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Key points on lock-outs

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Lock outs. They’re not just illegal - they can force tenants and their families into homelessness, and result in heavy penalties and compensation payouts. If you’re a tenant facing a forced eviction, a landlord fed up about overdue rent, or an agent dealing with a difficult situation, this issue of The Letterbox is essential reading!

Read on to learn how to serve a termination notice, what to do with belongings left behind and what action to take if you are a tenant who gets ‘locked out’. 

Following devastating storms affecting NSW and other east coast states, we have advice for landlords and tenants on their rights and obligations when a rental property is impacted by a natural disaster. Additionally, there is now a public register for properties affected by loose-fill asbestos insulation with new tenancy disclosure laws now in force.

We also remind you about new swimming pool laws and the Rental Bonds Online service

Take note of our new feature, Have your say, which will highlight your opportunity to suggest improvements to property laws.

Whatever your tenancy situation, remember you can always contact Fair Trading with your questions or complaints. Our tenancy complaint service is here to help.

 

Answers to your questions on lock-outs

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Q: Help! I’ve just come home, my key isn’t working and there is a note on the door from the landlord that says “Find another place to live. I’ll be selling your stuff to cover your overdue rent”. Shouldn’t I get more notice? Is my stuff allowed to be sold? Many of my things have sentimental value!

A: Landlords cannot forcibly evict the tenant or take action such as changing the locks or cutting off the water or power supply. It is also illegal to sell off your belongings during your tenancy and proper notice must be given for you to collect your goods after a tenancy. We explore what a landlord can and can’t do below.  

Eviction due to rental arrears (unpaid rent)

If the landlord wishes to evict you because of rental arrears, they must issue a non–payment termination notice. The tenant will have 14 days to vacate the property unless they:

  • pay all the rent owing within the 14-day period, or
  • enter into and comply with a repayment plan agreed with the landlord.

If you think a mistake has been made, check the amount the rent is in arrears against your rental receipts or other records. You can also ask your agent or private landlord for a copy of the rent ledger.

Changing locks and security devices

A landlord may alter the lock or security device of your rented home if the tenant agrees. Otherwise, the landlord must have a reasonable basis for doing so, including:  

  • in an emergency
  • the landlord having to comply with an order of the NSW Civil and Administrative Tribunal  
  • the tenancy of a co-tenant being terminated
  • a tenant or other occupant being excluded from the premises by an apprehended violence order.

Altering the locks or security devices without a reasonable excuse is a breach of tenancy laws and an offence punishable by a fine of up to $2200.

Notice to remove a tenant’s belongings

The landlord must not remove a tenant’s goods unless the tenancy has ended, and then must give prior notice for the tenant to collect their items.

In this case, the tenancy has not ended as the landlord has not provided you with a notice of termination.

Landlords are also not allowed to keep any profits from disposal of a tenant’s goods. However, a landlord may charge an occupation fee, equal to a day’s rent for each day the goods have been held, up to a maximum of 14 days.

Before disposing any goods, the landlord must provide the following notice orally or in writing to the tenant:

  • 14 days for ordinary goods
  • 90 days for personal documents.   

You will have 14 days after the notice has been provided to collect the ordinary goods. If you do not, the landlord may sell the goods at fair value and give you the proceeds minus the cost of sale and storage.

If the landlord can’t contact you, they must send the proceeds to the Office of State Revenue after 6 years as unclaimed money. 




 
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Q: Last year I had an accident and haven’t been able to work, so my rent has fallen behind. The landlord keeps coming around and threatening to cut off my water and electricity. Yesterday I refused to open the door and he was banging on it and screaming that he was going to ‘make me pay’. My kids are terrified of him. I’d move out but we haven’t got any money and we don’t have anywhere else to go. What can I do?

A: Landlords are not allowed to forcibly evict the tenant or take action such as changing the locks or cutting off the water or power supply.

Furthermore, tenancy laws state that a landlord must not interfere with the peace, comfort or privacy of the tenant. Threatening a tenant to “make them pay” could be considered a breach of the law and the landlord can face a penalty of up to $1100.

