New South Wales

Residential tenancies in NSW are mostly (but not all) governed by the Residential Tenancies Act 2010 (NSW) (Act).

The Act specifies the form of agreement that will apply. The Act describes the lease as a residential tenancy agreement (RTA) (see What is a residential tenancy agreement?). If the Act applies to a tenancy, the RTA will apply whether or not any form of lease has been signed. The standard form RTA is in Sch 1 of the Residential Tenancies Regulation 2010 (NSW) (Regulations).

An RTA can have additional terms added to it, as long as the additional terms are not inconsistent with the standard RTA or contrary to the Act or Regulations made under it.

If the Act applies, it cannot be contracted out of. A provision of an RTA is void to the extent it purports to exclude, limit or modify the operation of the Act or the Regulations.

The Act contains many provisions that are in a format that is similar to or the same as the Residential Tenancies Act 1987 (NSW), which was repealed in early 2011. The majority of case law in relation to this area of the law is based on previous legislation and care needs to be taken in relation to the wording of the relevant provision.

The regime is a statutory regime and common law decisions are of limited assistance.

The Regulations provide crucial additional details in relation to the application and operation of the sections of the Act and should be checked before giving advice in relation to the Act.

The Act contains special provisions in Pt 7 that apply to social housing tenants. This service does not consider those provisions.

Victoria

Residential tenancies in Victoria are mostly (but not all) governed by the Residential Tenancies Act 1997 (Vic).

The Act specifies the form of agreement that will apply. The Act describes the lease as a residential tenancy agreement (see What is a residential tenancy agreement?). If the Act applies to a tenancy, the residential tenancy agreement will apply, whether or not any form of lease has been signed. The standard form residential tenancy agreement is in Sch 1 of the Residential Tenancies Regulations 2008 (Vic).

Queensland

Residential tenancies in Queensland are governed by the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The Act commenced on 1 July 2009, amending the Residential Tenancies Act 1994 (Qld) and the Residential Services (Accommodation) Act 2002 (Qld), which were repealed on 30 June 2009. The Act outlines the rights and responsibilities of tenants, lessors, property managers and caravan park managers involved in residential renting in Queensland.

Section 61 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) provides that a written residential tenancy agreement must include the standard terms set out in Sch 1 of the Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld). The prescribed form, which incorporates the standard terms, for houses and units is a Form 18a — General Tenancy Agreement from the Residential Tenancies Authority website.

Pursuant to s 53 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), a provision of a residential tenancy agreement is void to the extent it purports to exclude, change or restrict the operation of the Act.

On 10 August 2017, the Queensland Government introduced the Housing Legislation (Building Better Futures) Amendment Bill 2017 (Qld) which seeks to amend the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) to prescribe minimum housing standards for rental accommodation in Queensland.

Western Australia

Most residential tenancy agreements (RTAs) are governed by the Residential Tenancies Act 1987 (WA). The Act does not specify the form of agreement that will apply. Some provisions of the Act may be contracted out of. Pursuant to amendments which are anticipated to come into effect in early 2013, the Act prescribes the form of RTA that must be used and contracting out of the Act is prohibited.

South Australia

Residential tenancies in South Australia are mostly (but not all) governed by the Residential Tenancies Act 1995 (SA) (the Act).

The Act specifies terms that apply to residential tenancy agreements. The Act describes the lease as a residential tenancy agreement (RTA) (see What is a residential tenancy agreement?). If the Act applies to a tenancy, the RTA will apply whether or not any form of lease has been signed. There is no standard form RTA prescribed in the Act or in the Residential Tenancies Regulations 2010 (SA) (the Regulations) but there are sample forms of RTA on the website of the Office of Consumer and Business Services.

An RTA can have additional terms added to it, as long as the additional terms are not inconsistent with or contrary to the Act or Regulations made under it.

If the Act applies, it cannot be contracted out of. A provision of an RTA is void to the extent it purports to exclude, limit or modify the operation of the Act or the Regulations.

