I feel like someone's being scammed.

I believe you are. On what basis do you say it cannot be added as a clause?

 

In NSW at least tenants have a right to peaceful enjoyment of the rental property.

 

NSW is not more than 4 inspections, then you have entry rights under unusual circumstances.

No idea on WA, but your neighbors are allowed to tell you what they see or if they have concerns.

 

It's called contracting outside of the act.

 

In WA, max 4 inspections per year. It is unlawful to put conditions on a rental lease that breach the act. A condition to inspect weekly would breach the act and therefore be unlawful.

 

Yep, that's the impression I got a well.
The act supersedes any conditions you put in the contract. You can't overrule any conditions imposed by the legislation.

Although it would be nice if there was a dodgey clause. Like if you breach a tenant for something like erecting a structure or not maintaining the property you should be able to spring another inspection within 6 weeks or something to check they've complied. Is there anything like that?

 

I believe the Act specifically allows additional terms to be added (which will likely be upheld if not considered unreasonable). So actually it's not outside of the Act.

I've used clauses like this before. Also added clauses specifically specifying penalties for specific breaches etc). Never has an issue so far although never have any litigation specially on this either.

(I also have a clause added that should any term be considered invalid it shall not affect the remainer of the lease terms).

Thoughts?

 

I would advise you not to try this in Western Australia. This is the relevant clause from the Residential Tenancies Act

(3) It is a term of every residential tenancy agreement that the lessor may enter the premises under subsection (2)(b) for the purpose of inspecting the premises not more than 4 times in any 12 month period. ​

 

Let's assume this clause cannot be overridden by any special clauses. What would be the downside of including it anyhow? (The tenant, especially in this case, might quite well agree to it).

Or how about thinking out of the box - make the clause read that entry is not for "inspecting premises" but "shall meet on the premises to collect weekly rental", for example.

 

Its an offence to try and contract out of the standard provisions.

So a criminal conviction, fines and at the very least, a dim view of you from a tribunal member or Magistrate if anything ever needed to go to there.

 

You would need to make sure you don't breach the Quiet enjoyment provisions of the act and also Lessor’s right of entry.

RESIDENTIAL TENANCIES ACT 1987 - SECT 46

You can actually do anything you want to do, including anything illegal. You would have to weigh up the risk for yourself of the potential consequences. In this case, you are trying to indirectly defeat a specific provision of an Act. If a person was reported, investigated and found to have tried to indirectly defeat a provision of the Act, the potential penalty is a fine of $10,000. This is set out in the Act:

(2) A person must not enter into any agreement or arrangement with intent either directly or indirectly to defeat, evade or prevent the operation of this Act.
Penalty: a fine of $10 000.​

RESIDENTIAL TENANCIES ACT 1987 - SECT 82

On that basis I would advise someone not try directly or indirectly try to defeat, evade or prevent the operation of the Act.

 

Can't recall in WA, its been a while. But in SA there are avenues to reinspect either 2 weeks or 4 weeks after an inspection (depending on formal or informal) after an inspection to ensure things have been fixed up. I assume there's similar there.

 

Yeah, I do not think it will matter much at all, until you end up in front of the beak, where you will have undermined your own position/standing due to not following the rules even if it is an un related matter.

4 inspections is quite a bit, most PMs will not ever do that many, but you can ask them too.

 

I was just looking up reinspection after a breach and found this, which is interesting:

No more than four routine inspections are allowed in any 12-month period (and an inspection is not allowed when collecting rent).​

https://www.commerce.wa.gov.au/sites/default/files/atoms/files/tenantsguide.pdf

 

You add the wording "to the extent permitted by law ... [insert special terms]". This would mean that if the terms are not permitted they are not incorporated (hence no breach and non concern about any "conviction".

 

This could breach s50 RTA if in NSW.

 

I don't think it would make much difference. If you knew they were unlawful, or ought to have known, then what's the reason that they were even written in?

Only reason left would be to mislead the tenant that they are lawful - so back into unlawful/conviction/fine territory for attempting to contract out of the Act.

 

That's certainly one way it could go. The other is that you explain the circumstances of why you had this, explain that the tenant suffered no real "damage" (as your inspections were brief and in any case could be done ad-hoc by consent in any case), no prior convictions as a LL on such a clause, etc. I would think a slap on the wrists is most likely especially with concerns over houses being used for drug manufacturing or other illegal purposes.

 

You can easily intentionally breach the Act if you choose to. You can also explain to the Judge why you did it, if you are reported. You would want to see if a slap on the wrist is common or if Judges are more commonly imposing the maximum penalty set out under the Act. By why put yourself in that situation when the Act is very clear that what you are saying is an offense under the Act?

(2) A person must not enter into any agreement or arrangement with intent either directly or indirectly to defeat, evade or prevent the operation of this Act.
Penalty: a fine of $10 000.​

RESIDENTIAL TENANCIES ACT 1987 - SECT 82

My advice is not to breach the Act.

 

Why put yourself in a situation of potential breach? Because you have concerns about the tenant and what they are up not. Needs to be weighed up risks of breach vs benefits of keeping a closer eye on tenant and protecting your property.