What is a debt, and what happens if my real estate agent says I have one?

A debt is an amount of money that you owe to someone else. Debts that you may incur as a result of living in a rental property can include:

  • Rent arrears
  • Electricity, gas, telephone and internet bills
  • Water bills
  • bills for repairs to damage you did to the property

There are many reasons for being unable to meet debt repayments: job loss, illness, relationship issues, addictions, business failures and over-commitment are just some of the reasons. Not being able to pay a debt is not the same thing as not wanting to pay it. Many people in difficult circumstances still want to pay but just don’t have the money.

Before paying any debt, you should be sure that you are legally responsible for it.

If you are legally responsible for payment of the amount that you are being asked to pay, then you have an obligation to pay.

If you are not legally responsible for payment of a debt you should not be paying it.

If you have any doubts about whether you are legally responsible for any debt, always seek advice.

Certain types of debts are treated differently…

Rent arrears

See our factsheet on rent arrears as different rules apply.

Utilities debts

There are rules about whether or not you have to pay for utilities bills. If you are not sure if you have to pay utilities bills, see our FAQ here.

If you do have to pay for utilities but are having difficulties paying those bills please see here for information on the assistance that is available.

Some real estate agents send tenants invoices for water bills that are in the landlord’s name. If this happens, and you know you are responsible to pay for water consumption then you are entitled to see a copy of the actual bill from the utilities provider. If you disagree with the amount shown on the bill you can call the Tenants Advice Service for further information and advice. Also see our FAQ on utilities bills.

If you think your bill may have been caused by a problem with an appliance and/or the landlord’s failure to repair it within the required time-frame (e.g. water heater, cooling system) at your property then see our factsheet on repairs here – you may be able to argue that the landlord should make a contribution to the bills.

Invoices from real estate agents for repairs or break lase fees

Tenants have reported to us that real estate agents may sometimes send tenants an invoice for repair work done on the property, or an invoice for a so called “break lease fee”.

Break lease fees

If you have received an invoice for a break lease fee, you should see our FAQ on break lease fees here to see if you are required to pay the full amount.

You should also be aware that under the Australian Consumer Law, it is an offence to assert a right to payment for unsolicited goods or services.  Examples of “asserting a right to payment” include issuing an invoice. An invoice should only be issued where there is a right to payment for goods or services, and should be issued to the person who has solicited those goods or services. As the services that are solicited (asked for) in a situation where you end a fixed term tenancy early are services the landlord is asking the real estate agent to deliver, they should not send you an invoice for those services. However, in these situations, you may owe compensation to the landlord, so see our factsheet on ending a tenancy and breaking a lease to be clear on what you might have to pay for.

Repairs

Sometimes a real estate agent may ask you to pay for repairs. If you have received an invoice for repairs, but you have not agreed to pay for the repair work, or you have had urgent repairs done in accordance with the procedure set out in the tenancy agreement [clauses 61 and 62] then you should not be responsible for paying an invoice for costs related to those repairs. In general a landlord is responsible for any costs associated with repairs to the property. If you are in doubt, seek advice.

If you think you are not responsible for paying an invoice, you can call the Tenants Advice Service for further information and advice.

If you have any other debts that are not covered in the information above you can contact Care Inc.’s Financial Counselling service on 6257 1788 or visit their website here.

Reviewed: 3/12/13

How do I protect myself from accommodation scams?

When searching for accommodation, use websites that come recommended by your university, workplace or trusted friends and acquaintances.

Be wary of websites that do not seem legitimate or properties that sound too good to be true. Be extra careful of properties that:  

  • Are advertised significantly cheaper than other similar properties in the same area.
  • Cannot be viewed before signing a contract or viewing is continually delayed
  • Require an upfront fee to secure the property

For more information on accommodation scams, see the Australian Government ScamWatch website here.

If you find somewhere you like, you should

  • always view the property before entering into an agreement, and
  • ensure any agreement is in writing.

If you cannot view the property, see if you can find a friend or family member to go on your behalf and take some photos if possible. You may wish to do an internet search on the name of the person advertising the property.

Don’t hand over any money or personal information (e.g. passports or identification) before you are sure of the situation and when you do make sure you get a receipt or make a bank transfer.

