Tenancy Law in Western Australia.

This legislation details the obligations of both the landlord and the tenant before, during and at the end of a tenancy.

It is important that both landlords and tenants understand this legislation to ensure both parties know their rights and how they are protected by this law.

Tenancy agreement

There are two types of residential tenancy agreements, a Fixed Term Residential Tenancy Agreement or a Periodic Agreement.

A fixed term residential tenancy is an agreement between a landlord and a tenant for a specific period of time, usually for six months or one year.

A periodic agreement or tenancy is for a recurring period without a fixed term. This can continue for as long as necessary until one party decides to end it.

Before the agreement is signed the following must take place:

▪	the landlord or agent must give the tenant a copy of the proposed residential tenancy agreement and once signed by both parties the landlord must provide the tenant with a copy within 21 days
▪	the tenant must be provided with a copy of Information for tenants (a statement of your rights and responsibilities). You can download this from the Department of Consumer and Employment Protection (DOCEP) website.
▪	the tenant must be given reasonable time to consider the agreement
▪	the tenant must provide the landlord or agent with their full name and contact details
▪	the owner must provide the tenant with their full name and address where the tenant can contact the owner
▪	if an agent signs the agreement on behalf of a property owner, the agent must provide the tenant with the agency’s full name, the fact that they are acting as an agent, and if the agent is a company, an employee (usually the property manager) who can be contacted in relation to the agreement.

If both parties still wish to pursue the tenancy then the agreement is signed, bond paid (if requested), advance rent paid and the tenant can move in. A full inventory, or condition report, detailing the contents and condition of the property should also be signed by both parties.

The landlord is responsible for any costs involved in the preparation of the rental agreement.

Security deposits / rental bonds

A security deposit or bond can be requested from the tenant to cover damages, breakages or outstanding rent.

The amount that can be requested as a bond is 4 weeks rent except in the following circumstances:

▪	unlimited amount if the weekly rent is over $500
▪	unlimited amount if the owner was living in the property for the previous 3 months
▪	an extra $100 can be charged if the tenant has a cat or a dog to meet the cost of fumigation that may be required at the end of the tenancy

Once a tenant has paid a bond, the landlord or agent must provide the tenant with a receipt and lodge the bond with the State Government's Bond Administrator (a section of the Department of Consumer and Employment Protection), or an authorised financial institution (bank, building society, credit union) within 14 days. Real Estate Agents should deposit the bond into a “REBA Tenancy Bond Trust Account” held by a financial institution or into an individual tenancy bond account held by the bond administrator. Failure to do this is an offence. Both parties must sign a “Lodgement of Security Bond” form. This form is also available from the Department of Consumer and Employment Protection website. The bond administrator will then issue the tenant with a receipt. If the bond is paid into a financial institution then the landlord should give the tenant a copy of the lodgement form.

At the end of the agreement both parties should agree as to how the bond should be returned. Both parties must sign a “Joint Application for Disposal of Security Bond” form detailing how the bond is to be divided and this form should then be sent to the bond holder for a refund.

In the event that the two parties cannot agree on how the bond should be returned, or one party is missing, then either party must apply to the Magistrates Court for a hearing. An “Application for Disposal of Bond Money” form must be used. The other party is then notified by the court that an application has been received and they then have 7 days to dispute the application. If the other party chooses to ignore the notice then the court may issue an order for the release of the bond within 7 days.

In addition to requesting a bond the landlord can also request a payment of rent in advance. This is two weeks rent during the first fortnight. After this period the agreement can provide for rent payments on a weekly, fortnightly, four-weekly or calendar-month basis or any other period as agreed between the landlord and the tenant.

