Helpline General Frequently Asked Questions

Yes, provided you serve the notice to the email address specified by the addressee to be used for the service of such a document. However, please note that this is an opt-in requirement by the addressee. With respect to leasing arrangements, while all new leases available on REI Forms Live include an Email Service Consent Form, it is important to remember that consent must also be obtained from existing tenants as well.

You can apply to NCAT immediately after the notice has been served on the tenant, but the Tribunal will not consider the application until after the termination date. Note: this is only the case in a non-payment of rent termination situation. In all other cases, you must wait until the day of possession.

Section 108(1) of the Residential Tenancies Act 2010 (NSW) specifies that in the case where a sole tenant dies, either the legal representative of the tenant or the landlord can give a termination notice to the other person. Obviously, this may be a sensitive time for many people so a degree of consideration may need to be in order.

An agent who is exercising or performing any function as a licensee or registered person must not induce any other person to enter into any contract or arrangement by failing to disclose a material fact.

The following is a list of the material facts that an agent needs to disclose:

1. Within the last 5 years, has the property been subject to flooding from a natural weather event or bush fire?
2. Is the property subject to significant health or safety risks?
3. Is the property listed on the register of residential premises that contain loose-fill asbestos insulation that is required to be maintained under Division 1A of Part 8 of the Home Building Act 1989?
4. Within the last 5 years was the property the scene of a crime of murder or manslaughter?
5. Within the last 2 years has the property been used for the purposes of the manufacture, cultivation or supply of any prohibited drug or prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985?
6. Is the property a building, or part of a building, that contains external combustible cladding:

• to which there is a notice of intention to issue a fire safety order or a fire safety order has been issued requiring rectification of the building regarding the external combustible cladding, or
• to which there is a notice of intention to issue a building product rectification order or a building product rectification order has been issued requiring rectification of the building regarding external combustible cladding?

“Building product rectification order” has the same meaning as in the Building Products (Safety) Act 2017.

“External combustible cladding” and “fire safety order” have the same meanings as in the

Environmental Planning and Assessment Regulation 2000.

1. Is the property a building, or part of a building, where a development application or complying development certificate application has been lodged under the Environmental Planning and Assessment Act 1979 for rectification of the building regarding external combustible cladding?

“Building product rectification order” has the same meaning as in the Building Products (Safety) Act 2017.

“External combustible cladding” has the same meaning as in the Environmental Planning and Assessment Regulation 2000.

1. Is there 1 or more of the following orders in force in relation to the property:

• a building work rectification order,
• a prohibition order,
• a stop work order?

“Building work rectification order”, “prohibition order” and “stop work order” have the same meaning as in the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020.

1. Are there any other matters adversely affecting the property that would be material to a purchaser’s decision to purchase the property?

Section 26 of the Residential Tenancies Act 2010 (NSW) provides that a landlord or landlord’s agent has an obligation to disclose certain information to a tenant before the tenant signs a residential tenancy agreement. For instance, if the residential tenancy agreement relates to residential premises that comprise or include a lot in a strata scheme, a landlord or landlord’s agent must, prior to the tenant entering into the agreement, give the tenant a copy of the strata scheme’s by-laws and if a strata renewal committee is currently established then disclose to the tenant that fact.

In addition, clause 8 of the Residential Tenancies Regulation 2019 (NSW) sets out a number of prescribed material facts which, if applicable, must be disclosed to a tenant before the tenant signs a residential tenancy agreement.

Specifically, clause 8 stipulates that the landlord or landlord’s agent must disclose whether:

• the premises have been subject to flooding or bush fire in the last five years
• the premises poses significant health or safety risks
• the premises have been the scene of a serious violent crime in the last 5 years
• the premises is on the loose-fill asbestos insulation register
• the premises has been used for the purposes of the manufacture or cultivation of a prohibited drug or prohibited plant within the meaning of the Drugs Misuse and Trafficking Act 1985 (NSW) within the last two years
• council waste services will be provided to the tenant on a different basis than is generally applicable to residential premises within the council area
• residential parking permits may be restricted due to the zoning of the land or other laws applying to development of the land
• there is a driveway or walkway on the premises which others are legally entitled to share with the tenant
• rectification work or major repairs are scheduled (including the replacement of roofing, guttering or fences) to be carried out to common property during the fixed term of the residential tenancy agreement
• a fire safety order or building product rectification order has been issued (or there is a notice of intention to issue either order) regarding external combustible cladding, or whether a development application or complying development certificate application has been lodged for rectification regarding external combustible cladding.

A material fact would need to be disclosed when a prospective tenant indicates they wish to apply for the property – that is, before a tenant enters into a residential tenancy agreement. Subsequently, it should be confirmed in any e-mail acceptance of their application.

From 1 September 2021, the Residential Apartment Building (Compliance and Enforcement Powers) Act 2020 (RAB Act) introduces an additional material fact, placing an obligation on an agent to disclose to prospective purchasers whether one of the following orders is in force under the RAB Act in relation to the property:

• A building work rectification order,
• A prohibition order, or
• A stop work order.

An agent can conduct this search by visiting the following NSWFT website: https://www.fairtrading.nsw.gov.au/help-centre/online-tools/rab-act-orders-register.