If you are responding to a shared accommodation advert you should meet the housemate/s personally and confirm that the landlord has given permission for you to be living there. 

Reviewed: 3/12/13

Help! There has been a natural disaster and I don’t know what to do!

So what happens when all or part of your home you rent is damaged due to a natural disaster? The damage might be:

  • as extreme as a fire destroying the entire house and all your possessions, or
  • a large overhanging tree falling onto the house due to a large storm and destroying the living room, or
  • a local flood that leaves mud and debris all over the carpets and on the walls.

It’s important to remember you have rights as a tenant in these situations. You may also have to make some big decisions, about whether you want to stay or go, whether you can move back into your rental property or if you would prefer to find somewhere new.

If your property is unsafe

You should not enter the property if you think it is unsafe. Call 000 in case of emergency. You can also call the State Emergency Service (SES) on 132 500.

Emergency Accommodation

If you feel you are at risk of becoming homeless as a result of a natural disaster, you can contact Firstpoint on 1800 176 468, Monday to Friday 9am to 7pm, Saturday 10am to 1pm

You can also contact the ACT Emergency Services Agency on 6205 0400 or find out information about emergency evacuation centres through Canberra Connect Call Centre on 13 22 81.

Further information about preparing your property for natural disasters can be found on the ACT Emergency Services Agency website under “Community Information”:

If you want to leave because your house is uninhabitable

If you can’t live in your house anymore because it has been so badly damaged you may be able to terminate the tenancy on the grounds that the property is uninhabitable.

The term “uninhabitable” refers to whether or not it is safe for you to live at the property. If there is the possibility that you could be injured if you continue to live at the property it may be uninhabitable. Depending on the circumstances the term uninhabitable might extend to considering whether you can live in reasonable comfort. Examples of this might include a property without a useable bathroom.

If you want to leave because your property is uninhabitable you should get an agreement in writing with your landlord, that the property is uninhabitable. You can give 2 days notice that you are moving out under clauses 86 and 87 of the SRTT.

If your landlord does not agree you can make an urgent application to the ACT Civil and Administrative Tribunal (ACAT) for termination of your tenancy.

Remember to collect or record evidence of the condition of the property, i.e. photos, video, written reports.

What about the rent?

While your property is uninhabitable you don’t have to pay rent [cl 87]. The rent stops from the time you cannot live there anymore. You should negotiate this with your landlord/agent before you stop paying rent and get any agreement in writing.

If you want to stay

Even if your property is uninhabitable for a period of time you may not want to leave permanently. If you want to return to the property when it is fit for habitation again you can do so. Rent will be payable from the time you can live at the property again.

If only part of your property is damaged you might want to stay there, and you can negotiate with the landlord to have your rent reduced. You should write to your landlord/agent  and inform them that;

  • you intend to stay in the property
  • there is damage to the premises and that repairs are needed, including any temporary measures which will allow you to stay there.

Ensure you take photos or videos of all the damage and the condition of the property generally.

What about the rent?

You can try and negotiate a reduced rent with your landlord/agent if you wish to stay in your home even while it is damaged.  If you cannot negotiate an agreement with your landlord/agent, you can apply to ACAT for a reduction in rent under section 71 of the RTA.

See also: “Rent increases & Reductions” and “Tribunal (ACAT) General Information

Watch out: In 2006 when the Canberra Bushfires occurred the A.C.T. Tenants’ Union had several tenants report to them that their landlords were increasing their rent using the excuse that the bushfires had created increased demand for rental properties in the region.

Your landlord cannot increase your rent if:

  • you are in a fixed term tenancy for the term of that tenancy, or
  • in a period of less than 12 months from beginning of tenancy, or
  • since the last increase unless the amount of the increase or a method for working it out is included in your tenancy agreement.  Cl 34, s 64.

The landlord must give you 8 weeks notice of any proposed increase, including details of the amount of the increase and the date when it will apply. There is a formula in the legislation to work out what an excessive increase in rent is as well as factors ACAT must consider in reviewing a rent increase.

