Residential Tenancies Act

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Hi Margaret,
I have an interesting issue relating to a property my wife and I are renting. The property is in fact two separate units: the down stairs is a commercial premises where my wife runs her hair salon while upstairs is a separate residential unit. We live upstairs and pay separate rent on a separate lease for this property.
This is where it gets murky. The landlord is demanding my wife pay the full rates for the premises. As I understand it, my wife is responsible for the rates on the commercial premises below, but not the residential domicile above. The landlord refuses to get the property registered as two separate units and as such is demanding we pay all the rates.
The entire building is on one single water system, making calculation of bills nigh on impossible as well but interestingly upstairs has a separate electricity and gas supply to downstairs. Surely this would be indicative of a separate property.
The landlord is a solicitor and is using a bullying and brutish attitude to try and brow beat us into submission. Her attitude it would seem is that because neither of us has the legal acumen to rebuke her demands she can just steamroller over us. I'm hoping you can point me in the direction of the relevant legal statutes that would help us fight our corner.
Read Margaret Lomas' answer on the next page.
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I have taken a while to do some research for this question, including seeking some advice from my friend Rob Balanda, who is a QLD property lawyer.
You say that:
"The property is in fact two separate units: the down stairs is a commercial premises where my wife runs her hair salon while upstairs is a separate residential unit. We live upstairs and pay separate rent on a separate lease for this property."
This means that you have two leases in place – a commercial lease for the hair salon, and a residential lease for the unit above, in which you reside.
While it is important to point out that each state has its own Tenancy Act, they do share some commonalities and these commonalities most likely relate to your current problem.
Generally speaking, a commercial lease requires that the tenant pays all outgoings, including council rates, which is currently occurring for you.
Again generally speaking, a residential lease requires that the landlord pay all council rates, and not the tenant.
When it comes to the water rates and usage, a commercial lease requires the tenant to pay both, but in a residential lease the landlord must pay the water rates while the tenant pays the usage.  Note that the way usage is dealt with is different in each state, so you should check with your Department of Fair Trading to see how they are dealt with in your state.
As your water usage is shared and not seperately metered, things are a little tricky.  In QLD, this is what the Tenancy Act has to say:
Residential Lease
If the residence is not individually metered, the tenant can be made to pay water consumption charges for the premises only if:
(a)  the tenant is enjoying or sharing the benefit of a water service to the premises; and (b)  the premises are individually metered for the supply of water or water is supplied to the premises by delivery by means of a vehicle; and (c)  the agreement states that an amount for the water consumption charges for the premises is payable by the tenant.
However, the full cost can only be passed on to the tenant if the premises are "water efficient" - this being where the premises complies with water efficiency requirements under regulation.
In your case this is going to be difficult, as you won't be able to determine which portion of the usage is for upstairs, but it could be a moot point anyway if you live in a state where all usage is the responsibility of the tenant.  The landlord does, however, have to pay the water rates on the residential part of this property, and could be asked to determine a fair way to separate these out so you, the residential tenant, do not pay.
Note that it is not the zoning which determines the treatment, it is the basis for the lease.  Therefore, the fact that your home is not a separate unit matters little if you have signed a residential lease.
You should contact your state Department of Fair Trading and seek some advice about this.  In my experience they are very helpful and they will be able to act for you to establish a fairer system with this difficult landlord. As a lawyer you would expect her to know the law, but this is not always the case.
 
 
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mlomas-KC9MUPZ6Ca

Ask Margaret: Can my landlord make me pay the rates for my residential unit? 