The regime is a statutory regime and common law decisions are of limited assistance.

The Regulations provide crucial additional details in relation to the application and operation of the sections of the Act and should be checked before giving advice in relation to the Act.

Only some of the provisions of the Act apply to housing tenants of the South Australian Housing Trust. This service does not consider those provisions separately.

Tasmania

Residential tenancies in Tasmania are regulated by the Residential Tenancy Act 1997 (Tas).

The Act describes the lease as a residential tenancy agreement (see What is a residential tenancy agreement?).

The Act does not specify the actual form of agreement that will apply but has many standard provisions which the parties cannot contract out. The provisions of the Act are expressed to form part of a residential tenancy agreement.

If the Act applies to a tenancy, the standard provisions of a residential tenancy agreement will apply, whether or not any form of lease has been signed.

Northern Territory

Residential tenancies in the Northern Territory are mostly (but not all) governed by the Residential Tenancies Act (NT). Under the of this legislation residential tenancies are called "tenancy agreements", a term meaning "an agreement under which a person grants to another person for valuable consideration a right (which may be, but need not be, an exclusive right) to occupy premises for the purpose of residency".

The Act provides for the rights and obligations of tenants and landlords under tenancy agreementsincluding minimum safeguards for tenancy agreements, condition reports and bonds, payment of rent, repairs and maintenance, rights of entry during the tenancy, assignment or sublease of tenancies, dispute resolution mechanisms and termination.

The objectives of the Act as set out in s 3 of the Residential Tenancies Act (NT) are to:

• fairly balance the rights and duties of tenants and landlords;

• improve the understanding of landlords, tenants and agents of their rights and obligations in relation to residential tenancies;

• ensure that landlords and tenants are provided with suitable mechanisms for enforcing their rights under tenancy agreements and the Act;

• ensure that tenants are provided with safe and habitable premises under tenancy agreements and enjoy appropriate security of tenure; and

• facilitate landlords receiving a fair rent in return for providing safe and habitable accommodation to tenants.

Pursuant to s 19 of the Residential Tenancies Act (NT), a written tenancy agreement must contain and clearly identify the following:

• the name of the tenants and the name and address for service of the landlord's agent, if any;

• the full name and address for service of the landlord;

• the premises to which the agreement relates;

• each term, or a term to the same effect as each term, that is specified by the Residential Tenancies Act (NT) to be a term of a tenancy agreement;

• terms as to the amount of rent payable and how the rent is to be payable; and

• if the agreement is for a fixed term tenancy, the duration of the agreement.

Section 20 of the Residential Tenancies Act (NT), provides that any agreement or arrangement is void to the extent it purports to exclude, modify or restrict the operation of the Act unless such an exclusion, modification or restriction is expressly permitted by the Act.

The Residential Tenancies Regulations (NT) provide additional details in relation to the application and operation of some sections of the Act and should be checked before giving advice in relation to the Act.

Australian Capital Territory

Residential tenancies in the Australian Capital Territory are mostly (but not all) governed by the Residential Tenancies Act 1997 (ACT).

The Act specifies the form of agreement that will apply. The Act describes the lease as a residential tenancy agreement. If the Act applies to a tenancy, the residential tenancy agreement will apply, whether or not any form of lease has been signed. The standard form residential tenancy agreement is in Sch 1 of the Act.

A residential tenancy agreement can have additional terms added to it, as long as the additional terms are not inconsistent with the standard residential tenancy agreement terms or have been endorsed by the ACT Civil and Administrative Tribunal (ACAT): s 8(1)(c) .

If the Act applies, it cannot be contracted out of. A provision of a residential tenancy agreement is void if it is inconsistent with the standard residential tenancy agreement terms (unless it has been endorsed by the ACAT) or if it is inconsistent with the Act: s 9 .