Tenants are encouraged to contact their local Tenant’s Advice and Advocacy Service, who may be able to provide assistance or advice. To find your nearest Tenants Advice and Advocacy Service go to www.tenants.org.au or call (02) 8117 3700.

You may also wish to seek help from the Financial Rights Legal Centre’s credit and debit hotline on 1800 808 488.

The landlord may terminate your tenancy

The landlord may serve you a termination notice for rental arrears.

To be valid, the termination notice must:

  • be in writing
  • be signed and dated by the landlord or their agent
  • be properly addressed to the tenant
  • give the day on which the residential tenancy agreement is terminated and by which the tenant is required to vacate.

You will have 14 days to vacate the property unless you can pay all the rent owing within the 14 day period or enter into and comply with a repayment plan agreed to by the landlord.

Claiming on your bond for rental arrears

The landlord can make a claim on your bond for unpaid rent.

Fair Trading will send you notice and give you 14 days to either settle the matter with the landlord or contest the claim by applying to the NSW Civil and Administrative Tribunal.

 
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Q: I had tenants in my unit who were very behind in their rent so I ended their lease. They moved out a week ago, but the unit is still full of their belongings. I’d like to send it all to the dump. Can I seek compensation from them for the cost of removing it?

A: Landlords are not allowed to keep any profits from the disposal of a tenant’s goods. However, a landlord may charge an occupation fee, equal to a day’s rent for each day the goods have been held, up to a maximum of 14 days.

Dealing with a tenant’s goods

The landlord must not dispose of a tenant’s goods unless the tenancy has ended. The landlord must provide notice orally or in writing to the tenant to inform them that the ordinary goods will be disposed of within 14 days and personal documents will be disposed of within 90 days.

Goods of value need to be kept for at least 14 days from the day the landlord notifies the tenant to come and collect them. If the tenant fails to do so, the landlord may:

  • donate the goods to charity
  • dispose of the goods in a lawful manner (eg. take them to the tip)
  • keep the goods in the property if they are useful fixtures and fittings
  • sell the goods for fair value and give the proceeds to the tenant (less the occupation fee and reasonable costs of the sale) or send it to the Office of State Revenue after 6 years as unclaimed money.

Disposal of rubbish

A landlord can dispose of any rubbish or perishable items left behind by the tenant immediately. The landlord does not have to notify the tenant or get their consent to dispose of such items but landlords must be reasonably sure that what they are disposing of is, in fact, rubbish.

Goods of value such as furniture, electrical items and clothing can be stored elsewhere, allowing the landlord to re-let the property.

Personal documents left behind by a tenant need to be kept in a safe place for at least 90 days from the day notice is provided to the tenant. Tenancy laws define personal documents as:

  • a birth certificate, passport or other identity document
  • bank books or other financial statements or documents
  • photographs and other personal memorabilia (eg. medals and trophies)
  • licences or other documents conferring authorities, rights or qualifications. 
 
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Q: My tenant owes me over $3,000 in rent and I’m sick of chasing them. They’re not answering the phone or the door, so I sent them a text message to say they have to leave. I haven’t heard back, but they’re still living there. What are my options? 

A: Serving a tenant with a termination by SMS is not acceptable. To evict a tenant, a landlord must give written notice to vacate and follow prescribed timelines and procedures set out in the Residential Tenancies Act 2010.

Termination due to rental arrears

If you wish to evict a tenant because of rental arrears, you must issue a non–payment termination notice.

The notice must:

  • be in writing
  • be signed and dated by the landlord or their agent
  • be properly addressed to the tenant
  • give the day on which the residential tenancy agreement is terminated and by which the tenant is required to vacate.

The tenant will have 14 days to vacate the property unless they pay all the rent owing within the 14-day period or enter into and comply with a repayment plan agreed to by the landlord.

If a tenant does not vacate by the due date

In this situation, the landlord may apply to the NSW Civil and Administrative Tribunal for a possession order. Landlords need to apply to the Tribunal within 30 days after the date to vacate noted in the termination notice.

