30 January 2019

Victims of domestic violence empowered to break lease

New laws will empower tenants experiencing domestic violence to terminate their tenancy immediately and without penalty.

Effective on 28 February 2019, the Residential Tenancies Amendment (Circumstances of Domestic Violence) Regulation 2018 (NSW) (the Amendment Regulation) offers improved protection for victims of domestic violence living in a rental property.

Declaring domestic violence

The necessary change is part of a package of tenancy amendments initiated by the statutory review of the Residential Tenancies Act 2010 (NSW) (the Act).

To terminate a residential tenancy agreement, a tenant or a co-tenant must provide a termination notice along with supporting evidence if a tenant, co-tenant or dependent child is in circumstances of domestic violence. Currently, supporting evidence includes a final apprehended violence order. 

Once the Amendment Regulation commences, supporting evidence will include a certificate for conviction for the domestic violence offence, a family law injunction, a provisional, interim or final Domestic Violence Order and a Declaration of Competent Person [1], which is a prescribed form to be completed by a competent person.

This means a competent person – who must be a registered medical practitioner, for example, a GP, physician, psychiatrist or paediatrician – can now declare that a tenant or their dependent child is a victim of domestic violence.

To make the declaration the medical practitioner must consult with the tenant or dependent child in a professional capacity and complete the prescribed form.

The Amendment Regulation also includes updates to the standard form of residential tenancy agreement to make it clear that a tenant or co-tenant (who is not the offender) is not liable for damage to the premises caused as a result of a domestic violence offence.

Penalty-free tenancy termination

The landmark laws ensure a tenant or co-tenant in circumstances of domestic violence will not be liable to pay compensation or fees for the early termination of their lease, including break fee, loss of rent, re-letting and advertising fees or costs relating to abandoned goods.

However, more than just financial support, the Amendment Regulation ensures victims of domestic violence will not be discriminated against when securing a future rental property. 

The Amendment Regulation will prevent landlords and agents from listing a tenant on a residential tenancy database if the lease ended in circumstance of domestic violence. They will also be prohibited from disclosing information in the domestic violence termination notice and supporting evidence. For example, details of the termination cannot be disclosed in a future reference check. 

Co-tenant rights

Following a termination notice by a victim of domestic violence, a co-tenant can apply to the Tribunal to end their tenancy. 

If the co-tenant is not the perpetrator of the domestic violence – and continues to reside at the property after the termination notice is served – they are entitled to a two-week period of paying only their share of the rent. They are also not responsible for property damage caused by the perpetrator in a domestic violence incident.

These rights are in addition to existing laws applying to co-tenants, and co-tenants retain the right to dispute the validity of a domestic violence tenancy termination.

Striving for fair and safe outcomes

REINSW and the Property Management Chapter Committee, as key stakeholders, were invited by NSW Fair Trading to consult on the development of the Declaration of Competent Person form and lodged a Submission in response to the draft form on 28 November 2018.

NSW Fair Trading has advised REINSW that the Declaration of Competent Person form will be available on its website prior to the commencement of the new laws. REINSW will also make the form available on REI Forms Live and its website.

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[1] Set out in Schedule 2A to the Residential Tenancies Regulation 2010 (NSW)