Parties are generally free to say what the terms of their agreement will be. However, there are certain terms that are required of an agreement under the Residential Tenancies Act 1995 (SA) and even where they are not expressly included in the agreement they will be read into any agreement by virtue of the legislation.
Required terms – written agreements
Where an agreement is in writing the following terms must be included under section 49(1)(vi) of the Act:
- amount of rent payable
- how often rent is to be paid
- the method by which rent is to be paid
- amount of bond
- any agreement reached as to responsibility for rates and charges for water supply
- responsibility for insurance of the premises and the contents
- any other terms of the agreement (e.g. whether pets are allowed)
Terms created by the Act – written and verbal or implied agreements
The Residential Tenancies Act 1995 (SA) provides many terms that are included in every residential tenancy agreement (whether the agreement is in writing or not) and these are implied even if not expressly stated in the agreement.
Terms that are created under the Act include, but are not limited to, the following:
- vacant possession of the property by the tenant (s 64);
- quiet enjoyment of the premises by the tenant (s 65);
- that the landlord will take reasonable steps to provide and maintain locks necessary to secure the premises (s 66);
- tenant to keep and return the premises in a reasonable state of cleanliness (s 69);
- no alteration of the premises without written consent from the landlord (s 70);
- if a person is on the premises with the tenant's consent or at their invitation the tenant has vicarious liability for acts resulting in a breach of the agreement by that person (s 75).
Unless they successfully apply to the South Australian Civil and Administrative Tribunal (SACAT) for an exemption, the parties to the agreement cannot leave out any mandatory terms, even if they agree to do so [s 119].
Terms that are inconsistent with the Act
It is an offence to enter into an agreement or arrangement that is designed to exclude or circumvent terms created under the Act, and it is not possible to waive rights that are granted under the Act [s 115]. The maximum penalty for entering into an agreement to defeat, evade or prevent the operation of the Residential Tenancies Act 1995 (SA) is $10 000.
Where an inconsistent term exists it will be unenforceable. An example of an inconsistent term is the popular: “All carpets shall be professionally cleaned by the tenant at the termination of the tenancy.” This term suggests that even if the carpets are in a clean and reasonable condition they must be professionally cleaned (at the tenant’s expense). However, section 69(3) of the Residential Tenancies Act simply requires a tenant to leave the premises in a reasonable condition and a reasonable state of cleanliness. Professional carpet cleaning is inconsistent with section 69(3) of the Act and would be unenforceable.
For further examples of inconsistent tenancy agreement terms see the Consumer and Business Affairs factsheet ‘Lease agreement terms inconsistent with the Residential Tenancies Act 1995’.
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