Landlords calling properties ‘uninhabitable’ to kick tenants out: How you can fight it

Unscrupulous landlords are jumping on a little known clause to get rid of tenants they consider difficult, to increase the rent, or to avoid making necessary repairs.

If a property is deemed ‘uninhabitable’ by a landlord or agent, it gives them the power to force tenants out, often with very little notice. 

Though there are legitimate reasons to deem a property uninhabitable, such as after floods or fires, the clause can and has been abused. 

A claim of uninhabitability can be disputed (see fact box below), but many fear doing so in case it affects their chances of getting a reference for future tenancies. 

‘In some cases it’s fairly clear cut, that a property being deemed uninhabitable is not fair,’ NSW Tenants’ Union spokesman Leo Patterson Ross told Daily Mail Australia. 

‘In others it’s being used appropriately. In the Lismore floods, for instance, it was clear in cases that the premises weren’t fit for habitation,’ he said. 

The Tenants’ Union has seen a huge increase in the number of renters losing their homes through the loophole.

‘The problem that was coming up is if a landlord failed to maintain the premises in a reasonable state,’ said Mr Patterson Ross. 

‘They really shouldn’t be using uninhabitability to get out of their repair obligations, and that seems to be what’s happening in some of those cases.’

Mr Patterson Ross gave an example of where a tenant reports some minor mould, caused by a leak in the roof to the landlord.

‘If a really severe storm then pushes much more water through and that causes a collapse, the line is not necessarily clear between the landlord’s failure to maintain (the home) previously and the current uninhabitability,’ he said. 

‘But quite often, it would be a stretch to say that the landlord’s failure to maintain hadn’t contributed to the problem. So therefore, uninhabitability would be an inappropriate clause to use.’

The Tenants’ Union said that one of the risks of complaining about the condition of a rental property is tenants may then get an ‘uninhabitable’ termination notice or no-grounds eviction.

Sophie Eldridge, a mother of two from the southern Sydney suburb of Oatley,  contacted her real estate agent about necessary repairs needed in her rental home. 

This included a possum infestation in the roof, a broken stove, a broken air conditioner, mould and a broken shower washer.

When she made a further request for a permanent fix for the mould, she got a termination notice just before Christmas 2020.

‘By that point, I was furious. My children were sick with mould poisoning, their eyes and noses constantly dripping,’ she told the Sydney Morning Herald.

‘They responded by evicting us the week before Christmas with no apology nor assistance from the agent to find a new place.’

 There is no oversight in such cases, said Mr Patterson Ross. 

‘Once the tenant has left, nobody checks that the premises has been returned to habitability, or that the issue that was causing it has been addressed.

‘So it’s a very easy thing to go unchecked, whether it was a legitimate use or not,’ he said. 

‘We have certainly seen incidences … where the tenant was asking for repairs to be carried out (and) they received an uninhabitability notice … and then the premises were back up for rent and it did not appear that any work had been done.’ 

If a tenant feels they have been unfairly treated with an ‘uninhabitable’ property eviction notice, they can take their case to the NSW Civil and Administrative Tribunal, meaning they cannot then be immediately forced out.

‘The Tribunal does have the ability to hold urgent hearings, generally where they think someone is at risk of harm,’ said Mr Patterson Ross. 

‘Other than that, the general timeframe is three to four weeks from application.’