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Domestic violence and tenancy laws
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Domestic violence and tenancy laws

30 Jun 2020 20 mins read

State and territory governments are amending tenancy legislation to provide greater options and support for Australians facing family and domestic violence. While the amendments are designed to better respond to those suffering abuse, they also affect landlords and property professionals who manage rentals…

A home should be a sanctuary, a refuge, a place of safety. But for some, the home is the scene of abuse. Statistics from the ABS reveal that one in six Australian women and one in 16 men have been subjected, since the age of 15, to physical and/or sexual violence by a current or previous cohabiting partner.

People escaping violence often flee with little more than the clothes on their back. If the survivors are in a rental, they often have little choice but to break the lease and abandon the property, accrue rent arrears and damage bills, and often leave behind all of their possessions.

Most state and territory governments have recognised the challenges facing these tenants and have moved to legislate to make it possible for them to leave rented accommodation without additional financial and legal imposts. Previously, if a lease was terminated early, all tenants were held equally responsible for break-lease expenses and any damage to the property. In addition, the lease could not be broken without first applying to a tribunal or court for an order. The penalties for not following the process and fulfilling contractual obligations could be harsh, and included blacklisting and loss of bond. Ultimately, the process left the survivor tenant in a vulnerable position as they looked to escape the perpetrator and seek new accommodation.

Depending on the jurisdiction (see the state by state guide below), changes to tenancy legislation have provided added protections and generally made it possible for the survivor tenant to immediately break their lease without penalty, not be held liable for rent arrears or damage caused by the perpetrator, and not be blacklisted on a tenancy database.

These safeguards are essential to help protect the survivor of abuse. But the financial impacts then fall to the landlord who is often left with:

  • an abandoned property that must be re-let once the legalities are taken care of, or left trying to evict the perpetrator tenant
  • responsibility for disposing the tenant’s abandoned possessions (in accordance with legislative requirements)
  • unpaid rent
  • unpaid utility charges
  • the costs of repairing malicious damage to the property (the rental often bears the brunt of aggression too).

In the end, the landlord can be left thousands of dollars out-of-pocket and often with no recourse to recoup their losses (though they may be able to take legal action against the perpetrator tenant or the person responsible for causing damage).

Luckily, property owners with landlord insurance will often have their losses covered by their insurer, making landlord insurance an important financial safeguard.

Landlords and agents should check with the insurance provider to see if their property is covered for incidents relating to family and domestic violence including rent default and damage caused by malicious acts. EBM RentCover Ultra, Prime, Platinum and Gold  policies provide up to $65,000 to cover malicious damage and up to 52 weeks cover for denial of access. RentCover Ultra and Platinum also cover up to six weeks’ cover for rent default. Depending on the circumstances, our policy may also cover expenses relating to legal proceedings, changing locks or theft by tenants.

Family and domestic violence tenancy legislation – state by state

Western Australia

In April 2019, the Western Australian State Government amended the Residential Tenancies Act 1987 to provide greater protections for survivors of family or domestic violence.

This is what survivor tenants need to know:

  • You have the option to leave a tenancy agreement without going to court and provide seven days’ notice to the landlord (tenants can leave right away for safety but will need to pay rent until the end of the notice period). To do this, you need to provide your landlord with a termination notice and evidence of family violence.
  • You can apply to the Magistrates Court to have a perpetrator’s name removed from a lease.
  • You can apply to the court to have the magistrate assign liability for any damage to the premises or unpaid rent because of family or domestic violence to the perpetrator. If you don’t get a court order, then you remain jointly liable for any damages or debt.
  • You can make your rental home safer by changing the locks or adding security. You don’t need your landlord’s permission to change the locks but you must give them a set of keys within seven days.
  • You can sort out disputes about property damage, unpaid rent or bonds so you are not left out of pocket for something that’s not your fault.
  • You can seek removal from, or avoid being listed on, a tenancy database (blacklisted) if the listing was because of family or domestic violence.