Based on clause 51 of the prescribed form of residential lease in Schedule 1 to the Residential Tenancies Regulation 2019 (NSW), if the fixed term is for 3 years or less then the vacating tenant must pay the break fee equivalent to 1-4 weeks rent depending on which part of the fixed term of the tenancy remains. If the fixed term is for more than 3 years, the break fee is a specified amount agreed by the parties. Note that clause 51 does not apply if the fixed term of the residential tenancy agreement is more than 3 years or if the tenant terminates early for a reason that is permitted under the Residential Tenancies Act 2010 (NSW). Some grounds for early termination without compensation to the landlord include but are not limited to, instances where the tenant is in circumstances of domestic violence, destruction of the premises or when the tenant has been offered social housing or aged care accommodation.

Under Section 52(3) of the Residential Tenancies Act 2010 (NSW), landlords have statutory obligations for the health and safety of the premises which includes requirements under the Swimming Pools Act 1992 (NSW). This means a pool needs to be registered and have a valid certificate of compliance or occupation certificate.

When a residential tenancy agreement is entered into for a property with a swimming pool or spa pool, the landlord or landlord’s agent must provide the tenant with a copy of the valid certificate of compliance or occupation certificate. A certificate of non-compliance is invalid and must not be used where the premises with a pool is subject to a residential tenancy agreement.

A compliance certificate needs to be renewed every three years. It is essential that you remain continuously aware of this obligation as it will affect your ability to re-lease a property. Agents should be diligent in checking the expiry dates of existing certificates so that they can prepare for renewals.

The above requirements do not apply to common property in a strata scheme or association property in a community scheme if that strata or community scheme has more than two lots.

Looking after a swimming pool at a rental property can sometimes cause disagreements and confusion between agents, landlords and tenants. As a result, it is beneficial to arrange for a pool company to instruct a tenant about the upkeep of the pool at the beginning of a tenancy as this may reduce the likelihood of a problem arising at a later date. The cost of this service would be borne by the landlord.

Under the Swimming Pools Act 1992 (NSW), a landlord has a responsibility to ensure that the entire perimeter of the swimming pool is fenced off and that such fencing complies with any relevant laws and regulations. Landlords are also required to maintain and repair any pool equipment as long as the damage has not been caused by abuse or neglect on the part of the tenant.

Tenants have a responsibility to clean and add chemicals to the pool as required. The REINSW residential lease contains the following clauses, outlining a tenant’s obligations with respect to swimming pools:

1. to vacuum, brush and clean the pool, backwash the filter and empty the leaf basket(s) regularly keeping them free from leaf litter and other debris;
2. to have the pool water tested once a month at a pool shop and to purchase and use the appropriate chemicals to keep the water clean and clear;
3. to keep the water level above the filter inlet at all times;
4. to notify the landlord or the landlord’s agent as soon as practicable of any problems with the pool, equipment, safety gate access door fence or barrier; and
5. not to interfere with the operation of any pool safety gate, access door, fence or barrier including not propping or holding open any safety gate or access door, nor leaving any item or object near a pool safety gate, access door, fence or barrier which would aid or allow access by children to the pool area or allow children to climb the pool safety gate, access door, fence or barrier.

Not necessarily each and every time, but all agents certainly will have had to obtain the acknowledgement from the landlord for the first lease written for each tenant from 23 March 2020. It’s a protection for the real estate agent, should something go awry with the tenancy later on, and is required in order for the agent to sign the acknowledgement on the residential tenancy agreement. Property managers should do it periodically to protect against potential issues in the future.

Yes, they can, however they must always first seek the landlord’s consent. As part of legislative reforms, from 23 March this year, a landlord cannot unreasonably refuse a tenant request to carry out renovations considered to be of a minor nature. Property managers should always make sure the tenant is aware that they’re obligated to repair and rectify or make good any damage they may cause, or to compensate the landlord for the reasonable costs of repair. Property managers should also recommend that all changes be carried out by a qualified tradesperson, not the tenants themselves.

‘Fair wear and tear’ is the normal deterioration or ageing of the premises which occurs naturally over a period of time because of ordinary use of the premises by a tenant. It is not, however, an accident or damage caused by the tenant. The tenant is not responsible for ‘fair wear and tear’.

Yes, it is the landlord’s responsibility to make sure an annual inspection is conducted. It sits in Clause 42.2 of the prescribed residential tenancy agreement, so it’s a contractual term.

Furthermore, remember, that normal 9 Volt batteries are required to be changed once a year, which is mentioned in Clause 42.3. In addition to this, lithium batteries must be replaced in the period specified by the manufacturer (Clause 42.4).

Property managers should put processes in place to ensure all smoke alarms are checked annually by a recognised smoke alarm company or an authorised electrician, and always ask for a certificate of compliance upon completion. When engaging an authorised electrician or qualified technician (as applicable) for the repair or replacement of a smoke alarm, their licence should be checked for validity and currency with NSW Fair Trading. Further, their name and licence number should appear on any work order. Upon completion of any work, the invoice should show details of the tradesperson who carried out the check and their licence number.

If a property has been sold, and bear in mind the front page of the contract for sale must be marked ‘vacant possession’, then it’s 30 days’ notice. But the termination date has to fall in a periodic part of the lease (ie. during hold over), so you can’t terminate a tenant on a fixed term purely on the basis that the property has been sold.

Yes. There is nothing restricting a certificate of registration holder or an assistant agent being able to conduct an open home – whether that’s for sales or for rentals. Likewise signing a residential tenancy agreement, no restrictions there.

Yes, the assistant agent can certainly undertake and complete the inspection report on their own, however the licensed agent (who will ultimately be signing and executing that agreement) needs to make sure the inspection report has been completed properly and that they are satisfied that the contents of the report are true and accurate.