Tenancy Law in the Australian Capital Territory.

This legislation details the obligations of both the landlord and the tenant before, during and at the end of a tenancy.

It is important that both landlords and tenants understand this legislation to ensure both parties know their rights and how they are protected by this law.

Tenancy agreement

Although not a legal requirement to have a tenancy agreement it is strongly advised that you do have something in writing.

A Fixed term residential tenancy agreement is an agreement between a landlord and tenant for a specific period of time. A 12 month residential tenancy agreement is the most commonly used fixed term agreement.

A Periodic residential tenancy agreement is an agreement between a landlord and tenant which has no fixed period. A month to month residential tenancy agreement is an example of a periodic tenancy. Periodic leases automatically start at the end of a fixed term.

The contract will detail the terms and conditions of rental such as rent payment terms. Rent amounts can be negotiated between both parties. Receipts should be issued to the tenant for all rent payments unless this was paid via the bank.

The Residential Tenancies Act has standard terms and conditions that apply to all residential tenancies which can be found in Schedule 1 of the Act. As a member of Tenant Check Australia you can download this and many other useful tenancy related documents for free.

Before the agreement is signed the following must take place:

▪	the landlord or agent must give the tenant a copy of the proposed residential tenancy agreement
▪	the landlord or agent must inform the tenant of any terms or conditions which are not part of the standard tenancy conditions, as detailed in the act, and the manner in which they are inconsistent. Any inconsistent terms must be endorsed by the Residential Tenancies Tribunal.
▪	the tenant must be provided with a copy of the Consumer Affairs Bureau booklet “The Renting Book” You can download this from the Department of Fair Trading website. This booklet provides general advice to landlords, agents and tenants.
▪	the tenant must be given reasonable time to consider the agreement
▪	the tenant must provide the landlord or agent with their full name
▪	the owner must provide the tenant with their full name and address where the tenant can contact the owner
▪	if an agent signs the agreement on behalf of a property owner, the agent must provide the tenant with the agency’s full name, the fact that they are acting as an agent, and if the agent is a company, an employee (usually the property manager) who can be contacted in relation to the agreement
▪	the landlord or agent must give the tenant a copy of an energy efficiency rating statement (if any) for the habitable part of the premises.

If both parties still wish to pursue the tenancy then the agreement is signed, bond paid (if requested), 1 month’s advance rent paid and the tenant can move in.

A full inventory detailing the contents and condition of the property should also be signed by both parties.

Security deposits / rental bonds

It is not a requirement for landlords and agents to take a bond from a tenant however most people tend to request this as security in the event that the tenant fails to pay their rent, utility bills or causes damage to the property. The bond cannot be used to pay the tenants last months rent.

The bond cannot exceed four weeks rent and must be lodged with the Office of Rental Bonds within 2 weeks (4 weeks for managing agents).

Alternatively or in addition to the bond the landlord or agent can request that the tenant obtain either a guarantee or indemnity for the performance of any obligation under a residential tenancy agreement. However, whether a bond, guarantee or indemnity has been paid, the total cost to the tenant cannot exceed 4 weeks rent.

If a tenant pays the bond directly to the landlord or agent then they must be provided with a receipt to show that this has been paid. If the landlord or agent then fails to lodge this bond with the Office of Rental Bonds within the allowed time then the tenant can apply to the Residential Tenancies Tribunal for an order requiring that the bond is lodged. Fines of up to $10,000 can be imposed if this is not done.

A tenant can pay the bond directly to the Office of Rental Bonds however he must produce evidence of this to the landlord or agent before he can take possession of the property.

Payment of the bond can be made by cheque, money order, credit or debit card or in cash. All bonds must be accompanied by a completed Bond Lodgement Form (B-603) available from the Office of Rental Bonds. This form must contain the signatures of all interested parties as they will be required when a claim for refund is lodged. It should not include details of any children or any person who has not contributed to the bond.

At the end of the tenancy a full inspection of the property should be undertaken. If any problems are detected then the landlord must give the tenant reasonable time to rectify these. An application is then made to the Office of Rental Bonds requesting that the bond is refunded. This application form is again available from the Office of Rental Bonds.

Applications can be made before a tenancy has been completed if:

▪	the application is made jointly by the landlord and the tenant,
▪	the application is made by the landlord to be paid to the tenant,
▪	the application is made by the tenant to be paid by the landlord, or
▪	the Residential Tenancies Tribunal orders the full or part of the bond be paid to either party.

If the landlord or agent and tenant cannot agree on how a bond should be refunded, each party may lodge their own claim for the bond with the Office of Rental Bonds who will then contact the other party advising them that a claim has been lodged. The other party then has 10 days to respond. If not, the bond will be paid out according to the first claim form received by the Office of Rental Bonds.

If, however, the other party also lodges a claim that does not agree with the first claim received by the Office of Rental Bonds then any money that is not in dispute will be refunded and the disputed amount will remain with the office and the matter referred to the Residential Tenancy Tribunal (RTT) for a decision.

Landlord Responsibilities

During the tenancy the landlord is required to:

▪	provide the property, any furniture, fittings and appliances in a reasonable state of repair, cleanliness, and secure condition.
▪	undertake any repairs within 4 weeks of being notified unless otherwise agreed, unless the repairs are urgent, and arrange a suitable time with the tenant to carry out these repairs
▪	repair any faults present at the time the rental commenced, unless these were noted in the tenancy agreement
▪	repair any faults present at the time the rental commenced in order to make the property fit to live in
▪	pay the cost of the installation of any essential services, e.g. gas, water, electric
▪	pay the cost of any rates and taxes relating to the property
▪	pay the cost of any services where there is not a separate metering device
▪	pay the annual supply charge for water and sewerage
▪	pay any corporate or community fees
▪	pay any other costs for which the landlord agrees to be responsible for

If the landlord wishes to increase the rent then a minimum of 8 weeks notice must be given. The landlord cannot increase the rent within the first 12 months and then only once per year. A tenant can apply to the tribunal for a review of any rent increases or decreases.

Tenant Responsibilities

During the tenancy the tenant is required to:

▪	pay the rent on time
▪	pay the cost of any metered services for the period of tenancy, if applicable. (the landlord must arrange for readings at the start and the end of the tenancy and at regular intervals. The tenant must be given time to verify these readings. If the landlord fails to arrange for readings to be taken then the landlord is responsible for the payment of these services after the last reading)
▪	maintain and clean the property to a reasonable standard
▪	notify the landlord or agent or any problems within a reasonable time scale
▪	return the property to the same standard except for expected wear and tear

They should also not:

▪	damage the property either intentionally or negligently. If so, they are required to repair or replace the item(s) at their own expense and notify the landlord or agent of this
▪	make alterations to the property without the landlord’s consent
▪	use or allow the property to be used for illegal purposes
▪	cause or allow nuisance
▪	disrupt their neighbours
▪	leave the property vacant for more than 3 weeks without informing the landlord/agent
▪	sublet without written authorisation from the landlord

Urgent repairs during a tenancy

The tenant must notify the landlord as soon as possible if there are any repairs required that are urgent.

Urgent repairs are those which are required to correct serious faults or problems with the property that could be dangerous to the tenants and/or the property and its contents. These are classed as:

▪	a dangerous electrical fault
▪	a failure of gas, electricity or water supply to the property
▪	flooding or serious flood damage
▪	serious storm or fire damage
▪	a gas leak
▪	a burst water service
▪	a blocked or broken lavatory system
▪	a serious roof leak
▪	a failure or breakdown of any service on the property essential for hot water, cooking, heating or laundering
▪	the failure of a refrigerator supplied with the property
▪	a fault or damage that causes the residential property to be unsafe or insecure
▪	a serious fault in any door, staircase, lift or other common area which inhibits or unduly inconveniences the tenant in gaining access to and use of the property
▪	a fault or damage likely to cause injury to person or property.

If a tenant cannot make contact with the landlord or the landlord fails to carry out these repairs then the tenant can arrange for the repairs to be undertaken. However the tenant can only authorise urgent repairs with a maximum value equivalent to 5% of the total rent of the property over a year. The tenant must also contact a qualified person nominated by the landlord in the rental agreement. If no one has been nominated or they are unavailable then the tenant can choose a qualified tradesperson who should bill the landlord directly. If the tenant fails to do this then they will be responsible for any costs.

Locks for the property may be changed providing that the other party has consented. The person who changes the locks is responsible for the cost unless an agreement has been reached to share the cost. In case of an emergency the locks can be changed without the other party’s consent. A copy of the new key(s) must be provided to the other party.

Accessing the property during a tenancy

The landlord can inspect the property during the first and last month of the tenancy and twice more within a 12 month period. The landlord must give at least 1 weeks written notice and both parties must agree to a suitable date and time.

The landlord cannot have access on a Sunday, on public holidays or before 8am and after 6pm unless the tenant has given their consent or the landlord needs to carry out urgent repairs or it is an emergency.

If the landlord believes that the tenant(s) have vacated the property without giving notice he can enter the property if he has reasonable grounds for believing that the property has been abandoned. If he does not have reasonable grounds and the property has not been abandoned then severe penalties can be imposed.

The tenant must allow the landlord reasonable access to the property in the last 3 weeks of the tenancy to show the property to prospective new tenants.

If the owner is selling the property, the tenant must again allow reasonable access to the property for viewings but only if the owner has a genuine intention to sell and he has previously informed the tenant of this in writing. In both cases at least 24 hours notice must be given.

