Special Lease Conditions - Do these contradict the Residential Tenancies Act (WA)

So I have just been reading through the revised WA Residential Tenancies Act (scintillating bedtime reading I assure you!) to, amongst other things, make sure that the Special Conditions I have attached to my lease don't contradict the Act. Having reviewed my conditions I thought I'd throw it open to SS'ers to see if they think any are objectionable (and perhaps poach a few if they like!).

Special Conditions read as follows:

  1. The tenant/s acknowledges the condition of the premises at the time of signing the original lease (1 June 2013) and hereby accepts tenancy of the premises as found as recorded in the Property Condition Report dated 25 May 2013. The tenant/s hereby acknowledges and accepts that the Property Condition Report signed at the commencement of the original Lease will be used at the Final Bond Inspection.
  2. Should the tenant require to vacate prior to the expiry of the fixed term tenancy, tenants are aware that break lease conditions apply and they following charges can be applied:
    - a) Pro rata reimbursement of leasing fee, assuming the property is to be leased through a property manager / agent
    - b) Rent and ongoing maintenance of the property payable until the new tenant is secured or until expiry of the tenancy
    - c) Advertising and any other costs associated with securing a new tenant
    - f) Vacating inspection fee of $100
  3. Lawns and or gardens are to be maintained to a good standard at all times, and are to receive adequate water and fertiliser (if needed).
  4. The tenant/s acknowledges and accepts responsibility to ensure the automatic reticulation is set correctly and accordingly for the seasons of the year i.e that the grounds are sufficiently watered during the warmer months and reduced when necessary. The tenant/s is also responsible to ensure the system and sprinklers are maintained, in good working order and to report any fault to the agent within 48 hours. Upon vacating it is the tenant?s responsibility to provide the Owner with written notification from a reticulation professional stating that all stations are in good working order, with all heads intact. The reticulation must be functioning the same as when the property was leased to the tenant.
  5. No pets are to be kept or maintained on the property at any time unless permission is granted from the Owner / agent and a pet bond is paid (as defined in the Act.
  6. The tenant/s acknowledge that the carpets / tiles to the premises have been cleaned at the commencement of the tenancy and agree that the carpets / tiles are professionally cleaned at the tenant/s expense at the expiration of the tenancy term (receipt to be provided) and/or such other occasions during the term of the tenancy should the Owner / agent consider the condition of the carpets /tiles to warrant such cleaning. Should the Owner / agent consider the carpet / tile cleaning at the end of the term to be unsatisfactory, the tenant/s agrees to have the carpet / tiles re-cleaned at the tenant/s expense.
  7. The tenant/s is not to drill any holes or picture fittings into any internal or external walls in the property without the written consent from the Owner / agent prior.
  8. Tenants are aware that maintenance requests except those that are life threatening or an emergency must be in writing (email or mail).
  9. The tenant/s will be responsible for any call out fees charged by a contractor, where you have arranged to meet there to provide access and failed to attend.
  10. It is the tenant/s responsibility to clean all evaporated or reverse cycle air conditioning unit filters every 6 months, and upon vacating should it fall prior to 6 months.
  11. The tenant/s agree to give at least twenty-one (21) days? notice in writing to vacate, either on or after the expiry date of the lease. The tenant/s also acknowledge/s and agree to the Owner/agent advertising the availability of the premises during the notice period and allows inspections for prospective tenant/s at reasonable hours of the day to be carried out, with prior notice given to the current tenant/s.
  12. Rent shall be calculated up to and including the date that all keys are returned to the Owner / agent. The cost of changing the locks to the property should it be re-let and the tenant/s has failed to return the keys, shall be borne by the tenant/s.
  13. The tenants acknowledge and agree that any invoices issued by the Owner / agent are to be paid within seven (7) days.
  14. No pot plants are to be kept directly on indoor floors at any time. Any floor damage will be replaced / repaired at the tenant/s expense.
  15. The tenant/s is aware that should any electrical/gas appliance (i.e pump, air conditioner, hot water system, oven, gas cooktop) break down during the term of tenancy and the damage is found to be caused by the tenants neglect, the repair must be conducted at the tenant/s expense. The same condition applies to the blocked outlet pipes, drains, etc.
  16. Should the tenant/s be locked out of the property outside normal office hours, the Owner has no obligation to obtain key or the tenant/s and the tenant/s may need to arrange for a locksmith to gain entry at their own cost.
  17. The tenant/s acknowledges and agrees that no unlicensed motor vehicle or vehicle in the process of wrecking is to be kept at the property.
  18. Any maintenance items are to be reported to the Owner / agent directly and NOT to be written only on the Property Condition Report. Maintenance items are to be reported in writing/email.
  19. The tenant is aware should they cause a breach of this agreement; their details may be recorded onto a defaulting tenant database.