New South Wales

Actions in relation to residential tenancies are dealt with in the NSW Civil and Administrative Tribunal (NCAT) (Tribunal). A right to apply to the Tribunal for relief must be exercised swiftly as time limits for exercise are quite short, sometimes as short as 7 days, and if the right is not exercised within that time, it will be lost. The time limits for exercising the rights available under the Act are specified in the Regulations.

Procedural fairness is important. A ruling may be overturned if procedural fairness is denied.

Victoria

Actions in relation to residential tenancies are dealt with in the Victorian Civil and Administrative Tribunal. A right to apply to the Tribunal for relief must be exercised swiftly as time limits for exercise are quite short, sometimes as short as 7 days, and if the right is not exercised within that time, it will be lost. The time limits for exercising the rights available under the Act are specified in the Act.

Procedural fairness is important. A ruling may be overturned if procedural fairness is denied.

Queensland

Actions in relation to residential tenancies are dealt with in the Queensland Civil and Administrative Tribunal (QCAT). A right to apply to the Tribunal for relief must be exercised swiftly as time limits for exercise are quite short, sometimes as short as seven days, and if the right is not exercised within that time, it will be lost. The time limits for exercising the rights available under the Act are specified in the Regulations.

Procedural fairness is important. A ruling may be overturned if procedural fairness is denied.

Western Australia

Most actions in relation to RTAs are heard as minor case claims in the Western Australian Magistrates Court. Claims involving amounts up to $10,000 are heard as minor case claims. Claims involving amounts between $10,001 and $75,000 are heard as general procedure claims. Claims in excess of $75,000 are heard in the District or Supreme Court.

South Australia

Actions in relation to residential tenancies (other than monetary claims exceeding $40,000) are dealt with in the South Australian Civil and Administrative Tribunal (SACAT). The time limits for exercising the various rights available under the Act are specified in the Act.

The Tribunal is required to conduct proceedings with a minimum of formality and is not bound by the rules of evidence.

Tasmania

Actions in relation to residential tenancies are generally dealt with in the Magistrates Court.

The Residential Tenancy Act 1997 (Tas) establishes the statutory position of Residential Tenancy Commissioner (the Commissioner). The functions of the Commissioner are:

• to determine disputes arising in relation to the disbursement of security deposits;

• to determine disputes in relation to any residential tenancy database;

• to act in the mediation or conciliation of any disputes between the parties to residential agreements in relation to boarding premises; and

• to determine applications made to the Commissioner to declare an increase in rent unreasonable or make order for repairs or in respect of boarding premises: s 8 , Residential Tenancy Act 1997 (Tas).

Decisions of the Residential Tenancy Commissioner are subject to appeal to the Magistrates Court.

Northern Territory

From 1 June 2015, applications in relation to the Residential Tenancies Act (NT) are heard by the Northern Territory Civil and Administrative Tribunal (NTCAT). Applications are required to be lodged on a NTCAT form. This form, as well as advice on NTCAT procedures and processes, can be found on the NTCAT website. The previous provisions in the Residential Tenancies Act (NT) regarding applications and hearings have accordingly been repealed.

Northern Territory Consumer Affairs continues to provide assistance with information and advice on all residential tenancy matters and notices, other than Tribunal applications and processes.

Australian Capital Territory

Actions in relation to residential tenancies are dealt with primarily by the ACT Civil and Administrative Tribunal (ACAT).

In NSW, notices under the Residential Tenancies Act 2010 (NSW) must be given or served in accordance with the procedure in s 223 of the Act. If there is more than one landlord or tenant, service on one of them is sufficient.

In Victoria, the service of notices is dealt with under Pt 6 Div 4 of the Residential Tenancies Act 1997 (Vic).

In Western Australia, the service of notices is dealt with under s 85 of the Residential Tenancies Act 1987 (WA).

In South Australia, notices under the Residential Tenancies Act 1995 (SA) must be served in accordance with the procedure in s 120 of the Act.

In Tasmania, the service of notices to vacate is dealt with under Div 2 of the Residential Tenancy Act 1997 (Tas) and the service of notice of termination is dealt with under ss 38–40 of the Residential Tenancy Act 1997 (Tas).