If the Tribunal makes an order it will give the tenant a date to move out. If the tenant still does not vacate, the landlord will need to obtain a warrant for possession from the Tribunal's Registry and have it enforced by the Local Court Sheriff's Office.

Making a bond claim

The landlord can make a claim on the bond for unpaid rent. To make a claim on the bond, the landlord must provide:

  • the final condition report
  • invoices and receipts for what they are claiming.

Fair Trading will send a notice to the tenant giving them 14 days to either settle the matter with the landlord or contest the claim by applying to the NSW Civil and Administrative Tribunal

 
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Q: I have been managing a property for a landlord. The tenants for this property were evicted because they were behind in the rent. After they left we realised they’d caused a lot of damage. The landlord is angry and wants to pursue compensation. How do I do this? I don’t have the tenant’s forwarding address, but I do have an email and mobile phone number for them.

A: The landlord or real estate agent can make a claim on the bond to pay for repairs due to damage caused by the tenant. To make a claim on the bond, the landlord must provide:

  • the final condition report
  • estimates, quotes, invoices and receipts for what the landlord is claiming.

It is a good idea to take photos of the damage caused.

Fair Trading will send a notice to the tenant giving them 14 days to either settle the matter with you or contest the claim by applying to the NSW Civil and Administrative Tribunal.

Make sure you notify Fair Trading that you have applied to the Tribunal, so that the bond can be held until after the hearing.

The landlord may wish to get landlord insurance in the future. Insurance can provide protection for accidental or malicious damage to either the structure of the property or its contents.  

 

Tenancy Tales from the tenancy complaint service

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Shortly before Christmas, a tenant called Fair Trading’s Tenancy complaint service after returning home to find the gate and door locked. The tenant advised they were 3 weeks behind in paying their rent.

The tenant did not have the landlord’s contact details, but obtained their phone number with assistance from a neighbour. Fair Trading staff then spent 2 days urgently trying to call the landlord and only managed to contact the landlord at midday on Christmas Eve. The landlord advised that the tenant actually owed $3,000 in unpaid rent and they’d made numerous attempts in the past two and a half months to contact the tenant. The landlord confirmed they’d had the locks changed because the lease had ended in mid-December. However, no written notice had been provided to the tenant for the lease being terminated. 

Fair Trading staff advised the landlord about the requirements for giving written notice to end a fixed term agreement, and the option to provide a notice of termination once the tenant is in arrears by 14 days or more. The landlord was also advised that if a fixed term tenancy agreement ends and a new agreement is not signed, then the original agreement automatically rolls over into a periodic agreement. The landlord was directed to further information explaining their obligations, and warned that landlords can be penalised or required to pay compensation for failing to meet requirements. After negotiation with Fair Trading staff, the landlord agreed to provide access to the property so that the tenant could return home in time for Christmas.

The tenant was informed of the outcome and reminded of their obligation to pay rent while living in the property. Fair Trading encouraged the tenant to communicate with the landlord to resolve the matter. 

 

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Tenants to be more informed about loose-fill asbestos insulation

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New tenancy and home building laws have now started that aim to ensure tenants and purchasers are more informed about properties affected by loose-fill asbestos insulation.

The NSW Government now maintains a register of residential properties that contain loose-fill asbestos insulation. The Loose-fill Asbestos Insulation Register (LFAI Register) contains the addresses of properties confirmed to contain loose-fill asbestos insulation under the NSW Government’s Voluntary Purchase and Demolition program. The register is publicly searchable, and available from the Fair Trading website.

Under the new laws, it is now a material fact if a property is listed on the register. This means that, if a premises is listed on the LFAI register, this information must be disclosed by the property manager or private landlord to prospective tenants, or by the real estate sales person in the case of a property sale.

In line with these new laws, the addendum to the New tenant checklist has been updated with information about material facts. This addendum must be provided with every copy of the New tenant checklist. The updated addendum still contains information about swimming pools and the rental bonds online service to enable use of the previous version of the checklist, dated January 2014. The updated addendum replaces the addendum published in April 2016, so that only one addendum is required to be attached.

