This section is concerned with renting a home and other types of accommodation covered by the Residential Tenancies Act 1995 (SA), and the relationship between landlords and tenants. The Residential Tenancies Act 1995 (SA) applies to most residential tenancy agreements.
Not all kinds of tenancies are covered by this Act, for example, caravan park tenants are covered by the Residential Parks Act 2007 (SA), and boarders and lodgers are still regulated by the common law and certain other statutes.
In addition, the rights and obligations of members of a housing co-operative (whether registered or not) differ slightly from those of other tenants, see 'PUBLIC HOUSING'.
The following agreements are not covered by the Residential Tenancies Act 1995 (SA).
- Where the agreement arises under a mortgage over the premises.
- Where the premises are part of a hotel or motel.
- Where the premises are used for holiday purposes only. If the agreement is for 60 days or more it is up to the landlord to prove that the agreement is in respect of holiday premises.
- Where the premises are part of an educational institution, college, hospital or nursing home.
- Where the premises are used for the purposes of a club.
- Where the premises are used as a home for aged or disabled people by an eligible organisation.
- Where the premises are part of a retirement scheme. These schemes are governed by the Retirement Villages Act 1987 (SA).
- Where the premises are part of a building in which other premises are let by the landlord to the tenant for the purposes of a trade, profession or business carried on by the tenant.
- Where the premises are on land let by the landlord to the tenant for the purposes of a trade, profession or business (including agriculture) carried on by the tenant.
- Where the premises are a residential park, for example, a caravan park (covered by the Residential Parks Act 2007 (SA)).
- Where the tenant is a boarder or lodger in premises other than a rooming house [Residential Tenancies Act 1995 (SA) s 5(b)], see boarders and lodgers.
Agreements where the tenant is a party to a contract for the sale or purchase of the premises that confers a right to occupy the premises for a period of 28 days or less are now covered by the Residential Tenancies Act 1995 (SA). Where the agreement is for a period of more than 28 days the Act does not apply.
A residential tenancy agreement is an agreement under which a person grants another person a legal right to occupy premises for the purpose of residence. It can be written, verbal or implied.
A tenant is 'the person who is granted a right of occupancy under a residential tenancy agreement' [see Residential Tenancies Act 1995 (SA) s 3].
A lease is a document that sets out the terms of the agreement, that is, the names of the parties, the premises to be rented, the rent, when and where the rent is to be paid, how long the agreement is to last and any other conditions. A leasehold interest is the interest or rights a person enjoys under a lease.
A residential tenancy agreement is formed when one person (the landlord) grants to another (the tenant) the right to occupy, whether alone or with others, residential premises in return for rent. An agreement may be in writing, verbal or even implied.
To be a residential tenancy agreement, an agreement must be in relation to residential premises let for the purpose of residence. An agreement to rent commercial premises (such as a shop) cannot be a residential tenancy agreement. An agreement to rent residential premises that are part of commercial premises or are situated on land let for commercial or agricultural purposes is not a residential tenancy agreement, unless the occupant of the residential premises is not the tenant under the commercial tenancy (in other words, is a sub-tenant).
For a tenancy agreement to come under the Residential Tenancies Act 1995 (SA), the tenant does not have to have sole possession of the premises. For example, where several people rent a house, sharing facilities such as kitchens, bathrooms and living areas but with a room each, there may be a residential tenancy agreement in respect of each individual tenant or as joint tenants. It is also not necessary that the whole of the premises be let to the tenant - the agreement can specify that part of the premises (such as a shed or a room) be kept for the use of the landlord.
A lease is a document that sets out the terms of a residential tenancy agreement. It not only creates the relationship of landlord and tenant between the people who enter into it; it also sets out a number of matters which the landlord and tenant promise to do or not to do and it may specify the tenancy for a fixed term.
Under the Residential Tenancies Act 1995 (SA), no matter who asks for a lease to be prepared, the landlord must pay the cost of its preparation [s 50]. At the time the lease is signed the landlord must give a copy to the tenant and, if the landlord has not signed the agreement at this time, must deliver a properly executed copy to the tenant within 21 days of signing or as soon as practicable after that time [s 49(6)].
A tenant who provides false information about his or her identity or occupation may be fined up to $1250 [s 51].
If a landlord fails to provide his or her name and address at the time of entering a lease they may be fined up to $1250 [expiation fee: $210]. Where an agent is acting for the landlord, their name, telephone number and address must also be provided [Residential Tenancies Act 1995 (SA) s 48].
If the parties are going to use a lease they can make one up themselves or obtain a standard form one free of charge from the Tenancies Branch of Consumer and Business Services via the sa.gov.au website.
A residential tenancy agreement need not be in writing - it can be verbal or there might not be any express agreement at all. Even if not in writing, certain terms are included under the Residential Tenancies Act 1995 (SA) (see Terms of the agreement).
When a person:
- pays rent to the person who owns the premises; and
- the rent is accepted; and
- the parties behave as though a tenancy exists,
this is likely to be an implied residential tenancy agreement. Such an agreement is just as valid and binding as a written or specific verbal agreement.
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’.
A fixed term lease (or tenancy) exists where the parties agree on a single, specific length of tenancy - usually for six months or one year, although it can be for any period as long as the period is fixed. If a tenant wants to leave premises before the end of a fixed term it is always worth discussing this with the landlord as it may end by agreement between the parties.
Under the Residential Tenancies Act 1995 (SA) a tenant generally cannot give notice to end a fixed term agreement, except where the landlord is in breach of the agreement [s 85]. However if that notice is invalid, improperly served, or if the landlord remedies the breach the agreement may not be terminated. The landlord may respond to any notice served under section 85 by making an application to the Tribunal (SACAT) to have the tenancy reinstated.
The other exceptions allowing a tenant to terminate occur where:
- a landlord enters into a contract to sell the premises within two months of the commencement of the agreement and failed to advise the tenant under section 47A [s 85A]; or
- where the agreement is frustrated as a consequence of the premises becoming uninhabitable or compulsorily acquired [s 86B].
Notice by either party of an intention not to continue with a tenancy at the end of a fixed term can be provided under s 83A (for landlords) or s 86A (for tenants).
If a fixed term agreement has not terminated before or at the end of the fixed term (i.e. the tenant does not vacate and the landlord does not require the tenant to vacate), the agreement continues as a periodic tenancy agreement. The tenancy period will be determined by the interval between rental payment times under the agreement (e.g. fortnightly, monthly).
A periodic tenancy is for a recurring period without a fixed term. Many periodic tenancies are verbal agreements, however, a periodic tenancy can be written, and standard form agreements are available online at the sa.gov.au website.
A periodic tenancy can continue indefinitely. It goes on recurring automatically until something is done by the parties to bring it to an end – see Ending a tenancy agreement.
Special provisions exist for tenants who are the victims of family violence. For more information see Intervention orders and tenancy agreements.
Many tenants of a house or flat have other people living in the premises, often with no express agreement between them as to the terms on which the others remain, except for the amount of their contributions to rent and other expenses. Whether they are joint tenants, sub-tenants or merely boarders or lodgers of the tenant depends on the circumstances.
