Domestic violence regulation in practice
Referencing the information outlined in the Act, Wood and Lorenz answered questions from property managers, landlords and tenants regarding their rights and responsibilities when dealing with circumstances of domestic violence.
Now, three weeks on since the commencement of the Act, we revisit those questions as a reminder of what you are required to do if a tenant terminates a tenancy on the grounds of domestic violence.
What is domestic violence?
Domestic violence is a crime inclusive of physical, verbal, psychological, emotional, social, financial or sexual violence, and any sort of harassment or stalking.
What constitutes a domestic relationship?
The Crimes (Domestic and Personal Violence) Act 2007 states a person has a domestic relationship with another person if they:
- Are or have been married to the other person
- Are or have been a de facto partner of the other person
- Have or have had an intimate personal relationship with the other person (whether sexual or not)
- Live or have lived in the same household as the other person
- Have or have had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person
- Are or have been a relative of the other person
- Are or have been part of the extended family or kin of the other person (in the case of Aboriginal persons or Torres Strait Islanders)
It is interesting to note that – according to this definition – you are considered to be in a domestic relationship with anyone you have had a domestic relationship with past or present. For example, a woman’s current and ex-partner are both considered to have domestic relationships with the woman. – Kristi Lorenz
What is the process for a victim to end a tenancy under circumstances of domestic violence?
To terminate a residential tenancy agreement, a victim must provide a termination notice along with supporting evidence. Supporting evidence includes one of the following:
- Domestic Violence Order issued by the Court
- Provisional Domestic Violence Order from a senior police officer
- Certificate of Conviction
- Declaration of a competent person
Who is a competent person?
Under the Act, a competent person is described as a medical practitioner within the meaning of the Health Practitioner Regulation National Law (NSW). This includes a GP, physician, psychiatrist or paediatrician. You can access more information on the domestic violence declaration on the NSW Fair Trading website and a full list of medical practitioners on the Medical Board of Australia website.
What are the penalties for making a false claim of domestic violence?
There are serious penalties for falsifying a Declaration of a competent person. Under the Act, a victim or medical practitioner can each be fined 100 penalty points (equating to $11,000) and face up to two years in prison.
If a co-tenant (who is not the perpetrator of the domestic violence) continues to reside at the property after the termination notice is served, they are entitled to a two-week period of paying only their share of the rent (the total rent divided by the number of tenants on the tenancy agreement).
A co-tenant is not responsible for property damage caused by the perpetrator in a domestic violence incident.
What can be disclosed about the victim?
The Act prevents both you and your landlord from listing a tenant on a residential tenancy database if the lease ended in circumstance of domestic violence.
You are also prohibited from disclosing any information in the domestic violence termination notice and supporting evidence. For example, details of the termination cannot be disclosed in a future reference check.
However, if the victim was in arrears or caused damage to the property prior to the termination, this can be listed on a residential tenancy database.
You may disclose all details to the landlord.
What happens to the bond if a tenancy is terminated under circumstances of domestic violence?
The refund of the bond is subject to the standard procedures and takes into account any damage caused to the property prior to the domestic violence incident and any rent arrears.
What if a victim has DVO against a perpetrator, but allows them to move in?
This DVO cannot be used to terminate the lease as the Act states the offence leading to termination must occur within the tenancy.
Because domestic violence is a crime, are you obliged to disclose this to subsequent tenants as with deceased estates?
No. You cannot reveal any information about the crime or the victim. You can only advise prospective tenants that a crime was committed at the property.
Is the victim or co-tenant who is not the perpetrator liable for damage to the property?
If damage was caused prior to the domestic violence incident, the tenant and co-tenant are still liable for reparation.
If the damage was caused as a result of a domestic violence incident, the victim and co-tenant are not liable.
It is critical the property manager has kept records of completed routine inspections throughout the tenancy to inform whether the damage was caused prior to or as a result of a domestic violence incident.
Property managers should also ensure their landlords have specialist landlords’ insurance for their rental property.
Source REINSW 26 March 2019