This is what landlords/agents need to know:

  • Your survivor tenant can provide you with a Notice of Termination of Tenant’s Interest in Residential Tenancy Agreement on Grounds of Family Violence – they must provide evidence of the domestic violence with the notice.
  • The tenant must give you seven days’ notice (if they choose to leave the property immediately, they are still required to pay rent for the seven days).
  • You cannot challenge your tenant’s request to break the agreement if the notice and supporting evidence have been completed properly and you’ve been given at least seven days’ notice.
  • If there are co-tenants, you must give the co-tenant a copy of the notice to terminate on grounds of family violence, but you must not include the evidence or disclose that information to the co-tenant (you can be prosecuted if you do). You must give the co-tenant seven days to decide if they want to continue with the tenancy agreement. If a co-tenant wants to stay, you must let the lease continue (you can’t tell them they have to leave). If the co-tenant decides to leave, they must give you 21 days’ notice.
  • Your survivor tenant can apply to the Magistrates Court to have the perpetrator removed from the lease. You will receive notice from the court and you have the right to participate in the proceedings if you wish. 
  • In the case of damage to the premises or unpaid rent because of family or domestic violence, the magistrate can assign liability to the perpetrator. Either a vacating or remaining tenant will need to apply for this court order. If there is no court order, all tenants remain jointly liable for any damages and or debt. This provision can only be used if a tenant’s interest in the tenancy has been terminated due to family or domestic violence circumstances.
  • Your tenant can change the locks without your permission but must give you a set of keys within seven days.
  • Your tenant can install security such as CCTV or external lighting at their own cost without your permission.
  • You cannot place the survivor tenant on a blacklist.

More info:

South Australia

In November 2015, the South Australian State Government passed the Residential Tenancies (Domestic Violence Protections) Amendment Act 2015 to provide protection against financial penalties for survivors of family and domestic violence (FDV) who are renting their homes.

This is what survivor tenants need to know:

Once an intervention order has been issued by the court or domestic abuse has occurred, survivor tenants can apply to SACAT to:

  • Terminate the tenancy
    • but if you want the tenancy to be terminated, and another tenant or the landlord does not agree with your application, then the tenancy can only be terminated if the tribunal decides that you would suffer more hardship than the other person.
  • Allow you to stay at the rented home and have the perpetrator leave
    • the tribunal must decide whether you can continue to meet your obligations as a tenant (e.g. pay the rent) and also take into account any views put forward by your landlord.
  • Allow you to leave the rented home and be removed from the rental agreement e.g. terminate your responsibility under the tenancy (consent from the co-tenant is no longer required), which removes your liability for rent or damage.
  • Stop a landlord from listing your details on a Residential Tenancy Database (blacklisted) for damage caused by the perpetrator.
  • Determine how the bond will be refunded.

This is what landlords/agents need to know:

  • Your survivor tenant can apply to SACAT to terminate the tenancy and not be financially liable after leaving. You can dispute your tenant’s application but the tribunal will only reject termination if it decides you would suffer more hardship than the tenant.
  • Your survivor tenant can apply to SACAT to remain at the rental but have the perpetrator leave. The tribunal will decide if this is acceptable. Tribunal will consider if the survivor tenant will be able to continue to meet their obligations (e.g. pay the rent) and also hear any views you put forward.
  • Where a residential tenancy is terminated because of an intervention order or due to domestic abuse and the tribunal finds that not all co-tenants under the lease are responsible for damage caused to the premises, the tribunal may make an order for payment of compensation against those co-tenant(s) responsible.
  • The tribunal also has the power to make an order for compensation to you for loss and inconvenience where termination of a residential tenancy agreement has been because of an intervention order.
  • Where an order has been made for payment for damage or compensation, the tribunal can also make orders for payment of the bond to you and any co-tenant who has been found not liable.
  • You cannot place the survivor tenant on a blacklist.

More info:

Northern Territory

In March 2020, the Northern Territory Government tabled the Justice Legislation Amendment (Domestic and Family Violence) Bill 2019. The Bill has not passed into legislation.

The new legislation proposes to allow a tenancy agreement to be terminated without being replaced as part of a domestic violence order.

However, if and until the legislation is amended by the Bill, the existing law applies.

This is what survivor tenants need to know:

  • You can apply to the Magistrates Court to for a Domestic Violence Order (DVO).
  • The court can also make a Premises Access Order which can make the perpetrator leave the premises you live in or not enter the premises you live in (or only enter in certain situations).
  • In some situations the court can make an order ending the tenancy agreement and create a new tenancy agreement.
  • If you and the perpetrator are both named on the lease, you can apply to the court to terminate the agreement and create a new tenancy agreement naming you or the perpetrator as the sole tenant.
  • You cannot change the locks or add security to the property without a reasonable excuse or your landlord’s permission. If you change the locks, you must give a set of the new keys to your landlord within two business days.
  • If you will be leaving your rental vacant for more than 30 days, you must tell your landlord.
  • If a person damages the rental property during an act of family or domestic violence, then you may not be held responsible for that damage.

