Factsheet 26: Asbestos and lead
As a tenant you have rights under the Residential Tenancies Act 2010 and Regulation. This factsheet discusses asbestos and lead in rented premises.
Asbestos is a mineral commonly used in building materials in the 1940s–1980s. It was used in walls, drains, flues, roofing and guttering. It is usually safe if not disturbed. If asbestos materials are damaged and fibres are freed, they pose a health risk.
Lead is a metal found in old paint (before 1970), dust in the roof and soil. Lead can be harmful, especially to small children and pregnant women.
The mere presence of asbestos/lead at the premises does not cause them to be in a state of disrepair.
The landlord must:
You may want to stay at the rented premises and have them repaired or to end your tenancy and leave.
Tell the landlord/agent that they need to arrange for repairs. Write them a letter telling them what needs fixing and by when. Give a clear deadline. Keep a copy of the letter and a record of any conversations as evidence that you have notified them. Also see Factsheet 06: Repairs and maintenance.
If the landlord does not promptly arrange for repairs, you can apply to the NSW Civil and Administrative Tribunal for orders (see below).
If you are going to move out temporarily while repairs are done, make a clear agreement in writing about:
You can apply for one or more of the following orders:
People who are not named on the tenancy agreement as tenants (e.g. children) cannot apply to the tribunal.
See Factsheet 11: NSW Civil and Administrative Tribunal and contact your local Tenants Advice and Advocacy Service for advice about applying.
You must be able to show that:
The tribunal may make an order that the rent is or was excessive due to a reduction or withdrawal by the landlord of any goods, services or facilities provided with the premises (e.g. part of the premises becomes unusable due to the presence of asbestos fibres or lead).
If the tribunal finds that the rent is excessive, it will make an excessive rent order. It will specify:
See Factsheet 04: Rent increases for how to prepare an excessive rent case.
You can apply for order/s that the landlord compensate you for ‘economic loss’ such as the destruction of or damage to your belongings.
You may also apply for an order that the landlord compensate you for physical inconvenience you have suffered. Discuss your case with your local Tenants Advice and Advocacy Service first.
You must be able to show that your loss was caused by the landlord’s failure to do repairs. The tribunal may not order compensation if you have not mitigated your losses.
You must back up your claims with evidence. This may include expert reports on the presence of asbestos/lead in the premises (e.g. from a scientist, council building/health inspector, builder). Such reports can be costly, so you may need to rely on other evidence.
The condition report is important evidence of the state of the premises at the start of the tenancy. Other evidence may include:
In Gannon v Department of Transport & Regional Services (Tenancy)  NSWCTTT 793, the tribunal found that the landlord breached the tenancy agreement but did not order compensation due to lack of independent evidence and a delayed application.
In Symonds v Duncan (Tenancy)  NSWCTTT 499, the tribunal accepted evidence of lead levels from the local council, found that the premises were unlivable for a time and ordered the landlord to compensate the tenant for some of her claimed losses.
The landlord should use workers with the appropriate licence or training to do repairs. In any case, workers should follow safe work practices. Call WorkCover NSW (phone 13 10 50) for advice about safe work practices. See these publications for what to look for:
If the work practices used are unsafe, contact:
See Factsheet 09: You want to leave for how to end your tenancy agreement.
If someone in your household has been made ill by lead/asbestos, seek medical advice. Consult a solicitor or your local Community Legal Centre (02 9212 7333, www.nswclc.org.au) about whether to take legal action.
The NSW Civil and Administrative Tribunal is not the best place to take a personal injury claim – the maximum compensation it can order is $15,000.
Global Lead Advice and Support Service: 1800 626 086, www.lead.org.au
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The information in this factsheet:
• is intended as guide to the law and should not be used as a substitute for legal advice
• applies to people who live in, or are affected by, the law as it applies in New South Wales, Australia.
© Tenants' Union of NSW