Domestic violence in a tenancy

From 28 February 2019, new tenancy domestic violence laws improve and strengthen protections for victims of domestic violence. These laws allow a tenant to end their tenancy immediately, without penalty, if they or their dependent child are in circumstances of domestic violence.

The reforms are part of a package of tenancy amendments following the statutory review of the Residential Tenancies Act 2010 (the Act). These reforms follow extensive consultation with the public and key stakeholders across NSW.

Ending a tenancy in circumstances of domestic violence

To end the tenancy in circumstances of domestic violence, the tenant needs to give the landlord or agent a domestic violence termination notice and attach one of the following permitted forms of evidence:

  • certificate of conviction
  • family law injunction
  • provisional, interim or final Domestic Violence Order
  • declaration made by a medical practitioner in the prescribed form.

The tenant must also give each co-tenant a domestic violence termination notice.

A landlord or any remaining co-tenant(s) may apply to the NSW Civil and Administrative Tribunal (the Tribunal) if they wish to dispute the validity of a domestic violence termination notice. The Tribunal can only examine whether the domestic violence termination notice was properly given under the tenancy laws. A landlord cannot dispute the contents of a declaration in any Tribunal proceedings, if it is used as evidence.

Prescribed declaration form as evidence

A medical practitioner can declare that a tenant or their dependent child is a victim of domestic violence. This declaration can be used as one of the acceptable forms of evidence of domestic violence. Only a medical practitioner can make the declaration, which must be in the form prescribed by the Residential Tenancies Regulation 2010. The declaration forms are available on the Fair Trading website.

A medical practitioner includes a General Practitioner (GP), physicians including paediatricians, psychiatrists and other specialists (i.e. surgeons, radiologist, gynaecologist etc). For a full list of medical practitioners who can provide a declaration, visit the Medical Board of Australia’s website.

Victims cannot be penalised for ending their tenancy early

A tenant who ends their tenancy in circumstances of domestic violence is not liable to pay any compensation or additional money for the early termination. For example, a victim does not need to pay a break fee, loss of rent, advertising and a reletting fee or an occupation fee for abandoned goods.

Victim’s privacy and protection from discrimination

The following measures help protect the privacy of victims of domestic violence. They also ensure that a victim’s ability to secure a rental property in the future is not negatively impacted by a domestic violence termination:

  • a landlord and their agent must not list a tenant on a tenancy database if they ended the tenancy in circumstances of domestic violence
  • evidence that a tenant or their dependent child is in circumstances of domestic violence only needs to be given to the landlord or their agent and not to any remaining co-tenant(s)
  • a landlord, agent or other person must not use or disclose information from a domestic violence termination notice or the attached evidence for any other purpose. For example, the information cannot be provided in a reference check by a property manager. Disclosure can only be made if permitted or compelled by law. A person in possession of these documents must store and dispose of them securely
  • the contents of a declaration made by a medical practitioner is not reviewable by the Tribunal to ensure victims of domestic violence are not subject to cross-examination.

Rights of remaining co-tenants

After a tenant gives a domestic violence termination notice, a co-tenant who remains in the tenancy is entitled to a 2-week period to only pay a portion of the rent and is not required to cover the departing victim’s share. This only applies if the remaining co-tenant is not the perpetrator of domestic violence. A co-tenant who is the perpetrator of domestic violence will need to pay the full cost of the remaining rent.

The remaining co-tenant may apply to the Tribunal to end their tenancy.

In addition to the above rights, the rights and responsibilities under existing tenancy laws still apply to co-tenants. For example, a remaining co-tenant may dispute the validity of a domestic violence termination notice.

3-year statutory review

The new domestic violence laws and other related provisions will be reviewed within 3 years of commencement to ensure that they are working effectively.

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