3.8 When the Owner is in Breach of the Agreement

All tenancy agreements, whether written or verbal, incorporate provisions contained in the Residential Tenancies Act.

Often the owner's obligations are not written into the agreement or mentioned when the tenancy is entered into so tenants do not know what they are. The obligations of both owners and tenants are contained in the Residential Tenancies Act, as well special conditions agreed between the two parties. In some circumstances the owner can avoid his/her obligations by writing into your tenancy agreement that they have modified, excluded or restricted a provision of the Residential Tenancies Act. Always check the written agreement in case the owner has varied or contracted out of the provisions in the Act. See the Section on The Tenancy Agreement for more information on contracting out.

The tenancy agreement is not automatically terminated when a term or condition of the agreement is broken. Both parties are still bound by the contract and the tenant must continue to pay rent and meet all their obligations until the contract is terminated or the problem is fixed. If the owner does something they are not supposed to do, or does not do something that the tenancy agreement or the Residential Tenancies Act says they should do, they are in breach of the agreement. The tenant should not withhold rent in an effort to motivate the owner to fix a problem as this is a breach of the agreement by the tenant. There are a number of other options for getting the owner to perform the way the law or the contract says they should, including -

• making a written request,
• sending a notice of breach of agreement to the owner,
• getting a work order served on the owner from SECWA or the Local Council,
• paying for repairs yourself and claiming the cost back from the owner (s.43), (the tenancy agreement may not allow you to do this, ALWAYS check first),
• applying for a Performance Order from the Local Court.

A fixed term tenancy agreement may be terminated by the Local Court if the owner seriously breaches the agreement. See the section on Ending the Tenancy when the Owner Breaches the Agreement for more information. If the owner fails to do maintenance and repairs the tenant MAY be able to get the repairs done and claim the cost back from the owner. However, certain criteria apply. See the information in the section Maintenance and Repairs before taking any action.

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