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Reforms to the Residential Tenancies Act have passed without amendment.
REINSW President Leanne Pilkington (pictured above) said the Residential Tenancies Amendment (Review) Bill 2018 passed and REINSW was now commencing the first phase of educating the property management community.
She stated it is important for the profession to understand all of the changes that the new Bill includes as these major changes affect the real estate industry, landlords &amp; tenants.
Particularly as the <a href="https://www.urban.com.au/news/89749-nsw-rental-laws-set-to-favour-tenants-in-major-overhaul" target="_blank">new rental laws are set to favour tenants</a>.
The Real Estate Institute of NSW had claimed it was <a href="https://www.urban.com.au/expert-insights/investing/89960-reinsw-loses-all-influence-with-nsw-state-government">blindsided by the proposals</a> and its concerns ignored.
“There are well-meaning, passionate views on both sides of the debate,” Matt Kean, the Minister said in response to a broadside from the institute.
”But my job is to make sure we get the balance right … and get the policy settings in place that will mean landlords and tenants get the best of both worlds.”
McKibbin has more recently sent a letter to NSW Premier Gladys Berejiklian saying people "would be horrified to learn of the level and quality of support the industry receives from Government and the risk this exposes them to as consumers in comparison to the supportive regulatory structure provided to the industry in the other States and Territories of Australia."
McKibbin claimed it would be "grossly negligent" for Ms Berejiklian to ignore the issue.
"We (the real estate industry) are the biggest industry in this state and this country. We make a greater contribution to state revenue than any of the other industries. I would be very surprised if the Premier would ignore a dissatisfied property industry - I think that would be grossly negligent to discard our position," Mr McKibbin claimed.
The REINSW will be however conducting training sessions in 17 locations across the state beginning in Sydney on the 25 October and running to 29 November.
The second phase will follow the release of the Regulation, which are the guidelines that dictate how the act should be applied.
The REINSW had worked to identify areas where reform was needed.
Ms Pilkington said "while many of our lobbying efforts have been adopted in whole or part by the Government, a lot have been ignored, such as the Government’s proposed changes to: alterations to property, break fees, domestic violence, rent increases, and more."
The bill will now be sent to the Governor of NSW for his assent.
The date for the reforms to be put into action has yet to be disclosed. 
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j.ballantyne1990-6AQqhLzZaK

NSW Residential Tenancies Act 2018 reforms have passed without amendment

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GUEST OBSERVER
The Victorian Parliament’s Legislative Council will consider the Residential Tenancies Amendment Bill (RTA Bill) this week, the second last sitting week before the caretaker period ahead of the Victorian Election in November. 
The REIV has worked closely with all political parties to help shape the best possible legislative outcome. 
The Residential Tenancies Act was enacted in 1997: no one is questioning the need for an update to rental laws.
When the Premier announced the RTA Bill, he said it’s purpose was to ‘fix the system and make renting fair for all Victorians’ but the legislation, in its current form, is certainly not fair for investors, property owners and landlords. 
The RTA will deliver an unfair, unworkable and impractical system which would rob landlords of their right to consent to what goes on in their properties, burden them with unrealistic expenses to upgrade appliances and could mean they are not paid their rental on time for four out of every 12 months without any recourse.
The REIV requires the following amendments to the Bill: 
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<li>
Retaining the current system around rental arrears enabling VCAT to make a call in the manner they do now based on evidence and circumstances;
</li>
<li>
Landlords must be able to consent to pets and there must be provision for pet bonds; 
</li>
<li>
Property owners must be allowed to consent to property modifications and urgent repairs;
</li>
<li>
 
</li>
<li>Retention of the 120 day ‘No Reason’ notice to vacate; and 
</li>
<li>A realistic staggered upgrade (five years) of appliances and an incentive scheme.</li>
</ul>
 
The REIV has written to its members this week, asking them to contact Members of Parliament to explain how the RTA is simply unworkable.
It is in everyone’s interests – renters, investors, agents and government – that we have a system that is fair, balanced and practical.
These proposed changes could have a significant impact on an already constricted rental market: vacancy rates are at record lows, there is declining levels of rental stock coming on to the market and interest rates are rising for the first time in two years.
If the Government makes it too hard then landlords will consider removing properties from the rental market, rents are likely to rise and property owners will be forced to minimse their risk by offering shorter tenancies.
The REIV has advocated strongly against the ‘Rent Fair’ legislation, on behalf of its 5000 members and their landlord clients. The online ‘Rent Fair is Unfair’ petition has 27,000 signatures.
Richard Simpson is the President of the REIV.
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jrobinson-rf4aSBido9