Landlord Responsibilities

During the tenancy the landlord is required to:

▪	provide and maintain the premises and common areas in good repair and cleanliness
▪	carry out any urgent and non-urgent repairs within a reasonable timescale
▪	pay for the installation and connection of any utilities such as gas, electric, oil and water and pay any annual service charges
▪	have adequate insurance for the building and fittings
▪	maintain all locks or security devices to ensure the property is secure
▪	install smoke alarms
▪	allow the tenant quiet enjoyment of the property
▪	provide receipts for any moneys received from the tenant
▪	keep records of all rent payments
▪	pay any council tax rates
▪	pay any charges for which the landlord has agreed to be responsible for

An increase of the rent can only occur if specified in the agreement. The agreement must state the amount of the increase or the method for calculating the increase. It cannot be increased within 6 months of the start of the tenancy or date of last increase. 60 days notice must be given.

Tenant Responsibilities

During the tenancy the tenant is required to:

▪	keep the property reasonably clean and tend to basic household maintenance
▪	pay the rent on time
▪	pay any metered services on time
▪	notify the landlord or agent of any problems or damages within a reasonable time scale
▪	return the property to the same standard except for reasonable wear and tear

They should also not:

▪	use the premises for any illegal purpose
▪	cause or allow nuisance
▪	disrupt their neighbours
▪	not change the locks or fix anything to the premises or carry out any renovation, alteration or addition without the landlord’s written consent.
▪	intentionally or negligently cause or allow any damage to the property

Urgent repairs during a tenancy

The tenant must notify the landlord as soon as possible if there are any repairs required and in writing so there is evidence that the landlord has been notified.

Urgent repairs are classed as:

▪	a dangerous electrical fault
▪	a failure of gas, electricity or water supply to the property
▪	flooding or serious flood damage
▪	serious storm or fire damage
▪	a gas leak
▪	a burst water service
▪	a blocked or broken lavatory system
▪	a serious roof leak
▪	a failure or breakdown of any service or appliance on the property essential for hot water, cooking, heating or laundering
▪	an appliance, fixture or fitting which is not working properly and causes a substantial amount of water to be wasted
▪	a fault or damage that causes the residential property to be unsafe or insecure
▪	a serious fault in any door, staircase, lift or other common area
▪	a fault or damage likely to cause injury to person or property.

The landlord must carry out these repairs as soon as possible however if the landlord fails to carry out these repairs or refuses to do so then the tenant can have the work done by a licensed tradesperson, unless the agreement states that they cannot authorise urgent repairs. If the agreement was prepared by the Real Estate Institute of Western Australia it will state that the tenant is not allowed to undertake emergency repairs. The urgent repair costs must be reasonable and the tenant should obtain a written report from the tradesperson stating the apparent cause of the problem and how it has been rectified. The tenant will need to pay the tradesperson and then put a request in writing to the landlord to be reimbursed. If the landlord fails to do so, the tenant can issue a “Notice of Breach of agreement – by landlord” form asking for the landlord to rectify this breach within 14 days. If the problem continues the tenant can apply to the Magistrates Court for an order.

For non-urgent repairs the tenant must inform the landlord of this in writing and the landlord must be given reasonable time to carry out these repairs. Again, if the landlord fails to do so, the tenant can issue a “Notice of Breach of agreement – by landlord” form asking for the landlord to rectify this breach within 14 days. If the problem continues the tenant can apply to the Magistrates Court for an order.

If the tenant, or a guest of a tenant, has caused the damage then the tenant is responsible for the cost.

Locks for the property may only be changed providing that the other party has consented. A copy of the new key(s) must be provided to the other party. It is the landlords responsibility to maintain any locks or other security devices to ensure that the property remains secure, unless the tenant has deliberately damaged these.

Accessing the property during a tenancy

If the tenant consents at the time, the landlord can enter the property.

The landlord or agent can inspect the property at a reasonable hour providing that written notice of 7 – 14 days has been given detailing the date and expected time of the inspection and the reason why.

The landlord can enter the property to carry our any repairs or maintenance. At least 72 hours notice and a reasonable time and day should be specified in the notice.

The landlord can enter the property to show it to prospective buyers after giving reasonable notice.

