Renting Matters (Mini-Episode) - Don't Make Me Leave

2:18AM Feb 4, 2022

Speakers:

Bridget Barker

Eloise (TU)

Keywords:

tenancy

landlord

property

tenants

agent

notice

fixed

tenant

new south wales

termination

term

rent

tribunal

rental

stay

agreement

community

retaliation

eloise

advice

Hello, everyone. This is law for community workers on the go, a podcast for community and health workers. My name is Bridget Barker. I work in the community legal education branch at Legal Aid New South Wales. I would like to begin by acknowledging that this recording was made on the country of the Widjabul Wiabal people of the Bundjalung Nation and on the country of the Gadigal people of the Eora Nation. I acknowledge the traditional custodians of the land and pay my respects to Elders past, present and emerging. I acknowledge that this is Aboriginal land. Always was, always will be. This is a mini episode in our series, Renting Matters. In this short episode, we look at what you can do if you're in a tenancy on a fixed term lease that's about to end and you want to stay. We get some tips from Eloise from the Tenants Union about what tenants can do if they want to remain in their tenancy at the end of their fixed term lease.

If the tenant knows that they want to stay in the property for another fixed term agreement, then signing that is the best way to secure that property for themselves. If they don't get an offer from the agent to sign another fixed term agreement then, if they feel comfortable doing so, they could approach the agent or landlord themselves and suggest that 'How about we sign another fixed term agreement, I really enjoyed staying in the property and I'd like to continue that.' You'd have to weigh up if you've had some issues with the landlord or agent and it's been a difficult relationship. It may be that signalling to them that you're nearly at the end of the fixed term agreement might remind them that oh, we've got an opportunity here to end this tenancy if we want.

This is a series called Renting Matters. The purpose of the series is to provide you with tips on how you can help your clients with tenancy issues. This series will cover renting in private, public and community housing. It will also delve into other types of living arrangements, such as being a boarder, or lodger, or living in a residential land lease community. The series is a joint project between Legal Aid New South Wales and the Tenants Union of New South Wales. The Tenants Union is a community legal centre that specialises in New South Wales Residential Tenancies laws. It is the main body resourcing tenancy advocacy services across the state. The show notes attached to each episode will include links to resources and to organisations you can contact when you are helping a client with a tenancy issue. Please be aware that tenancy laws vary from state to state. So if you are listening to this podcast from another state or territory, the laws about tenancy may be different to those we talk about in New South Wales.

Hi, Elouise, thank you for joining me today. Would you please tell us a bit about the work that you do?

So I work at the Tenants Union and I'm an advocacy officer there. And for the last year I've been working on the advice line where tenants across the state can call us to get advice on their tenancy issues.

Thank you. What is the notice period tenants will get if the landlord decides to terminate their fixed term agreement when that agreement is coming to its end?

The landlord's required to give a tenant some a minimum of 30 days notice. And they can give that any day up until the end of the fixed term agreement. It needs to be in writing, it needs to specify the date that they have to leave and it needs to at least give them 30 days notice.

What tips do you have for tenants who are in this position when the fixed term lease is approaching its end and they know that they would like to stay in their tenancy?

The answer to this kind of really depends on the history of the tenancy leading up to this point. So there are some agents that routinely at the end of a fixed term will send out a renewal of another fixed term agreement to tenants. And absolutely, if the tenant knows that they want to stay in the property for another fixed term agreement, then signing that is the best way to secure that property for themselves. If they don't get an offer from the agent to sign another fixed term agreement then, if they feel comfortable doing so, they could approach the agent or landlord themselves and suggest that 'How about we sign another fixed term agreement, I really enjoyed staying in the property. And I'd like to continue that.' You'd have to weigh up if you've had some issues with the landlord or agent and it's been a difficult relationship. It may be that signalling to them that you're nearly at the end of the fixed term agreement, might remind them that 'oh, we've got an opportunity here to end this tenancy if we want.' So sometimes, it may be better just to stay quiet because once the fixed term ends, it automatically rolls over into what we call a periodic ongoing tenancy agreement. And in that situation, if the landlord then wanted to terminate your tenancy, they need to give you 90 days notice so it does give you a bit more time to find another property. So it really depends on the individual and the history of the tenancy really.

What other issues do tenants who want to remain in a tenancy face when they are approaching the end of a fixed term lease?

So if the landlord or agent may want to increase the rent, when you're in a fixed term agreement, they can't increase the rent unless it's written into your agreement as one of the terms. So as you're getting to the end of the fixed term, and potentially going to sign another fixed term agreement or go onto what we call a periodic tenancy, it may be that the landlord agents can raise with you the fact that they want to increase your rent. And when you're in a periodic tenancy, they can do that by giving you 60 days written notice. So that's something to be aware of. And obviously, in the current rental market, we are in there are limited properties. So in terms of increasing the rents, that seems to be something we're seeing more consistently across the state now.

Is there anything tenants can do to prepare themselves for a rental increase?

So there's a couple of things that tenants can do to prepare themselves on the Tenants Union website, there's a rent tracker, which you can use to have a look at what the median rental has been for properties in your area. What you can also do is there's a couple of websites where a lot of agents and landlords will list properties that are currently for rent in your area, so domain or realestate.com. And on those websites, they often have photos to show what those rental properties look like inside, which gives you a good idea, then how you can compare it to your own rental property. So that's a couple of good things to have a look at before the end of the tenancy. Or if the landlord does say to you, well, yes, we want you to stay, but we want to increase the rent, it's a good idea to arm yourself with all that knowledge beforehand so you've got a good idea of what is the comparable rental at the moment for similar properties to yours in your area.

