Common accommodation terms
The information below contains some of the more common terms and information to help you understand the tenancy requirements in New South Wales. There is a lot to know about renting in Australia, and this can often be overwhelming at times. The information listed below provides a good outline of what to expect when renting in New South Wales.
Residential Tenancy Agreement and legislation
A residential tenancy agreement (also known as a lease, contract or rental agreement) is the contract which governs the relationship or tenancy between the tenant and the landlord. The Residential Tenancies Regulations 2010 contains a standard form which should be used by the landlord or agent to create the rental agreement. The legislation which covers written and partly oral rental agreements in NSW is the Residential Tenancies Act 2010 no 42. The Act outlines the legal rights and responsibilities of the landlord and tenant for residential rental agreements.
The condition report
The Condition Report is part of the formal rental agreement which details the condition of the premises before the tenant moves into the premises. It is essential that the condition of the premises be accurately described in the report in order to avoid having to pay for damage which may have been pre-existing at the conclusion of the tenancy.
Tip: Make sure you visit the property when you are completing this form. Be sure to note down even the smallest mark, stain or damage before you sign your lease agreement to ensure you won’t be made to pay for this when your contract expires.
Reservation or holding fee
A potential tenant may give a landlord a reservation fee in order to ensure that no one else is given the property whilst the tenant’s application is being determined. Holding fees will only be able to be charged once a tenancy application has been approved. If the tenant pulls out after paying a holding fee they will lose the whole fee rather than a pro-rata amount. It can only be equal to 1 week rent.
Tip: Be sure to keep your receipt of your holding fee or any other money that you have paid the landlord. If you are asked to pay more than a week of rent as a holding fee, do not pay it.
A bond is an amount of money paid in advance of moving in, as a form of security for the landlord for any breach of agreement of damage to the premises, which may be caused by the tenant. The money is payable to an independent body, and refundable upon on the termination of the tenancy.
Tip: Bond should always be lodged with NSW Fair Trading and should never be more than four weeks’ rent. Your landlord should provide you with a receipt for your bond and/or the lodgement number. If you didn’t get a lodgement number, contact Housing Services.
Rent is the amount of money that a tenant pays for exclusive use of the premises, which the landlord may require the tenant to pay in advance. The landlord must ensure they keep a record of all rent paid, and issue a receipt.
Where a landlord unreasonably increases rent, a tenant may be able to take the matter to the Consumer Trade and Tenancy Tribunal for review.
Tip: In Australia it is most common to pay rent each week, although fortnightly and even monthly payments are not uncommon. When you start your tenancy, you will be asked to pay your first two weeks’ rent in advance. You will also be able to negotiate the frequency of rental payments when you sign your agreement.
Landlord’s rights and obligations
The landlord is responsible for paying all rates and taxes on the land, unless otherwise agreed. The landlord is entitled to access the property, however, sufficient notice (generally 7 days’ notice but this can be less in the case of an emergency) must be given in writing to the tenant before the property is accessed.
Tenant’s rights and obligations
A tenant has the right to peaceful enjoyment of the property, but is also responsible for ensuring that the property is used appropriately and not damaged. For more of the rights of tenants please see the Tenants Union website available at www.tenants.org.au
Cleaning and repairs
Both the tenant and landlord must ensure that the premises are kept in a reasonable state of cleanliness, which is fit for habitation. The landlord must fix all repairs, and compensate the tenant where they have had to pay for urgent repairs. For more information about repairs to the rental property please see the fact sheet available at the Tenants Union web site.
When you're moving out, you're liable for damage you've done but you're not liable for "fair wear and tear" to the property.
Of course, agents, landlords and tenants can have different views on what constitutes fair wear and tear, which can lead to disputes.
Fair Trading NSW defines fair wear and tear as "deterioration that occurs over time with the use of the premises even when the premises receives reasonable care and maintenance".
For example, if you've got cracks in the wall from movement, that's fair wear and tear, but if you've got holes in the walls from picture hooks, that's deemed damage.
Here are some other examples from Fair Trading NSW:
Fair wear and tear (you are not liable)
Damage (you are liable)
Faded curtains or frayed cords
Missing or torn curtains
Furniture indentations on carpet
Stains or burn marks on the carpet
Scuffed up wooden floors
Badly scratched or gouged wooden floors
Faded, chipped or cracked paint
Unapproved paint job
Things you can do to protect yourself
It's not unusual for there to be disputes, so here are some things you can do to protect yourself.
1. Check the condition report
If there is a dispute about cleaning or a damage, the condition report will be a key piece of evidence.
It is important to complete the condition report at the start of their tenancy, including taking photos or any damage, stains, etc. Before you move out, go through the same process. This will be your evidence if a dispute arises.
2. Communicate calmly and keep good records
If you have damaged the property, it's important you tell that to the agent or landlord as soon as you can.
Keep in mind it's a good idea to keep copies of communication — preferably in writing — in case a dispute arises.
And finally, when dealing with the agent or landlord, try to keep your cool.
3. Remember who the agent is working for
Sometimes a real estate agent might present themselves as a neutral third party. Really, they're working for the landlord. As a tenant, it's an important thing to remember. When they tell you something, they are professionally obliged to be honest, but they represent the interests of the landlord.
4. How clean you need to leave your rental property
The rules around rentals are different in each state, but they tend to be largely similar when it comes to cleaning standards. Landlords often get very heated when a property isn't left in a pristine condition, but what tenants do need to do is leave the property in a "reasonably clean" condition, according to the Tenants Union of NSW.
And while you might choose to use a professional cleaner for convenience, it's certainly not a requirement. In general, a professional clean is far beyond 'reasonably clean'. Legislation is increasingly preventing landlords from requiring professional cleaners, but that doesn't stop them from asking. There are some exceptions. If you have pets, for instance, NSW laws can require you to professionally clean the carpets when you move out.
Also, if you've been running around on carpets with muddy boots, it might be worth hiring a professional to meet the required standard.
You might also find your lease has a clause requiring or requesting the carpets to be professionally cleaned at the end of your tenancy.
In some states and territories, these clauses will be enforceable, but in others — like NSW (providing you don't have pets) — they are not.
Addition to premises and alternation of locks and security devices
A rental premises cannot be altered by the tenant without permission from the landlord. This limitation applies to locks and security devices, which may only be added without permission in an emergency. Any damage caused by an alternation or addition must be paid for by the tenant. For more information about locks and rental properties please refer to the Tenants Union.
Right to assign or sublet
With the landlord’s written consent, you can:
- transfer your tenancy under a tenancy agreement to another person, or
- Sublet the premises (or part) to another person.
The landlord must not unreasonably withhold consent when:
- you ask to transfer and one of the original tenants under the current tenancy agreement will remain as a tenant, or
- you ask to sublet and you will still occupy the premises.
The landlord must not charge for giving consent other than for the reasonable costs of giving consent.
Ending a Residential Tenancy Agreement
A rental agreement may be terminated in several ways. Notice may be given by either the landlord or tenant once the original term of the lease has expired. However, a rental agreement may also be terminated where the agreement is breached, the property is sold or the tribunal makes an order for the termination of the lease. For more information about termination of rental agreements please refer to the Tenants Union of NSW.
Taking a dispute to the NSW Civil and Administrative Tribunal (NCAT)
Either a tenant or a landlord may take a dispute before the NSW Civil and Administrative Tribunal (NCAT) where the dispute relates to an issue covered by the rental agreement. NCAT encourages parties to conciliate, but where that fails, the dispute will proceed to a hearing where NCAT will determine the outcome of the dispute.
If you have any queries, please refer to the links contained in the document, or seek assistance from Housing Services.