Wednesday 27 Feb 2019
New tenancy reforms which improve and strengthen the protections for victims of domestic violence living in a rented property start on 28 February 2019.
The domestic violence reforms represent some of the most significant changes to NSW tenancy laws for victims and survivors of domestic violence living in a rented property. The reforms are part of a package of tenancy amendments following the statutory review of the Residential Tenancies Act 2010 (the Act).
What are the new domestic violence tenancy laws?
Under the new laws, tenants who need to escape circumstances of domestic violence will be able to end their tenancy immediately and without penalty.
Ending a tenancy in circumstances of domestic violence
From 28 February 2019, a tenant will be able to end their tenancy immediately and without penalty if they or their dependent child are in circumstances of domestic violence.
To end the tenancy in circumstances of domestic violence, the tenant will need to give:
- the landlord or their agent a domestic violence termination notice and attach one of the following permitted forms of evidence:
- certificate of conviction for the domestic violence offence
- family law injunction
- provisional, interim or final Domestic Violence Order
- declaration made by a medical practitioner in the prescribed form.
- each co-tenant a domestic violence termination notice.
A landlord or any remaining co-tenant(s) will be able to apply to the NSW Civil and Administrative Tribunal (the Tribunal) if they wish to dispute the validity of a domestic violence termination notice. The Tribunal can only examine whether the domestic violence termination notice was properly given under the tenancy laws. A landlord will not be able to dispute the contents of a declaration in any Tribunal proceedings, if it is used as evidence.
A sample version of the domestic violence termination form will be available on the Fair Trading website before the laws start.
Prescribed declaration form as evidence
The new laws will allow a medical practitioner to declare that a tenant or their dependent child is a victim of domestic violence. This declaration can be used as one of the acceptable forms of evidence of domestic violence. Only a medical practitioner can make the declaration, which must be in the form prescribed by the Residential Tenancies Regulation 2010.
A medical practitioner includes a General Practitioner (GP), physicians (doctors in a hospital) and all medical specialists (including surgeons, psychiatrists and paediatricians). For a full list of medical practitioners who can provide a declaration, visit the Medical Board of Australia’s website.
To be able to make a declaration, the medical practitioner must have consulted with the tenant giving the termination notice or the tenant’s dependent child in their professional capacity. Certain other criteria, as set out in the prescribed form, must also be met.
The declaration form and minor changes to the standard form of tenancy agreement have been made in the Residential Tenancies Amendment (Circumstances of Domestic Violence) Regulation 2018. These changes will also start on 28 February 2019.
Printable versions of the declaration form will be available on the Fair Trading website before the laws start.
Victims cannot be penalised for ending their tenancy early
A tenant who ends their tenancy in circumstances of domestic violence will not be liable to pay any compensation or additional money for the early termination. For example, a victim will not need to pay a break fee, loss of rent, advertising and a reletting fee or an occupation fee for abandoned goods.
Victim’s privacy and protection from discrimination
The following measures will help protect the privacy of victims of domestic violence. They will also ensure that a victim’s ability to secure a rental property in the future is not negatively impacted by a domestic violence termination:
- landlords and their agents will be prohibited from listing a tenant on a tenancy database if they ended a tenancy in circumstances of domestic violence
- evidence that a tenant or their dependent child is in circumstances of domestic violence only needs to be given to the landlord or their agent and not to any remaining co-tenant(s)
- a person will be prohibited from using or disclosing information from a domestic violence termination notice or the attached evidence for any other purpose. For example, the information cannot be provided in a reference check by a property manager. Disclosure can only be made if permitted or compelled by law. A person in possession of these documents must store and dispose of them securely
- the contents of a declaration made by a medical practitioner will not be reviewable by the Tribunal to ensure victims of domestic violence are not subject to cross-examination.
Rights of remaining co-tenants
After a tenant gives a domestic violence termination notice, a co-tenant who remains in the tenancy will be:
- able to apply to the Tribunal to end their tenancy
- entitled to a 2-week period to only pay their share of the rent and will not be required to cover the departing victim’s share. This only applies if the remaining co-tenant is not the perpetrator of domestic violence. A co-tenant who is the perpetrator of domestic violence will have to pay the full cost of the remaining rent.
In addition to the above rights, the rights and responsibilities under existing tenancy laws still apply to co-tenants. For example, a remaining co-tenant can dispute the validity of a domestic violence termination notice.
Property damage caused by domestic violence
A tenant who is a victim of a domestic violence offence will not be liable for property damage caused by the perpetrator as part of a domestic violence incident. Other co-tenants at the property who are not the perpetrator of that violence will also not be liable for that damage.
Only the perpetrator of domestic violence will be liable for any property damage caused by their violence.
3-year statutory review
The new domestic violence laws and other related provisions will be reviewed within 3 years of commencement to ensure that they are working effectively.
Visit the NSW Legislation website to read the new laws in full: