On 1 July 2013, changes to the Residential Tenancies Act 1987 (the Act) and the Residential Tenancies Regulations 1989 came into force.

These frequently asked questions are designed to assist you in understanding how the new laws may apply to your tenancy.

Note: A fixed term agreement refers to a tenancy agreement with a start date and an end date. A periodic agreement does not have a specific end date.

Existing residential tenancy agreements

What if my tenancy agreement was signed on 15 June 2013 but the tenancy agreement doesn’t commence until 2 July 2013. Is this an existing agreement?

This would not be an existing agreement as the contract doesn’t commence until 2 July 2013. In this case, the residential tenancy agreement would need to be in the prescribed form.

What if my existing lease agreement includes an option to renew the agreement and the option to renew is exercised after 1 July 2013. Is this renewed agreement an existing agreement?

The renewed agreement is a “new” agreement and therefore is not an existing agreement.

What if my fixed term agreement rolls over into a periodic agreement after 1 July 2013? Is this periodic agreement a continuation of the existing agreement?

The periodic agreement commences after the fixed term agreement has ended. Therefore the periodic agreement is a new agreement.

What if I have a periodic agreement already in place and it continues as a periodic agreement after 1 July 2013?

The periodic agreement will continue on and all the new laws will apply to your agreement from 1 July 2013.

Prescribed residential tenancy agreement form (section 27A)

Do I need to replace my existing residential tenancy agreements (either fixed term or periodic) with the prescribed residential tenancy agreement?

No. The requirement to use the prescribed residential tenancy form (Form 1AA) only applies to residential tenancy agreements entered into on or after 1 July 2013.

What if my existing lease agreement includes an option to renew the agreement and the option to renew is exercised after 1 July 2013. Do I need to use the prescribed residential tenancy agreement form for the option period?

If you enter into a new written residential tenancy agreement on or after 1 July 2013, including a renewed agreement, then the prescribed residential tenancy agreement form must be used.

What if my fixed term agreement rolls over into a periodic agreement after 1 July 2013? Do I need to use the prescribed residential tenancy agreement form for the periodic tenancy period?

If the periodic agreement is to be a written agreement, then the prescribed residential tenancy agreement form (Form 1AA) must be used.

Sometimes when a fixed term agreement rolls over into a periodic agreement the parties do not sign a new written agreement, they simply rely upon a verbal agreement that the same terms and conditions as existed under the former fixed term agreement will continue to apply. If the parties are intending to rely upon a verbal agreement as to the terms and conditions continuing to apply and no new written agreement is to be entered into, then it is not necessary to use the prescribed form.

It is important to remember that not all of the terms of the former fixed term agreement will be allowed to continue to apply after 1 July 2013. It is therefore recommended that at least on the first occasion after 1 July 2013 whereby a fixed term agreement rolls over into a periodic agreement, that the parties enter into a written residential tenancy agreement in the prescribed form so that all parties are clear as to their new rights and obligations.

Information to be given to the tenant by the lessor (section 27B) (formerly Schedule 2)

Do I need to provide all of my existing tenants with a copy of a Form 1AC or Form 1AD (Information for tenant)?

No. The Information for tenants (Form 1AC if a written residential tenancy agreement or Form 1AD if the tenancy agreement is not a written agreement) needs only to be given to each tenant where the residential tenancy agreement is entered into on or after 1 July 2013.

What if I negotiate a new fixed term agreement with the same tenants at the same premises after 1 July 2013, do I need to provide the tenants with the relevant Information for tenant form?

No. Regulation 5AC provides that if the parties to the agreement do not change, then it is not necessary to provide the tenants with the Information for tenants form.

What if my existing fixed term agreement rolls over into a periodic agreement with the same tenants at the same premises after 1 July 2013, do I need to provide the tenants with the relevant Information for tenant form?

No. Regulation 5AC provides that if the parties to the agreement do not change, then it is not necessary to provide the tenants with the Information for tenants form.

Property condition reports

What if I don’t have an ingoing property condition report for my existing tenancy? Do I need to prepare a report detailing the condition of the property at the commencement of the tenancy?

No. The requirement to have a property condition report at the commencement of the tenancy only applies to residential tenancy agreements where the tenant enters into occupation of the premises after 1 July 2013.

What if I don’t have an ingoing property condition report for my existing tenancy? Do I still need to prepare a report detailing the condition of the property at the end of the tenancy if the tenancy agreement ends after 1 July 2013? Why?

Yes you do. The requirement to conduct an inspection and prepare a final report describing the condition of the premises at the conclusion of the tenancy applies to all tenancies that end after 1 July 2013.

Even if you don’t have a property condition report from the commencement of the tenancy agreement, the final property condition report is still compulsory if the tenancy ends after 1 July 2013. This final property condition report is important and along with other evidence assists the parties to determine what to do with the security bond.

I have an ingoing property condition report that was prepared at the commencement of my existing tenancy but the report does not contain the minimum information that is now required under the Act. Do I need to transfer this information onto a property condition report form that does comply with the new rules?

No. Only property condition reports completed after 1 July 2013 need to comply with the requirement to contain the prescribed information.

Fees and charges

What if my existing tenancy agreement currently requires that the tenant pay the administration fee charged by the rent collection agency? Can this fee continue to be charged to the tenant after 1 July 2013?

If it is a term of an existing residential tenancy agreement that has been agreed to by all parties that the tenant must pay any administrative fee charged by a rent collection agency, then this fee can continue to be charged to the tenant for the life of that agreement. However, because of amendments to section 27(1) of the Act, after 1 July 2013, it will be unlawful to require the tenant to pay such a fee in respect of any new residential tenancy agreement.

