Changes to NSW Tenancy Laws as a result of Domestic Violence

31 Jan, 2019

The Residential Tenancies Act 2010 (NSW) has been amended concerning several matters including domestic violence termination of a residential lease agreement. The domestic violence termination provisions will soon be in force and effect.

A Division called “Part 5 Division 3A Termination by tenant—circumstances of domestic violence” has been added. The Residential Tenancies Amendment (Circumstances of Domestic Violence) Regulation 2018 is about to take effect.

From and including 28th February 2019, a tenant or co-tenant who is, or whose dependant or partly dependant  child is, “in circumstances of domestic violence” can give a notice to the landlord and to all the co-tenants (if applicable) to end the victim’s tenancy on the same day. The victim may choose instead a date after the notice is given, as the stated termination date, and must vacate the premises on or by the stated termination date.

The central points of the added provisions are that if a tenant or co-tenant or the

(co-)tenant’s dependant child are “in circumstances of domestic violence” in the leased premises:

  1. the (co-)tenant can terminate his/her tenancy immediately by giving a termination notice to the landlord and to each co-tenant with stated same-day (or later) effect; and
  2. the termination notice given to the landlord needs to have one of the required forms of evidence attached; and
  3. if the (co-)tenant vacates the premises on the termination date stated in the notice (the same day as the date the notice is given, or on a stated later termination day), the (co-)tenant ceases to be a tenant under the residential tenancy agreement; and
  4. a valid termination of the tenancy has no “penalty”, that is, no compensation or other additional amount is payable (loss of rent compensation, break lease fee, advertising expense, re-let fee). That is, the common sorts of extra amounts payable for breach of a fixed term lease, are not payable; and
  5. for the 2 weeks after the notice is given, each of the remaining tenants is not required to pay more weekly rental than before. To be accurate, the provision says that for the 2 weeks, each of the remaining tenants is not liable to pay more than the amount resulting from the (total) rent immediately before the notice was given, divided by the number of tenants under the lease before (on the day before) the notice was given; and
  6. despite the provision that each remaining tenant is not liable for 2 weeks for more weekly rent than before the notice was given, a further provision says that the Tribunal may order the remaining tenant(s) to pay a different amount in respect of the 2 weeks. The provision does not allude to the circumstances which might influence a Tribunal to order a different amount. The potential for such a Tribunal order is therefore on the face of it entirely discretionary. We venture the suggestion, though, that because the Tribunal is not a court in the conventional sense with traditional inherent or legislated discretionary powers, the Tribunal is not likely to order a different amount absent an extraordinary situation; and
  7. none of the victim and co-tenants is liable to pay compensation for damage caused by the offender in a domestic violence incident.

The ability of a tenant to validly give a notice based on domestic violence grounds, is framed by the parameters of being “in circumstances of domestic violence”. Any one of the following four parameters needs to apply:

  1. the tenant, or the tenant’s (partly) dependant child, has been the victim of a domestic violence offence while in (not stated to the effect of “committed in”) the leased premises, and a relevant offender has been found guilty of that offence; or
  2. the tenant, or the tenant’s (partly) dependant child, is the person for whose protection a Domestic Violence Order is in force; or
  3. the tenant, or the tenant’s (partly) dependant child, is the person for whose protection an injunction is in force under certain provisions of the Family Law Act 1975; or
  4. the tenant, or the tenant’s (partly) dependant child, has been declared by a medical practitioner (within the meaning of the Health Practitioner Regulation National Law (NSW) to be a victim of domestic violence: –
    1. perpetrated by the relevant domestic violence offender; and
    2. perpetrated during the currency of the residential tenancy agreement. (Does this include a holding over period?)

As to the form of evidence referred to in (iv) above, the medical practitioner’s declaration needs to be in the form prescribed by Regulations. A “medical practitioner” under the Health Practitioner Regulation National Law (NSW) means “a person who is registered under this Law in the medical profession”. (Does this mean full registration, compared to other levels such as limited registration?)

Notably, as alluded to earlier, the parameters of “circumstances of domestic violence” do not explicitly require that the domestic violence occurs or has occurred within the leased property.

Further as to the form of evidence referred to in (iv) above, “relevant domestic violence offender” means:

(a) a co-tenant or occupant or former co-tenant or former occupant, or

(b) a person with whom a tenant or co-tenant giving a domestic violence

termination notice has or has had a domestic relationship, within the

meaning of the Crimes (Domestic and Personal Violence) Act 2007.”

Notably, as alluded to earlier, the parameters of “circumstances of domestic violence” do not explicitly require that the domestic violence occurs or has occurred within the leased property. The relevant point seems to be that the offender committed a domestic violence offence during the period the victim was a tenant under the residential tenancy agreement, or while the victim was the beneficiary of a DVO or a relevant injunction. Nevertheless, a legislated “Note” says that the definition of “relevant domestic violence offender” is intended to be read in the context of the provisions. We may ask whether there can be a valid notice by a domestic violence victim where the domestic violence occurred outside the premises but as a result of the offender’s knowledge of the place of residence of the victim? For the form of evidence comprising a medical practitioner’s declaration, the prescribed Form contemplates that the offender need not be a previous or current member of the household or previous or current tenant or occupant. This is consistent with the fact that the definition of “relevant domestic violence offender” includes a person with whom the victim “ … or has had a domestic relationship” (as defined). We suggest that it appears the answer is yes there can be a valid notice where the relevant domestic violence occurred at a place outside the leased premises.

There is nothing to prevent a co-tenant or the landlord from challenging the validity of a termination notice given on domestic violence grounds, in the Tribunal, where it is believed that the notice was not properly made, or where the landlord believes that one of the required evidence parameters has not been validly provided.

Importantly, details of the tenancy termination on domestic violence grounds, and details of the supporting evidence attached for the landlord, cannot be disclosed (in any tenancy check response, or otherwise) and the landlord must keep the documents and information secure or destroy the documents.

In conclusion, it is important that domestic violence events can be quickly addressed by the victim. The new provisions will hopefully operate effectively to assist tenant victims. We believe it is fair to suggest, though, that landlords may be sure to look through the evidence attached to the notice to see whether it appears to comply with the one of the four parameters mentioned earlier.

We would appreciate your feedback about this article. If you have any comments please feel free to contact us on 1300 883 916. As always, the article is not intended as legal advice and is not intended to be relied upon. It is of a general descriptive nature only, intended to be of interest as background information. If we can assist in any way, please feel free to contact us on the same number.

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