If two or more tenants enter into a tenancy agreement together they are joint tenants and are jointly and severally (separately) liable for the obligations of the tenancy. This means that any one of them can be liable for the full amount of the rent and the full cost of any compensation payable to the landlord in respect of a breach of the agreement. The landlord can bring an action against one or all of the tenants.
Where liability is joint and several, the fact that one person has not caused the loss is not a defence. Where disputes arise between joint tenants the Residential Tenancies Act 1995 (SA) does not apply and the Tribunal has no jurisdiction.
Disputes such as payment of expenses or the repayment of bond money must be sorted out between the co-tenants and if necessary can be resolved using mediation or alternatively in the Magistrates Court. If a bond is lodged in several names, the Tribunal will generally pay it out in equal portions.
There is an exception to the above in cases of domestic violence. If only one tenant was responsible for the damage and there is an intervention order in place against them for the protection of the co-tenant, or where it is satisfied that there has been domestic abuse, the Tribunal can make a determination that a co-tenant is not liable [s 89A(11)]. Similarly an order can be made for repayment of any outstanding bond money (if any exists) to the tenant not responsible for the damage [s 89A(12)]. See Intervention orders and tenancy agreements.
Every tenant is entitled to sublet, unless the landlord has been exempt from the provision of the Residential Tenancies Act 1995 (SA) which provides for subletting [s 74]. An exemption applies where the landlord is a registered community housing organisation [s 74(2a)].
A tenant may only sublet with the landlord's written consent, but a landlord's consent to a sub-tenancy cannot be unreasonably withheld [s 74(2)(b)(i)]. However, even where a tenant has sublet in breach of an agreement, this may not affect the right of occupation of the sub-tenant [s 74(2a)].
The landlord has 21 days after becoming aware (or after such time as he/she should have become aware) of the sub-letting without consent to terminate the agreement, but only if consent was not unreasonably withheld [s 74(2ab)].
The relationship of head tenant (who enters into the original tenancy agreement with the landlord) and sub-tenant (who enters into a tenancy agreement with the head tenant) is, in essence, the same as that of landlord and tenant. The sub-tenant pays rent to the head tenant for the right to exclusive occupation of part or all of the premises for which the head tenant has been granted a similar right by the landlord. A sub-tenancy must be for at least one day less than the head tenant's own term, otherwise it is regarded as an assignment of the tenancy agreement.
It is important to remember that under the original tenancy agreement, and for as long as the sub-tenancy or assignment lasts, the head tenant is responsible and liable to the landlord for the rent and the condition of the premises. The sub-tenant is responsible only to the head tenant and a sub-tenancy agreement automatically terminates on the termination of the main tenancy agreement. If a sub-tenant damages the property the landlord will have an action against the head tenant or assignor, who can then take action against the sub-tenant for rent owing or for the damage to the premises for which the landlord has a claim.
A boarder or lodger is a licensee who is merely licensed to occupy part of premises for consideration. If a 'landlord' retains control of the building the occupier will be a lodger. Boarders are usually provided with services in addition to accommodation, such as meals, washing and cleaning. Usually a boarder or lodger has no exclusive legal right to possess the occupied area, although this may not always be so. Generally, the owner retains control of the premises, with the lodger or boarder having restricted rights. In either case a boarder or a lodger is not afforded the protection of the Residential Tenancies Act 1995 (SA) [s 5(b)]. Similarly, lodgers of a tenant have no rights against a landlord.
Problems often arise where a landowner shares premises with another. The few court cases that have dealt with the topic, such as the South Australian Supreme Court case of Noblett v Manley (1952) SASR 155, have emphasised the element of control. While there is no presumption that a person sharing a house with the owner is not a tenant, it may be difficult to establish a tenancy without proof of exclusive occupation over a long period. To determine whether a lease or licence situation has arisen it is important to look at the intention of the parties and whether there is evidence of control over the property.
A written agreement between the parties is not essential but may help avoid and resolve any disputes.
The protection given by the law to a licensee is much less than that given to a tenant. The same may be said for the owner or licensor as opposed to a landlord. For example, an owner having difficulty recovering payment from a boarder or lodger or terminating an agreement and evicting a boarder or lodger would need to take court action. Most disputes would be heard in the Magistrates Court, depending on the nature of the claim. These cases are likely to be decided according to common law, where the court may consider the intention of the parties, their agreement (verbal or written), the particulars of their arrangement, evidence of control over the property and so forth. A boarder or lodger can rarely take court action to stop the owner or licensor from terminating the agreement and evicting them. In most cases, the only remedy is an action for damages, that is, compensation for breaching the licence agreement.
The distinction between boarders and lodgers and tenants is often difficult and legal advice should be sought.
There are many ways of locating a place to rent. It is advisable to ignore advertisements that require a search fee as this means a payment to a referral agency. Referral agencies do not arrange interviews with prospective landlords or guarantee to provide the type of accommodation sought - they simply refer the caller to a landlord or real estate agent. On payment of the fee they give access to their listings for a specified period, usually for three months.
Residential tenancy databases are privately owned commercial databases containing information about individual tenants’ rental histories. These databases are subject to the provisions in Part 5A of the Residential Tenancies Act 1995 (SA).
Because personal information held on such databases can have serious consequences in determining whether a person can secure rental accommodation, they are now regulated to ensure information is accurate and complete.
The provisions also apply to interstate operators and a breach of them is an offence under the Residential Tenancies Act 1995 (SA) [s 99C].
A landlord (or their agent if they have one) must give written notice advising a tenant of the name of each residential tenancy database they usually use for assessing tenants. Prospective tenants must also be provided with contact details for the database operator. Failure to provide this information is an offence under section 99D of the Act with a maximum penalty of $5 000 (expiation fee: $315).
In addition, a landlord (or their agent) must provide an applicant with written notice of the actual database(s) they use within 7 days of accessing the database(s). They must provide the name of the database(s) in a written notice stating:
- that personal information about the applicant is in the database; and
- the name of each person who listed the personal information in the database; and
- how and in what circumstances the applicant can have personal information removed or amended.
[Residential Tenancies Act 1995 (SA) s 99E]
There are limitations on when personal information can be listed about a person. Information can only be listed where:
- a residential tenancy agreement has ended; AND
- the tenant breached the agreement; AND
- where the breach results in the person owing the landlord an amount that is more than the bond; OR the Tribunal has made an order termining the residential tenancy agreement; OR the Tribunal has not made an order under section 89A(4)(d) prohibiting the listing (see below Terminations based on domestic violence).
The personal information recorded must relate only to the breach and be accurate, complete and unambiguous [s 99F].
Landlords and agents are prohibited from listing personal information in a residential tenancy database unless they have given the person a copy of the information (without charge), or taken reasonable steps to disclose the information to the person. They must also provide them with 14 days to review the information and make submissions and a maximum penalty of $5 000 applies to any breach of this provision. If, however, the landlord or agent cannot locate the person after making reasonable enquiries then the landlord or agent will not be in breach [s 99G].
Landlords and agents have an obligation to ensure information is accurate, complete, current and unambiguous [s 99H].
Landlords and agents who list personal information about a person in a residential tenancy agreement must, if requested in writing by the person, give them a copy of the information within 14 days after the request is made [99J]. The same provision applies to a database operator if they receive a written request for a copy. Whilst a fee may be charged it must not be excessive.