From 30 October 2016, the standard tenancy agreement will also be updated to require the landlord or agent to notify tenants if the premises they want to lease is on the register, or if it is added to the register during the tenancy.

Register for free testing

To find out if your property contains loose-fill asbestos insulation, homeowners can register for free testing which is available in selected areas. The NSW Government is proposing new laws to protect the community from unknowingly purchasing a property that contains loose-fill asbestos insulation. Under these proposed laws, when selling your property, you would be obligated to confirm in the contract of sale if your property:

  • contains loose-fill asbestos; or
  • is free of loose-fill asbestos.

If you do nothing and your home does contain loose-fill asbestos insulation, you risk being unable to sell or rent your home in the future.

While tenants can’t register for free sample testing, they should ask their landlord or managing agent if the property has been tested for loose-fill asbestos insulation. Tenants can also check at any time if the property they are renting is on the Register.  

More details

For more information, please visit our Loose-fill asbestos insulation page or call 13 77 88. NSW Fair Trading is holding a series of community forums and information days. You can check the schedule of upcoming events to find out if there is one you would be interested in attending (see the ‘Upcoming events’ article below).

 

When the deluge hits

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It has been devastating to see the tragic effects of destructive storms up and down the east coast over the past few days. A difficult situation can be further complicated when a property damaged by a natural disaster is being rented, especially if it becomes partially or totally uninhabitable.

Fair Trading has information online for tenants and landlords on their rights and responsibilities when disaster strikes. For more detailed advice, you can also read the Q&As from an earlier issue of The Letterbox that focused on what happens to tenancies affected by natural disasters.

Also on this topic, the Fair Trading Commissioner has today issued a warning about scammers and shonky tradespeople who often prey on victims of natural disasters in need of repairs.

As always, if you have a rental problem caused by a natural disaster you can lodge a complaint with Fair Trading to use our Tenancy complaint service, or call 13 32 20

 

Sale and lease pool rules now apply

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A reminder that if you own a residential property in NSW with a swimming or spa pool, make sure you understand what you need to do if you want to sell or lease it.

For tenancies, a valid certificate of compliance or occupation certificate must be provided to the tenant whenever a new tenancy agreement is entered into. This doesn’t apply to properties in strata or community schemes with more than 2 lots because they’re already inspected by councils every 3 years.

More about these laws and what is required for property sales is available on our Swimming pools page.

 

Bonds made easier with Rental Bonds Online

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If you’re a tenant, chances are your agent is one of the 7,000 managing agents who has made the switch to Rental Bonds Online (RBO). RBO is Fair Trading’s new online service which makes managing rental bonds easier for everyone.

Agents, landlords and tenants can lodge or claim bonds in minutes, at any time, without having to post lodgement forms. Refunds are paid directly to the tenant’s nominated bank account and everyone is kept up to date by SMS or email.  It’s fast, easy and secure. Read more about this great new service.

 

Have your say

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NSW Fair Trading welcomes comments on new or amended draft legislation in NSW relating to a range of property-related issues. This section of The Letterbox will include topics or issues inviting your views as part of a current public consultation.

Have your say on real estate regulation changes

Proposed changes to real estate regulation aim to benefit buyers, sellers and agents. The proposed changes would:

  • make it easier and potentially cheaper for prospective buyers to obtain pre-purchase property reports
  • require the seller’s agent to include the offer price in the agency agreement for residential property, as was previously required 
  • remove unnecessary regulation for commercial property agency work.

Find out more about this consultation and take part by 15 June.

 

Upcoming events

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NSW Fair Trading offers free community education seminars across NSW.

Stay informed with Fair Trading's events and seminars on tenancy topics for real estate agents, self-managing landlords and tenants.

Events for self-managing landlords are available in Revesby (28 July) and Armidale (13 September).

Events for real estate agents are available in Revesby (25 July) and Armidale (14 September).

Loose-fill asbestos information sessions for residents and communities are available in numerous locations across NSW.

Book now
 
fairtrading.nsw.gov.au