This is what landlords/agents need to know:

  • Your survivor tenant can apply to the Magistrates Court to end the tenancy on the grounds of family or domestic violence.
  • Your survivor tenant can apply to the magistrates court to replace the tenancy agreement e.g. terminate the existing agreement and create a new agreement naming either the survivor or perpetrator as the sole tenant.
  • You must take reasonable steps to provide and maintain locks and security devices to ensure the rental is reasonably secure. If the locks become faulty or damaged, this is considered an emergency repair.
  • Your survivor tenant cannot change the locks or fit security devices without a reasonable excuse or your permission. If the survivor tenant does change the locks, they must give you a set of the new keys within two business days.
  • If your rental is damaged during the course of family or domestic violence, your survivor tenant may not be held liable for that damage.

More info:

Queensland

In Queensland, matters relating to family and domestic violence are addressed in the Domestic and Family Violence Protection Act 1989 and tenancy matters come under the Residential Tenancies and Rooming Accommodation Act 2008. Temporary changes to the tenancies act are in effect from 24 April to 31 December 2020.

This is what survivor tenants need to know:

  • You can give your landlord seven days’ notice that you want to end the tenancy due to family or domestic violence by completing the Notice Ending Tenancy form. You can leave immediately after providing notice and your liability for break-lease will be capped at one weeks’ rent. You will need to provide evidence of family or domestic.
  • You can also make an urgent application to QCAT for a termination order or an order ending your agreement or your interest in the agreement because of family or domestic violence.
  • You can apply to QCAT to remain in the rental and be named as the tenant, to remove the perpetrator from the tenancy agreement or to prevent your personal information being listed in a tenancy database (blacklisted).
  • You can change the locks or add security to the rental without first getting your landlord’s permission if you believe it is necessary to protect yourself, and you must give a set of the new keys to your landlord.
  • You cannot be held responsible for damage to the premises caused by family or domestic violence.
  • You can apply for your bond refund after you have vacated the premises.

This is what landlords/agents need to know:

  • Your survivor tenant can give you seven days’ notice that they want to end the tenancy due to family or domestic violence by completing the Notice Ending Tenancy (NET) form.
  • Your survivor tenant must have evidence to support their violence and you have the right to inspect the evidence (the tenant does not have to give you a copy) and you must not give anyone a copy of, or tell them about, the evidence.
  • You have the right to dispute your survivor tenant’s NET and supporting evidence. If you intend to dispute the action, within seven days’ of receiving the NET you need to notify the tenant that you intend to apply to the tribunal to have the notice set aside.
  • Your survivor tenant’s liability for break-lease will be capped at one weeks’ rent.
  • Your survivor tenant can apply to QCAT to end their tenancy or remove the perpetrator from the tenancy agreement and/or be listed as the sole tenant.
  • You have the right to attend the QCAT hearing and have your views considered.
  • If the tenancy is ended, you must give seven days’ written notice to each remaining tenant that the survivor tenant is no longer on the tenancy agreement. The tenancy agreement continues for all the remaining tenants in the property.
  • Your survivor tenant is not liable for any damage to the property caused by family or domestic violence.
  • You cannot place the survivor tenant on a blacklist.

More info:

New South Wales

In February 2019, the Residential Tenancies Amendment (Circumstances of Domestic Violence) Regulation 2018 came into effect in New South Wales. The reforms provide greater protections for survivors of family and domestic violence living in a rented property. In March 2020, temporary changes to the tenancy law were implemented.

This is what survivor tenants need to know:

  • You can end your tenancy immediately without being penalised. This means you will not be liable to pay any compensation or additional money for the early termination e.g. you will not need to pay a break fee, loss of rent, advertising and a re-letting fee or an occupation fee for abandoned goods.
  • You need to give a domestic violence termination notice to your landlord and each co-tenant. The notice you give to your landlord must include evidence of family or domestic violence.
  • If an Apprehended Violence Order (AVO) is granted that excludes a co-tenant (perpetrator) from accessing the property, then the perpetrator’s co-tenancy automatically ends and the tenancy simply transfers to any remaining co-tenant(s) named on the agreement.
  • If an AVO has not been obtained or does not include an exclusion order and the perpetrator is a co-tenant, you can apply to NCAT to end the perpetrator’s tenancy.
  • If you are not named on the agreement, you can ask your landlord to put the agreement in your name (if the landlord won’t agree, you can apply to NCAT).
  • You cannot change the locks without prior consent of your landlord or reasonable excuse. If you do change the locks you need to give a set of the new keys to your landlord within seven days.
  • You cannot be held responsible for any damage to the property by the perpetrator.
  • You cannot be listed on a tenancy database (blacklisted).

