Tenants' Rights (ACT)

The Residential Tenancies Act 1997 (RTA), is the legislation that applies to residential tenancies in the Australian Capital Territory (ACT).  The ACT Civil and Administrative Tribunal (ACAT) is the body that hears disputes about tenancies and can make orders about residential tenancy agreements. This article outlines tenants’ rights and responsibilities in the ACT.

Most residential leases are contained in writing and are in a standard form. It is possible in the ACT for terms to be added or changed in a lease by way of mutual agreement between the landlord and the tenant. However, the law in the ACT requires that ACAT endorse these additional terms. It should be noted that although ACAT can endorse terms that are different from those contained in the standard form lease, it cannot endorse terms that are inconsistent with the RTA.

Tenants’ rights at the start of a residential tenancy agreement

Tenants have particular rights and responsibilities at the beginning of a tenancy. These are summarized below.

Landlord’s obligations

A landlord is required to provide a tenant with the property in a reasonable state at the commencement of a residential tenancy agreement. This includes that the property must be fit for habitation, be reasonably clean, in a reasonable state of repair and reasonably secure.

Bonds and tenants’ rights

When a tenant enters into a residential tenancy agreement with a landlord, the landlord may ask them to pay a bond. This is a form of security for the landlord, in case the tenant causes damage to the property or fails to pay their rent. There is no requirement that a landlord ask for a bond. However, if a bond is requested, it cannot be for any more than four weeks rent.

Usually, a bond is paid directly by the tenant to the landlord or their agent. The landlord or agent then must lodge it with the Office of Rental Bonds.

Tenants’ rights during a residential tenancy agreement

Tenants also have rights and obligations during a tenancy.

Landlord entering the property

During a tenancy, the landlord must give notice to the tenant before they, or someone else they have authorised, enters the premises. The amount of notice required is dependent on the purpose for entering the premises. For example, the required notice for a routine inspection is seven days.

Repairs and maintenance of the property

During a tenancy, the landlord must maintain the property in a reasonable state of repair. The condition of the property at the beginning of the lease will be taken into account when considering what is a reasonable state of repair.

A tenant also has obligations in relation to the maintenance of the property. During the tenancy a tenant is required to:

• Take care not to damage property;
• Notify the landlord of damage that occurs to the property;
• Take reasonable care of the property.

The landlord must repair the property where required. However, if the damage requiring repair was the result of wilful damage by the tenant, the landlord is not required to repair the property. Urgent repairs must be carried out as soon as is necessary. Non-urgent repairs must be carried out within four weeks of the tenant notifying the landlord of the need for repairs.

Tenants’ rights when ending a residential tenancy agreement

There are a few ways that a tenancy can be ended.

Mutual agreement

A residential tenancy agreement may be ended at any time by way of a mutual agreement between the parties. This agreement must be in writing, and the tenant must vacate the premises on the date agreed for it to be considered a valid agreement.

By the landlord

The landlord can terminate the rental agreement if the tenant has breached the agreement, or where other grounds exist for terminating the agreement. If the tenant does not vacate the premises on the date specified in the notice given by the landlord to the tenant, the landlord must obtain a termination and possession order from ACAT requiring the tenant to leave. If the tenant does not leave after this order is issued, ACAT may issue a warrant and this warrant can be executed by a police officer to evict the tenant.

By the tenant

A tenant can end a periodic residential tenancy by giving three weeks’ notice to the landlord. A tenant can also end a fixed-term residential tenancy agreement by giving three weeks to the landlord. However, the date upon which the tenant proposes to end the fixed-term tenancy must not be earlier than the end date of the fixed-term. Otherwise, the tenant will be in breach of the agreement.

If a tenant wants to terminate a residential tenancy agreement before the end of the fixed term, they may be liable for costs incurred by the landlord as a result of this. However, there is an obligation on the landlord to mitigate these costs.

In some situations, a tenant can terminate a fixed-term tenancy agreement early without being liable to pay for costs to the landlord. These situations include where:

• The landlord has seriously breached the residential tenancy agreement;
• The property has become uninhabitable;
• Significant hardship would be suffered by the tenant if the residential tenancy agreement continued;
• The landlord has seriously damaged or threatened to seriously injure or damage the tenant, a family member of the tenant, or the tenant’s property;
• The tenant finds that they had been induced into the residential tenancy agreement by a false or misleading statement; or
• Where the tenant has been posted away from the ACT, and an additional term has been included in the lease allowing for this situation (this term is sometimes known as a “posting clause”).

In order to end a residential tenancy agreement on these grounds, a tenant must obtain an order from ACAT. Otherwise, if a tenant decides to cease paying rent and fulfilling their duties as tenant, without an order or a mutual agreement with the landlord, they may be found to be in breach of the residential tenancy agreement.

Domestic violence

If you are a tenant and a victim of domestic violence, you may be able to have your lease altered or ended to ensure your safety, without incurring a penalty. You can make an application to ACAT to obtain an order to this effect.

If you require legal advice or representation in relation to tenants’ rights or in any other legal matter, please contact Armstrong Legal.