News and Views

Last week temporary changes to the Residential Tenancy Act came into effect for the duration of the COVID-19 Emergency period. Find some of the frequently asked questions about the changes and answers below. We will add more questions and answers over time as they arise.

I have heard about the “Emergency Period”. What is it?

The emergency period has been extended to 30 September 2020 for most temporary changes to the Act and separate orders. However, the suspension on inspections and viewings will be lifted on 30 June 2020 and Notices to Vacate for particular reasons will be permitted after 30 June 2020.

If the government does not think that the COVID-19 crisis is over by then, it can extend the emergency period in 90-day increments. We will announce any extensions on our website and Facebook page.

I have lost my job as a result of COVID-19. Do I have to keep paying the rent?

The Residential Tenancy Act 1997 has been amended to protect tenants from being evicted during the COVID-19 pandemic.  You cannot be evicted for rental arrears during the emergency period. 

However, while you cannot be evicted for rental arrears during the emergency period, THE EMERGENCY PERIOD IS NOT A RENT HOLIDAY! 

If you fall behind in your rent during the emergency period, as soon as the emergency period ends your landlord will be able to issue you with a notice to vacate for rental arrears.  As such, you should continue to pay rent if you can. 

We will continue to push the government to protect tenants against being evicted for rental arrears after the emergency period is over.

If you have lost your job, you may qualify for the JobSeeker or JobKeeper payments.  Please contact Centrelink or your employer, respectively.

My landlord/agent gave me a notice to vacate that’s for something other than rent arrears.  Can I be evicted?

The Premier has issued an order that blocks almost all evictions for the 90 days until 30 September 2020 (previously 30 June 2020), with the possibility that that period can be renewed or extended.

If you are served with a notice to vacate between now and the end of June, you cannot be evicted based on that notice before the end of June, unless the notice to vacate is for using your property for an illegal purpose.

If you have been served with a notice to vacate for a different breach of your lease, for example for damaging the property, causing a nuisance, or altering the property without permission, and you agree that you are in breach, we still strongly suggest that you rectify the breach before the notice expires.  The order does not necessarily prevent you from being evicted after 30 June on the basis of a notice to vacate issued before 30 June.

If you are unsure whether you are in breach, please contact us as soon as possible.

A landlord might be able to serve you with a Notice to Vacate after 30 June 2020 if,

  1. Your lease is for a non-fixed period (also known as a rolling lease); and
  2. The notice to vacate was issued because (A) your landlord has sold the property; (B) your landlord wants to move into the property themselves, (C) wants to substantially renovate or (D) wants a family member to move into the property; and
  3. The notice to vacate is otherwise compliant with the law.

If you are unsure whether the notice to vacate you have been served with is valid, contact us as soon as possible!

Your lease can also still be terminated between now and 30 September if:

  1. You, as a tenant, agree to vacate the property; or
  2. You or your landlord make a successful hardship application (see below); or
  3. You have or are likely to cause serious damage to the property, or a neighbouring property; or
  4. You have or are likely to physically injure your landlord/agent, or a neighbour.

My real estate agent suggested that if I can’t pay the rent I should access my superannuation, or I should enter a payment plan for when the emergency period is over. Should I comply?

DO NOT TAKE FINANCIAL OR LEGAL ADVICE FROM YOUR AGENT. Remember that they represent the interests of the landlord, not you.

The Australian Securities and Investments Commission has warned agents against providing financial advice.  If you are advised or directed to access your superannuation by your landlord or agent, you can lodge a complaint with ASIC on its website:

https://asic.gov.au/about-asic/contact-us/how-to-complain/report-misconduct-to-asic/

Anglicare can provide free financial advice: https://www.anglicare-tas.org.au/financial-counselling-and-gambling-support/

If you are with an industry superfund, they can provide you with over the phone financial advice.

If you require legal advice regarding your tenancy, contact us on 6223 2641.  We strongly suggest that you do not agree to bind yourself to repay the arrears at this point, as other government assistance packages may be announced at a later date, and you cannot guarantee when you will have the capacity to pay.  It will likely be some time after the emergency period ends before the economy fully recovers. Anglicare can provide free financial advice: https://www.anglicare-tas.org.au/financial-counselling-and-gambling-support/

I lost my job, and will be able to pay some rent but not all of it. Can I ask my landlord/agent to reduce my rent so I’m not left with debt after the emergency period ends?

We encourage you to contact your landlord/agent, and advise them of your situation.  The Residential Tenancy Act 1997 allows tenants and landlords to vary the terms of their lease by agreement, including reducing the rent.

