owners of Belltower Strata Plan – 33581 and Allen & Anor(506) the strata company applied for an order under its by-laws and s 91 of the Strata Titles Act 1985 (WA) that the respondent’s American Cocker Spaniel dog be removed from the premises. The by-laws prohibited the keeping of animals without the prior written consent of the manager of the strata company, and consent had been sought but refused. The application was dismissed because the respondent had already removed the dog from the lot.

3.18.4 Pet Bond

The lessor is entitled to request an additional amount of security bond if the tenant is permitted to keep a pet at the premises.(507) The maximum amount a pet bond can be is $260 (unless the rent is more than $1200 per week).(508) The legislation only permits a pet bond where a pet is capable of carrying parasites that can affect humans, so the pet bond may be used at the end of the tenancy for fumigation.(509) External parasites that can be carried by pets and may require fumigation include fleas, ticks, scabies and mites.

The tenant is probably entitled to be refunded the pet bond unless the lessor actually proves that there were parasites capable of affecting humans on the premises at the end of the agreement, and they were caused by the tenant's pet.(510) A clause which impose a requirement on the tenant to fumigate regardless of whether or not there is any need for it may be void for inconsistency.(511)

A tenant who believes the lessor is charging too much for fumigation may consider obtaining quotes to determine if the lessor is charging an excessive amount. The lessor has a duty to mitigate loss which involves not being entitled to claim for loss they can avoid by taking reasonable steps. This could involve finding a range of quotes and charging the cheapest. Note that there are restrictions on the extent of the duty to mitigate, and part 4.7.5 (Mitigation of loss and bond disposal) should be read in conjunction with this part.

The lessor must not charge a pet bond for an assistance dog, as defined in section 8(1) of the Dog Act 1976 (WA).(512) Section 8(1) is set out as follows:

(1) In this section -

assistance dog means a dog -

(a) that is trained or is being trained by a representative of an organisation that is prescribed for the purposes of this definition; or

(b) that is trained or is being trained by an individual having the qualifications and experience prescribed for the purposes of this definition; or

© that is assessed by a person mentioned in paragraph (a) or (b) as being competent to be an assistance dog; or

(d) that is being assessed by a person mentioned in paragraph (a) or (b) to decide whether the dog is competent to be an assistance dog; or

(e) that has been approved, for the purposes of a law of another State or a Territory, as a dog whose use can alleviate or manage an effect of a person’s disability or medical condition; or

(f) that is approved by the CEO for the purposes of this definition.

The pet bond must be lodged with the Bond Administrator (for all tenancies entered into after 1 July 2013).(513) For further discussion of lodging the bond, see 2.10.2 (Security bond).

The lessor is not entitled to take more than one pet bond for the same residential tenancy agreement.(514) This means that even if there are 2 dogs (or one dog and one cat) on the premises for instance, the lessor is still restricted to claiming one pet bond up to a maximum of $260.

3.18.5 Altering the Premises for a Pet

A tenant may want to make alterations to the premises to accommodate for their pets. Such alterations could include an outdoor enclosure or an indoor pet fence to prevent a pet from entering certain parts of the premises.

It is important to first check the RT Agreement for any clauses about affixing any fixtures or making any renovations, alterations or additions to the premises. The RT Agreement may state that the tenant can affix fixtures or make renovations, alterations or additions with the lessor’s consent. Alternatively, it may prohibit the tenant from doing so, which means the tenant will need to think carefully about signing the RT Agreement as they may be in breach if the premises are altered for the purposes of the pet. In any case, it is important to distinguish between alterations that affect the existing premises (e.g. a cat flap cut into a door or fence nailed to an existing wall) and freestanding alterations that do not become part of the premises (e.g. a movable puppy playpen). The latter is unlikely to alter the premises itself and will thus be unlikely to breach the agreement.

The tenant is still required to deliver up the premises in as close as possible to the same condition as when they move in, except for fair wear and tear, so it is important to consider whether any alterations can be reversed. The tenant risks being liable for negligent damage if the premises are damaged while removing a fixture or if an alteration cannot be reversed.

For further discussion of the tenant’s right to affix fixtures and make alterations, renovations and additions, see 3.10 (Alterations, fixtures and renovations).

3.18.6 Damage Caused by a Pet

Pets can cause damage to premises, such as torn flyscreens, holes in the garden, scratches on doors, marks on walls and stained carpets. A tenant is required to notify the lessor as soon as practicable after any damage to the premises occurs.(515)

Damage caused by a pet which goes beyond fair wear and tear may be classed as negligent damage which the tenant will be liable for and in breach of s 38(1)(c) of the RT Act, or breach of s 38(1)(a) for failure to keep the premises in a reasonable state of cleanliness.

If the lessor wants to deduct a sum from the bond for damage caused by a pet, the usual principles of bond disposal apply – that is, the tenant will be liable to the lessor for failure to deliver up the premises in as close as possible to the same condition as when the tenant moved in, minus fair wear and tear. If the tenant agrees with the claim, they can sign a bond disposal form to deduct the agreed amount from the bond. If the tenant disputes the claim, either party can commence proceedings in the Magistrates Court to have the bond disposed by court order. For further discussion of the process of disposing of the bond, see 4.7.1 (Disposal of the security bond).

3.18.7 Termination and Compensation

A tenant who keeps pets in the premises despite the RT Agreement and/or strata by-laws prohibiting pets, risks the lessor commencing proceedings for termination and/or compensation for breach of agreement. A tenant who does not remove a pet kept in breach of the RT Agreement and/or a specific performance order to remove the pet, is very likely to have their tenancy agreement terminated.

If the lessor wants to claim compensation for breach of agreement, they will need to prove some sort of loss or damage caused by the breach.(516) While having a pet in the premises may be a breach of agreement, this alone only entitles the lessor to claim nominal compensation. The lessor will not be entitled to more than nominal compensation unless the pet has caused some sort of damage to the premises or has affected the premises at the end of the tenancy such as they are not delivered up in as close as possible to the same condition as when the tenant moved in, minus fair wear and tear. Examples could include where the pet has stained the carpet, dug holes in the garden, ripped flyscreens or caused a strong odour that requires fumigation to remove.

If the lessor wants to commence proceedings for termination for the tenant’s breach of agreement by having a pet in the premises, the lessor is required to (1) follow the correct process; and (2) demonstrate that the breach justifies termination in all of the circumstances.

  1. Process: The lessor must first send a notice specifying the breach (e.g. interference with neighbours by barking or howling, or stained carpets, scratched doors and lawn dug up by the tenant’s dog) and requiring that the breach be remedied. This notice must be given to the tenant not less than 14 days before the notice of termination is given.(517) There is no set requirement for what form the breach notice is in. If the breach is not remedied, the lessor can then send a notice of termination (Form 1C), giving the tenant not less than 7 days to deliver up vacant possession.(518) If the tenant does not vacate within the time stated on the Form 1C, the lessor has 30 days after that date to apply to the Court for termination of the agreement and an order for possession of the premises.(519)
  2. Justifies termination: In order to make an order terminating the residential tenancy agreement and an order for possession of the premises, the Court must be satisfied that ‘the breach is in all the circumstances such as to justify termination of the agreement’.(520) The Court may also consider whether the tenant has remedied the breach, and must take into account any previous breaches of the agreement by the tenant.(521)

In the case of Stewart v Yarrawarra Aboriginal Corporation(522) where the NSW Civil and Administrative Tribunal (Appeal Panel) stated that ‘one photograph of a dog in the house on one occasion might not be sufficient to invoke the discretion to terminate the Lease on that ground’ (where the keeping of a dog without permission constituted a breach of agreement). Nevertheless, the Appeal Panel found this to be an irrelevant consideration which they did not need to make a finding on because the termination notice did not rely on a breach by reason of keeping a dog on the premises without the lessor’s consent.

It is important to remember that while the above decisions may be persuasive,(523) they are not binding.

Note that the tenant can also ask the Court to consider a range of other factors as to why the tenancy should not be terminated. Examples of these factors are set out at 4.3.2.1 under the heading ‘Factors to be considered when looking at “all the circumstances”’. It is important to note that termination is likely if the breach is not remedied, especially if the tenant is also in breach of a specific performance order.

3.18.8 Pets no Longer Residing at the Premises

The tenant does not have any obligation under the RT Act to notify the lessor/property manager if a pet stops living at the premises during the tenancy (whether by way of death or moving away).

Neither party may apply for the security bond (including the pet bond) to be paid out before termination of the RT agreement.(524) The court cannot order payment of the pet bond until 14 days after the tenant has moved out at the end of the tenancy.(525)

3.19 Gardens

3.19.1 Moving in

The condition of gardens can be a sourc e of conflict at the end of a tenancy. To reduce the risk of disputes about gardens, record the details of things such as weeds, brown patches, overgrown bushes, unmown lawn in the property condition report, and photos are the best way to document this evidence.

If there is rubbish or belongings left in the garden from the lessor or previous tenants, the tenant should also note this in the incoming property condition report, and can request the lessor to rectify the issues. If the lessor does not take any steps to do so, they could be in breach of their obligations under the RT Act to deliver up to the tenant vacant possession of the premises in a reasonable state of cleanliness and a reasonable state of repair having regard to its age and character.(526)

3.19.2 Moving out

A tenant has a responsibility to deliver up the premises in as close as possible to the same condition as when the tenant moved in, minus fair wear and tear.(527) The gardens are included as part of the premises.(528) Street verges (road reserves) are Crown land and managed by the local authority, but maintenance is encouraged by the adjacent owner. This means that while the gardens are the responsibility of the tenant, the street verges are not.

The tenant may be liable for any differences in the garden that have occurred between the tenant moving in and moving out – this could include the cost of replacing lawns, trees, shrubs or other plants that have died or gone brown; replacing plants that have been cut down; weeding; and mowing lawns. The lessor may claim these costs from the bond.

The tenant will not be liable for fair wear and tear occurring in the gardens. Fair wear and tear could include mulch breaking down over time. However, some leases include specific clauses about obligations to maintain the garden including to keep the garden mulched. The application of fair wear and tear principles to gardens can be complicated, for further discussion of fair wear and tear see 4.7.3 (Fair wear and tear).

The tenant will also not be liable for any costs incurred by the lessor in landscaping or renovating the garden beyond the condition it was in when the tenant moved in.

The REIWA standard Residential Tenancy Agreement has the following clause regarding gardens:
Gardens 2.18. The tenant must attend to the garden, lawns, lawn edges, hedges, shrubs and trees so that they are kept in the same condition as at the commencement of this lease as described in the Property Condition Report, to water and fertilise them regularly and adequately, to keep all the grounds clean and tidy and free from rubbish, to keep the flower beds and lawns free of weeds, and not to remove or cut down any plants, trees or shrubs.(529)

The tenant will be bound by this clause if it is in the RT Agreement.

Disputes about liability for brown or dead lawns can be complicated. These cases can involve issues of:

  • A tenant breach by failure to water (where there is a specific clause, as most agreements from real estate agents)
  • A tenant’s duty to return the premises in as near as possible as the same condition less fair wear and tear
  • Tenants breach by failure to report the need for repairs for reticulation
  • Lessors breach by failure to repair reticulation
  • Issue of intersection of water restrictions with obligations under the RT Agreement
  • The duty to mitigate losses where one party has breached the agreement

The disputes can be expensive if the lessor claims for the replacement of lawns and established gardens. These cases turn on the specific facts of the case. Seek advice.

3.19.3 Cleaning gutters and tree pruning

Cleaning gutters and pruning large trees are likely to be the lessor’s responsibility as this work requires special equipment and/or skills.

