Tenancy Laws in South Australia, regulated by the Residential Tenancies Act 1995.

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

There are two types of residential tenancy agreements, a Fixed Term Residential Tenancy Agreement or a Periodic Agreement.

A fixed term residential tenancy is an agreement between a landlord and a tenant for a specific period of time, usually for six months or one year.

A periodic agreement or tenancy is for a recurring period without a fixed term. This can continue for as long as necessary until one party decides to end it.

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.
▪	the tenant must be provided with a copy of an Information Booklet detailing the tenants obligations. You can download this from the Tenancies Branch of the Office of Consumer and Business Affairs website.
▪	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

If both parties still wish to pursue the tenancy then the agreement is signed, bond paid (if requested), 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.

The landlord is responsible for any costs involved in the preparation of the rental agreement.

Security deposits / rental bonds

A security deposit or bond can be requested from the tenant to cover any damages or breakages.

The maximum amount that can be requested is:

▪	4 weeks rent if the weekly rent is less than $250
▪	6 weeks rent if the weekly rent is over $250

Once the tenant has paid this bond, the landlord must provide a receipt within 48 hours to the tenant. The receipt must state the tenant’s name, amount and date paid and the address of the property. A Lodgement of Security Bond form must also be completed. This can be obtained from the Office of Consumer and Business Affairs.

The bond money must then be lodged with the Tenancies Branch of the Office of Consumer and Business Affairs within 7 days. Liscensed agents have 30 days. Once a bond has been lodged a landlord can ask the tenant to increase this bond but only if 2 years have elapsed since the bond was lodged and the tenant has been given 60 days notice.

On receipt of the bond and lodgement form, the tenant will be provided with a receipt and bond number. If a tenant does not receive this number within a reasonable time then it is possible that the landlord or agent has failed to lodge the bond. The tenant should then contact the Office of Consumer and Business Affairs immediately.

At the end of the tenancy a full inspection of the property should be undertaken and the keys returned to the landlord. Both parties should agree on how the bond should be repaid and if in agreement both should sign the Bond Refund form and return it to the Office of Consumer and Business Affairs for a refund.

If there is a dispute then either party can make an application for a refund without the other party’s signature. The other party is then given 10 days to dispute the claim. If the claim is not disputed then the bond will be paid to the applicant. If disputed, the matter is referred to Tenancy Advice for conciliation and if that fails the matter is then referred to the Residential Tenancies Tribunal.

In addition to requesting a bond the landlord can also request a payment of rent in advance of 2 weeks rent.

Landlord Responsibilities

During the tenancy the landlord is required to:

▪	provide and maintain the property in a reasonable state of repair and cleanliness
▪	comply with all statutory requirements affecting the premises
▪	maintain all locks or security devices to ensure the property is secure
▪	install smoke alarms
▪	allow the tenant quiet enjoyment of the property
▪	provide receipts for any moneys received from the tenant
▪	keep records of all rent payments
▪	pay any council taxes and rates
▪	pay any charges. However water supply rates and charges shall be paid for as agreed by the landlord and tenant. Where there is no agreement the landlord must pay the supply charge and for 136 kilolitres per financial year. Any amount over this limit must be paid by the tenant.

An increase of the rent can only occur if specified in the agreement. The agreement must state the amount of the increase or the method for calculating the increase. It cannot be increased within 6 months of the start of the tenancy or date of last increase. 60 days notice must be given.

Tenant Responsibilities

During the tenancy the tenant is required to:

▪	keep the property reasonably clean
▪	pay the rent on time
▪	notify the landlord or agent of any problems or damages within a reasonable time scale
▪	return the property to the same standard except for reasonable wear and tear

They should also not:

▪	use the premises for any illegal purpose
▪	cause or allow nuisance
▪	disrupt their neighbours
▪	not fix anything to the premises or carry out any renovation, alteration or addition without the landlord’s written consent.
▪	intentionally or negligently cause or allow any damage to the property

Urgent repairs during a tenancy

The tenant must notify the landlord as soon as possible if there are any repairs required, ideally in writing so there is evidence that the landlord has been notified. The landlord cannot be held responsible for carrying out repairs until they have been notified. The landlord must then be given reasonable time to carry out these repairs.

If the landlord fails to carry out these repairs or refuses to do so then the tenant can have the work done by a licensed tradesperson. The tenant should obtain a written report from the tradesperson stating the apparent cause of the problem and how it has been rectified. The tenant will need to pay the tradesperson but the landlord is required to reimburse this. If the landlord fails to do so, the tenant can make an application to the Residential Tenancies Tribunal for assistance. The tenant cannot withhold the cost from the rent payment. The tenant can also apply to the Tribunal if the landlord has failed to carry out the repairs and the tenant cannot afford to pay for these repairs himself.

In the event that the repairs are serious then the tenant can apply for the tenancy to be terminated. The tenant may also be entitled to compensation from the landlord if the landlord has failed to carry out repairs and the tenant has been without certain facilities for a period of time.
If the tenant, or a guest of a tenant, has caused the damage then the tenant is responsible for the cost.

