17 March 2020
This article is part of the RTA in Focus series. With a raft of reforms to the residential tenancies framework set to start on 23 March 2020, we’re giving you the information you need to ensure you understand your obligations.
You can access all the articles in the RTA in Focus series here.
Tenants will be able to make certain listed prescribed minor changes to the premises and the landlord is not able to unreasonably withhold consent.
One of the more controversial amendments to the Residential Tenancies Act 2010 (NSW) that is sure to raise concerns for landlords and property managers alike relates to tenants making changes of a “minor nature” to the premises.
A list of changes deemed to be of a “minor nature” will be set out in the Residential Tenancies Regulation 2019 (NSW) and the landlord can’t unreasonably refuse consent where the tenant requests to make these changes.
Kellie Eagles, Property Management Director at Elders Queanbeyan/Jerrabomberra and Deputy Chair of the REINSW Property Management Chapter Committee, predicted that this amendment will undoubtedly cause angst for some landlords.
“REINSW lobbied strongly against this amendment on the basis that landlords should be able to decide what changes are made to their property,” she said. “Individual tenants will invariably have their own needs or desires when it comes to making changes to the rental premises. However, we believe that landlords should have the absolute discretion to say ‘no’ to ad hoc changes to suit a particular tenant’s needs.
“While it’s important that the tenant feels that the property is their home, it is, after all, the landlord’s asset.”
On and from 23 March 2020, property managers need to ensure they have systems and processes in place to ensure that both landlords and tenants understand their obligations and responsibilities when it comes to making changes of a minor nature to the rental premises.
Currently, in accordance with section 66(1) of the Residential Tenancies Act, tenants are allowed to install fixtures or make alterations, renovations or additions to a rental premises if they have written consent from the landlord or the residential tenancy agreement permits it.
Section 66(2) goes on to state that the landlord must not unreasonably withhold consent if the change requested by the tenant is of a “minor nature”.
Seems straightforward enough, but is it? What changes are considered to be of a “minor nature”?
To date, the phrase “minor nature” has not been defined, leaving it open to interpretation. Therefore, property managers have been in the position where they must act as a negotiator between the landlord and the tenant to broker a mutually satisfactory solution.
A new section 66(2A) will be inserted into the Residential Tenancies Act, setting out that certain alterations, additions, renovations and fixtures may be prescribed as of a “minor nature” and that the landlord is not able to unreasonably withhold consent. Further, with respect to certain prescribed minor changes, the landlord may give consent on the condition that an appropriately qualified person makes the change.
Clause 22 of the Residential Tenancies Regulation 2019 (NSW) sets out the list of the changes that are deemed to be of a minor nature. These are:
It’s important to note that, in the case of hand-held shower heads, lever-style taps, phone lines and internet services, clause 22 permits the landlord to require the installation to be carried out by a suitably qualified person.
Even if a change is listed in clause 22, the tenant must still obtain written consent from the landlord to make the change.
Certain properties are exempt from the operation of these changes, including properties listed on the loose-fill asbestos insulation register, heritage listed properties and some strata and community title properties.
Kellie said that the way these amendments play out in practice is potentially problematic, particularly from a landlord’s point of view, giving the example of a tenant wanting to create an image gallery of photo frames on the lounge room wall.
“Hanging a painting or frame is listed as a minor change in the Residential Tenancies Regulation, but what if the tenant wants to hang 12 photo frames requiring 12 picture hooks?” she asked. “Is it reasonable to expect the landlord to accept 12 holes in a single wall? Do they need to simply accept the resultant damage to the wall?
“Taking it a step further, will the configuration of the hooks suit the next tenant? Does it reduce the suitability or attractiveness of the property in the marketplace?”
In another example, Kellie pointed to a tenant who may have a number of taller and larger furniture items (such as wall units, bookcases and tallboys) that need to be secured to various walls for safety purposes.
“While safety is paramount, it’s also necessary to consider that every tenant will have different pieces of furniture that they inevitably place in different positions throughout the premises,” she said. “Should a landlord be expected to simply accept the fact that every time a new tenant moves in, another series of holes for security brackets will be drilled into the walls?
“Further, in the case of properties with Gyprock walls, it’s necessary to carefully locate security brackets to ensure they’re affixed to a wall stud and securely anchored. If they’re not, they may easily pull free causing additional damage to the wall and potential injury to an occupant of the property.
“This underlines the need for such work to only be carried out by a qualified tradesperson and not the tenant themselves.”
Kellie advised that property managers should be diligent in reminding all tenants of their obligations.
“Yes, a landlord cannot unreasonably refuse consent to the changes listed in clause 22 of the Residential Tenancies Regulation,” she said. “However, the tenant is still obliged to always seek the landlord’s written consent.
“To avoid any issues, before any work is carried out, remind tenants of their general ‘make good’ obligations at the end of the lease. Also point out that they will be obliged to either repair any damage caused by removing a fixture or compensate the landlord for the reasonable costs of repair.
“Finally, when a request is received from a tenant, strongly recommend to the landlord that the change be carried out by a qualified tradesperson, not the tenant themselves.”
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