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Residential Tenancies in South Australia

Written by Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

A residential lease is a rental agreement between the owner and the occupant of premises used for living purposes. The main piece of legislation governing residential tenancies in South Australia is the Residential Tenancies Act 1995. This legislation provides the mandatory obligations of landlords and tenants which are read into the lease agreement and therefore form part of the arrangement between the parties.

On 31 March 2015, the South Australian Civil and Administrative Tribunal took over conduct of residential tenancies disputes from the South Australian Residential Tenancies Tribunal, which is now defunct.

The main piece of legislation governing residential tenancies in South Australia is the Residential Tenancies Act 1995.

General responsibilities of landlord and tenants

Under the legislation, landlords have certain responsibilities to tenants, which include, but are not limited to:

  • Ensuring the tenant has private enjoyment of the place. This means the landlord needs to provideproper notice if they want to arrive the premises (for example, to repair something or inspect the property).
  • Making sure that the premises exist in a reasonable state of repair and cleanliness before the tenant moves in.
  • Carry out urgent repairs to essential services (these typically are such things as heating, electricity and water services). They must also carry out general repairs for which the landlord is responsible within a reasonable time.
  • Not being unreasonable when refusing the tenant’s request to sub-let or transfer the premises to someone else.
  • Charging up to four weeks’ rent as a security deposit (six weeks’ rent if the rent is more than $250 per week).
  • Ensuring that the locks are working and the premises are secure.

Tenants have mandatory obligations toward their landlord as well.  For example the tenant needs to make that they are:

  • Not using the premises for an illegal/dangerous purpose or to damage the premises.
  • Letting the landlord know of the need for urgent repairs immediately and general repairs within seven days of being aware of the problem.
  • Not sub-letting the premises to someone else without the landlord’s permission.
  • Paying the rent in full and on time, even if the tenant believes the landlord has breached the tenancy agreement themselves.

Residential tenancy disputes

Common residential tenancy disputes between landlords and tenants in South Australia are disputes over:

  • Rental payments; often the tenant has not paid the rent on time or has only partly paid the rent
  • Rental increases; for example the landlord has tried to increase the rent by a larger amount than the tenant considers is reasonable;
  • Repairs issues; for example the landlord has not carried out required repairs
  • Nuisance issues; for example the tenant or the tenant’s guests have been noisy or disruptive, or the landlord has interrupted the tenant’s right to privacy by arrived at the premises without notice or a good reason.

Dealing with residential disputes

The ending of residential tenancies is dealt with under Part 5 of the Residential Tenancies Act 1995. Landlords can issue a Notice to Remedy to a tenant in breach of a tenancy agreement.   This can occur in cases where the tenant has not paid rent by the due date and is at least 14 days outstanding.   A Notice to Remedy gives the tenant (at least) seven days  to pay the outstanding amount (or rectify the breach) after which the landlord can take possession of the premises one day later and claim any amount through the bond.

Tenants can issue a written notice of breach if the landlord has breached the tenancy agreement (for example, by showing up unannounced or not fixing something within a reasonable time period).  A written notice of breach usually must give the landlord at least seven days’ notice to the landlord to remedy the problem, and if the landlord fails to do so, the tenant can terminate the lease by vacating the property.

Some tenants are tempted to refuse to pay the rent in response to the landlord breaching the rental agreement. Tenants should know that this is a separate issue and does not entitle them to refuse to pay the rent to the landlord.

Resolving residential disputes

If it is feasible, tenants and landlords should attempt to talk through issues themselves first.  Part 8 of the Residential Tenancies Act 1995 deals with the role of the South Australian Civil and Administrative Tribunal(SACAT) in dispute resolution.  SACAT can hear matters regarding requests for repairs, rental disputes, bond disputes and other landlord/tenant disputes.  SACAT will usually refer parties to a conciliation first.

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