Renting

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Renting under the age of 18

A person must enter into a written Residential Tenancy Agreement in order to rent in New South Wales. In order to rent a property in NSW a person must enter into a Residential Tenancy Agreement. The agreement may be oral or in writing, although it is strongly recommended that tenants enter into a written agreement which will provide a clear record of your rights and obligations as a tenant. A Residential Tenancy Agreement is a contract that will state the terms of your rental, such as the duration and rent payable.

Age may not be a restriction to renting in New South Wales. A person under 18 years of age may enter into and be bound by a contract, so long as it is for their benefit. A lease is likely to be considered ‘for the benefit of’ a minor because it provides a necessary service. Therefore, a person under 18 years of age will be bound by such contracts unless they didn’t understand that the agreement would be binding when they signed it. A person under 18 years of age will be bound by contracts they enter into, where they are for their benefit.

Parents have a legal responsibility for their children until they are 18 years of age. Your parents have the responsibility of ensuring that you have a safe place to live. If you leave home before you turn 18, Your parents may seek assistance from the police or the NSW Department of Family and Community Services to have you return home.  Whether you are likely to be required to move back home will be dependent upon many factors. You will not be required to return home if it is unsafe for you to do so.

A landlord cannot discriminate against a potential tenant on the basis of age. A landlord may, however, have a number of reasons for rejecting an application for tenancy.  It may therefore be difficult to prove that you have been discriminated against on the basis of age.  You may lodge a complaint with either the Anti-Discrimination Board NSW  or the Australian Human Rights Commission if you believe you have been discriminated against.

If you would like some specific help or advice on this topic, please contact us here.

Applying to rent

People under the age of 18 sometimes have difficulty finding a landlord that is willing to rent them their property.  They may be worried that you will damage the property or cannot afford the rent. Here are some things to include in an application for rent that may help your application:

• provide copies of identification, such as a driver’s license;
• provide proof of income, such as payslips from your job or a statement from Centrelink; and
• provide references (2 is recommended) to show that you are a responsible person., these could be from For example, you could ask your current or past employers or a school teacher for a references.

Bond

A landlord may ask you to pay up to 4 weeks rent as a Bond upon entering into a lease. This will provide the landlord with security in case you breach your rental agreement in certain ways, such as by not paying your rent. The landlord is required to deposit the bond with the NSW Rental Bond Board, who will hold the money until you or the landlord makes a claim for the bond to be paid. Usually the bond money will be returned to the tenant at the end of the lease. Your landlord can ask you to pay up to 4 weeks rent as a Bond. Your landlord can also ask you to pay up to 1 weeks rent in advance, which is called a ‘holding fee’ so make sure you budget for these costs.

Can landlords refuse to return your bond?

Your landlord can make a claim for any intentional, negligent or irresponsible damage you have caused. They cannot make a claim for ‘fair wear and tear’.

Fair wear and tear includes:

• Paint fading and discolouring over time;
• Worn carpet due to day‑to‑day use;
• Garden mulch breaking down over time.

Damage that you may be responsible for includes:

• Cracked window panes or glass arising from careless slamming of the windows;
• Paint discolouring due to candle smoke;
• Garden mulch that has been dug up by a pet.

If you think you are being unfairly charged for damage that is not your fault, or that is fair wear and tear, you can write your landlord a letter.  See here for an example.

You have 14 days to respond to the claim – try try to get your landlord to change their mind or lodge a claim with NCAT.

If things do go to a hearing, make sure you have evidence to respond to your landlord’s claim. Tell NCAT if you didn’t get an official condition report, you disagree with what’s written in it or if you didn’t get to go to the final inspection.

If you would like some specific help or advice on this topic, please contact us here.

Issues with the landlord

Your landlord must make sure the property is reasonably clean, do what’s reasonable to provide quiet enjoyment of the property and make sure the property is in good repair.

Responsibilities when renting

You must allow the landlord to enter when they have the right to, not cause a nuisance or disrupt neighbours, not damage the property or allow damage by anyone you allow on your property avoid damaging the property and common areas, tell the landlord as soon as possible if the property is damaged, keep the property in a reasonably clean condition and not make changes to the property without permission from your landlord.

