Today’s correspondent says:
I was recently told by a NSW SES staff member that permission to enter a rented property can only be given by the landlord or managing real estate agent, and that the tenant cannot give permission to enter.
However, as I understand tenancy laws state that unless that tenant also gives permission to enter the real estate agent must give notice to the tenant before people enter the premises to do repairs with a minimum waiting period.
How exactly does permission to enter a property being rented out work when doing storm jobs with NSW SES?
The advice is, as one might guess, nonsense.
The Residential Tenancies Regulation 2019 (NSW), sch 1 sets out the standard terms of a residential lease in NSW. There can be other terms, but they must not be inconsistent with the Act or the Standard terms (Residential Tenancies Act 2010 (NSW) s 15). I will, therefore, put aside any special or specific terms that might be in a particular lease and discuss the standard terms. Some relevant clauses are:
Clause 15.1 The landlord agrees — 15.1 that the tenant will have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord…
Clause 17.3 … the tenant is responsible to the landlord for any act or omission by a person who is lawfully on the residential premises if the person is only permitted on the premises with the tenant’s consent …’ (emphasis added).
The right to quiet enjoyment is the right to use the leased premises for its usual purposes free of interference from the landlord (Halsbury’s Laws of Australia [245-3305]; Martin’s Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15 quoted in Yuwono v Koh [2022] NSWCATAP 306). In terms of residential leases, it must include a right to invite people to enter the premises both for social and professional purposes. For example, a tenant can invite a television or computer repair technician in to repair items owned by the tenant. That a tenant is liable for the damage done by a person whose only right to be on the premises is the tenant’s consent confirms that the tenant can give consent to others to enter the rented property.
It is of course wrong to say that the landlord’s permission is required for the SES to enter the premises any more than the landlord’s permission is required to let a friend in or to let the ambulance, police or fire services to enter the premises (though Fire and Rescue NSW have specific statutory power to enter premises to investigate an alarm of fire – Fire and Rescue NSW Act 1989 (NSW) s 12).
I think what may have been intended is that the landlord’s permission is required for the SES to do work on the premises and then it becomes an issue of what work is required and what part of the premises is leased by the tenant; for example does the landlord need to give permission to the SES to tarp the roof? The lease does provide for urgent repairs – it says, at cl 20:
The landlord agrees to pay the tenant, within 14 days after receiving written notice from the tenant, any reasonable costs (not exceeding $1,000) that the tenant has incurred for making urgent repairs to the residential premises (of the type set out below) so long as–
20.1 the damage was not caused as a result of a breach of this agreement by the tenant, and
20.2 the tenant gives or makes a reasonable attempt to give the landlord notice of the damage, and
20.3 the tenant gives the landlord a reasonable opportunity to make the repairs, and
20.4 the tenant makes a reasonable attempt to have any appropriate tradesperson named in this agreement make the repairs, and
20.5 the repairs are carried out, where appropriate, by licensed or properly qualified persons, and
20.6 the tenant, as soon as possible, gives or tries to give the landlord written details of the repairs, including the cost and the receipts for anything the tenant pays for.
Note: The type of repairs that are “urgent repairs” are defined in the Residential Tenancies Act 2010 and are defined as follows–
(a) a burst water service,
(b) an appliance, fitting or fixture that uses water or is used to supply water that is broken or not functioning properly, so that a substantial amount of water is being wasted,
(c) a blocked or broken lavatory system,
(d) a serious roof leak,
(e) a gas leak,
(f) a dangerous electrical fault,
(g) flooding or serious flood damage,
(h) serious storm or fire damage,
(i) a failure or breakdown of the gas, electricity or water supply to the premises,
(j) a failure or breakdown of any essential service on the residential premises for hot water, cooking, heating, cooling or laundering,
(k) any fault or damage that causes the premises to be unsafe or insecure.
Where the SES come to patch a roof, or deal with a flood or storm damage they do not come to do repairs, they come to mitigate the damage pending repairs. Further they do not charge for the service.
I cannot see how any landlord or tribunal would find that a tenant, who has the right to quiet enjoyment, cannot call upon the emergency services to provide the very emergency services they are there to provide without first getting the landlord’s consent. If the tenant has to put up with a leaking roof for three days until a tiler can get there because the landlord says they cannot call the SES then the tenant is being denied their rights with respect to quiet enjoyment of the property.
Clause 24 says:
The landlord agrees that the landlord, the landlord’s agent or any person authorised in writing by the landlord, during the currency of this agreement, may only enter the residential premises in the following circumstances–
24.1 in an emergency (including entry for the purpose of carrying out urgent repairs)…
If it is the landlord that calls the SES then the normal rules of giving notice will not apply.
