Tenancy

You are generally a tenant if you have an agreement with the property owner to live in the property in return for value, such as rent or services.

A tenancy agreement can be:

• written
• oral (spoken), or
• a combination of both (for example a conversation and then emails or text messages or another written document).

Some types of accommodation are not covered by residential tenancy laws, including:

• hotels and motels
• backpackers’ hostels
• nursing homes, and
• some leases on Crown land.

Tenant and landlord rights and responsibilities come from the Residential Tenancies Act 2010 (NSW).

You may be a sub-tenant if you rent from someone who is not the owner, but who has their own tenancy agreement with the property owner (the landlord). This person is called the head‑tenant.

You can have a written or oral agreement with the head‑tenant and you are covered by the Residential Tenancies Act 2010 (NSW). This arrangement is sometimes called a sublease.

You are only covered by the Residential Tenancies Act 2010 (NSW) if you have a written tenancy agreement with the head‑tenant.

If you do not have a written agreement:

• you are not covered by the Act, and
• your legal rights may be more complicated.

If this sounds like your situation, you should get legal advice.

Whether you should stay in your home after a disaster may depend on whether the property is uninhabitable. A property is uninhabitable if it is no longer fit to live in.

A property may be uninhabitable if:

• it is not structurally sound
• the plumbing or electricity is not working
• the water is not safe to drink
• water is entering through windows or doors, or
• there is not proper ventilation.

If your property is uninhabitable, different rights and options may apply, including whether you can stay, need to leave, or are entitled to other support.

Are you and your family safe? Stay away from danger.

Check in with yourself and your family about how you’re all feeling. If you need support, talk to your doctor or call Lifeline on 13 11 14.

If your rental property is badly damaged and:

• you can no longer live in it, or
• it is unsafe to return,

You can end (terminate) your tenancy agreement because the property is wholly or partly uninhabitable.

To do this, you must give your landlord a written termination notice that states the date you will give vacant possession. Vacant possession usually means removing your belongings and returning the keys to your landlord or real estate agent. If it is unsafe to remove your belongings, get legal advice about your options.

There is no minimum notice period you need to give - your tenancy can end immediately if needed. But your termination notice must:

• be in writing and signed by you
• include the address of the property
• state the termination date (the day you will move out), and
• say that you are ending the tenancy because the property is wholly or partly uninhabitable.

You must also give the notice in one of these ways:

• hand it to your landlord or real estate agent
• put it in their letterbox
• post it (allow an extra 7 working days for delivery to ensure proper notice is given), or
• email it, if your landlord or agent has agreed in writing to accept documents this way (this is usually stated in your lease).

If both you and your landlord agree that the property is destroyed or uninhabitable, ask the landlord to confirm this in writing. There is a template termination notice for uninhabitability on page 30 of our Tenancy and housing after a disaster handbook (PDF, 4.1MB).

If your landlord doesn’t agree that the property is uninhabitable, you can make an application to NCAT to end your tenancy. Alternatively, you can give a termination notice for uninhabitability (see above), give vacant possession of the premises (move out and return the keys) and claim your bond. Be aware that the landlord may apply to NCAT to try to charge you a break fee, and/or claim your bond if they don’t agree the property is uninhabitable. You will need to show NCAT evidence that the property was uninhabitable and the Tribunal will decide about whether you validly ended your tenancy due to uninhabitability based on the evidence.

If you are in this situation, you should get legal advice as soon as possible.

Sometimes, there may be very few alternative housing options after a disaster. You may decide to stay in the property and ask your landlord to repair the damage. Before deciding to stay in the property while repairs are ongoing, consider any safety and health advice from the SES and your local council.

If you want to dispute a council finding of uninhabitability, you should get legal advice. For more information, see The council wants to condemn by home – what are my rights? (PDF, 402KB).

If your landlord believes the property is uninhabitable, they may give you a termination notice. Receiving a termination notice does not automatically end your tenancy. If you do not leave according to the notice, the landlord/agent can apply to the NSW Civil and Administrative Tribunal (NCAT) for an order to terminate your agreement. The Tribunal will have to decide whether the premises are uninhabitable, and whether all the circumstances justify termination of the tenancy. You cannot be evicted without a termination order by a Court or Tribunal.

If your landlord does not end the tenancy, they should carry out repairs within a reasonable timeframe.

Your landlord doesn’t need to provide you with temporary or emergency accommodation if your property becomes uninhabitable because of a disaster.

To find emergency accommodation call Service NSW on 13 77 88.

If your rental property becomes fully or partially uninhabitable during a disaster, you may be able to get a reduction in your rent. This is called a rent abatement.