Hopefully your landlord will be sympathetic to your situation.  But you cannot force your landlord to negotiate a rent reduction.  They may be more likely to agree to a rent reduction if you tell them the following:

  • That if the rent is not reduced, you will likely have to apply to have the lease terminated due to hardship (see below);
  • That during the emergency period it will likely be very hard for them to find a new tenant, so they will be better off with lower rent than no rent at all; and
  • That, if they have a mortgage, they may be entitled to have their repayments frozen for six months.

My landlord has asked for a 6-month mortgage freeze but is still asking me to pay the full rent. What can I do?

While it may be unjust, there is currently nothing in the law that forces landlords to reduce the rent, or negotiate to reduce the rent (see above), even if they don’t have to pay their mortgage.  We can only hope that the majority of landlords act reasonably and fairly.

If your landlord is acting unreasonably, try to get evidence in writing (an email or text is sufficient) that (1) your landlord is enjoying a mortgage deferral; and (2) that they refuse to pass that benefit onto you, then contact us.

My landlord/real estate agent and I have amended our lease agreement so that my rent is reduced by $100 p/w. Am I expected to pay the difference at the end of emergency period?

If you and your landlord have agreed to a rent reduction then you are only responsible for the new amount.  By agreeing to change the terms of your lease, the landlord has given up their right to ask for the higher rent.

If you reach an agreement with your landlord to reduce your rent, make sure you get it in writing.

My rent was increased ten months ago. Recently, I received a rent increase notice informing me that my rent will be increasing by $10 per week in 60 days. Is this lawful? 

Rent increases that were due to take effect between 23 April 2020 and 30 June 2020 have been halted. This means rent increases issued after 24 February 2020 will no longer occur. This measure will be reviewed prior to 30 June 2020 and may be extended.

It is likely that the COVID-19 emergency will result in rents dropping.  As such, it will likely be easier to dispute a rent increase on the basis that it is unreasonable.  If you want to dispute a rent increase on the basis that it is unreasonable, you must do it before the increase takes effect.  We can assist with putting your dispute together.

I have lost my job as a result of COVID-19 and can’t pay the rent. Can I break my fixed-term lease without penalty?

If you would rather end your tenancy because, for example, you can move back home, or your landlord refuses to renegotiate your rent and you do not want to go into debt, you can apply to the Residential Tenancy Commissioner to terminate your tenancy due to severe hardship.

Before making an application, you should ask your landlord for a mutual termination of the lease.  If they agree, make sure you get proof in writing.  If they do not, you may have to make a hardship application to the Commissioner.

You will have to provide evidence to the Commissioner of the hardship you will suffer if the lease continues. 

The Residential Tenancy Commissioner has defined severe hardship due to the impact of COVID-19 as follows:

“A household is considered to be impacted by severe COVID-19 related hardship if one or more members of a household paying rent:

  • have lost their job/income or their hours/income have been reduced due to a business closing down or standing down staff during the COVID-19 emergency
  • have stopped working or reduced work hours due to COVID-19 illness or now have carer responsibilities for the household or family members and
  • the above factors have resulted in a 25% or more reduction in household income – this includes any government assistance.”

The Commissioner will assess your situation based on:

  • your reasonable living costs
  • your liquid assets
  • your unavoidable or reasonable expenses that would normally be able to be met outside of the current COVID-19 emergency
  • employer/work forcing you to relocate
  • you are suffering severe physical or mental illness and cannot continue with the tenancy.

Be aware that the Commissioner can order you to pay your landlord compensation if you are successful in terminating your lease due to hardship.  Currently, we do not know what this compensation could be for, or how much it could be.

If you wish to apply to have your lease terminated due to hardship, the application form can be found on the Consumer, Building and Occupational Services website: https://www.cbos.tas.gov.au/topics/housing/residential-tenancies-covid-19-emergency-provisions

However, we strongly suggest that if you are thinking about making an application that you seek advice from us first.  It may be that you can terminate your lease without penalty for other reasons. Please be aware that your landlord can also make an application to have your lease terminated due to hardship.  If this happens, and you do not want to vacate, contact us as soon as possible.

What if I have a non-fixed lease?

Your lease is non-fixed if it does not have an end date.  It also known as a rolling lease.

If you have a non-fixed tenancy, you can give a 14-day notice to terminate if you would like to end your lease.  You do not need to make a hardship application.

A blank notice to terminate is available on our website. 