Of course if the matter is not urgent (and for that I cannot imagine why the SES would be there; but assuming there is some reason) then yes it might be prudent to get the landlord’s permission if the SES are planning to do work that will affect the building rather than the tenant’s right to live in the building.
But in short the tenant is in the premises and is entitled to use those premises. They can invite someone in and if there is an emergency damage it is incumbent upon them to take steps to mitigate that damage. If the damage is caused by a flood or storm of course they can call the SES even if they should also attempt to call the landlord.
Conclusion
There is nothing in the law or the standard lease that would suggest that a tenant’s permission to the SES to enter premises and respond to an emergency is not sufficient. What the SES are may be authorised to do would depend on why they have been called and whether there is an issue of urgency. Assuming the SES is responding to SES core business, ie responding to an emergency ‘relating to a flood, storm or tsunami’ (State Emergency Service Act 1989 (NSW) s 19) then the tenant can give permission to allow the SES to come in and secure the premises and the tenant’s interests. And if the SES are responding to a life-threatening emergency eg as the nominated rescue squad or to assist the other emergency services then of course the landlord’s permission is not required (State Emergency and Rescue Management Act 1989(NSW) s 61; Kuru v State of New South Wales (2008) 236 CLR 1).
This blog is a general discussion of legal principles only. It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.
Australian Emergency Law 
Wonder how that might translate to commercial rentals as something SES are also called to those types of properties?
Commercial and strata rentals may be different because it depends what the tenant is leasing. For example in a strata lease the landlord or the owners corporation retain responsibility for the building and public spaces. Equally commercial leases for example in a shopping centre the tenant isn’t leasing, or responsible for, public areas or the roof etc. And a commercial lease may have its own specific clauses but they’re not really issues for the SES to resolve. If the SES get called to a building with a leaking roof and water flooding in posing a hazard to those inside and damage to the building in the absence of anyone objecting to their presence I would suggest they are fine to get on with the job of trying to secure the building.
Thanks
Hi Michael, thanks for this useful post.
We have heard the same thing in Queensland at times. Do you know if the situation is different in Queensland (I would think not).
Many thanks, Chris
Yes it has to be the same in Queensland. Trespass is an offence against possession and it is the tenant who is possession of leased property. The tenant can exclude others including the landlord (subject to the landlord’s right to access as set out in the lease). So a tenant can invite people in and the tenant’s permission, given the tenant is in occupation, is sufficient (and see https://queenslandlawhandbook.org.au/the-queensland-law-handbook/living-and-working-in-society/neighbourhood-disputes/unauthorised-entry-or-trespass/ and note the references to ‘occupier’). Whether a tenant can authorise the SES to do things to the property depends on what part of the property the SES want to act on and whether that is part of the property the subject to the lease. So the tenant of an apartment in an apartment block is not ‘in possession’ of the roof. A tenant couldn’t give permission to the SES to knock down the premises eg ’to access the roof we need to bring a cherry picker in here and that will involve demolishing the garden shed, is that ok’. As noted in the post a NSW lease (and I imagine a Queensland one) has provisions about urgent repairs and which tradesperson to engage but the SES are not there to actually repair the house, just to secure it so those provisions will not be relevant. So again the blanket statement that a tenant cannot give permission to the SES to enter land has to be wrong.
Thanks Michael, very helpful.
Sometimes when doing temporary repairs to a house, the SES can do further (minor) damage. An example would be using Flash-tack (a bitumen-based sealant tape) on roof tiles or roof sheets. Plumbers generally hate it, but sometimes it’s the best way for SES operators to stop a leak, especially at 2am when it’s raining.
Sometimes when the damage (for example to a gutter) is severe, putting a tarp over it will rip the tarp, so SES may remove the gutter or modify the gutter so it doesn’t rip the tarp.
So, it is possible for SES when doing temporary repairs to make the roof repair a bit harder for the tradesperson who does the permanent repair.
But I would say almost all reasonable people would see this as a sensible trade-off to preventing further damage to the property through water ingress, which in most cases would do significantly more damage.
A lot of SES crews will take photos prior, and photos after, the repair to show that the actions were in good faith. And generally, in the vast majority of cases, they are also effective. Owners have asked the SES for these photos to help with insurance claims, but that is usually very rare, at least as far as I know.
Thanks for your insights, always extremely helpful.
Best, Chris
Oh, and agreed with strata title properties. SES (at least in Queensland) generally will not work on these. I have heard rumours of exception circumstances (e.g. disability accommodation) where property-owner permission was sought, received, and the temporary repairs could be undertaken.