In Long v Paetzold the Tribunal held that the lessor was responsible for cleaning the gutters on a two-storey building because the tenant could not have cleaned the gutters themselves.(530) Even if the gutters are not located in a hard-to-reach area (such as the second floor of a building), the tenant can argue that the cleaning of gutters (and pipes) is still the lessor’s responsibility as maintenance issues.(531)

Note that the tenant still has an obligation to deliver up the premises in as close as possible to the same condition as when the tenant moves in, minus fair wear and tear. This means that a tenant who does not prune trees could be in breach for failing to deliver up the premises to the required standard. It is also important to check the RT Agreement to see if there are any clauses on gardening and/or pruning. The REIWA standard Residential Tenancy Agreement clause 2.18 does not specifically cover pruning, however, arguably attending to the ‘garden…hedges, shrubs and trees’ would involve a degree of pruning to ensure ‘they are kept in the same condition as at the commencement of this lease’.(532)

3.20 Contracting out

From 1 July 2013, it is an offence for either party to contract out of the RT Act.(533) Additional conditions can be added to the prescribed Form 1AA agreement, but must not conflict with the conditions already in the agreement or contradict the law as set out in the RT Act.

Pursuant to section 82, any agreement or arrangement that is inconsistent with a provision of the RT Act or purports to exclude, modify or restrict the operation of the RT Act, is to that extent void and of no effect.(534)

Further, any purported waiver of a right conferred by or under the RT Act is void and of no effect.(535)

A person who enters into any agreement or arrangement with (direct or indirect) intent to defeat, evade or prevent the operation of the RT Act commits an offence subject to a fine of $10 000.(536)

Examples of contracting out could include:

  • requiring the tenant to clean the premises using specific cleaning company;
  • holding the tenant liable for minor repairs even if the tenant has not caused negligent damage resulting in the need for repair;
  • a clause in the application stating that the tenant takes the premises in the condition in which they were in when the tenant inspected the premises, despite s 42(2)(a) which requires the lessor to deliver up the premises in a reasonable state of cleanliness and repair having regard to its age and character;(537)
  • permitting the lessor to give a 7-day notice of termination at any time during the agreement even if there is no breach by the tenant; and
  • (arguably) requiring the tenant to get carpets or windows professionally cleaned (however, this is a grey area and further legal advice should be sought – see 3.3 [Cleaning] for further discussion).

3.20.1 Intent to defeat, evade or prevent

The WA Supreme Court in Penzar Pty Ltd v Commissioner for Consumer Protection considered the interpretation of ‘intent’ in s 82(2) of the RT Act, particularly whether or not intent to defeat, evade or prevent operation of the law requires knowledge of the wrongfulness of the act.(538) The Supreme Court explains that s 82(2) is ‘an anti-avoidance provision…it is designed to discourage deliberate attempts to avoid the requirements of the RTA.’(539) The Court stated that an intent to defeat, evade or prevent operation of the RT Act ‘implies knowledge of that effect and not mere carelessness or ignorance.’(540) In other words, there must be an intention to enter into an agreement that achieves a prohibited outcome.(541) In order to prove the offence, it is necessary to establish: (1) that the lessor is aware of the relevant prohibition under the RT Act; (2) that this provision applies in the circumstances of the particular residential tenancy in question; and (3) the lessor deliberately breached the prohibition.(542) It is not necessary to prove that the lessor is aware of the exact nature (including the words used and their meaning) of the particular provision in the RT Act prohibiting the relevant conduct, ‘[h]owever, it is necessary to prove that the appellant was aware of a legal duty to act in a certain way and that the act of entering into the agreement was contrary to the duty.’(543)

3.20.2 Exceptions to contracting out

The exception where contracting out is permitted is where the RT Agreement is entered into by the Housing Authority on the basis that the premises will be sub-let, and the agreement provides (or is deemed to contain a provision to the effect that) the tenant may sub-let the premises.(544)

Prior to the amendments to the RT Act which came into effect on 1 July 2013,(545) the RT Act permitted contracting out of certain provisions under the RT Act, so long as the RT Agreement was in writing and signed by the lessor and the tenant. Contracting out of the following standard terms was permitted under section 82(3) of the pre-amended RT Act:

  • Tenant’s responsibility for cleanliness and damage (s 38).
  • Tenant’s conduct on premises (s 39).
  • Vacant possession (s 40).
  • Legal impediments to occupation as residence (s 41).
  • Owner’s responsibility for cleanliness under repairs (s 42).
  • Compensation where tenant sees to repairs (s 43).
  • Locks (s 45).
  • Owner’s right of entry (s 46).
  • Right of tenant to affix and remove fixtures etc. (s 47).
  • Owner to bear outgoings in respect of premises (s 48).
  • Right of tenant to assign or sub-let (s 49).
  • Vicarious responsibility of tenant for breach by other person lawfully on premises (s 50).
  • Cost of written agreement to be borne by owner (s 55).
  • Discrimination against tenants with children (s 56).

Section 80(3) of the Residential Tenancies Amendment Act 2011 (WA) deleted section 82(3) of the pre-amended RT Act. Section 80(3) came into operation on 1 July 2013.(546) This means that contracting out of any provision of the RT Act is prohibited for any RT Agreement entered into after 1 July 2013. However, any RT Agreements subsisting ‘immediately before’ 1 July 2013 that contain a provision referred to in s 82(3) continues to have effect despite the deletion of s 82(3).(547)

3.21 Penalty Clauses

Penalty clauses are void under s 57 of the RT Act.(548)

This means that a provision of an RT Agreement that requires the tenant to pay an additional monetary amount if the tenant breaches a term of the RT Agreement, the RT Act or any other written law, is void and of no effect. This prohibition applies to clauses making the tenant liable to pay all or any part of the remaining rent, increased rent, a penalty, or liquidated damages.(549) A lessor or property manager who executes a RT Agreement containing such a provision commits an offence subject to a penalty of $5 000.(550) This means that if a lessor made something a fundamental term of an agreement, breach of which gave the lessor a right to terminate and damages for the loss of bargain resulting from that termination, such a clause would be void for two reasons: inconsistency with the RT Act for purporting to give a right to terminate for breach;(551) and the penalty clause would be void under s 57.(552)

If a RT Agreement provides that the tenant is entitled to a rent reduction, rebate, refund or other benefit if the tenant does not breach the agreement, the RT Agreement will be deemed to have been varied from the commencement of the tenancy so the tenant will be entitled to the proposed benefit in any event.(553)

Additionally, a lessor is prohibited from requiring or receiving any money from the tenant other than rent and a security bond. There is a potential penalty of $5 000 for contravening this section.(554) The lessor is also entitled to request payment for utility bills (if this is agreed between the parties).

The lessor cannot ask the tenant to pay any administration fees, re-inspection fees or charges for sending utility invoices or breach notices, unless these are in fact losses arising from the tenant’s breach. These costs can only be actual amounts that the lessors has been required to pay as a result of the tenant’s breach, and cannot be inflated or punitive.

Notes

1 : Residential Tenancies Regulations 1989 (WA) sch 4, Form 1AA, Part A (‘Rent’). Note that it is not a requirement under the Residential Tenancies Act 1987 (WA) itself that rent be paid in advance. As a result the parties to a verbal residential tenancy agreement may agree that rent be post-paid, ie that it is paid at the end of each rental period.

2 : Residential Tenancies Act 1987 (WA) s 28(1).

3 : Residential Tenancies Act 1987 (WA) s 28(2).

4 : Residential Tenancies Act 1987 (WA) s 28.

5 : Sometimes this occurs when the tenant keeps paying rent in the last fortnight of the tenancy before moving out.

6 : Residential Tenancies Act 1987 (WA) s 83.

7 : Many lessors require tenants to pay bond of 4 week’s rent, and 2 week’s rent in advance before moving in. This payment is for the first two week’s of the tenancy.

8 : See Residential Tenancies Regulations 1989 (WA) sch 4, Form 1AA and Form 1AB under heading 'RENT'.

9 : Residential Tenancies Act 1987 (WA) ss 34A, 33(2).

10 : Residential Tenancies Regulations 1989 (WA) reg 5A(1).

11 : Residential Tenancies Act 1987 (WA) s 35.

12 : LexisNexis, Encyclopaedic Australian Legal Dictionary (at 18 May 2018) Post-dated cheque.

13 : Residential Tenancies Act 1987 (WA) s 33(2).

14 : Banking Act 1959 (Cth) ss 5, 9(3).

15 : Residential Tenancies Act 1987 (WA) s 33(2).

16 : As they would otherwise be required to under the Residential Tenancies Act 1987 (WA) s 33.

17 : Residential Tenancies Regulations 1989 (WA) reg 5C.

18 : The parties may agree whatever method of rent payment they wish. If a lessor insists on payment by direct debit, a prospective tenant may choose not to enter into the agreement at all, or enter into it with a payment by direct debit clause.

19 : Department of Human Services, Australian Government, Centrepay (12 May 2018) < https://www.humanservices.gov.au/individuals/services/centrelink/centrepay >

20 : Residential Tenancies Act 1987 (WA) ss 33(1)—(2).

21 : Residential Tenancies Regulations 1989 (WA) reg 5A.

22 : Residential Tenancies Regulations 1989 (WA) reg 5C.

23 : In most cases, the tenant will pay by electronic direct transfer, in which case the tenant has their own bank statement. The tenant who pays by providing the lessor with a cheque also has their own bank statement. The tenant who pays by depositing a cheque at the lessor’s bank will have both their own bank statement and the deposit receipt from the lessor’s bank. The tenant who pays by cash deposit at the lessor’s bank will have the deposit receipt from the lessor’s bank. Tenants who pay by cash deposit should be careful to keep their deposit receipts in case a dispute later arises.

24 : Residential Tenancies Act 1987 (WA) s 33(1).

25 : Residential Tenancies Act 1987 (WA) ss 34(1)—(2A).

26 : Residential Tenancies Act 1987 (WA) s 34(2).

27 : Residential Tenancies Act 1987 (WA) s 36.

28 : Residential Tenancies Act 1987 (WA) s 52.

29 : Residential Tenancies Act 1987 (WA) s 30(1)(b).

30 : Residential Tenancies Act 1987 (WA) s 30(1)(a).

31 : Residential Tenancies Act 1987 (WA) s 30(1).

32 : Residential Tenancies Regulations 1989 (WA) sch 4, Form 1AA, Part A (‘RENT INCREASE’).

33 : And in this case the lessor is not required to give notice of the increase (indeed in most cases they would not be able to in any event, because, unless they are also the tenant's employer, the tenant's income is not usually a matter over which the lessor has any control), and nor does it matter if it is less than six months since the last increase.

34 : Residential Tenancies Act 1987 (WA) s 31A(2)(b)(i).

35 : Residential Tenancies Act 1987 (WA) s 31A(2)(b)(ii).

36 : Residential Tenancies Act 1987 (WA) ss 31A(2)(a)—(b).

37 : Residential Tenancies Act 1987 (WA) s 30(2); Residential Tenancies Regulations 1989 (WA) Form 1AA, Part A (‘RENT INCREASE’).

38 : Consumer price index.

39 : These could be as frequent as every six months for the whole term of the agreement.

40 : The new agreement may be a new fixed term or a new periodic agreement, including an agreement arising automatically under section 76C. Section 76C provides that, where a fixed term agreement passes its expiry date without either party having given a notice to terminate it, it becomes a periodic tenancy.

41 : Residential Tenancies Act 1987 (WA) s 31B.