As a general rule, personal information must not be kept for more than 3 years [s 99K].
The South Australian Civil and Administrative Tribunal (SACAT) may make orders to ensure compliance with these provisions [s 99L].
Terminations based on domestic violence
Where a breach of a residential tenancy agreement has occurred as a consequence of domestic violence SACAT can make an order prohibiting an applicant's personal information from being published in a residential tenancy database. When making such an order the Tribunal must be satisfied either that the applicant did not cause the breach, or that the breach was the result of an act of domestic abuse against the applicant [s 89A(4)(d)].
The Equal Opportunity Act 1984 (SA) makes it unlawful to discriminate against anyone because of their sex,gender or sexuality (s 40); race (s 62); age (s 85L); disability (s 77); marital or domestic partnership or status, identity of spouse or domestic partner, or pregnancy (s 85ZH) while they are trying to obtain accommodation. This includes renting flats, houses or rooms and staying in hotels, motels or caravan parks. For example, it would be illegal for a landlord to refuse to accept an application for rental from a single pregnant woman because there was no man around to help. Complaints can be made to the Equal Opportunity Commission – see Discrimination.
The penalty under the Residential Tenancies Act 1995 (SA) for refusing to let premises to a person because it is intended that a child will live in the premises is a maximum fine of $ 2 500 [s 52]. This section does not apply if the landlord resides in the premises.
At the time a tenancy agreement is entered into, the landlord must complete and give to the tenant two signed copies of an inspection sheet, on which is set out itemised details of the contents and condition of the premises at the beginning of the tenancy [Residential Tenancies Regulations 2010 r 4].
The tenant should then go through the premises, preferably with the landlord, and note on the sheet whether or not, in the tenant's opinion, the items are in fact as described by the landlord. This provides a record of the state of the premises at the beginning of the tenancy, and of the tenant's written agreement or objections.
After completing the inspection sheets the tenant should keep one copy and send the other back to the landlord or agent. The inspection sheet is referred to at the end of the tenancy to see whether any damage has been caused during the tenant's occupation and whether the premises have been left in a reasonably clean condition. If they are to be of any use, it is important that inspection sheets are filled out properly and a copy kept by each party.
This explains the general rights and obligations of landlords and tenants under residential tenancy agreements in South Australia and also provides the names and addresses of agencies that can be approached for further information or assistance.
This information booklet, inspection sheets and all other forms mentioned can be obtained free of charge from sa.gov.au .
A landlord can only demand payment of two weeks rent in advance and a bond [ss 53, 54]. The total amount of the payment in advance can add up to a substantial sum, although help may be obtained from Housing SA, see Financial assistance.
However, a landlord can legally request payment from a prospective tenant for an option to enter into a residential tenancy agreement. If the prospective tenant goes ahead with the residential tenancy agreement, the landlord must then apply the money received against rent payable under the agreement. If the prospective tenant does not enter into the residential tenancy agreement, the landlord may keep the money received [s 53(2)(a)].
The landlord may also require a tenant to reimburse him/her for water rates as well as electricity, gas, telephone, internet and/or subscription television services if these accounts are in the landlord's name [s 53(2)(b),(c)].
With the exception of water supply charges, a landlord cannot pass on any statutory charges connected with a property (e.g. sewerage, Emergency Services Levy) [s 73].
If a landlord (or an agent acting for a landlord) invites or requires a tenant or prospective tenant to sign a written residential tenancy agreement, the landlord must provide the tenant with a copy of the agreement and must bear the costs of its preparation [s 49].
The tenant is generally required to pay a bond (also known as security deposit or rental bond). This is paid by the tenant before moving into the house or flat. The bond is calculated by reference to the weekly rent. Where the rent does not exceed $250 per week, the maximum bond is four weeks rent. However, where the weekly rent is more than $250, the maximum bond is the equivalent of six weeks rent [see Residential Tenancies Act 1995 (SA) s 61(3)]. A landlord who breaches these requirements may be fined up to $5 000 [Residential Tenancies Act 1995 (SA) s 61].
All bonds paid in relation to premises in South Australia must be lodged with, and are held by, the Commissioner for Consumer Affairs [s 62]. They provide security against:
- the tenant being in arrears of rent; or
- any damage done to the premises by the tenant; or
- the premises not being left reasonably clean; or
- other losses which are the tenant's responsibility.
It is the responsibility of the landlord to lodge the security bond with the Commissioner within two weeks (registered agents have up to 4 weeks) [see Residential Tenancies Regulations 2010 (SA) r 9]. Once a bond has been lodged a landlord can ask a tenant to increase this bond by giving 60 days notice, but only at two yearly intervals and it cannot be increased beyond the ceiling referred to above.
When bond money is paid the landlord or real estate agent must provide a receipt within 48 hours [s 62]. The tenant must also sign a form which the landlord or real estate agent must send with the bond money to the Commissioner. After the Commissioner has received the money and the properly signed form, a bond number and receipt are sent to the tenant. If this number is not received within a reasonable time it is possible that the bond money has not been lodged and Consumer and Business Services should be notified immediately.
There is now an online facility called Residential bonds online through which registered agents, landlords and tenants can check the status of their bond.
For the return of the bond, see Finalising a tenancy.
Housing SA provides financial assistance on a case by case basis for bonds, rent in advance or arrears, deposits on gas or electricity, removal expenses and furniture. The current level of assistance is flexible and is assessed on the basis of an interview with a housing officer. Appointments should be made at the nearest Housing SA regional office.
The rights and duties of landlords and tenants during the term of a tenancy are set out in this section.
It is an important characteristic of tenancy that the tenant has possession of the premises, just as though they were the owner. This normally means that the tenant can stop anyone from entering the property - including the landlord, the agent and any of their employees. For example, the landlord, or the landlord's family, cannot come on to the property to tend a garden or to pick fruit without the tenant's consent and they certainly cannot insist on inspecting the premises at a moment's notice.
Under section 72 of the Residential Tenancies Act 1995 (SA) , the landlord or the landlord's agent has the right to enter the premises in the following circumstances only.
In the case of an emergency [s 72(1)(a)]
A landlord may enter any time and without giving notice. However, in such cases the landlord must be able to establish that his/her actions were justified, equitable and lawful. Generally, only danger to the property or to a person in the vicinity will satisfy the definition of an emergency.
To inspect the premises [s 71(1)(c)]
No more than once every four weeks – after giving at least seven days (but not more than 14 days) written notice before the date of entry. A period of up to 2 hours within which the proposed entry is to occur (which must be within normal hours*) must be specified in the notice.
To collect rent [s 72(1)(b)]
Not more than once a week and only at a time previously arranged with the tenant. This right exists only if the tenant has been offered a reasonable alternative method of payment of rent that does not involve attendance by the landlord but the tenant has refused the alternative.
To carry out non-emergency repairs or necessary maintenance [s 71(1)(e)]
At a time within normal hours* after having given the tenant at least 48 hours notice. The requirement for 48 hours may be waived by the tenant at their own request (i.e. not under direction by the landlord).
To carry out garden maintenance [s 72(1)(d)]
- at a time previously arranged with the tenant no more than seven days before the proposed entry; or
- in accordance with a written notice given to the tenant no less than seven days and no more than 14 days before the proposed day of entry; or
- alternatively, at another time at the tenant’s own request (i.e. not as intitated by the landlord).