Would you have any other suggestions about what steps a tenant can take to secure their future in a current rental?

So definitely trying to ensure that your rent is up to date as you're coming towards the end of the fixed term, because they're obviously things that the agent and landlord potentially will take into account when they're deciding whether they want the tenancy to continue or not.

What about during the tenancy approaching the end in terms of inspection of the premises by the agent or landlord?

Yeah, so if the landlord wants to inspect the property, they can do it four times within a 12 month period. So it may be as you're getting towards the end of the fixed term, the agent might want to come in and check the property. As long as they've given you the seven days written notice they are allowed to access to do the inspection. And often that's a good opportunity to have a conversation with them about the fact that you're enjoying living in the property. And they can see that you've been taking really good care of it and you feel really comfortable there and you would like to continue to stay in the property. So using that as an opportunity to have that face to face conversation is often a good idea. Because obviously sending emails or having phone calls is one thing. But if you can have a face to face conversation with the agent or a landlord about the property, while you're standing there talking about how you love it, and you've taken really good care of it, then that often can also assist in trying to ensure that the tenancy can continue.

This is part of Legal Aid's Law for Community Workers podcast series - Would you have any tips for community workers supporting a tenant who is in a fixed term lease and where the fixed term is due to end?

Yeah, so the first thing would be having a look at the lease agreement or finding out from your client as to when that fixed term lease ends, because that date is important to know. Also having a conversation with your client about whether they do want to continue living in that home or whether they want to potentially find something else. So that's a key thing to find out what they're wanting to do. If you find out that they do want to continue living in the property, then it's important to have a conversation with them about the possibility that they could get an end-of-fixed term-notice before the last day that fixed term agreement. If they want to approach the landlord or agent to sign another fixed term agreement, you could obviously also offer to have that conversation with the agent or landlord on their behalf. So there are things that you could do to try and assist that.

Sometimes during a tenancy a tenant might raise issues about problems with the premises, and they may then receive a notice of termination from the agent or landlord at the end of their fixed term. If a tenant feels that that notice has been given in retaliation to their requests for repairs, is there anything that they can do?

Yeah, so if you get an end-of-fixed term termination notice and you think that it is in retaliation. So you've taken steps to assert your right but maybe that you've written to the landlord or agent and ask for repairs or you've applied to the tribunal and then you're issued with an end-of-fixed term termination notice then as a tenant, you can apply to the tribunal - which is the New South Wales Civil and Administrative Tribunal, then you can ask the Tribunal to make an order that the notice of termination is retaliatory. What the tribunal would have to decide is whether they think the landlord was either wholly or partly motivated by you taking steps to assert your rights in them issuing that notice. It's very difficult to succeed in retaliation arguments in the tribunal. So if you think potentially that it is retaliatory, it's important that you get some advice from your local tenants advice service. And don't delay getting that advice, because there are some time limits that apply to applying to the tribunal to argue that a notice is retaliatory. So it's important to get that advice as soon as you get that termination notice so that you can then decide what steps you want to take. I guess the other thing to point out is that if you do get a termination notice, any type of termination notice from the landlord or agent, you don't have to vacate on the date specified in that notice. So even if a termination notice is valid, it's giving you the correct notice period, if you're not able to find another premises or not able to move out within that time period, there's a tribunal process that the landlord has to follow if they want to terminate your tenancy. So they can't just come in after the notice is expired and tell you to leave. They need to have an order from the tribunal that says that they've got a right to do that.

Do you also see landlords using a no grounds notice for tenancies that are no longer within the fixed term?

Yeah, if they don't give you the termination notice before your fixed term ends, then your tenant automatically rolls over into what we call a periodic ongoing tenancy agreement. And in that situation, then they're required to give you the 90 days no grounds notice. So it does give you more notice, but they can still give that type of notice once you're on a periodic tenancy. The good thing with a periodic 90 days no grounds termination notice, you don't have to stay for the full 90 days. So if you are able to find another property within a couple of weeks or a month after you've gotten that notice, you do have the right to then move out of the property and you don't have to pay double rent, which can be problematic if a tenant finds a property sooner. So that's one upside of the 90 days no grounds notice is you can leave before the end and you don't have to continue paying rent.

And I suppose for tenants who have had a good relationship with their agent, a good tip might be for them to request a reference from that landlord. Yeah, absolutely.

If you can get a written reference from the landlord or agent, then it will assist you in finding another property because obviously you can attach that to your application. Or if they weren't provided in writing, then it's definitely worth having a conversation with them or send them an email to let them know you've applied for another property and you'd really appreciate if they can provide a reference to the new agent or landlord if they call and obviously, also, having a copy of your rental ledger can help as well - that's often something that a new agent or landlord will request from your old property as well.

Thank you. That's all the questions that I had for you today. Did you want to add anything else?

I guess the main thing would be to say if you get any termination notice, you should contact your local tenants advice service so that they can give you advice about whether the notice is valid and whether you potentially have any argument to try and dispute the notice. For example, the retaliatory notice that we talked about. There's also particular rules about how a notice has to be served on you and things like that. So it's definitely worth getting in contact with your local service as soon as you receive a termination notice that you can get some good advice about whether it's a valid notice or not.

That's great advice. Thank you, Eloise, and thank you for your time today.

Thanks.

That's all for this mini episode. Look out for Episode Four in our series renting matters, which is what you can do when a landlord asks you to leave.