What types of rental accommodations are covered by legislation governing residential tenancies in New South Wales?
The Residential Tenancies Act 1987 covers private housing tenants and public housing tenants who are renting residential living accommodations.
What types of rental accommodations are NOT covered by the Act?
The Act does not cover the following accommodations:
* hotels and motels;
* hospitals and nursing homes;
* clubs;
* educational institutions;
* approved homes or hostels for aged people;
* holiday houses, flats, caravans that are ordinarily used for holiday purposes;
* people who rent for holiday purposes for less than two months
* controlled premises - more commonly known as protected tenants (these are covered under the Landlord and Tenant (Amendment) Act 1948);
* boarders and lodgers. However, the Residential Tenancies Act does not actually define what a boarder or a lodger is, and consequently, some residents of boarding houses and share houses have been able to successfully apply for status as a tenant;
* tenants who have made an agreement in good faith for the sale, purchase or mortgage of residential premises;
* tenants who are shareholders living in company title premises;
* residential tenancy agreements with the Department of Housing that are part of equity purchase agreements which give the tenant an option to buy;
* residents of caravan parks and manufactured home estates.
Is it necessary to have a written lease or rental agreement?
The agreement can be either written, oral, or partly written and partly oral.
What about a signed move-in move-out condition report?
A condition report is required to be part of the lease or rental agreement. Before a tenant moves in, the landlord must fill out his/her sections of the condition report and give 2 copies to the tenant. The tenant must fill in their sections at the time of moving in, make note of every detail on the form and return 1 fully completed copy to the landlord within 7 days of move-in. Repairs should be negotiated immediately with the landlord. At the end of the tenancy, both parties must sign the condition report in each other's presence.
How much can the landlord charge for a rental bond?
For unfurnished premises the maximum bond is the equivalent of the first 4 weeks rent. For furnished premises the maximum bond is the equivalent of the first 6 weeks rent if the rent is less than $250. There is no maximum bond for furnished premises if the rent is $250 or more per week. It is illegal for the landlord to ask for more bond money if the rent is increased. The bond money is set at the start of the tenancy and doesn't increase if the weekly rent increases.
Rental bonds are regulated by the Landlord and Tenant Rental Bonds Act 1977. The tenant must fill out a lodgement form which is signed by both the tenant and landlord (or agent) and the landlord must lodge the rental bond with the Rental Bond Board within 7 days. Bonds lodged with the Rental Bond Board earn interest, which is paid to the tenant at the end of the tenancy.
When the tenancy ends, the tenant must fill out a bond claim form, which must be signed by the tenant and landlord (or agent), and submit the form to Renting Services. Alternatively, the tenant can transfer the bond to a new tenancy. Disputes between the parties with respect to claims against the bond moneys will be heard by the Residential Tenancies Tribunal.
Landlords do not have to lodge bonds from boarders and lodgers and residents of caravan parks and manufactured home estates who own the dwellings in which they live. All other bonds must be lodged with the Rental Bond Board.
For bonds in share housing, the names of all the tenants who have paid bond should be on the bond form. Renting Services has a special form for changes in share housing.
What other fees can the landlord charge?
The landlord may ask for a refundable reservation fee while considering a tenant's application. This fee may not exceed 1 week's rent and must be refunded in full if the landlord rejects the tenant's application, or if the premises are let or occupied to someone else during the time of reservation. If the tenant takes up the tenancy, the reservation fee is applied to the rent.
If the rental is in a caravan park or manufactured home estate, the landlord may also require a refundable boom gate key deposit.
The landlord can also charge a maximum of $15 for the cost of preparing the agreement. Any extra costs to prepare the agreement must be covered by the landlord.
A landlord can also charge rent in advance - up to 2 weeks rent if the weekly rent is $300 or less, and up to 1 month's rent if the weekly rent is more than $300.
The landlord must give the tenant a written statement of the costs before entering the tenancy agreement.