If the Landlord/Agent want you to leave

The first thing to be aware of is that if your landlord/agent gives you a Notice to Vacate and you don’t agree with it, you can challenge it at the ACAT. A Notice to Vacate is not an eviction notice.

Only ACAT can order an eviction, and only the police can carry out the eviction.  You will be notified if the landlord does make an application for you to be evicted, and have the opportunity to respond.

If you are in a fixed term agreement your landlord cannot give you a Notice to Vacate without valid grounds or without giving the required notice. In a fixed term the landlord/agent must give you:

  • 26 weeks notice if they have no reason for asking you to leave (no-cause termination) [clause 94] BUT only if the 26 weeks finishes AFTER the end of your fixed term
  • 1 week notice if the property is uninhabitable – and you don’t have to pay rent from that time onwards. [clauses 86 and 87]

If you are on a periodic tenancy, the landlord/agent must give you:

  • 4 weeks notice if the landlord (or a family member) genuinely intend to live in the property [clause 96(1)(a)-(c)],
  • 8 weeks if they landlord genuinely intends to sell the property [clause 96(1)(d)]
  • 12 weeks notice if they genuinely intend to reconstruct, renovate or make major repairs to the property. [clause 96(1)(d)]

The landlord can also ask the ACAT to terminate your tenancy under section 50 of the RTA where the landlord can show they are facing significant hardship. This could happen, for example, if the landlord needs to live in the property urgently because their own house has been damaged.  In general, ACAT must give you 8 weeks notice of the termination.

Repairs

The landlord/agent has the responsibility to maintain the premises in a reasonable state of repair, having regard to the condition it was in at the start of your tenancy [clause 55].

Notify your landlord/agent as soon as you notice the need for repairs due to a natural disaster.

The landlord/agent must make non-urgent repairs within 4 weeks of being notified and urgent repairs as soon as necessary depending on what the problem is [clause 59]. Urgent repairs may be necessary because of:

  • flooding or serious flood damage,
  • serious storm or fire damage,
  • failure of gas, electricity or water supply to the premises or
  • faults that make your house unsafe, insecure, or likely to cause damage to a person or property [cl 60].  

Examples of this include dangerous overhanging trees (due to storm), the utilities have been cut off, the property becomes structurally unsound.

If your landlord does not complete repairs within the required timeframe you may make an application to ACAT.  ACAT can order your landlord to:

  • do the repairs [s 83(b)]
  • reduce your rent for the period when repairs weren’t carried out [s 71]
  • reimburse you for the cost of any repairs you make [s 83 (c)]
  • pay you compensation for loss you suffered due the landlords failure to do repairs [s 83 (d)]. 

If it’s a serious/ persistent breach which justifies termination of your tenancy, ACAT may order termination of your tenancy though you should be aware that the threshold for terminations is very high [s 43].

If the landlord cannot be contacted, or fails to do the urgent repairs within a reasonable time, you may arrange for repairs to a maximum value of up to 5% of the rent of the property over a year (cl 61). For example, if you pay $350 per week rent, your annual rent is $18,263. You could authorise urgent repairs costing up to $913. Note that this is not meant to cover significant repairs.

This procedure is set out in cl 62:

  • the repairs must be made by the qualified tradesperson nominated by the landlord in your tenancy agreement;
  • if a tradesperson hasn’t been nominated, can’t be contacted or is unavailable, the repairs must be performed by a qualified tradesperson of your choosing;
  • where the repairs are arranged in accordance with these procedures, the landlord is liable for the cost of repairs and may be billed directly;
  • where you have not acted in strict compliance with these procedures you are liable for the cost of the repairs you have arranged.

However this is a risky option, it is better to make an urgent application to ACAT.

Cleaning

Under your tenancy agreement you have a responsibility to take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to the condition of the property when you started to live there, and the normal manner that people use properties as a home.

However, cleaning required due to natural disasters such as flooding or fires may be outside the bounds of what is reasonable for you to do. If you think this is the case, your landlord may be obliged to have it completed as part of their obligation to maintain the premises in a reasonable state of repair.  An example could be carpet cleaning or fumigation.

