In Tasmania, a residential tenancy involves a lease or rental agreement between the owner and the occupant of premises used as a home. The Residential Tenancy Act 1997 sets out the general obligations of landlords and tenants in Tasmania in relation to such things as rent, repairs, bonds and sub-lets/transfers.
The main piece of legislation regarding residential tenancies in Tasmania is the Residential Tenancy Act 1997. This legislation sets out the general obligations of landlords and tenants in relation to such things as rent, repairs, bonds and sub-lets/transfers. It also states that the provisions of the Act must apply to all residential tenancy agreements, whether the agreement is in writing (express) or implied (eg, through conduct or conversation), and the Act cannot be contracted out of. Any provision of a lease document which is contrary to the Act will be void.
Landlords have certain obligations to tenants, including, but not limited to:
- Ensuring quiet and peaceful enjoyment of the premises. This means providing proper notice if the landlord wants to attend the premises, and requires that the landlord only attend the premises for a good reason, such as an inspection or to carry out repairs;
- Carrying out urgent repairs to essential services such as water, heating and electricity as soon as practicable;
- Carrying out general repairs for which the landlord is responsible within a reasonable time;
- Not being unreasonable in denying the tenant permission to sub-let or transfer the premises to someone else;
- Only charging a maximum of four weeks’ rent as a security deposit; and
- Giving the tenant a receipt for any rent paid.
Tenants also have certain responsibilities to the landlord in relation to the premises. These include, but again are not limited to:
- Not using the premises for an illegal or dangerous purpose;
- Not damaging the premises;
- Notifying the landlord of the need for urgent repairs immediately and general repairs within seven days of being aware of the problem;
- Not sub-letting (renting out part or all of the premises themselves) or transferring the premises to someone else without the landlord’s permission; and
- Paying the rent and any lawful rent increases in full and on time, even if the tenant believes the landlord has breached the tenancy agreement themselves.
Both the landlord and the tenants have a responsibility to maintain the premises in the same condition it was in at the start of the lease, subject to fair wear and tear.
There are many types of residential tenancy disputes which may arise. Common disputes are in relation to:
- rental payments (for example, the tenant has not paid the rent on time or has only made a part payment);
- rental increases (the landlord has attempted to increase the rent by a figure the tenant considers is unreasonable);
- repairs issues (eg., the landlord has not carried out repairs that the tenant considers is the landlord’s responsibility, or, the landlord may consider the repair issue is due to the tenant’s actions and expects the tenant to repair the damage);
- nuisance issues (e.g., the tenant has been disruptive to neighbours or the landlord has interfered with the tenant’s right to privacy by showing up unannounced and without good reason).
The ending of residential tenancies is dealt with under Part 4 of the Residential Tenancy Act 1997. Landlords can issue a Notice to Vacate, particularly in cases where the tenant has not paid rent by the due date. The Notice to Vacate will give the tenant a certain amount of time to vacate the property, which differs depending on the reason for issuing the notice. For example, if the reason is for failure to pay rent or another breach of the lease, the tenant will have 14 days to pay the outstanding amount (or rectify the breach) after which the landlord can take possession of the premises and claim any amount through the bond, whereas the tenant has 42 days to vacate if the property is to be renovated or sold.
Tenants can issue a Notice to Terminate if the landlord has breached the tenancy agreement (for example, by not carrying out repairs that the landlord is responsible for). A Notice to Terminate must give the landlord 14 days’ notice that the tenant considers the agreement at an end and will be vacating the premises. Tenants may be tempted to respond to alleged breaches by the landlord by refusing to pay the rent. Tenants should be aware that breaches by the landlord do not entitle them to not pay the rent, as this would be considered a separate breach, for which the landlord can take action against the tenant.
Landlords and tenants should always attempt to work out the issues themselves first, if possible. The Residential Tenancy Commissioner, acting under the Office of Consumer Affairs and Fair Trading in Tasmania, handles disputes between landlords and tenants regarding the bond, unreasonable rental increases and repairs disputes. The Residential Tenancy Commissioner will then consider the evidence submitted by both parties (or in the case of rental increases, rents charged for similar properties), make a decision and send this to both parties.
If a party is unsatisfied with the decision, they can appeal to the Civil Division of the Magistrates’ Court of Tasmania within seven days of receiving the decision. The Magistrates’ Court can also hear applications from property owners and tenants for urgent termination of leases where the other party is causing serious damage to the premises or the landlord/another person).