42 : The limitations on increasing rent under section 30 are not stated to be ‘term[s] of every residential tenancy agreement.’ Nevertheless section 30 is replicated in the prescribed form residential tenancy agreements (Forms 1AA and 1AB). The result of this would appear to be that a tenant who wanted to complain about a breach of the rent limitations imposed by s 30 would be able to claim compensation for breach of the agreement under s 15(2)(c), but only if they had a written agreement in the prescribed form. A tenant who had a verbal agreement, or one not in the prescribed form (it would be an offence under the Act to enter into a written agreement not in the prescribed form but nevertheless it could still happen), which did not incorporate the limitations on increasing rent found in s 30, would not be able to claim under s 15(2).

43 : This is discussed by Bradbrook, MacCallum and Moore in the context of the equivalent s 34 of the now repealed Residential Tenancies Act 1978 (SA): Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 308 [1116].

44 : Of course the number of such agreements still in existence must be very small, if it is not zero.

45 : Residential Tenancies Regulations 1989 (WA) reg 5CA.

46 : The Housing Authority is still subject to section 31A, which provides the requirements for notices for rent where the rent is calculated by reference to the tenant’s incomes, as in all public housing tenancies.

47 : Residential Tenancies Act 1987 (WA) s 6; Residential Tenancies Regulations 1989 (WA) reg 5B.

48 : Residential Tenancies Act 1987 (WA) s 32(1).

49 : Residential Tenancies Act 1987 (WA) s 32(3A).

50 : Residential Tenancies Act 1987 (WA) s 32(2).

51 : Residential Tenancies Act 1987 (WA) s 32(2).

52 : Residential Tenancies Act 1987 (WA) s 32(3).

53 : The term ‘outgoings’ may be broader than the term ‘charges’ because it enables the court to take into account the cost of repairs to the premises paid for by the lessor: Adrian J Bradbrook, Susan V Mac Callum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 342 [1235].

54 : The term ‘services’ refers to domestic services provided by the tenant or the lessor (eg cleaning, linen or meals) as part of the consideration for the residential tenancy agreement. Reference to ‘services’ means the court can assess whether the rent is excessive based on if and what level of services are provided and adjust the rent accordingly: Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 334 [1220].

55 : Bradbrook, Mac Callum and Moore argue that the term ‘amenities’ in the former South Australian legislation is equivalent to the term ‘facilities’ in the Victorian legislation, with the exception that the ‘amenities’ must be inside the rented premises, unlike in Victoria where the ‘facilities’ do not need to be inside the premises: Adrian J Bradbrook, Susan V Mac Callum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 342 [1235]. Under s 2 of the former Victorian Residential Tenancies Act 1980 (Vic), ‘facilities’ was defined as including: ‘(a) land or buildings intended for use for storage space or car parking; (b) laundry facilities; © cooking facilities; (d) recreational areas; (e) lifts; (f) garbage storage and disposal facilities; (g) toilet and washing facilities; (h) appliances for heating or cooling premises; (i) communications facilities; and (j) lawns, gardens and outhouses – provided by the landlord for the tenant’s use otherwise than as part of the rented premises.’

56 : Reference to ‘any other relevant matter’ gives the court broad discretion to take into account such factors as personal circumstances of the parties (eg respective financial capacities), and any work done by the tenant with the lessor’s consent: Adrian J Bradbrook, Susan V Mac Callum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 342 [1235].

57 : Residential Tenancies Act 1987 (WA) s 32(4).

58 : Residential Tenancies Act 1987 (WA) s 32(5).

59 : Residential Tenancies Act 1987 (WA) s 32(7).

60 : Residential Tenancies Act 1987 (WA) s 32(6).

61 : Residential Tenancies Act 1987 (WA) s 65(1)(a).

62 : Residential Tenancies Act 1987 (WA) ss 65(1)(b)—(2).

63 : Residential Tenancies Regulations 1989 (WA) sch 4, Form 1AA, Part B, cl 5.3; Form 1AB, Part B, cl 8.3

64 : Residential Tenancies Regulations 1989 (WA) sch 4, Form 1AA, Part B, cl 3; Form 1AB, Part B, cl 6.

65 : Residential Tenancies Act 1987 (WA) s 42(2).

66 : Residential Tenancies Act 1987 (WA) s 42(1).

67 : Residential Tenancies Act 1987 (WA) s 42(1).

68 : Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Ltd, 1983) [1317], citing the following from the judgment of Pearson L.J. in Day v Harland and Wolff Ltd [1953] 2 All ER 387 at 388: 'Very broadly speaking, I think that to repair is to remedy defects, but it can also properly include an element of the "stitch in time which saves nine". Work does not cease to be repair work because it is done to a large extent in anticipation of forthcoming defects or in rectification of defects which have already become serious. Some element of anticipation is included.'

69 : For example, the premises may come with an old outside spa that has been filled in with earth and been converted into a flowerbed. The tenant could not insist on it being emptied of earth and restored to working condition.

70 : Jones v Bartlett [2000] HCA 56 (16 November 2000) [75].

71 : Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) [1317].

72 : Graham v Market Hotels Ltd (1943) 67 CLR 567, 579, quoted in Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) [1315].

73 : Macquarie Dictionary (Macmillan, 6th ed, 2013) 1224.

74 : The New Shorter Oxford English Dictionary (Oxford University Press, 4th ed, 1993) vol 2, 2496.

75 : Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) [1366].

76 : Proudfoot v Hart (1890) 25 QBD 42, 55.

77 : Dupont v Lawrence [1997] NSWRT 213 (1 September 1997).

78 : Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; Jones v Bartlett [2000] HCA 56.

79 : Butterworths Concise Australian Legal Dictionary (LexisNexis Butterworths, 3rd ed, 2004) 252.

80 : Jones v Bartlett [2000] HCA 56 (16 November 2000) [75], [249].

81 : Residential Tenancies Act 1987(WA) ss 42(2)(a)-(b).

82 : Ahluwalia v Robinson [2003] NSWCA 175 [23] (Hodgson JA), quoted in Loose Fit Pty Limited v Marshbaum [2011] NSWCA 372 (30 November 2011) [87].

83 : Jones v Bartlett [2000] HCA 56 (16 November 2000) [58], [186], cited in Gove v Black [2006] WASC 298 (21 December 2006) [426], [432].

84 : Northern Sandblasting Pty Ltd v Harris [1997] HCA 39.

85 : Gove v Black [2006] WASC 298 (21 December 2006) [420]; Loose Fit Pty Limited v Marshbaum [2011] NSWCA 372 (30 November 2011) [83].

86 : Peter Handford, ‘Through a Glass Door Darkly: Jones v Bartlett in the High Court’ (2001) 30(1) UWA Law Review 75,94; Danuta Mendelson, ‘Jones v Bartlett: Landlords’ Liability to Tenants and Members of their Household in Negligence’ [2001] 6(1) Deakin Law Review 174, 177. See also Gove v Black [2006] WASC 298 (21 December 2006) [423] where the Supreme Court of WA stated that ‘[n]o principle of universal application…emerges from Northern Sandblasting (supra).’

87 : Peter Handford, ‘Through a Glass Door Darkly: Jones v Bartlett in the High Court’ (2001) 30(1) UWA Law Review 75, 80-82; see also Danuta Mendelson, ‘Jones v Bartlett: Landlords’ Liability to Tenants and Members of their Household in Negligence’ [2001] 6(1) Deakin Law Review 174, 179.

88 : Jones v Bartlett [2000] HCA 56 (16 November 2000 [173) (Gummow and Hayne JJ).

89 : Jones v Bartlett [2000] HCA 56 (16 November 2000) [176].

90 : Jones v Bartlett [2000] HCA 56 (16 November 2000 [289] (Callinan J).

91 : Jones v Bartlett [2000] HCA 56 (16 November 2000 [88] (Gaudron J). (footnotes omitted).

92 : Jones v Bartlett [2000] HCA 56 (16 November 2000) [57] (Gleeson CJ).

93 : Jones v Bartlett [2000] HCA 56 (16 November 2000) [58] (Gleeson CJ).

94 : Jones v Bartlett [2000] HCA 56 (16 November 2000 [50] (Gleeson CJ).

95 : Jones v Bartlett [2000] HCA 56 (16 November 2000 [50] (Gummow and Hayne JJ).

96 : Jones v Bartlett [2000] HCA 56; 205 CLR 166; 176 ALR 137; 75 ALJR 1 (16 November 2000 [237] (Kirby J), cited in Gove v Black & Ors [2006] WASC 298 (21 December 2006) [434].

97 : Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) [2.63.3].

98 : It also seems to be arguable that the prescribed form terms 16.4 and 17.5 are inconsistent with the NSW RT Act, sections 62 and 63(1).

99 : REIWA Form 303© Residential Tenancy Agreement.

100 : Residential Tenancies Act 1987 (WA) s 42.

101 : Which would be a breach of the term implied by s 38 (1)(c) of the Residential Tenancies Act.

102 : Residential Tenancies Act 1987 (WA) s 42.

103 : Residential Tenancies Act 1987 (WA) s 42.

104 : Residential Tenancies Regulations 1989 (WA) sch 4.

105 : Residential Tenancies Act 1987 (WA) s 82.

106 : Plumbers Licensing and Plumbing Standards Regulations 2000 (WA), reg 4 and 9. There is a limited exception in certain circumstances for persons carrying out some plumbing work in remote Aboriginal communities – see part 4A. The same regulations are so broadly drafted that they appear to also outlaw the use, by an unlicensed person, of a sink or toilet plunger to clear a blocked drain.

107 : Residential Tenancies Act 1987 (WA) s 43(1)(a); Residential Tenancies Regulations 1989 (WA) r 12A.

108 : Residential Tenancies Act 1987 (WA) s 43(1)(b).

109 : Residential Tenancies Act 1987 (WA) s 43(2)(a).

110 : Residential Tenancies Act 1987 (WA) ss 43(1)(a),(2).

111 : Residential Tenancies Act 1987 (WA) s 43(3).

112 : Residential Tenancies Act 1987 (WA) ss 59D, 15(2)(b).

113 : Residential Tenancies Act 1987 (WA) ss 59D(3), (5).

114 : Residential Tenancies Act 1987 (WA) s 59D(2).

115 : Residential Tenancies Act 1987 (WA) s 59D(4).

116 : Residential Tenancies Act 1987 (WA) s 43(1).

117 : Residential Tenancies Act 1987 (WA) s 43(2) (‘if a need for urgent repair arises otherwise than as a result of a breach of agreement by the tenant’).

118 : Planning and Development Act 2005 (WA) s 4(1).

119 : Residential Tenancies Act 1987 (WA) s 43(3).

120 : Residential Tenancies Regulations 1989 (WA) r 6.

121 : Residential Tenancies Act 1987 (WA) ss 43(2)(a) (urgent repairs), 38(1)(b) (non-urgent repairs).

122 : Residential Tenancies Act 1987 (WA) s 82.

123 : Form 23 can be downloaded at: Government of Western Australia Department of Mines, Industry Regulation and Safety, Notice to lessor of breach of agreement – Form 23 (4 October 2017) Department of Mines, Industry Regulation and Safety <https://www.commerce.wa.gov.au/publications/notice-lessor-breach-agreement-form-23>.

124 : Magistrates Court of WA, Form 12 – Application for Court Order (25 July 2013) Magistrates Court of WA , <https://www.magistratescourt.wa.gov.au/_files/RT_Form_12_Court_Order.pdf>.

125 : Residential Tenancies Regulations 1989 (WA) sch 4, Form 1AA cl 4.

126 : Residential Tenancies Act 1987 (WA)s 15(2)(d).

127 : Residential Tenancies Act 1987 (WA) s 15(2)(a).