The landlord CANNOT charge for property rates, stamp duty, penalty payments for late rent, water and electricity charges if the premises are not separately metered, bank deposit book fees, or for steam cleaning the carpets at the end of the tenancy. Further, a landlord is prohibited from requesting post-dated cheques and can be fined $500 for doing so.
When is the landlord allowed to increase the rent?
If the lease is for a fixed term, the landlord cannot increase the rent until after the lease term expires unless the agreement allows for a rental increase, in which case the landlord must give the tenant written notice according to the terms of the agreement. If the tenancy is open ended (month to month, week to week, etc), the landlord must give at least 60 days notice in writing before raising the rent. The Department of Housing does not have to give 60 days notice of a rent increase.
How can a lease be terminated?
If the lease is for a fixed term (such as 6 months, 1 year, etc), either party may terminate at the end of the fixed term by giving the other party written notice at least 14 days before the last day of the term. If no notice is given, the agreement automatically becomes a continuing agreement.
If the agreement is a continuing agreement, the landlord must give at least 60 days written notice and the tenant must give at least 21 days written notice to terminate the agreement. (To terminate a sub-letting agreement, the head tenant must comply with the landlord's requirements and the sub-tenant with the tenant's.)
Boarders and lodgers must be given, or must give, "reasonable notice", which is generally 1 rental period.
Can a tenant assign a lease or sublet the premises?
The tenant may assign the lease or sublet the rental premises with the landlord's consent, in writing. The landlord can refuse to give consent even though they may have no reasonable grounds for refusing. Any reasonable expenses in giving permission can be charged to the tenant.
Tenants do NOT require the landlord's permission to take in a lodger or boarder.
When is the landlord permitted to enter the premises?
The landlord, agent or any person authorised by the landlord may enter the premises only in the following circumstances:
(a) to carry out a general inspection of the premises if the tenant is given at least 7 days notice. There can be no more than 4 inspections in any 12 month period.
(b) to carry out necessary repairs if the tenant is given at least 2 days prior notice. For urgent repairs no notice is necessary.
(c) during the final 14 days of the tenancy, to show the premises to prospective tenants on a reasonable number of occasions if the tenant gets reasonable notice on each occasion.
(d) to show the premises to prospective buyers, on a reasonable number of occasions if the tenant gets reasonable notice on each occasion.
(e) if there is good reason for the landlord to believe that the premises have been abandoned by the tenant.
(f) in an emergency.
(g) if the Tribunal orders that access be allowed, or
(h) if the tenant agrees.
Unless the tenant agrees otherwise, access must be on weekdays between the hours of 8 am and 8 pm.
On what grounds can a landlord evict a tenant?
A landlord can evict a tenant (or a head tenant can evict a sub-tenant in share housing) for failure to pay the rent, violating the terms of the rental agreement, causing or permitting a nuisance, disturbing or permitting a disturbance of the privacy, peace and comfort of neighbours, using or permitting the premises to be used for any illegal purpose, causing serious damage to the premises, or causing injury to the landlord, the agent or anyone in a neighbouring property.
The landlord must first give proper notice as prescribed by the Act. If the tenant does not either move out or cure the problem in the time set out in the notice, the landlord can apply to the tribunal to terminate the agreement and obtain an order of possession. A landlord cannot seize a tenant's possessions to cover rent arrears, lock a tenant out, remove their personal belongings, or cut off utilities or essential services in an attempt to force a tenant out. The landlord cannot remove a tenant from the premises without an order of possession from the Residential Tenancies Tribunal. Only a sheriff can physically remove a tenant.
A landlord cannot retaliate against a tenant by eviction or otherwise for complaining to the landlord or to a government agency with respect to the condition of the premises, for organising or joining a tenants' association, or otherwise availing him/herself of any other lawful rights and remedies.
It is against the law under the Anti-Discrimination Act 1977 to discriminate in accommodation on the basis of race, sex, marital status, disability, sexual preference, transgender, or age.
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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