To show premises to prospective tenants [s 72(1)(f)]
During the period of 28 days before the end of the existing tenancy agreement and only after giving reasonable notice for a reasonable number of occasions at times occurring within normal hours*. The tenant may request attendance before the 28 day period commences if they choose (i.e. not as initiated by the landlord).
To show premises to prospective purchasers [s 71(1)(g)
On no more than two occasions in any seven day period (unless the tenant agrees otherwise) but only at a time previously arranged with the agreement of the tenant (who must not reasonably refuse to agree) or, if no agreement can be reached, at a time within normal hours* once the tenant has been given reasonable notice.
To determine if a breach of section 80 (breach of agreement) has been remedied [s 72(1)(h)]
Only in accordance with a written notice in the prescribed form (see Form 1A in Schedule 1 of the Residential Tenancies Regulations 2010 (SA)) given to the tenant no less than seven days and no more than 14 days before the proposed day of entry. The notice must state the proposed date and time of entry and this must be within normal hours*.
For any other genuine purpose [s 72(1)(i)]
In accordance with written notice given no less than seven days and no more than 14 days before the proposed date of entry stating the purpose of the proposed entry and date and time (which must be within normal hours*); otherwise, with the consent of the tenant.
* Normal hours is defined as between 8am and 8pm on any day other than a Sunday or a public holiday.
The landlord must:
- provide and maintain the premises in a reasonable state of repair and cleanliness [Residential Tenancies Act 1995 (SA) ss 67, 68];
- comply with all statutory requirements affecting the premises [Residential Tenancies Act 1995 (SA) s 68(1)(b)];
- not cause or permit any interference with the tenant's reasonable peace, comfort or privacy [Residential Tenancies Act 1995 (SA) s 65];
- take all reasonable steps to enforce the obligation of the landlord's other tenants in adjacent premises not to cause any interference with the tenant's reasonable peace, comfort or privacy [Residential Tenancies Act 1995 (SA) s 65(1)];
- give the tenant vacant possession of the premises on the day the tenancy is to begin [Residential Tenancies Act 1995 (SA) s 64(1)];
- provide and maintain locks and other devices that are necessary to ensure that the premises are reasonably secure [Residential Tenancies Act 1995 (SA) s 66]. Neither the landlord nor the tenant can alter or change the locks without the other's consent;
- provide written notification of their change of address details to a tenant within 14 days [s 48];
- keep proper records of rent and any other payments and provide statements and/or receipts as requested [Residential Tenancies Act 1995 (SA) ss 57, 58];
- keep a copy of the residential tenancy agreement for no less than 2 years from the date of termination [s 49];
- pay all statutory rates. However, water supply rates and charges shall be paid for as agreed by the landlord and tenant; Where there is no agreement and the supply of water is separately metered, rates and charges are to be paid by the tenant.In any other case, rates and charges are to be paid by the landlord [Residential Tenancies Act 1995 (SA) s 73];
- provide written notice of their intention to sell the residential premises not less than 14 days after they have entered into a sales agency agreement. If the property is sold, the landlord must provide written notice of the purchaser and the date from which rent is to be paid to them, at least 14 days before settlement [s 71A].
The tenant must:
- keep the premises reasonably clean;
- not intentionally or negligently cause damage to the premises;
- notify the landlord of any damage to the premises;
- replace or compensate the landlord for reasonable use or replacement of any auxilliary property lost or destroyed while in their care;
- not use the premises for any illegal purpose;
- not cause or permit a nuisance;
- where the premises are adjacent to premises occupied by the landlord or another tenant of the landlord, not interfere with the reasonable peace, comfort or privacy of the landlord or the other tenant;
- if asked, give the landlord his or her correct name and place of occupation;
- at the end of the tenancy, return the premises to the landlord in a reasonable state of cleanliness.
See Residential Tenancies Act 1995 (SA) ss 69-71.
An exception to the tenant’s responsibility to compensate for damage occurs where a tenant unintentionally causes damage to the premises or ancilliary property as a result of the use of a domestic facility requiring instruction where the landlord has failed to instruct the tenant as to its proper use [ss 48(2), 69(3a)].
Unless it is allowed by the tenancy agreement, the tenant may not fix anything to the premises or carry out any renovation, alteration or addition without the landlord's written consent. A tenant who intentionally causes serious damage commits an offence and may be fined up to $2 500 [Residential Tenancies Act 1995 (SA) s 69(2)].
A tenant must not intentionally or negligently cause or permit any damage to the property and is responsible for any damage caused intentionally or negligently [Residential Tenancies Act 1995 (SA) s 69]. This includes damage caused by guests unless the tenant can show that she or he could not reasonably have prevented the damage. Where the damage was caused negligently or intentionally by a guest, a tenant wanting to deny responsibility would be assisted by reporting the matter to the police as a criminal offence.
The tenant is not responsible for damage caused by a genuine accident or through normal wear and tear; nor are they responsible for damage caused unintentionally through use of a domestic appliance requiring instruction for which the landlord has failed to provide instructions [ss 69(3a), 48(2)].
The landlord must ensure that a property is in a reasonable state of repair, although this does not apply to a property that is subject to an order under the Housing Improvement Act 2016 (SA) [See Residential Tenancies Act 1995 (SA) ss 67, 68].
The landlord is not in breach of his obligation to repair unless he has notice of the defect and fails to act with reasonable diligence to have it repaired. If something needs repair, the tenant should notify the landlord as soon as possible [Residential Tenancies Act 1995 (SA) s 69(1)].
- the disrepair is not the tenant's fault; and,
- it is likely to cause undue inconvenience or damage to the tenant, or to the tenant's belongings; and,
- the landlord refuses to carry out the repairs,
the tenant can arrange for the repairs to be done and pass the bill on to the landlord. The repairs must be carried out by a suitably licensed person, who should provide a report as to the apparent cause of the disrepair [s 68(d)]. The tenant can also claim reasonable compensation for any damage they have suffered as a result of the failure to repair – provided they have made a reasonable attempt to notify the landlord. If the loss could have been mitigated by taking reasonable steps, then compensation will be reduced for failure to do so [s 68(d)].
Under part 3 of the Housing Improvement Act 2016 (SA), the Minister has the power to make an order declaring a house unfit for human habitation. An order under part 3 could require either that repairs be undertaken to bring the house to a reasonable standard or that the house be demolished.
The owner is legally obliged to notify prospective purchasers that a house is subject to action under the Housing Improvement Act 2016 (SA). Owners or agents can be prosecuted for failing to comply with these requirements of the Act.
At the time a tenancy agreement is entered into the parties should arrange when and where the rent is to be paid, and should keep to that arrangement throughout the tenancy unless new arrangements are made.
A landlord must provide a tenant with at least one means of payment other than cash payment or payment through a rent collection agency (where the tenant pays a fee) [s 56A].
A landlord must keep the following records of any payments received:
- the date on which payment was received;
- the name of the person making the payment;
- the amount paid;
- the address of the premises to which payment relates;
- if payment is for rent – the period of the tenancy to which the payment relates;
- if payment is for a bond – a statement of that fact;
- if payment is neither for rent or a bond – a description of the purpose of the payment.
