Hi everyone, after delivering an elective CPD on Tuesday (Changes to the RTA) we were presented with several questions and it was apparent that there has been conflicting information being provided to the industry that needed to be clarified . Jenny and I presented these questions to the Department of Commerce. Following are our questions and the answers which were promptly provided to us from the Department. Question 1: 1) Requirement to negotiate a suitable day/time prior to issuing a notice of entry: Section 46(4) of the Residential Tenancies Amendment Act 2011 states: “It is a term of every residential tenancy agreement that before the lessor gives notice under subsection (2) of a proposed entry to the premises, the lessor must make a reasonable attempt to negotiate a day and time for that entry that does not unduly inconvenience the tenant.” Therefore, the Department is of the view that the ‘negotiation’ cannot take place ON the form, it must be before the form is sent to the tenant. Further, the mandatory CPD training workbook on this section of the RTA states: “It will be a requirement of every tenancy agreement that the lessor or property manager, prior to issuing a notice of entry, make a reasonable attempt to negotiate with the tenant a day and time for any entry which does not unduly inconvenience the tenant. Where a lessor or property manager gives written notice to a tenant of proposed entry, the notice must specify both the day of entry and whether the entry will occur before or after 12.00pm on that day. These requirements apply to all types of entry to a tenanted property including routine inspections and showing the property to prospective tenants or prospective purchasers.” The Department is not prescribing how the negotiation should take place, this is up to the Lessor/PM to decide which method suits their business. I have discussed this with our proactive compliance team and they have advised that the most common methods that agents are suggesting to them that they will use are: a) Telephoning the tenants; b) Emailing the tenants; or c) Sending a SMS. The Department has been conducting agency visits on the amendments and many agencies have advised that they will be doing the ‘negotiation’ via a standard email where tenants are asked to select from a list of suitable days/times as opposed to making phone calls to each tenant. If an agency chose the email method and is intending to send an email out to multiple tenants at the same time, they would need to BCC addresses so that personal information is not revealed. Some agencies have also asked whether it would be acceptable to set out all the inspections times in the tenancy agreement. The Department is of the view that this would not be considered ‘negotiating’ prior to sending out the notice. Whichever method they choose, the Department is recommending that they keep a record as evidence of their attempts. The Department is also recommending that if they have not received a response from the tenant to the initial attempt, to try a couple more times to show it was a “reasonable” effort on their part and to also document this/keep a record. If the tenant still doesn’t respond, the Lessor/PM can then serve their notice. 2) ‘Break-lease’ charges Further to the article that I emailed earlier, there is also information on the Commerce website regarding charging fees and charges to tenants. commerce.wa.gov.au/ConsumerProtection/Content/Property_renting/Renting/Bonds.html#fees If a tenant wishes to end the fixed term tenancy agreement, the owner/agent cannot stop them from leaving however the tenant may be liable for damages which will be incurred by the owner of the property because the tenant is breaking the lease. These may include: Rent up until the time a new tenant moves in; Maintenance of the property until a new tenant enters the property; The unexpired portion of the letting fee; (only where an owner paid an agent to find the tenant) Advertising costs As explained on the Department’s website, tenants cannot be asked to pay any additional money other than rent and security bond during a tenancy agreement. The lessor cannot ask tenant/s to pay any administration fees, re-inspection fees or charges for sending tenant/s utility invoices or breach notices. 3) PCR: If you go to page 124 of the Regulations (slp.wa.gov.au/pco/prod/FileStore.nsf/Documents/MRDocument:24823P/$FILE/ResdntlTenanciesRegs1989-03-e0-00.pdf?OpenElement) it is prescribed that the PCR must contain the approximate dates for when the premises was last painted (inside and out), floorcovering laid and floorcovering professionally cleaned. 4) Smoke alarms/RCD’s: As explained on page 17 of the Tenant’s Guide: (commerce.wa.gov.au/ConsumerProtection/PDF/Publications/TenantsGuide.pdf), generally, the tenant is responsible for basic household maintenance including changing batteries for a smoke alarm where practical, changing light globes and vacuuming. As indicated in the Guide, some responsibilities will depend on particular circumstances and the agreed details of the tenancy agreement and should form a discussion between the tenant and the lessor/PM before signing the lease agreement. 5) The lease agreement: I have noted your comments on this and I have sought advice from our Legal Unit on what can be done about this, specifically the lack of signature blocks and space to include multiple tenants. As more information comes to hand, I will pass it on. Stay tuned everyone and let me know your thoughts on Negotiating a time for routine inspections!!!!!! especially those of you who have very large rent rolls, will you be emailing or sms asking tenants what days and times you??? REALLY!!!!!!!! We are no longer allowed to say in our letters that if the following day and time is not suitable please contact our office. We MUST NEGOTIATE A SUITABLE TIME PRIOR TO SENDING THE NOTICE OF INTENDED INSPECTION. Linda & Jenny
Posted on: Thu, 20 Jun 2013 03:04:43 +0000
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