As a tenant you have rights under the Residential Tenancies Act 1987 and Residential Tenancies Regulation 2006. This factsheet explains the law in NSW about rent arrears.

If you are told you are behind in rent

If the landlord/agent tells you that you are behind in your rent (rent arrears), do not ignore it. There are a number of things you should do:

• Check your rent receipts or other records to see if a mistake has been made.
  • If you pay rent into a bank account, ask your landlord for a bank statement listing all your payments.
  • If you pay rent at the post office using a rent card, ask for a statement listing all your payments. (The post office holds records for up to 3 months and can tell you how to get earlier records).
  • If you pay rent by direct debit, check your own bank statements.
• Contact your landlord and explain your situation. You may be able to come to an agreement about paying off your arrears over time. Make notes of any conversations you have with your landlord, as this may be helpful if you have to go to the Consumer, Trader and Tenancy Tribunal (CTTT) at a later date.
• If you can afford to pay off your arrears, send a letter. Keep copies of all letters between you and the landlord.
• If needed, seek help from a financial counselling service such as Credit Helpline (free call 1800 808 488).

If the landlord threatens to evict you, get advice from your local Tenants Advice and Advocacy Service. The landlord must follow the process outlined below. It is illegal for your landlord to evict you without an order from the CTTT.

Can the landlord ask you to leave?

The landlord can give you notice of termination (to end the tenancy) if you are more than 14 days behind in the rent.

The notice must give you 14 days to leave. If it has been mailed, it must include an extra 4 working days. Check the dates on the notice carefully.

If you have not left by the date in the notice

The notice of termination alone does not end a tenancy. The landlord must apply to the CTTT for a hearing to decide whether you have to leave. You are entitled to stay until the CTTT orders an end to the tenancy and gives you a date to leave. (See Factsheet 10: Landlord ends agreement.)

Consumer, Trader and Tenancy Tribunal

The Consumer, Trader and Tenancy Tribunal (CTTT) is where landlords and tenants settle disputes. The people who make decisions at the CTTT are called Tribunal Members. (Also see Factsheet 11: Consumer, Trader and Tenancy Tribunal.)

Once the landlord/agent has applied to the CTTT, you will receive a notice of 'conciliation and hearing' telling you the date, time and place of the hearing.

It is important that you attend the hearing –  even if you have already caught up with your rent or the landlord/agent tells you not to turn up.

If you do not turn up, the CTTT will not know your side of the story, and may assume that you do not care about your tenancy.

You should bring all letters, receipts and other evidence which support your case.

Conciliation

The Tribunal Member will tell you and your landlord/agent to sort out the rent arrears problem together in conciliation. If you think the landlord has made a mistake about the rent arrears or with the notice of termination, tell the conciliator or the Tribunal Member straightaway.

If you agree that you owe rent, you can make an agreement with the landlord/agent to pay it back over a period of time.

Explain your situation and show that you can pay off the arrears (e.g. show a letter from a financial counsellor). Do not offer to pay more than you can afford because if you then fail to meet the agreement, the landlord can take you back to the CTTT and you may be evicted.

If you and the landlord/agent cannot come to an agreement, your case will be heard by a Tribunal Member.

At the hearing

• Ask the Tribunal Member for time to bring your rent up to date and to allow you to continue your tenancy.
• Show the Tribunal Member all the letters or rent receipts that you have brought with you.
• Explain how much extra you can afford to pay per week.
• Tell the Tribunal Member about any hardship that you or your family may undergo if you have to leave your home.

The Tribunal Member will look at your evidence and the landlord/agent’s evidence. They may decide not to terminate your tenancy if:

• they are satisfied that you have paid all the rent arrears and are up to date in your rent payments
• they consider the breach in the circumstances not serious enough to justify your tenancy being terminated
• you can show that you can pay the rent arrears in instalments while keeping up with your rent payments.

Updated: June 2009

Further help

• Your local Tenants Advice and Advocacy Service: www.tenants.org.au/publish/contact-us
• Other factsheets: www.tenants.org.au/publish/factsheets
• NSW Fair Trading Information Centre: 133 220

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.