A rent abatement means you pay less rent because you cannot use all or part of the property due to the damage.

You should write to your landlord to ask for a rent abatement and ask for a reply within a certain timeframe (for example, 1 week). The amount you request should reflect how much of the property you can’t use.

If you come to an agreement with your landlord about a rent abatement, you should get the agreement in writing. If your landlord doesn’t agree to a rent abatement, you need to continue paying rent and apply to NSW Civil and Administrative Tribunal (NCAT) for orders.

If you and your landlord can’t agree on a rent abatement, you can apply to NCAT for orders:

• to reduce your rent by a set amount from the date the property became uninhabitable, and/or
• that your landlord refund any rent you paid above that set amount since the property became uninhabitable.

You should explain to the Tribunal how you calculated your proposed rent abatement based on how much of the property is unusable. There is a sample request for rent abatement at page 28 of our Tenancy and housing after a disaster handbook (PDF, 4.1MB).

You must make a rent abatement application to NCAT within 28 days from when your property became uninhabitable.

If you’re unable to make an application within the 28-day time limit, you can apply to NCAT for an extension of time. You should get legal advice as soon as possible if you would like to do this.

If your property is fit to live in (not uninhabitable) and you want to end your lease, how many days’ notice you need to give depends on the type of tenancy agreement you have.

There are two main types of tenancy agreements:

1. Fixed‑term tenancy: This is where you signed an agreement for a set period of time, such as 6 or 12 months, and that period has not yet ended.
2. Periodic tenancy: If your fixed‑term agreement ends and you do not sign a new one, your tenancy usually becomes a periodic tenancy (sometimes called a rolling lease). This means there is no set end date.

If you are close to the end of your fixed‑term agreement, you can give 14 days’ notice to end the tenancy. The termination date must be on or after the last day of the fixed term.

If you want to end your fixed-term agreement early (without a legally specified reason) – this is called breaking the lease.

1. By consent: You can write to your landlord and ask for their agreement to end the tenancy early. Ask them to confirm that you can leave without any penalty.
2. By paying a break fee: If your landlord doesn’t agree, you can still end the tenancy by:
   • sending a written termination notice
   • moving out, and
   • returning the keys.

You should stop paying rent once you have moved out. In this situation, you will usually need to pay a break fee. The amount of the fee depends on when your tenancy agreement started. See page 13 of our Tenancy and housing after a disaster handbook (PDF, 4.1MB) for more information on this.

You may be able to end your fixed‑term tenancy if continuing the tenancy would cause you undue hardship. To do this, you must apply directly to the NSW Civil and Administrative Tribunal (NCAT) .

NCAT will look at whether there are special circumstances and whether you would suffer undue hardship if the tenancy continues. You will need to file evidence to support this.

NCAT may order you to pay compensation to your landlord for their loss (up to the amount of the applicable break fee), unless you can show strong reasons why you should not have to.

You do not need to give a termination notice to your landlord before applying to NCAT.

You will still need to pay rent until you move out and return the keys (give vacant possession).

Examples of undue hardship include:

• you have a disability and can no longer access essential services in the disaster‑affected area and need to move, or
• you lose your job because of the disaster and can no longer afford the rent.

To end a periodic tenancy, you need to give your landlord 21 days’ written notice. You need to pay rent until the end of the 21‑day notice period, even if you decide to move out sooner.

For your termination notice to be valid, it must:

• be in writing and signed by the tenant/s
• include the address of the property
• give the correct amount of notice and state the date you will move out, and
• the reason why you want to end the tenancy (if any).

You must give the notice to your landlord or real estate agent in one of the following ways:

• hand it to them in person
• put it in their letterbox
• send it by post (allow an extra 7 working days for delivery to ensure proper notice is given), or
• email it, if they have agreed in writing to receive notices this way (this is usually set out in your lease).

If you don’t agree that the property is uninhabitable, or you have nowhere else to live, you don’t have to move out by the date in the termination notice.

You can try to negotiate with your landlord about a later move‑out date. If you do this, make sure the agreement is in writing.

You can also wait to see whether your landlord applies to the NSW Civil and Administrative Tribunal (NCAT).

You cannot be lawfully evicted unless NCAT makes an eviction order.

If you don’t move out by the date in the termination notice, your landlord can apply to NCAT to end your tenancy.

Your landlord will need to provide evidence to NCAT that all or part of the property is uninhabitable.

If you don’t agree that the property is uninhabitable, you should gather your own evidence, such as photos or videos of the property, or a report from a relevant tradesperson or engineer, if possible.

If NCAT decides to end your tenancy, you can ask for time to move out.

When deciding how much time to give you, NCAT will consider any hardship you would experience if you had to leave quickly.