This is what landlords/agents need to know:

  • Your survivor tenant can give you a domestic violence termination notice and end their tenancy immediately without penalty (e.g. the survivor tenant will not be liable to pay a break fee, loss of rent, advertising and a reletting fee or an occupation fee for abandoned goods). The notice must include evidence of family or domestic violence and you must not disclose information in the domestic violence termination notice and supporting evidence. 
  • You can dispute the validity of the notice by applying to NCAT.
  • After a survivor tenant gives a domestic violence termination notice, a co-tenant who remains in the tenancy may apply to the tribunal to end their tenancy, and is entitled to a two-week period to only pay a portion of the rent and is not required to cover the departing survivor tenant’s share. This only applies if the remaining co-tenant is not the perpetrator of the family or domestic violence.
  • Perpetrator co-tenants that remain in the rental are required to pay the full amount of rent as specified in the tenancy agreement from the date the domestic violence termination notice is provided.
  • If an Apprehended Violence Order (AVO) is granted that excludes a co-tenant (perpetrator) from accessing the property, then the perpetrator’s co-tenancy automatically ends and the tenancy transfers to any remaining co-tenant(s) named on the agreement.
  • If an AVO has not been obtained or does not include an exclusion order and the perpetrator is a co-tenant, the survivor tenant can apply to the tribunal to end the perpetrator’s tenancy.
  • If the survivor tenant is not named on the agreement, they can ask you to put the agreement in their name. If you don’t agree, the tenant can apply to NCAT for an order to be recognised as a tenant under the original agreement.
  • Your survivor tenant cannot change the locks without your prior consent or reasonable excuse. If your tenant does change the locks, they must give you a set of the new keys within seven days.
  • Survivor tenants or non-perpetrator co-tenants cannot be held responsible for any damage to the property by the FDV perpetrator.
  • You cannot place the survivor tenant on a blacklist.

More info:

Australian Capital Territory

Tenancy reforms in the ACT’s Residential Tenancies Amendment Bill 2018 came into effect in November 2019. The new legislation included protection for survivors of family and domestic violence (FDV).

This is what survivor tenants need to know:

  • You can apply to the Magistrates Court for a domestic violence order (you’ll be referred to as a protected person). Once you have this, you can apply to ACAT for a ‘no cause’ termination of your lease. This enables you to end your tenancy agreement, meaning you can leave the tenancy. Or alternatively enables you to end the existing tenancy agreement and enter into a new agreement with the landlord, meaning you can stay in the rental.
  • If ACAT issues such a notice, it may decide you will not be charged any penalties for ending your lease such as advertising or re-letting fees.
  • You can change the locks (at your expense) without the permission of your landlord, but you must give them a set of the new keys as soon as possible.

This is what landlords/agents need to know:

  • Your survivor tenant can apply to ACAT for a ‘no cause’ termination of their lease. You will be given a copy of the application by ACAT and advised of the hearing date and time.
  • ACAT can make an order to end the existing tenancy agreement and can also require you to enter into a new tenancy agreement with the survivor tenant.
  • ACAT will decide the liabilities of the survivor tenant, the perpetrator and any other tenants on the existing tenancy about the bond.
  • ACAT may determine that the survivor tenant is not liable for any penalties for ending their lease such as advertising or re-letting fees.
  • Your survivor tenant can change the locks (at their expense) without your permission and must give you a set of the new keys as soon as possible.

 More info:

Victoria

The Victorian Parliament passed the Residential Tenancies Amendment Act 2018 in September 2018. The new laws include reforms concerning family and domestic violence (FDV).  

This is what survivor tenants need to know:

  • You can apply to the police for a family violence safety notice or to the Magistrates Court for a family violence intervention order. Once you have this you can change the locks (at your expense) without your landlord’s permission, but you must give your landlord a set of the new keys. You need your landlord’s written consent to make any other changes to the property like installing security measures.
  • If you have a periodic (month by month) lease, you can end the lease at any time by giving your landlord 28 days’ notice in writing. You do not need a safety notice or intervention order to do this.
  • You can apply to VCAT to end a fixed term lease early (the perpetrator tenant can also do this).
  • If you have a final intervention order and want to stay in the rental without the perpetrator tenant, you can apply to VCAT to end the existing lease and start a new lease, even if you aren’t currently listed as a renter.
  • VCAT can decide to end the lease early if you (or the perpetrator tenant) would suffer severe hardship (if the lease continued) greater than any hardship your landlord would suffer.
  • VCAT will decide if your landlord should be compensated due to the lease being ended early – and who will pay the compensation.
  • VCAT will decide how a bond (if any) will be refunded and who will be responsible for paying any outstanding expenses on the existing lease (e.g. repairs or bills).
  • If VCAT makes an order to break the lease, your landlord can’t charge you any break-lease fees.
  • You can negotiate with your landlord to end a fixed term lease early if you want to leave, or have the lease changed into your name if you want to stay. Your landlord can also negotiate with the perpetrator tenant to end a lease.
  • You can apply to VCAT to determine who is responsible for paying for any damage to the property.