Any comments welcome.
 
FYI these were largely taken from a combination of Special Conditions I have collated over the years from the lease agreements of major Real Estate/Management firms in Perth. All prior to the revisions to the Act, mind you.
 
A lot of them are simply a reflection of the default legal position anyway. And the ones that venture out from that are headed into "unlawful contracting out" territory.

I don't really have any special conditions on my leases these days - don't really see the need. (Apart from things like "washing machine included" etc)
 
I don't use a lot of special Conditions because as we know if a Special Condition contradicts the Act it is not enforceable. So I only use Special Conditions in 'special' Circumstances now days or if there was something in particular I wanted to bring to their attention. But I can't remember the last time I had more than 5 special conditions in one lease. I typically would use between 0 and 3 special Conditions per lease.

However what I also do like to do is give the tenants a document that outlines what happens (by day) if there rent is late (so there is no surprises when I harass them for their rent). This doc also includes what happens if they break their lease, reporting repairs and maintenance and what to do in an emergency. (Opps sorry to get off track).

I have not personally leased a house myself in WA so feel I cannot properly comment on individual conditions. Thanks for your list.
 
If anyone does have any specific conditions they want to sound out, I'm happy to look over it and give some pointers.

(WA only)
 
A lot of them are simply a reflection of the default legal position anyway. And the ones that venture out from that are headed into "unlawful contracting out" territory.

Thanks for the feedback thatbum. I don't suppose you could be more specific as to which ones are the default legal position and which ones are getting close to 'contracting out'? Whilst I've read through the Act a couple of times I'm certainly no expert. I did go through it looking out for areas that may contradict these conditions and nothing jumped out at me.

You are quite right though that some veer towards simply reiterating the Act. I guess I see these as worth including to bring them to the attention of my tenants (knowing full well they are never going to read the Act of their own volition). More so to 'avoid' a situation arising, rather than simply being able to lawfully go after the tenant once the situation does arise. MichaelGilbert makes a good point though that these might be better placed in a separate 'info' document.
 
I don't use a lot of special Conditions because as we know if a Special Condition contradicts the Act it is not enforceable.

Not enforceable is one thing (90% of the time I think just having the condition there for the tenant to see is enough to avoid the situation arising) - It's being fined by the courts for contracting out of the Act that I'm most concerned about!
 
However what I also do like to do is give the tenants a document that outlines what happens when...

As an aside, I can see one advantage of such an 'info doc' over 'special conditions' being that whilst the former is simply making them aware of the laws, the latter can seem like you are inflicting upon them a bunch of rules that wouldn't apply if they rented someone else's property (even if many of them are close to what applies to all tenants anyway).
 
...You are quite right though that some veer towards simply reiterating the Act. I guess I see these as worth including to bring them to the attention of my tenants (knowing full well they are never going to read the Act of their own volition). More so to 'avoid' a situation arising, rather than simply being able to lawfully go after the tenant once the situation does arise. MichaelGilbert makes a good point though that these might be better placed in a separate 'info' document.

Great point. I think this sums it up. Let them know the things that you will be looking for, or flagging things that you want them to be very aware of, because I would guess most tenants wouldn't read the lease.
 
theperthurbanist

I always include additional clauses under Special Conditions in my Lease for the same reasons you have mentioned and also to clarify any gray areas.

As a Landlord in WA you are also obliged to give the tenant a Form 1AC "Information for Tenant", so you don't want to complicate things by adding any separate documents.

With respect to your clauses, you may have a problem trying to enforce the tenant's responsibility to provide the Owner with written notification from a reticulation professional stating that all stations are in good working order.

Also, why would you say tenant only needs to give you 21 days notice to vacate, when for a fixed term lease the obligation is 30 days?

I have a lot more Special Conditions on my Leases including the following:

The Tenant shall keep the premises clean and maintain all sanitary and water apparatus including tap washers, reticulation fittings, electrical and gas installations, electrical fan grills, air conditioner filters and all electrical fuses, in good working order (fair wear and tear excepted) and replace all light globes and fluorescent tubes and shall report all damages and any state of disrepair arising within 3 days of same occurring. Failure to do so will render the Tenant liable for all costs incurred as a result of such failure.

Two hard wired smoke detectors are fitted at the premises. The Tenant remains responsible for testing these on a periodic basis (eg monthly) and also for replacing each back-up battery as required but not longer than 12 months after commencement of the lease.

