Is your rental property fit
As from 23 March 2020, residential rental properties in
NSW will need to satisfy seven legal requirements to be
fit for habitation. That is, fit to live in.
This article examines the seven legal requirements and
four NCAT Tribunal decisions upon the tenant’s rights to
obtain compensation from the landlord if the rental property
(the ‘premises’) is not fit for habitation.
The seven legal
requirements to be fit for habitation
Clause 19.1 of the 2020 standard form Residential Tenancy
Agreement lease paraphrases section 52(1) of the
Residential Tenancies Act 2010 (NSW) (the ‘Act’) – the
fit for habitation section as follows:
The landlord agrees to make sure that the residential
premises are reasonably clean and fit to live in.
If clause 19.1 is breached, the tenant has the right to
terminate the lease without paying the break fee and to
Up until now, what fit for habitation meant has
been largely guesswork because there was no definition in
the Act. But now, new sections 52(1A) & 52(1B) of the Act
contain a list of seven minimum legal standards to be met
for residential premises to be fit to live in.
These standards are reproduced as Notes under clause 19.1
of the 2020 standard form lease. The Notes read as follows:
Note 1. Section 52 of the Residential Tenancies
Act 2010 specifies the minimum requirements that must be
met for residential premises to be fit to live in. These
include that the residential premises:
- are structurally sound*, and
- have adequate natural light or artificial lighting
in each room of the premises other than a room that is
intended to be used only for the purposes of storage or
a garage, and
- have adequate ventilation, and
- are supplied with electricity or gas and have an
adequate number of electricity outlet sockets or gas
outlet sockets for the supply of lighting and heating
to, and use of appliances in, the premises, and
- have adequate plumbing and drainage, and
- are connected to a water supply service or
infrastructure that supplies water (including, but not
limited to, a water bore or water tank) that is able to
supply to the premises hot and cold water for drinking
and ablution and cleaning activities, and
- contain bathroom facilities, including toilet and
washing facilities, that allow privacy for the user.
Note 2. *Premises are structurally sound only if
the floors, ceilings, walls, supporting structures
(including foundations), doors, windows, roof, stairs,
balconies, balustrades and railings:
- are in a reasonable state of repair, and
- with respect to the floors, ceilings, walls and
supporting structures—are not subject to significant
- with respect to the roof, ceilings and windows—do
not allow water penetration into the premises, and
- are not liable to collapse because they are rotted
or otherwise defective.
The premises must be fit for habitation when the
This requirement is different from landlord’s obligation
to keep the premises in reasonable state of repair which is
an ongoing requirement during a lease.
How does the Residential
Tenancy Tribunal (NCAT) treat fit for habitation?
It has been a legal requirement that residential rental
premises must be fit for habitation for more than 100
years. In the case of Proudfoot v Hart (1890) 25 QBD
420 the Court said that “habitable” means that the premises
“might be used and dwelt in not only with safety but also
with reasonable comfort” by the tenants.
NCAT has considered what fit for habitation means
in a number of cases. This is a selection of cases dealing
with claims for: cigarette smoke drift, flooding caused by
poor roof drainage, mould caused by a leaking pipe and
Bhandari v Laming  NSWCATAP 224 (16 October 2015)
The tenant complained of a very strong
intermittent smell of toxic cigarette smoke permeating into
the apartment from the time the tenant moved in.
The apartment was in Potts Point. The smoke was emanating
from the apartment below where an elderly, sick occupant,
who was chain smoking, resided. The owner of the apartment
below was reluctant to evict the tenant and the Owners
Corporation of the strata scheme was reluctant to intervene,
even though the cause was a mechanical problem in the
internal ventilation passages in the strata building which
permitted the smoke to enter. The smoke was a health hazard.
The Tribunal ordered damages of $11,681.00, comprising
$7,980.00 for a rent reduction of 40% from the commencement
of the lease until the date of the hearing, packing costs
totalling $1,801.00, removalists’ costs of $1,000.00 (at the
rate of $125.00 per hour) and an agreed refund for blinds of
Comment: In this decision, the Appeal Panel of
NCAT said that: “The obligation to provide residential
premises fit for habitation is mandatory and … is not
contingent on the landlord being at fault or having control
over the event or circumstance affecting the state of the
premises.” The landlord cannot avoid liability by showing
that they took reasonable steps – the landlord must
provide premises fit for habitation.