128 : Residential Tenancies Act 1987 (WA) ss 32(1), (2)(b).

129 : Residential Tenancies Act 1987 (WA) s 32(1).

130 : Residential Tenancies Act 1987 (WA) s 32(2).

131 : Residential Tenancies Act 1987 (WA) s 32(3A).

132 : Residential Tenancies Act 1987 (WA) ss 15(2)(b), ©.

133 : Residential Tenancies Act 1987 (WA) s 15(2)(c).

134 : Hewage v Vanikiotis [2016] VCAT 1376 (22 August 2016) [27]-[29]; See also Jones v Lo [2018] VCAT 485 (28 March 2018) [26], where the tenant's compensation was limited to 12 weeks, which the Tribunal considered "a reasonable time to have progressed and ultimately resolved the failure to repair, under various provisions of the Act available to [the tenant]."

135 : Residential Tenancies Act 1987 (WA) s 38(1)(a).

136 : Residential Tenancies Act 1987 (WA) s 38(1)(c).

137 : Residential Tenancies Act 1987 (WA) s 38(2).

138 : Residential Tenancies Act 1987 (WA) s 38(1)(b).

139 : Residential Tenancies Act 1987 (WA) s 50 (Vicarious responsibility of tenant for breach by other person lawfully on premises). See 3.17 for discussion of vicarious liability.

140 : Residential Tenancies Act 1987 (WA) s 58.

141 : Residential Tenancies Act 1987 (WA) s 42(2)(c) is given effect by clause 21.3 of Form 1AA and clause 23.3 of Form 1AB.

142 : Building Regulations 2012 (WA) reg 60(2).

143 : See Building Regulations 2012 (WA) reg 60(2)(a), Building Code of Australia Part 3.7.2.2 ©.

144 : Building Regulations 2012 (WA) regs 60(2)(d), 61.

145 : Building Regulations 2012 (WA) reg 60(2)(d).

146 : Electricity Regulations 1947 (WA) reg 13, 14.

147 : Residential Tenancies Act 1987 (WA) s 43(1)(b)(i).

148 : REIWA standard Residential Tenancy Agreement Part C, cl 2.16.

149 : Long v Paetzold [2010] NSWCTTT 509.

150 : Zahle v Bowman [2017] VCAT 205 (13 February 2017) [41].

151 : Batkin v Kinna [2018] VCAT 669 (26 April 2018) [56].

152 : Foster v Gardiner [2018] VCAT 342 (6 March 2018) [49].

153 : See for example, Edwards v Izzard [2016] ACAT 91 at 42: 'Some simple pruning may be expected to prevent the garden from becoming unduly overgrown. However, a tenant is not expected to maintain a garden to a professional standard, and nor is a tenant expected to undertake, for example, tree lopping or mulching.'

154 : Explanatory Memorandum, Residential Tenancies Amendment Bill 2011 (WA) 21.

155 : Residential Tenancies Act 1987 (WA) s 42(2)(a) and (b).

156 : Residential Tenancies Act 1987 (WA) s 38(1)(a).

157 : REIWA standard Residential Tenancy Agreement Part C, cl 2.19.

158 : Residential Tenancies Act 1987 (WA) s 42(2)(c) provides that it is a term of every residential tenancy agreement that the lessor must comply with all requirements in respect of buildings, health and safety under any other written law insofar as they apply to the premises.

159 : Government of Western Australia Department of Mines, Industry Regulation and Safety, Rules for Pools and Spas (20 October 2016) Department of Mines, Industry Regulation and Safety <https://www.commerce.wa.gov.au/publications/rules-pools-and-spas>.

160 : Knowles v Anthony [2009] NSWCTTT 187 (21 April 2009).

161 : Competition and Consumer (Corded Internal Window Coverings) Safety Standard 2014; Competition and Consumer (Corded Internal Window Coverings) Safety Standard 2014; Order (Curtain Blind Cords), published in the Government Gazette of Western Australia No. 15 on 23 January 2004, and Amendment to Order (Curtain Blind Cords), published in the Government Gazette of Western Australia No. 65 on 16 April 2004.

162 : Government of Western Australia Department of Mines, Industry Regulation and Safety, Blind and curtain cord safety (9 August 2016) Department of Mines, Industry Regulation and Safety <https://www.commerce.wa.gov.au/consumer-protection/blind-and-curtain-cord-safety>.

163 : Explanatory Memorandum, Residential Tenancies Amendment Bill 2011 (WA) 21.

164 : Van Ristell v Director of Housing [2017] VCAT 480 (6 April 2017) [42].

165 : Matthews v Huppert [2017] VCAT 395 (10 March 2017) [22].

166 : Taylor v Wise [2011] SADC 6 (3 February 2011).

167 : Sulusulu v Trumble [2012] NSWCTTT 520 (14 December 2012).

168 : Residential Tenancies Act 1987 (WA) s 43(1)(a); Residential Tenancies Regulations 1989 (WA) r 12A.

169 : Residential Tenancies Act 1987 (WA) s 43.

170 : Mcalindon v Maddock [2014] VCAT 96 [16]-[17].

171 : Xiao v Duggan [2017] VCAT 718 (23 May 2017) [26].

172 : Bersten v Di Sarno [2004] NSWCTTT 609 (22 October 2004).

173 : Residential Tenancies Act 1987 (WA) s 43(1)(a); Residential Tenanices Regulations 1989 (WA) r 12A.

174 : Sanders v Hughes [2003] SARTT 8 (3 April 2003) 3.

175 : Pabon v Fang [2017] VCAT 543 (27 April 2017).

176 : If there is no such term in the RT Agreement, the lessor may have a cause of action in negligence against the tenant. An action for negligence per se could not be brought under the Residential Tenancies Act 1987 (WA) – s 15 (2)(c) only permits the payment of compensation for loss or injury caused by any breach of the residential tenancy agreement. The lessor would therefore have to bring a separate action in the small claims division of the Magistrates Court for the callout fee.

177 : Macquarie Dictionary (Macmillan, 6th ed, 2013) 282.

178 : Residential Tenancies Act 1987 (WA) s 42(2)(a).

179 : Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 431 [1405].

180 : Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (Federation Press, 6th ed, 2014) 135 [2.52.1].

181 : Interstate tribunals have allowed a nominal hourly rate for tenants undertaking cleaning, not usually a professional cleaning rate and not the tenant’s usual rate for their profession. Eg $20 per hour

182 : Residential Tenancies Act 1987 (WA) s 75(1).

183 : Residential Tenancies Act 1987 (WA) s 75(2).

184 : Residential Tenancies Act 1987 (WA) s 38(1)(a).

185 : Residential Tenancies Act 1987 (WA) s 38(2).

186 : Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 443 [1425].

187 : Residential Tenancies Act 1987 (WA) ss 62(3)-(4).

188 : Residential Tenancies Act 1987 (WA) ss 62(1)-(2); Residential Tenancies Regulations 1989 (WA) sch 4, Form 1C.

189 : Residential Tenancies Act 1987 (WA) s 71(1).

190 : Residential Tenancies Act 1987 (WA) s 15.

191 : Residential Tenancies Act 1987 (WA) s 82.

192 : Lavis v Rittson [1992] NSWRT 161 (23 November 1992); Antonas v Hansen [2000] SARTT 15 (28 March 2000); Dobrzynski v Cox [2000] SARTT 8 (6 March 2000); Weber v Fleay [2008] NTRTCmr 26 (23 January 2009); Maddox v Rudolph [2001] NSWRT 250 (22 October 2001); Siciliano v Hamlyn [2009] SARTT 8 (16 March 2009); Feldman Holdings v Van [2010] SARTT 6 (29 April 2010); Knowles v Bollore [2016] NSWCATCD 39 (11 May 2016).

193 : Residential Tenancies ACT 2010 (NSW) s 19(2)(a), s 19(3).

194 : As is required by clause 38.2 of the prescribed form residential tenancy agreement Form 1AA and clause 40.2 of Form 1AB.

195 : Director of Housing v Bennett (Residential Tenancies) [2017] VCAT 326 (9 March 2017) [23].

196 : Director of Housing v Bennett (Residential Tenancies) [2017] VCAT 326 (9 March 2017) [25].

197 : Manfield v Suman [2017] SACAT 1 (9 February 2017) [12].

198 : It might be noted that the unqualified duty to keep the premises "free from dirt, oils, grease, insects, and vermin" goes far beyond what is required by s 38(1)(a) of the Residential Tenancies Act 1987 (WA), and, in any event, would be impossible to fulfil.

199 : Pisani v Hertner [1998] NSWRT 137 (17 July 1998).

200 : Edwards v Pang & Lee (Tenancy) [2006] NSWCTTT 262 (12 May 2006).

201 : Edwards v Pang & Lee (Tenancy) [2006] NSWCTTT 262 (12 May 2006) 7, 13, 15.

202 : Edwards v Pang & Lee (Tenancy) [2006] NSWCTTT 262 (12 May 2006) 16.

203 : Wildlife Conservation Act 1950 (WA) s 14(4).

204 : Department of Biodiversity, Conservation and Attractions, Threatened animals < https://www.dpaw.wa.gov.au/plants-and-animals/threatened-species-and-communities/threatened-animals >

205 : Residential Tenancies Act 1987 (WA) s 38.

206 : Residential Tenancies Act 1987 (WA) s 42; Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (Federation Press, 6th ed, 2014) 131 [2.51.7]; Bowman v Krajcer [1998] NSWRT 190 (21 October 1998) Part 5.

207 : Parliament of Australia, Inquiry into Biotoxin-related Illnesses in Australia <https://www.aph.gov.au/Parliamentary_Business/Committees/House/Health_Aged_Care_and_Sport/BiotoxinIllnesses>.

208 : National Association of Tenants Organisations, Submission No 115 to Parliament of Australia, Inquiry into Biotoxin-related Illnesses in Australia, August 2018.

209 : For example, the current BCA – Building Code of Australia Volume 2 2016 – requires each room occupied by a person in a residential premises to be adequately ventilated, and where a sanitary compartment, laundry or bathroom cannot be adequately ventilated to the outside, the BCA requires mechanical ventilation: Australian Building Codes Board, National Construction Code Volume Two – Building Code of Australia 2016 (Cth) Part 3.8.5.2 (Ventilation requirements).

210 : The BCA was reissued annually up until 2016, when the change was made to issue it every three years: Australian Building Codes Board, NCC 2017 – Why can’t I find it? (1 February 2017) <http://www.abcb.gov.au/News/2017/01/29/NCC-2017--Why-cant-I-find-it>.

211 : [2000] HCA 56; 205 CLR 166; 176 ALR 137; 75 ALJR 1 (16 November 2000) [9]-[11], [32].

212 : S 42(2)(c) provided then (as it still does now) that it is a term of every residential tenancy agreement that the lessor must comply with all requirements in respect of buildings, health and safety under any other written law insofar as they apply to the premises.

213 : Jones v Bartlett [2000] HCA 56; 205 CLR 166; 176 ALR 137; 75 ALJR 1 (16 November 2000) [11].

214 : Residential Tenancies Act 1987 (WA) s 38.

215 : Residential Tenancies Act 1987 (WA) s 38.

216 : This was the finding of the Tribunal in Dupont v Lawrence [1997] NSWRT 213 (1 September 1997).

217 : Solomovic v Gamulin [1997] NSWRT 31 (17 February 1997).

218 : Cameron & Price v Pompour [2001] ACTRTT 4 (20 February 2001).

219 : Residential Tenancies Act 1987 (WA) s 42.

220 : Residential Tenancies Act 1987 (WA) s 38(1)(b).