Locks for the property may only be changed providing that the other party has consented. In the case of a real emergency, such as a break-in resulting in damaged locks and the other party cannot be contacted, then 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. It is the landlords responsibility to maintain any locks or other security devices to ensure that the property remains secure.

Accessing the property during a tenancy

The landlord or agent can inspect the property no more than once every 4 weeks. At least 7 days notice must be given and a reasonable time and day should be specified in the notice.

The landlord can access the property to collect rent payments but no more than once a week and reasonable notice should be given.

Incase of any emergency such as fire, flooding, burglary etc, the landlord or agent can enter the property at any time.

The landlord can enter the property to carry our any repairs or maintenance at a reasonable time of day. At least 48 hours notice must be given.

Within the last 28 days of the existing tenancy then the landlord should be allowed access to show the property to prospective tenants or buyers. Reasonable notice must be given.

If the tenant consents, the landlord can enter at any time for any other purpose.

Ending a tenancy

A fixed term tenancy is binding and cannot be terminated until the end of the contract except if there has been a breach of the terms and conditions or both parties agree. At the end of the fixed term the tenant is required to vacate the property. No notice is needed to end a fixed term agreement although, out of respect, both parties should maybe discuss their intentions about a month before. If the tenant does not vacate and the landlord does not lodge an application for possession then the tenancy will continue on a periodic tenancy. Also both parties can agree at the end of the fixed term tenancy that the tenancy will continue on a periodic tenancy.

In the event that either party does wish to end a tenancy early adequate notice must be served on the other party.

Notice by landlord

In the event that the tenant is on a fixed term agreement and has failed to make rent payments a landlord can serve a notice of termination known as a “Form 2 – Notice by landlord to tenant to remedy breach of agreement – notice of termination”. This form is available from the Office of Consumer and Business Affairs. The tenant must be 14 days in arrears before this notice can be served so it cannot be issued until the 15th day. The tenant must be allowed a minimum of 7 clear days from receiving the notice to clear the debt. The notice must state a date to vacate if the rent is not paid which should be any date after the number of days given in which to pay the rent.

For any other breach the tenant must be given at least 7 days to rectify the problem. If the tenant fails to do so then at least a further 7 clear days notice to vacate must be given.

Clear days are defined as the days after the tenant has received the notice. The notice cen be handed personally or by post. For example if handed to a tenant on a Wednesday the first day to count is Thursday. If posted on a Wednesday then the first date to count is Friday. Public holidays should also be taken into consideration.

If the tenancy is a periodic tenancy, and there has been no breach, then the landlord can give 90 days notice to the tenant to vacate. A “Form 3 – Notice of termination by landlord for a periodic tenancy” must be used.

A landlord can also give 60 days notice to a tenant on a periodic tenancy if the landlord requires the property for his own use or that of his immediate family, the property requires major renovations or demolition or the property has been sold.

In the event that the landlord believes that the tenant is intentionally or recklessly causing, or is likely to cause, serious damage to the property or injury to the landlord or neighbours then the landlord can apply to the Residential Tenancies Tribunal for an order terminating the tenancy.

If the tenant fails to vacate as required by any notice then the landlord must apply to the Tribunal for an order of vacant posession and the landlord will be entitled to any rent until the day the tenant vacates.

Notice by tenant

In the event that the tenant is on a fixed term agreement and the landlord has breached the agreement then the tenant may give 7 days clear notice to the landlord to remedy the breach using form “Notice by tenant to landlord to remedy breach of agreement”. If the breach is not remedied then this notice could also terminate the tenancy.

If the tenant leaves before the end of a fixed term period then the landlord may claim for loss of rent until the property is re-let. The landlord may also be entitled to compensation for re-letting fees charged by the agent or additional advertising costs. The landlord should take reasonable steps to re-let the property as soon as possible.

If the tenancy has become a periodic tenancy and the tenant wishes to vacate at least 21 days notice or a period equivalent to one rental period (whichever is longer) must be given in writing to the landlord. This notice should state the date that the tenant will vacate the property. A “Notice of termination by tenant for a periodic tenancy” form must be used. If a landlord has given a tenant 60 or 90 days notice on a periodic tenancy but the tenant decides to vacate earlier, the tenant must still give 21 days notice in writing.

Termination by the Residential Tenancies Tribunal

The Residential Tenancies Tribunal is an independent judicial body which deals with dispute relating to tenancies.

Either party can make an application to the tribunal for a termination. A hearing will then take place where each party can provide evidence. The Tribunal will then make any orders and explain why those orders were made.

Application forms and further information can be obtained from the Residential Tenancies Tribunal (Office of Consumer and Business Affairs) website.

Eviction

Only the Tribunal can authorise an eviction. The landlord should apply to the Tribunal and if granted then the order is enforced by a bailiff as soon as possible.

This is a brief guide to Tenancy Laws in South Australia. For a full copy of the Residential Tenancies Act 1995 (RTA) please click here.