See Residential Tenancies Act 1995 (SA) s 57(1).
A landlord or real estate agent must give a statement of payment information (with the details as listed in the paragraph above) if a written request is made by a tenant [s 58]. If payment is made by means other than by deposit in a bank, building society or credit union account, the tenant must be given a receipt within 48 hours [Residential Tenancies Act 1995 (SA) s 58(2)].
Payment in advance
A landlord or agent cannot require a tenant to pay rent more than two weeks in advance. The prohibition is against the landlord or agent requiring such a payment so, if a tenant voluntarily chooses to pay rent for more than two weeks in advance, the landlord may accept the payment [s 54].
A landlord or agent cannot require a tenant to pay rent with a post dated cheque [s 54(3)].
The rent cannot be increased under a fixed term agreement unless the agreement specifically allows for an increase.
Whether a tenancy agreement is periodic or for a fixed term, the rent cannot be increased during the first 12 months of the tenancy.
Any later increase cannot be within 12 months of a previous increase [see Residential Tenancies Act 1995 (SA) ss 55(1)-(2)].
When rent is to be increased, the tenant must be given at least 60 days written notice, setting out the amount of the increase and the day on which it is to take effect. There is no limit to the amount by which rent can be increased. A tenant who thinks that rent is excessive can apply to the Residential Tenancies Tribunal for an order to that effect. If the Tribunal finds that the rent is excessive it can fix a maximum rent for up to one year.
See Housing improvement.
A fixture is something that has become attached to the land or built into the premises in such a way that it is part of the land or building and no longer has a separate identity. Fixtures become part of the land to which they are attached.
To decide whether an object is a fixture or not it is necessary to consider the degree of attachment (for example, whether it is stuck, nailed or screwed to the building or merely rests by its own weight) and the purpose of the attachment (for example, whether or not it was attached so as to bring about a permanent improvement in the land or building).
Under section 70 of the Residential Tenancies Act 1995 (SA) a tenant can remove any fixture that was fixed by them during the tenancy, as long as the removal does not cause irreparable damage. If damage is caused by removing the fixture the tenant must notify the landlord and either repair the damage or compensate the landlord – the choice is the landlord's.
It is a term of a residential tenancy agreement that a landlord cannot unreasonably withhold consent to an alteration or addition to the premises that is necessary to ensure the provision of infrastructure or a prescribed service [s 70 (1a)]. The Residential Tenancies Regulations 2010 (SA) define prescribed services as digital television and carriage services for Internet provision [r 12].
There are various ways a tenancy agreement can end. Fixed term tenancies have a set ending date (see 'Fixed term or periodic tenancies?'). A landlord or tenant may seek to end an agreement in certain circumstances. An 'interested party' such as a tenant's neighbour may also seek to end a tenancy if the tenant's conduct is unacceptable.
At the end of an agreement, there are certain steps that should be taken to finalise the relationship between landlord and tenant.
In some instances, specific notices or forms should be served on the other party as part of the process of finalising a tenancy. For copies of the relevant forms, visit the sa.gov.au website.
The parties to a fixed term tenancy (entered into on or after 1 March 2014) must give notice of termination of the agreement at least 28 days prior the end of the tenancy under section 83A (for landlords) (using Form 2A) or section 86A (for tenants) (using Form 4B). No reason for termination is required.
If the tenant does not move out at the end of the lease and notice of termination has been given, the landlord can apply to the Residential Tenancies Tribunal for an order for possession of the premises.
However, if a fixed term agreement is not terminated by notice by either the tenant or the landlord, the tenancy will continue as a periodic tenancy. The tenancy period will be determined by the interval between rental payment times under the agreement (e.g. fortnightly, monthly) [s 79A]. See 'Fixed term or periodic tenancies?'.
Where there is a breach by the tenant
A landlord can seek to end either a fixed term tenancy or a periodic tenancy if the tenant breaches the agreement [s 80].
The tenant may apply to the South Australian Civil and Administrative Tribunal (SACAT) to have a tenancy reinstated if the breach has been rectified or if the tenant does not believe that s/he has breached the agreement.
See also Breach of tenancy.
Where there is no breach by the tenant
A tenant who has a tenancy for a fixed term has the advantage of secure tenure of the premises for the period of the term. The tenant can generally only be required to leave before the end of the term if they have breached a term of the lease.
However, a landlord can apply to the Tribunal to end an agreement if the continuation of the residential tenancy agreement would result in undue hardship [Residential Tenancies Act 1995 (SA) s 89]. The Tribunal may also make an order compensating the tenant for loss and inconvenience resulting, or likely to result, from the early termination of the tenancy.
Periodic tenancies - No reason
A landlord can end a periodic tenancy where there has been no breach without the need for giving a reason. At least 90 days notice (using Form 3) must be given [Residential Tenancies Act 1995 (SA) ss 83(1),(3)]. This does not apply to a fixed term tenancy or to premises subject to a housing improvement notice.
Periodic tenancies - With reason
There are certain specific situations where a landlord can end a periodic tenancy (but not a fixed term tenancy) by giving only 60 days notice (using Form 3):
- if the landlord requires possession of the premises because they are about to be demolished, or are to be substantially renovated; or,
- so that a member of the landlord's immediate family (e.g. spouse, child or parent) can live there; or,
- to give vacant possession to a purchaser of the premises with whom the landlord has entered into a contract.
See Residential Tenancies Act 1995 (SA) ss 81(1),(2). A landlord who recovers possession under the above circumstances must not grant a fresh tenancy without the Tribunal’s consent within six months of recovering possession.
If the landlord gives 60 or 90 days notice and the tenant decides to leave before the set date, the tenant must give at least twenty one days notice in writing of that intention to the landlord [s 86].
Order for vacant possession
If a landlord terminates an agreement and the tenant does not leave as required the landlord cannot evict the tenant but can apply to the Tribunal for an order of vacant possession of the premises [Residential Tenancies Act 1995 (SA) s 93]. If the Tribunal grants the order it is enforced by a bailiff as soon as possible [s 99].
Where there is a breach by the landlord
If a landlord has breached a tenancy agreement and it is possible for the landlord to rectify the breach, the tenant may serve a notice on the landlord (using Form 4). If the breach is not remedied within a specified period (at least seven days) then the tenancy is automatically terminated by force of the notice after the expiration of at least a further seven days [Residential Tenancies Act 1995 (SA) s 85].
However, section 85 also allows that a landlord may, before the date of termination fixed in the notice, apply to the South Australian Civil and Administrative Tribunal (SACAT) for an order reinstating the tenancy or refusing termination if it can find the landlord was not in breach [s 85(2)].
A tenant can apply to SACAT to end a fixed term tenancy or a periodic tenancy where the landlord has committed a serious breach of the agreement [s 88]. Note that a fee usually applies unless you apply for an exemption (available to concession card holders and full time students) or waiver (due to financial hardship).
If, within two months of the start of a residential tenancy agreement, the landlord enters into a contract for sale of the premises which was not disclosed when the agreement was signed (as required under section 47A), the tenant may give notice of termination [s 85A] (using Form 4A). If the landlord provides written notice of the contract of sale the tenant must exercise their right to terminate within two months after receiving the notice.
