Factsheet 08 [PDF]

As a tenant you have rights under the Residential Tenancies Act 2010 and Residential Tenancies Regulation 2010. This factsheet explains the law in NSW about your right to privacy and the landlord’s right to enter the premises.

Your rights

You are entitled to ‘reasonable peace, comfort and privacy’ in your use of the premises. The landlord/agent must not interfere with, or cause or permit interference with your peace, comfort and privacy.

Landlord’s right to enter the premises

Other than as outlined below, the landlord/agent or another person authorised by the landlord must not enter the premises.

If the landlord/agent gives you the proper notice (if applicable) and has a legitimate purpose, you will be in breach of your tenancy agreement if you refuse them entry. This applies whether or not you are at the premises at the time (see below).

Entry with consent

The landlord/agent or another person authorised by the landlord can enter the premises at any time with your consent.

Entry without consent, without notice

The landlord/agent or another person authorised by the landlord can enter the premises without your consent and without notice, only:

1. in an emergency
2. to carry out urgent repairs (see Factsheet 06: Repairs and maintenance)
3. if the landlord has reason to believe the premises have been abandoned
4. in accordance with an order of the Consumer, Trader and Tenancy Tribunal (CTTT)
5. if after making a reasonable attempt to gain consent, the landlord/agent or authorised person has serious concern about the health/safety of a person on the premises.

Except in the case of (e) above, the ‘Limits to entry without consent’ (see below) do not apply.

Entry without consent, with notice

The landlord/agent or another person authorised by the landlord can enter the premises without your consent for certain purposes. See the table below for the number of times entry is permitted and minimum notice periods.

Except as noted in the table, notice does not have to be in writing. If notice is posted to you, the landlord/agent must allow an extra 4 working days for delivery.

Entry without consent – permitted frequencies and notice periods

Showing premises to prospective tenants – ‘reasonable’ notice / number of times

The law does not define what ‘reasonable’ means in this situation. This is determined on a case-by-case basis.

If you disagree with the landlord/agent about ‘reasonable’ access you can apply to the CTTT for an order to specify or limit the days and times on which the landlord/agent can show the premises.

If you refuse access, the landlord/agent can apply to the CTTT for an order authorising them or any other person to enter the premises

Showing premises to prospective buyers – agreeing to days and times

The landlord or the agent arranging the sale must make all reasonable efforts to come to an agreement with you about days and times for showing the premises. When you make an agreement, put it in writing.

You must not unreasonably refuse to agree to days and times for showing the premises, but need not agree to more than 2 showings in any period of a week. The landlord/agent may apply to the CTTT for an order to specify the days and times on which you must make the premises available.

Limits to entry without consent

The landlord/agent or another person authorised by the landlord must not:

• enter before 8am or after 8pm
• enter on a Sunday or public holiday
• stay longer than necessary.

They must, if practicable, notify you of the proposed time and date of entry.

A person authorised by the landlord/agent must not enter without your consent when you are at the premises unless they have written consent from the landlord/agent. If you are at the premises, they must show you this consent.

Entry when you are not at the premises

If you cannot be there, try to arrange for someone to be there on your behalf. People entering the premises when you are not there may be a problem for your insurance. Ask your insurance company about this.

If your goods are stolen or damaged, you can apply to the CTTT for compensation. You must be able to show that it was due to the conduct of the landlord/agent or other authorised person.

Interference with your privacy

Examples of this include:

• the landlord/agent coming to the premises for no reason and without notice
• a tradesperson coming to do non-urgent repairs without proper notice
• prospective buyers with a key to the premises coming around without notice or written consent from the landlord.

If your privacy is interfered with

Complain to the landlord/agent in writing and demand that they stop breaching the tenancy agreement. Keep a copy of the letter. You can also:

• apply to the CTTT for orders
  • to stop the landlord/agent entering the premises (apply within 3 months of becoming aware of the landlord’s/agent’s breach)
  • to specify or limit the days and times on which, and purposes for which, the landlord/agent or other authorised person can enter (apply at any time during the tenancy)
  • for the landlord to carry out a term of your residential tenancy agreement (apply at any time during the tenancy)
  • to allow you to change the locks or refuse the landlord a key to the premises (see Factsheet 07: Locks and security)
  • to end your tenancy (see Factsheet 09: You want to leave)
  • for compensation for loss of or damage to your goods (apply within 3 months of becoming aware of the loss or damage)
• report trespass to the police
• report unlawful entry to NSW Fair Trading. (A landlord/agent can be fined up to $2,200.)

If your complaint is about a real estate agent, tell your landlord about the agent’s behaviour. You can also complain to NSW Fair Trading.

Applying to the CTTT

See Factsheet 11: Consumer, Trader and Tenancy Tribunal and contact your local Tenants Advice and Advocacy Service for help in preparing an application.

Contacts

NSW Fair Trading, PO Box 972, Parramatta 2124 (phone 02 9895 0297, free call 1800 625 963)

January 2011

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.