For both landlords and tenants

If either you or your landlord do not do all the things you are responsible for, the other person can may be able to terminate the tenancy, request compensation or apply for a Tribunal order to make the person in breach fulfil their responsibilities. Even if your landlord fails to fulfil their responsibilities, you should keep paying rent, otherwise they may be able to terminate your rental agreement.

Rent

Increases in rent

Landlords can increase your rent but there are certain rules they must follow. If they do not follow the rules, then you do not have to pay the increase:. The number of times your landlord can increase your rent depends on the type of tenancy agreement you have:

• for a Fixed Term Tenancy Agreement less than 2 years, the landlord cannot increase your rent unless the agreement says the landlord can;
• for a Fixed Term Tenancy Agreement more than 2 years, the landlord can only increase your rent once every 12 months; and
• for a Periodic Tenancy Agreement, where the fixed term has expired or no fixed term has been agreed, there is no limit on the number of times your landlord can increase your rent.and
• Your Landlord must write to you to let you know of any rent increases, 60 days beforehand, in writing and include certain details.

You can challenge the a rent increase by making a request to the NSW Civil and  Administrative Tribunal (you must make a request within 30 days after the landlord has let you know of the increase). However, if the landlord complies has complied with the rules above, you should pay the increased amount even if you are in the middle of challenging it. If your challenge is successful, your landlord will may be made to return your money.

Missed rent payments

You should do the following:

• Contact your landlord or real estate agent ASAP and tell them when you will be paying;
• Offer to pay the overdue rent over a period of time (if you can’t afford to pay it all at once);
• Keep written copies of all communication with your landlord or /real estate agent as evidence; and
• Contact housing services that may be able to give you financial assistance on 1800 808 488.

If you are 14 days late on rent, your landlord can notify you by in writing to leave the property within 14 days.

Issues with other tenants

Co-tenants

Co-tenancy is when there are two or more tenants who have signed the same lease. If you are Co-Tenants then you will be Jointly and Severally Liable under that agreement. This means that if you leave before your lease is up but your name remains on the Tenancy Agreement, then you may still be liable for the rent payments., therefore You should make sure that you let your landlord know in writing if you leave your property, so your name can be removed from the lease.  Your responsibilities as a Co-Tenant include:

• all rent (including your Co-Tenants share if they don’t pay); and
• damage to the property even if it is not caused by you.

Therefore you can be sued for payment of required to pay for rent and damage to the property and/or be evicted even if you haven’t done anything wrong.

Sub-tenants

Sub-tenancy is when one or more of the tenants are the Head-Tenant and the others are the Sub-Tenant. Only the head-tenants’ name(s) will be on the lease. The Head-Tenant is responsible for all the actions of the Sub-Tenant. The Head-Tenant becomes the landlord for the Sub-Tenant and will be responsible for all the things a landlord is responsible for. A tenant cannot sub-let the property without the landlord’s written consent.

Ending your tenancy

Periodic tenancies

To end your Periodic Tenancy Agreement, you must notify your Landlord a minimum of 3 weeks ahead of when before the date you intend want to vacate the premises leave the property and return the keys. Note that if you fail to do either of these requirementsIf you don’t give enough notice, you may be required to pay rent until you do so.

Fixed-term tenancies

If you’re in a Fixed Term Tenancy Agreement, you will usually be required to stay in that lease for the term until the end date of that lease.  However, you may be able to end the agreement before that time with your landlord’s consent, for legally specified reasons, by transferring your tenancy to someone else, or by breaking your Tenancy Agreement.

Ending a Tenancy Agreement with consent

The easiest way to end a Tenancy Agreement is with the consent of your landlord.  If you don’t have a legal reason to end the agreement, write to your Landlord, telling them that you want to leave and when you plan to do so.  Give them as much time as possible, and try to get their consent in writing. If they give it, move out on the date you specified in the notice, and hand back the keys.