Where the agreement is frustrated
A tenant may immediately terminate a tenancy (using Form 4C) where the premises or a substantial portion of the premises [s 86B]:
- have been destroyed or rendered uninhabitable
- are no longer lawfully usable as residential premises
- have been acquired by a compulsory process
Where there is no breach
A tenant can apply to SACAT to end an agreement if the continuation of the residential tenancy agreement would result in undue hardship [Residential Tenancies Act 1995 (SA) s 89]. The Tribunal may also make an order compensating a landlord for loss and inconvenience resulting, or likely to result, from the early termination of the tenancy.
At any time during a periodic tenancy a tenant can give written notice that they are going to leave the premises (using Form 5). The period of notice must be 21 days or a period equivalent to a single period of the tenancy (whichever is longer). The notice must specify the premises and the date on which the tenant intends to leave. No reason need be given. Even if the tenant does not give notice, the landlord cannot claim any re-letting or advertising costs, although in this case the tenant may for instance, be liable for three weeks rent in lieu of the twenty one days notice [Residential Tenancies Act 1995 (SA) ss 86(1), (2)].
Fixed term tenancies
At the end of a fixed term tenancy a tenant can give written notice that they are going to leave the premises (using Form 4B). The period of notice must be 28 days [s 86A].
If a fixed term has not expired but the tenant no longer wants to occupy the premises, the tenant should approach the landlord and attempt to come to some arrangement. The landlord might agree to allow the tenant to leave as long as the tenant gives certain notice and pays the re-letting costs, or if the tenant can find someone suitable to take over the remainder of the term of the agreement. If the tenant simply moves out and assumes that the landlord will re-let the premises and so relieve the tenant of liability to pay, the landlord can sue the tenant for the rent due under the tenancy agreement and for other costs.
While a landlord does not have to agree to allow a tenant to leave, at the same time a tenant cannot be forced to stay. If the tenant does leave without coming to some agreement with the landlord (that is, abandons the tenancy), the landlord is entitled to recover certain costs. However, the landlord must mitigate (reduce) the loss caused by the tenant's abandonment by seeking another tenant for the premises as quickly as possible. The tenant's liability to the landlord for abandonment of the tenancy agreement is for rent to the date of re-letting or to the end of the fixed term (whichever is sooner) and all or part of the advertising costs and the re-letting fee. If the landlord does not attempt to relet the premises the tenant may not be liable for anything.
Where a tenant abandons the property, the landlord may apply to SACAT for an order that the property has been abandoned. The Tribunal may also order that the tenant pay compensation to the landlord [Residential Tenancies Act 1995 (SA) s 94]. In deciding whether a tenant has abandoned premises the Tribunal can look at any failure to pay rent or evidence the tenant no longer occupies the premises as a place of residence.
Victims of Domestic Violence
Victims of domestic violence have some protection in being able to end a tenancy due to reasons relating to domestic violence - see our section on this below: Intervention orders and tenancy agreements.
An interested party can apply to the South Australian Civil and Administrative Tribunal (SACAT) to terminate the tenancy [Residential Tenancies Act 1995 (SA) s 90]. The definition of interested party includes:
- the landlord;
- a person adversely affected by the conduct of the tenant (e.g. near neighbours);
- a strata or community corporation representing the interests of perons who have been adversely affected;
- a police officer.
To justify termination the tenant's conduct must be causing or permitting:
- an interference with the reasonable peace, comfort or privacy of another person who resides in the immediate vicinity of the premises
- a nuisance, or
- the premises to be used for an illegal purpose.
The Tribunal has to be satisfied that terminating the tenancy is the appropriate remedy.
Section 83B (landlord) or Section 86B (tenant) of the Residential Tenancies Act 1995 (SA) provides that if the property is:
- destroyed or rendered uninhabitable; or
- ceases to be lawfully usable for residential purposes
either party can terminate the tenancy agreement immediately by giving the other party written notice. This may occur after a natural disaster such as a flood or bushfire, or as a result of other types of damage.
The landlord must use Form 2B and the tenant must use Form 4C. The Forms can be either handed to the other party, posted to them or left for them at the last known address, or to an email address or fax number that has been provided for the purposes of service of notices. For the forms go to the sa.gov.au website here.
If the property is safe to live in, but requires repairs, a tenant needs to give the landlord notice of the repairs. See further Repairs.
A serious breach of a tenancy agreement is grounds for terminating the tenancy – either by notice to the other party or by application to the South Australian Civil and Administrative Tribunal (SACAT). Generally terminations by notice are for less serious breaches or where a breach is capable of being rectified (fixed). In some instances the right to terminate may be available both by notice or by application.
How to give notice (rules of service)
Where there is a breach by the tenant
The following is a summary of what actions are available to a landlord where a tenant has breached the residential tenancy agreement. These apply to both fixed and periodic tenancies.
Unpaid rent [s 80] – by notice
Where the rent (or any part of the rent) remains unpaid for at least 14 days the landlord may give a notice (Form 2 – also referred to as a breach notice) to the tenant requiring them to remedy the breach. The tenant then has seven clear days to pay the rent owing. If the rent is not paid within the time given the tenancy terminates automatically [Residential Tenancies Act 1996 (SA) s 80(2)(c)]. This is distinct from other circumstances when a tenant breaches an agreement [see s 80(1)], where the tenant is given a further seven days to leave. See below, Other breaches.
However, the breach notice will be ineffectual unless served the day after rent becomes due For example, if rent has been paid until 1 September the rent is next due on 2 September. This means that a tenant would not be in arrears until 3 September, making the earliest date for which a notice can be issued 17 September.
Serious breaches [s 87(1)] – by application to SACAT
A landlord may apply to the Tribunal (SACAT) for an order terminating a tenancy and granting possession of the premises where there has been a breach of the agreement that is sufficiently serious to justify termination of the agreement [s 87(1)]. This procedure may be preferable termination by notice under section 80 where the breach is not capable of being remedied.
Serious damage or injury [s 87(2)] – by application to SACAT
If the tenant intentionally or recklessly causes, or is likely to cause, serious damage to the premises or injury to the landlord or people in adjacent premises a landlord may terminate a residential tenancy agreement [s 87(2)]. No notice is necessary, but the landlord must apply to SACAT for an order terminating the tenancy (using Form 7). Note that a fee applies.
Repeated failure to pay rent [s 87(1a)] – by application to SACAT
A residential tenancy agreement may also be terminated, on application by the landlord to the Tribunal, where the tenant has failed to pay rent and, on at least two occasions in the 12 month period preceding the breach had been given notice under section 80. However, under section 87(1b) the Tribunal (SACAT) may make alternative orders requiring the tenant to comply with specified conditions relating to payment of rent.
Where impossible for tenant to rectify breach [s 87] – by application to SACAT
Whilst a tenancy may be terminated by notice under section 80 if the tenant is in breach it may be more appropriate to seek an order for termination through SACAT where the breach is not capable of remedy.
Example of an unremediable breach by tenantYeomans v Janoska & Parry (RT10/1337)The tenants were responsible for serious damage to the rental premises including a hole in the front door and a bedroom screen that was destroyed and removed during an altercation. In addition, there were frequent loud arguments between the tenants which disturbed their neighbours. The male tenant had threatened several of the neighbours, some of who were elderly, with violence to themselves or, in one case, to a pet dog. The Tribunal found that the tenancy agreement had been breached under section 87(2) and ordered termination of the agreement.
