Navigating the law about residential tenancy disputes in the State or Territory where you live, or where you own a residential investment property, can sometimes be complex.

The law places a longer list of compliance requirements upon landlords, from meeting minimum standards or minimum energy standards, to urgent repairs and the lodgement and draw down of bonds from the relevant authority.

Due to the number of laws which both tenants and landlords are required to comply with, and the step by step process which must usually be followed when one party seeks to end the residential tenancy agreement, it can be a complex minefield requiring particular knowledge and expertise to navigate.

The Legal Framework

The residential tenancy framework in the Australian Capital Territory is governed by following:

• The Residential Tenancies Act 1997 (ACT); and
• The Residential Tenancies Regulations 1998 (ACT).

We examine each of these in further detail in this article.

Residential Tenancy Agreements in the Australian Capital Territory

The Act provides that a residential tenancy agreement, which provides for the right for another person to live and occupy the premises as their home, for consideration, may be express or implied (that is, it might be contained in writing or arise from implication based upon certain circumstances), and that in may be in writing or oral, or partly in writing and partly oral.

Notwithstanding however the residential tenancy agreement arises, it will be taken to include a standard set of residential tenancy terms which are contained in Schedule 1 of the Act. Any additional term which is inconsistent with the standards terms:

• are automatically deemed void;
• or can be included only by way of endorsement by ACAT, that is, the Australian Capital Territory Civil and Administrative Tribunal.

Rights and responsibilities

Under the Residential Tenancies Act 1997 (the Act), both landlords and tenants have certain obligations which they owe to each other.

Landlords

Certain things a landlord must do prior to entering into a residential tenancy agreement in the ACT are:

• they must ensure that smoke alarms are installed, and comply with the prescribed regulations;
• they must provide the tenant with a list of mandatory information, including the standard term and the residential tenancy agreement, which must not be inconsistent with the Act or the standard terms, as discussed above;
• must give the tenant a property condition report as to the state of repair or general condition of the property not more than the day after they enter into possession of the property;
• must carry out with the tenant, an inspection of the property at the end of the residential tenancy agreement

Tenants

Tenants must, after entering into a residential tenancy agreement in the ACT:

• pay a bond to the landlord (which must not exceed 4 weeks’ rent in any care);
• pay rent to the landlord;
• not to assign or sublet the residential tenancy agreement without the landlord’s consent;
• not to damage or cause injury the property, or other property of the landlord;
• to keep the property in a reasonable state of cleanliness

Termination of residential tenancy agreements in the Australian Capital Territory

The Act provides, in separate divisions for both landlords and tenants, the basis upon which, and the process which must be followed, to terminate a residential tenancy agreement.

If a tenant seeks to terminate a residential tenancy agreement, this is governed by division 4.4 of the Act; and if a tenant seeks to terminate a residential tenancy agreement, this is governed by division 4.3 of the Act.

Landlord initiated termination

Some of the grounds upon which a landlord in the Australian Capital Territory can apply to ACAT to terminate the residential tenancy agreement and obtain a possession order are:

• The tenant has failed to pay rent, and the landlord has served the tenant with a termination notice and the tenant has not vacated the property;
• The landlord will suffer significant hardship, such hardship being greater than the tenant, if they do not obtain a possession order;
• The tenant has intentionally or recklessly caused, or allowed, or is likely to cause or allow, serious damage to the property, or injury to the landlord or a member of the landlord’s family, or other serious harm, including serious or continuous interference with the quiet enjoyment of other persons;
• The tenant has threatened, intimidated, harassed or abused the landlord or a related person;
• The tenant misled or deceived the landlord;
• The tenant has assigned or sublet or purported to sublet or assign, the property; or
• The tenant has repudiated the residential tenancy agreement in writing, and the landlord has accepted that repudiation;

Tenant initiated termination

Some of the grounds upon which a tenant in the Australian Capital Territory may apply to ACAT to terminate a residential tenancy agreement are if:

• The landlord has breached the standard residential tenancy terms, and the breach justifies the termination of the residential tenancy agreement;
• The tenant will suffer significant hardship, and that hardship is sufficient and appropriate to justify the termination;
• The landlord has intentionally or recklessly caused or permitted to be caused, or is likely to so cause or permit serious danger to the property or the property of the tenant, or injury to the tenant or a member of the tenant’s family;
• The landlord has engaged in conduct that is threatening, intimidating, harassing or abusive;
• The landlord misled or deceived the tenant as to the residential tenancy agreement; or
• One of the tenant’s needs to end the residential tenancy lease due to family violence.

Common types of disputes which arise under residential tenancy agreements

Some common types of disputes which ordinarily arise in residential tenancy disputes include, but are not limited to:

• Tenants not paying rent;
• Landlords not undertaking appropriate or urgent repairs;
• The property not meeting minimum standards;
• Mould issues;
• Breach of quiet enjoyment;
• Tenant has caused damage to property;
• Bond disputes;

Dispute resolution

It is always best to attempt to resolve your dispute with the tenant or landlord at first instance, such as discussing your concerns with the other party, and attempting to mediate or resolve them without the need for more formal processes, including the involvement of lawyers. Nevertheless, if, after attempts to resolve the dispute have been resulted in a successful outcome, you may need to consider commencing proceedings in ACAT, seeking an appropriate remedy, such as termination and/or compensation.

ACAT

ACAT hears most residential tenancy disputes in the Australian Capital Territory, such as termination of leases, warrants for eviction, pets, rent increases and bond disputes.

Contact us

Whether you’re a landlord with an investment property in the Australian Capital Territory, or you’re a tenant leasing a property in the Australian Capital Territory, if you have a dispute you cannot resolve involving either the landlord or the tenant, Allen Law can help. We regularly advise both landlords and tenants on all aspects of residential tenancy law in Victoria, New South Wales, South Australia and other jurisdictions. Get in touch today to see how we can help resolve your dispute with succinctly, easy to follow legal advice.

Phone:             (03) 7020 6563
Email:               enquiries@allenlawyers.com.au
Website:          www.allenlawyers.com.au

Disclaimer: This article is general in nature and does not constitute legal advice. Please contact Allen Law for advice tailored to your particular situation