221 : Dupont v Lawrence [1997] NSWRT 213 (1 September 1997).

222 : Residential Tenancies Act 1987 (WA) s 58.

223 : Department of Health, Government of Western Australia, Mould and dampness, HealthyWA <http://healthywa.wa.gov.au/Articles/J_M/Mould-and-dampness>.

224 : Residential Tenancies Act 1987 (WA) s 27C(1).

225 : Residential Tenancies Act 1987 (WA) ss 42(2)(a).

226 : Department of Health, Government of Western Australia, Mould and dampness http://healthywa.wa.gov.au/Articles/J_M/Mould-and-dampness.

227 : Cameron & Price v Pompour [2001] ACTRTT 4 (20 February 2001).

228 : Residential Tenancies Act 1987 (WA) s 60(g).

229 : Residential Tenancies Act 1987 (WA) s 69(1).

230 : Bannister v Cheung [2014] NSWCATCD 105 (19 June 2014) [21], cited in Cope & McEachern v Walker & Walker (Residential Tenancies) [2018] ACAT 65 (21 June 2018) [15].

231 : Cope v Walker (Residential Tenancies) [2018] ACAT 65 (21 June 2018) [16].

232 : Residential Tenancies Act 1997 (ACT) s 86.

233 : Residential Tenancies Act 1987 (WA) s 69.

234 : Cope v Walker (Residential Tenancies) [2018] ACAT 65 (21 June 2018) [17].

235 : Residential Tenancies Act 1987 (WA) s 43(1)(b).

236 : Residential Tenancies Act 1987 (WA) ss 42(2)(a), 43(2)(a).

237 : Ghanem v Velovski [1998] NSWRT 146 (24 July 1998).

238 : Ghanem v Velovski [1998] NSWRT 146 (24 July 1998).

239 : Kahlon v Kotis (Tenancy) [2008] NSWCTTT 966 (6 May 2008) 6, citing The Commonwealth of Australia v Amann Aviation Pty Limited (1992) 174 CLR 64 (Mason CJ and Dawson J) 31.

240 : Kahlon v Kotis (Tenancy) [2008] NSWCTTT 966 (6 May 2008) 6, citing: Fink v Fink (1946) 74 CLR 127, 143; McRae v Commonwealth Disposals Commission (1951) 84 CLR 377, 411-412; Chaplin v Hicks (1911) 2 KB 786, 792.

241 : Mazzoni v Corbino (Tenancy) [2002] NSWCTTT 139 (5 June 2002) [10]-[11].

242 : Libner & Armour v McBride (Tenancy) [2010] NSWCTTT 166 (27 April 2010) [52].

243 : Cancer Council WA, kNOw asbestos < https://www.cancerwa.asn.au/prevention/asbestos/ >

244 : Health (Asbestos) Regulations 1992 (WA) reg 4.

245 : Residential Tenancies Act 1987 (WA) s 43 (2)(b).

246 : Residential Tenancies Act 1997 (WA) s 43 (1)(b)(i).

247 : Department of Health, Government of Western Australia, Asbestos

248 : Health (Asbestos) Regulations 1992 (WA) regs 8(1)—(2).

249 : Health (Asbestos) Regulations 1992 (WA) reg 8(4).

250 : Health (Asbestos) Regulations 1992 (WA) regs 8A(1)—(2).

251 : Health (Asbestos) Regulations 1992 (WA) reg 8A(3)

252 : Health (Asbestos) Regulations 1992 (WA) reg 7(3).

253 : Health (Asbestos) Regulations 1992 (WA) reg 7(4).

254 : Residential Tenancies Act 1987 (WA) s 43.

255 : Residential Tenancies Act 1987 (WA) ss 43(1)(b),(2).

256 : The lessor may be in breach of the term implied by s 42(2)(a) or (b) of the RT Act if, for example, the hazardous asbestos is there at the start of the agreement or it becomes hazardous as a result of the lessor's failure to maintain the premises in a reasonable state of repair.

257 : The reason that the lessor may only be in breach after 'a day or so' is that there must be some allowance made for the time required find and engage a suitable repairer. That time period should be as short as possible in the circumstances, however it would vary depending on the circumstances. For example, it would likely be longer if the asbestos removalist was required during the period between Christmas and New Year.

258 : Government of Western Australia Department of Communities Housing, Asbestos Management Policy (28 July 2016) Department of Communities Housing <http://www.housing.wa.gov.au/HousingDocuments/Asbestos_Management_Policy.pdf>; Government of Western Australia Department of Communities Housing, Asbestos Management Plan (24 August 2018) <http://www.housing.wa.gov.au/HousingDocuments/Asbestos_Management_Plan.pdf>.

259 : Asbestosis & Mesothelioma Association of Australia, Mesothelioma <http://www.asbestosassociation.com.au/about-asbestos/mesothelioma/>.

260 : [2018] VCAT 1255 (8 August 2018).

261 : Smith v Anthony (Residential Tenancies) [2018] VCAT 1255 (8 August 2018) [21]-[22].

262 : Smith v Anthony (Residential Tenancies) [2018] VCAT 1255 (8 August 2018) [25].

263 : Smith v Anthony (Residential Tenancies) [2018] VCAT 1255 (8 August 2018) [28]-[32].

264 : Fawzi El-Saiedy v New South Wales Land & Housing Corporation [2011] NSWSC 820 (9 August 2011) [93].

265 : Fawzi El-Saiedy v New South Wales Land & Housing Corporation [2011] NSWSC 820 {9 August 2011) [100]-[101].

266 : Fawzi El-Saiedy v New South Wales Land & Housing Corporation [2011] NSWSC 820 (9 August 2011) [64].

267 : Fawzi El-Saiedy v New South Wales Land & Housing Corporation [2011] NSWSC 820 (9 August 2011) [66].

268 : Bethke v O’Connor (Tenancy) [2012] NSWCTTT 427 (19 October 2012) [16].

269 : Bethke v O’Connor (Tenancy) [2012] NSWCTTT 427 (19 October 2012) [16].

270 : Koller & Cartwright v Williams (Tenancy) [2009] NSWCTTT 423 (10 August 2009) 2.

271 : Koller & Cartwright v Williams (Tenancy) [2009] NSWCTTT 423 (10 August 2009) 2.

272 : Barnett v Stockdale [1998] NSWRT 42 (2 March 1998).

273 : Budd-Scott v Daniel [1902] 2 KB, 351 per Mr Justice Channell, cited in Kenny v Preen [1963] 1 QB 499.

274 : Goldsworthy Mining Ltd v Federal Commissioner of Taxation [1973] HCA 7; (1973) 128 CLR 199 (12 April 1973) Mason J at [40].

275 : See clauses 16-17 of Form 1AA and clauses 18-19 of Form 1AB for the terms implied by s44(2)(a)-(c) in the prescribed form residential tenancy agreements.

276 : Residential Tenancies Act 1987 (WA) s 44(2)(b).

277 : Residential Tenancies Act 1987 (WA) s 44(2)(c).

278 : Spathis v Hanave Investment Co Pty Ltd & Anor [2002] NSWSC 304 at [125]. The covenant in question was “And the Lessor does hereby covenant with the Lessee that he or she paying the rent hereby reserved, and performing the covenants herein before on his or her part contained, shall and may peaceably possess and enjoy the demised premises for the term hereby granted, without any interruption or disturbance from the Lessor or from any other person or persons lawfully claiming by, from or under him or her.”

279 : New Shorter Oxford Dictionary 1993.

280 : It is not just the meaning of 'quiet enjoyment' which would not necessarily be immediately apparent to most people. The words 'claiming by, through or under the lessor or having superior title to that of the lessor' also require further explanation.

281 : London Borough of Southwark and Another v. Mills and Others Baxter v. Mayor etc of the London Borough of Camden [1999] UKHL 40; [1999] 4 All ER 449; [1999] 3 WLR 939 (21st October, 1999) per Lord Millett.

282 : However most commentators agreed that it did not extend to superior title holders, at least after Jones v Lavington [1903] 1 KB 253.

283 : Harrison Ainslie & Co v Muncaster [1891] 2 QB 680; Malzy v Eichholz [1916] 2 KB 308. Notwithstanding that, under an implied term not to derogate from his grant, the lessor could be still be liable for the reasonably foreseeable acts of his other tenants in adjacent properties even where he had not authorised or encouraged the acts: Aussie Traveller P/L v Marklea P/L [1997] QCA 2 (11 February 1997).

284 : Browne v Flower [1911] 1 Ch. 219, 228

285 : Owen v Gadd [1956] 2 QB 99. Lord Evershed, whilst affirming that there must be some physical interference, rejected the proposition that "an actual physical irruption into or upon the premises" was necessary for there to be a breach of the covenant for quiet enjoyment. (at 107)

286 : London Borough of Southwark and Another v. Mills and Others Baxter v. Mayor etc of the London Borough of Camden [1999] UKHL 40; [1999] 4 All ER 449; [1999] 3 WLR 939 (21st October, 1999). Notwithstanding that, the tenants in this case failed because it was held that the covenant for quiet enjoyment did not require the landlord to install soundproofing; Oberoi v University of South Australia Students Housing Association Inc, Saint-Aubin v University of South Australia Students Housing Association Inc [2003] SARTT 25 (13 June 2003)

287 : London Borough of Southwark and Another v. Mills and Others Baxter v. Mayor etc of the London Borough of Camden [1999] UKHL 40; [1999] 4 All ER 449; [1999] 3 WLR 939 (21st October, 1999)

288 : Volley Investments Pty Ltd v Coles Myer Ltd [2005] WASCA 52 (24 March 2005), [11]. And see Celsteel Ltd v Alton House Holdings Ltd (No 2) 18 Dec 1986 [1987] 1 WLR 291, CA Fox LJ at 294. In that case, the covenant was that the tenant 'shall hold the premises “without any interruption by …any person lawfully claiming …under” [the lessor]. This language, it seems to me, raises the question: claiming what? The answer to that, I think, is: claiming a lawful right to interrupt the lessee's occupation of the demised property.'

289 : Under the normal laws of agency the lessor will be liable for the acts of his or her agent. See [section on agents]. So where an agent acting with the actual or apparent authority of the lessor interferes with the tenant's quiet enjoyment, the lessor will be in breach of the term implied by s 44(2)(a).

290 : Volley Investments Pty Ltd v Coles Myer Ltd [2005] WASCA 52 (24 March 2005), [12].

291 : These would also be caught by s 44(2)(c) of the Residential Tenancies Act 1987 (WA).

292 : This would also be caught by s 40(2) of the Residential Tenancies Act 1987 (WA), which makes it a term of every residential tenancy agreement that the tenant must have vacant possession on the day on which they are entitled to it under the agreement.

293 : Note that lessor is defined in s 3 of the Residential Tenancies Act 1987 (WA) to include personal representatives, successors or assignees.

294 : Carpenter v Parker (1857) 3 CB (NS) 206. The mortgage must pre-date the residential tenancy agreement. Note that it seems possible that, at least in some circumstances, a mortgagee may be a superior title holder, and in that case may be caught by s 44(2)(a) even where the mortgagee is not the lessor's mortgagee – see Mortgagee and Superior Title Chapter.

295 : At least it seems to be generally accepted that this has been the case since 1903, in the case of the implied covenant for quiet enjoyment. The usual express covenant typically did not refer to superior title or paramount title holders. See footnote 8 above.

296 : Note that in the case of a Torrens title mortgage the mortgagee would only be a superior title holder where the mortgagor has defaulted under the mortgage and either the mortgage pre-dates the tenancy or the tenancy was entered into without the consent of the mortgagee. In the very rare case of a general law mortgage, the general law mortgagee would be a superior title holder regardless of default unless there was a provision in the mortgage itself preventing re-entry at any time by the mortgagee.