Other breaches [s 80] – by notice
For breaches other than non-payment of rent and serious breaches, the landlord must give the tenant at least seven days notice (Form 2) to remedy the breach. The tenant then has a further seven days to vacate if the breach is not rectified [Residential Tenancies Act 1995 (SA) s 80(1)(b)(ii)].
Abandonment [s 94] – by application to SACAT
Where a tenant abandons the property, the landlord may apply to SACAT for an order that the property has been abandoned. In determining whether a tenant has abandoned the premises the Tribunal may look at any failure to pay rent or any evidence that the tenant no longer occupies the premises as a place of residence. The Tribunal may also order that the tenant pay compensation to the landlord [s 94(3)].
Unacceptable conduct [s 90] – by application to SACAT
A tenancy may be terminated on application to SACAT by the landlord where there has been unacceptable conduct on the part of the tenant. Section 90(1) specifies that where a tenant has used the premises, or allowed the premises to be used, for an illegal purpose; caused or permitted a nuisance; or, caused interference with the reasonable peace, comfort or privacy of another person residing in the immediate vicinity a landlord may apply for the tenancy to be terminated.
If a tenant wishes to preserve the tenancy, the tenant may apply to SACAT for an order declaring that they are not in breach, or have remedied the breach or to have the tenancy reinstated [see 80 (4)]. Such an application can be made at any time after receiving the notice but before giving vacant possession to the landlord.
There is provision under section 80(5) for the Tribunal to reinstate a tenancy, even where satisfied that it has been validly terminated, if the Tribunal concludes that it would be just and equitable to reinstate the tenancy.
Where there is a breach by the landlord
By notice – non serious breaches/breaches capable of being remedied
If a landlord has breached a tenancy agreement and it is possible for the landlord to rectify the breach, the tenant may serve a notice on the landlord (using Form 4). If the breach is not remedied within a specified period (at least seven days) then the tenancy is automatically terminated by force of the notice after the expiration of at least a further seven days [Residential Tenancies Act 1995 (SA) s 85].
The landlord may respond by applying to the Tribunal at any time before the date fixed by the notice or before the tenant gives up possession for an order declaring that there is no breach, that it has been remedied or that the tenancy be reinstated [s 85(2)].
Under section 85(3) even if the Tribunal is satisfied that the tenancy has been validly terminated it can reinstate the tenancy if satisfied that it is just and equitable to do so.
By application – serious breaches/breaches not capable of being remedied
Where a landlord has committed a serious breach of the tenancy agreement a tenant may make an application for termination of the agreement [s 88]. The provision under section 88 is also appropriate where the breach is one that is not capable of being remedied.
Example of an unremediable breach by landlordYeend v Rainsford (R0533/97)The tenant applied for an order to terminate the tenancy due to the landlord’s failure to advise about a restriction to her use of the back yard of her unit due to a neighbour’s right of access across the backyard. Under sections 64 and 65 of the Residential Tenancies Act 1995 a tenant is entitled to vacant possession of a premises and must be advised by a landlord if there is any legal impediment (such as a right of way). The landlord denied that there was any breach but the Tribunal concluded that the landlord was unable to provide possession free from the neighbour’s access to the yard and as such there was a breach to the tenant’s entitlement. As this situation could not be remedied and the tenant had suffered undue hardship termination of the agreement was ordered.
See also Ending a Tenancy Agreement.
At the end of a tenancy, there are certain issues that need to be dealt with to finalise the tenancy.
Inspection of premises
The tenant and the landlord (or the landlord's agent) should meet at the premises on the last day - or as soon as possible after the tenant's possessions have been removed and the premises have been cleaned - to inspect the premises. Using the inspection sheets from the commencement of the tenancy both parties need to compare the present state of the premises with the state they were in when the tenancy began.
All keys must be returned to the landlord or the landlord may be able to have new locks fitted at the tenant's expense.
When a tenancy ends the security bond can be claimed by completing a Bond Refund Form and lodging it with the Commissioner for Consumer Affairs (Tenancies Branch of Consumer and Business Services). If both the tenant and landlord sign the form, the bond is paid as agreed.
Where an agreement cannot be reached and one party lodges the form, the Commissioner will post a notice to the other party giving that person 10 days to dispute the application.
If the application is disputed, the Tenancies Branch will attempt to conciliate and if it cannot be conciliated may refer it to the South Austrailan Civil and Administrative Tribunal (SACAT). If the application is not disputed within the 10 days the Commissioner will pay the security bond to the applicant [Residential Tenancies Act 1995 s 63].
Section 97B of the Residential Tenancies Act 1995 (SA) details the steps that must be taken by a landlord when dealing with abandoned goods. The action that can be taken depends on the type of goods being dealt with.
Where the property concerned is perishable goods the landlord may, at any time after recovering possession of the premises, remove the perishable goods from the premises and destroy or dispose of them [s 97B(2)].
Abandoned property other than perishable goods that has a value less than it would cost to remove, store and sell
Where the property concerned is not perishable but is of low value the landlord may, after at least two days have passed since recovering possession of the premises, remove such property from the premises and destroy or dispose of them. For items to fall within this category the value of the property must be less than a fair estimate of the cost of removal, storage and sale of the property [s 97B(3)].
Other abandoned property (excluding personal documents)
Where the abandoned property is not perishable or of low value the landlord must, as soon as reasonably practicable, make reasonable attempts to notify the tenant that such property has been found on the premises. The landlord must then take reasonable steps to keep the property safe for a period of at least 28 days after having taken possession of the premises [s 97B(4)].
Advertising is not necessary and the focus is instead on taking reasonable steps to ensure the property is kept safe until at least 28 days after possession of the premises has been recovered.
The owner of the goods stored may, at any time before the goods are sold, reclaim the goods after paying the landlord reasonable costs for the removal and storage of them [s 97B(5)].
If abandoned property is sold the landlord is entitled to recover reasonable costs incurred in removal, storage and disposal of the items as well as any amounts owed to him/her under the residential tenancy agreement [s 97B(7)]. The balance (if there is any) must be paid to the owner of the property, or if the identity and address of the owner are not known to, or reasonably discovered by the landlord, to the Commissioner for Consumer Affairs.
Tenant’s right to return to collect property
Within a period of two days after recovering possession a landlord must allow the tenant access to the premises in order to reclaim any abandoned property [s 97B(2a)]. Abandoned property cannot be removed or disposed of by the landlord during this time.
If a dispute arises regarding the disposal of goods the Tribunal has the power to make orders relating to the disposal, or payment of proceeds from any sale, of abandoned goods [s 97B(8)].
There are different procedures where the abandoned property consists of personal documents. In these cases the landlord must, as soon as practicable, make reasonable attempts to notify the tenant that the documents have been found on the premises. They must then take reasonable steps to keep the documents safe until at least 28 days after possession of the premises is recovered. If the documents are not claimed within this period, the landlord may destroy or dispose of them [s 97C].
