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Storm Damage Issues for Buyers & Tenants

25 June 2012
The southwest coast of our big state has certainly taken a battering in recent weeks, with a once-in-a-decade storm sweeping across most of metropolitan Perth and Mandurah and  causing significant damage to property and fencing.  
In many instances, this can raise issues for people who are renting their home, or with buyers who are in the middle of the contract process when damage occurs.
So where does the law stand on these matters? What are your rights and responsibilities depending on whether you are a seller, buyer, tenant or landlord?
In the rental housing system, if a property is storm damaged then the owner is expected to see to repairs as quickly as reasonably possible.
Where it’s more serious, for example where a home is destroyed, rendered uninhabitable or ceases to be lawfully usable as a residence, then Section 69 of the Residential Tenancies Act becomes relevant.
In this situation, 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 not less than seven days and the tenant may give notice of not less than two days.
If a property is under contact for sale, 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, then it would be usual for the listing agency to contact the seller to see if the property had suffered any damage.
If the residence is made substantially uninhabitable or any other building or improvement is made substantially unusable, for the current use as at the contract date, then the seller under clause 8.3 needs to immediately give a 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, namely that the property at settlement will be in the same state and condition that 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 the neighbour, is required to repair or replace the fence to a satisfactory standard within 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 the consumer affairs section of the Department of Commerce. 
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