Quiet enjoyment is a two-way street

19 Feb Quiet enjoyment is a two-way street

“Quiet Enjoyment” is a concept common to residential tenancy legislation across the country.  In this post I’ll explain exactly what that term means and what obligation it creates for both landlords and tenants.

The notion of quiet enjoyment exists because a tenant is entitled to unhindered vacant possession of a property.  This right, protected by legislation, is granted as a result of the financial arrangement between the tenant and landlord.  Quiet enjoyment means that a tenant is entitled to ‘reasonable peace, comfort and privacy’.  Legislation helps to ensure this through such things as restrictions on when the landlord (or their representative) can visit the property, the length of notice required to be given to the tenant and the reason for the visit.  Thus we have the requirement for formal entry notices, rules about the frequency of routine inspections and the protocols for advertising a tenanted property for sale or lease.

What are the obligations of the landlord?

In looking at the practical ramifications of quiet enjoyment, here are some things you as a landlord cannot do:

• enter the property without first having issued a valid entry notice (unless there is an emergency at the property). Property entry is considered to be                           moving beyond the front fence line for houses and beyond common entry areas for units.
• Loiter around the periphery of the property
• Make excessive telephone or email contact with the tenant. Even if you are pursuing something like an arrears breach–keep the contact in line with the                   prescribed breach process
• Place restrictions on visitors to the property e.g. you can’t stipulate the number or timing of guests. Note this changes if you suspect a ‘guest’ is in fact an                 unapproved tenant, or if there are body corporate rules in place for unit dwellings.
• Place restrictions on lawful activities undertaken by the tenant at the property
• Install mechanisms for the purpose of surveillance of tenants
• Change the locks during the lease without the agreement of the tenant

In some states the legislation actually makes the landlord responsible for the potential impact of the behaviour of other residents on the quite enjoyment of the tenant in question. For example, if you own a block of units and you have reports that one tenant is causing continued disturbances, you must take action as that behaviour could be seen as interfering with the quiet enjoyment of the other tenants. This only applies if you are landlord for both the tenants and if your property is in NSW,  SA, WA or Tasmania.

What are the obligations of the tenant?

As well as the obligations placed on landlords, tenants are also held to account.  Every state has a legal requirement that a tenant must not cause a nuisance or be disruptive to the quiet enjoyment of neighbours. It doesn’t matter if the neighbours are tenants of the same landlord or not, nor does it matter if they are owner occupiers. Essentially, a tenant must be respectful of those around them. This is, after all, a basic expectation of our society.

So what can you do if you suspect your tenants are causing such a disturbance?

Typically you would become aware of this by neighbours. This is why I recommend that you introduce yourself to the neighbours of your rental investment and give them your contact details.  If a neighbour contacts you with information about a disturbance, ask if they have reported the matter to the police.  Encourage them to do so if the behaviour is repeated.  A report to the police may prove useful should you need to terminate the lease.

You have two options upon receiving the initial complaint:

1)  Discuss the matter with the tenant, without identifying the source of the complaint.  Explain to the tenant that they must respect the rights of their neighbours and warn the tenant that a reoccurrence may result in a breach notice.

Or

2)  Issue a breach notice. You are entitled to do this as the lease has been breached. Issuing a breach notice immediately will make it clear that the issue is a serious one. More importantly, it starts the process of ‘repeated breaches’ on the path to a termination of the lease.

Clearly, your judgement of the broader aspects of the situation will determine the option you choose.  Perhaps there are no other issues with the tenancy–rent is always on time, and the property is being looked after.  Then, option one is probably the best.

However, if the report of a disturbance is coupled with a poor performance on a routine inspection and a tardy rent payment pattern, then the issuing of a breach notice is recommended.

So,the legal obligations exist for both landlords and tenants when it comes to ‘quiet enjoyment’. Like most things in residential tenancies problems can be avoided by taking some simple steps:

• Make your expectations clear at signup
• Follow the procedures and protocols laid down in the Act for your state
• Use common sense and clear communication when dealing with an issue