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Clarifying family and domestic violence tenancy law concerns - Real estate industry bulletin 203

Last updated: 14 August 2024

22 August 2019

In this issue:

  • Clarifying family and domestic violence tenancy law concerns

         • When a perpetrator wants to terminate their interest in a lease
         • A word about confidentiality
         • Confidentiality vs. disclosure when property management changes hands
         • Confidentiality when advising property owners
         • Resources reminder
 

Clarifying family and domestic violence tenancy law concerns

Since the family and domestic violence (FDV) changes to residential tenancy legislation came into effect, a number of questions have come up regarding FDV situations. This month we explore what happens when a perpetrator tenant wants to terminate their interest in a lease, and balancing confidentiality vs. disclosure when property management changes hands.
 

When a perpetrator wants to terminate their interest in a lease

The only way a perpetrator can initiate termination of their interest in a lease due to FDV circumstances is through an application to the Magistrates Court using court Form 12 - Application for court order. The perpetrator can apply for a court order in situations where there is a family violence order against them or they admit to committing family violence against a co-tenant during the term of the lease. 

A perpetrator cannot use Form 2 - Notice of Termination of Tenant’s Interest in Residential Tenancy Agreement on Grounds of Family Violence to terminate their interest in a lease. This form is exclusively for the use of tenants who have been, or are likely to be subjected to family and domestic violence during their tenancy. 
 
The Application for court order (Form 12) guide explains how to complete the form when making a court application in situations arising from family and domestic violence. This may be helpful to share with tenants. 
 
Tenancy WA produces a number of fact sheets for tenants, including for family and domestic violence situations. Of particular interest to perpetrator tenants would be Fact Sheet 3: I’ve been accused of family violence, what are my rights and responsibilities in my tenancy?

 

A word about confidentiality 

A number of agents have contacted us with concerns regarding confidentiality in the workplace when dealing with a tenancy subject to FDV circumstances. 

Rule 9 in the Real Estate and Business Agents and Sales Representatives Code of Conduct 2016 is clear with regard to confidential information. Each situation will be different and you must use good judgement in deciding whether to speak with colleagues about a tenancy subject to FDV. If you are seeking advice regarding the situation, use discretion to disclose only the minimum information needed to resolve your queries. When in doubt, you can always contact Consumer Protection for assistance.  

 

Confidentiality vs. disclosure when property management changes hands

A recent area of concern among agents relates to the disclosure of evidence when management of a property, in which the tenancy is subject to FDV circumstances, changes hands. 
 
In particular, what happens to the evidence attached to a notice of termination on grounds of family violence?
 
You should adopt a common sense approach and only disclose what is necessary for the new management to manage the tenancy subject to the FDV circumstances. In other words, the information disclosed will be dictated by the stage of the FDV termination process. 
 
For example, if the FDV termination is finalised before the property changes hands, the evidence should be removed from property file and maintained in accordance with record keeping standards. On the other hand, where the validity of the termination notice is being challenged, it would be appropriate to refer the evidence so that new management is aware of the issue. 
 
If the tenancy has not come to end, the information passed on to the new agent should be modified to allow them to manage out the tenancy being terminated on FDV grounds. In these circumstances, the current agent should work with the tenant terminating because of FDV circumstances to confirm what information is to be passed on in order to balance the need to know and the confidentially of the tenant subject to FDV.
 

Confidentiality when advising property owners

When the tenancy in a property you manage is subject to FDV circumstances, you should adopt a common sense approach as above when notifying the owner. It is acceptable to advise the owner that the tenancy has been affected, but without necessarily disclosing the specific details or giving them a copy of the evidence. You should stress to the owner that their knowledge of the tenancy being subject to FDV circumstances is strictly confidential and should not be discussed with or disclosed to anyone. 

 

Resource reminder 

Acknowledgement of Country

The Government of Western Australia acknowledges the traditional custodians throughout Western Australia and their continuing connection to the land, waters and community. We pay our respects to all members of the Aboriginal communities and their cultures; and to Elders both past and present.

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