Every appliance in the property must work? What's the law here?

What's the law in each state for maintaining the functionality of an appliance in an IP when it comes to a decommissioned item or upgraded item? Specific example: Say you have an old hardwired electric heater in the lounge room that's been decommissioned before (or after) tenants move in. Can you tell tenants that they're not meant to use it because it doesn't work? Can you put that as a term in the lease, if it's considered an inactive item from the commencement date of a new lease? Can they take you to tribunal to get you to fix it to working order? As I understand it, everything needs to be in working order and a fussy tenant could demand a landlord to fix a decommissioned item. What's the go?

 

You need some context...

is there a shiny new split system that has been installed that would take the place of the decommissioned unit?

or....

have you advertised it with heating and the only source of that heating is the decommissioned unit?

 

Let's go with....shiny new split system to act as the equivalent source of heating, or some other functional alternative.

Obviously a decommissioned unit wouldn't be advertised as the only source of heating.

 

Generally speaking, you have to expressly disclose before the start of a tenancy if something that comes with the premises or rental doesn't work, or otherwise a tenant can generally expect it to be working and maintained during the tenancy.

 

I often see advice along the lines of "put a clause in the lease that the specific item is not part of the lease/will not be maintained by the landlord" for items like this. While I am no lawyer and will happily be proven wrong, I am of the opinion that such clauses would probably not hold up if challenged by the tenant at tribunal.

Let's take NSW as an example. The Act states:
63 Landlord’s general obligation
(1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.
(2) A landlord’s obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises.
(3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant’s breach of this Part.(4) This section is a term of every residential tenancy agreement.

It also states:
21 Inconsistent and prohibited terms void
(1) A term of a residential tenancy agreement is void to the extent to which it—
(a) is inconsistent with any term included in the agreement by this Act or the regulations, or
(b) is prohibited by this Act or the regulations.

Therefore, if you have an appliance in the house which is no longer in use, is not working, and you do not wish to be liable to repair, it would be easiest and best for the landlord to simply remove it before letting the property out.

 

SPOT ON !!!!!!

 

I'm also definitely not a lawyer, but I see it differently. Anything specifically excluded from the rental agreement would not be part of the contract and would therefore not have to comply to stated clause.

Would be interesting to have an actual lawyer's input into this.

 

I'm NOT a lawyer, but there are a few factors at play here:

• Residential Tenancies Act (state by state) - there is a statutory warranty for repairs in rental property. This is a little grey, because it suggests "reasonable state of repairs" implying that there are some grounds for disrepair based on the age/condition of the property. Also, take note that each state's wording / interpretation of this clause is a little different.
• Australian Consumer Law - if the advert suggests heating or implies heating (through a photo) then it would be assumed by the tenant that the property has heating. This indicates that the landlord would need to remedy the defective heater.
• In terms of adding special conditions to the lease, they may be considered void if they weren't provided to the tenant as part of the application form. Again, coming back to repairing the heater.

 

I'm not a lawyer but an ordinary citizen with a obvious question.... why not just remove the appliance if you dont intend to repair it?

 

I've always thought the same thing. If there was zero chance of ever repairing the appliance it's not going to magically disappear or fix itself. Something will have to be done at some point so why not just address the issue instead of trying to find work arounds such as putting clauses into a lease etc

 

Every state will differ.

In the state of disrepair, the unit should be removed & the penetration made good to ensure there are no issues arising from the unit ie it's no longer in the premises.

If this cannot be achieved, then any power cable/gas connection should be removed (by an authorised/licensed person, any controls removed and the unit covered with a non-removable cover eg permanently fixed plywood box.