You will need to provide evidence of your hardship. This might include:

• a letter from your doctor explaining medical conditions that make it difficult to move quickly, or
• evidence that you have been unable to find other housing, such as unsuccessful rental applications.

Content: If your landlord does not respond or does not arrange an urgent repair quickly, you can organise and pay for the repair yourself if it costs no more than $1,000 (this may be unlikely if there is major damage caused by a disaster).

Urgent repairs include:

• a burst water pipe
• a broken appliance, fitting or fixture that uses water and is wasting a lot of water
• a blocked or broken toilet
• a serious roof leak
• a gas leak
• a dangerous electrical fault
• flooding or serious flood damage
• serious storm or fire damage
• a failure or breakdown of gas, electricity or water supply
• a failure or breakdown of an essential service for hot water, cooking, heating, cooling or laundry
• any damage that makes the property unsafe or unsecure.

Keep all receipts. You should then write to your landlord and ask to be reimbursed. There is a template request for reimbursement for urgent repairs on page 27 of our Tenancy and housing after a disaster handbook (PDF, 4.1MB).

If the cost is more than $1,000, you will need to apply to the NSW Civil and Administrative Tribunal (NCAT) for an order for the landlord to undertake repairs.

If your landlord does not reimburse you (up $1,000) within 14 days, you can apply to the NCAT for an order requiring them to repay the cost of the urgent repairs.

You must apply to NCAT within 3 months of the landlord failing to reimburse you.

If your landlord does not complete repairs within a reasonable timeframe, they may be in breach of the tenancy agreement.

You can apply to the NSW Civil and Administrative Tribunal (NCAT) for an order requiring the landlord to complete the repairs within a set timeframe. For more information, see Factsheet: Repairs and maintenance on the Tenants’ Union of NSW website.

A rent reduction applies when the property is still habitable, but repairs are needed and the landlord has failed to do them, and as a result a service or facility has been withdrawn. In this situation, you may be entitled to a rent reduction from the time the damage occurred until the repairs are finished.

A rent abatement applies when the property is partly or completely uninhabitable or unusable, and the damage is not the landlord’s fault, such as after a disaster. If you choose to stay in the property and ask for repairs instead of ending the tenancy, you may be entitled to a rent abatement from the time the damage occurred until it is repaired.

The amount you ask for should reflect how much of the property you cannot use. For example, if you rent a two‑storey home and the lower level is unusable due to flooding, you might ask for a 50 per cent rent abatement.

If you can’t reach an agreement with your landlord or real estate agent, you can apply to NCAT for orders reducing or abating your rent.

You may also be able to claim compensation for losses you have suffered.

You can claim for money you had to spend because your landlord did not carry out repairs within a reasonable timeframe. This is called economic loss.

Examples include:

• money spent on takeaway food because you could not use your kitchen due to damage, and your landlord unreasonably delayed repairs, or
• the reduced value of furniture or personal belongings that were damaged because your landlord failed to fix a problem, such as a broken window after a flood that allowed more water to enter the property.

You may also be able to claim compensation for inconvenience or distress caused by your landlord’s failure to do repairs. This type of claim can be complex, so you should get legal advice before making it.

Your landlord, real estate agent, or someone authorised by your landlord can enter the property without your consent and without giving notice in certain situations, including:

• in an emergency, such as during a disaster, to prevent damage to the property
• to carry out urgent repairs
• if they reasonably believe there is a serious risk to your health or safety and they have been unable to contact you
• if they reasonably believe the property has been abandoned, or
• if they have an order from the NSW Civil and Administrative Tribunal (NCAT)

If you cannot return to the property for a period of time after a disaster and you do not want to end your tenancy, it is important to tell your landlord in writing that you want the tenancy to continue. This can help prevent your landlord from thinking the property has been abandoned.

Your landlord or real estate agent can enter the property without your consent to check or carry out repairs or maintenance, as long as they give you at least two days’ notice each time.

This does not apply in emergency situations, where notice is not required.

Are you and your family safe? Stay away from danger.

Check in with yourself and your family about how you’re all feeling. If you need support, talk to your doctor or call Lifeline on 13 11 14.

Your community operator can’t end your site agreement just because your site has become uninhabitable. But if they’re legally required to do repair work on the site or in the community, and they can’t do that work while you’re living there, they may give you a termination notice.

They must give you 90 days to move out and provide the order or notice that explains their legal obligation to do the work.

For example, if NCAT orders the operator to repair your site and the operator says they can’t do the repairs while you’re there, they may give you a termination notice with the NCAT order attached.

Getting a notice doesn’t mean you have to move out right away. The operator can’t evict you without an NCAT order, and NCAT must look at whether the operator really needs the site to be empty to complete the repairs.