If you end your tenancy and move out as a result of the natural disaster you should clean those areas you can access and which have not been affected by the natural disaster, leaving them in substantially the same state as when you moved in (fair wear and tear excepted) as required by clause 64.

Bond

If you leave the property as a result of a natural disaster you will need to arrange for the return of your bond. See “Bond” fact sheet available here for more information.

Insurance

If you have contents insurance you may be able to make a claim for damage to your goods as a result of a natural disaster. You should check with your insurer regarding this as many insurers currently do not include insurance for flooding caused by natural disasters.

ACT Emergency Legal Help

For more information on legal help when there has been a natural disaster see ACTLAF

 

Reviewed: 3/12/13

Having trouble viewing the website?

Some people have been experiencing difficulties in viewing the Tenants’ Union ACT website using Internet Explorer.  We apologise for any inconvenience this may have caused. We are currently working on fixing the problem.

In the meantime, if you are having trouble viewing our website using Internet Explorer, try turning on Compatibility View.  Alternatively, all of the factsheets in the Renting Advice section of our website are available as PDFs, which you can find at the bottom of the relevant factsheet page.

Complaints – can I make a complaint about the Tribunal?

Yes.

ACAT’s complaints policy can be found at:
http://www.acat.act.gov.au/

You can make a complaint in person, by telephone, fax, post or email.

ACAT contact details:
Phone: (02) 6207 1740
Fax: (02) 6205 4855
Email: tribunal@act.gov.au
Postal address: GPO Box 370, Canberra City, 2601
Location: ‘ACT Health Building’ Level 4, 1 Moore Street, City

ACAT is not required to accept complaints about the outcomes of proceedings under their complaints policy.  However, if you want to complain about the conduct of a Tribunal member, you can write to Ms Linda Crebbin, General President ACAT.

Send us a copy of your complaint via the web form on the Contact Us page if you would be happy for us to use your complaint in discussions or correspondence with ACAT.

Reviewed: 3/12/13

Can the landlord or agent change the locks or call the police and have me evicted?

The landlord or agent cannot lock you out of your home or have the police remove you from your home.

Even in an emergency if the locks are changed the other party must be provided with a copy as soon as possible (clause 54(5) of the Standard Residential Tenancy Terms).  If you have been locked out you may be entitled to compensation.

If the police are called to your home you can advise that you have a tenancy agreement and if the landlord wants you out of the premises they must make an application to the ACT Civil and Administrative Tribunal (ACAT).

For more details see Can my landlord/agent evict me? or our factsheet, Eviction in the ACT.

Reviewed 3/12/13

Can my landlord/agent evict me?

The landlord or agent can serve a notice to vacate however,only the ACT Civil and Administrative Tribunal (ACAT) can order an eviction, and only the police can carry out the eviction.

An important protection given by the RTA is the prohibition in section 37 against a landlord attempting to recover possession in any other manner than that provided by the Act.

All tenancies in the ACT are regulated by the Residential Tenancies Act 1997 (RTA).

The terms of your tenancy agreement are set out in the RTA and Standard Lease, and are known as the Standard Tenancy Terms (STT). The landlord, or their agent, may only terminate a tenancy agreement in accordance with Part 4 of the RTA, and the STT.

The general effect of the legislation is to ensure that a tenant can only be evicted in the ACT if:

  • They have breached the terms of their tenancy agreement; or
  • The landlord has other lawful grounds for termination or reason for needing to recover the premises.

A landlord cannot terminate the tenancy just because the agreed fixed term has expired. When a fixed term expires it does not end the tenancy—it just means that the tenancy no longer has a set term, this is called a periodic tenancy.  For more information on this check our FAQ

For details about the eviction process go to our factsheet – Eviction in the ACT

You can also see – Can the landlord or agent change the locks or call the police and have me evicted?

 Reviewed 3/12/13

Can I end my tenancy on a weekend, public holiday, or over a holiday period?

Some real estate agents tell tenants that they cannot terminate their tenancy agreement on Saturdays or Sundays, or over holiday periods.  There is nothing in the Standard Tenancy Terms that restrict the days on which an agreement can be terminated.

