What is a Tenancy?

Tasmanian residential tenancies are governed by the Residential Tenancy Act 1997 (the Act). This Act standardises residential tenancy agreements, and the procedures around renting, including the lease itself and the process for lodging a bond, two of the most important steps in securing a tenancy. This means that there is one law for residential tenancy agreements, and standard forms of agreement.

A very important resource for tenants and landlords alike is the Rental Guide produced by the State Consumer Affairs Department. The Tenants’ Union also produces a guide called ‘Don’t Panic’ specifically for tenants.

According to the Act, a residential tenancy agreement exists where the right to occupy residential premises has been granted by the owner to a person for value (e.g. money). Such a tenancy exists:

• whether or not the right is of exclusive occupation. This condition affects whether the landlord can enter the property without prior notice and agreement – without the right to exclusive occupation, a landlord may enter the premises without notice;
• whether the agreement is express or implied. For example, a house owner and a potential tenant may discuss arrangements for accommodation, and then act on the discussion, never formalising the agreement verbally or in writing. The agreement will be implied by the actions they then undertake, such as paying rent, and allowing continued residence;
• whether the agreement is oral or in writing. This means that a tenancy agreed to in a discussion, such as ‘sure, you can stay at XX Sevens St for 12 months at $150 a week’ and an acceptance of those terms will be an agreement; and
• whether or not the agreement is for a fixed period. This means that there does not need to be an end date to the tenancy.

The tenancy however needs to be for a minimum of four weeks.

What if there is a verbal lease or a lease that isn’t the Residential Tenancy Agreement?

Verbal leases are taken account of under the Residential Tenancy Act . For example, section 20 states that an owner can increase rent payable by the tenant if the written residential tenancy agreement allows for it, or if there is no written residential tenancy agreement for those premises. Obligations under the Residential Tenancy Act still apply to verbal leases (s10(c)). It is best to have an agreement in writing.

Agreements

After Signing an Agreement

Tenants are entitled to a copy of the agreement. Ask the property owner or agent for a copy of all documents immediately after they are signed. An agent should not ask a tenant to sign incomplete documents. The agent or property owner must provide a copy of the agreement within 14 days of the agreement taking effect otherwise they are in breach of the Act.

Terms of Agreement

In law the parties are free to negotiate the terms of their residential tenancy agreement provided it complies with the Act. An agreement between the property owner and tenant sets out the terms and conditions governing this relationship. An agreement may be in writing or it may be oral. An agreement can be for a fixed period or a non-fixed period. If the agreement is for a fixed period e.g. six months, at the end of that time an agreement becomes one of a non-fixed period, unless a new fixed term is established within 28 days of the end of the previous fixed period.

All agreements, both written and oral, must comply with the Act. In the case of an oral agreement, a property owner is required to give the tenant a copy of any information relating to rights and obligations under agreements as provided by the Director of Consumer Affairs. The booklet The Rental Guide, produced by the Office of Consumer Affairs and Fair Trading would be appropriate. It can be downloaded or is available from Service Tasmania.

A recommended residential tenancy agreement and condition reportproduced by Tenants’ Union is available for purchase from the Hobart Community Legal Service. Housing Tasmania has produced its own agreement for use in public housing tenancies. Any agreement containing provisions that are inconsistent with the Act renders those provisions to be of no effect. The Act obliges the property owner to pay for the costs of preparing agreements.