Rectification orders for rental properties

NSW Fair Trading can investigate whether:

• the landlord has breached their obligation to provide and maintain the property in a reasonable state of repair.
• the tenant has caused (or permitted) damage and failed to satisfactorily repair the damage without a reasonable excuse.

Criteria for investigation

A tenant may ask NSW Fair Trading to investigate their issue further if:

• they have written to the landlord asking the landlord to carry out repairs needed to keep the property in a reasonable state of repair
• their written request includes what the repairs are, and
• their landlord has failed to carry out the repairs satisfactorily without a reasonable excuse.

A landlord  may ask NSW Fair Trading to investigate their issue further if:

• the landlord has written to the tenant asking the tenant to repair the damage
• the landlord’s written notice details what damage needs repairing, and
• the tenant has not repaired the damage satisfactorily, without a reasonable excuse.

The tenant must agree to NSW Fair Trading investigating the damage to the property.

If the tenant refuses, the landlord will need to apply to the NSW Civil and Administrative Tribunal (the Tribunal).

The rectification order process does not apply to a tenant if the damage occurred during a domestic violence offence and the tenant is not the domestic violence offender.

What is in a rectification order?

The landlord or tenant rectification order will:

• list the reasons for making the order, including relevant investigation results
• set a date for the work to be completed.

A copy of the rectification order will be provided to the other party.

The investigation process

1. The Fair Trading investigator will gather information. This may include:

• talking to the landlord, agent and tenant either at the property, or by phone.
• reviewing relevant documents.

2. If an agreement between the parties can be reached, the investigator will complete a ‘complaint report’ which records what each party has agreed to.

3. If the investigator believes that the landlord or tenant has not met their obligations, a rectification order will be issued. This order directs the landlord or tenant to rectify or complete the work by a due date.

What if the landlord or tenant does not agree?

A landlord or tenant who does not agree with a rectification order can either:

apply to Fair Trading to have the decision reviewed.

• This application must be made within seven days of the order being made.
• The rectification order will be suspended until a decision is made.
• If the rectification order is amended, a new rectification order will be issued.

or

apply to the Tribunal for a new decision.

• This application must be made within 14 days of Fair Trading making the rectification order or amended order.
• The order will be suspended until a decision is made or if the application is withdrawn.
• Once an order is made by the Tribunal, the original rectification order will have no effect.

What if the rectification order is not complied with?

If a landlord does not comply with a landlord rectification order, then a penalty may apply.

If a tenant does not comply with a tenant rectification order, the landlord can apply to the Tribunal for a termination order to end the tenancy.