You must ensure that you have given appropriate notice in writing required by the following clauses of the tenancy agreement:

88   (1)   The tenant may give notice to terminate a periodic tenancy by giving the lessor not less than 3 weeks notice of the date when the tenant intends to vacate the premises.

(2)   The tenancy ends on the date specified by the tenant.

89   (1)   The tenant may give notice to terminate a fixed term tenancy at or after the end of the tenancy by giving 3 weeks notice of the date when the tenant intends to vacate the premises.

(2)   The tenancy ends on the date specified by the tenant.

It is important to note that your notice counts from the day of service (business day if it is a business) if you email or hand deliver it, or the day after you posted it to allow for a day to deliver it.

The purpose of the notice is to allow your landlord or agent time to organise advertising and for a date for the final inspection. You cannot be forced to stay in the tenancy extra days, it is up to the landlord or agent to fit in time for an inspection on, or before, the day you terminate it.  There is no provision for them to have an inspection after the tenancy has terminated.

Notice:

84   (1)  If the tenant serves a notice of intention to vacate and vacates the premises in accordance with the notice, the tenancy terminates on the date of vacating the premises.

(2) On receiving a notice of intention to vacate, the lessor may—

(a)   accept the notice and accept that the tenancy ends on the date nominated in the notice; or

(b)   apply to the tribunal for confirmation of the tenancy agreement, an order for compensation or both.

85    The notice of intention to vacate must be in the same form and contain the same information as the notice to vacate from the lessor except the notice must contain the statement that the tenant intends to vacate the premises on a certain date and the tenancy terminates on that date.

If they refuse to accept your keys,  write and advise them that you have no alternative but to post them registered mail.

Once the tenancy has terminated you can lodge your refund of bond form with the Office of Rental Bonds.

Also see Additional Final Inspections – are they valid?

 

Reviewed: 3/12/13

Bushfires and my rental property

In a bush city like Canberra even those living in the suburbs need to be prepared for bushfires. 

The ACT Emergency Services Agency have launched a new Bushfire Ready website which gives Canberra households tips on preparing for a bushfire. These tips include how to create a Bushfire Survival Plan, and how to make Bushfire Ready changes to your home. Those Bushfire Ready changes are shown in bold italic font in this FAQ. You can also find out about face to face community information sessions, download a range of helpful apps and look up a map of the ACT to find out whether you live in a Bushfire Prone Area.

There are lots of practical things that can be done to prepare homes and properties for bushfires. This FAQ aims to provide some general guidance on the Bushfire Ready activities that you are responsible for as a tenant and those activities that you should speak to your landlord about.

Getting Bushfire Ready: What are you are likely to be responsible for as a tenant?

The Standard Residential Tenancy Terms (SRTT) require tenants to take reasonable care of premises, and keep them reasonably clean (cl 63(c)). Also, tenants must not negligently permit damage to premises (cl 63(a)).

Tenants are expected to do some gardening to take care of plants and keep the garden clean. This includes keeping grass short, which is one way to prepare your home for a bushfire. It also includes keeping garden mulch away from the house if it is leaf litter from garden plants and surrounding trees. However, it doesn’t include any removal of garden mulch that is part of the landscaping of the property as this may be an alteration to the premises and require the landlord’s consent (cl 67).

As tenants must not negligently permit fire and other damage to their rented property, tenants are also expected to remove and store any flammable items (such as cardboard boxes and cans of petrol) away from the house, particularly if the premises are located in a Bushfire Prone Area.

You are also likely to be responsible for cleaning leaves from the roof, gutters and downpipes if you are reasonably able to do so. For more information see our FAQ “Gutters – do I have to clean them?”.

Additionally, you are obliged to notify your landlord of any repairs or maintenance that are required to your rented premises. This excludes repairs that a tenant would reasonably be expected to do, for example, changing a light globe or a fuse (cl 55(2) and 55(3)). There are 2 types of repairs that the ACT Emergency Services Agency recommends Canberrans undertake to prepare their homes for bushfires:

·          replace any damaged or missing roof tiles

·          seal any gaps in external walls and cladding more than 2mm in size.

These are repairs that are likely to be the landlord’s responsibility because they should generally be done by qualified professionals. The principle here is that tenants shouldn’t have to hire professionals to meet their tenancy obligations.  