297 : Kenny v Preen [1963] 1 QB 499 (attempted eviction by threats and harassment).

298 : Such action would also be a breach of the relevant sub-section of s 46 of the Residential Tenancies Act 1987 (WA).

299 : Volley Investments Pty Ltd v Coles Myer Ltd [2005] WASCA 52 (24 March 2005)

300 : E.g. by not clearing blocked drains and downpipes, which led to damage to the tenant's goods - Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd. [1976] 2 NSWLR 15.

301 : Sampson v Floyd [1989] 33 EG 41, cited in Dangar & Anor v Mansour & Anor (Residential Tenancies) [2016] ACAT 61 (8 June 2016) [12].

302 : London Borough of Southwark and Another v Mills and Others Baxter v. Mayor etc of the London Borough of Camden [1999] UKHL 40; [1999] 4 All ER 449; [1999] 3 WLR 939 (21st October, 1999). See footnote 13 above.

303 : Perera v Vandiyar [1953] 1 WLR 672.

304 : Lavender v Betts [1942] 2 All ER 72.

305 : Howard v Loria [1998] SARTT 39 (8 July 1998). The Tribunal found that the tenant's moving out in response to a claim for possession by the mortgagee was reasonable. The tenants were awarded compensation for electricity transfer fees, postal and telephone services, removalist costs and rubbish clearance, They were also awarded the difference in rent between their new premises (which were more expensive) for the 37 weeks which their fixed term had left to run at the time of termination.

306 : Note that s 42(2)(a)-(c) is virtually identical with legislation proposed by Victoria's Community Committee on Tenancy Law Reform in 1978. See Community Committee on Tenancy Law Reform, Reforming Victoria's Tenancy Laws, 1978, 42, cited in Bradbrook et al, footnote 12, p.449.

307 : It doesn't look like this this recommendation was ever implemented in Ontario. At least it is not found in the Landlord and Tenant Act 1970 (Ontario) or any of its successors. It is interesting that a section in almost identical terms was also subsequently proposed to be included in the Residential Tenancies Act 1980 (Vic). See Community Committee on Tenancy Law Reform, Reforming Victoria's Tenancy Laws, 1978, p. 42. In the end the section was not included in the Victorian Act.

308 : Report on Landlord and Tenant Law, Ontario Law Reform Commission, March 15 1976 p. 100.

309 : This is the effect of s 44(2)(a) of the Residential Tenancies Act 1987 (WA).

310 : This is the effect of s 44(2)(b) of the Residential Tenancies Act 1987 (WA).

311 : Report on Landlord and Tenant Law, Ontario Law Reform Commission, March 15 1976 p. 100.

312 : [2017] WASC 226

313 : Residential Tenancies Act 1987 (WA) s 75A(1)(a)

314 : Residential Tenancies Act 1987 (WA) s 75A(1)(b)

315 : Residential Tenancies Act 1987 (WA) s 75A(1)(c)

316 : [2017] WASC 226, [38]-[39] footnotes omitted.

317 : RP Balkin and JLR Davis, Law of Torts (Butterworths, 2nd ed, 1996.) 449

318 : [2002] NSWCTTT 84 (8 May 2002) [17].

319 : [2002] NSWCTTT 84 (8 May 2002) [18].

320 : [2005] SARTT 5 (14 January 2005).

321 : Residential Tenancies Act 1987 (WA) s 44(1).

322 : S 44(2) is given effect by clauses 16-17 of prescribed form 1AA and 18-19 of Form 1AB.

323 : Residential Tenancies Act 1987 (WA) s 75.

324 : Residential Tenancies Act 1987 (WA) s 46.

325 : Residential Tenancies Act 1987 (WA) ss 44, 46.

326 : Rose v Mitchell [2016] VCAT 1385 [38].

327 : Rose v Mitchell [2016] VCAT 1385 [38].

328 : Rose v Mitchell [2016] VCAT 1385 [47].

329 : See s 22(1)(b) of the Residential Tenancies Act 1987 (NSW), which was in practically identical terms to s 44(2)(b) of the Residential Tenancies Act 1987 (WA).

330 : Yau Hang Chan v Kerry Reynolds; Yau Hang Chan v Department of Housing [2009] NSWSC 792 (13 August 2009)[59]-[60], [77]. Also see Shirvington v Commonwealth of Australia (No 2) [2015] FCA 522 (28 May 2015) at [17], in relation to the NSW equivalent of s44(2) of the WA Act – 'However, I do not think that a written threat to commence proceedings which are designed to obtain possession can amount to an interference with the current possessor’s right to quiet enjoyment.'

331 : See Kenny v Preen [1963] 1 QB 499. The threats were to evict the tenant unlawfully, and the lessor made them not only by letter, but by repeatedly knocking on the tenant's door and shouting them through it at her.

332 : Bradbrook, MacCallum and Moore suggest that, if the tenant does not rectify the breach, the lessor must terminate the offending tenant’s agreement to satisfy the obligation to take all reasonable steps: Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 459 [1517].

333 : Legal Aid Western Australia, Dealing with neighbours (11 April 2018) Legal Aid Western Australia <https://www.legalaid.wa.gov.au/find-legal-answers/homes-and-neighbours/dealing-neighbours>.

334 : Note that the tenant is also entitled to "peace, comfort and privacy", under s 44(2)(b) and © of the Residential Tenancies Act 1987 (WA). "Peace, comfort and privacy" is not always exactly synonymous with "quiet enjoyment". See 3.7 "Quiet Enjoyment" for a discussion of the differences. For the sake of readability, however, in this section a reference to "quiet enjoyment" should be taken to refer to both these things.

335 : Residential Tenancies Act 1987 (WA) s 46(2).

336 : Limitation Act 2005 (WA) s 13.

337 : Residential Tenancies Act 1987 (WA) s 46(2)(a).

338 : Adrian J Bradbrook, Susan V Mac Callum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 493 [1622].

339 : Residential Tenancies Act 1987 (WA) s 46(2)(b).

340 : Residential Tenancies Act 1987 (WA) s 46(2)(b), (3), Form 1AA cl 24.2.

341 : Residential Tenancies Act 1987 (WA) s 46(2)(e).

342 : Residential Tenancies Act 1987 (WA) s 46(2)(e).

343 : Residential Tenancies Act 1987 (WA) s 46(2)(h).

344 : Adrian J Bradbrook, Susan V Mac Callum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 493 [1622].

345 : 'Reasonable grounds' for suspecting that a tenant has abandoned are defined in s 3 Residential Tenancies Act 1987 (WA), and include that the tenant has failed to pay rent due, and that at least one other defined indicator of abandonment is present.

346 : Adrian J Bradbrook, Susan V Mac Callum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 494 [1622].

347 : Adrian J Bradbrook, Susan V Mac Callum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 495 [1622].

348 : Residential Tenancies Act 1987 (WA) s 46(5).

349 : Murray v Thomson & Thomson (by Refined Real Estate) [2010] SARTT 15 (23 September 2010).

350 : Residential Tenancies Act 1987 (WA) s 46(7).

351 : Residential Tenancies Act 1987 (WA) s 46(1).

352 : Residential Tenancies Act 1987 (WA) s 46(4).

353 : In Sargent, Lorraine (Landlord) v Batiste, Melinda (Tenant), and Franklin, John (Tenant) [1995] NSWRT 187 (8 December 1995), the Tribunal held that the agent telephoning to arrange an inspection for later that day was not reasonable notice.

354 : Edmunds v Thomas [2007] NSWCTTT 290, 2

355 : Adrian J Bradbrook, Susan V Mac Callum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 494 [1622].

356 : Residential Tenancies Act 2010 (NSW) s 53(4).

357 : Fisher v Appleby & Mc Keown [2003] NSWCTTT 63 [45]-[46].

358 : Adrian J Bradbrook, Susan V Mac Callum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 494 [1622].

359 : Stojilijkovic v Prentice [2005] NSWCTTT 18, 2.

360 : Stojilijkovic v Prentice [2005] NSWCTTT 18, 6.

361 : Stojilijkovic v Prentice [2005] NSWCTTT 18, 2.

362 : [2007] NSWCTTT 290 (25 May 2007).

363 : Higgerson v Ricco (Residential Tenancies) [2014] VCAT 1214, cited in Ferris v Rizzica (Residential Tenancies) [2016] VCAT 821 [18].

364 : Residential Tenancies Act 1987 (WA) s 46(6).

365 : Residential Tenancies Act 1987 (WA) s 27.

366 : Residential Tenancies Act 1987 (WA) s 46(8).

367 : In Fothergill v Monarch Arlines Ltd [1980] UKHL 6; [1981] AC 251, the House of Lords held that the word ‘damage’ includes partial loss of contents. Note that this decision was made in the context of damage to a passenger’s suitcase on an airline carrier, in which case the passenger also lost a number of belongings from their suitcase.

368 : [2004] NSWCTTT 731 (9 December 2004), cited in Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) 147 [2.61.1].

369 : Residential Tenancies Act 1987 (WA) s 59E(1).

370 : Criminal Code 1913 s 70A(2).

371 : Residential Tenancies Act 1987 (WA) ss 62(1), (2).

372 : Residential Tenancies Act 1987 (WA) s 71(1).

373 : Real Estate Bulletin Issue45 5 July 2013 – Residential Tenancies Act 1987, Department of Commerce.

374 : Saner v Bilton (1878)7 Ch D 815. Megarry says this of the situation at common law: 4. Landlord's right to view. The tenant is under an obligation to permit the landlord to enter and view the state of repair of the premises in cases where the landlord is liable to repair them. The landlord may also have a statutory right to enter and view the premises in certain other cases. But apart from these, unless he has reserved a right of entry, he has no right to enter the premises during the term, however good his reason, (e.g. to do necessary repairs), for he has given the tenant the right of exclusive occupation as long as the tenancy endures. [footnotes omitted] R E Megarry and H W Wade, The Law of Real Property (5th Ed.), Stevens and Sons, 1984; p.703.

375 : Residential Tenancies Act 1987 (WA) s 42(2)(b).

376 : Note that on the ordinary meaning of the words of s 46(3) it is only "the purpose of inspecting the premises" under s 46(2)(b) which is limited. There is thus no limit on the number of entries which may be made "for any other purpose"! But this cannot have been the intention of the legislature, bearing in mind the comments recorded in Hansard that the intent of the provision was to protect the tenant's quiet enjoyment (see extract in text below, and accompanying footnote).

377 : The restriction on the number of s 46(2)(b) inspections that can be carried out was effected by the Residential Tenancies Amendment Bill 2011.

378 : The Act also provided, as it still does, that the owner could enter "at any reasonable hour for the purpose of collecting the rent […] where it is payable not more frequently than once every week and it is agreed that the rent be collected at the premises." – Residential Tenancies Act 1987 (WA) s 46(2)(c).

379 : Also by the Residential Tenancies Amendment Bill 2011.

380 : Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) 459 [1622].

381 : Hon Simon O'Brien (then Minister for Commerce) - Hansard [COUNCIL – 22/11/2011] p9427a-9450a, p20. See pp 14-15 for Hon Adele Farina's comments to which he was responding.

382 : Residential Tenancies Act 1987 (WA) s 38(1)(a).

383 : Residential Tenancies Act 1987 (WA) s 42(2)(b).

384 : Residential Tenancies Act 1987 (WA) s 47(1)(a).

385 : Residential Tenancies Act 1987 (WA) s 47(1)(b).

