Contents (2010 - 42)
Residential Tenancies Act 2010 No 42
Part 2 Residential tenancy agreements
Division 1 General provisions relating to agreements
13 Agreements that are residential tenancy agreements
(1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence.(2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing.(3) An agreement may be a residential tenancy agreement for the purposes of this Act even though:(a) it does not grant a right of exclusive occupation, or(b) it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities.Note.See section 8 for agreements that are not covered by this Act. Section 7 sets out premises not covered by this Act.(4) For the purpose of determining whether an agreement is a residential tenancy agreement, it does not matter that the person granted the right of occupation is a corporation if the premises are used (or intended for use) as a residence by a natural person.
14 Landlord’s obligation to ensure written residential tenancy agreement
(1) The landlord under a residential tenancy agreement must ensure that the agreement is in writing at the commencement of the agreement.(2) This section does not:(a) impose any obligation on a tenant to prepare a written residential tenancy agreement, or(b) affect the enforceability of a residential tenancy agreement that is not in writing or is only partly in writing.(3) If a landlord fails to comply with this section:(a) the rent under the residential tenancy agreement must not be increased during the first 6 months of the tenancy, and(b) the landlord is not entitled to terminate the residential tenancy agreement under section 85 during the first 6 months of the tenancy.Note.The Tribunal may order a landlord to enter into a written residential tenancy agreement (see section 16).
15 Standard residential tenancy agreements
(1) Standard form may be prescribed The regulations may prescribe a standard form of residential tenancy agreement.(2) The regulations may provide for the following:(a) the terms of the agreement,(b) more than one standard form of residential tenancy agreement for use for different classes of residential premises, agreements or parties,(c) the addition of clauses to, or the omission or variation of terms contained in, a standard form of residential tenancy agreement in specified circumstances,(d) the application of terms of standard forms of residential tenancy agreement to agreements entered into before the regulations prescribing those standard forms took effect.(3) Terms to be consistent with Act A standard form of residential tenancy agreement must be consistent with this Act and the regulations.(4) Variation of standard form A residential tenancy agreement for which a standard form is prescribed may include additional terms, but only if:(a) the terms do not contravene this Act or the regulations or any other Act, and(b) the terms are not inconsistent with the terms set out in the standard form.(5) Residential tenancy agreement taken to include standard terms A residential tenancy agreement of a kind for which a standard form is prescribed is taken to include the terms of the standard form.(6) This section is subject to this Act.Note.Section 20 allows terms otherwise included by this Act to be excluded or modified in residential tenancy agreements having a fixed term of 20 years or more.
16 Written residential tenancy agreements—Tribunal orders
(1) The Tribunal may, on application by a tenant, order the landlord to prepare and enter into a written residential tenancy agreement.(2) The order may:(a) specify the terms of the agreement, and(b) specify a commencement date for the agreement that occurred before the order was made.(3) The Tribunal may make an order under this section only if it is satisfied that the landlord and tenant are subject to an existing residential tenancy agreement that is not in writing or is only partly in writing and that the tenant is not holding over under a previous written fixed term agreement.
17 Certain unexecuted residential tenancy agreements enforceable
(1) If a residential tenancy agreement has been signed by a tenant and given to the landlord or a person on the landlord’s behalf and has not been signed by the landlord:(a) acceptance of rent by or on behalf of the landlord without reservation, orgives to the document the same effect it would have if it had been signed by the landlord on the first day in respect of which rent was accepted or on the day on which such an act was first performed.(b) any other act of part performance of the agreement by or on behalf of the landlord,(2) This section applies despite section 54A of the Conveyancing Act 1919.
18 Fixed term agreements to continue as periodic agreements after end of fixed term
A fixed term agreement that continues after the day on which the fixed term ends continues to apply:(a) as if the term of the agreement were replaced by a periodic agreement, and(b) on the same terms as immediately before the end of the fixed term.Note.A landlord and tenant may also enter a further agreement for a further fixed term tenancy.
Division 2 Terms of residential tenancy agreements
19 Prohibited terms
(1) A residential tenancy agreement must not contain a term of a kind set out in this section or prescribed by the regulations for the purposes of this section.(2) Terms having the following effects must not be included in a residential tenancy agreement:(a) that the tenant must have the carpet professionally cleaned, or pay the cost of such cleaning, at the end of the tenancy,(b) that the tenant must take out a specified, or any, form of insurance,(c) exempting the landlord from liability for any act or omission by the landlord, the landlord’s agent or any person acting on behalf of the landlord or landlord’s agent,(d) that, if the tenant breaches the agreement, the tenant is liable to pay all or any part of the remaining rent under the agreement, increased rent, a penalty or liquidated damages,(e) that, if the tenant does not breach the agreement, the rent is or may be reduced or the tenant is to be or may be paid a rebate of rent or other benefit.Note.Section 15 also prohibits certain additional terms from being included in a residential tenancy agreement for which a standard form is prescribed.(3) However, a residential tenancy agreement may include a term that requires the carpet to be professionally cleaned or requires the tenant to pay the cost of such cleaning, at the end of the tenancy, if the landlord permits the tenant to keep an animal on the residential premises.
20 Mandatory terms may be varied for long term leases
(1) A fixed term agreement for a fixed term of 20 years or more may:(a) provide that terms that would otherwise be included in the agreement by this Act or the regulations (mandatory terms) do not apply, or are varied as provided by the agreement, and(b) include terms that would otherwise be prohibited by this Act or the regulations.(2) However, any such agreement must not exclude or modify any of the following:(a) any term included by this Act relating to the payment of rates, taxes and charges by the landlord,(b) the prohibition against more than one rent increase a year under a fixed term agreement for a fixed term of more than 2 years,(c) any right under this Act to make an application to the Tribunal,(d) the grounds on which a residential tenancy agreement may be terminated under this Act,(e) any other term prescribed by the regulations for the purposes of this section.(3) The Tribunal may, on application by a tenant under a fixed term agreement for a fixed term of 20 years or more, make an order declaring that:(a) a mandatory term does form part of the agreement, or(b) a prohibited term is not included in an agreement, or(c) a mandatory or prohibited term included in the agreement is varied as specified by the declaration.(4) The Tribunal may make an order if it is of the opinion that the inclusion or variation of a term, or failure to include a term, is unconscionable, unjust, harsh or oppressive.(5) This section has effect despite any other provision of this Act.
21 Inconsistent and prohibited terms void
(1) A term of a residential tenancy agreement is void to the extent to which it:(a) is inconsistent with any term included in the agreement by this Act or the regulations, or(b) is prohibited by this Act or the regulations.(2) The Tribunal may, on application by a landlord or a tenant, make an order declaring that a term of a residential tenancy agreement is void or partly void if satisfied that the term is inconsistent with any term included in the agreement by this Act or the regulations or is prohibited by this Act or the regulations.
22 Offence relating to terms of residential tenancy agreements
A landlord, or landlord’s agent, must ensure that a written residential tenancy agreement:(a) is in the standard form (if any) prescribed by the regulations for the agreement and contains any other terms required to be included by this Act or the regulations, and(b) does not contain any terms prohibited by this Act or the regulations.Maximum penalty: 20 penalty units.