In the Northern Territory, the service of notices is dealt with under Pt 16 of the Residential Tenancies Act (NT).

In Queensland, the service of notice by the landlord to the tenant is dealt with under Ch 5, Pt 1, Div 2 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). Service of notices from the tenant to the landlord is dealt with under Div 3 of the same part of the Act: Ch 5, Pt 1, Div 2, Residential Tenancies and Rooming Accommodation Act 2008 (Qld), Div 3, Residential Tenancies and Rooming Accommodation Act 2008 (Qld).

If the efforts of the person required to serve the notice result in the person to be served becoming aware of the contents of the document, then the service may be sufficient even if the notice has not been served in accordance with the Act.

Practice Tip: Correct service of notices is recommended as it puts the matter beyond doubt. Personal service is preferred, however alternative methods are also effective.

The Residential Tenancies Act 2010 (NSW) (Act) will apply to RTAs in respect of residential premises, even if the agreement was entered into before the commencement of the Act.

The Regulations made under the Act can exempt people or premises from the application of the Act.

This section discusses the premises which are exempted from the Act, what an RTA is, the position when premises are occupied by employees or caretakers and how the Act applies to shared households. See When the Residential Tenancies legislation applies.

In Victoria, unlike NSW, the Residential Tenancies Act 1997 (Vic) will not apply to RTAs in respect of residential premises, if the agreement was entered into before the commencement of the Residential Tenancies Act 1997 (Vic). In these instances the RTA will be governed by the Residential Tenancies Act 1980 (Vic) notwithstanding its repeal on 1 July 1998.

In Queensland, the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) applies to RTAs and rooming accommodation agreements. A rooming accommodation agreement is an agreement under which a provider provides rooming accommodation to a resident in rental premises: s 16 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). Rooming accommodation is when the resident has the right to occupy one or more rooms, but does not have the right to occupy the whole of the premises and shares facilities (ie kitchen, bathroom) with other residents: s 15 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).

In Western Australia, the Residential Tenancies Act 1987 (WA) applies to most RTAs entered into, renewed, extended, assigned or otherwise transferred after 21 January 1988. The Act also applies to most periodic RTAs that were entered into before 21 January 1988 and continue after that date. In the latter case the Act does not apply from the commencement of the tenancy. It applies from the first day after 21 January 1988 on which rent is payable under the RTA. See s 7(1) .

The Residential Tenancies Act 1987 (WA) and Residential Tenancies Regulations 1989 (WA) exclude some types of RTAs from the operation of the Act.

In South Australia, s 5 of the Residential Tenancies Act 1995 (SA) sets out agreements to which the Act does not apply. Regulation 6 of the Residential Tenancy Regulations 2010 (SA) also lists agreements that are exempt from the application of the Act.

In Tasmania, the Residential Tenancy Act 1997 (Tas) applies to any residential tenancy agreement created:

• from the commencement day, 1 July 1998, (subject to the later 2003 operative date for boarding premises); and

• before the commencement day, 1 July 1998, subject to 12-month grandfathering provisions.

In the Northern Territory, s 160 of the Residential Tenancies Act (NT) states that the Act will not apply in respect of residential premises in force immediately before its commencement day being 1 March 2000. For such leases the Tenancy Act (NT) continues to apply as if the Residential Tenancies Act (NT) had never come into operation (except for Pt 14 of the Residential Tenancies Act (NT)): s 161 of the Act.

In the ACT, from 1 July 2000, the Residential Tenancies Act 1997 (ACT) (Act) has applied to all residential tenancy agreements in respect of residential premises even if the RTA was entered into before the commencement of the Act. The Residential Tenancies Act 1997 (ACT) applies to all occupancy agreements that started on or after 8 March 2005.

See When the residential tenancy legislation applies.

See Exemptions from the Act.

See What is a residential tenancy agreement?

See Premises occupied by employees or caretakers.

See Shared households.

See What are residential premises?