386 : Residential Tenancies Act 1987 (WA) s 47(2)(a).

387 : Ralph v Azar (1999) NSWRT 72; Raffaele v Grippa [1998] NSWRT 101, cited in Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) 160 [2.66.2].

388 : Residential Tenancies Act 1987 (WA) s 47(2)(b).

389 : Residential Tenancies Act 1987 (WA) s 47(2)(c).

390 : Residential Tenancies Act 1987 (WA) s 47(1)(b); Residential Tenancies Regulations 1989 (WA) reg 7B.

391 : Prescribed Form 1AB (RIGHT OF THE TENANT TO AFFIX AND REMOVE FIXTURES). ‘Minor improvements’ are stated to "include…temporary, non-structural works (such as the installation of curtains, blinds and picture hooks which are readily and easily removable) and do not affect the structure of the premises.’

392 : Residential Tenancies Regulations 1989 (WA) reg 5AB.

393 : Limitation Act 2005 (WA) s 13.

394 : Residential Tenancies Act 1987 (WA) s 47(3)(b).

395 : Butterworths Concise Australian Legal Dictionary (LexisNexis Butterworths, 3rd ed, 2004) 177.

396 : National Australia Bank Ltd v Blacker & Anor [2000] FCA 1458; (2000) 104 FCR 288.

397 : National Australia Bank Ltd v Blacker & Anor [2000] FCA 1458; (2000) 104 FCR 288 [10]; cited in ASIT Investments Pty Ltd v Koerner & Ors [2012] NTSC 89 (14 November 2012) [73]; TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576 [24].

398 : National Australia Bank Ltd v Blacker & Anor [2000] FCA 1458; (2000) 104 FCR 288 [15]-[16].

399 : National Australia Bank Ltd v Blacker & Anor [2000] FCA 1458; (2000) 104 FCR 288 [15]; ASIT Investments Pty Ltd v Koerner & Ors [2012] NTSC 89 (14 November 2012) [75].

400 : Harley v District Council East Torrens [1997] SAERDC 414, 9.

401 : Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) 158 [2.66.1].

402 : Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) 159 159 [2.66.1].

403 : Consumer Protection, Home safety for rental properties – Anchoring of furniture (1 December 2017), Government of Western Australia Department of Mines, Industry Regulation and Safety <https://www.commerce.wa.gov.au/consumer-protection/home-safety-rental-properties>.

404 : Consumer Protection, Home safety for rental properties – Anchoring of furniture (1 December 2017), Government of Western Australia Department of Mines, Industry Regulation and Safety <https://www.commerce.wa.gov.au/consumer-protection/home-safety-rental-properties>.

405 : Residential Tenancies Act 1987 (WA)s 48(1)(b); Residential Tenancies Regulations 1989 (WA) sch 4 form 1AA cl 9, form 1AB cl 11; Land Tax Act 2002 (WA).

406 : Land Tax Act 2002 (WA) s 5, Table 11.

407 : Department of Finance, Land Tax https://www.finance.wa.gov.au/cms/State_Revenue/Land_Tax/Land_Tax.aspx.

408 : Residential Tenancies Act 1987 (WA)s 48(1)(a); Residential Tenancies Regulations 1989 (WA) sch 4 form 1AA cl 9, form 1AB cl 11.

409 : Residential Tenancies Act 1987 (WA)s 49A(2).

410 : Residential Tenancies Act 1987 (WA)s 48.

411 : Residential Tenancies Act 1987 (WA)s 48(1)(c); Residential Tenancies Regulations 1989 (WA) sch 4 form 1AA cl 9, form 1AB cl 11.

412 : Water Corporation, Your bills & charges https://www.watercorporation.com.au/my-account/your-bill-and-charges.

413 : Residential Tenancies Act 1987 (WA) s 82.

414 : Residential Tenancies Act 1987 (WA) s 83.

415 : Limitation Act 2005 (WA) s 13.

416 : Water Corporation, Do I need to request a special meter reading? <https://www.watercorporation.com.au/home/faqs/buying-selling-and-building/do-i-need-to-request-a-special-meter-reading>.

417 : Residential Tenancies Act 1987 (WA) s 82.

418 : Water Services Act 2012 s 73(1).

419 : See below, the tenant must be provided with full details of the account including any meter readings and the charge per metered unit.

420 : Water Services Code of Conduct (Customer Service Standards) 2018 cl 37

421 : Residential Tenancies Act 1987 (WA) s 49A(1); Land Administration Act 1997 (WA) s 3(1) (definition of ‘public utility services’).

422 : Energy and Water Ombudsman Western Australia, How to make a complaint, <http://www.ombudsman.wa.gov.au/ewowa/making_complaints/how_to_make_a_complaint.htm

423 : ConcessionsWA, Hardship Utility Grant Scheme (HUGS),http://www.concessions.wa.gov.au/Concessions/Pages/HUGS-(Hardship-Utility-Grant-Scheme).aspx

424 : Water Corporation, Concessions, https://www.watercorporation.com.au/my-account/i-want-to/concessions.

425 : Residential Tenancies Act 1987 (WA) s 43.

426 : Residential Tenancies Act 1987 (WA) s 42(2)(b).

427 : For example, the lessor or agent observed a leak during a routine inspection.

428 : Water Corporation, Faults, https://www.watercorporation.com.au/faults >.

429 : Water Corporation, Leak Allowance Application Form <https://www.watercorporation.com.au/-/media/files/residential/faults/leak-allowance-form.pdf>.

430 : Kaider (by Taplin Management Pty Ltd) v Howell [2001] SARTT 32 (27 July 2001).

431 : Taranellos and McCann v Ward [2005] NSWCTTT 176 (9 March 2005).

432 : Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (Federation Press, 6th ed, 2014) [2.39.4].

433 : Residential Tenancies Act 1987 (NSW) s 16(1).

434 : Residential Tenancies Act 2010 (NSW) s 39(4). Note that s 39(4) is subject to subsection (5).

435 : Explanatory Memorandum, Consumer Protection Legislation Amendment Bill 2018 (WA) 18.

436 : Residential Tenancies Act 1987 (WA)s 49(1); Form 1AA, Part A (RIGHT OF TENANT TO ASSIGN OR SUB-LET); Form 1AB, Part A (RIGHT OF TENANT TO ASSIGN OR SUB-LET).

437 : Residential Tenancies Act 1987 (WA)s 49(2); Form 1AA, Part B cl 35; Form 1AB, Part B cl 37.

438 : Residential Tenancies Act 1987 (WA)s 49(3).

439 : Adrian J Bradbrook, ‘Residential Tenancies Law – The Second Stage of Reforms’ [1998] Sydney Law Review 17; (1998) 20 (3) Sydney Law Review 402; J W Carter and D J Harland, Contract Law in Australia (LexisNexis Butterworths, 4th ed, 2002) [1818], cited in Sazzi (SA) Pty Ltd v Chang and Ors [2013] SADC 178 (20 December 2013) – His Honour Judge Slattery states that ‘the common law of Australia is that the assignor remains liable for the debts of the assignee at the choice of the party in the position of the defendants in the matter.’

440 : Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 (12 October 1979) [36].

441 : Colvin v Bowen (1958) 75 WN (NSW) 262, 264.

442 : Colvin v. Bowen (1958) 75 WN (NSW) 262, 264, quoted in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 (12 October 1979) [34].

443 : Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 (12 October 1979) [35].

444 : Termination of social housing premises due to illegal purpose is dealt with under s 75A in addition to section 39(b) of the Residential Tenancies Act 1987 (WA). For further discussion of termination of social housing premises, see 6. Social housing

445 : Residential Tenancies Act 1987 (WA) s 62(1).

446 : Residential Tenancies Act 1987 (WA) s 62(4)(a).

447 : Residential Tenancies Act 1987 (WA) s 71(2)(b).

448 : Residential Tenancies Act 1987 (WA) s 71(3)(b)(ii).

449 : Limitation Act 2005 (WA) s 13.

450 : (1982) 7 ACLR 202 [206], cited in Youlden Enterprises Pty Ltd & Anor v Health Solutions (WA) Pty Ltd & Ors [2003] WASC 82 (2 May 2003) [19].

451 : Commissioner of the Australian Federal Policy v Zhao [2015] HCA 5 (12 February 2015) [35].

452 : [2016] NSWCATAP 154 (21 July 2016).

453 : Franken v NSW Land and Housing Corporation [2016] NSWCATAP 154 (21 July 2016)[67].

454 : Residential Tenancies Act 1987 (WA) s 3 (‘premises’).

455 : McAuliffe v CTTT [2004] NSWSC 824 (single room); NSW Land and Housing Corporation v Tua (2009) NSWCTTT 610 (front yard), cited in Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) 126-7 [2.51.2].

456 : The Director of Public Prosecutions for Western Australia v Sokmas [2018] WASC 269 [73].

457 : The Director of Public Prosecutions for Western Australia v Sokmas [2018] WASC 269 [49] (footnotes omitted).

458 : Director of Public Prosecutions (WA) v White [2010] WASCA 47; (2010) 41 WAR 249 [30], quoted in The Director of Public Prosecutions for Western Australia v Sokmas [2018] WASC 269 [50].

459 : Director of Housing v Burgess [2013] VCAT 927, cited in Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) 127 [2.51.2].

460 : [2014] NSWCATCD 27 – note that this case deals with s 91 of the Residential Tenancies Act 2010 (NSW) (intentionally or recklessly caused or permitted use of the premises for an unlawful purpose), rather than s 51 (mere use of the premises for an illegal purpose, whereby no intention or recklessness is required).

461 : Macquarie Dictionary (Macmillan, 6th ed, 2013) 1621.

462 : McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98 [37], quoted in Davis v NSW Land and Housing Corporation [2016] NSWCA 325 (25 November 2016) [38].

463 : McGuiness v NSW Land and Housing Corporation [2014] NSWCATAP 98, quoted in Davis v NSW Land and Housing Corporation [2016] NSWSC 1025 [12]. McGuiness was also cited in NSW Land and Housing Corporation v Ibrahim [2016] NSWCATCD 91 (4 November 2016) [75]. See also [2016] NSWCATCD 91 (4 November 2016) [50].

464 : Residential Tenancies Act 1987 (WA) s 39(b); Form 1AA cl 18.3; Form 1AB cl 20.3.

465 : See 3.17 (Vicarious liability) for further discussion.

466 : Harrison v Good (1871) 11 LR Eq 338 (VC) (term limited to technical meaning); Tod-Heatly v Benham (1888) 40 Ch D 80 (CA) (term likely to extend beyond technical meaning); Downie v Taylor [1975] VLR 603 (term limited to strict legal meaning).

467 : Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Ltd, 1983) [1608].

468 : Hargrave v Goldman (1963) 110 CLR 40 ; [1964] ALR 377, cited in Lexis Nexis, Encyclopaedic Australian Legal Dictionary (at 30 April 2018) Nuisance.

469 : R v Clifford [1980] 1 NSWLR 314, cited in Lexis Nexis, Encyclopaedic Australian Legal Dictionary (at 30 April 2018) Public Nuisance.

470 : Baulkham Hills Shire Council v Domachuk (1988) 66 LGRA 110, cited in Lexis Nexis, Encyclopaedic Australian Legal Dictionary (at 30 April 2018) Public Nuisance.

471 : Hargrave v Goldman (1963) 110 CLR 40 ; [1964] ALR 377, cited in Lexis Nexis, Encyclopaedic Australian Legal Dictionary (at 30 April 2018) Private Nuisance.

472 : Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Ltd, 1983) [1608].

473 : Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Ltd, 1983) [1608].

