Rental Properties

  • Cordato, A. (2019, February 1). Mould in rental properties – tenant’s rights and landlord’s responsibilities. Lexology. Retrieved March 16, 2019 from ref.
  • Ioannou, D.  (n.d.). Rental apartments and mould: a common story. Maurice blackburn lawyers. Retrieved May 8, 2018 from ref.
  • Kesteven, S. (2018, August 15). Living with mould: The ‘tightrope walk’ between landlords and tenants. ABC Radio National. Retrieved Feb 17, 2021 from ref
  • Kollmorgen, A. (2020, March 9). Black mould and renters’ rights. Choice. Retrieved Feb 17, 2021 from ref
  • Residential Tenancies and Rooming Accommodation Act 2008 (1 Sept 2019) / Residential Tenancies and Rooming Accommodation Regulation 2009
    • Minimum standards: The Act makes provision for a prescribed minimum housing standard to be prescribed by a regulation (s 17A). The minimum standard prescribed could relate to, for example:
      • sanitation, drainage, cleanliness and repair of the premises;
      • ventilation and insulation;
      • protection from damp and its effects;
      • construction, condition, structures, safety and situation of the premises;
      • freedom from vermin infestation; and
      • energy efficiency (s 17A(3)).
    • The Act also lists the lessor’s obligations at the start of the tenancy, which are to ensure that the premises are: clean; fit for the tenant to live in; and in good repair. The lessor must also ensure that no health and safety laws have been breached and that the premises comply with any prescribed minimum housing standards (s 185(2)).
  • Residential Tenancies Authority (Mould, n.d.)
    • Minimum housing standards requiring rental properties to be free of mould
    • Deciding who is responsible for cleaning mould depends on how it appeared in the first place.
    • The tenant should notify the property manager/owner as soon as they are aware of a mould issue.
    • Generally, if the mould is a result of problems with the property (e.g. a leaking roof) it is the property manager/owner’s responsibility to clean the mould and make any necessary repairs.
    • Some buildings may be more prone to mould due to factors such as the age of the building, structural issues, location, or the absence of adequate ventilation or extractor fans. The property manager/owner is more likely to be responsible for mould in these circumstances.
    • If the tenant causes the mould they are responsible for cleaning it and paying for any damage caused.
  • QCAT
  • Other tenancy bodies/services
  • Residential Tenancies Act 2010 (11 Dec 2020) / Residential Tenancies Regulation 2010
    • Minimum standards: The Act states that a landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age, life and rent payable for the premises (s 63). There are no prescribed minimum standards in the Act, nor is ‘reasonable state’ defined.
  • NSW Fair Trading (Health, safety and security in a rental property, n.d.)
    • Adequate ventilation is one of the minimum standards that properties must meet to be considered fit to live in. Who is responsible depends on how the mould developed. For example:
      • if mould developed from a build-up of moisture because the landlord failed to repair a defective window in a reasonable time, or the property didn’t have adequate ventilation – then the landlord is responsible and must fix the problem
      • if the mould developed during the tenancy because the tenants allowed a build-up of moisture by never opening any windows or not using ventilation fans in the bathroom – then the tenant may be responsible.
    • Timing is also a factor. If mould develops close to the start of the tenancy, it could be considered pre-existing damage. The condition report contains a dedicated section on mould, and landlords, agents or tenants should note the mould when they complete the report.
    • Even if mould is noted on the condition report, landlords must make sure they keep the property in a reasonable state of repair.
    • Tenants must notify the landlord or agent as soon as possible if they see any signs of mould or damp developing during the tenancy.
  • Escalation
  • Residential Tenancies Amendment Act 2018 (2018)
    • All changes in place from March 2021. (2020, October 1). Consumer Affairs Victoria. Retrieved Feb 17, 2021 from ref
      • Expanded definition for urgent repairs
        Urgent repairs now include repairs or replacements relating to air conditioning, safety devices and any fault or damage which makes the property unsafe or insecure, including pest infestations, or mould or damp caused by or related to the building structure.
  • Residential Tenancies Regulations 2021 (S.R. No. 3/2021)
    •  16 Information which residential rental provider must disclose to rental applicant (p11)
      2 (c) On and from 31 December 2021, if the residential rental provider has received a repair notice, in the last 3 years, relating to mould or damp in the premises caused by or related to the building structure;
    • Schedule 4 – Rental minimum standards
      8 Mould and dampness (p181)
      Each room in the rented premises must be free from mould and damp caused by or related to the building structure.
    • 13 Ventilation (p184)
      (1) If the rented premises is a Class 1 building, each habitable room, bathroom, shower room, toilet and laundry must have ventilation satisfying Performance Requirement P2.4.5 of the BCA Volume Two, or the Acceptable Construction Practice in Part 3.8.5 of the BCA Volume Two.
      (2) If the rented premises is within a Class 2 building, each habitable room, bathroom, shower room, toilet and laundry must have ventilation satisfying Performance Requirements FP4.3, FP4.4 and FP4.5 of the BCA Volume One, or the Deemed-to-Satisfy Provisions requirements in F4.5, F4.6 and F4.7 of the BCA Volume One.
  • Consumer affairs Victoria (Mould in a rented home., 2021)
    • Who is responsible for treating mould may depend on whether:
      • the tenant contributed to the problem. For example, if the tenant has allowed mould to develop in a bathroom by not using ventilation fans, the landlord may serve the tenant with a notice requiring them to fix the problem.
      • a problem with the property has allowed the mould to develop. For example, if a defective window frame has allowed rainwater to leak into the property, causing mould, the landlord must deal with this as a non-urgent repair.
      • Mould is common after floods or heavy rain. Tenants should advise their landlord or agent immediately if they see signs of mould, using the Notice to landlord of rented premises.
      • If the mould is causing a danger to health this may be considered an urgent repair, because the mould is causing the property to be unsafe.
      • Tenants will need to support their request for urgent repairs by providing proof that the mould is dangerous and/or causing a health issue. Examples include:
        • an assessment report by an occupational hygienist or environmental health professional. Some local councils are also able to provide these assessments
        • a medical report, if the tenant has an existing health issue such as asthma.
  • VCAT
  • Tenancy bodies/services
  • Residential Tenancies Act 1995 (v1.7.2020) / Residential Tenancies Regulations 2010
    • Minimum standards: Division 7 of the Act details the landlord’s obligations in regard to condition of the premises, and states that the landlord must ensure that the premises are in a ‘reasonable’ state of cleanliness and repair (ss 67–68). There are no prescribed minimum standards in the Act, nor is ‘reasonable state’ defined.
  • Government of South Australia (ref)
    • The landlord must meet all conditions in the lease agreement as well as:
      • provide the property in a clean and reasonable state at the start of the tenancy
    • The tenant must meet all conditions in the lease agreement as well as:
      • keep the property reasonably clean and free from health and fire hazards
  • SACAT
  • Residential Tenancy Act 1997 (17 Nov 2020) / Residential Tenancy Regulations 2015
    • Minimum standards: Part 3B of the Act prescribes minimum standards for premises, which include, among others, that the premises must:
      • be weatherproof and structurally sound;
      • be clean and in good repair;
      • have a flushable toilet, in a room that contains a vent or opening window;
      • have a bathroom with a bath or shower, and a washbasin;
      • have a functioning kitchen sink, stovetop (with a prescribed number of heating elements) and oven;
      • have a functioning electricity and heating supply;
      • have window coverings for privacy; and
      • have adequate ventilation (ss 36I–36O)
  • Residential Tenancies Act 1987 (10 Jul 2020) / Residential Tenancies Regulations 1989
    • Minimum standards: The Act states that the lessor ‘must deliver up to the tenant vacant possession of the premises in a reasonable state of cleanliness and a reasonable state of repair having regard to its age and character’ (s 42(2)); no minimum standards are prescribed in the Act, nor is ‘reasonable state’ defined.
  • SAT
  • Residential Tenancies Act 1999 (1 Jan 2021)/ Residential Tenancies Regulations 2000
    • Minimum standards: The Act states that premises under a tenancy agreement must be: habitable, clean, secure, and meet all relevant health and safety requirements (ss 47–49). There are no prescribed minimum standards in the Act.

