Roaches in your rental – to leave or not to leave

As someone who regularly talks to renters in NSW about tenancy issues, I have had many conversations, more than anyone should, about cockroaches. I grew up in a cold climate where there are no roaches, so when I moved to the humid tropical paradise for roaches also known as Sydney, I was horrified by their existence in my home – even more so when they would rain down from the kitchen cupboards and scuttle into the back of the fridge when I turned on the light in the middle of the night.

I personally don’t think anyone should have to live with roaches. They are gross. But hating roaches and the existence of roaches in the property might not be a good enough legal reason to end a tenancy without having to pay compensation to the landlord for leaving the contract early. One common source of disagreement when it comes to roaches and other pests or vermin, is whether the landlord or the tenant is responsible for the infestation. (See Factsheet 6: Repairs and maintenance.) A tenant is responsible for keeping the premises ‘reasonably clean’. However if the pests were already a problem when the tenant moved in, they are more likely to be the landlord’s responsibility. That was the argument made (unsuccessfully) by these renters: Landlord wins thousands in compensation after tenants ‘abandoned’ property over cockroaches (Domain).

It is tricky to leave a fixed-term tenancy early in NSW. There is a contract (lease) between the tenant and the landlord and there is a legislated process for ending this contract. I get it, the renters from the article believed that it was not fair that they should have to stay in a home they felt wasn’t safe for them. But what does the law say?

To end the contract early without having to pay compensation to the landlord there needs to be a legal reason. If a renter moves out without establishing the legal reason, then a break lease fee may apply. The break lease fee is a capped amount of compensation built into all fixed term residential tenancy agreements. The amount a renter will have to pay depends on how much time they have left in their fixed term agreement period. This was a significant improvement over the previous compensation system which could stretch to amounts much greater than the bond and exacerbate disputes about whether the agent was leasing the property. For more see Factsheet 9: Ending fixed-term tenancy early.

‘I have just moved in and there are roaches in my rental property and I want to move out. What should I do?’

• Report the issue to the real estate agent or landlord in writing.
• If it is not attended to within a reasonable timeframe try and negotiate to leave without penalty to either side. See Tips: Negotiating with the landlord.
• If an agreement cannot be reached, serve a 14 day notice of termination for the landlord's breach of contract. You can leave at the end of the notice, or apply to the Tribunal while still living there.
• Make sure you collect evidence to show it’s a ‘serious or persistent’ breach. If the landlord disputes the notice and you’ve already left you may end up paying break lease fees.

What were the problems in this case?

The renters in the Domain article said the existence of roaches in the property made the property ‘uninhabitable’ and that the landlord had failed in their responsibility to provide the property ‘reasonably clean and fit for habitation’, posing a risk to their family’s health and safety.

Unfortunately, ultimately both how they went about addressing the issues and the evidence of the case made it difficult for the NSW Civil and Administrative Tribunal (NCAT) to agree with them.

Once the contract has started a renter and the landlord both have rights and responsibilities. The landlord has to ‘provide the property reasonably clean and fit for habitation’ and if the renter claims the landlord has breached the contract by failing to do this, the renter has a responsibility to report the breach and give the landlord a reasonable opportunity to fix the problem. This is how repairs are usually dealt with – see Factsheet 6: Repairs and maintenance. If the landlord does not fix the issue it is possible for the tenant to issue a 14-day notice of termination based on the landlord’s breach of contract.

Renters have another route to ending a tenancy early if they feel like the property was uninhabitable – they can serve an immediate notice of termination and vacate.

However, issuing this type of notice does not mean that the renter will necessarily avoid a break lease fee. It is common for the landlord to argue the breach was not ‘serious and persistent enough to justify termination’ and that the tenant moved out before giving them an opportunity to fix the problem. More often than not the landlord will pursue the break lease fee as part of a bond claim. Then the validity of the notice given the ‘nature of the breach’ will be a question for the Tribunal to decide.

The law loves the term ‘reasonable.’ It is meant to represent how an average person would view the circumstances of the case, but we as individuals don’t decide what is reasonable in this context. Rather, based on the evidence before it, the Tribunal will decide what is ‘reasonably clean’ and whether the landlord has had ‘reasonable opportunity’ to fix the problem.

Unfortunately in this case, the renters never issued a notice of termination. They informed the landlord they were pulling out of the lease, but by itself this isn’t necessarily enough to count as a notice. We know from the decision they didn’t claim they had served a notice.

So what can renters do to have the best outcome?

Here are 4 tips that could help renters in these circumstances minimise the costs involved: