Discussion forums dedicated to such matters abound with horror stories experienced by tenants and their landlords alike—stories of false perceptions of their rights, and towering senses of enlightenment that prevent everyone involved from reaching win-win solutions. It’s important therefore that you know just what your rights as a tenant, and what your obligations and responsibilities as a landlord are before ever entering into arguments that ultimately end up in court, to the detriment of everyone involved.
Australia has extensive legislation in place to protect the two parties of a rental agreement, chiefly the Residential Tenancies Act 1997. This piece of law defines a ‘landlord’ as a property owner who allows another party to have the right to live in their property for a given period. Therefore, the people who are granted the right to live on someone else’s property are the ‘tenants’. Their mutual understanding of what each party is allowed to do and to what extent is outlined in a legally binding document called the ‘tenancy agreement’. This agreement is generally arrived at and signed before witnesses. It is the law in Australia that the landlord should always be made aware of the tenants living in their property—these tenants should also be named in the tenancy agreement.
Australian law acknowledges two types of tenancy agreements, irrespective of whether they’re known as a lease, a rental agreement, or a tenancy agreement. The two categories of tenancy agreements are fixed-term agreements and periodic agreements. A periodic lease grants the tenant/s the right to live on the premises on a month-to-month basis. This agreement can lapse at the end of any month, subject to either party’s wish to do so. A fixed-term agreement confers the right of residence for a pre-determined period. Violating the agreement (i.e. moving out before it lapsed or evicting a tenant in a fixed-term agreement) requires advance notice so that the other party can make the necessary arrangements.
Every step involved in viewing and renting a property is protected by the law. This protection arises even before you enter into a written agreement. When starting the process of booking viewings and going through the property in person, always remember to verify that the person you are meeting with has the legal right to show you around and to enter into a verbal agreement with you. Once you’ve selected your rental, the property owner will name a rental bond or security deposit amount that you will be expected to pay to the state or territory’s rental authority. The authority will hold on to this money for both you and the landlord’s sake. You will be refunded the money when you vacate the premises, provided that you don’t owe any back rent or haven’t damaged the property in a way that would justify a claim by the owner. It’s important to remember that a tenant entering into a rental agreement is only expected to pay four week’s rent and the bond in advance. Any other claims on your wallet for inspection fees or background checks should be considered an attempt at fraud.
However, every tenant has the right to receive something called an ‘entry condition report’ when entering into a rental agreement. The report will make notes of the condition the property is in when it is transferred to you, preventing anyone from using preexisting conditions to make false reports of damage in the future. The tenant can make any changes to the condition report to ensure that it is both accurate and complete before signing, dating, and returning it to the owner, usually within five business days of moving in. You will be given a copy of this report afterwards to keep safe until when you will be moving again.
In viewing and agreeing on the entry condition report, it is important to remember that you have a right to a safe and healthy living environment, whatever the dollar amount of your rent is. As such, the rental property itself should be safe and in good repair since Australian law holds the property owner responsible for ensuring that the property holds no hazards from weakened structures or issues such as black mould, asbestos, or other kinds of household pests. Tenants also have the right to not have their privacy violated by the property owner. Landlords however can make requests to inspect the property—at least seven days prior. It is up to the tenant to decide whether they want to be present for the inspection or not. It is against the law for landlords to enter into the residence without receiving the tenant’s approval beforehand, and tenants can seek legal recourse if they suspect that this has happened.
Despite what some landlords might tell you, tenants also have the right to end their rental agreement whenever they so desire. There are two valid reasons to do so. One is when a landlord is found to have violated their rental agreement. If this has happened, you are well within your rights to contact the rental rights body in your territory or state immediately. The agency will help mediate the situation on behalf of the two parties involved. Tenants can also end their tenancy agreement purely for personal reasons, provided that they are prepared to pay the relevant fees for doing so. These fees will depend on what was agreed upon in the rental agreement, which is why it’s important to read it carefully before signing. Some agreements make allowances for options to vacate the premises, despite being fixed-period rental agreements. Tenants also have a right to not be discriminated against based on their identity, inherent or otherwise. Such discrimination violates the human rights laws in the country, and you can seek out further support through the Australian Human Rights Commission.
As with most things, the rights of the tenant come with its own set of legal responsibilities. Paying the agreed-upon rental is of course par for the course—landlords can claim your security deposit or take you to court if you owe them rent upon vacating the premises. Landlords may also choose to evict you if they so choose. Maintaining the property in reasonable condition is also expected of tenants. This involves not allowing the premises into disrepair or deteriorate otherwise.
(Theruni M. Liyanage)