Ending for a legally-specified reason

If you’re in a Fixed Term Tenancy Agreement, you may be able to end your Lease early for a legally specified reason. These include your landlord breaching the Tenancy Agreement, the premises becoming unusable, if your lease is for 2 years or longer, your landlord increasing your rent, prescribed ‘extraordinary’ grounds (e.g. domestic violence), and if continuing the tenancy would cause you to suffer undue hardship.

If any of these sound similar to your situation, you may be able to end your Tenancy.  In order to do so, you will need to give your Landlord a written Termination Notice and return the keys, before moving out.  You may, however, also need to apply to the NSW Civil and Administrative Tribunal for a Termination Order if you are intending to Terminate for undue hardship.

A Termination Notice should include the address of the place you are leasing, the date that you will be moving out, and the reason why.  You should sign the notice, and must send or deliver it to your agent or landlord. Make sure that you keep a copy, and record how and when you delivered or sent it.

The required notice, or time before  to give your landlord before you move out, you have to give your landlord will vary depending on what your reason for termination is.  

See the below table:

*Note that if you are posting your Termination Notice, you must allow 4 working days for delivery.

Transferring your tenancy

You may be able to leave your Fixed Term Tenancy Agreement by transferring it to someone else if your Landlord gives their written consent.  If you are the sole tenant of the property (i.e. the only person who signed the Tenancy Agreement), the Landlord does not require a reason to withhold this consent.  If you are a Co-Tenant and at least one of the other tenants will remain on the Lease, your Landlord must not unreasonably withhold their consent.

Breaking your Tenancy Agreement

Another way to end your Lease is to breach the Tenancy Agreement.  This is not recommended, as you may be required to pay your Landlord money.  The first step before breaking your agreement is to seek your Landlord’s written consent to end the agreement.  If they refuse to do so, check to see if your agreement contains a Break Fee – the place to look for this is usually under an ‘Additional Terms’ section.  If a Break Fee is specified, this will usually be the amount that you have to pay your Landlord to leave the property before the end of your rental agreement.  If, however, your Lease is for under 3 years, the specified Break Fee must be a maximum of:

• if you have been in the Lease for under less than half of the term, 6 weeks’ worth of  rent; orotherwise
• 4 weeks’ worth of rent.

If no Break Fee is specified, you will be able to negotiate how much (if any) money you will pay with to your Landlord.  Remember your Bond, and ask whether your Landlord is intending to keep it. Make sure that any agreement you reach is put in writing.  At that point, or if you are unable to come to an agreement, you can breach your Tenancy Agreement by vacating the property and returning the keys. Your landlord or agent may ask the Tribunal to order you to pay for their losses in finding a new tenant.

You can find sample letters to send to your landlord for the above situations here.

Getting back property

The landlord must give you notice they are planning to throw away your belongings. You then have 14 days (for goods of value) or 90 days (for personal documents) to collect your belongings. The notice can be given in writing, given orally (directly or through a phone call), sent by post or stuck to an easy to spot location on the rental property.

The landlord has to give back your belongings if you collect them within the above time period. However, they can charge you an Occupation Fee for storing your goods. If you don’t collect your items in time, they can throw your items away.

Blacklisting

Blacklisting is a process that involves a tenant being added to a Tenancy Database.  A tenancy Tenancy database Database may include information about you as a tenant that might make it harder for you to rent a property in the future.

You may be added to a tenancy Tenancy database Database after your tenancy has ended. Your name will only be added if:

• before leaving the property, you breached the tenancy agreement for an amount greater than the bondBond; or
• NCAT ordered your tenancy to end because of something you did wrong.

Your landlord must inform you if they want to put your name on a Tenancy Database and give you at least 14 days to review the information and object to the accuracy, completeness and clarity of the information. The information must include the nature of the breach. A landlord considering your application who comes across your name on a database must also tell you.

You can request the tenancy database listing to be changed or removed.  Write to your landlord using this sample.

