Domestic Violence, AVOs and Tenancy Agreements

A common outcome of domestic violence and Apprehended Violence Orders (AVOs) is that the victim decides to permanently end the relationship with the perpetrator of the violence. It’s often the case that one or both of the parties holds a lease on the residential property in which they were living prior to the AVO. So what happens in this situation? Who gets to stay, and what happens if you wish to break the lease? In NSW, the Residential Tenancies Act 2010 (NSW) governs the rights and responsibilities of tenants and landlords. In recent years it’s been amended to better deal with the situations that are created by domestic violence. If you’re the victim of domestic violence If you are the victim of violence your first instinct may be to vacate the premises you previously occupied with the perpetrator – but it may not be necessary for you to do this. There are a number of special considerations in place for victims of domestic violence. They include:

• With an AVO in place (whether it’s an interim order or a final order) you can change the locks on the home without seeking the landlord’s permission. You do need to provide the landlord with a set of keys within seven days (unless they agree not to keep a set of keys), and the lock change will be at your own expense.
• If a final AVO is made excluding your previous co-occupant from attending the premises, and he or she is named as a tenant on the tenancy agreement, then his or her tenancy is terminated by the final AVO. If you are listed as a co-tenant on the agreement, the tenancy passes to you – there is no need for a new agreement. You will however, need to inform your agent or landlord of the situation and provide a copy of the final AVO.
• In the event that you are not listed as a tenant, you can ask the agent or landlord to add your name to the agreement. If they refuse to do so, you can apply to the CTTT (Consumer, Trader and Tenancy Tribunal) – they will assess the circumstances and may order the landlord or agent to add you to the tenancy agreement. However, it’s important to note that there are some circumstances in which they may not make such an order – for example, if you are not recognised as an occupant of the premises, or if there are other factors that warrant the refusal. Another situation that can prevent you from being granted tenancy is where the residence belongs to Housing NSW, and you are not eligible for public housing.
• If you are a tenant on the lease, then while the lease remains in place so too does the original bond – the agent or landlord isn’t obliged to return the bond or any share of it until the end of the lease, or if you vacate early, once you vacate.

Boarders and lodgers and those sharing a home with multiple occupants may find things aren’t quite so clear-cut. Contact a tenants’ advisory service for advice, or ask your criminal defence lawyer for assistance. What happens if you want to leave? It may be the case that you plan to leave the area, or simply cannot afford the rent on your own. With a final AVO in place, even if your name is on the lease, you can terminate the lease by giving the agent or landlord 14 days’ notice – and you won’t incur the usual penalties for breaking a lease. When you’re the subject of an AVO If you are excluded from attending your usual residence by an interim AVO and you are named on the lease, you’ll need to think carefully about your circumstances. Until a final AVO is issued, your lease is still in place and you may still be considered responsible for rent payments. A contested AVO can take several months to be finalised or withdrawn – so you may wish to seek advice on re-assigning or terminating the lease earlier. It’s particularly important to understand that an AVO that prohibits you from attending the address overrides the right you had as a tenant to enter the dwelling. If you have belongings at the address, let your criminal lawyer know, so that he or she can request a property recovery order on your behalf. Your relationship may not have gone to plan, but the right advice and some good decisions could help you to move into a new, improved phase of life.