1. By Gabrielle Craig & Kellie McDonald Hawkesbury Nepean Community Legal Centre February 2011

2.  This information has been prepared by Hawkesbury Nepean Community Legal Centre. The information is provided for the purposes of information and education and it not intended as legal advice. Hawkesbury Nepean Community Legal Centre excludes liability for any detriment arising from reliance upon this information. For legal advice about your particular circumstances, please consult a lawyer.

3.  The Residential Tenancy Act 2010 came into effect on 31 January 2010 replacing the 1987 Act.  The purpose of today’s presentation is to look at how the new Act deals with domestic violence.

4.  The new Act includes provisions relating to co-tenants.  The CTTT now has the jurisdiction to deal with disputes between tenants, not just disputes between landlords and tenants.

5.  There are five main questions you must ask to determine the options available to a victim of violence. These are: 1.Are they a tenant? 2.If yes, are they a sole tenant or a co-tenant? 3.Are they in a fixed term or periodic RTA? 4.Do they want to stay or leave the premises? 5.Is there a final AVO excluding a co-tenant, former tenant or occupant from the premises?

6.  Today we will discuss options for victims of violence who are: ◦ Co-tenants in fixed term and periodic agreements who want to leave; ◦ Co-tenants in fixed term and periodic agreements who want to stay in the premises; ◦ Sole tenants in fixed term and periodic agreements who want to leave; ◦ Sole tenants in fixed term and periodic agreements who want to stay in the premises; and ◦ Options available to occupants.

7.  We will also discuss the provisions in the new Act that deal with locks and security.

8.  Sole tenancy – one person is named on the residential tenancy agreement (RTA).  Co-tenancy – where there is more than one tenant on the RTA.  Occupant – is a person who resides in a rental property, who is not a tenant.

9.  Fixed term agreement – a RTA for a specified period (eg. a 6 month lease).  Periodic agreement – a RTA that is not for a specified period.

11.  A co-tenancy is where two or more people are named on the RTA.  Co-tenants are jointly and severally liable under the lease agreement.  This means landlords can pursue either or both tenants for all rent and any damage to the property.

12.  Fixed term agreements can only be ended in limited circumstances before the end of the fixed term.  If an agreement is ended before the end of the fixed term, the tenant may be liable to compensate the landlord.

13.  If one tenant leaves due to DV and the other tenant stays in the premises the agreement doesn’t end.  The tenant who left may be liable for rent or any damage caused by the tenant who stayed in the property.

14.  Unless the victim is willing to continue to pay the rent she risks incurring a substantial debt and risks not obtaining tenancies in the future.

15.  Jane and Dave are in a de facto relationship. They sign a 12 month fixed term RTA. Two months into the agreement Jane leaves the premises to stay in a refuge because Dave is violent towards her. Dave stays living in the premises but stops paying rent.  Six months later Jane applies for a rental property. Her application is refused because her name is listed on a tenants database for rent arrears.

16. FIXED TERM AGREEMENT

17. 1.If a co-tenant, occupant or former co-tenant is prohibited by a final AVO from having access to the premises then:  The tenancy of the defendant in the AVO proceedings will automatically be terminated (s 79(1) );  The victim wanting to leave may give a 14 day termination notice to the landlord (s 100); and  The tenant leaving is not liable to compensate the landlord (s 100(4)).

18. 2.A co-tenant may end or transfer their agreement with the consent of BOTH the landlord and other co-tenant (s 81(4)(e)).

19. 3.A co-tenant may apply to the CTTT for an order terminating their tenancy due to the “special circumstances” of their case (s 102 (2) ). NOTE: A co-tenant may be ordered by the CTTT to pay their landlord compensation.

21. Alex and Peta are a co-tenants on a 12 month fixed term RTA. Six months ago Peta was assaulted by Alex. Peta reported the incident to the Police, who applied for an ADVO. At the time she was granted an interim ADVO with only mandatory Orders. After the interim Order was made Alex refused to move out so Peta and Alex were still living together. Peta has now been granted a final AVO with an exclusion order and wants to move to Perth to get away from Alex.

22.  Alex’s RTA is automatically terminated under s 79(1) because there is a final AVO with an exclusion order.  Peta can give her landlord a 14 day termination notice and move out without being liable to compensate her landlord under s 100.

23.  Sophie and Jordan are co-tenants and are 2 months into a 6 month RTA. Jordan has been violent towards Sophie and she has had enough and wants to move out. She doesn’t want the Police involved. Jordan has said he’d rather live with his friend, Dwayne than live with Sophie. The landlord has said that he doesn’t care who lives there as long as he’s paid his rent on time.

24.  The easiest option would be for Sophie to move out and end or transfer her RTA with the consent of her landlord AND Jordan under s 81(4)(e).  NOTE: It’s very important that Sophie gets this agreement in writing.  Alternatively, Sophie can make an application to the CTTT to end the tenancy due to ‘special circumstances’ under s 102(2). You will need to advise Sophie that she may be liable to compensate her landlord.

25.  Somali is a co-tenant on a 18 month fixed term RTA with her husband, Abdul. Abdul sexually assaults Somali. Somali reports the assault to the Police and the Police arrest Abdul and make an application for an ADVO for Somali. The matter goes to court and an interim ADVO is ordered. Abdul is granted bail and the hearing for the sexual assault will take place in about 12 months. The ADVO matter is adjourned to be determined alongside the charges. Abdul has threatened to kill Somali and she wants to move out as soon as possible. She doesn’t want to have any contact with Abdul.

