This guide covers landlords (or head-tenants) and tenants (or sub-tenants) in a Residential Tenancy. This applies to the majority of share accommodation and residential property rental situations. To confirm it covers your situation visit What is my share accommodation situation?
The standard form NSW Tenancy Agreement can be downloaded and used for free from NSW Fair Trading.
In NSW, this standard form Residential Tenancy Agreement should be used for agreements between:
Note: Although the form has labels for a ‘landlord’ and ‘tenant’, these are just convenient labels—in sub-letting situations, the head-tenant should be listed as ‘landlord’ and the sub-tenant as ‘tenant’.
Firstly, it allows the landlord and tenant to list the details of the tenancy, such as names of the parties, the length of the agreement, amount of the rent, and how any payments should be made.
Secondly, the agreement includes the terms and conditions of the tenancy. This includes: rent, responsibility for bills and maintenance, access for landlords, and termination.
Although it is strongly recommended that the landlord and tenant put the agreement in writing, just because an agreement is entirely or partly oral does not mean it is not legally valid. Oral agreements are bound by the same standard set of terms.
Nonetheless, in NSW the landlord is obliged to put together a written agreement and provide it to the tenant.
The NSW Government has created a Standard Form Tenancy Agreement that must be used by for all residential tenancies
Keeping a copy of the agreement is recommended as a good way to remember your rights and responsibilities as a landlord or tenant.
As well as providing space for the parties to fill out the relevant details, the standard form agreement also conveniently lists the standard terms that must apply by law to all agreements (oral or written).
You should take the time to read the terms and this guide before signing the agreement.
There is no minimum or maximum length of agreement under NSW law.
If, however, you are renting a premises for less than 3 months and for a holiday, then you should not use a residential tenancy agreement.
If the tenant is renting a room in a share house, it is very important that the agreement detail which parts of the premises the tenant has exclusive possession of, and which parts the tenant has shared use of.
A common situation is for the tenant to have exclusive possession of their own bedroom and shared use of kitchen, bathroom and laundry facilities. By describing in the agreement which parts of the property the tenant does and does not have exclusive possession over, the rights and obligations of all parties are guaranteed.
Clauses 41 and 42 of the Standard Form Agreement allow the tenant and landlord to agree on a Break Fee. In fixed term tenancies, a Break Fee is a set amount that the tenant will have to pay the landlord if the tenant terminates the tenancy before the end of the fixed term without any legal justification. If no break fee is set, then the Tribunal will determine how much the tenant will be liable for to compensate the landlord.
Flatmates recommends setting a break fee in most share accommodation situations. By having a break fee, the tenant is certain about their liability if they terminate the tenancy before the end of the fixed term. Having a break fee also reduces the time and cost of resolving any disputes over compensation.
The tenant and landlord can agree for additional terms to apply to the agreement in addition to the standard terms. Any additional terms cannot contradict or change the standard terms, and also cannot try to exclude any of the standard terms from applying to the agreement.
Some types of additional terms that are NOT allowed under NSW law include:
Transferring money safely
When paying your deposit, bond or rent by cash make sure you get a receipt. With modern phones this can be as simple as an SMS or email confirming the amount, date and what it is for. Keep a copy of this incase you need it later.
Never ever transfer money to a bank account outside of Australia or use a untraceable money transfer system such as WESTERN UNION. If anyone asks you to do this on any website it is likely to be a scam and you are almost guaranteed to lose your money.
If this ever happens on Flatmates.com.au report the member immediately so we can investigate and take the appropriate action.
These legal guides provide a brief summary and introduction of the laws and regulations affecting share accommodation. They do not cover all cases in all legal jurisdictions and might not apply in your specific share accommodation situation. It is important that you use this information as a guide only and seek independent Legal Advice or consult the Relevant Acts. We do not accept any liability that may arise from the use of this information.