Rent in advance

What if my existing residential tenancy agreement requires that rent is paid monthly in advance? Can the tenant still be required to pay rent monthly in advance after 1 July 2013?

No. From 1 July 2013, even if it is a term of the existing residential tenancy agreement, a person cannot require a tenant to pay more than two weeks rent in advance. This does not, however, prevent a tenant from choosing to pay more than two weeks rent in advance if that suits them.

It is recommended that prior to 1 July 2013, lessors and/or property managers write to existing tenants to advise them that they are now entitled to pay rent fortnightly if they so choose, how much the fortnightly payment would be and when the payments would fall due. The notice can also advise that if a tenant wishes to continue to pay monthly then they can do so, but that they are free to revert to fortnightly payments at any time.

Security bonds

What if I have a security bond lodged in a bank account? Do I have to transfer the security bond to the Bond Administrator on 1 July 2013?

No. Section 93 of the Act provides that an existing security bond must be transferred to the Bond Administrator either at the time when the lease is renewed, or if the lease is not renewed within 18 months, then within 18 months.

What if it has been only six months since I last increased the security bond for my existing tenancy agreement? Can I increase the security bond again after 1 July 2013?

Yes. Section 31 of the Act has been amended to allow the security bond to be increased 6 months after a previous increase in security bond, rather than the 12 months that has previously been required. Therefore, provided there has been an increase in the rent and the required notice has been given to the tenant, the security bond can be increased 6 months after the previous increase.

It is important to remember that the security bond cannot exceed the equivalent of four weeks rent for the premises plus a pet bond, if applicable (unless the rent is above $1200 per week – then any amount of bond can be requested).

Pet bonds

What if I have allowed my existing tenant to keep a pet other than a dog or a cat at the premises (eg a bird)? Can I now charge them a pet bond after 1 July 2013?

A pet bond for a pet other than a cat or dog can be sought from a tenant after 1 July 2013 either by way of:

1. an instalment of bond as per section 29(2A); or
2. as an increase in security bond in accordance with section 31 of the Act.

It is important to remember that only one pet bond per residential tenancy agreement can be charged, irrespective of how many pets are kept by the tenant at the premises. Therefore, if a tenant has already paid the lessor a pet pond in relation to a dog or cat that is kept at the premises, then no further pet bond can be sought in relation to other pets.

It is also important to remember that the pet bond is only to be applied towards the cost of fumigation of the premises, not for general cleaning or repair of damage caused by the pet. These latter expenses should be recovered from the security bond.

Increases in rent

What if my existing fixed term residential tenancy agreement doesn’t include an amount for a rent increase or a method of calculating a rent increase? Does this mean that I cannot increase the rent during the term of this fixed term lease agreement?

No. Regulation 5CA provides that as long as your existing residential tenancy agreement includes a provision that the rent may increase or be increased, then the rent may be increased in accordance with the Act during the term of the agreement.

Contracting out

What if my existing residential tenancy agreement contracts out of certain provisions of the Act? Are these provisions still valid after 1 July 2013?

Yes. Section 91 of the Act provides that any terms that lawfully contract out of the Act will continue to have effect for the term of the written agreement.

What if my existing fixed term tenancy agreement contains provisions that contract out of the Act and this agreement rolls over into a periodic agreement after 1 July 2013? Do the contracting out provisions continue to apply to the periodic agreement?

No. Once a fixed term agreement rolls over into a periodic agreement, the periodic agreement is a new agreement. After 1 July 2013 it will be unlawful for any new agreement to contract out of any provisions within the Act.

Urgent repairs

What if my existing residential tenancy agreement contracts out of section 43 of the Act? Does this mean that I do not have to compensate my tenant if I am unable to attend to urgent repairs within 24 or 48 hours and the tenant pays for the repairs?

Yes. As per above, if section 43 of the Act has been contracted out of in an existing agreement, then for the term of that agreement this contracting out will continue to have effect.

Minimum levels of security

What if my existing tenancy agreement contracts out of section 45 of the Act? Does this mean that my premises do not have to comply with the new requirements for minimum levels of security?

Yes.

It is important to note that lessors will have two years from 1 July 2013 to ensure their properties are compliant with the requirements for minimum levels of security.

Inspections

What if I conduct an inspection on 30 June 2013? Does that count as one of the four permitted routine inspections?

No. The limit of four inspections in any 12 month period commences on 1 July 2013. Therefore the inspection conducted on 30 June 2013 is not included.

Public utility accounts

What if my existing tenancy agreement doesn’t include any information about how shared utility accounts will be divided amongst the tenants? Does this mean that the tenant is no longer liable to pay for their share of the utility consumption after 1 July 2013?

Section 49A of the Act requires that if the tenant’s utility consumption is not separately metered, then the tenant must only pay for consumption of that utility if the lessor and tenant have agreed in writing to an alternative method of calculating the charge. Therefore, after 1 July 2013, in order to require a tenant to pay for their share of utility consumption in this situation, the lessor must have agreement in writing with the tenant as to how the utility charge is going to be calculated. This does not need to be written into the residential tenancy agreement. It can be on a separate document, such as a letter, that is signed by both parties to show their agreement.

Terminating agreement at the end of a fixed term tenancy agreement

What if my existing fixed term tenancy agreement is due to end in July 2013 and I do not want the agreement to be renewed or extended? Must I still give 30 days’ notice to end the fixed term tenancy agreement?

No. Regulation 7D provides that section 70A does not apply to a fixed term tenancy agreement that is due to expire in July 2013. The current rule that a tenancy agreement ends on its end date or otherwise rolls over into a periodic tenancy will apply to these agreements.