Ending a tenancy

A residential tenancy agreement can only be ended in one of the following situations:

▪	a fixed term residential tenancy agreement ends and the tenant vacates the property on or after the date of expiration
▪	the tenant gives the landlord or agent notice of their intention to terminate the tenancy and in doing so then vacates the property in accordance with that notice
▪	the Residential Tenancies Tribunal terminates the agreement
▪	the Residential Tenancies Tribunal makes a Termination and Possession Order
▪	the tenant abandons the property
▪	a person other than the landlord or agent may terminate the agreement if he or she is a successor in title to the landlord
▪	the tenant and the landlord or agent agree in writing to terminate the agreement
▪	where the tenant and the landlord are the same person
▪	where the landlord or tenant repudiates the agreement and the other party accepts that repudiation and the property is vacated.

Notice by landlord

A landlord can terminate a residential tenancy agreement via the Residential Tenancies Tribunal or with the agreement of the tenant.

A landlord can issue the tenant with notice to vacate if:

▪	the tenant has failed to make rent payments:
▪	the tenant has breached any of the terms and conditions of the rental contract other than non-payment of rent
▪	the property is not fit to live in or will not be available due to government action
▪	the residential tenancy is periodic and the landlord has grounds specified in relation to periodic tenancies

If a landlord has grounds to terminate the agreement they normally must serve written “Notice to Remedy”, allowing the tenant reasonable time to remedy the problem before they serve a written “Notice to Vacate”.

For non-rent payments a Notice to Remedy can be served on or after the 8th day the rent was due. The tenant must be allowed 1 week to pay the outstanding rent. If payment is not received then the landlord can issue a Notice to Vacate giving the tenant 2 weeks to vacate.

For other breaches of the terms and conditions a Notice to Remedy can be served and the tenant must be allowed 2 weeks to remedy the breach. If the problem is not resolved within 2 weeks then the landlord can issue a Notice to Vacate giving the tenant 2 weeks to vacate.

Please note that if the tenant has previously been served 2 Notices to Remedy it is not a requirement to issue a third. A landlord can automatically issue a Notice to Vacate on the third incident.

If the property is not fit to live in or not available then the landlord can terminate the agreement by giving the tenant 1 week’s notice. If the agreement continues but the tenant finds temporary alternative accommodation then the tenant is not liable to pay rent for the period he is not in the property.

Since 2005 a landlord can terminate the agreement at 4 weeks written notice if the landlord is posted away from Canberra.

The landlord can give a Notice to Vacate the property without any reasons. 26 weeks notice must be provided to the tenant. In the event that the agreement is a fixed term tenancy then the 26 weeks must not expire during the fixed term period.

If the tenancy is a periodic tenancy the landlord can only issue a Notice to Vacate if

If the tenant fails to vacate the property and remains in the property after the due date of vacation specified on any Notice to Vacate then the landlord must apply for a Termination and Possession Order from the tribunal. The tenant may also be liable for any additional costs or damages to the landlord and may be required to pay extra rent payments.

Notice by tenant

A tenant can terminate a residential tenancy agreement by giving appropriate written notice and then vacates in accordance with that notice, via the Residential Tenancies Tribunal or with the agreement of the landlord.

A tenant can end a residential tenancy agreement if

▪	the landlord has breached the terms and conditions of the contract
▪	the property is not fit to live in or will not be available due to government action
▪	a fixed term residential tenancy has ended
▪	a residential tenancy agreement is periodic

If the landlord has breached the terms and conditions a Notice to Remedy can be served and the landlord must be allowed 2 weeks to remedy the breach. If the problem is not resolved within 2 weeks then the tenant can issue a Notice of Intention to Vacate giving the landlord 2 weeks notice.

If the property is not fit to live in or not available then the tenant can terminate the agreement by giving the landlord 2 days notice. If the agreement continues but the tenant finds temporary alternative accommodation then the tenant is not liable to pay rent for the period he is not in the property.

If the tenancy is a periodic tenancy the tenant can end the agreement by giving 3 weeks notice. If notice is not served and/or the tenant leaves the property then the landlord is entitled to claim compensation from the tenant, up to 3 weeks rent.

Termination by the Residential Tenancies Tribunal

Either party can make an application to the Residential Tenancies Tribunal to terminate the agreement. Common reasons for applying include non-payment of rent, tenant failing to vacate or a breach of the terms and conditions by either party.

If a tenant has abandoned the property during a tenancy then the landlord can also apply to the tribunal for compensation from the tenant. The landlord is entitled to a maximum of 25 weeks rent or the value of rent for the unexpired portion of the agreement, whichever is the lowest.

The Residential Tenancies Tribunal is an independent body, which has exclusive jurisdiction to hear and determine all matters arising from private and public tenancy agreements.

Application forms and further information can be obtained from the ACT Law Courts and Tribunals website.

Eviction

Only the Registrar of the Tribunal can issue a warrant of eviction unless the tenant has been served a Termination and Possession Order which states that the order automatically operates as a warrant of eviction.

The police are required to give the tenant 2 days notice, unless there are exceptional circumstances, before enforcing their powers.

This is a brief guide to Australian Law on renting your property within the Capital Territory. For a full copy of the The Residential Tenancies Act 1997 please click here.