A termination notice must be signed by the community operator or someone acting for them, such as a park manager. It must include:

• the residential site
• the date you’re required to remove your dwelling from the site and move out, and
• the reason you’re being given the notice.

If your community operator gives you a termination notice, you should get legal advice

If your dwelling is destroyed or you decide to move it somewhere else, you’ll need to end your site agreement. You don’t need to tell the community operator why you’re ending it, but you must give them a termination notice with at least 30 days’ notice before you move out.

You must remove your dwelling from the site on or before the date in your termination notice. If you don’t, your site agreement will continue and you’ll still have to pay site fees until it’s ended in another way.

You can sell your dwelling while it’s still on the site. Before you offer it for sale, you need to give the community operator written notice that you intend to sell. The community operator must not interfere with the sale in any way. If the buyer wants to keep living in the park, they’ll need to enter into a site agreement as well.

You can write to your community operator to request an assignment, or transfer, of your site agreement to a prospective buyer. You’ll need the community operator’s written agreement to do this. Once approved, the buyer can take over your site agreement on the same terms you had, including the site fees.

Another option is for the prospective buyer to ask the community operator for a new site agreement. The community operator can only refuse if the buyer:

• is listed on a residential tenancy database
• has been evicted from another community in the last five years for breaching a site agreement, or
• if they can’t agree with the buyer on the terms of the proposed agreement.

The community operator may offer a new site agreement with different terms to what you had. They may also increase the site fees if the new fees are fair market value.

If the residential site becomes completely uninhabitable because of a disaster, you can get a full site fee abatement. This means you shouldn’t have to pay site fees until the site is fully habitable again or your site agreement is ended by you or the community operator. This doesn’t apply if only your dwelling (not the site) is uninhabitable.

Examples of uninhabitability include sewerage or grey water damage, and issues like a sinkhole or earth movement that make it unsafe to enter the site or live in your dwelling.

Before you stop paying site fees, you should write to your community operator to request the abatement. If they don’t agree, you’ll need to apply to NCAT for an order. If you stop paying without an agreement or NCAT order and the operator disagrees that the site is uninhabitable, they may take action against you at NCAT for unpaid fees. If the operator won’t agree, you can apply to NCAT for an order.

Time limit: You must apply to NCAT for a site fee abatement within 28 days of the site becoming uninhabitable. If you can’t apply within that time, you may be able to request an extension. You should get legal advice as soon as possible.

The community operator is generally responsible for fixing damage to the park’s common areas, including removing rubbish and debris.

After a disaster, they must make sure this work is done as soon as reasonably possible and in a way that minimises disruption to residents, and they must ensure the work is completed to a reasonable standard.

They must also make sure you have access to your site and reasonable access to common areas. If a utility supply to your site, such as electricity or gas, is disrupted, they must reconnect it as soon as they can.

While operators must ensure a residential site is in reasonable condition at the start of a site agreement, they aren’t responsible for fixing damage to your dwelling or the site itself.

If your community operator isn’t meeting their responsibilities, you can apply to NCAT for an order requiring them to do so. Before applying, it’s a good idea to write to the operator requesting that the repairs or work be completed by a certain date. Your Residents Committee may be able to help, as other residents are likely affected too.

If the operator refuses or doesn’t repair damage to common areas or facilities, you can request a reduction in your site fees. If the operator refuses, you can apply to NCAT for a site fee reduction.

You must apply while your site agreement is still current.

As a homeowner, you’re responsible for keeping your dwelling in a reasonable state of cleanliness and repair.

You’re generally also responsible for repairing any damage to the site your dwelling sits on.

After a disaster, this includes removing rubbish and debris from your site and fixing any damage to your dwelling. If there’s major damage to the site itself, such as sinkholes or earth movement, you should get advice about who is responsible for those repairs.

If repairs to your dwelling involve altering the exterior (other than painting or minor repairs) or adding a fixture, you must get written consent from the community operator. They can’t unreasonably refuse consent.

If your dwelling is uninhabitable and can’t be repaired, you’re responsible for removing it from the park. If you choose to leave the park permanently, you may need to end your site agreement.

If you don’t repair disaster damage to your dwelling, the community operator may give you a termination notice for breach of your site agreement, giving you 90 days to move out. You don’t have to move out on the date in the notice. The operator can’t evict you without an NCAT order.

After the 90 days, if they still want to evict you, the operator must apply to NCAT. NCAT will decide whether to end your site agreement and will consider your circumstances, including what caused the damage, whether you’re trying to repair it, and the availability of materials and tradespeople.

If you get a termination notice, you should get legal advice immediately.