Government & Building Code Information

  • Commonwealth of Australia. (2018, October). Report on the Inquiry into Biotoxin-related Illnesses in Australia. Retrieved January 30, 2021 from link.
  • Commonwealth of Australia. (2020, March). Australian Government Response to the Inquiry into Biotoxin-related Illnesses in Australia. Retrieved January 30, 2021 from link.
  • National Health and Medical Research Council. (2020, November). Consultation Paper: Biotoxin-related illnesses in Australia–Health and medical research needs. Retrieved January 30, 2021 from link.
  • Real estate institute of Australia. (n.d.). Tenancy Advice. Retrieved February 21, 2021 from link.
  • Toxic Mould Support Australia. (2021, January). TMSA Consultation Response to the Targeted Call for Research into Biotoxin-related Illnesses in Australia. Retrieved January 30, 2021 from link.
  • Australian Building Codes Board. (2019). Condensation in buildings, third edition. Retrieved January 26, 2021 from link.
  • Dewbury et al. (2016). Scoping study of condensation in residential buildings. Australian Building Codes Board. Retrieved November 14, 2017 from link and link [appendices].
  • Law, T. (2017). Condensation in the built environment. Australian Institute of Refrigeration, Air-conditioning and Heating – Humidity and Mould Prevention, Northern territory. [Audio File, 47m41s] audio link. [Adobe Acrobat File, 9.38MB] slides link.
  • Queensland government residential tenancies authority. (n.d.). Mould. Retrieved February 21, 2021 from link.
 
  • Tenants’ union of New South Wales. (2014, January). Mould. Retrieved February 21, 2021 from link.
 
  • Tasmanian government consumer building & occupational services. (2020, July 1). Types of minimum standards for rental properties. Retrieved February 21, 2021 from link
  • Tasmanian government consumer building & occupational services. (2020, September 15). Rental repairs – whose obligation. Retrieved February 21, 2021 from link
  • Tenants’ Union of Tasmania. (2014, September 30). Fact Sheets: Mould. Retrieved February 21, 2021 from link.
  • Consumer, Building and Occupational Services. (2019). Condensation in Buildings – Tasmanian Designers’ Guide – Version 2. [Adobe Acrobat File, 7 MB]. Retrieved February 13, 2020 from link.
  • Dewsbury, M., Soudan, A., F, Geard, D., Cooper, A., & Law, T. (2018). Condensation risk mitigation for Tasmanian housing. Consumer, Building & Occupational Services and Department of Justice, Tasmania, Australia. Retrieved February 21, 2021 from link.
  • Government of Western Australia department of health. (2015). Mould and condensation in your home. [Adobe Acrobat File, 188kb]. Retrieved February 13, 2020 from link.
  • Government of Western Australia department of health. (n.d.). Mould and dampness. Retrieved February 21, 2021 from link.
  • Tenancy WA. (2019, May 4). Mould. [Adobe Acrobat File, 236kb]. Retrieved February 21, 2021 from link.

Construction Defects, Buying and Selling