It is a statistically known fact that women are largely the victims of domestic violence and often they and their children are the most vulnerable when it comes to their housing.
As a specialist Family Law firm we unfortunately deal with family violence on a regular basis.
It is hoped that the following article will assist women who are sadly caught in this situation to learn more about their rights as tenants, co-tenants and boards or lodgers.
What is your tenancy status?
Head-tenant – means that your name is on the residential tenancy lease and you are responsible for all the rental payments and other responsibilities that relate to being a tenant.
Co-tenant – means that your name together with another person or people is on the residential tenancy lease and you are responsible for all the rental payments and other responsibilities that relate to being a tenant.
Sub-tenant – means that you live with the tenant and have a separate tenancy agreement between the tenant and yourself permitting you to live in a separate part of the property
Boarder or lodger – you live with the tenant and they have control of the whole premises (including the part you rent). You may live with the owner of the property or the tenant who has the head lease.
Leaving the home
You may choose to leave the rental property, however depending on your tenancy status your obligations to the landlord may or may not continue. If you own the head tenancy, then you can provide the adequate notice to the landlord or their representative and leave. If, however you are a co-tenant you will need to make arrangements with the other tenant to remove yourself from the lease agreement and you should speak to the landlord or their representative about this. You do not want to have any continued liability of payment of rent or damages once you leave.
Staying in the home
Where there is family violence and you have no-where to go and want to stay in the home, then the following options are available to you:
- Getting an Apprehended Domestic Violence Order against the perpetrator of violence which includes an exclusive occupation order
- Taking action in the NSW Civil and Administrative Tribunal (NCAT)
What is an Apprehended Domestic Violence Order (“ADVO”)
An ADVO is an Order made by the Court that stops a person (the defendant) from doing certain things to you or your children to ensure that you are protected and safe from harm. All ADVO’s include Orders that prevent the defendant from assaulting, harassing, threatening, stalking, or intimidating you. Other conditions can be included such as not coming within 100 metres of you or other protected persons or being excluded from living in the home with you.
If you have an ADVO which includes an exclusive occupation Order then you are permitted to change the locks of the home and you do not have to give a copy of the keys to the other occupant (the defendant).
I have a final ADVO and I am not the tenant what can I do?
If you have a final ADVO with an exclusive occupation Order, then this Order will terminate the head or co-tenancy of the defendant. However you are not named on the co-tenancy, then you may need to apply to NCAT to get an Order recognising you as the tenant under the original agreement.
If NCAT does not give you an Order that recognises you as a tenant under the original agreement, then you may be asked to leave by the landlord.
I don’t have an ADVO and I want to stay in the home
If you are a co-tenant you can apply to NCAT to remove the other co-tenants on the grounds of domestic violence and NCAT will determine the matter.
If you hold the head tenancy and the perpetrator is the sub-tenant, then you can apply for an Order from NCAT to terminate the sub-tenancy on the grounds that they have seriously or persistently threatened or abused you or caused you injury or harm.
For further information, please contact us on info@cominoslawyers.com.au or 02 8999 1800.