Coverage and application of the Residential Tenancies Act 1987 and the Residential Tenancies Regulations 1989

Contributed by Ann-Margaret Walsh and Piercy Porter and current to 1 September 2005

The purpose of the Residential Tenancies Act is to regulate the relationship of owners and tenants under residential tenancy agreements. It sets out the rights and responsibilities of both the owner and the tenant, the processes that must be adopted for evictions, and the remedies available to both parties under the Act.

Section 3 of the Act defines a residential tenancy agreement as an arrangement where an owner or agent grants to a tenant the exclusive right to occupy any residential premises for residential purposes for money or some other valuable consideration. The residential tenancy agreement can be either a fixed term or a periodic agreement. See ‘Commencing the Tenancy’ below for a discussion of these two types of agreements.

Section 5 sets out exclusions from the Act. These include holiday accommodation, boarders and lodgers, holiday homes, hotels and motels, educational institutions, and nursing homes. It is important to be able to assess whether a residential tenancy agreement falls within the Act because the rights and responsibilities of the parties may be significantly affected.

Breaches of certain provisions of the Act can incur a penalty. The amounts referred to in this chapter are the maximum penalties that can be imposed. However, these do not apply automatically when an owner/agent or tenant is found to be in breach of the Act by the court. It is the role of the Department of Consumer Employment and Protection (DoCEP) to investigate breaches, to prosecute and to seek the imposition of a penalty by the court (s.8). It is advisable, therefore, to report any breach of the Act by a party to DoCEP.

CONTRACTING OUT CLAUSES

Although the Act applies to all residential tenancy agreements, section 82 allows certain provisions to be contracted out of. This means that it can be put into the agreement that certain rights or obligations can be excluded, modified or restricted. In order for section 82 to be effective, the tenancy agreement must be in writing and signed by the tenant and the owner/agent (s.82(3)). An owner/agent or tenant is not permitted to contract out of other provisions of the Act, and any clause in an agreement which tries to do this is not binding and can incur a maximum penalty of $2000.

The limited provisions referred to in Section 82 which can be altered or excluded are those dealing with the following:

• the tenant’s responsibility for cleanliness and damage (s.38)
• the tenant’s conduct on premises (s.39)
• vacant possession (s.40)
• legal impediments to occupation (s.41)
• the owner’s responsibility for cleanliness and repairs (s.42)
• compensation where tenant sees to repairs (s.43)
• locks (s.45)
• the owner’s right of entry (s.46)
• the right of tenant to affix and remove fixtures (s.47)
• the responsibility of the owner for outgoings in respect of premises (s.48)
• the right of tenant to assign or sublet (s.49)
• vicarious responsibility of tenant for breach by other person lawfully on premises (s.50)
• cost of written agreement to be borne by owner (s.55)
• discrimination against tenants with children (s.56).

DISCRIMINATION

Owners/agents are not allowed to discriminate on certain grounds when providing accommodation. It is unlawful for owners/agents to discriminate on the grounds of sex, sexual orientation, gender history, family responsibilities and marital status, age, marital status, pregnancy, race, religious and political conviction, impairment and disability (Equal Opportunity Act 1984 (WA)).

Section 56 of the Act states that owners/agents cannot discriminate against a person for the reason that they have children (penalty of $1,000). However, this section can be altered or excluded in the agreement.

Despite this, both direct and indirect discrimination can be encountered at every stage of a residential tenancy: from application to eviction. Complaints of discrimination may be made to the Equal Opportunity Commission (see DISCRIMINATION ).