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When can I rent a flat or house?

1    Pre tenancy

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   

3    Post tenancy

3.1    Blacklisting   

3.2    Retrieving your bond   

3.3    Recovering things you accidentally left behind   

 

1    Pre tenancy

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

A person may enter into a Residential Tenancy Agreement in order to rent in South Australia.  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 South Australia.  A person under 18 years of age may enter into a contract, so long as it is for their benefit and they understand the nature of the contract.  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 Department of Child Protection South Australia 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 SA Equal Opportunity Commission 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 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.  Your landlord can ask you to pay up to 4 weeks rent as a Bond, if your weekly rent is up to $250 per week.  Your landlord can ask you to pay up to 6 weeks rent as a Bond, if your weekly rent is greater than $250. The landlord is required to deposit the bond with the Commissioner for Consumer Affairs, who will hold the money until you or the landlord makes a claim for the bond to be paid.  Usually the tenant gets the bond back at the end of the lease. Your landlord can also ask you to pay up to 2 weeks rent in advance, which is often called a ‘holding deposit’.

 

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 written 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 terminate your rental agreement.

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. Your landlord:
•    must let you know of any rent increases, 60 days beforehand, in writing and include details of the rent increase and the date of the increase; and
•    cannot increase rent more than once every 12 months.

You can challenge the rent increase by making a request to the South Australia Civil and Administrative Tribunal. 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.

(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 131 299.

If you are 14 days late on rent, your landlord may notify you that you have at least 7 days to pay or your tenancy agreement will be terminated.

 

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, you may still be liable for the rent payments. You should make sure that you let your landlord know in writing if you leave, 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 not caused by you.

Therefore you can be sued for payment of 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-Tenants. 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 here for more information.

 

2.3    Ending your tenancy

In South Australia, you may be able to end your lease by coming to an agreement with your landlord, if your landlord breaches your Tenancy Agreement, by giving correct notice, if the property is put up for sale, if you assign the lease to someone else, if the property becomes uninhabitable, through an application to SACAT or by breaching your tenancy agreement.

Ending by agreement

You are permitted to end your tenancy at any time by moving out and returning the keys after gaining the consent of your landlord. If they are willing to give their consent, make sure to get it in writing and arrange a date to move out. On that date, return your keys and leave the property.

Ending by landlord breach

You may be able to end your Tenancy Agreement if your landlord has breached your agreement.  For example, your landlord may be in breach of your agreement if they fail to maintain and repair the property. To terminate for breach, you will need to provide your landlord with written notice, telling them what the breach was, and giving them 7 days to fix the breach. You should use this form to give the notice. If your landlord fails to do so, you may terminate your tenancy agreement and return the keys another 7 days later.

Ending with correct notice

If your Tenancy Agreement is Periodic, you may terminate your Lease by providing written notice to your landlord of your intention to leave.  You must provide your landlord with this notice at least 21 days before you intend to move out.  If you pay your rent monthly, however, you will need to give at least one month’s notice. You should use this form to give notice.

If you are in a Fixed Term Tenancy Agreement, you will only be able to end your tenancy with the correct notice at the end of the fixed term. To do so, you will need to give your Landlord written notice of your intention to end your lease at least 28 days before you plan to move out. You should use this form to give notice.

Ending when the property is put up for sale

You are able to end your Tenancy Agreement if your landlord has sold the property within 2 months of you moving in and they did not tell you that they were planning to sell prior to you entering the agreement.

Ending by assignment

You may Assign your Tenancy Agreement to another person with your landlord’s written consent.  Assigning is where you ‘hand over’ your lease to another person.  For example, half way through your six month lease, you sign over the Tenancy Agreement to a new tenant for the remaining three months.

Ending where the property is uninhabitable

You may end your Tenancy Agreement at any time by providing your landlord with a Notice of Termination if the property has been destroyed, rendered uninhabitable or acquired by the government.

Ending through application to SACAT

You may also apply to SACAT to have the tribunal terminate your Tenancy Agreement on various grounds.  These include for breach of the agreement, on hardship grounds and domestic violence.
If your landlord breaches your agreement, and you believe that your landlord is unable to fix the problem you can apply to the tribunal for a Termination Order.  The tribunal will only issue the order if the breach is serious.

If continuing the lease would result in undue hardship to you, you may apply to the tribunal to terminate your Tenancy Agreement.  Undue hardship does not usually include financial difficulties.

If you, someone you are in a relationship with, or a family member are the victim of domestic violence, and the abuser lives at the same property, you may apply to the tribunal to have your Tenancy Agreement ended.

Ending through breach

You may end your Tenancy Agreement at any time by breaching the agreement by moving out and returning the keys.  Note that you will likely have to pay your landlord compensation for finding a new tenant.

 

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

 

3.2    Retrieving your bond

There are two ways you can get your Bond back after your tenancy agreement has ended:
•    you can get a refund 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. If you are registered for Residential Bonds Online, make sure your email address is entered into the online system. If not, complete this form.
•    you can also make a Bond claim on if your own, even if you and your landlord can’t agree on the amount to be paid out. If the landlord disagrees with your claim, you might have to go to a hearing.

Alternatively, you will be notified if the landlord makes a claim against you. You have 10 days to respond to the notification – if you don’t, the Commissioner for Consumer Affairs may pay out the Bond according to the landlord’s claims.

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 respond to the notification and the case goes to a hearing, make sure you have evidence to respond to your landlord’s claim.  Mention at the hearing if you didn’t get an official condition report, you disagree with what’s written in it or that you didn’t get to go to the final inspection.

 

3.3    Recovering things you accidentally left behind

The landlord must notify you if they find your goods or personal documents left behind on their property.  You have 28 days from the date the landlord repossessed the property to collect your belongings.  If you do not collect your personal documents after 28 days, they may be destroyed or disposed.  If you fail to collect your goods, they will be sold or thrown out. The landlord has to give your goods back if you collect them within the above time period. However, they can charge you a fee for storing your goods.

 

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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