What type of rental accommodations are covered by the legislation governing residential tenancies in South Australia?

The Residential Tenancies Act covers all residential tenancies in the State of South Australia, including rooming houses.

What rental accommodations are NOT covered by the Act?

The Act does not apply to:

* holiday accommodations;
* hotels and motels;
* educational institutions;
* hospitals and nursing homes;
* club premises;
* homes for aged or disabled persons administered by an eligible organisation under the Aged or Disabled Person Care Act 1954 of the Commonwealth;
* retirement villages within the meaning of the Retirement Villages Act 1987;
* supported residential facilities within the meaning of the Supported Residential Facilities Act 1992;
* premises for the purpose of residence for which no rent is payable;
* agreements arising under a scheme in which a complex of adjacent premises is owned by a company and the premises are let by the company to persons who jointly have a controlling interest in the company.

Is it necessary to have a written tenancy agreement under the Act?

A residential tenancy agreement can be written, made verbally between the parties, or even implied. It therefore does not need to be in writing. However, if the agreement is in writing, the tenant must receive a copy of it at the time they sign the agreement. A copy which has been signed by both parties should be given within 21 days. The landlord must bear the cost of preparation of a written agreement.

What about a signed property condition report?

Before the tenant moves in, the landlord must complete and provide 2 signed property inspection sheets. The inspection sheets may be adapted to suit particular premises but the tenant should fill out and sign both, and keep 1 copy. The inspection reports must indicate the state of the premises and the contents at the commencement of the tenancy. It is very important for both parties to take care when completing these forms, and record even minor damage that exists. Each party should retain a copy of the inspection sheet for the duration of the tenancy and afterwards, until each party is sure that the other party will not be making a claim.

How much advance rent can the landlord charge?

Besides paying a bond at the beginning of the tenancy, a tenant can be required to pay the first two weeks' rent, except for rooming house residents who are only required to pay 1 week's rent in advance. If two weeks' rent is paid at the start of the tenancy, no rent is due until that two weeks have passed. Besides a security bond and two weeks' rent in advance, the landlord cannot ask for any other money at the start of the tenancy.

How much can the landlord charge for a security bond?

The maximum security bond that may be required is 4 weeks' rent, unless the rent exceeds $250.00 per week, in which case the maximum amount of bond that may be required is 6 weeks' rent. Rooming house residents are only required to pay the equivalent of 2 weeks' rent as a security bond. When a security bond is paid by the tenant, a landlord must provide a receipt within 48 hours. The receipt must specify the date, the person's name, the amount paid and the address of the premises for which it is paid. The moneys must then be lodged with the Tenancies Branch together with the Lodgement of Security Bond form within 7 days of receipt of the money. Licensed agents have 30 days in which to lodge the bond. Rooming house owners are not required to lodge security bonds paid by residents.

The bond money may be released either by:

* the tenant and the landlord/agent making a joint application (allowing the bond money to be collected immediately), or
* one party applying independently (which requires notification to the other party that the bond money is being claimed and a period of 10 days is allowed for the other party to dispute that application).

When is the landlord allowed to increase the rent?

A landlord is required to give a tenant written notice specifying the amount of the increase and the day on which it is to operate. This day must not be less than sixty (60) days after the notice is given, and not less than six (6) months after the tenant has moved in, or the date when the rent was last increased. For a tenancy for a fixed term, the landlord is not allowed to increase the rent during the term unless the agreement expressly provides that it can be increased. Then it can be increased in accordance with the above.

Is the tenant allowed to assign the lease or sublet the premises?

Yes, a tenant has the right to sublet or assign the premises, provided they first obtain the landlord's written consent. This consent cannot be unreasonably withheld. The tenant is responsible for finding someone to whom they wish to sublet or assign the premises. This is an arrangement between the tenant and the third party. The tenant remains responsible for the actions of the subtenant. The tenancy agreement cannot include a condition limiting or denying the tenant's right to sublet. The landlord must not make any charge for giving consent or considering an application for consent, exceeding the landlord's reasonable expenses.

How can a tenancy agreement be terminated?

A fixed term tenancy agreement is binding and cannot be terminated early unless both parties agree in writing or unless one or both parties are in breach of the agreement. If either party does not intend to renew the agreement, they should give notice in writing to the other party prior to the end of the term.

If the tenancy is a periodic tenancy, and the tenant is not in breach of the agreement, s/he must give the landlord at least 21 days notice in writing, or a period equivalent to one rental period (whichever is longer) specifying the day on which they will deliver up possession of the premises.

In the case of a periodic tenancy, the landlord may give 90 days' notice in writing where there is no breach of the agreement. The landlord can also give 60 days' notice where he or she requires possession of the premises for either:

* his or her own occupation or that of his or her immediate family;
* major renovations;
* demolition; or
* where a contract for sale of the premises has been signed and the contract specifies vacant possession.

When is the landlord permitted to enter the premises?

The landlord can enter the premises in the following circumstances, and only after providing the amount of notice indicated:

* in the case of emergency; (no notice is required)
* for the purpose of inspecting the premises, after giving the tenant between 7 and 14 days' notice in advance (but not more frequently than once every 4 weeks);
* at any reasonable hour for the purpose of collecting rent, where it is payable not more than once a week and where it is agreed that the rent be collected at the premises;
* for the purpose of carrying out necessary repairs and maintenance, at a reasonable hour and after giving the tenant at least 48 hours' written notice;
* at a reasonable hour during the last 28 days of a tenancy for the purpose of showing the premises to prospective tenants;
* at a reasonable hour for the purpose of showing the premises to prospective purchasers, on a reasonable number of occasions (1 open inspection per fortnight on at least 4 days notice / two inspections per week by appointment only on at least 24 hours notice) - the tenant has the right to remain on the premises during all inspections - including the open inspection;
* at any time with the consent of the tenant given immediately before the time of entry.

The tenant cannot refuse the landlord entry under any of the above circumstances, provided proper notice has been given. The landlord does not have any other right of entry other than those stated above.

On what grounds can a landlord evict a tenant?

A landlord can evict a tenant for a number of reasons, including:

(a) rent or part of the rent 14 days or more in arrears;
(b) a breach of the tenancy agreement;
(c) causing or permitting interference with the reasonable peace, comfort or privacy of other tenants or neighbours;
(d) damage to the premises;
(e) a fixed term tenancy has expired, or a tenant has given notice of intent to vacate and has not vacated the premises.

If the tenant is in breach of the agreement, and the breach is not remedied within the time specified in the landlord's notice, and the tenant does not vacate the premises the landlord can then apply to the Residential Tenancies Tribunal to obtain vacant possession of the premises. Only a bailiff at the direction of the Tribunal, enforcing an order of the Tribunal, can physically evict a tenant.



The foregoing summary is provided for information purposes only and is not to be considered legal or business advice. The information may not be complete, accurate or applicable for any particular situation and should not be relied upon.