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Exemptions and Consequences - Healthy Home Standards
Achieving compliance with the upcoming Healthy Homes Standards may be particularly challenging for multi-unit dwellings. We discuss possible exemptions alongside the consequences of not complying in this article.
There are several exemptions that may apply to rental properties in multi-unit developments.
Partial Ownership Exemption
If a rental property is part of a building and the landlord does not own the entire building (for example, if a landlord owns an apartment in a unit titled or other form of community titled entity), the landlord will be partially exempt from complying with parts of the Standards. The landlord must show that their ability to comply with the Healthy Homes Standards is constrained or prevented because they need to install or provide something in a part of the building where the landlord is not the sole owner, or they need access to a part of the building of which they are not the sole owner and the owner does not give their permission.
Eligibility for the Exemption
Landlords must still take all reasonable steps to ensure the rental property or building complies with the Healthy Homes Standards to the greatest extent reasonably practicable, including: seeking permission where access or permission is required, following the correct formal processes when work needs to be done and seeking advice of suitably qualified professionals to help them comply as best as is reasonably practicable with the requirement.
The Healthy Homes Standards cover ventilation, insulation, heating, draught stopping and moisture and drainage. There are specific exemptions available for the heating, insulation, ventilation and moisture and drainage standards.
There are three specific insulation exemptions available. These are:
- Where access is impracticable or unsafe
- A partial exemption for certain underfloor insulation
- An exemption where there is a habitable space above or below the rental property (e.g. in apartments). If there is no habitable space (e.g. for a top floor apartment) then the insulation standard must be met or a proven exemption relied on.
Rooms may be exempt from the requirements for openable windows and external doors if the room was lawful when it was built. If having fewer windows or doors was only lawful because the room met alternative ventilation requirements, it must still meet these requirements.
An exemption exists for kitchens and bathrooms not having extractor fans where you can prove it is ‘reasonably impracticable’ to install one. In this instance, the landlord must prove they have acted reasonably. It is important to seek and retain on file written advice from a suitably qualified professional.
Exemptions to the heating standard are available where it is not reasonably practicable to install one or more qualifying heating devices, or where the rental property is a certified passive building.
Retrofitting heat pumps to meet the heating standards is an example of one area that may prove challenging in multi-unit dwellings. If the body corporate won’t allow penetrations or heat pump units to be installed on the exterior of the building, owners should receive documentation from the body corporate confirming that the required penetrations or use of external space is not permitted. The landlord will still be required to meet the standard as best they can using another form of fixed electrical heating device. Once again, advice from a suitably qualified professional must be obtained and retained.
Moisture Ingress and Drainage Exemption
There is an exemption to the moisture ingress and drainage standard where it is not reasonably practicable to install a ground moisture barrier.
Consequences of Not Complying
Whether the above exemptions apply to your specific case will ultimately come down to what the Tenancy Tribunal considers ‘reasonable’. In all cases, having written advice from suitably qualified professionals, showing you have acted reasonably and providing evidence that you have consulted with your body corporate are imperative.
Fines may be incurred by Landlords who fail to meet Healthy Homes Standards compliance deadlines.
Currently, if you fail to provide a complete Insulation Statement for your rental property or the Statement includes false or misleading information you could be liable for a penalty of up to $500.
It’s important to also include a Statement in new, renewed or varied tenancy agreements confirming you will, or already do, comply with the Healthy Homes Standards. Failure to include this Statement may result in a financial penalty of up to $500.
From December 1, 2020, if you fail to provide a Healthy Homes Compliance Statement stating the current level of compliance of your property for most new or renewed tenancy agreements you could face a financial penalty of up to $500.
From July 1, 2021, all private residential properties must comply with the full list of regulations for the Healthy Homes Standards within 90 days of any new, or renewed, tenancy. By July 2024 all rental homes must comply with the Standards, regardless of when the tenancy began.
If a tenant believes their landlord hasn't complied with the Standards, they can apply to the Tenancy Tribunal for a mediation and/or hearing. The Tenancy Tribunal will have the ability to order you to undertake work and impose a financial penalty of up to $4,000. Any penalty ordered is normally payable to the tenant.
Providing warm, dry and comfortable rental properties is beneficial for both landlords and tenants alike. Crockers recommends that landlords are working towards meeting the Standards ahead of schedule. This will ensure you don’t encounter delays with availability of tradespeople as we close in on the deadline, ensure you don’t become liable for potential fines and of course, provide a better quality home for your tenants.
For more information on the Healthy Homes Standards, deadlines, challenges and Crockers’ tips and tricks for achieving compliance, read Crockers’ article Healthy Homes in a Body Corporate.
Read more about Healthy Homes Standards and its requirements at our Healthy Homes Hub.