26.  As there is no final AVO Abdul’s RTA does not automatically end under s 79(1).  As Somali doesn’t want any contact with Abdul it would be difficult to try to end or transfer her RTA by consent under s 81(4)(e).  Somali should make an application to the CTTT for her RTA to be terminated due to ‘special circumstances’ under s 102(2) and may be liable to pay her landlord compensation.  Somali could provide the CTTT with the evidence of the interim AVO, the police charges and the medical records to assist her with her application.

27. PERIODIC AGREEMENT

28. 1.A co-tenant can give their landlord and all other co-tenants 21 day termination notice (s 101). 2.A co-tenant may end/transfer their agreement by consent (s 81(4)(e)).

29.  Rachel is a co-tenant with her de facto Sharon in a periodic lease agreement. Sharon is violent towards Rachel and Rachel wants to leave. There is no AVO in place.

30.  Rachel can serve a 21 day notice of termination on Sharon and her landlord and leave the property under s 101.  Rachel could also end or transfer her tenancy with the consent of her landlord and Sharon under s 81(4)(e).

31. FIXED TERM AND PERIODIC AGREEMENTS

32. Options 1.A co-tenant can apply to a local court for a final AVO against the perpetrator of violence (the other co-tenant) and ask for an exclusion order. The tenancy of the perpetrator will automatically end and the victim can stay in the premises (s 79(1)). 2.A co-tenant may apply to the CTTT for an order terminating the tenancy of the other co-tenant by arguing “special circumstances” (s 102(2)). Co-tenant may be liable to compensate the landlord. 3.If a co-tenant applies for an AVO against a perpetrator of violence who is a co-tenant and is granted an interim exclusion order, the perpetrator must not live in the premises.

34. FIXED TERM AGREEMENT

35. Options 1.The tenant can terminate a fixed term agreement early with the consent of the landlord (s 81(4)(e)). 1.The tenant may give 14 day notice of termination if a former co- tenant or occupant has been excluded from the premises by final AVO (s 100). 1.The tenant may apply to the CTTT for an order terminating their agreement due to hardship (s 104) (compensation risk). 2.The tenant can give a 14 day termination notice to their landlord at the end of the fixed term (s 96). 3.The tenancy also is terminated when the tenant abandons the premises (s 81(4)(d)) (compensation risk).

36. PERIODIC AGREEMENT

37. Options 1.Tenant can give a 21 day termination notice (s 97). 2.Tenant can abandon property, but may be liable to compensate the landlord (s 81(4)(d)).

39.  As the occupant is not a tenant they are not bound by the obligations under the Residential Tenancies Act 2010 and may leave the premises at any time with no liability under the Act.

40.  Since the occupant doesn’t have a legal agreement with the landlord, they don’t have any legal right to be or stay in the premises.  The occupant can apply to the local court for an AVO and ask for an exclusion order.  If a former tenant is excluded by a final AVO or leaves, an occupant should apply to the CTTT for an order they be recognised as a tenant (s 79 or s 77).

41.  Phillip is renting an apartment by himself in Darlinghurst. Phillip’s boyfriend, Ricardo, moves in with him and they live together for 6 months. While they are living together Phillip is violent towards Ricardo. Ricardo obtains an ADVO with an exclusion order against Phillip.

42.  Ricardo can apply to the CTTT for an order under s 79(2) that he be recognised as a tenant.

44.  Under the 1987 Act a tenant could not change the locks of the premises or make other alterations to the premises without the consent of the landlord.  Under the new Act the tenant may, alter, remove or add a lock or other security device without the permission of the landlord if they have a ‘reasonable excuse’ (s 71(1)(b).

45.  A ‘reasonable excuse’ can include: ◦ In an emergency; ◦ In accordance with an order from the CTTT; ◦ After the tenancy of a co-tenant was terminated; ◦ After a tenant or occupant was prohibited from having access to the premises by an AVO  (s 71(2)(a) – (d).

46.  A copy of the key and any other opening device or information required to open a lock or other security device that is altered, added or removed must be given to the other parties within 7 days unless: ◦ The other party agrees; or ◦ The CTTT authorises a copy not to be given (s 71(1)(a) – (b).

47.  The Act specifies that a key does not have to be given to a person who is prohibited from having access to the to the premises by an AVO.  However, unless there is an AVO prohibiting access to the other co-tenant, then the victim must give a key to the other co-tenant. In this instance a victim should apply to the CTTT for an order that they do not have to give the key to a perpetrator of violence.

48.  It is important to be aware that a notice of termination must include certain things for it to be legally valid. It must: ◦ Be in writing; ◦ Be signed by the party giving notice (or their agent); ◦ Name the relevant residential premises; ◦ Include the day on which the tenancy is terminated and the day vacant possession will be given; and ◦ If the notice is not given under s 84, 85, 96 or 97, include the ground for the notice.

49.  There are five main questions you must ask to determine the options available to a victim of violence. These are: 1.Are they a tenant? 2.If yes, are they a sole tenant or a co-tenant? 3.Are they in a fixed term or periodic RTA? 4.Do they want to stay or leave the premises? 5.Is there a final AVO excluding a co-tenant, former tenant or occupant from the premises?