I live in a sharehouse and some of my housemates have lost their jobs due to COVID-19 and are unable to pay their share of the rent. Am I responsible for paying the rent?  

If you and your housemates are on the one lease you are collectively responsible for abiding by its terms.  That means if one person does not pay their share of the rent, all of you can be held responsible.  During the emergency period, that means that you will accrue debt, and you may be evicted after the emergency period ends.

You should talk to your housemates and try to come to an agreement as to what to do.  As detailed above, you could collectively ask for a rent reduction, or apply to have the tenancy terminated due to hardship.

If you cannot come to an agreement with your housemates, you should seek legal advice.  Unfortunately, the Tenants’ Union is not able to assist one tenant against another.  If you are in this situation and require legal advice, please call the Legal Aid advice line on 1300 366 611.

If you and your housemates each have your own lease agreements for your rooms, and share the common area, you are only responsible for your own rent.

I live in a sharehouse and one of my housemates has to self-isolate. Does that mean everyone else in the house has to vacate for 14 days?

According to the Tasmanian Government, you are do not have to vacate your home if someone else that lives with you is required to self-isolate.

However, you should take precautionary steps, such as:

  • As much as possible avoiding all contact with the affected person;
  • Sleeping in different rooms;
  • Regularly and thoroughly wiping all surfaces;
  • Regularly and thoroughly washing your hands, especially after contact with the affected person;
  • If possible, using different bathrooms.

Other advice can be found on the government’s website: https://www.coronavirus.tas.gov.au/

What rights do I have if I am a sub-tenant or lodger?

You are a sub-tenant if your lease is with another tenant, rather than the landlord or their agent.

You are a lodger if:

  • You rent a room, rather than the whole house;
  • The landlord also lives in the house, and you share the kitchen, bathroom, or toilet with them; and
  • The landlord only rents one or two rooms in the house.

If you are a boarder or lodger, you are not protected by the Residential Tenancy Act 1997.  As such, none of the information in this FAQ applies to you.

If you cannot pay your rent, or need to vacate your room, you should talk to your head-tenant or landlord and explain your situation.

If that does not work, and you require legal advice:

  • If you are a lodger, call us on 6223 2461;
  • If you are a sub-tenant, call Legal Aid on 1300 366 611.

We also suggest that you contact your local member of the Tasmanian Parliament, and tell them that you deserve better legal protections.

My property is for sale and my landlord/real estate agency wants to show prospective purchasers through. I’m worried about the transmission of COVID-19 with strangers walking through my house. What protections do I have?

During the emergency period, landlords/agents can only enter your rental property without your permission for the following reasons:

  • They have a reasonable belief that –
  • you are ill or injured and are unable to give permission; or
  • a denial of immediate access is likely to result in damage to all or part of the property; or
  • there is a risk to you or another person present on the property; or
  • damage has occurred to the property; or
  • They need to carry out urgent or emergency repairs.

If your landlord/agent insists on entering your property for a reason other than those listed above, you can report them to the Residential Tenancy Commissioner, who has the power to fine them.

The complaint form is available on the Consumer, Building and Occupational Services website: https://www.justice.tas.gov.au/resources/cbos/online-enquiry

One of my kitchen cupboard doors has fallen off. Can I force the landlord/agent to fix it during the emergency period? 

You can still have general repairs carried out during the emergency period. 

While the landlord/agent cannot enter your property to carry out general repairs without your permission, you can grant permission for them (or their appointed tradesperson) to enter the property and carry out the repairs. 

However, they are not required to carry out general repairs during the emergency period, only by agreement.  If they refuse, and general repairs are not done within 28 days of you requesting them, you cannot terminate your tenancy or seek an order for repairs from the Residential Tenancy Commissioner.

Please be aware that the availability of tradespeople, and their capacity to enter your property, may also be affected by the government’s rules regarding social distancing.  Up-to-date information can be found on the government’s website: https://www.coronavirus.tas.gov.au/

Do the social distancing rules allow me to move house?

You are allowed to leave your current residence to move to a new residence, provided that you intend to make the new residence your primary residence.  You should try to limit the number of trips required, and limit the number of people involved in helping you move.

Up-to-date information on the social distancing requirements can be found on the government’s website: https://www.coronavirus.tas.gov.au/

If, because of COVID-19, it is not practical for you to return the property to its original condition before you vacate, you will not be responsible for that uncleanliness or damage.  It is unclear what the limits of this change are.  It may protect you if, for example, you are unable to have the carpets professionally cleaned because they are unable to attend your property due to social distancing rules, or they have largely gone out of business.