Domestic Violence and Residential Tenancies (SA)

When a tenant is affected by domestic violence, they may need to make changes to their rental agreement. In South Australia, the Residential Tenancies Act 1995 contains protections for tenants who are the victims of domestic abuse. This page outlines the legal implications of domestic violence on a residential tenancy in South Australia.

Domestic violence situations can create complex challenges for tenants, particularly when it comes to housing security and lease obligations. South Australian law recognizes these difficulties and provides specific protections to ensure victims aren't further disadvantaged by their tenancy arrangements. Understanding your rights as a tenant experiencing domestic violence is crucial for making informed decisions about your housing situation.

What is domestic violence?

Domestic violence includes physical, sexual, economic, emotional and psychological abuse as well as stalking and intimidation. It can occur between spouses, de facto partners, persons in a sexual relationship, people living in the same household or residential facility, family members, persons in a carer relationship and persons in Aboriginal or Torres Strait Islander kinship relationships (section 5, Crimes (Domestic and Personal Violence) Act 2007).

Types of domestic violence relevant to tenancy matters

For residential tenancy purposes, domestic violence encompasses various forms of abuse that may impact a person's ability to safely remain in their rental property. Economic abuse, which involves controlling someone's access to financial resources, can particularly affect a tenant's ability to meet rental obligations. Psychological abuse through threats and intimidation may make it unsafe for a victim to continue living at the property.

The law recognizes that domestic violence often involves patterns of controlling behavior that can directly impact tenancy arrangements, including preventing victims from paying rent, causing property damage, or making the premises uninhabitable for the victim.

Talk to the landlord

If a person has become the victim of domestic violence while living in a rental property and needs to end the lease agreement, their first step should be to speak to the landlord or agent about the situation. The landlord or agent may be agreeable to ending the rental agreement early.

Preparing for the conversation

When approaching your landlord or real estate agent, it's advisable to prepare documentation that supports your situation. This might include copies of intervention orders, police reports, or statements from support services. Many landlords and agents understand the seriousness of domestic violence situations and may be willing to work with tenants to find suitable solutions.

Consider putting your request in writing, as this creates a record of your communication and demonstrates the formal nature of your request. Be clear about what you're seeking – whether it's early lease termination, lock changes, or other modifications to your tenancy arrangement.

Ending a tenancy because of domestic violence

If a tenant has been affected by domestic violence and had an intervention order for their protection, they may apply to the South Australian Civil and Administrative Tribunal (SACAT) to have their lease terminated.

SACAT may terminate the lease if satisfied that there is an intervention order for their protection and that a person who lives at the property has committed domestic abuse against them.

The Tribunal may also make an order that the landlord must enter into a new lease with the applicant or a co-tenant or an order for possession of the property.

SACAT application process

When applying to SACAT for lease termination due to domestic violence, applicants must provide evidence supporting their claim. This typically includes copies of intervention orders, police reports, or other documentation from relevant authorities. The application must demonstrate the connection between the domestic violence and the need to terminate the tenancy.

SACAT considers each case individually, taking into account factors such as the safety of the applicant, the severity of the violence, and whether remaining in the property would pose ongoing risks. The Tribunal has broad powers to make orders that protect victims while ensuring fair outcomes for all parties involved.

Urgent applications

In situations where immediate action is required for safety reasons, SACAT may consider urgent applications for lease termination. These applications are processed more quickly than standard applications, recognizing that domestic violence situations often require swift intervention to protect victims from further harm.

No blacklisting for breaches resulting from domestic violence

If the Tribunal is satisfied that a person seeking to have their lease terminated because of domestic violence did not cause a breach of the lease, or that the breach was caused by domestic abuse towards them, it may order that the landlord or agent must not list the applicant's details in a residential tenancies database.

A residential tenancies database is a privately run database that contains the details of persons who have had their previous tenancies ended for specific reasons. Also known as a 'blacklisting', a listing in a tenancies database can seriously impact a person's ability to rent properties in the future.

Protection from future rental difficulties

This protection is particularly important for domestic violence victims who may already face financial and social challenges when seeking new accommodation. By preventing blacklisting for breaches caused by domestic violence, the law helps ensure that victims can access rental housing in the future without being penalized for circumstances beyond their control.

If a tenant believes they have been incorrectly listed in a residential tenancies database due to circumstances involving domestic violence, they may seek legal advice about having the listing removed or corrected.

Damage caused by domestic violence

When a residential tenancy is terminated because of domestic violence and one party is responsible for damage that has been caused to the property, the Tribunal may order that that party is solely liable for the damage.

If a person is found guilty of criminal damage by a court, the court may order that they pay restitution.

Protecting innocent parties from liability

Under normal tenancy arrangements, all tenants listed on a lease are jointly liable for property damage. However, South Australian law recognizes that domestic violence victims shouldn't be held responsible for damage caused by their abuser. This protection ensures that victims aren't faced with additional financial burdens when escaping violent situations.

When applying for lease termination due to domestic violence, tenants should document any property damage and its relationship to the violence. Photographs, police reports, and other evidence can help establish who was responsible for any damage that occurred.

Changing locks

Under section 66 of the Residential Tenancies Act, it is an offence for either a landlord or a tenant to replace a lock in a rental property without the other's permission. A fine of up to $5000 applies.

If a tenant is affected by domestic violence and needs to change the locks to keep themselves safe, they should speak to the landlord or agent immediately, inform them of the situation and seek permission to do so. Any supporting evidence the person has access to – such as copies of intervention orders or police reports – should be provided.

Emergency lock changes

In urgent situations where immediate safety is at risk, tenants may need to change locks before obtaining landlord consent. While this technically breaches standard tenancy rules, courts and tribunals generally view such actions sympathetically when they're necessary to prevent domestic violence. However, tenants should notify their landlord as soon as possible after making emergency lock changes and provide appropriate documentation.

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