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When can I rent a flat or house?

1    Eligibility

1.1    I’m under 18, am I old enough to rent?   

1.2    Applying to rent   

1.3    Do I need to provide a bond?   

2    During tenancy

2.1    Issues with landlord   

2.2    Issues with other tenants   

2.3    Ending your Tenancy Agreement   

3    Post tenancy

3.1    Blacklisting   

3.2    Retrieving your bond   

3.3    Recovering things you accidentally left behind   

 

1    Eligibility

1.1    I’m under 18, am I old enough to rent?

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.

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 of NSW or the Australian Human Rights Commission if you believe you have been discriminated against.

 

1.2    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. For example, you could ask your current or past employer or a school teacher for a reference.

 

1.3    Do I need to provide a 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 also ask you to pay up to 1 weeks rent in advance, which is called a ‘holding fee’.

 

2    During tenancy

2.1    Issues with landlord

Responsibilities

(i)    Key things your landlord is responsible for:  make sure the property is reasonably clean, provide quiet enjoyment of the property and make sure the property is in good repair.

(ii)    Key things you’re responsible for:  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, 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.

If either you or your landlord do not do all the things you are responsible for, the other person 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.

See Factsheet for more details.

Rent

(i)    Rent increases:  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.

Your Landlord must write to you to let you know of any rent increases, 60 days beforehand.

You can challenge 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 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 may be made to return your money.

See Legal Answers for more details.

(ii)    Missed rent payments:  Tips on what to do if you’ve missed a rent payment:
•    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 in writing to leave the property within 14 days.

 

2.2    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. 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 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.

See Legal Answers for more details.

 

2.3    Ending your Tenancy Agreement

Periodic tenancies

To end your Periodic Tenancy Agreement, you must notify your Landlord a minimum of 3 weeks before the date you want to leave the property and return the keys. If 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 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.

(i)    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.

(ii)    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.

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 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 to give your landlord before you move out will vary depending on what your reason for termination is.  See the below table:

Termination reason

Required notice

Premises unusable

Immediate

Breach of agreement

2 weeks (14 days)

Extraordinary grounds

2 weeks (14 days)

Rent increase in a lease for 2 years or longer

3 weeks (21 days)

Hardship

Requires application to Tribunal


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

(iii)    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.

(iv)    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 less than half of the term, 6 weeks  rent; otherwise
•    4 weeks rent.

If no Break Fee is specified, you will be able to negotiate how much (if any) money you will pay 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.

 

3    Post tenancy

3.1    Blacklisting

What is a blacklisting?

Blacklisting is a process that involves a tenant being added to a Tenancy Database.  A Tenancy 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 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 Bond; 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.

What can I do about being blacklisted?

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 difference or NCAT’s termination order wasn’t enforced). NCAT may then order for the listing to be removed or changed.

 

3.2    Retrieving your bond

How can I get my bond back?

There are two ways you can get your Bond back after your tenancy agreement has ended:
•    if both you and your landlord agree on how much you should get back. The amount will be calculated after the final inspection and will take into account anything that you have broken or needs cleaning.  After you both agree, ask your landlord to sign this form and then send it to the Secretary; or
•    if you and your landlord can’t agree on the amount, you can challenge it by sending this form without the landlord’s signature. If the landlord disagrees with your claim, you might have to go to a NCAT hearing.

My landlord made a claim against my 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 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.

 

3.3    Recovering things you accidentally left behind

I left behind goods of value and/or personal documents

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.

 

NCYLC would like to express thanks to the law clerks and volunteers who assisted with the preparation of this material: Cecilia Chang, Callum Maher, Paul Propper, Ashley Wong.

This page was last updated in January 2017.

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