Renting laws in review: inspections and privacy

At over fifty pages in length, and posing 42 questions, Fair Trading's paper for the review of the Residential Tenancies Act 2010 provides broad scope for discussion. In the coming weeks and months, we will be highlighting some of the topics that interest us most here on The Brown Couch. Today we are looking at a landlord's right to access a property without the tenant's consent. The paper asks:

24. Are the notice periods for carrying out inspections appropriate?

25. Should the number of inspections allowed per year be reduced for long term tenants? If so, how long should a tenant have continuously occupied the same premises to be classified as a 'long term tenant'?

26. Are any additional protections needed for tenants and landlords regarding inspections and privacy?

Is current NSW law around access and inspections of a rental property... elementary?

The law allows a landlord to enter a residence without the tenant's permission (or even presence) to carry out a general inspection, perform necessary maintenance, get a valuation, and show the property to prospective buyers or new tenants. Tenants are entitled to different forms of notice depending on the purpose of the visit - for example, a landlord must give seven days' notice in writing before a general inspection. There are no strict limits on the maximum number of visits overall, but there is a cap of four general inspections in any 12 month period.

The use of different notice requirements and caps on visits does complicate things at first glance. But once you unpack everything it's quite straightforward, as the table in our fact sheet on the subject shows. But is this simplicity actually problematic? Parties frequently differ in their view of what is appropriate or necessary when the landlord comes around. And whilst the Act does contain rules regulating the conduct of the landlord during inspections, they are less than comprehensive.

Photography and video recording is one common ground for disagreement. In particular, a landlord's agent will often want to document a residence for the purpose of advertising it to potential buyers or replacement tenants. As the discussion paper notes, this represents a privacy and safety concern for many tenants - particularly when the photos or recordings reveal their identity, or valuable belongings. It's easy to see where the agent is coming from; an empty property is hardly going to catch the eye the cutthroat world of the online real estate pages. But should it really be incumbent on the tenant to assist a landlord in a process that will result in an end to their tenancy?

Though tenants enjoy a fundamental right to peace, comfort and private enjoyment, the Act fails to address the issue of photography and video recording directly. Moreover, that general protection can be difficult and expensive to enforce. A tenant would need to convince the Tribunal that the proposed photography or recording would amount to a breach of their peace, comfort, or private enjoyment; and obtain an order safeguarding that right. This would typically require attendance at both a conciliation and a hearing.

What's more, given such an inspection is likely to occur within a short window of opportunity - probably within the 14 day notice period of a landlord's intention to sell - a tenant would almost certainly require an urgent hearing to make sure the matter goes before the Tribunal in time to prevent the apparent breach. Urgent hearings are provided at the Tribunal's discretion only, and there are no formalised means of requesting one. It's not difficult to see why most people don't bother.

The Act is also vague in establishing the basic rules for inspections to show a property to potential new tenants. Here, a landlord must provide reasonable notice, and conduct no more inspections than is reasonable in the 14 days before the tenancy ends. But there is nothing to guide parties on just what is 'reasonable' in these circumstances. And a tenant would have to jump through the same legal hoops as those outlined above to obtain an order restricting the landlord where either party's notion of 'reasonable' is not in accordance with the other. What's more, given a tenancy does not technically end until vacant possession is returned to the landlord, and not the date specified in a notice of termination, determining which are the 'last 14 days of the tenancy' can be decidedly tricky. It is always unclear when the landlord becomes entitled to arrange such inspections.

There is also the question of notice, and how it must be given. A landlord is required to provide a tenant with written notice of some types of inspections but not others, but a failure to 'put it in writing' is common cause for conflict in all types of legal disputes. Parties with conflicting interests tend to remember conversations unfolding in the manner that suits them best.

Finally, there's the question of whether this is even necessary for all tenants. As the discussion paper succinctly notes, "It has been suggested that in order to strengthen the rights of tenants who have resided at the same premises for a number of years (‘long term tenants’), the number of inspections allowed per year should be reduced." Certainly, reducing the number of general inspections allowed for tenancies that have withstood the test of time would allow long term tenants to better enjoy their right to peace, comfort and private enjoyment.

As you can see, there's much to discuss on inspections. We'd love to know your thoughts as well. How has the law concerning inspections and privacy worked for you over the last five years? What changes could be made to make them better?

Fair Trading wants to hear from you, too - you can make a submission to to the review of the Residential Tenancies Act 2010 to help them understand just how these laws are treating you in your part of New South Wales.