Factsheet 02 [PDF]

As a tenant you have rights under the Residential Tenancies Act 2010 and Residential Tenancies Regulation 2010. This factsheet explains the law in NSW about starting a tenancy.

The residential tenancy agreement

The terms of the residential tenancy agreement set out the tenant’s and landlord’s rights and obligations.

Tenancy agreements are usually written in a standard form but can also be oral (e.g. a conversation with the landlord), or partly written–partly oral. All agreements must follow the Residential Tenancies Act 2010.

If the landlord does not ensure that the agreement is in writing at the start of the agreement, then during the first 6 months of the tenancy they cannot increase the rent and cannot end the tenancy without grounds.

There are two types of tenancy agreement:

• fixed term – for a specified period of time (e.g. 6 months)
• periodic – where the fixed term has expired or no fixed term is specified.

Additional terms

Additional terms may be included in the standard tenancy agreement if:

• both you and the landlord agree to them
• they do not conflict with the Residential Tenancies Act 2010 or any other laws
• they do not conflict with the terms of the standard agreement.

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 (CTTT) for an order that the term is void.

Tenancy agreements in share housing

If you rent part of the premises from another tenant, it is in your interest to have a written tenancy agreement with them. See Factsheet 18: Transfer and sub-letting for a sample agreement.

Landlord/agent to provide certain information

Before signing a tenancy agreement

If a landlord decides to enter into a tenancy agreement with you, they (or their agent) must not knowingly hide any of these ‘material facts’ from you:

• the premises have been subject to serious flooding or bushfire in the last 5 years
• the premises are subject to significant health/safety risks that are not apparent on inspection
• the premises have been the scene of a serious violent crime in the last 5 years
• you will receive different council waste services than applicable to others in the council area
• you will not be able to get a free residential parking permit (in an area where only paid parking is available)
• there is a driveway or walkway on the premises that others are legally entitled to use.

The landlord (or their agent, if the agent is aware) must also tell you if either of the following apply:

• they propose to sell the premises (if they have prepared a contract for sale of the premises)
• a mortgagee has commenced proceedings in a court to enforce a mortgage over the premises.

If the landlord (or agent) fails to disclose any sale or mortgagee action, they face a fine of up to $440.

On signing a tenancy agreement

The landlord/agent must give you a copy of the NSW Fair Trading New tenant checklist. If you are renting in a strata scheme, they must give you a copy of the by-laws within 7 days.

Landlord’s/agent’s contact details

Before or when you sign the tenancy agreement, the landlord/agent must give you written notice of the following contact details (or they must include them in the tenancy agreement):

• the name, phone number and business address of the landlord’s agent (if any) and the name and phone number or other contact details of the landlord
• (if there is no agent) the business or residential address and phone number of the landlord
• (if the landlord is a corporation) the name and business address of the corporation.

Costs at the start

A landlord/agent can only ask you to pay the following:

• a holding fee
• rent in advance
• a bond.

They cannot charge a fee for the preparation of a written tenancy agreement.

Be sure to get a detailed receipt for any amounts you pay to the landlord/agent.

Financial assistance

The Rentstart scheme provides financial assistance to disadvantaged tenants in the private rental market, including money for bond and rent in advance. Apply through Housing NSW (phone 1300 468 746).

Holding fees

You may be asked to pay a holding fee on approval of your application for a tenancy. The most the landlord/agent can ask you to pay is 1 week’s rent.

The landlord/agent can hold only one fee for the premises at a time. On receiving a holding fee, they cannot enter into an agreement with another prospective tenant for 7 days (or longer, if you both agree).

Upon signing the tenancy agreement, the fee will go towards the rent starting from the first day of your tenancy agreement.

If the landlord/agent declines to enter into the tenancy agreement, they must refund the fee.

If you refuse to enter into the tenancy agreement because the landlord/agent made a misrepresentation or failed to disclose any ‘material facts’, they must refund the fee.

If you otherwise decide not to enter into the tenancy agreement, the landlord/agent can keep the fee.

You can apply to the CTTT to resolve a dispute about a holding fee (whether or not you enter into a tenancy agreement).

Rent in advance

The landlord/agent or the tenancy agreement cannot require you to pay more than 2 weeks rent in advance (you may choose to pay more, however). They cannot demand further rent until it falls due and cannot ask for a post-dated cheque.

Bond

The bond is money you pay at the start of the tenancy as a security in case you do not follow the terms of the tenancy agreement. The landlord/agent:

• cannot ask you for anything other than a bond in the form of money (you cannot be asked for a written guarantee, for example)
• can only ask for one bond for the one tenancy agreement.

The most bond you can be required to pay is an amount equal to 4 weeks rent (that is, the rent you agreed to pay at the start of the tenancy agreement).

You are not required to pay a bond before you sign a tenancy agreement.

See Factsheet 03: Bond for more information.

The condition report

The landlord/agent must give you a condition report when you move in. The report describes the condition of the premises. 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 2 copies – one to return to them and one for you to keep. Complete and return the report within 7 days.

If the landlord/agent does not give you a condition report, write a detailed report on the condition of the premises yourself and have a witness sign and date it.

Filling in the report

Inspect the premises and fill in the report carefully. The report will serve as evidence if the landlord/agent 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 the landlord agrees to undertake any cleaning, repairs, additions or other work, this should be written in the section ‘Landlord’s promise to undertake work’.

If there is a dispute about the condition report, you (or the landlord/agent) can apply to the CTTT for an order to amend it.

Keys for each tenant

The landlord/agent must give each tenant named in the tenancy agreement a copy of the keys (or other opening devices) for the premises and for common property that the tenants are entitled to access. Initial copies must be provided for free.

February 2011

The information in this factsheet:
• is intended as guide to the law and should not be used as a substitute for legal advice
• applies to people who live in, or are affected by, the law as it applies in New South Wales, Australia.
© Tenants' Union of NSW.