NSW Tenancy Agreement - Changing Smoke Alarm Batteries?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

Pyroflamer

Active Member
28 August 2014
13
0
31
Hi all,

I know that under Clause 16.4 of the Residential tenancy agreement (link here), it is the tenant's responsibility to change smoke alarm batteries. However, I've been reading online and on several websites (including fire.nsw.gov.au here), they have said that for hard-wired smoke alarms (i.e. smoke alarms that are wired to the 240v with a backup battery, as opposed to being pure battery-powered), it is the landlord's responsibility to replace batteries.

However, I cannot find any statutory authority for this. Does anyone where this came from? I'm in the middle of a dispute with my real estate agent/ landlord where I'm being billed for calling an electrician to fix a battery failure in a hard-wired smoke alarm.

Many thanks!

Regards,
 

Scruff

Well-Known Member
25 July 2018
902
133
2,389
NSW
What exactly happened and who called the electrician?
 

Pyroflamer

Active Member
28 August 2014
13
0
31
1) Smoke alarm in my unit starts beeping incessantly (once every minute).

2) I suspect that the smoke alarm needed battery replacement, but looking at it it seemed to be (There was a line running from the alarm to the ceiling lights) and I was scared of touching it because I heard those are wired to the 240v mains.

3) I called the electrician on my tenancy contract and told him the situation, and asked him if my alarm was hard-wired.

4) The electrician tells me to send over a picture, which I do.

5) Then the electrician told me that he was coming over then (having seen my photo but without indicating whether my alarm was hard-wired).

6) He comes, replaces a battery, then leaves, and then bills my real estate agent who forwards it to me.
 

Scruff

Well-Known Member
25 July 2018
902
133
2,389
NSW
The short answer...

You need to check the wording of your own Tenancy Agreement. The wording should be as follows, depending on when you entered into the agreement:

Before 1 March 2006:
There's unlikely to be anything about smoke alarms in the agreement. If there is, it should appear under "Additional Terms".​

1 March 2006 to 30 January 2011:
19A. The landlord agrees:
19A.1 to install any smoke alarms that are required by law to be installed on the residential premises, and
19A.2 not to remove or interfere with the operation of any such smoke alarm except with reasonable excuse, and
19A.3 if any such smoke alarm has a replaceable battery (other than a back up battery), to ensure that a new battery is installed in the smoke alarm at the beginning of the term of this agreement and, if the battery needs to be replaced at any time, and the tenant is physically unable to change the battery, to replace the battery with a new battery as soon as reasonably practicable after being notified that the battery needs to be replaced.​
19B. The tenant agrees:
19B.1 not to remove or interfere with the operation of any smoke alarm installed on the residential premises except with reasonable excuse, and
19B.2 if any such smoke alarm has a replaceable battery (other than a back up battery), to ensure that the battery is replaced whenever necessary or, if the tenant is physically unable to change the battery, to notify the landlord as soon as reasonably practicable after becoming aware that the battery needs to be replaced, and
19B.3 to notify the landlord if any smoke alarm installed on the residential premises is not functioning properly.​

31 January 2011 onwards:
16. The tenant agrees:
16.4 that it is the tenant's responsibility to replace light globes and batteries for smoke detectors on the residential premises.​

The long answer...

The information on the fire.nsw.gov.au web site regarding "backup batteries" is obsolete. They got that information from the NSW Residential Tenancies (Residential Premises) Amendment (Smoke Alarms) Regulation 2006, as referenced at the bottom of the page. The sole purpose of that amendment, was to update the Standard Form Tenancy Agreement and Condition Report as stipulated by Schedule 1 of the NSW Residential Tenancies (Residential Premises) Regulation 1995. The amendment came into force on 1 March 2006, but the 1995 regulation it amended, was repealed 6 months later on 1 September when the NSW Residential Tenancies Regulation 2006 came into force. The 2006 regulation then stayed in force until the current legislation was enacted in 2011 with different wording.

So to put it simply, the references to "backup batteries" on the Fire NSW web page are 9 years out of date.

The current legislation came into force on 31 January 2011 and applies to all residential tenancy agreements, including existing agreements made under previous legislation. The current legislation is:
NSW Residential Tenancies Act 2010
NSW Residential Tenancies Regulation 2010 (<- Due to be repealed on 23 March 2020 when the NSW Residential Tenancies Regulation 2019 comes into force.)

Neither the current act nor the regulation stipulate who is responsible for the maintenance of smoke alarms. The act only mentions smoke alarms once (in section 55(2) which relates to a landlords rights to access) and the regulations only mention smoke alarms in the Standard Form Tenancy Agreement and Condition Report in Schedules 1 and 2 respectively.

As neither the act nor the regulation contain any sections about smoke alarm maintenance, there is nothing but the prescribed forms to rely on. Because prescribed forms are templates for physical documents, they only apply to new agreements and when they change, those changes don't automatically apply to existing agreements. (I believe this has been successfully tested at NCAT.)

What this all means, is that neither the act nor the regulation stipulate who is responsible for changing smoke alarm batteries. Only the tenancy agreement itself does, therefore you need to check the wording of your own agreement.

This will all get a lot more complicated in March this year with amendments to the act and a new regulation. The act will have a new section at 64A about smoke alarms and the new regulation will contain all the details in sections 13 to 21. These changes will apply to both new and existing tenancy agreements.

The amending Act is the Residential Tenancies Amendment (Review) Act 2018, but it doesn't state a commencement date yet. Given that the new regulation does have a commencement date and it references the new sections of the act, it looks like both will be enacted on 23 March 2020.