As a tenant you have rights under the Residential Tenancies Act 1987 and Residential Tenancies Regulation 2006. This factsheet explains the law in New South Wales about starting a tenancy.

The residential tenancy agreement

A residential tenancy agreement outlines the rights and responsibilities of the tenant/s and their landlord. Agreements are usually written in a standard form but can also be oral (e.g. a conversation between you and the landlord), or partly written, partly oral. Either way, all agreements must follow the Residential Tenancies Act 1987.

You have the right to a written agreement and a copy of your agreement.

When signing the agreement, the landlord (or agent) must give you a copy of The renting guide by the Office of Fair Trading.

There are two types of agreement:

• fixed term – for a specific period of time (e.g. six months)
• continuing – for no specified period.

Reservation fees

You may be asked to pay a reservation fee while the landlord decides whether to accept your application for a particular property.The most the landlord can ask you to pay is one week's rent. Only one fee can be held for a particular property at a time.

The landlord/agent must give you a receipt for the fee.

If the landlord accepts your application, the fee will go towards the rent starting from the first day of the tenancy agreement.

If the landlord does not accept your application, they must refund the fee. This also applies if they have promised to do certain repairs and do not, or if they change an essential term of the agreement (e.g. the amount of rent) and you do not agree.

If you decide not to rent the property for any reason, the landlord can keep part of the reservation fee for the rent that they lost while you reserved the property.

Costs at the start

You usually have to pay the following:

• preparation of the agreement – up to $15
• two weeks rent in advance (less any reservation fee)
• bond (no more than four weeks rent unless the premises are furnished).

The landlord must give you a written statement of the costs before you sign the residential tenancy agreement.

Security deposits for electricity, gas and telephone are not part of the residential tenancy agreement – you must arrange for these to be paid.

Rent in advance

The Act limits how much rent the landlord can ask you to pay in advance:

• If the rent is $300 per week or less, you can be asked to pay up to two weeks rent in advance.
• If the rent is over $300 per week, you can be asked to pay up to a month in advance.

To charge more than these amounts is an offence and the landlord faces a penalty if they do.

A landlord cannot demand further rent until it falls due and cannot ask for a post-dated cheque.

Records of rent payments

A landlord does not have to give you receipts if you pay rent into a bank or building society account or by automatic deduction. You can ask for a copy of the rent ledger or recent rent records from the landlord/agent, which they must keep.

Rent receipts must be issued if paying by any other means. Receipts must show:

• the landlord's or agent's name
• your name
• the address of the property
• the period for which the rent is paid
• the date the rent is received
• the amount of rent paid.

Additional terms in the agreement

The standard written residential tenancy agreement has a section 'Additional Terms'. Additional terms that conflict with the Residential Tenancies Act cannot legally be enforced.

If you are unsure about an additional term, get advice from your local Tenants Advice and Advocacy Service or apply to the Consumer, Trader and Tenancy Tribunal for an order that the term is invalid. Additional terms that the tribunal has found to conflict with the Act include: being required to steam-clean carpets when you leave, being responsible for repairs to the stove, penalties for paying rent late.

The condition report

The landlord/agent must give you a condition report when you move in. The report describes the condition of the property. It must be filled in by you and the landlord/agent at the start and the end of the tenancy.

The landlord/agent must give you two copies – one to return to the landlord and one for you to keep. Complete and return the condition report within seven days.

Filling out the report

Inspect the condition of the premises and fill out the condition report carefully. This will save you problems if the landlord disputes the return of your bond at the end of the tenancy. Take photographs of the condition of the premises – this can also help if there is a dispute.

Common problems include cracked windows, grease on the stove, marks on walls and stains on carpets. If repairs are needed, ask the landlord to do them and get their agreement in writing. There is a section at the back of the condition report where you should list repairs the landlord has promised.

If the landlord does not give you a condition report, write a detailed report on the condition of the property yourself and get a witness to sign and date it.

Bond

A bond is money you pay at the start of the tenancy as a security in case you do not follow the terms and conditions of the agreement.

You must fill out a 'Bond Lodgement' form which is signed by both you and the landlord/agent. The landlord/agent must lodge the form at the Office of Fair Trading Renting Services within seven days.

If you do not receive an advice of bond lodgement, contact Renting Services. (Also see Factsheet 03: Bond.)

Guarantors

A guarantor is a person who takes financial responsibility if a person on a contract fails to meet the terms of that contract. Sometimes young people or people without a credit history are asked to provide guarantors.

It is an offence under the Landlord and Tenant (Rental Bonds) Act 1977 for a landlord/agent to ask a tenant to provide a guarantor for a residential tenancy agreement. Even if a tenant gives the name of a guarantor, this cannot be legally enforced.

Rent assistance

The Housing NSW Rentstart scheme provides financial assistance to disadvantaged tenants in the private rental market, including money for bond, rent in advance and service connection fees. Apply at your local Housing NSW office (phone 1800 629 212 for your local office).

Updated: June 2008

Further help

Tenants NSW website: www.tenants.org.au
Tenants Hotline: 02 8117 3750 or 1800 251 101
Tenants Advice and Advocacy Services: see the Tenants NSW website or call the Tenants Hotline to find your local general or Aboriginal service Renting Services (NSW Office of Fair Trading): 133 220

Other factsheets

This is one of a series of factsheets on tenancy issues. Other factsheets are available from www.tenants.org.au/publish/factsheets/ or your local Tenants Advice and Advocacy Service.