Disaster damage

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As a tenant you have rights under the Residential Tenancies Act 2010 and Residential Tenancies Regulation 2019. This factsheet is about damage to rented premises that is neither the fault of the landlord nor the tenant – the result of a storm, fire, flood, or other causes of such damage (e.g. a car crashes into the premises).

For short answers to common answers, see also Tips: Renting after a disaster.

This factsheet applies to renters, including renters in residential land lease communities (sometimes called residential or caravan parks). However if you own a home in a land lease community, please see our land lease communities factsheet on natural disasters.

Your safety is important

Following a disaster it is important to keep out of unsafe premises and obey directions of emergency services. If the local council finds that the premises are unsafe, you may have to leave (see ‘If the premises are uninhabitable’ below).

If the premises are uninhabitable

If the premises are destroyed or are wholly or partly uninhabitable, you or the landlord can give the other an immediate termination notice (see ‘If the landlord wants you to leave’ below).

If you want to dispute a council finding of uninhabitability, you should get legal advice. Start by contacting LawAcess NSW, a free service run by Legal Aid NSW, on 1300 888 529. See also the Legal Aid Disaster Response Legal Service factsheet The council wants to condemn my home – what are my rights?

If you want to leave

If you want to end the tenancy, you can give a termination notice for immediate possession of the premises. Your notice must be in writing and say that the premises are wholly, or partly, uninhabitable. Send or deliver the notice to the landlord/agent. Give vacant possession of the premises by moving out and returning the keys.

Be aware that the landlord may dispute your termination notice and apply to the NSW Civil and Administrative Tribunal (NCAT) for an order that you have abandoned the premises. If the Tribunal makes the order, it may also order you to compensate the landlord.

Urgent repairs

Urgent repairs include: serious storm, flood or fire damage, serious roof leaks, electrical faults or other damage that makes the premises unsafe or not secure. The landlord/agent should attend to urgent repairs as soon as possible. Temporary repairs can be urgent repairs (e.g. a tarpaulin over the roof).

If the landlord/agent cannot be contacted or is unwilling to do the urgent repairs, you can arrange for them to be done.

You must give the landlord/agent written notice about the repairs, costs and copies of receipts. They must pay you for any reasonable costs up to $1,000 within 14 days of your notice. However, you may not be repaid if the repairs are not defined as urgent in the Residential Tenancies Act, or if you do not follow the correct process – see Factsheet 06: Repairs and maintenance.

If the landlord does not pay, apply to the NSW Civil and Administrative Tribunal (NCAT) within 3 months for an order that they do so.

For urgent repairs, the landlord, agent or tradespeople may need immediate access to the premises without your consent – see Factsheet 08: Privacy and access.

See also ‘Surely these repairs are urgent?’ in Tips: Renting after a disaster.

Other repairs

You are entitled to be given 2 days notice before the landlord/agent or their tradespeople access the premises to make repairs. Consider waiving this notice and consenting to immediate access. If the landlord/agent does not promptly attend to the repairs, apply to the Tribunal for an order (see ‘Applying to the Tribunal’ below).

Moving out temporarily

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

rent reduction (or abatement)
how long you will be away
who will be responsible for goods at the premises or how the goods will be stored.

Applying to the Tribunal

You can apply to the NSW Civil and Administrative Tribunal (NCAT) for one or more of the following orders:

that the landlord do the repairs you have specified
that the landlord compensate you for losses you suffered because they did not do the repairs
that all or part of the rent is paid to the Tribunal until the repairs are done
that the rent is reduced for the period that the premises are/were in disrepair
that the rent abates for the period the premises were (at least partially) uninhabitable

For (1), (2) and (3) you must apply within 3 months of the landlord failing to meet your deadline for repairs. For (4) apply at any time before the end of the tenancy. For (5) apply within 28 days of the uninhabitability occurring. See Factsheet 11: NSW Civil and Administrative Tribunal and contact your local Tenants Advice and Advocacy Service for help to make an application.

Orders for repairs

You must be able to show that:

the premises were not in reasonable repair
you told the landlord/agent about the need for the repairs (e.g. you wrote to them) or they ought to have reasonably known about it (e.g. they inspected the premises)
the landlord/agent did not make a reasonable effort to have the repairs done (they ‘failed to act with reasonable diligence’).

Compensation

You can apply for an order that the landlord compensate you for economic loss. For example:

You had to spend money on take-away food because the kitchen was damaged and the landlord failed to fix it.
Your belongings are destroyed or damaged because the landlord failed to fix a leaking roof.

You may also apply for an order that the landlord compensate you for the ‘loss of enjoyment’ you have suffered. Before you include this in your application, discuss your case with your local Tenants Advice and Advocacy Service.

You must be able to show that your loss was caused by the landlord’s failure to repair.

The Tribunal may not order compensation for loss you could have avoided (e.g. limiting water damage to your furniture by moving it from under a leak).

The Tribunal can order up to $15,000 compensation.

Rent paid to Tribunal

The Tribunal will often only consider this order when the landlord has not complied with a previous repairs order. You may include it in your application anyway.

Rent reduction and rent abatement

The Tribunal may make an order that the rent is, or was, excessive due to a reduction or withdrawal by the landlord of any goods, services or facilities provided with the premises.

For example: Due to storm damage, one of the rooms in the premises is unusable. The landlord fails to do repairs in a reasonable time. Apply for an order that the rent was excessive for the time you were without use of the room. Apply for both rent reduction and abatement.