Marsters v Graham  NSWCATCD 73 (14 September
The tenant’s belongings were damaged by water which
entered the house during a storm caused by the roof not
being structurally sound.
The tenant had moved into a house at Blacktown two days
before. The tenant’s belongings were lying on the floor,
unpacked in their boxes along with furniture, in the back
section of the house which was flooded to a depth of one
inch. The tenants decided to move out.
The landlord released the tenants from the lease,
refunded the rent and the bond.
The Tribunal ordered $7,822.21 compensation, consisting
of $2,500 for the cost of repair of 4-poster wooden bed;
$5,041.60 for items disposed of (mattresses, quilt, pillows,
blanket and computer monitor at current value, after
offsetting remaining life expectancy of: 10 years for
mattresses, 5 years for the other items, against cost of
purchase); and $280.61 for unusable items to be disposed of
(IKEA shelving and bookcase – 1 year old). The Tribunal
rejected claims for repairable items (no cost of repair
evidence was produced).
Comment: The Tribunal dismissed the landlord’s
defence that they were not aware that the premises might
flood, and the landlord’s attempt to pass the blame on to
the tenant by arguing that they should have raised concerns
about blocked gutters and drainpipes during their
Raats v Zein  NSWCATCD 62 (7 September 2016)
The tenants complained of a serious and extensive mould
infestation in a townhouse at Waitara. It was not present
when they inspected. But it was when the tenants took
possession and escalated over the first week of the tenancy.
The cause was a plumbing leak.
The tenants were unable to occupy bedroom 3, a designated
child’s bedroom, from the outset of the tenancy due to the
risk of respiratory difficulty and infection. The mould
growth was unsightly and gave off a foul odour. The tenants
moved out after two weeks.
The Tribunal was “satisfied that the mould infestation
constituted an unreasonable interference with the comfort of
the tenants judged by contemporary standards. Again, I do
not draw this conclusion lightly; the evidence to this
effect is compelling.”
The Tribunal ordered compensation of $1,741.00 for
Comment: It is a question of degree whether or not the
premises are ‘badly affected’ by mould (caused by water
leakage and dampness problems) so as to be not habitable. If
the mould is able to be cleaned, the premises are habitable
– see Bannister v Cheung  NSWCATCD.
Lazarevska v Ozturk  NSWCATCD 21 (31 March
Shortly after the tenant moved into the granny flat at
the rear of the landlord’s house at Liverpool, she
complained about a serious and persistent odour from
overflowing sewerage caused by a blocked sewer pipe and
mould associated with water leaks from the roof.
The tenant moved out after 12 weeks because these
Applying the “risk of injury test” and the “reasonable
comfort test” to determine the question of whether or not
residential premises are “habitable”, the Tribunal found
that the defective sewer drainage was a safety issue due to
the threat of disease and the odour impacted the reasonable
comfort. Similarly, with the roof leaks and the mould growth
which affected the kitchen/living room and the porch.
The Tribunal ordered compensation of $1,280, representing
one-third of the rent paid.
Questions on fit for habitation
The landlord’s obligations to comply with the minimum
standards for habitability is emphasised by the inclusion of
a questionnaire for the landlord to complete in the
This is an edited selection of the questionnaire in the
new MINIMUM STANDARDS section:
- Are the premises structurally sound?
- Does the premises have adequate natural or
artificial lighting in each room; ventilation?
- Are the premises supplied with electricity and gas,
and have adequate electricity or gas outlet sockets?
- Are the premises connected to a water supply
service; are there bathroom facilities; is there
adequate plumbing and drainage?
- Are there signs of mould or dampness; pests and
vermin; has any rubbish been left on the premises; and
are the premises listed on the Loose-Fill Asbestos
- Have the smoke alarms been installed and checked and
found to be in order; have the batteries been replaced
within the last 12 months?
- Are there safety issues, visible hazards relating to
electricity or gas?
- Is a telephone / internet line connected?
- Are water efficiency compliance measures in place?
Note: the landlord must indicate Yes or No to each