What type of rental accommodations are covered by the legislation governing residential tenancies in Australian Capital Territory?
The Residential Tenancies Act 1997 covers private and public residential tenancies, i.e. any arrangement whereby a tenant rents, as a residence, a house, flat, rental unit or room from a private landlord, a community organisation or the government.
What rental accommodations are NOT covered by the Act?
The Act does not apply to persons who live in:
* a caravan or mobile home in a caravan / mobile home park;
* a hotel or motel;
* a club;
* property located on the campus of an educational institution;
* a retirement village; or
* a nursing home or hostel for aged or disabled persons.
As well, the following residential tenancy agreements are not covered by the Act:
* agreements in conjunction with the sale or purchase of a property;
* agreements where the property is owned by a company and the tenant has a controlling interest in that company;
* agreements where the tenant is a boarder or lodger; and
* agreements for the right to occupy the property for a holiday.
Is it necessary to have a written tenancy agreement under the Act?
The tenancy agreement can be written, oral, or a combination of both. It is advisable, however, that all tenancy agreements be in writing to avoid any confusion that may arise as it can be difficult to prove what information was included as part of an oral agreement.
What about a signed property condition report?
A condition of premises report must be filled out whenever a tenancy begins. The report should be true and accurate, as this could affect the tenant's entitlement to claim a refund for the full bond. The landlord / agent must complete 3 copies of the report and provide them to the tenant within 1 day of the tenant taking possession of the premises. If the tenant agrees with the report, s/he should sign the form. Otherwise, the tenant should note on the report anything that s/he disagrees with. The tenant should return 2 copies of the report to the landlord within 7 working days. The landlord must then lodge 1 copy of the report with the Office of Rental Bonds.
If a tenant does not receive a condition report, he or she should contact the landlord and the ORB, who can inform a tenant whether a report has been lodged. If no condition report has been completed, then the tenant should complete a report and lodge it with the ORB.
How much advance rent can the landlord charge?
The landlord cannot charge more than 1 calendar month's rent in advance.
How much can the landlord charge for a rental bond?
The landlord can require that a tenant pay a rental bond, the amount of which cannot exceed the equivalent of 4 weeks rent. As an alternative or, in addition to the bond, the landlord can request that the tenant obtain either a guarantee, indemnity or insurance for the performance of any of his / her obligations under the tenancy agreement. However, whether a bond, guarantee, indemnity or insurance has been paid, the total cost to the tenant cannot exceed 4 weeks rent.
The tenant can pay the bond directly to the landlord. If a private owner, the landlord must lodge the bond with the Office of Rental Bonds (ORB) within 10 WORKING days of receiving the bond. If paid to a managing agent, the agent must lodge the bond within 30 CALENDAR days from receiving the bond. Alternatively, the tenant can make arrangements with the landlord for the tenant to lodge the bond, in which case the tenant is not entitled to possession of the premises until s/he produces evidence that the bond has been paid.
The bond cannot be increased during the life of a tenancy. If a tenancy terminates the tenancy, the current bond is disbursed as a result of the termination. If the property is then re-let at an increased rental, the amount of the bond can be increased.
The bond can be used to pay for damage caused by a tenant (other than ordinary wear and tear), any outstanding rent owned, the cost of replacing fuel used by the tenant which was supplied by the landlord, and any legal costs incurred by the landlord for assigning or transferring a tenant's rights under the tenancy agreement. Either party can make an application to the ORB for the release of a bond at the end of the tenancy.
When is the landlord allowed to increase the rent?
Rent cannot be increased in the first year of a tenancy and may only be increased once each year after that unless the Tribunal has endorsed a term saying otherwise. For any rental increase to be effective the landlord must give the tenant 8 weeks’ notice in writing of the rental increase.
Is the tenant allowed to assign the lease or sublet the premises?
A tenant cannot assign the lease or sublet the premises to another person without the written consent of the landlord.
How can a tenancy agreement be terminated?
At the end of a fixed term tenancy agreement, the tenant can terminate the tenancy by giving the landlord 3 weeks written notice. However, at the end of the fixed term period, if a tenant does not terminate the fixed term tenancy agreement, the tenancy will automatically become a periodic tenancy. If the tenancy is a periodic tenancy (for instance, month to month), the tenant can terminate at any time by giving the landlord 3 weeks written notice.
The landlord can give a notice to vacate the property for no specified cause, in which case the landlord must give 26 weeks notice to the tenant to vacate the property. If the tenancy is for a fixed term, the 26 weeks must not expire during the fixed term period. The tenant may vacate the property within the last 2 weeks of the notice expiring, provided that the tenant gives 4 days notice of an intention to vacate.
The landlord can terminate a periodic tenancy by issuing a notice to vacate only if:
* the owner or an immediate relative of the owner (or a person who is not an immediate relative, but who has a close family or personal relationship with the owner) intends to live in the property (4 weeks notice);
* the owner intends to sell the property (8 weeks notice);
* the owner intends to reconstruct, renovate or make major repairs to the premises, which cannot reasonably be carried out with the tenant living there (12 weeks notice).
If a notice to vacate has been given on any of the above grounds, the tenant may vacate the property within the last 2 weeks of the notice expiring, provided that the tenant gives 4 days notice of an intention to vacate.
When is the landlord permitted to enter the premises?
The landlord cannot enter the premises without the tenant's consent, except in the case of emergencies, or if the landlord has reasonable grounds for believing that the property has been abandoned. The landlord is allowed to inspect the premises during the first and last month of the tenancy agreement, and during the tenancy but no more than twice during a 12-month period. The landlord must first give the tenant 7 days advance written notice.
The landlord shall not have access to the premises on Sundays, on public holidays, or before 8:00 am or after 6:00 pm, unless the tenant consents, or unless access is necessary to carry out urgent repairs.
The landlord can enter to show the property to prospective tenants or purchasers, on 24 hours notice. A showing to prospective tenants can only be scheduled during the last 21 days of the tenancy. The tenant is only required to give access to prospective purchasers if the property owner has a genuine intention to sell the property and has previously informed the tenant in writing of his/her intention to do so.
On what grounds can a landlord evict a tenant?
A landlord can terminate the tenancy by serving the tenant with a notice to vacate if (i) the tenant has failed to pay rent; (ii) the tenant has breached any term or condition of the tenancy agreement, other than nonpayment of rent; (iii) the property is not fit for habitation or the property will not be available due to government action; or (iv) the tenancy agreement is periodic. The landlord may also issue a notice without cause.
If the tenant does not vacate the property within the period specified in the notice to vacate, the landlord must apply to the Tribunal for a termination and possession order before the tenant can be evicted. Only the Residential Tenancies Tribunal can order an eviction. The landlord can also seek a termination and possession order if (i) the landlord would suffer significant hardship if the tenancy were to continue; (ii) the landlord, his/her family or property has suffered or is likely to suffer damage or injury by the tenant; (iii) the tenancy agreement was part of a contract of employment and the tenant has ceased to be employed by the landlord; (iv) the tenant made a false or misleading statement to induce the landlord to enter into the agreement; or (v) the tenant has assigned or sublet the premises without the landlord's written consent.
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.
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