Factsheet 22: Storm damage

As a tenant you have rights under the Residential Tenancies Act 1987. This factsheet is about damage to premises that is neither the fault of the landlord nor the tenant – the result of a storm or flood, or other causes of such damage (e.g. a car crashes into the premises).

Immediate action

Leave and/or do not enter unsafe premises and obey directions of the emergency services. You may have to leave if your local council finds the premises to be unsafe. If you want to dispute a council order or finding, get legal advice.

If it is safe and you want to stay

• Protect your property from further damage.
• Immediately tell the landlord/agent of the damage to the premises.
• Tell the landlord/agent of your intention to stay.
• Tell the landlord/agent in writing of what repairs are needed, including temporary measures (see Factsheet 06: Repairs and maintenance).
• Ask the landlord/agent for an immediate inspection and a written schedule of work to be done.
• Confirm your conversations with the landlord/agent by letter. This avoids confusion about what has been said and what will be done.

Repairs

The landlord must maintain the premises in a reasonable state of repair.

Serious storm damage, a serious roof leak, electrical faults or other damage that makes the premises unsafe or not secure are urgent repairs. Such repairs should be done as soon as possible. Temporary repairs can be urgent repairs (e.g. a tarpaulin over a leaking roof).

For urgent repairs, the landlord, agent or tradespeople may need immediate access (see Factsheet 08: Access and privacy and Factsheet 06: Repairs and maintenance). For other repairs, you are entitled to 2 days notice of access. It may be in your interest to waive this notice and consent to immediate access.

If you are going to move out temporarily while repairs are done, make a clear agreement in writing about:

• rent reduction (see below)
• how long you will be away
• who will be responsible for goods in the premises or how these goods will be stored.

If the landlord does not do needed repairs promptly, you can apply to the Consumer, Trader and Tenancy Tribunal (CTTT) for orders that the repairs be done (see Factsheet 06: Repairs and maintenance).

You have 30 days to apply to the CTTT from when you become aware that the repairs have not been done. Your local Tenants Advice and Advocacy Service (TAAS) can help you prepare an application.

Rent reduction

For a rent reduction, negotiate with the landlord or agent in writing. If an agreement is not reached promptly, apply to the CTTT for an order for rent reduction under section 61 of the Residential Tenancies Act 1987. The CTTT can order the landlord to repay you any overpaid rent.

The landlord is not obliged to provide or pay for other accommodation.

If you want to leave

Give a notice of termination for immediate possession of the premises to the landlord or agent. (See Factsheet 09: You want to leave for what is needed in a notice of termination.) Your local TAAS can help you write a notice of termination.

To terminate the tenancy, you must serve the notice on the landlord or agent and then give them vacant possession of the premises. Get advice from your local TAAS before doing this.

Be aware that the CTTT may later find that your notice of termination was not justified and order you to pay compensation to the landlord for abandoning the premises.

If the landlord wants you to leave

The landlord may give you a notice of termination which could be for immediate possession of the premises.

Notice of termination does not itself end the tenancy agreement. If you do not leave according to the notice, the landlord can apply to the CTTT for orders terminating the agreement (see Factsheet 10: Landlord ends agreement and Factsheet 11: Consumer, Trader and Tenancy Tribunal).

The CTTT will have to decide whether the premises being uninhabitable (see below) and other circumstances justify termination of the agreement. You cannot be evicted without a CTTT order.

Uninhabitable premises

All or part of the premises may be uninhabitable. If the premises are wholly or partly uninhabitable, notice of termination can be given by either you or the landlord. You should consider whether it is practical to stay in premises that are partly uninhabitable.

If the tenancy agreement is terminated, rent is no longer owed and the landlord should return any overpaid rent.

Prevention is better than cure

Neglect of premises can mean that storm or accident damage is worse if it occurs.

Your tenancy agreement says that you must tell the landlord or agent of any need for repairs (including dangerous or dying trees). Always tell them about repairs needed promptly and in writing and keep copies of all your letters. (See Factsheet 06: Repairs and maintenance.)

Compensation

You can apply to the CTTT for compensation for loss caused the landlord breaking ('breaching') the tenancy agreement – such as failing to do repairs. You have 30 days to apply for compensation once you know of a breach.

Delays by insurance companies, tradespeople or material suppliers may be taken into account in considering if the landlord should pay you compensation.

Compensation is not available for losses caused by storm damage alone.

Updated: June 2009

Further help

Tenants Advice and Advocacy Services: see www.tenants.org.au/publish/contact-us to find your local general or Aboriginal service
Tenants NSW website: see www.tenants.org.au/publish/factsheets for other factsheets and sample letters
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.