Tenants & Property Owners – Who Pays For Repairs In Leased Premises? Why You Can’t Offset Rent (Unless You Want To Be Homeless)?

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When something needs to be repaired in leased premises, there can often be confusion as to who’s responsible and what happens if it simply doesn’t get done. The most common issue we come across is when tenants decide to stop paying rent as retaliation or compensation for the landlord not complying with certain obligations. The problem with this approach is that it often lands the tenant in trouble because there’s rarely a right to withhold the payment of rent.

You should always check your lease – whether residential, commercial or industrial – and, if you have any questions, consult your lawyer. The tenant is usually responsible for keep the premises clean and repair any damage caused by the tenant’s deliberate or negligent action. There can also be requirements for the tenants to maintain air conditioning facilities but this tends to be limited to commercial or industrial premises.

Any other repairs are usually the responsibility of the landlord. If the premises is part of a strata property, it will need to be determined whether the repairs relate to the specific lot which is the responsibility of the landlord (for example, a burst pipe under the sink) or to common property which is the responsibility of the body corporate (for example, a bust pipe in a ceiling cavity). Either way, it is the landlord’s obligation to arrange the repair works.

If the landlord fails to attend to the repairs in a timely fashion, tenants should always keep paying their rent. There will likely be a clause in the lease that allows the landlord to take action to bring the lease to an end and re-take occupation of the premises if the tenant ceases paying rent, irrespective of the reason.

If urgent repairs are required (for example, a gas leak), tenants should notify the landlord, or the applicable agent, immediately. If the landlord cannot be contacted or is unwilling to do the repairs having been given reasonable chance to do so, the tenant can arrange for the repairs to be carried out by a licensed or qualified tradesperson. The tenant can then claim the costs from the landlord but, again, this should be by way of application to the CTTT rather than refusing to pay rent to offset the money owed.

In the case of non-urgent repairs, tenants are usually prohibited from arranging the repair works without the consent of the landlord. Again, the appropriate way for tenants to proceed in the event that the landlord fails to attend to the repairs in reasonable time is to make an application to the CTTT. Tenants may also be able to claim compensation for any losses they suffered as a consequence of the landlord’s failure to promptly carry out the required works.

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.

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