The Act and Regulations provides consumer protection for tenants to ensure that landlords do not take advantage of their position as well as provide a range of remedies where landlords breach certain obligations. The main features of the Act are:
- The standard form of tenancy agreement which outlines the obligations of the tenants and landlords.
- A procedure is provided for where a landlord wants to increase the rent.
- Certain procedures must be followed where either the tenant or the landlord wishes to terminate.
- The NSW Civil and Administrative Tribunal (the Tribunal, or NCAT) have powers to assist resolving disputes including repairs, rent arrears, termination or bonds.
The Tenancy Agreement
If you have an agreement to pay rent to a landlord to occupy residential premises for the purpose of living there, it is likely that this agreement will be covered by the Act. The Regulations provides a standard form of agreement which requires all residential agreements to be in the standard form. Even where a landlord attempts to bypass the standard form of agreement by drafting their own, if in substance it is still a residential agreement, you’re protected by the Act (note that certain type of agreements are expressly excluded by the Act e.g. motels, nursing homes, etc.) A residential agreement may be made orally but you are entitled by law to have it in writing.
Section 19(2) of the Act prohibits certain terms to be included in the residential tenancy agreement:
- that the tenant must have the carpet professionally cleaned, or pay the cost of such cleaning, at the end of the tenancy,
- that the tenant must take out a specified, or any, form of insurance,
- exempting the landlord from liability for any act or omission by the landlord, their agent or any person acting on behalf them,
- that, if the tenant breaches the agreement, the tenant is liable to pay all or any part of the remaining rent under the agreement, increased rent, a penalty or liquidated damages,
- that, if the tenant does not breach the agreement, the rent is or may be reduced or the tenant is to be or may be paid a rebate of rent or other benefit.
In addition, the Regulations say:
“A residential tenancy agreement must not contain a term having the effect that the tenant must use the services of a specified person or business to carry out any of the tenant’s obligations under the agreement.”
The Condition Report
Landlords and agents must provide you with a condition report before signing the residential tenancy agreement. It is the notes of the premises as the landlord or agent sees it. You must then record your own notes of the condition of the premises and return a copy of it to the agent whilst keeping a copy for yourself. The report will allow you to identify defects that the landlord should repair and is a useful evidence if a dispute arises regarding damage at the end of the tenancy. Before moving in, it is also useful to take photographic evidence of the condition of the premises.
The bond is a form of payment that most landlords require from tenants as security from any losses that they may incur from any breach of the agreement by you. The amount of the bond must not exceed four weeks rent . It will then be deposited by the landlord or their agent with the Renting Services of the Department of Fair Trading. The Act also prohibits landlords from taking additional security such as guarantees from third parties not involved in the agreement.
The maximum amount of rent you are required to pay in advance is two weeks rent. If your landlord intends to increase the rent, they must give you a written notice of the increase; specify the amount of the new rent; and specify the date which the new rate will be payable (must be at least 60 days from the day of the notice). A landlord may only increase rent once every 12 months if your residential tenancy agreement is fixed for 2 years or more. If the agreement is for a fixed term less than 2 years, then rent increases will be provided for in the agreement. If your tenancy agreement is a periodic agreement, there is no limit as to the frequency of rent increases.
Remedies to a Breach
If a landlord has breached their terms of the tenancy agreement, don’t withhold rent to the landlord, instead apply for an order from the NCAT tribunal that you pay rent to the tribunal until the dispute is resolved. Some of the remedies available to you in circumstances of a breach include:
- Termination – This is usually the best remedy when ending a tenancy.
- Compensation – If you suffer a loss from the landlord’s breach (e.g. damaged household goods because the landlord refuses repair), you are generally entitled to be compensated for your loss.
- Rent Reduction – If as a result of the breach, your access or enjoyment of the residential premises is diminished (e.g. a broken stove) you may seek an order from NCAT to reduce your rent.
- Specific performance – NCAT may order your landlord to stop breaching the agreement and enforce their obligations.
Your rights under the Residential Tenancies Act 2010 (NSW):
- Landlords must disclose material facts to you before entering the residential tenancy agreement and not be misleading.
- Be notified if you are listed in the Residential Tenancy Database and have any wrongful listings removed by the NCAT tribunal.
- Be provided the contact details of the landlord or their agent.
- Be provided the tenancy agreement including the condition report.
- Your rental bond is deposited at Renting Services in the NSW Department of Fair Trading.
- The means of paying rent must be reasonably available to you.
- Be provided your rent records if you request it.
- A 60 day notice in writing of any rent increases.
- A copy of the water bill if you are required to pay water usage charges.
- Landlords must provide residential premises to you in a reasonable state of cleanliness and fit for habitation as well as a reasonable state of repair.
- Landlords must also provide locks to ensure that the residential premises are reasonably secure.
- You have a right of quiet enjoyment of the premises.
- Unless you provide consent, the landlord may only access the premises permitted by law such as emergencies, urgent repairs, health and safety
- concerns, the abandonment of the premises, or any orders by the NCAT tribunal.
- Compensation for urgent repairs paid by you.
- Have any goods left behind returned to you.
Your obligations under the Residential Tenancies Act 2010 (NSW):
- Complete the condition report and provide a copy to the landlord.
- Pay rental bond if it is a condition of the residential tenancy agreement.
- Pay rent in advance on or before the due date.
- Pay electricity, gas and oil charges, if the premises are separately metered.
- Pay water usage charges, if the premises are separately metered and fitted with water efficiency measures.
- Terminate the tenancy agreement through the procedures provided for under the Act.
- Remove your goods and leave the premises in the same condition as you found them.
- You must not do any of the following:
- Use the premises for any illegal purposes.
- Cause nuisance.
- Interfere with the comfort or privacy with any neighbor.
- Intentionally or negligently damage the residential premises.
- Exceed the permitted number of people to reside in the residential premises.
- Alter the residential premises without the landlord’s consent.
- Sublet or transfer the premises without the landlord’s consent.
- Change the locks unless permitted.
Should you require assistance, contact Lazarus Legal to start the conversation.