These procedures only apply to property left behind after the end of a residential tenancy agreement. In other situations people who are left with unclaimed goods must follow a procedure set out in the Unclaimed Goods Act 1987 (SA).
The South Australian Civil and Administrative Tribunal (SACAT)
Disputes arising in relation to residential tenancy agreements are heard by the South Australian Civil and Administrative Tribunal (SACAT).
The Tribunal does not have to follow the rules of evidence and can take evidence in whatever manner it thinks fit [South Australian Civil and Administrative Tribunal Act 2013 (SA) s 39]. Parties present their own cases.
The Tribunal generally will not allow a person to be represented by a lawyer unless all parties agree [Residential Tenancies Act 1995 (SA) s 113(2)]. If the property is managed by a land agent, the agent will usually appear for the landlord. Where a land agent appears, the tenant can be represented by a lawyer if he or she so wishes [s 113(2)].
Generally parties must bear their own costs but the Tribunal can make an order for costs if they think it appropriate [South Australian Civil and Administrative Tribunal Act 2013 (SA) s 57].
The Tribunal can arrange a free interpreter if one is needed. However, the Tribunal registry should be informed prior to the hearing so that the necessary arrangements can be made.
Applications for orders of the Tribunal can be lodged either personally, by post or online on the SACAT website. Wherever possible, applications are heard within two weeks and no later than six weeks after lodgement. The Tribunal has the power to make binding orders on any aspect of residential tenancy agreements.
The Tenancies Branch of Consumer and Business Services has a telephone advisory service that operates during work hours (131 882).
How applications are heard
The Tribunal can hear any application for an order relating to a residential tenancy agreement. In the case of monetary claims, the amount claimed must not be more than $40 000, unless both parties consent in writing to the Tribunal's jurisdiction [s 24]. Once such agreement is given, neither party can change their mind. If there is no such agreement, the application must be made in the appropriate court. The amount of the claim will determine which court has jurisdiction.
A party to a tenancy agreement who wishes to apply for an order must first fill out an application and pay the application fee which, as of 29 March 2015, is $69 [see South Australian Civil and Administrative Tribunal Regulations 2015 Schedule 1].
The Tribunal has the power to require parties to attend a compulsory conference before the matter is listed for a hearing [s 50] and also has the power to refer a matter for mediation [s 51].
If no settlement is reached the matter is set down for a hearing by the Tribunal. The parties should attend the hearing. If they do not it will proceed in their absence and they may lose the opportunity to argue their case. However, it is possible in exceptional circumstances for matters to be re-heard. Orders of the Tribunal for payment of money are registered in the appropriate court and enforceable in the same manner as other court orders.
Orders the Tribunal may make
Under sections 110 and 111 of the Residential Tenancies Act 1995 (SA) an applicant can ask the Tribunal for one or more of the following orders:
- that all or part of the security bond be paid to the applicant
- that the other party perform some part of the agreement
- that the other party not act in breach of the agreement
- that the agreement be terminated
- for possession of the premises
- for compensation for breach by the other party
- for compensation for losses caused by 'abandonment' (breaking a lease)
- that the premises be declared abandoned
- that a provision of the Residential Tenancies Act 1995 (SA) should not apply to the tenancy agreement or the premises
- any other related order
In addition to the powers stated above, other specific powers of the Tribunal are:
- to declare that rent is excessive [s 56]
- to order eviction from premises [s 93]
- to order that provisions of the Act shall not apply to an agreement or to premises [s 119]
The Tribunal also has the power to make a restraining order where there is a risk that a tenant or a guest of the tenant may cause serious damage to the property or a person. The penalty for breaching a restraining order is imprisonment for up to one year [s 112]. This provision has been extended to include situations of domestic abuse. If the Tribunal is satisfied that a co-tenant may cause serious property damage or personal injury or commit an act of domestic abuse they may make an order prohibiting the co-tenant from engaging in such conduct [s 112(1a)].
Power to terminate or replace existing tenancy agreement
Where an intervention order has been issued by the Court or domestic abuse has occurred, an application can be made to the South Australian Civil and Administrative Tribunal (SACAT) for orders to either terminate or replace the existing residential tenancy agreement (i.e. lease). The usual fee that would apply to applications to SACAT may be waived for these applications, see SACAT's fee waiver information.
As a result, victims of domestic abuse now have the right to:
1. remain in the tenancy (without the alleged abuser); OR
2. have the tenancy terminated so they can leave without being adversely affected financially or otherwise (e.g. see Residential Tenancy Databases – Terminations based on domestic violence for details about tenancy database issues).
A process to remain in the tenancy is also available to non-domestic abuse victims who may choose to apply for tenancy orders in the Magistrates Court as part of their application for an Intervention Order [see What can be ordered? Tenancy Orders].
Remaining in rental premises will require the existing agreement to be replaced. The Tribunal has the power in these cases to remove the alleged perpetrator from the lease [see Residential Tenancies Act 1995 (SA) s 89A(4)(a)]. Before making such an order the Tribunal must be satisfied that the tenant/co-tenants under the new agreement are able to reasonably comply with the new agreement [s 89A(6)(a)].
Choosing to leave rental premises will require the existing agreement to be terminated and the Tribunal has the power to do this under section 89A(1) of the Residential Tenancies Act 1995 (SA).
In either instance the Tribunal must be satisfied that an intervention order is in force against a person residing at the premises for the protection of either the applicant or a domestic associate of the applicant. In the absence of an intervention order the Tribunal can terminate or replace a residential tenancy agreement if satisfied that a person residing at the residential presmises has committed domestic abuse against either the applicant or a domestic associate of the applicant.
The relationship of domestic associate covers many relationships. Two people are domestic associates if:
- they are married to each other;
- they are domestic partners;
- they are in some other form of intimate personal relationship in which their lives are interrelated and the actions of one affect the other;
- one is the child, stepchild or grandchild, or is under the guardianship of the other (regardless of age);
- one is a child, stepchild or grandchild, or is under the guardianship, of a person who is or was formerly in a relationship with the other;
- one is a child and the other person is a person who acts in loco parentis in relation to the child;
- one is a child who normally or regularly resides or stays with the other;
- they are brothers or sisters or brother and sister;
- they are otherwise related either through blood, marriage, a domestic partnership or adoption;
- they are related according to Aboriginal or Torres Strait Islander kinship rules or are both members of some other culturally recognised family group;
- one is the carer of the other (within the meaning of the Carers Recognition Act 2005 (SA)).
See Residential Tenancies Act 1995 (SA) s 3.
Liability for damage
Where a residential tenancy is terminated because of an intervention order or due to domestic abuse and the Tribunal finds that not all co-tenants under the lease are responsible for damage caused to the premises, the Tribunal may make an order for payment of compensation against those co-tenant(s) responsible [s 89A(11)].
Compensation for landlord
The Tribunal also has the power to make an order for compensation to a landlord for loss and inconvenience where termination of a residential tenancy agreement has been because of an intervention order [s 89A(10)].
Under section 89A(12), where an order has been made for payment for damage or compensation under section 89A(10) and/or 89A(11), the Tribunal may also make orders for payment of the bond to the landlord and any co-tenant who has been found not liable.
If you are in fear of being subjected to domestic abuse, you should contact your local police station: call 131 444 for patrol assistance, or call 000 in case of emergency.
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