FACTSHEET

Storm damage

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.

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 NSW Civil and Administrative Tribunal (NCAT) for orders that the repairs be done (see below).

You have 3 months to apply to the Tribunal 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 uninhabitability

For a rent reduction, negotiate with the landlord/agent in writing. If an agreement is not reached promptly, apply to the Tribunal for an order for that the rent is reduced (see below). The Tribunal can order the landlord to repay you any overpaid rent.

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

You want to leave

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

To terminate the tenancy, you must serve the notice on the landlord/agent and then give them vacant possession of the premises (you move out and return the keys). Get advice from your local TAAS before doing this.

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

The landlord wants you to leave

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

A termination notice does not itself end the tenancy agreement. If you do not leave according to the notice, the landlord/agent can apply to the Tribunal for orders terminating the agreement (see Factsheet 10: Landlord ends agreement and Factsheet 11: NSW Civil and Administrative Tribunal).

The Tribunal 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 Tribunal order.

Uninhabitable premises

All or part of the premises may be uninhabitable. If the premises are wholly or partly uninhabitable, termination notice 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/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.

Applying to the Tribunal for orders

You can apply for one or more of the following orders:

  • that the landlord do the repairs you have specified
  • that the rent is reduced from when you told the landlord/agent about the need for the repairs until repairs are done.
  • 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.

See Factsheet 11: NSW Civil and Administrative Tribunal and contact your local TAAS for advice about how to prepare an application.

Applying for an order for repairs

You must be able to show that:

  • you notified the landlord/agent about the need for the repairs or that they ought to have reasonably known about it
  • the landlord/agent failed to act with reasonable diligence to have the repair carried out.

Applying for a rent reduction

You can apply to the Tribunal for an order that the rent is excessive due to a reduction of any goods, services or facilities provided with the premises.

You have until the end of the tenancy to apply but do not delay.

For example: Due to storm damage, one of the rooms in the premises is unusable. The landlord fails to do the required repairs. You apply for an order that the rent was excessive for the time you were without use of the room.

If the Tribunal finds the rent excessive, it will make an excessive rent order. The order will specify:

  • the amount that the rent must not exceed
  • the day from which this maximum rent applies – for a period of up to of 12 months.

See Factsheet 04: Rent increases for how to prepare an excessive rent case.

Applying for compensation

You can apply to the Tribunal for orders that the landlord compensate you for economic loss such as the destruction of or damage to your goods.

You may also apply for an order that the landlord compensate you for distress and disappointment (‘non-economic loss’). Contact your local TAAS for advice before doing this.

You must:

  • be able to show that your loss was caused by the landlord’s failure to do repairs
  • apply within 3 months of the landlord’s failure to do repairs.

Updated January 2014