As a new tenant in New South Wales, you have rights under the Residential Tenancies Act 2010 and Residential Tenancies Act Regulation 2010. Wondering what that means for you? You’ve come to the right place!
This blog post explains NSW laws about starting a tenancy. It covers information about different types of tenancy agreements, additional terms that are and are not permitted and explains how tenancy agreements work in share housing. Also listed is a breakdown of rent and fees that the landlord/agent can reasonably charge you in advance of starting a tenancy and guidance on how to handle disputes and complaints.
The residential tenancy agreement
The residential tenancy agreement is a contract. It contains standard ‘terms’ that are the tenant’s and landlord’s rights and obligations.
Tenancy agreements are usually in written form. They can also be oral (e.g. a conversation with the landlord), or partly written and partly oral. All such agreements must follow the Residential Tenancies Act 2010.
A landlord should provide you with the tenancy agreement in writing. If not, then during the first 6 months of the tenancy, they cannot increase the rent and cannot end the tenancy without a legally specified reason.
There are two types of agreement:
- fixed term – for a specified period (e.g. 6 months)
- periodic – no fixed term is specified.
Additional terms of the agreement
The landlord is able to include additional terms in the standard tenancy agreement if:
- both you and the landlord agree to them
- they do not conflict with the Residential Tenancies Act 2010
- or any other laws they do not conflict with the terms of the standard agreement.
Tenancy agreements in share housing
If you rent part of the premises from another tenant, it is in your interest to have a written tenancy agreement with them. In this scenario, they take on the role of head tenant and you are a sub-tenant. The head tenant must have written consent from their landlord to sub-let to another person.
Information that a landlord or agent should provide
Before signing a tenancy agreement
If a landlord decides to enter into a tenancy agreement with you, they (or their agent) must not knowingly hide any of the following ‘material facts’ from you:
- the premises have been subject to serious flooding or bushfire in the last 5 years
- the premises have significant health/safety risks that are not apparent on inspection
- the premises have been the scene of a serious violent crime in the last 5 years
- council waste services will be different from others in the council area
- you cannot get a free residential parking permit (in an area where only paid parking is available)
- the premises have a driveway or walkway that others can legally use.
The landlord (or their agent, if they are aware) must also tell you if either of the following apply:
- they propose to sell the premises (if they have prepared a contract for sale of the premises)
- a mortgagee has started court proceedings to enforce a mortgage over the premises.
On signing a tenancy agreement
The landlord/agent must give you a copy of the NSW Fair Trading New Tenant Checklist. If you are renting in a strata scheme, they must also give you a copy of the strata by-laws within 7 days.
Contact details of landlord/agent
Before or when you sign the tenancy agreement, the landlord/agent must either give you these contact details in writing, or include them in the tenancy agreement:
- the name, phone number and business address of the landlord’s agent (if any) and the name and
phone number or other contact details of the landlord
- if there is no agent, the business or residential address and phone number of the landlord
- if the landlord is a corporation, the name and business address of the corporation.
Costs at the start
A landlord/agent can ask you to pay only:
- a holding fee
- a bond
- rent in advance.
Be sure to get a detailed receipt for any payments you make, and don’t forget to keep them somewhere you’ll be able to find them at a later date.
Don’t qualify for our BondSure rental bond loans? The Rentstart loan scheme helps disadvantaged tenants in the private rental market with money for bond and rent in advance. Apply through Housing NSW (phone 1300 468 746).
A landlord/agent may ask you to pay a holding fee on approval of your application for a tenancy, but note that the most they can ask for is one week’s rent.
The landlord/agent can hold only one fee at a time. On receiving a holding fee, they can’t then enter into an agreement with another prospective tenant for seven days (or longer, if you both agree).
When the tenancy agreement is signed, the fee will go toward the rent from the first day of your tenancy agreement.
The landlord/agent must refund the fee if:
- they decline to enter into the tenancy agreement, or
- you refuse to enter into the tenancy agreement because the landlord/agent made any false or
misleading statement(s), or they failed to tell you any ‘material facts’ (as listed above).
If you decide not to enter into the tenancy agreement for any other reason, the landlord/agent can keep the fee.
Rent in advance
Neither the tenancy agreement nor the landlord/agent can require you to pay more than 2 weeks rent in advance (you may, however, choose to pay more). They can’t demand further rent until it falls due, nor can they ask for a post-dated cheque.
The bond is the money you pay at the start of the tenancy as security in case you do not follow the terms of the tenancy agreement.
- A bond must be in the form of money only
- A landlord/agent must take only one bond for a tenancy agreement
- A bond must be no more than the equivalent of four weeks’ rent
- A landlord/agent must not require that you pay a bond before you sign a tenancy agreement
- A bond can be paid in instalments if the landlord/agent allows.
The condition report
The landlord/agent must give you a condition report when you move in. The report describes the condition of the premises in detail and must be filled in by both you and the landlord/agent at the start of the tenancy, and again at the end. You must be given two copies – one to return to them and one for you to keep. Ensure the report is completed and returned within seven days.
If the landlord/agent does not give you a condition report, write a detailed report on the condition of the premises yourself and have a witness sign and date it.
In both cases, it’s wise to take date-stamped pictures to back up the report.
Completing the report
Inspect the premises and complete the report carefully. The report will be used as evidence if the landlord/agent disputes the return of your bond at the end of the tenancy and any photos will come in handy at this stage too (as above).
If the landlord undertakes to do cleaning, repairs, additions or other work during the tenancy, write details in the section ‘Landlord’s promise to undertake work’.
Keys for each tenant
The landlord/agent must give each tenant named in the tenancy agreement a free copy of the keys (or other opening devices) for the premises and for common property that the tenants are entitled to access.
Disputes and complaints
You can apply to the Tribunal for order/s that:
- the landlord prepares and enters into a written tenancy agreement
- a term of the tenancy agreement is invalid because it is inconsistent with the law
- a holding fee is refunded to you (whether or not you enter into a tenancy agreement)
- the condition report is amended.
You can complain to NSW Fair Trading if a landlord/agent, for example:
- charges extra (other than holding fee, rent in advance and bond) before you enter into an agreement, or for preparing a written agreement
- withholds any ‘material facts’, proposed sale or mortgagee action, or makes any false/misleading statement before you enter into an agreement
- includes prohibited terms in the tenancy agreement.
- asks for a bond of more than 4 weeks rent.
This blog post is intended as a guide to the law and should not be used as a substitute for legal advice. It applies to people who live in, or are affected by, the law as it applies in New South Wales, Australia.