As a tenant you have a right to privacy and the enjoyment of your home. Your landlord has certain rights of access, but it’s definitely not “open house”.
Privacy and enjoyment
All tenants have a legal right to privacy and the quiet enjoyment of their home. You are entitled to refuse access to the premises to people, including your landlord and real estate agent, except where their access is authorised by your lease, or otherwise required by law. In fact they may be trespassers if they enter without your permission!
All tenancy disputes can be resolved in the ACT Civil and Administrative Tribunal (ACAT). If you have a problem regarding access or privacy that can’t be resolved by negotiation, you or the landlord can apply to have the matter heard by ACAT.
Clause 51 of the standard terms imposes an obligation on the landlord to guarantee that there is no legal impediment to the tenants’ use of the premises.
Clause 52 imposes an obligation on the landlord to guarantee that they shall not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant.
Clause 53 provides that unless otherwise agreed in writing, the tenant shall have exclusive possession of the premises.
What is unlawful interference?
This depends very much on the facts of each case, but some possible examples include:
- Repeated visits by the landlord without justification;
- Interference with doors, windows, locks, water or power supply;
- Attempts to force the tenant to leave through noise, harassment or threats;
- Entering the premises for an inspection or repairs without giving notice in accordance with the RTA;
- Demanding access beyond that provided by the lease, or otherwise required by law.
When can the landlord enter my home?
The landlord’s rights to enter your home (including both the inside and outside of the premises) are set out in the standard terms. They (Clauses 75 to 82) provide for access: to inspect the property; to carry out repairs; to show the property to prospective tenants or purchasers; for health and safety reasons.
When the landlord can’t enter
A landlord, or agent, shall not have access to the premises:
a) On Sundays;
b) On public holidays; or
c) Before 8am and after 6pm.
…other than for carrying out urgent repairs, for health and safety reasons, or with the consent of the tenant cl 76).
If requested, the landlord or their agent must provide identification to the tenant (cl 75(3)).
Notice from the landlord to enter the premises must be given to the tenant. Minimum periods of notice vary according to the reason for access:
- Routine inspections – 7 days notice in writing (cl 79);
- By prospective tenants during 21 days preceding end of tenancy – 24 hours notice (cl 80);
- By prospective purchasers (once the landlord has notified tenant in writing of intention to sell) – 24 hours notice (cl 81);
- Making or inspecting repairs – 7 days notice, having regard to the interests of the tenant. For urgent repairs there must be ‘reasonable’ notice (cl 82).
There are no clear rules as to what is ‘reasonable’. Clause 79 specifies that reasonable regard should be given to the work and other commitments of both parties (or their agents). Be prepared to assert your opinion about what is reasonable, as some fairly widespread practices by landlords and agents in the ACT are not always reasonable. These practices include (but are not limited to):
- Refusing to give notice of a specific time for entry and saying they will let themselves in;
- Using their own key to show prospective purchasers through the premises; and
- Advertising ‘open house’ exhibitions.
What is ‘reasonable access’ will depend on the circumstances of each situation. What is reasonable in one situation may not be in another and vice versa. It should be noted that the tenant ALWAYS retains the right to be present during an access period.
Remember, you are entitled to your privacy!
Inspections – don’t be a doormat!
The landlord or agent can conduct routine inspections twice a year (cl77). Additionally they are entitled to an initial inspection at the beginning of your tenancy (within the first month) and a final inspection in the last month of your tenancy before you vacate (cl78).
There is no obligation on the tenant to return the premises to perfect condition. You have every right to leave the premises in their every day state, bearing in mind your obligations under your tenancy agreement to take reasonable care of them – keeping them reasonably clean, having regard to the normal incidents of living (cl 63(c)).
On the condition that the lessor gives you one week’s notice, the lessor or their agent, may enter the premises at a reasonable time, having regard to the interests of the tenant and the lessor, for the purpose of making or inspecting repairs (cl 82). However, the lessor is not entitled to use this as a backdoor method of conducting additional inspections!
Remember, an inspection time has to be reasonable to both parties. It is reasonable for you to ask for a specific time and it is always your right to be present at any inspection!
The landlord or their agent cannot gain entry without the tenant’s consent. If there is a dispute about access, the landlord must go to the Tribunal for an order about when access is to happen.
If your right to privacy and enjoyment is being abused by the landlord or agent, you have several options:
- Write to them asking them to stop the offending behaviour, referring to their obligations under your tenancy agreement. Be sure to keep a copy of the letter (signed and dated) as evidence in case stronger action is required at a later stage. See our Sample Letters for suggestions.
- In serious cases, you may pursue legal action to protect your enjoyment and privacy. Interfering with a tenant’s privacy or enjoyment of the property is in breach of the agreement. The tribunal has the power to restrain any action in breach of the standard terms and to order compensation for any loss caused by a breach.
- In serious cases, the tenancy can be terminated; for example, a consistent failure to provide reasonable notice of entry. The process is set out in the Standard Lease (see Factsheet: Ending a Tenancy and Breaking a Lease). You should seek further advice before taking this step.
If the problem is being caused by a real estate agent, you can make a complaint to the Office of Fair Trading.
Can you change the locks?
Either the tenant or landlord can change the locks with the agreement of the other party. This agreement must not be unreasonably withheld. The party who changes the locks will normally pay for it, unless otherwise agreed (cl54(3)).
In an emergency either party may change the locks, at their own cost, without the agreement of the other party (cl54(4)). Where a lock is changed, a copy of the new key must be provided to the other party as soon as possible (cl54(5)).
If there is a problem and you feel that you need to change the locks, another option is to apply to the ACAT for an order.
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