The landlord can enter the property to collect rent payments if the rent is paid weekly or less frequently and the agreement states that the rent can be collected from the premisies.

The landlord can enter the property to show it to prospective tenants in the last 21 days of the tenancy agreement. Reasonable notice must be given.

The landlord can enter the property at any time in the case of an emergency.

Ending a tenancy

In order to end a tenancy correct notice must be served to the other party unless both parties agree to end the tenancy. If this is the case both parties should have a clear, written statement explaining this.

However it may be necessary to end a tenancy for other reasons such as a breach of the agreement or personal reasons. Whatever the reason there are procedures to follow.

Notice by landlord

Fixed term tenancies cannot usually be ended until the date stated in the agreement however if the tenant is in rent arrears or there has been a breach then the landlord can serve notice.

If a landlord or agent wishes to end a fixed term tenancy because the tenant is in rent arrears they must serve the tenant with a “Notice of termination for non-payment of rent”. It should be issued 1 day after the rent should have been paid. It states that the tenant has 7 days to pay the outstanding rent or the agreement will be terminated. It also states that if the tenant fails to do this and also fails to vacate the property then the landlord will be making an application to the Magistrates Court.

If a landlord or agent wishes to end a fixed term tenancy because the tenant has breached the agreement for another reason, other than failure to pay the rent, then the landlord should serve them with a “Notice of Breach of agreement – by tenant” and allow the tenant 14 days to rectify the situation. If the problem is still not rectified after this period of time the landlord can then serve a “Notice of termination” giving them notice that the tenancy will end no sooner than 7 full days from the date the notice is received. Again, if the tenant fails to move out after the 7 days then the landlord must apply to the Magistrates Court for an Order of Possession.

If the property becomes inhabitable or is compulsory acquired by law then the landlord must give the tenant 7 days notice in writing.

If a fixed term tenancy ends and neither party have made other arrangements and the rent payments continue then the tenancy becomes a periodic tenancy. To end a periodic tenancy the landlord must serve the tenant with a Termination Notice. 60 days notice must be given.

In the event that the property is sold with vacant possession then 30 days notice must be given.

If the landlord believes that the tenant is causing, or is likely to cause, serious damage to the property or personal injury to the landlord or agent then an application can be made to the Magistrates Court asking that the agreement is terminated immediately.

Notice by tenant

A fixed term agreement is a binding contract and the tenant is committed for the period of lease. However a tenant may need to end a fixed term contract early. Reasons for this could include loss of job, illness, job relocation or threat of violence. The tenant should give 21 days written notice to the landlord. However the tenant may still be responsible for rent until the landlord can find replacement tenants. They may also be responsible for any advertising costs incurred by the landlord in re-advertising the property but only if this is stated in the agreement. The landlord must take all reasonable steps to find a replacement tenant.

If a fixed term tenancy ends and neither party have made other arrangements and the rent payments continue then the tenancy becomes a periodic tenancy. To end a periodic tenancy the tenant must serve the landlord with written Notice. 21 days notice must be given

The tenant can give 2 days written notice if the property is inhabitable or is compulsory acquired by law.

Both parties can apply to the Magistrates Court to terminate the agreement if they believe that continuing the agreement could cause them severe hardship.

Termination by the Magistrates Court

The local Magistrates Court will deal with any disputes relating to tenancies.

Either party can make an application to the court for a termination. A hearing will then take place where each party can provide evidence. The court will then make any orders and explain why those orders were made. These orders must be obeyed.

Application forms and further information can be obtained from the Magistrates Court section of the Department of Attorney General website.

Eviction

It is illegal for a landlord to force a tenant out of the property without a court order. The landlord must seek a court order to end the tenancy and take possession of the property. The order can be enforced by a warrant authorising a bailiff to evict the tenant. The landlord is not allowed to cut any supplies or change the locks in an attempt to force the tenant out of the property.

This is a brief guide to Tenancy Law in Western Australia. For a full copy of the Residential Tenancies Act 1987 (RTA) please click heree.