What Conditions Make a Property Substandard?
A property may be declared substandard if it does not comply with minimum housing standards (Part 3 of the Regulations) and presents a health or safety risk. Some examples include:
- inadequate kitchen, bathroom, toilet or laundry facilities
- defective plumbing, gas or electrical services
- poor lighting or ventilation
- Inadequate fire safety provisions
- hazardous materials – eg disturbed or damaged asbestos
- premises inadequately converted into a rooming house
- structures that are at risk of collapse.
Reporting a substandard property
Anyone can make a complaint about the standard of any residential property in South Australia. If you are renting the property, you should:
- Notify your landlord or property agent by mail, email or phone call about the problems with your property and ask for repairs to be carried out in a reasonable timeframe.
If you are living in a public housing property contact the SA Housing Authority and follow their processes to report a maintenance issue.
If you are living in a community housing property contact your community housing provider and follow their processes to report a maintenance issue. - If there has been no progress and repairs are not carried out, contact Consumer and Business Services to discuss alternatives.
- If the property poses a health or safety risk, contact the Housing Safety Authority or complete the report a substandard property form.
Rent Control
If a housing improvement order has been issued, rent control may be applied to ensure tenants are not paying full market rent while living in substandard conditions.
Preliminary rent control notice
Once a housing improvement order has been issued, the owner of the property may receive a preliminary notice to improve the condition of the property or reduce the rent. The owner has up to 14 days to respond to this notice.
Rent control notice
If the property owner does not respond to the preliminary notice with an adequate reason or if the property remains unsafe, a rent control notice will be issued with a maximum weekly rent amount and published in the government gazette and on the substandard property register.
The rent control amount will be calculated based on the condition of the property and the market value.
If a landlord charges more than the amount in the rent control notice, the landlord has committed an offence and fees and penalties may apply.
Notice to vacate
If a property has been declared uninhabitable and a notice to vacate has been issued to the occupant, the owner must not allow the property to be occupied.
Housing improvement orders
Under Part 3 of the Housing Improvement Act 2016 (SA), the Minister for Human Services has the power to issue orders requiring the assessment, improvement or demolition of a house that is undesirable or unfit for human habitation. Prescribed minimum housing standards are detailed in Part 3 of the Housing Improvement Regulations 2017 (SA).
The initial action is likely to be under section 13, which gives the Minister the authority to issue a housing assessment order to the owner of residential premises if he/she has reason to believe that the premises are unsafe or unsuitable for human habitation. An authorised officer would then conduct an assessment and provide a written report to the Minister.
Under section 11, if there is an imminent risk of death, serious illness or injury, an authorised officer may enter premises for the purposes of carrying out an inspection provided they notify the owner or occupier prior to the proposed entry. No qualification is made in the Act to specify the time frame for ‘prior’ notice so, even if notice is given immediately before the time of entry, this is likely to be valid. In cases not involving imminent risk of death or injury, at least 5 working days’ notice must be given to the owner or occupier of the proposed entry.
Depending on the report recommendations an order will be issued either to repair the house to a reasonable standard (housing improvement order) or to demolish the house (housing demolition order) [see ss 14, 15]. The maximum penalty for failing to comply with such an order is $10 000.
The Minister may apply to the Registrar-General to register the order in relation to land owned by the person on which the premises are located. The registration will operate as a charge on the land whereby the Minister can secure any costs or expenses incurred against the landowner [s 16].
Rent control notices [s 25]
Where a housing improvement notice has been issued the Minister may declare the premises to be subject to a rent control notice. The notice will be published in the Gazette. Before making a notice, however, the Minister must give the owner of the premises a preliminary rent control notice detailing the maximum rent proposed and inviting the owner to show why a rent control notice should not be made.
It is an offence under the Act for a person to charge, demand or receive rent in excess of the maximum rent imposed by the notice for which there is a maximum penalty of $2 500 [expiation fee: $210].
Review rights [s 33]
An application for review may be made to the South Australian Civil and Administrative Appeals Tribunal (SACAT) in the following circumstances:
- by a person (i.e. occupier or tenant) who has been issued with a housing assessment order, housing improvement order or a housing demolition order or a notice to vacate [under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA)];
- the owner of a premises in respect of which a rent control notice has been made [also under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA)].
Any application must be made within 28 days of the order or notice being issued (unless the Tribunal permits an extension of time).
Disclosure obligations
An owner of a property that is subject to an order under the Housing Improvement Act 2016 (SA) has the following obligations in terms of notice and disclosure:
- must ensure that a copy of the order or notice is displayed in a prominent position on the premises [s 31];
- if the property has been offered for sale, the vendor must ensure that each advertisement relating to sale includes a statement that an order or notice applies [s 32].
Where premises are being offered for lease:
- the lessor (person granting the lease i.e. landlord) must ensure that each advertisement published for the lease, and the lease agreement, includes a statement that an order or notice applies; and
- if a rent control notice applies, any oral or written representation made to a leasee (the person who will be leasing the property i.e., tenant) about the amount of rent payable includes a statement that the rent has been fixed under a rent control notice [s 32].
If a lessor (landlord) fails to comply with the above requirements, the lessee (tenant) may rescind (withdraw from) the lease by giving notice, in the prescribed manner and form, of their intention not to be bound by the lease [s 32(4)].
Effect of housing orders on tenants and occupiers
In the case of a housing demolition order or where a housing improvement order requires the premises to be vacated before work can commence, a notice to vacate will be issued by the Minister.
The notice to vacate will effectively terminate any residential tenancy agreement and require the occupier to give up possession of the premises on a specified date.
Review of notice
A person issued with a notice to vacate may apply to the South Australian Civil and Administrative Appeals Tribunal (SACAT) for review of the notice (i.e. not to the housing improvement or demolition order behind the notice to vacate). The application must be lodged within 28 days of receiving the notice [Housing Improvement Act 2016 (SA) s 22].
Compensation
If the premises for which a notice to vacate has been issued have been occupied under a residential tenancy agreement the tenant may apply to the South Australian Civil and Administrative Appeals Tribunal (SACAT) for a compensation order. The Tribunal has the power to order the landlord to compensate the tenant for loss and inconvenience resulting from early termination of the tenancy if it considers it appropriate in the circumstances [Housing Improvement Act 2016 (SA) s 23]. The order can include compensation for the reasonable costs incurred by a tenant in relocating to other premises.
Failure to comply with notice to vacate
The maximum penalty for failing to comply with a notice to vacate, or for letting or subletting the premises to which a notice applies, is $ 2 500.
The South Australian Civil and Administrative Tribunal can (on application by the Minister) make an order for the ejectment of the occupier(s) if necessary [s 23]. The ejection order can be enforced by a bailiff if the occupier(s) do not comply and a bailiff can be assisted by a police officer to enforce the order [s 24].