Safe Tenancy WA
Keeping safe in your rental property
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Everyone has the right to feel safe.
If you are a tenant dealing with a family or domestic violence situation you now have options on managing your tenancy agreement. Remember, whatever path you choose, your safety is paramount and there are support agencies around to help you.
We proudly support #16DaysInWA
The annual 16 Days in WA to Stop Violence Against Women campaign runs from 25 November to 10 December 2020.
Whilst this campaign by the Department of Communities calls for an end to violence against women, Consumer Protection also recognises the impact of family violence on males, including children, and our Safe Tenancy WA program is not gender specific.
Tenants affected by family and domestic violence (FDV) are able to:
- GO - leave a tenancy agreement without going to court and with as little as seven (7) days' notice (you can leave right away for safety but will need to pay rent until the end of the notice period)
- STAY - apply to court to have a perpetrator’s name removed from a lease
- Make a rental home safer through lock changes or security upgrades
- Sort out disputes about property damage, unpaid rent or bonds
- Seek removal from, or avoid being listed on, a tenancy database if the listing was because of FDV.
The content below is for tenants and we have a poster/factsheet. We also have a specific factsheet for landlords and property professionals as well as resources for tenant advocates or FDV community workers and a family and domestic violence and tenancy laws page.
The Safe Tenancy WA video is available on Vimeo in the following translations:
- Arabic | العربية
- Burmese | မြန်မာ
- Somali | Soomaali
- Vietnamese | Tiếng Việt
- Chinese simplified | 简体中文
What is family and domestic violence?
Family and domestic violence is a crime. It is behaviour that results in physical, sexual and/or psychological damage, forced isolation, economic deprivation, or causes the victim(s) to live in fear. It can be experienced by people of all classes, religions, ethnicity, ages, abilities and sexual preference.
Examples of criminal offences in FDV situations include assault, sexual assault, making threats to a person’s safety, stalking, damaging or stealing property, harming a person’s pet and breaching restraining orders.
In many cases, the affected tenant(s) and the perpetrator may live together, however the perpetrator does not have to be living in the same house for the situation to qualify as FDV.
Tenants affected by family and domestic violence are able to terminate a tenancy quickly and legally, remove the perpetrator from the agreement, change locks without permission and have the right to improve security.
When you want or need to break a tenancy agreement due to FDV. What forms / evidence do I need to provide?
If you or your dependant have been affected by family violence during the tenancy, you can give the lessor/property manager at least seven (7) days’ notice that you want or need to terminate your interest in the agreement and vacate with immediate effect.
You must provide the lessor/property manager with a:
- 'Notice of termination' on the grounds of family or domestic violence for a:
- AND one of the following evidence documents:
- a Domestic Violence Order (includes Family Violence Restraining Order);
- a family court injunction or an application for a family court injunction;
- a copy of a prosecution notice or an indictment detailing a charge relating to family violence having been committed against you or your dependant; or
- an official Consumer Protection Family violence report - Evidence form signed by a designated professional who can be:
- a doctor;
- a psychologist;
- a social worker;
- the person in charge of a women’s refuge;
- a police officer;
- a child protection worker;
- a family support worker; or
- a person in charge of an Aboriginal health, welfare or legal organisation.
The lessor/property manager cannot challenge your request to break the agreement if the notice and supporting evidence have been completed properly and provided with at least seven (7) days’ notice. If the documents are not completed properly lessor/property manager can appeal the termination notice in court.
If there are co-tenants on the lease
If you issue a Notice of Termination of Tenant’s Interest in Residential Tenancy Agreement on Grounds of Family Violence the lessor/property manager must provide a copy of the form (but not accompanying evidence) to any co-tenants and give them seven (7) days to decide if they want to continue with the tenancy agreement. If a co-tenant wants to stay the lessor/property manager must let the lease continue. If the co-tenant decides to leave they must give the lessor/property manager 21 days’ notice.
The lessor/property manager is required to keep any FDV evidence (eg. Consumer Protection family violence report – evidence form, copy of restraining order, family court order) you provide in a safe and secure manner. If they disclose the details, for example to a co-tenant, the lessor/property manager can be prosecuted.
Please note, if the alleged perpetrator is a co-tenant, the lessor/property manager cannot make them leave if you leave. If an alleged perpetrator wants to remain in the tenancy, the lease continues.
If the alleged perpetrator is a co-tenant, you may need to consider having a safety or exit plan in place before issuing a Notice of Termination of Tenant’s Interest in Residential Tenancy Agreement on Grounds of Family Violence. As the lessor/property manager is obligated to give a copy of the termination notice to any co-tenants, the perpetrator would become aware of your intention.