The ACT Emergency Services Agency also recommends cutting back trees that are overhanging homes and disposing of the cuttings appropriately.  If:

       cutting back the overhanging trees requires a qualified professional; and/or

       the trees were overhanging the property when the tenant moved in,

it will likely be the landlord’s responsibility to rectify this situation.

You are obliged to tell your landlord if any of the above repairs or maintenance are required. This means you should keep an eye out for trees or large shrubs growing so that they overhang the home, check the condition of external walls and cladding for any visible gaps and check the roof for any missing tiles. For more information about repairs see our Tenancy Factsheet – “Repairs”.

If you live in a property with a body corporate and the trees or large shrubs overhanging the home are on common property, you should still report the need for them to be cut back to your real estate agent or your landlord. Clause 58 of the SRTT states that where the tenant’s use and enjoyment of their rented premises requires repairs to the common property, the landlord has an obligation to take all necessary steps to ensure the body corporate makes repairs as quickly as possible.

Extra things you can do to ensure that your home is prepared for a bushfire are:

·          have a non-combustible door mat

·          make sure the pressure relief valves on any LPG cylinders (such as barbeque gas bottles) around your home face outwards so that flames are not directed toward the house

·          ensure you have a hose which is long enough to reach every part of the home

·          ensure that all hose nozzles and/or connections are metal not plastic

·          obtain contents insurance to protect your belongings, particularly if you live in a Bushfire Prone Area (see also our FAQ – “Contents Insurance – do I need it for my belongings?”).

Getting Bushfire Ready: What should you speak to your landlord about?

Landlords must maintain rental premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement (cl 55(2)).

If you notify your landlord of a fault with, or damage to, your rented premises that causes it to be unsafe or likely to cause injury to either people or property, rectifying the fault or damage will be considered an urgent repair and must be carried out by your landlord as soon as practicable (clauses 59 and 60). You are likely to have a strong argument that a Bushfire Ready repair is urgent if:

       you become aware of the need for the repair and promptly notify the landlord of it during bushfire season (which runs from 1 October to 31 March unless weather conditions warrant an extension); and

       the property is located in a Bushfire Prone Area.

If a repair is not urgent, it must be carried out by the landlord within 4 weeks of the landlord being notified about the repair, unless the landlord and tenant agree otherwise (cl 57).

Once you notify your landlord of the need for repair, your landlord is required to:

·          replace any damaged or missing roof tiles

·          seal any gaps in external walls and cladding more than 2mm in size

·          cut back any trees or large shrubs overhanging the home and dispose of cuttings appropriately

within the above time frames.

In addition, your landlord may be responsible for cleaning leaves from the roof, gutters and downpipes. This would likely be the case if you live in a double story house or your personal characteristics (such as age, disability or injury) prevent you from being able to undertake such work (see also our FAQ “Gutters – do I have to clean them?”).

Things you can negotiate with your landlord

Some other tips for getting your house Bushfire Ready involve making alterations to the premises or adding fixtures and fittings. The ACT Emergency Services Agency suggests that people:

·          plant trees and shrubs that are less likely to ignite due to their low oil content

·          install metal flywire or solid screens to outside windows and doors

·          fit quality metal leaf guards

·          enclose underfloor areas

·          consider erecting steel fences which are the most effective at withstanding the intense heat generated by a bush fire.

Under the SRTT, tenants must not make any additions or alterations, including adding fixtures or fittings, to the premises without the written consent of the landlord (cl 67, cl 68(1)). However, the landlord must not unreasonably withhold his or her consent (cl 68(2)).

If a landlord consents to a tenant adding any fixtures or fittings to the rented premises, the tenant must make good any damage to the premises on removal of them (cl 69(3)). Alternatively, any fixtures or fittings that are added and not removed by the tenant before the tenant leaves the premises becomes the landlord’s property (cl 68(4)).

As some of the Bushfire Ready property improvements will be quite expensive to implement, and will better protect the landlord’s property against bushfires, you may want to try to persuade your landlord to make these improvements. It might help you to direct the landlord to the resources on the ACT Bushfire ready website during that discussion.