If that doesn’t work, you can appeal to NCAT. You can appeal to NCAT if the listing is more than 3 years old.  You can also appeal to NCAT if you think the listing is unjust, inaccurate, incomplete, ambiguous or out of date (you have repaid the bond Bond difference or NCAT’s termination order wasn’t enforced). NCAT may then order for the listing to be removed or changed.

Definitions

• ACAT – ACT Civil and Administrative Tribunal
• Assignment – a transfer of a legal or equitable right.  In regards to tenancy, the right in question is the right to possession of the property.
• Bond – money the tenant pays as security in case they breach the residential tenancy agreement
• Break Fee – A Break Fee is a specified amount that you have to pay your landlord for breaching your Tenancy Agreement.c
• Compliance Order – If your landlord has failed to remedy a breach, VCAT may issue an order that they do so.
• Co-Tenant – If someone else has signed your Tenancy Agreement as a tenant, you will be considered co-tenants.  This is usually the case if you are renting as part of a share house.
• Exit Condition Report – In Queensland, you must provide your landlord with a report detailing the condition of the property when your tenancy ends.  The Exit Condition Report details the state of the property, noting any damage, and is vital for getting your Bond refunded.
• Fixed Term Tenancy Agreement- when the landlord and the tenant agree that the lease will last for a specific length of time e.g. 6 months, 1 year.
• Goods – items that are not perishable, not dangerous and are worth more than what it will cost to remove, store or sell them.
• Head-Tenant – if you enter into a tenancy agreement with a landlord and then enter into another residential tenancy agreement with a tenant to let another person occupy the property for rent, you are a head-tenant and the person you allowed to occupy the property is a sub-tenant
• Joint and Severally Liable – you can be sued for the actions of your co-tenant (even if you were not at fault).  However if you are sued and it was not your fault, you can then in turn sue your co-tenant. For example if your landlord sues you for damages to the property that your co-tenant caused, you may be asked to pay for the damages.  Then you can sue your co-tenant for the money that you had to pay in damages.
• Mutual Termination Agreement – A written agreement between you and your landlord to end your tenancy.
• NCAT – New South Wales Civil and Administrative Tribunal.
• Notice of Intention to Leave – A government form (form 13) that you must supply your landlord with before you can end your tenancy.
• Notice of Intention to Vacate – A written notice detailing that you want to end your tenancy and leave the property at a set date.
• NTCAT – Northern Territory Civil and Administrative Tribunal.
• Occupation fee – if the items you left behind prevents the landlord from renting the place to someone else, they can change you a fee each day equal to what your rent is per day.  They can charge you that fee for 14 days maximum.
• Periodic Tenancy Agreement – the agreement that occurs when the landlord and tenant don’t specify a set period of time that the lease will last for, or where a Fixed Term Tenancy Agreement expires without the tenancy ending.
• Personal Document – birth certificate, passport, bank books, financial statements, photos, personal collectables (e.g. trophies), correspondence (e.g. mail), licenses, records or anything else a person might want to keep
• QCAT – Queensland Civil and Administrative Tribunal.
• Residential Tenancy Agreement – an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence.
• Residential Tenancies Authority – the Residential Tenancies Authority is a Queensland government authority that handles tenancy issues in Queensland.
• SAT – State Administrative Tribunal.
• SACAT – South Australia Civil and Administrative Tribunal.
• Secretary – the Commissioner or Secretary for NSW Fair Trading.
• Standard Tenancy Terms – All Tenancy Agreements in the ACT automatically include a set of terms contained in schedule 1 of the Residential Tenancies Act 1997 (ACT).   Conflicting terms can only be added to the agreement if both you and your landlord apply to ACAT.
• Sub-Tenant- if you have a residential tenancy agreement with a tenant (not the landlord) then that person is the head tenant and you are a sub-tenant
• Termination Notice – A written letter that says that you want to end your tenancy.  It should detail the reason for why you are ending your tenancy, as well as providing a date that you intend to move out on.
• Tenancy Database – database containing personal information relating to you living at a rental property under a residential tenancy agreement
• VCAT – Victorian Civil and Administration Tribunal