Changes to the law for 'protected tenants'

Published on 02/07/2019

Leaking roof
The leaking roof over the home of a 93-year-old protected tenant.

From 1 July 2019 the law regarding ‘protected tenants’ changed. They previously were covered under the provisions of the Landlord and Tenant (Amendment) Act 1948 (‘1948 Act’) which was repealed on 1 July 2019. They are now covered under Schedule 2 (‘Savings Provisions’ Part 7 (‘Provisions consequent on enactment of Fair Trading Legislation Amendment (Miscellaneous) Act 2018’)) of the Residential Tenancies Act 2010 (‘2010 Act’).

‘Protected tenant’ is a colloquial term for a tenant who (i) lives in ‘prescribed premises’, as defined under ‘Definitions’ in the new Schedule and (ii) still enjoys the full provisions of the repealed Act. A ‘statutory protected tenant’ is a colloquial term for a person who has ‘like-rights’ to a protected tenant, usually a surviving spouse or child.

No-one knows how many protected tenancies remain, but in 2019 their number is small. Some five years ago we estimated that there were 400 to 600 protected tenancies across New South Wales. Today their numbers probably have halved. They are found in older suburbs where many residents rented until gentrification gobbled up that suburb, or in country towns where no-one worried about paperwork in the good old days.

Here are a few pointers for how to flag a 'protected tenant':

  • an older person
  • tenant or occupant of same house or flat and moved in before 1 January 1986
  • tenant lives in a house or a flat built before 16 December 1954
  • if a flat, the building was divided into flats before 1 January 1969
  • tenant is paying a rent substantially below market rent
  • tenant talks about signing a '17A Agreement'
  • the premises are in substantial disrepair

From 1 July 2019, death of the tenant takes the premises out of the 1948 Act and places those same premises under the main provisions of the 2010 Act, because Section 7(a) of this latter Act no longer applies.

From 1 July 2019, the succession rights of children ceases. However, the status of existing ‘statutory protected tenants’ at 1 July 2019 – those who are children of a deceased protected tenant – has not changed. Their situation is 'grandfathered'. The succession rights of a surviving spouse remain.

The Tenants’ Union of NSW has produced a new Information Sheet which tells you everything you need to know about ‘protected tenants’.