The Tenant shall pay any "excess" on any insurance claim that arises from or is attributable to an act or omission by the Tenant or his visitors.

The Tenant agrees to reimburse the Lessor for all water consumed applicable to the premises together with any disbursement charges for any accounts or readings.

The Tenant hereby agrees that there is to be no smoking inside the property.

The Tenant acknowledges and accepts that if they require possession to the property after the final bond inspection has been carried out, for the purpose of general cleaning or attending to repair/ maintenance works, then rent will be charged at the daily rate at the time of vacating, per day for every day that the Tenant remains in possession of the keys to the property.

The Tenant notes that no cars, boats or trailers are to be parked on lawns or front verge.

The Tenant acknowledges and accepts responsibility to ensure the automatic reticulation duration is set correctly to suit the seasons of the year (ie. more in summer and reduced in winter) and also set the timing to suit the prescribed "Allowable Watering Days and Times". The Tenant is also responsible to ensure the system and sprinklers are maintained, in good order and to report fault to the Lessor or Lessor?s Agent within 48 hours.

If the Tenant is required to arrange Urgent repairs under Clause 23.3, it is recommended that the following pre-approved Subcontractors are used:
Electrical - XXXXXXXXXX
Plumbing - YYYYYYYYYY

The Tenant acknowledges that they have received a copy of Form 1AC "Information for Tenant".

For the purposes of clarification, a Rental Payment Schedule has been prepared and is appended to this Agreement.


Cheers
Joe D
 
Hello there,


I've read your list. Probably what you are asking is that, in the event that the Tenant doesn't do what you've listed there, and push comes to shove and you head off to Tribunal....and you get a grumpy Member who has sympathy for the Tenants.....what type of conditions will the member be forced to impose on the Tenants, as opposed to rule them out.


I have the following comments regarding your list....

1. By getting the Tenant to sign the IPCR, most of that clause is taken into account. Don't neglect the FCPR at the end of the tenancy, or you will be up for a $ 10,000 fine.

2. In reality, # 2 is unenforceable, especially if they do what all Tenants do and bugger off without leaving you with a valid forwarding address. If you cannot find them, you cannot serve them notice. It's OK to have that clause, but it's only there to protect you when they do a runner.....and if they do, it won't protect you.

3. The words are too wishy washy. The Member is simply going to go off the photos in the IPCR and then take into account the time of year and the length of tenancy and discount it for "wear and tear". The famous ol' "wear and tear" get out clause will negate most of your special conditions.

4. Nope - this is one of those unenforceable clauses. You'll never get a Member to support that.....especially if the tenancy is a long one.

5. Tenants have introduced pets into tenancies without Landlord's knowledge or authority....and there ain't nothing you can do about it.

6. Same as 4. This "provide a receipt" from a professional carpet cleaner has been tested at Tribunal and failed miserably. You cannot enforce this and the member will not accept the burden on the Tenant.

7. Same as 5. Good luck enforcing that....not gonna happen.

8. You cannot enforce that either. If the Tenant calls up your PM and complains about a maintenance issue, the PM will record it. You will not be able to ignore the request and say "I don't need to respond because the Tenant didn't put it in writing".

9. You cannot possibly enforce that burden on the Tenant. If they don't pay, and they won't, the tradie will come looking for you to pay, and you'll have no choice but to pay them.

10. They will not clean the filters, and when they block up, all they are going to do is call up the PM and say they pressed a button and it doesn't work. The PM will ask if they have cleaned the filters as per your Lease, and they will simply repeat "I don't know, all I know is I'm pressing the go button and nothing is happening. Get the landlord to send a repairman around here now."

11. Standard part of the Act. No need to include. Vacating Tenants won't give you 21 days notice though, and if they skip out with no forwarding address like they always do, there's nothing you can do anyway.

12. Once again, if you can't find them, you will not be able to impose this cost on them. Tenants are waaay smarter than that. Wishful thinking.

13. No need to include. In the Act.

14. Nice to have, but you won't be able to enforce it. Fair wear and tear will kill you every time with things like this.

15. Pinning the evidence down to the Tenant is the impossible task here. You will have a 99% fail rate here. Even if they are the cause, they will cover their tracks very well before they even make the initial call for help. Don't rely on recovering one cent from this clause.

16. The Tenant won't do that....it will cost them money. They'll simply bust a window to gain entrance, then call you up a few weeks later and say a big bird did it or some kid across the road threw a cricket ball and get you to claim on your insurance at no cost to them. You'll pay, not them.

