Residential Landlord & Tenancy
4. Tenancy Agreement
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 14 Sep 2015
- Before moving into a property it is highly likely that a landlord will give the future tenant a lease or tenancy agreement to sign.
- A lease operates in much the same way as any other legal agreement.
- It is a legal contract between a landlord and tenant that binds the two parties to the terms contained within it.
- Both parties must carry out their obligations according to the terms and conditions set out in the tenancy agreement and according to the legislation.
- If a tenant or landlord fails to abide by the terms of the agreement they will be in 'breach' of the agreement.
- Whether you are a landlord or a tenant there are some key considerations to be taken into account before entering into a lease agreement.
- Getting your lease agreement right and ensuring that it is in compliance with the legislation can help you to protect your legal rights and avoid any future dispute.
- Leases can be either written or verbal.
- It is generally recommended that a lease be in written form to accurately record the specific details of your agreement in the event that any issues arise.
- The lease will need to reflect the requirements of the relevant residential tenancies legislation in your state.
- In Victoria for example there is certain information that must always be included in a tenancy agreement, such as:
- the amount of any rent and how to pay it;
- the amount of any bond required;
- the period of the agreement;
- the condition of the premises;
- the obligation of tenants to avoid damage to the premises;
- maintaining the cleanliness of premises;
- permitted use of premises including quiet enjoyment; and
- whether consent is required for sub-letting agreements.
- Any lease that attempts to exclude, restrict or modify the rights and obligations contained in the legislation will usually be considered invalid (cannot be enforced).
- If there are certain issues you want to include in your tenancy agreement beyond those included in the legislation it is possible to do this.
- Both the landlord and tenant must agree to the additional terms.
- Any additional terms that you include in your tenancy agreement must not alter or remove any of the rights or obligations set out in the legislation.
- They are simply additional terms.
- If you introduce any additional terms into your tenancy agreement and these are found to be in conflict with the legislation in your state then the legislation will prevail over those additional terms in the tenancy agreement.
- Terms that are considered harsh or unconscionable (immoral) may also be declared invalid.
- For example in New South Wales it is prohibited to include a term which requires the tenant to pay all or any remaining rent under the agreement if they are found to be in breach of a term of the agreement.
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