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Lease agreement terms inconsistent with the Residential Tenancies Act
1995 (the Act)
Under Section 115 of the Act, an agreement or arrangement that is inconsistent with the Act or purports to exclude, modify or restrict the operation of the Act is void.
Staff of the Tenancies Branch constantly see terms written into tenancy agreements that are inconsistent with the Act. Under the Act, a person who enters into an agreement or arrangement to defeat, evade or prevent the operation of the Act (directly or indirectly) is guilty of an offence. Maximum penalty: $8000.
Some examples of inconsistent terms are listed below:
Carpet cleaning
‘All carpets shall be professionally cleaned by the tenant at the termination of the tenancy’.
This term states that the carpets must be professionally cleaned at the end of the tenancy, whether they are dirty or not. This term is not enforceable, as Section 69 of the Act states that ‘It is a term of a residential tenancy agreement that, at the end of the tenancy, the tenant must give the premises and ancillary property back to the landlord in a reasonable condition and in a reasonable state of cleanliness’. The issue at the end of the tenancy is whether carpets are left in a reasonable condition, not whether they’ve been professionally cleaned.
Rent payments
‘The agent reserves the right to change the method of how the tenant is to pay rent’.
The method of payment cannot be changed during an existing agreement without the
tenants consent.
Routine inspections
‘The tenant agrees to allow entry to the premises for the purpose of routine inspections. Inspections are carried out between 9am and 5pm Monday to Friday’.
The tenant is entitled to receive proper notice before an inspection takes place. Therefore,
before each routine inspection is carried out proper notice must be given to the tenant. Proper notice is not less than 7 days and no more than 14 days written notice. The notice
must specify the reason of entry, the date of entry and the time of entry. Where an agent is
managing the property, the agent can give the tenant a timeframe rather than a specific
time. This timeframe should be no longer than 2 hours. It is considered unreasonable
to have a longer period than 2 hours stated on the notice.
Number of occupants
‘The tenants agree that for the duration of the tenancy there will be a maximum of 2
persons occupying the premises as tenants’.
Under Section 74 of the Act, a tenant has a right to sub-let the premises with the
landlord’s written consent and the landlord can’t unreasonably withhold consent. A
tenant also has the right to have guests and visitors at the property during the agreement.
Therefore, a term that unreasonably restricts the number of people who can live or stay at
the property is invalid.
Smoke detectors
‘The tenant agrees to test all smoke detectors on a regular basis and to ensure
that they are in good working order and to replace batteries when required so that
the smoke alarm is always working to its full capacity’.
Page 1 of 2 Under Section 68 of the Act, a landlord has an obligation to ensure that a rented property is in a reasonable state of repair having regard to its age, character and prospective life. Therefore, if a smoke detector battery is flat and the tenant is aware of this, the tenant is obligated to inform the landlord and the landlord is then obligated to replace the battery. We recommend that smoke detectors be tested by the landlord/agent at each
routine inspection.
Altering terms
‘The terms and conditions of a periodic tenancy may be altered by the agent during the term of the tenancy, provided the tenant is given 60 clear days notice notifying the tenant of the changes or variance/s which shall thereafter form part of the tenancy agreement’.
The terms and conditions of an existing tenancy agreement cannot be altered without
both parties consent. Variation of rent is excluded, provided the rent is increased in
accordance with the Act.
Pruning
‘The tenant is responsible to prune fruit trees, vines, shrubs and dispose of all clippings’.
This condition cannot be enforced. A tenant is responsible to maintain the property and
gardens in a reasonable condition. That does not include specialised work such as pruning. The trimming of ornamental trees and shrubs, the pruning of fruit trees and rose bushes are not the responsibility of the tenant. The tenant runs a grave risk of receiving a
complaint from the landlord of inappropriate and inexpert trimming of permanent plantings.
Water
‘If the water charges are not paid by the due date, a penalty charge of 10% interest will be added to the water cost’.
Section 53 of the Act states that a person must not require or receive from a tenant a
payment, other than rent or security (or both), for a residential tenancy. Section 77 of the
Act states that if a residential tenancy agreement provides that upon breach by the
tenant of a term of the agreement the tenant is liable to pay an amount by way of penalty,
the provision is void. Where the agreement provides that the tenant is responsible for
water usage, the landlord is entitled to claim the cost of water usage only. No penalty
charge can be claimed.
Rent payments
‘Should the tenant pay the agent any monies that are not equal amounts of
weekly, fortnightly or calendar monthly payments (as required under the
provisions of the tenancy schedule), these amounts shall be applied as rental
payments and thereafter any odd amounts shall be applied as sundry payments to
clear any outstanding invoices owed by the tenant. Should no invoices be outstanding then odd amounts shall be applied as rental payments’.
All rent that is paid must be applied to rent and if an odd amount is received, this must
be clearly shown on your rent record as a credit or an amount ‘in hand’. Any odd
amounts cannot be applied to sundry payments (e.g. water) without the tenants consent.
All the above terms are inconsistent with the Act. They are not enforceable and should not be included as a term in a residential tenancy agreement.
For more information, contact Tenancy Advice on 131 882.
Click here for the source of article, SA Gov.