REIV calls for a fair go on rental laws before Parliament this week

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Perth builder Adrian Zorzi is Australia's top house builder. 
<a href="https://www.adrianzorzi.com.au/" target="_blank">Adrian Zorzi</a> took out the coveted 2016 National Residential Builder of the Year at Master Builders Australia's National Excellence in Building and Construction Awards. 
"Zorzi is a thoroughly deserving winner and has been recognised for the highest quality and calibre of his skill and craftsmanship and tradespeople," Wilhelm Harnisch, chief executive officer of Master Builders Australia said. 
"The magnificent quality of the South American Style home which won Zorzi the Award is a showcase of excellence," he said.  
"Every element has been detailed to the tenth degree making the home a masterpiece and Adrian Zorzi truly deserves the accolades that are accorded to him as the 2016 Master Builders Australia Residential Builder of the Year," Wilhelm Harnisch said 
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jchancellor-FAypfDUnLy

Adrian Zorzi wins top MBA builder acclaim

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Complying with your legal obligations is crucial, regardless of whether you use a property manager or self manage your properties.
With this in mind, we're sharing 10 'must know' things from the Residential Tenancies Act in New South Wales and encouraging you to provide your own. Next week, we'll tackle Victoria.
<ol>
<li>
That the following terms are not allowed in your agreement:  - A requirement for the tenant to have the carpet professionally cleaned, or to pay for the cost of this service, at the end of the tenancy. - This may not apply if the tenant has pets. That the tenant needs any sort of specific insurance.  - That any rebate may occur if the tenant does not breach the agreement, and, on the other hand, that a tenant is liable to pay all the remaining rent, increased rent or a penalty if they breach the agreement. 
</li>
<li>
Your tenant has anti-discrimination rights.   While this can be a broad topic, you must not discriminate against tenants on the basis of your tenant's race, religion, sexual oritenation, age or any disabilities. Discrimination can be seen as broad, and may include undertaking extra inspections due to a tenant's age. 
</li>
<li>Pet bonds are not allowed. </li>
<li>
You do not have to allow sub-letting.  If a tenant is sub-letting without your consent, that is having another resident in the house pay rent to themselves, this is against the agreement. 
</li>
<li>
Tenants must be provided 60 days of written notice for a rent increase.   When 'written notice' is mentioned, you must allow time for postage if this is your intended method. It is recommended that landlords and property managers keep clear records of when notices have been sent, to avoid a breach. 
</li>
<li>
The property must be in a reasonable state of cleanliness, and it must be habitable, when provided to the tenant.   While this is a debatable point, it's largely worth remembering the state of a property you would be happy to inhabit, and emulate this. Remember to focus on making the property compliant, safe and clean. 
</li>
<li>
Tenants are required to report the need for repairs and maintenance.  They must also not make material additions or changes, such as the alteration of locks or security devices, or fly screens, without the consent of the landlord. 
</li>
<li>
There is a limit on the amount of bond you can charge a tenant. In New South Wales, this limit is up to four week's of the rent you have agreed to pay. As a landlord or property manager, a bond lodgement form is required to be provided to the tenant. 
</li>
<li>
A landlord must tell tenants 'material facts'.   These material facts include whether the home has been subject to serious flooding or bushfire in the past five years, if there are any health/safety risks or if the home has been the scene of a violent crime in the past five years. 
</li>
<li>
A tenant should be provided with a condition report. The tenant should be provided two copies, one of which is for their records, the other is for the property manager. They should be given seven days in which to complete and return this form.
</li>
</ol>
Do you have any "must know" facts from the Residential Tenancies Act? Share yours below.
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Residential Tenancies Act

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