Author: Every year the Perth winter months bring about a few days of wild winds and heavy rain that can cause significant storm damage to properties, fencing and mature trees.
This raises issues for people renting their home and buyers in the middle of the contract process when damage occurs.
So where does the law stand on these matters? And what are your rights and responsibilities as a seller, buyer, tenant or owner of an investment property?
In the rental housing system, if a property experiences storm damage it is the responsibility of the owner to see to repairs as quickly and as reasonably as possible.
In cases where the damage is more serious and a house is rendered uninhabitable or ceases to be lawfully usable as a residence, then Section 69 of the Residential Tenancies Act becomes relevant.
In these situations the rent will abate and the owner or tenant may give notice of termination of the lease agreement. The land owner may give notice of no less than seven days and the tenant may give notice of no less than two days.
Homes under contract
If a property is under contact for sale when storm damage occurs, then Clause 8 of the Joint Form of General Conditions relating to ‘Risk’ is relevant, when improvements to the land are destroyed or partially damaged prior to settlement.
If a property for sale is in a recently storm-affected area the listing agent would usually contact the seller to see if the property had sustained any damage.
If the residence is made substantially uninhabitable or any other building or improvement is made unusable for use at the contract date, then the seller under clause 8.3 needs to immediately give notice to the buyer.
In this situation the agent should refer the seller to a legal practitioner for an interpretation of their rights and obligations.
If a property has suffered only minor damage, then the seller should be reminded of the representation made under clause 9.1(e) of the Joint Form of General Conditions, which states that the property at settlement will be in the same state and condition it was in immediately prior to the contract date.
Where a dividing fence has been damaged or blown down during the contract period, then the owner, in co-operation with their neighbour, is required to repair or replace the fence to a satisfactory standard within a reasonable time. There is no impost on the buyer.
To learn more about the rights and responsibilities attached to dividing fences, please contact your local council or visit the Consumer Protection section of the Department of Commerce’s website.