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.
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.
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.
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.
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.
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.
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
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