17. You'll have no luck enforcing this clause. When they up and leave, there will usually be 2 or 3 or more if they go down this track. My record is 6 dead cars, all upturned....4 in the front yard where the lawn used to be and 2 upturned in the backyard where they had a demolition derby where our nice fruit trees used to be. When they go, they simply go.

18. Same as # 8. No luck enforcing that either.

19. The laws have changed drastically in this area. That threat has been removed entirely by the Tenants Union and Tenancy advocates. It's now a toothless tiger, and with the now unavoidable delays imposed on the system, will not hinder them getting a new place. Not even worth having on there.


All up, I can see why PMs don't have most of these...they are either useless, can't be followed or totally unenforceable against the Tenant.

If you ever come up against a hardcore professional residential ratbag Tenant, I reckon they would view those 19 special conditions as more of a challenge. When push came to shove, you would be spat out the back of the legal process like a rag doll with a wrecked house and a big clean up bill and a Tenant who was nowhere to be found.

Those conditions indicate you are trying to do what we do in the commercial field, and you expect your property handed back in a similar condition to that which you handed it over.

All I can conclude is, your expectations and standards do not suit the asset class you have purchased into. The Law simply doesn't allow it.
 
in the event that the Tenant doesn't do what you've listed there, and push comes to shove and you head off to Tribunal....and you get a grumpy Member who has sympathy for the Tenants.....

Totally agree with the above point that if the issue ends up at the Tribunal the LL is at the mercy of Member and how their day is going.

Also, if you are dealing with professional tenants then you are stuffed.

However, the main point is not to end up at the Tribunal and by vetting applicants and having clear communications from the start and throughout the lease then there is a >95% chance you'll have tenants who do the right thing.

Good insurance covers part of the remaining risk.
 
Sure I've given my quick thoughts and analysis below.

About being fined - its not the courts that do it - Consumer Protection is the prosecuting authority. And the reality is that they don't really fine landlords unless they've repeatedly done some really blatantly unlawful stuff, after being warned a few times too.

A few unlawful (but well meaning) terms in a lease are not really going to warrant a verbal warning from Consumer Protection these days.

  1. The tenant/s acknowledges the condition of the premises at the time of signing the original lease (1 June 2013) and hereby accepts tenancy of the premises as found as recorded in the Property Condition Report dated 25 May 2013. The tenant/s hereby acknowledges and accepts that the Property Condition Report signed at the commencement of the original Lease will be used at the Final Bond Inspection.

    Default laws already mostly account for this. Also possibly misleading because the tenant has a right of response under the laws.

  2. Should the tenant require to vacate prior to the expiry of the fixed term tenancy, tenants are aware that break lease conditions apply and they following charges can be applied:
    - a) Pro rata reimbursement of leasing fee, assuming the property is to be leased through a property manager / agent
    - b) Rent and ongoing maintenance of the property payable until the new tenant is secured or until expiry of the tenancy
    - c) Advertising and any other costs associated with securing a new tenant
    - f) Vacating inspection fee of $100

    Already mostly the default laws, with the specific fee under f) probably unlawful and void because its a liquidated damage, which is prohibited. (set amount of damages)

  3. Lawns and or gardens are to be maintained to a good standard at all times, and are to receive adequate water and fertiliser (if needed).

    Possibly contracting out of owner's responsibility for maintenance unfortunately. Law is fairly unclear here about gardens. Watering is probably ok, but fertilising might be too much?


  4. The tenant/s acknowledges and accepts responsibility to ensure the automatic reticulation is set correctly and accordingly for the seasons of the year i.e that the grounds are sufficiently watered during the warmer months and reduced when necessary. The tenant/s is also responsible to ensure the system and sprinklers are maintained, in good working order and to report any fault to the agent within 48 hours. Upon vacating it is the tenant?s responsibility to provide the Owner with written notification from a reticulation professional stating that all stations are in good working order, with all heads intact. The reticulation must be functioning the same as when the property was leased to the tenant.

    Mostly seems to be an attempt to contract out of obligations for owner to maintain property.


  5. No pets are to be kept or maintained on the property at any time unless permission is granted from the Owner / agent and a pet bond is paid (as defined in the Act.

    Already on the prescribed lease.

  6. The tenant/s acknowledge that the carpets / tiles to the premises have been cleaned at the commencement of the tenancy and agree that the carpets / tiles are professionally cleaned at the tenant/s expense at the expiration of the tenancy term (receipt to be provided) and/or such other occasions during the term of the tenancy should the Owner / agent consider the condition of the carpets /tiles to warrant such cleaning. Should the Owner / agent consider the carpet / tile cleaning at the end of the term to be unsatisfactory, the tenant/s agrees to have the carpet / tiles re-cleaned at the tenant/s expense.

