New Domestic Violence Tenancy Laws –
Must read for all Landlords and Property Managers -8th Feb 2019
New tenancy reforms that better protect victims of domestic violence living in a rented property commence on the 28th of February 2019. The reforms are part of a number of tenancy amendments following the statutory review of the Residential Tenancies Act 2010 NSW. From the 28th of February 2019, a tenant will be able to end their tenancy immediately and without penalty if they or their dependent child are in circumstances of domestic violence.
The tenant will need to give the landlord or agent a domestic violence termination notice and attach one of the permitted forms of evidence:
• a certificate of conviction for the domestic violence.
• a family law injunction.
• a provisional, interim or final Domestic Violence Order.
• a declaration in the prescribed form made by a medical practitioner, such as a General Practitioner, physicians (doctors in a hospital) and all medical specialists (including surgeons, psychiatrists and paediatricians).
Each co-tenant must also be given a domestic violence termination notice (without any evidence attached). A landlord or any remaining co-tenant(s) will be able to apply to the Tribunal (NCAT) if they wish to dispute the validity of a domestic violence termination notice. The Tribunal can only examine whether the domestic violence termination notice was properly given under the tenancy laws. A landlord will not be able to dispute the contents of a declaration in any Tribunal proceedings, if it is used as evidence. For a medical practitioner to make a declaration, they must have consulted with the tenant giving the termination notice or the tenant’s dependent child in their professional capacity.
Certain other criteria, as set out in the Residential Tenancies Amendment (Circumstances of Domestic Violence) Regulation 2018 must also be met.
A tenant who ends their tenancy in circumstances of domestic violence will not be liable to pay any compensation or additional money (for example a break lease fee) for the early termination, and will not be liable for property damage caused by the perpetrator as part of a domestic violence incident. Other co-tenants at the property who are not the perpetrator will also not be liable for that damage. Only the perpetrator will be liable for any property damage caused by their violence.
What this means in reality, is that if the perpetrator does not reside at that specific property, then it becomes civil action from the landlord against the perpetrator. You, as the agent would suggest that the landlord contact their landlord protection insurance provider in relation to a “malicious damages claim”.
Victims of domestic violence will have the right to privacy and protection from discrimination to ensure that a victim’s ability to secure a rental property in the future is not negatively impacted, by a domestic violence termination:
• landlords and their agents will be prohibited from listing a tenant on a tenancy database if they ended a tenancy in circumstances of domestic violence.
• evidence that a tenant or their dependent child is in circumstances of domestic violence only needs to be given to the landlord or their agent and not to any remaining co-tenant(s).
• information disclosed in a domestic violence termination notice cannot be provided in a reference check by a property manager. Disclosure can only be made if permitted or compelled by law.
• the contents of a declaration made by a medical practitioner will not be reviewable by the Tribunal. After a tenant gives a domestic violence termination notice, a co-tenant who remains in the tenancy will be:
• able to apply to the Tribunal to end their tenancy
• entitled to a (2) two week period to only pay their share of the rent and will not be required to cover the departing victim’s share. This only applies if the remaining co-tenant is not the perpetrator of the domestic violence.
A co-tenant who is the perpetrator of the domestic violence will be required to pay the full cost of the remaining rent.
The new domestic violence laws and other related provisions are set to be reviewed within (3) three years of commencement to ensure that they are working effectively. ‘