474 : Dikstein v Kanevsky [1957] VLR 216, cited in Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Ltd, 1983) [1608].

475 : Residential Tenancies Act 1987 (WA) s 62(1).

476 : Residential Tenancies Act 1987 (WA) s 62(4)(a).

477 : Residential Tenancies Act 1987 (WA) s 71(2)(b).

478 : Residential Tenancies Act 1987 (WA) s 75A(1)(b); Form 1AB (Social Housing Residential Tenancy Agreement) cl 20.3.

479 : Residential Tenancies Act 1987 (WA) s 50(1); Residential Tenancies Regulations 1989 (WA) sch 4 Form 1AA cl 19, Form 1AB cl 21.

480 : Residential Tenancies Regulations 1989 (WA) sch 4 Form 1AA cl 18.8, Form 1AB cl 20.9.

481 : Chew (by Toop & Toop Real Estate) v Hein [1998] SARTT 48

482 : Residential Tenancies Act 1987 (WA) s 50(2).

483 : Residential Tenancies Legislation Amendment (Family Violence) Bill 2018 cl 17B(5)(b).

484 : Chew v Hein [1998] SARTT 48.

485 : Hicks v Medina (Tenancy) [2012] NSWCTTT 314 (7 August 2012) [14]-[18].

486 : Ilham Idlbi v D J Wheatley & [1999] NSWRT 118 (20 July 1999) 15.

487 : Ilham Idlbi v D J Wheatley & [1999] NSWRT 118 (20 July 1999).

488 : It would be exhaustive if it read, ‘Only the pets listed below may be kept at the premises: …..’, or ‘The pets below may be kept at the premises, and no others,’ or something similar.

489 : REIWA, Residential Tenancy Agreement (July 2013) REIWA https://reiwa.com.au/uploadedfiles/public/content/information/pdf-303-tenancy-agreement-0514-final-not-valid.pdf.

490 : Residential Tenancies Act 1987 (WA) s 15(2)(a).

491 : Residential Tenancies Act 1987 (WA) s15(2)(c), and see following ‘Termination and Compensation’.

492 : Where the lessor has followed the procedure set out in the Residential Tenancies Act 1987 (WA) ss 62(1)-(3); ss 71(1),(2)(a)and(b), (3)(b)(ii). See following ‘Termination and Compensation’.

493 : Residential Tenancies Regulations 1989 (WA) sch 4 Form 1AA Part A (Strata By-Laws).

494 : Strata Titles Act 1985 (WA) s 42(6). The RT Agreement itself may also contain a term that the tenant agrees to comply with the strata by-laws (e.g. REIWA Form 303C Part C Clause 2.12.). The prescribed form RT Agreement Form 1AA has a section to be filled out to indicate whether or not strata by-laws are ‘applicable to the premises’. Whether or not this section is completed, and regardless of what it says, the tenant will still be bound by any strata by-laws, because of s 42(6) Strata Titles Act 1985 (WA).

495 : The model by-laws are in effect unless and until they are changed by the strata company: Strata Titles Act 1985 (WA) s 42(2).

496 : Strata Titles Act 1985 (WA) s 42(2).

497 : Strata Titles Act 1985 (WA) s 42(15).

498 : If the tenancy agreement does not prohibit pets but the by-laws do, the lessor will not be able to enforce the pet prohibition unless there is a term which states that the tenant agrees to be bound by the by-laws. If there is no such term (e.g. the Form 1AA prescribed form tenancy agreement) then the tenant will be in breach of the by-laws, but not the RT Agreement. If there is such a term, then the tenant will be in breach of that term under the RT Agreement and the by-laws. In that case, if the RT Agreement is silent as to whether or not the tenant can have a pet, then there is no conflict between the RT Agreement and the by-laws. However, if the RT Agreement explicitly allows the tenant to have a pet, but the by-laws prohibit it, and the tenant has agreed to be bound by the by-laws, then the parties have simultaneously agreed that the tenant can have a pet, and cannot have a pet.

499 : There may be the possibility of terminating for hardship under s 74 of the Residential Tenancies Act 1987 (WA) – see TPM [4.2.4], or the parties could agree to terminate by agreement in writing – see TPM [4.1.4]. If, at the time it was signed, both the tenancy agreement and the by-laws permitted pets, but the by-laws were changed during the course of the tenancy to prohibit pets, the same options would be open.

500 : Strata Titles Act 1985 (WA) s 92.

501 : Strata Titles Act 1985 (WA) s 92.

502 : Strata Titles Act 1985 (WA) s 91.

503 : Hagh v Kong [2014] NSWCATAP 47 (11 September 2014).

504 : Hagh v Kong [2014] NSWCATAP 47 (11 September 2014) [26]-[27].

505 : Cogan and Weymouth [2005] WASAT 242 (9 September 2005).

506 : The Owners of Belltower Strata Plan – 33581 and Allen & Anor [2006] WASAT 7 (13 January 2006).

507 : Residential Tenancies Act 1987 (WA) s 29(1)(b)(ii).

508 : Residential Tenancies Regulations 1989 (WA) r 10A. However, the pet bond may exceed $260 if the weekly rent exceeds $1200: Residential Tenancies Act 1987 (WA) s 29(2); Residential Tenancies Regulations 1989 (WA) r 11.

509 : Residential Tenancies Act 1987 (WA) s 29(1)(b)(ii); Residential Tenancies Regulations 1989 (WA) sch 4 Form 1AA, Part A (SECURITY BOND).

510 : See, for example, Vanston v Ciavarella [2017] VCAT 2086 (13 December 2017) [14]; Whiteaker v Commissioner of Tenancies & Tyron & Gooding [2002] NTMC 17 (31 May 2002) at [27] – [29]; Luongo (by Aston Hall Estates) v Hooton [1999] SARTT 13 (17 February 1999).

511 : See, for example, Whiteaker v Commissioner of Tenancies & Tyron & Gooding [2002] NTMC 17 (31 May 2002); Luongo v Hooton [1999] SARTT 13 (17 February 1999); Culbert v Strike [1998] NSWRT 331 (9 November 1998) at [8]; Litchfield Realty v Miles [2008] NTRTCmr 7 (8 April 2008) but cf. Ariel v Lane [2011] NSWCTTT 509 (4 November 2011); Bader v Allison [2015] NTRTCmr 26 (22 September 2015); Stewart v Ozier [2010] NSWCTTT 317 (7 July 2010).

512 : Residential Tenancies Act 1987 (WA) s 29(1A).

513 : Residential Tenancies Act 1987 (WA) s 29(4)(b).

514 : See Semovic v Rex [2000] SARTT 21 (18 April 2000).

515 : Residential Tenancies Act 1987 (WA) s 38(1)(b).

516 : Residential Tenancies Act 1987 (WA) s 15(2)(c).

517 : Residential Tenancies Act 1987 (WA) s 62(3).

518 : Residential Tenancies Act 1987 (WA) ss 62(1), (2); RT Regulations Schedule 4, Form 1C.

519 : Residential Tenancies Act 1987 (WA) s 71(1).

520 : Residential Tenancies Act 1987 (WA) s 71(2)(b); Schaefer v Department of Housing [No 2] [2012] WASCA 229 (14 November 2012) [31]; Roads and Traffic Authority v Joy Swain and Terence Gold and Residential Tenancies Tribunal of New South Wales [1997] NSWSC 181 (7 May 1997).

521 : Residential Tenancies Act 1987 (WA) s 71(3)(b)(ii).

522 : Stewart v Yarrawarra Aboriginal Corporation [2015] NSWCATAP 4 (14 January 2015) [105].

523 : Residential Tenancies Act 1987 (WA) s 20 (l): The court hearing a RT application may adopt, as it considers proper, any findings, decision or judgment of the court or any other court that may be relevant.

524 : Residential Tenancies Act 1987 (WA) Schedule 1, cl 8(6): the tenant cannot apply for the bond (including the pet bond) before termination;

525 : Residential Tenancies Act 1987 (WA) Schedule 1, cl 8(2).

526 : Residential Tenancies Act 1987 (WA) s 42(2)(a). See 3.2 (Repairs and Maintenance) for further discussion of Residential Tenancies Act 1987 (WA) s 42(2)(a).

527 : Residential Tenancies Regulations 1989 (WA) sch 4 Form 1AA cl 38.2.

528 : Residential Tenancies Act 1987 (WA) s 3 (definition of ‘premises’) states that ‘premises includes…(b) land and appurtenances appurtenant to premises’.

529 : REIWA, Residential Tenancy Agreement (July 2013) REIWA https://reiwa.com.au/uploadedfiles/public/content/information/pdf-303-tenancy-agreement-0514-final-not-valid.pdf.

530 : Long v Paetzold [2010] NSWCTTT 509.

531 : Zahle v Bowman (Residential Tenancies) [2017] VCAT 205 (13 February 2017) [41]; Batkin v Kinna (Residential Tenancies) [2018] VCAT 669 (26 April 2018) [56]; Foster v Gardiner (Residential Tenancies) [2018] VCAT 342 (6 March 2018) [49].

532 : REIWA, Residential Tenancy Agreement (July 2013) REIWA https://reiwa.com.au/uploadedfiles/public/content/information/pdf-303-tenancy-agreement-0514-final-not-valid.pdf.

533 : Residential Tenancies Act 1987 (WA) s 82; Residential Tenancies Regulations 1989 (WA) sch 4 Form 1AA, Part B cl 36.

534 : Residential Tenancies Act 1987 (WA) s 82(1)(a).

535 : Residential Tenancies Act 1987 (WA) s 82(1)(b).

536 : Residential Tenancies Act 1987 (WA) s 82(2).

537 : Residential Tenancies Act 1987 (WA) s 42(2)(a).

538 : Penzar Pty Ltd v Commissioner for Consumer Protection [2012] WASC 435 (16 November 2012).

539 : Penzar Pty Ltd v Commissioner for Consumer Protection [2012] WASC 435 (16 November 2012) [13].

540 : Penzar Pty Ltd v Commissioner for Consumer Protection [2012] WASC 435 (16 November 2012) [25], citing Re Question of Law Reserved (No 2 of 1998) (1998) 70 SASR 502; (1998) 101 A Crim R 317, 508 (Doyle CJ).

541 : Penzar Pty Ltd v Commissioner for Consumer Protection [2012] WASC 435 (16 November 2012) [33].

542 : Penzar Pty Ltd v Commissioner for Consumer Protection [2012] WASC 435 (16 November 2012) [42].

543 : Penzar Pty Ltd v Commissioner for Consumer Protection [2012] WASC 435 (16 November 2012) [42].

544 : Residential Tenancies Act 1987 (WA) s 6(a); Residential Tenancies Regulations 1989 (WA) reg 7F.

545 : The Residential Tenancies Amendment Act 2011 (WA) was assented to on 14 December 2011: Western Australia, Government Gazette: Royal Assent to Bills, No 248, 23 December 2011, 5460.

546 : Western Australia, Government Gazette: Residential Tenancies Amendment Act 2011 Proclamations, No 71, 3 May 2013, 1735.

547 : Residential Tenancies Act 1987 (WA) s 91.

548 : Residential Tenancies Act 1987 (WA) s 57.

549 : Residential Tenancies Act 1987 (WA) s 57(1).

550 : Residential Tenancies Act 1987 (WA) s 57(2A).

551 : Residential Tenancies Act 1987 (WA) s 82(1)(a)

552 : Residential Tenancies Act 1987 (WA) s 57.

553 : Residential Tenancies Act 1987 (WA) s 57(2).

554 : Residential Tenancies Act 1987 (WA) s 27(1).


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