    Contracting out of default cleanliness provisions of the Act and/or the default position anyway.

  7. The tenant/s is not to drill any holes or picture fittings into any internal or external walls in the property without the written consent from the Owner / agent prior.

    Already in the default lease as well as mostly being unenforceable because an owner's remedy is simply damages (cost of putty and paint?)

  8. Tenants are aware that maintenance requests except those that are life threatening or an emergency must be in writing (email or mail).

    Default laws already cover this.

  9. The tenant/s will be responsible for any call out fees charged by a contractor, where you have arranged to meet there to provide access and failed to attend.

    Probably unenforceable, or a reflection of the default legal position depending on the circumstances. Not really necessary as a term.

  10. It is the tenant/s responsibility to clean all evaporated or reverse cycle air conditioning unit filters every 6 months, and upon vacating should it fall prior to 6 months.

    Contracting out of owner's obligation to maintain most likely. What happens if they damage the unit?

  11. The tenant/s agree to give at least twenty-one (21) days? notice in writing to vacate, either on or after the expiry date of the lease. The tenant/s also acknowledge/s and agree to the Owner/agent advertising the availability of the premises during the notice period and allows inspections for prospective tenant/s at reasonable hours of the day to be carried out, with prior notice given to the current tenant/s.

    Default laws already cover this (and give 30 days notice for end of fixed term anyway)

  12. Rent shall be calculated up to and including the date that all keys are returned to the Owner / agent. The cost of changing the locks to the property should it be re-let and the tenant/s has failed to return the keys, shall be borne by the tenant/s.

    Contracting out, as well as the default position. Pointless term.

  13. The tenants acknowledge and agree that any invoices issued by the Owner / agent are to be paid within seven (7) days.

    Completely redundant term.

  14. No pot plants are to be kept directly on indoor floors at any time. Any floor damage will be replaced / repaired at the tenant/s expense.

    Unenforceable on the first part, then simply the default position for the second.


  15. The tenant/s is aware that should any electrical/gas appliance (i.e pump, air conditioner, hot water system, oven, gas cooktop) break down during the term of tenancy and the damage is found to be caused by the tenants neglect, the repair must be conducted at the tenant/s expense. The same condition applies to the blocked outlet pipes, drains, etc.

    Default legal position.

  16. Should the tenant/s be locked out of the property outside normal office hours, the Owner has no obligation to obtain key or the tenant/s and the tenant/s may need to arrange for a locksmith to gain entry at their own cost.

    Completely pointless term.

  17. The tenant/s acknowledges and agrees that no unlicensed motor vehicle or vehicle in the process of wrecking is to be kept at the property.

    Seems like a pointless term to me - if it got really bad it would already be a breach of the tenant's obligations to keep the premises reasonably tidy

  18. Any maintenance items are to be reported to the Owner / agent directly and NOT to be written only on the Property Condition Report. Maintenance items are to be reported in writing/email.

    Pointless term. Default position.

  19. The tenant is aware should they cause a breach of this agreement; their details may be recorded onto a defaulting tenant database.

    Unlawful term since the new database provisions of the Act are in place which cover how and when a tenant can be listed.

 
Thanks for the feedback guys. After that I've whittled it away to pretty much nothing. Still keen to keep an (amended) condition regarding garden maintenance, so a level of maintenance is agreed (or at least acknowledged) - regardless of whether it will hold up in court.
 
Thanks for the feedback guys. After that I've whittled it away to pretty much nothing. Still keen to keep an (amended) condition regarding garden maintenance, so a level of maintenance is agreed (or at least acknowledged) - regardless of whether it will hold up in court.

We keep our leases fairly free of extra clauses for the reasons mentioned above. Most of them are built into the contract anyway.

We do say that should an air-conditioning callout be required that turns out to be that the filters have not been cleaned, we would pass that invoice to the tenants. In the houses we manage, we've never had any air-con callouts.

We have one house we have had issues with a downstairs toilet blocking up. We paid to have it cleared once, and second time we had clay pipes replaced by plastic but plumber said full flush always needed to avoid blocking up again. We write that into the lease, and a few weeks ago it blocked up. Tenants paid that bill without any question.

Would it have stood up had they taken it to tribunal... who knows?

Sometimes just having a financial interest in following instructions is enough for tenants to try to do the right thing. That is why we put these clauses in more than actually thinking we will ever need to attempt to enforce them.
 
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