Australian homes can get particularly cold in winter. But are rental properties equipped to keep tenants warm and comfortable throughout the winter months? If not, do tenants have the right to ask their landlords for effective heating systems in their rental homes? And are landlords obliged to help their tenants stay warm at home?

Dr Chris Martin, senior research fellow from the UNSW City Futures Research Centre at UNSW Arts, Design & Architecture, and a tenancy law expert, says it comes down to how cold your rental is, and for now, which state you live in.

That’s because residential tenancy legislation in most states does not mandate that a fixed air-conditioning or heating device needs to be installed at a rental property; it only specifies that the premises must be fit for habitation.

“While the exact wording differs between different jurisdictions, the habitability obligation essentially means landlords must ensure the premises can be lived in safely and comfortably,” Dr Martin says. “If it takes an air-conditioner or a heating unit to make a particular premises habitable, that’s what’s required to meet that obligation.”

A 2022 report by the tenancy advocacy organisation Better Renting found that renters’ homes in Australia routinely fell below 18 degrees during winter – the minimum temperature that the World Health Organisation regards as safe for indoor environments.

“If premises are so cold that they are unsafe or unbearably uncomfortable, then the premises are not fit for habitation, and the landlord is in breach of the tenancy agreement,” Dr Martin says. “Likewise, if a premises is too hot, it too can also be unsafe or so uncomfortable that it is in breach of the tenancy agreement.”

Dr Martin advises that tenants who find their properties unsafe or uncomfortable due to the cold could approach their landlord to install a fixed heating unit or insulation to remedy the breach in the first instance.

If the landlord fails to take action, tenants can apply to the tribunal for a breach of agreement and seek an order that the landlord make the premises habitable. Tenants might also seek remedies from the landlord such as a rent reduction for not being able to use part of the premises due to the cold or compensation for falling ill because of the cold.

“Even though the habitability obligation is good in its wide coverage and can be applied to many circumstances, it does mean that tenants may have to have an argument with the landlord about what’s needed to meet the obligation,” Dr Martin says. “That can be difficult when tenants are in this asymmetrical relationship where their landlord holds most of the power.”

Therefore, expanding minimum standards for rental properties could improve conditions for renters. In recent years, states and territories have been amending their tenancy laws to include minimum standards that landlords must ensure in their rental properties such as structurally sound houses and hot and cold running water; however, some jurisdictions are doing more than others.

“For example, in New South Wales, the minimum standards set out some examples of what is required by the general habitability obligation,” Dr Martin says. “But Victoria’s approach to minimum standards is different, because it is deliberately setting higher standards, and requiring landlords to actively improve properties, including in relation to heating.”

Victoria requires all rental properties to have a fixed heater in the main living space that meets energy efficiency requirements. Other states and territories should consider introducing similar heating requirements in a phased approach into their own minimum standards, Dr Martin says. But these improvements could ultimately mean higher rents for tenants.

“Deliberately raising the standard of rental properties in this way would likely impose a cost, and it’s reasonable to expect that cost to flow through to higher rents,” he says. “But if the improvements also focus on energy efficiency, there could be cost savings for tenants from the improved thermal performance of their homes.”

Dr Martin also advocates for strengthening the tenant’s legal security by ending evictions without grounds.

“Abolishing no grounds terminations is the crucial reform that every other reform depends on,” Dr Martin says. “That is the one that gives tenants reasonable security to assert any of their rights like asking for a simple repair and know they aren’t going to face repercussions from their landlord.”

Image: https://www.positionone.com.au/air-conditioner-for-rental-property/

Branko Miletic

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