31 October 2019

Uninhabitable tenancy complaints on the rise 

Consumer Protection has recently received a high number of complaints regarding unacceptable living conditions in rental properties, many of which may not have been appropriately managed by property managers/agents, including: 

• Faulty electrical wiring – tenants were required to vacate a property as it was deemed uninhabitable due to faulty electrical wiring. The property manager/agent was aware of electrical faults yet failed to notify the tenant. 
• Plumbing (sewage and other water) – a burst pipe resulted in ankle depth water accumulating throughout a property and the property manager/agent failed to have the issue rectified by the lessor within a reasonable time.  
• Unsafe wiring – Western Power visited a property as the main power box was not working. Western Power advised the tenants the house was unsafe and needed rewiring, however the property manager/agent failed to have this actioned by the lessor. 
• Ceiling collapse – tenants reported concerns with a ceiling. This was assessed three days later by a repairer organised by the property manager/agent. The repairer advised the roof needed to be fixed ASAP however the ceiling collapsed shortly after the assessment. 
• Mould – tenants have experienced respiratory illness following a property manager’s/agent's failure to address complaints of black mould throughout the house. The tenants had reported this issue to the property manager/agents over a month prior to any action being taken. 
• Clandestine laboratories – tenants have become unwell due to exposure to production residue from meth and other toxic gases used in its manufacture.

Your responsibility as a property manger/agent

If a tenant raises concerns with you, as the property manager/agent, regarding the living conditions and maintenance standards of a property, you have a responsibility on behalf of the owner to manage the situation. You must follow up by inspecting the premises and ensuring the property is compliant with local building, health and safety laws.  You also have an obligation to inform the owner of the issues and assist them to understand their obligations in relation to the tenant and property.  You also have a responsibility to ascertain or verify all facts material to a lease and promptly communicate those facts to any person who may be affected.  A property manager/agent is also responsible to complying with any applicable law.

Termination of a tenancy agreement when property is uninhabitable

Under the Health Act 1911, local government may declare a house, or specified area/s, unfit for human habitation due to:

• a lack of cleanliness or essential services; or 
• situations where the property is dangerous and poses serious health and safety risks for the occupiers. 

Under the Residential Tenancy Act 1987 (RTA), one of the reasons a lessor or tenant can terminate a tenancy agreement is when the whole or part of premises is rendered uninhabitable due to damage or is declared as such by the local government or any other authority. 

Emergency Situations 

Please ensure your tenants are advised to report all electrical hazards directly to Western Power (or Horizon Power in some regional areas of WA) and any gas leaks (or the smell of gas) to ATCO Gas immediately.  Once any immediate danger has been reported to the appropriate authority, tenants should then notify the property manager/agent.

If the property you are managing is severely damaged due to an accident or other major event (storm, damaged roof etc.) and becomes unfit to live in, the lease will have effectively ended and the tenant is not expected to stay at the property. The lessor is not required to help the tenant find alternative accommodation or pay for relocation costs in the event the lease ends due to an accident or major event. 

It is not the responsibility of the tenant to conduct the repairs or pay for the repairs out of the bond.

Best Practice Tips

The below tips will help you meet your obligations as a property manager/agent by ensuring a property being leased is safe and habitable:  

• Exercise due skill, care and diligence and do not allow a property to be leased if it is not fit for human habitation;
• Report all unacceptable living conditions to the owner and follow up in writing;
• Use periodical rental and final inspections as an opportunity to check the necessity for repairs and report findings to the owner of the property;
• Follow the owner’s instructions, except where it would be unreasonable or improper to do so;
• Do not knowingly mislead or deceive any parties in negotiations or a transaction, or make any false statements about essential services at the property;
• Act in the best health and safety interests of both the owner and the tenant;
• Act on requests for repairs from tenants as soon as practicable. Keep in mind your obligations under the RTA to respond quickly to essential and urgent repair requests; and 

Remember, keeping the property in a good condition will help your client keep good tenants. Keeping a good tenant is much easier and more financially viable than trying to find a new one.

A final note

Tenants have a right to live in a property that does not pose any health and safety risks.  If an issue arises you should not dismiss or penalise a tenant for reporting an issue, requesting a repair, or exercising their rights under the legislation.