6.2 Reasonable security
Presently, landlords are required to ensure that any premises they offer for rent are ‘reasonably secure’. The options paper outlined a number of possible reforms aimed at providing greater clarity and certainty in this area of the law.
Analysis of submissions
There was general support for the idea of giving more emphasis to security in the premises condition report. Many submissions felt this would help to raise the issue of security in the minds of both parties early on, thereby ensuring that any shortcomings were addressed hopefully before any loss occurs. However, a number of landlords took the view that tenants should raise any concerns about the level of security when inspecting the property not after they sign the lease or move in.
Some submissions called for the introduction of minimum standards as to what constitutes reasonable security. In particular, it was suggested that deadlocks on external doors and keyed window locks should become mandatory. This was seen as a way to make the law more black and white, reducing the level of subjective interpretations and disputes. Another idea was that landlords should be obliged to change the barrels of all door locks prior to the start of each tenancy. Others opposed setting minimum standards and saw a need to balance security against safety concerns in the event of a fire or other emergency.
There was general support for the Queensland approach of prescribing a non-exhaustive list of factors to assist with determining whether premises were reasonably secure. This was seen as a way of providing guidance to all parties, decreasing complexity and helping to resolve disputes.
Generally, landlords and agents were in favour of restricting the ability of tenants to seek compensation following a break-in. It was argued that landlords should not be the unpaid insurers for tenants. Limiting tenants to compensation only if they had previously raised concerns about the level of security which were ignored or not adequately addressed was seen as fair and reasonable compromise by most landlords and agents. Some tenant groups argued that this should not prevent tenants from seeking compensation for latent defects or those not immediately obvious to a reasonable tenant. The problem of proving oral complaints was also raised. One industry group was against the idea as they feared it would encourage tenants to automatically raise security concerns as a matter of course.
Almost all submissions were in favour of clarifying that tenants are entitled to receive copies of keys free of any charge. It was suggested that this should cover swipe cards, electronic door or garage devices and common area keys.
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There was a call to clarify that all co-tenants named on a lease should receive a set of keys. It was also submitted that landlords and agents should not unreasonably refuse to supply replacement keys for those lost or misplaced, so long as they could charge an appropriate fee for doing so.
Findings and proposed reforms
The review finds that there is a need for greater clarity and certainty in regard to the level of security of rented premises. Placing more emphasis on security matters in the premises condition report each tenant receives at the beginning of a tenancy is a step in the right direction and will help to raise the profile of this issue early on. A specific section of the report should detail the type of locks on external doors, whether the windows have key locks, any other security features such as alarms, bars or security screen doors and whether the locks were changed prior to the start of the tenancy. Importantly, the report should also give space for the tenant to express any concerns about the security features which may need the attention of the landlord or agent.
Adopting the Queensland model of prescribing a non-exhaustive list of factors for the Tribunal to consider when assessing whether a property is reasonably secure would assist to provide clarity and certainty. This list would become a guideline and lift the overall level of security without the need to impose minimum standards. Examples of factors include the physical characteristics of the premises and adjoining areas or the requirements of insurance companies for the tenant to obtain contents insurance.
Both landlords and tenants should be held accountable for their actions in relation to security. Tenants should not be able to recover from landlords compensation when they have had a reasonable opportunity to raise concerns and have failed to do so. However, if concerns are raised which are ignored or inadequately addressed then it is only fair and reasonable that the landlord be held liable in the event that their inaction directly causes the tenant to suffer a loss.
Tenants should have a clear entitlement to receive copies of all keys to the premises, or any facilities associated with the premises for their use and enjoyment, free of any charge. This should extend to all tenants named on the lease and apply to electronic cards, garage door openers and other security devices. However, it is only fair that in the event that a device is lost by a tenant they be required to pay a reasonable charge for its replacement.
It is therefore, proposed that:
61) a specific section be included in the premises condition report highlighting issues relating to the security of the premises;
62) the Queensland model of setting out a list of key factors to consider when assessing if premises are ‘reasonably secure’ be adopted;
63) tenants be encouraged to raise security concerns and the Tribunal, before awarding any compensation, be required to consider the actions all of the respective parties took, or ought to have reasonably taken, to address any security concerns; and
64) the law clarify that all tenants named on a lease are entitled to copies of keys or other security devices free of charge, but recognise that tenants can be charged a reasonable fee for the replacement of lost items.
