Family and domestic violence insights - Answering "How did the tenancy end?" - Real estate industry bulletin 198
30 May 2019
Family and domestic violence tenancy laws
Protecting tenant privacy during reference checks
Last month the family and domestic violence (FDV) provisions in our residential tenancy legislation came into effect in WA. While a wealth of information about the new laws exists, there can be a teething period as they come into practice. To help you navigate this new territory we’ll periodically explore topics that are raising questions in the field.
Today we focus on the lessor’s obligation to maintain a tenant’s privacy following termination of a tenancy agreement due to FDV circumstances.
Scenario: “How did the tenancy end?”
You had a tenant leave a tenancy early due to family and domestic violence.
A few months later, another lessor is doing a background check on that former tenant and contacts you to ask, “How did the tenancy end?”
Remember that this inquiry can apply to:
- a tenant affected by FDV who terminated their interest in a residential tenancy agreement;
- a perpetrator tenant whose interest in a residential tenancy agreement was terminated by the Court; and/or,
- a co-tenant who elected to terminate their interest in a residential tenancy agreement after receiving notice of the affected tenant leaving on grounds of FDV.
What do you do?
- What are your obligations in responding to this inquiry?
- Does the reason for early termination constitute a material fact that must be disclosed?
The new laws prohibit you from disclosing the “evidence of FDV” except in accordance with the Residential Tenancies Act 1987 or another written law. Therefore your main priority is to maintain the privacy, security and dignity of the affected tenants as well as any perpetrators.
Further, the non-discrimination clause in the FDV laws means that a lessor cannot legally base their choice of tenant on the knowledge that a lease was terminated due to FDV. That means a person being either a victim or perpetrator of FDV does not meet the criteria to be deemed a material fact.
Simply, when asked how the tenancy ended you will need to choose your words carefully to ensure you do not disclose confidential information, as directed by the Real Estate and Business Agents and Sales Representatives Code of Conduct 2016 r.9 Confidential Information.
Note: if a perpetrator left the tenancy owing more than the bond in unpaid rent or damage, they can be listed on a tenancy database. That information would be available to anyone who searched that database.
Updated tenancy forms
Last month we provided a list of forms and publications that have been updated to include the FDV laws.
We’ve recently updated Form 22 – Notice of Termination from Tenant to Lessor to include an option for co-tenants opting to exit a tenancy after receiving notice that an affected tenant is leaving due to FDV circumstances.
We’ve also updated Form 19 – Notice of proposed entry to premises to include both scenarios in which a property manager may need to enter the premises for inspection due to FDV circumstances.
Please ensure that you’ve downloaded and are using the updated versions of all forms.
Gas heaters safety alert correction
The national safety alert issued for open-flued gas heaters last month has been corrected as follows:
- Regency F38 and FG38 supplied by Fireplace Products Australia Pty Ltd – natural gas models only. The F38/FG38 was branded and supplied by Masport prior to 2006.
Consumers with the Regency i31, F38 or FG38 should contact Fireplace Products Australia on email@example.com or phone 1800 860 660. Masport can be contacted at 1300 554 155 in relation to pre-2006 F38 or FG38 models.
It's tax time! Don't get scammed at EOFY
WA consumers and businesses are being warned to be alert to tax scams which are usually prevalent in the months before and after the end of the financial year.
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