Residential Landlord & Tenancy
3. Residential Tenancy Basics
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 14 Sep 2015
- Residential tenancies are governed by different legislation in each state and territory of Australia.
- The provisions are mostly the same but there are some differences.
- You should obtain advice about the provisions that apply in your state or territory.
- The residential tenancies legislation and regulations set out the standard rights and obligations of landlords and tenants when entering into a tenancy agreement.
- This aims to ensure that both parties are protected throughout the life of the tenancy.
- A lease or tenancy is an agreement entered into between a landlord (the 'lessor') and a tenant (the 'lessee') which grants the tenant a legal interest in the relevant property.
- The legal interest is the right to reside at a given premises according to the terms of the agreement.
- In legal terms this interest in possession which is granted to the tenant is referred to as a 'leasehold estate' but will usually be referred to as a lease or tenancy agreement.
- There are two main kinds of tenancy agreement:
- fixed term; and
- periodic.
- A fixed term lease is a lease for a fixed period of time that comes to an end automatically at the end of the agreed period.
- An example of a fixed term lease would be a standard 6 or 12 month lease.
- A periodic tenancy continues indefinitely and has no fixed end date.
- For example this would include a rolling tenancy where rent is paid monthly but could potentially end at any time.
- The agreement does not include an end date.
- When you share your tenancy with others for example in a share house scenario you are often jointly responsible (and liable) for the fulfilment of obligations under the tenancy agreement.
- There are two main forms of shared tenancy:
- co-tenancy; and
- sub-letting.
- If you are sharing a tenancy as a 'co-tenant' each tenant will need to sign the agreement and each tenant will be individually listed on any bond forms.
- It is usually up to the tenants to determine in what proportion they will each pay the bond though it is usually divided equally.
- Regardless of differing proportions each tenant is responsible for the full amount of bond rather than just their individual share.
- This means that if a co-tenant caused damage to the house during the tenancy you would also be liable to lose your bond regardless of whether you personally caused the damage or not.
- Any tenant can be responsible for the damage caused by other tenants in a co-tenancy.
- Under a sub-letting arrangement one or more tenants rent part of the premises from other 'head tenants.’
- The head tenant is the person or persons who originally signed the tenancy agreement.
- The other tenants are referred to as 'sub-tenants' and they rent off the head tenants.
- Sub-letting cannot occur without written approval from the landlord but that approval usually cannot be unreasonably withheld.
- In a sub-letting scenario the head tenant is essentially the 'landlord' for the sub-tenant.
- The residential tenancies legislation in most states applies to tenants and landlords.
- Generally you will be considered a 'tenant' if you have exclusive possession of residential premises and you pay rent for those premises.
- Whether you have 'exclusive possession' or not will usually depend whether you have control of the premises (or part of the premises) and the right to exclude others from those areas.
- You may be considered a tenant even if you have no written agreement.
- A landlord is generally a person who lets the property through a tenancy agreement or proposed tenancy agreement.
- A real estate agent may be employed by the landlord to manage the relevant property on their behalf but they are not the landlord.
- The real estate agent merely acts on behalf of the landlord.
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