This is what landlords/agents need to know:

  • If your survivor tenant has a family violence safety notice or a family violence intervention order they can change the locks (at their expense) without your permission, but they must give you a set of the new keys. The survivor tenant needs your written consent to make any other changes to the property like installing security measures. Unless you agree otherwise, they will need to restore the property to the condition it was in before the changes were made or compensate you for restoring the condition when they leave.
  • If your survivor tenant has a periodic (month by month) lease, they can end the lease at any time by giving you 28 days’ notice in writing.
  • Your survivor tenant or perpetrator tenant can apply to VCAT to end a fixed term lease early.
  • If your survivor tenant has a final intervention order and wants to stay in the rental without the perpetrator tenant, they can apply to VCAT to end the existing lease and start a new lease, even if they aren’t currently listed as a renter.
  • VCAT can decide to end the lease early if your survivor tenant (or the perpetrator tenant) would suffer severe hardship (if the lease continued) greater than any hardship you would suffer.
  • VCAT will decide if you should be compensated due to the lease being ended early – and who will pay the compensation.
  • VCAT will decide how a bond (if any) will be refunded and who will be responsible for paying any outstanding expenses on the existing lease (e.g. repairs or bills).
  • If VCAT makes an order to break the lease, you can’t charge your survivor tenant any break-lease fees.
  • If VCAT decides in favour of a new tenancy agreement, you can arrange a property inspection and ask for a new condition report.
  • If your tenants have left behind goods, you need to advise Consumer Affairs, and tell them family or domestic violence has occurred so they can arrange for the goods to be removed.
  • You can negotiate with your survivor tenant to end a fixed term lease early if they want to leave, or have the lease changed into their name if they want to stay.   You can also negotiate with the perpetrator tenant to end a lease.
  • Renters are responsible for damage to the property caused by family or domestic violence. Your survivor tenant can apply to VCAT to determine who is responsible for paying for any damage to the property. VCAT may decide that the costs should be paid by the survivor tenant, the perpetrator tenant or other renters.

More info:

Tasmania

The Tasmanian Residential Tenancies Act 1997 was amended in May 2019. Additional provisions to protect survivors of family and domestic violence (FDV) were implemented.

This is what survivor tenants need to know:

  • You can apply to the Magistrates Court for a Family Violence Order (FVO). Once you have this, you can apply to have the court make an order to end the perpetrator’s lease (e.g. take their name off the lease). This revokes their right to enter the premises and you don’t need their or your landlord’s permission to seek to remove the perpetrator from the lease.
  • You can apply to have the court make a new lease on your behalf, which will continue on the same terms and conditions as the old lease (which means you take on all the responsibilities of the agreement such as paying the rent).
  • Any bond paid will remain with the Rental Deposit Authority for the new lease, regardless of who paid it.
  • You can apply to terminate the lease agreement (e.g. no lease agreement between tenants and landlord).
  • You can apply to be taken off the lease agreement (this means the lease agreement will be solely between the perpetrator and landlord).
  • You can change the locks or add security without your landlord’s permission, but you must provide your landlord with a set of the new keys as soon as practicable.

This is what landlords/agents need to know:

  • Your survivor tenant can apply to the Magistrates Court for a Family Violence Order. Once they have this, your survivor tenant can apply to have the court make an order to:
    • terminate the lease;
    • end the perpetrator’s lease (e.g. take their name off the lease) – your permission is not required;
    • make a new lease in the survivor tenant’s name; or
    • remove the survivor tenant from the lease agreement (the agreement with the perpetrator tenant would continue).
  • Your survivor tenant can change the locks or add security without your permission, but must provide you with a set of the new keys as soon as practicable

More info:

Main photo by Taylor Wright on Unsplash

*While we have taken care to ensure the information above is true and correct at the time of publication, changes in circumstances and legislation after the displayed date may impact the accuracy of this article. If you need us we are there, contact 1800 661 662 if you have any questions. 

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