Revised letter template for tenants. See notes below.
Sample Letter to Landlord / Agent
(Insert your name)
(Insert your address)
(Insert date)
(Insert address of landlord / agent)
Dear (name of landlord / agent)
Property: (insert street address)
We are the tenants at the above property. We wish to remain in the property and want to work this out with you.
You have sent us a termination notice and / or told us to leave the property. We dispute the termination. We believe the property is habitable now or will be after a proper clean up or minor repairs.
You cannot evict us without an order from NCAT or court; first a termination order and second an order for possession, then a writ which only the sheriff can enforce.
We wish to remain in or return to the property and work out how to do this properly. We will not leave the property unless this is worked out properly. If the property is unsafe or unhealthy we will also need to discuss that with you.
If we cannot agree on a solution we may take further advice and let NCAT or a court decide the issue.
We need to discuss abatement of rent. Our rent should be reduced to reflect the impact of the flood.
We can also discuss reimbursement of expenses incurred cleaning up after the flood and any repairs we did to protect the property. Given the work we have done protecting the property we expect to reclaim our bond in full should it come to that.
We know the owner is required to maintain the property and make repairs. If we must leave the property temporarily then we want you to know we intend to return and for our lease to continue on its present terms.
Please respond by email to this email address or by calling us on our number today.
Yours sincerely
(Insert signature)
(Insert your name)
(Insert your email)
(Insert your number)
Remember this is a resource provided as a community service in a crisis. It needs to be adapted to your personal circumstances and is only general advice. Let us know if you have any queries. Thanks Mark Swivel, Barefoot Law
The Floods and Tenants - FAQs
Do I have to pay rent?
If you cannot use or live in your rental property you are entitled to ‘abatement’ of rent. If a property is fully uninhabitable then rent should not longer be payable at all. If you can live in or use only part of the property rent should be reduced in proportion. The landlord or agent (or insurer) does not decide whether the property is inhabitable. If you want to return to a property you should tell the agent or landlord immediately. Obviously, everyone needs to be careful about risks to their health and safety. Write or talk to the owner / agent explaining what you think the rent should be. See clause 8 of the standard lease and section 45 of the Residential Tenancies Act.
Who is responsible for cleaning and repairs?
A tenant must keep a property ‘clean and tidy’ while the owner is responsible for repairs. But the responsibility becomes blurred in an emergency like a flood like the one we’ve had. For residential leases you can claim up to $1000 for urgent repairs - make sure you get receipts. You may be able to claim for ‘work done’ and ‘expenses incurred’ for cleaning from the owner or agent. The law is ‘grey’ on this but you can argue that you have helped protect the property for the owner. More generally the landlord is responsible for repairs to the property as a result of the flood.
Write or talk to the owner / agent proposing how the cost of cleaning / repairs should be shared. See clause 19 & 20 of the standard lease and section 63 & 64 of the Residential Tenancies Act.
Can you be evicted due to the flood?
A tenant cannot be evicted without an order from NCAT (the Tribunal for tenancy issues). To be evicted a tenant must first be given a termination notice, which a tenant can dispute. You can dispute a termination by applying to NCAT then the landlord must seek a termination order. A termination order if made will give the tenant time to leave, and you may dispute that order, too. To ‘physically’ evict you the landlord will need to apply to NCAT for a warrant for possession. A warrant for possession can only be enforced by the sheriff (not the landlord, agent or police). See section 83 - termination & possession; section 121 for warrants - Residential Tenancies Act.
Can you leave temporarily and return to your property?
A tenant can move out temporarily and return once repairs have been carried out. The landlord is not obliged to find or pay for the tenant’s temporary accommodation. If the property is only partly uninhabitable, you can choose to stay while repairs are being carried out. Tenants should only consider doing this if the damage is relatively minor and there is no ongoing safety risk.
If the property is destroyed or totally or partly uninhabitable, the landlord and tenant can agree to end the tenancy. If no agreement is reached, the tenant or landlord can give a written termination notice to end the tenancy. The tenant and landlord can end the old lease and sign a new one after the repairs are complete. Tenants should be aware that a higher rent could be included in the new agreement. See Note 5 in the standard lease and section 109 of the Residential Tenancies Act.
General advice - tenants should try to:
Communicate - speak with or email your agent or landlord and work through your issues. Cooperate - try to work with the your agent or landlord to find solutions to your situation. Wait (if you can) - everyone is stressed, try to draw breath before committing to decisions. Document - take photos, make lists to show the state of your property and what you have lost. Legal rights - tenants have rights under the lease agreement and Residential Tenancies Act 2010.
The Act - http://www5.austlii.edu.au/.../cons.../rta2010207/index.html
Standard Lease - https://www.fairtrading.nsw.gov.au/.../Standard...
Fair Trading Advice - https://www.fairtrading.nsw.gov.au/.../repairs...
Important: this is general advice only and you must obtain personal advice on your situation if required. Please contact us if you need personal advice and do not rely on this summary.
Thank you, Mark Swivel Barefoot Law
Recording of our Zoom with Gerald Ewing and David Heilpern. Barefoot Law:
https://soundcloud.com/.../flood-law-insurance-and-tenancies