If you want to stay and remove the perpetrator from the agreement
If a perpetrator is named on the tenancy agreement and you want to stay, you can apply to the court (using a Residential Tenancies Form 12) to have the perpetrator removed from the agreement. The lessor/property manager and any co-tenants will find out about this hearing via a notice from the court.
Dealing with debt and liability
In the case of damage to the premises or unpaid rent because of FDV the Magistrate can assign liability to the perpetrator. Either a vacating or remaining tenant will need to apply for this court order. If there is no court order, all tenants remain jointly liable for any damages and or debt.
This provision can only be used if a tenant’s interest in the tenancy has been terminated due to FDV circumstances. A Notice of Termination of Tenant’s Interest in Residential Tenancy Agreement on Grounds of Family Violence and required supporting evidence must have been provided to the lessor/property manager.
The court can also make an order to pay out some of the security bond
- to any tenant who is leaving the tenancy, if they don’t owe the lessor/property manager any money; and/or
- to the lessor/property manager if they are owed money for any damages and debt.
If part of the security bond is paid out and the tenancy is ongoing, the lessor/property manager will be entitled to ask the remaining tenant(s) to top up the security bond to the maximum amount permitted under the Act.
If a remaining tenant does not top up the bond, a Notice of Breach of Agreement (Form 20) can be issued and if the tenant continues to refuse to top up the bond, then this may result in a Notice of termination (Form 1C).
Changing the locks without permission
You can change the locks without first seeking the landlord’s permission either
- after the perpetrator’s interest in the tenancy agreement has been terminated; or
- if it is necessary to prevent family violence that you suspect is likely to be committed against you or your dependant.
You have to pay for the lock change (although it could be funded by a home safety scheme or, for Housing Authority tenants, the Government may pay) and you must give the lessor/property manager a copy of the new key(s) within seven days unless the lessor/property manager is the alleged perpetrator. The lessor/property manager is prohibited from giving a copy of the key(s) to anyone that you specifically instruct them in writing not to.
Making security upgrades without permission
You can make prescribed security upgrades to the premises without a lessor/property manager’s permission:
- after a perpetrator’s interest in a tenancy agreement is terminated; or
- if necessary to prevent family violence that you suspect is likely to be committed against you or your dependant.
You must inform the lessor/property manager about your intention to make the security upgrades, which must be installed by a qualified tradesperson. You are responsible for any associated costs and to supply a copy of any invoice to the lessor/property manager. All upgrades should comply with strata by-laws and take into consideration the age and character of the property. If the landlord asks you to restore the premises to original condition at the end of the tenancy, you are required to do so.
Where can I find out more?
You may find the following resources helpful
- Department of Communities have two pages which may be helpful:
- Tenancy WA Family and Domestic Violence Factsheets
- Find a tenant advocate in WA
- Directory of WA’s Community Legal Centres
- Legal Aid WA’s Keeping Safe – Interim FVROs page
- Keeping yourself safe online (Women's Council)
- RSPCA WA Pets In Crisis Program
- Your Toolkit - Financial Toolbox
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The following case studies have been shared by tenant advocates from a community legal centre.
Megan and her partner James rented their home together and were both listed on the lease. After a series of violent life-threatening incidents Megan applied for a restraining order and sought support and advice from the local women’s refuge. Megan contacted Tenancy WA because she really wanted to stay in her home and have James removed from the lease. James was fighting the restraining order and wouldn’t reply to any requests about changing the lease into Megan’s name. In addition he was not paying any rent. Tenancy WA advised Megan about her options and supported her in negotiations with the landlord of the property. Due to Western Australia having no specific provisions in the Residential Tenancies Act to deal with family and domestic violence situations at the time, there was no power for the Court to transfer a lease into one name.
Mick’s violent ex-partner was no longer living with him at the rental home they previously shared. However, she still had a key. She would enter the property when he wasn’t there and go through his things and also move items around. Mick approached his property manager and asked to change the locks. He explained that his ex was “messing with his head” by re-entering the property and he didn’t feel safe. The property manager told Mick to “toughen up”. Mick came to Consumer Protection and we negotiated with the property manager to ask the landlord if the locks could be changed for family violence reasons, especially in light of the new laws coming soon. Under the new laws Mick would not have to ask for permission to change the locks and would just need to provide a copy of the key to his property manager / landlord within seven (7) days.
*name changed to protect person’s identity
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