NSW Tenant's Rights and Obligations
Tenants have a number of rights owed to them by the landlord during the tenancy. They also have various obligations they must fulfil. This page helps both landlords and tenants understand their roles during the tenancy.
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?
What rights does the tenant have?
Under a residential tenancy agreement, the tenant has a number of legal rights. These rights usually require the landlord to provide the rented premises to the tenant in a good condition or to refrain from actions that may interrupt the tenant’s ability to use the rented premises. If the landlord breaches any of their obligations by infringing on the rights of the tenant, then the landlord can be liable to compensate the tenant.
Legal right to occupy rented premises
Throughout the tenancy, the landlord must take all reasonable steps to ensure that the tenant is legally allowed to occupy the rented premises as a residence. Legal impediments to using a rented premises as a residence commonly include environmental planning restrictions, health and safety regulations, or government orders. This means that the landlord should make enquiries before renting a premises to determine whether it can be used as a residence.
Tenants are not allowed to sub-let all or part of a residence without the permission of the landlord. If a tenant does sub-let without the landlord’s permission, this is a breach of the agreement between the tenant and landlord, and the landlord will be entitled to compensation from the tenant. The sub-tenant is still allowed to occupy the premises under the sub-tenancy agreement, even if the landlord has not given permission.
Right to vacant possession at beginning of tenancy
At the beginning of the tenancy, the tenant has the right to vacant possession of the parts of the rented premises which they have exclusive possession of under the agreement. Vacant possession means that no one apart from the tenant, including the landlord, is occupying or has the right to occupy the rented premises. When the landlord intends to also use parts of the premises, it is therefore very important that the tenancy agreement states which parts of the property are exclusively for use by the tenant and which parts are for shared use.
In shared accommodation, vacant possession is particularly important. If a person is renting a room in a shared house, they will have exclusive possession over their room, and shared use of the other facilities and rooms of the house, such as the bathroom or kitchen. In this situation, the tenant is therefore entitled to vacant possession of their room. The tenancy agreement should clearly state which parts of the property are for exclusive use by the tenant, and which parts are for shared use.
Right to quiet enjoyment of the rented premises
The tenant has the right to quiet enjoyment of the rented premises without interference or interruption by the landlord. This means that the landlord is under an obligation not to do anything or to allow anything to happen which may interfere with the reasonable peace, comfort or privacy of the tenant during the tenancy.
There is no set list of things that are interferences with quiet enjoyment. However, there are a number of common examples where the landlord is infringing on the rights of the tenant:
- attempting to evict a tenant when not allowed to do so
- the landlord entering the premises when not allowed to do so
- the landlord retaining or using part of the premises contrary to the tenancy agreement
- excessive noise
- excessive dust
- interference by the landlord with facilities provided with the tenancy
- failing to carry out repairs when required to do so
- interfering with the tenant’s access to the rented premises
- overcrowding of the rented premises caused by the landlord
In share accommodation where the landlord lives in the same property, respecting the tenant’s right to quiet enjoyment is particularly important. The landlord should understand that the tenant has the right to use rented premises without unreasonable or unnecessary disturbances. The best way to avoid any problems arising is for the landlord and tenant to discuss at the beginning of the tenancy how the share accommodation will work in practice.
The landlord must also take reasonable steps to prevent any neighbouring tenants of the landlord from interfering with the tenant’s quiet enjoyment of the property. This means that if the landlord is aware that their neighbouring tenants are interfering with the quiet enjoyment of the rented premises by the affected tenant, then they must take action to stop or prevent the neighbouring tenants from doing so. What amounts to ‘reasonable steps’ will depend on how serious the interference is by the neighbours.
In share accommodation where the landlord has multiple tenants under separate agreements in one property, it is very important that the landlord ensures that the tenants do not interfere with each other’s quiet enjoyment of the premises. The best way to avoid any problems from arising is to introduce the tenants to each other and discuss how the share accommodation will work in practice.
The landlord does not have responsibility for neighbours of the tenant who are not also tenants of the landlord.
Right to a clean premises at beginning of tenancy
At the beginning of the tenancy, the landlord must provide the premises to the tenant in a reasonably clean condition and fit for habitation. If the premises are not clean when the tenant moves in, the landlord will be liable for the cleaning costs. ‘Fit for habitation’ means that the premises is safe to be used as a residence by the tenant—i.e no injury or illness is likely to be caused by the premises—and that the premises can be comfortably used by the tenant. Small defects that do not affect safety or everyday comfort are not likely to make a premises unfit for habitation.
Right to uninterrupted utility supplies
The landlord must not interfere with or interrupt the supply of any utilities to the premises including gas, electricity, water, telephone lines or internet. There are two exceptions when the landlord can temporarily interrupt utilities:
- to prevent or avoid danger
- to allow repairs or maintenance to the service
Right to know if rented premises is being sold
If the landlord intends to see the premises, the landlord must give the tenant at least 14 days written notice before any inspection of the premises by prospective buyers. The tenant cannot be required to allow more than 2 inspections of the premises per week.
The landlord (or agent) must make a reasonable effort to agree with the tenant on days and times when the inspections by prospective buyers will occur. If the landlord (or agent) does not make a reasonable effort, they may have to compensate the tenant for the interference that inspections may cause. The tenant cannot, however, unreasonably refuse to agree on days and times for inspections by prospective buyers.
The best approach is for the tenant and landlord to discuss mutually convenient days and times for inspections. Both parties should be aware of and understand the potential interruption that inspections can cause at particular times and be willing to compromise.
What are the tenant’s obligations throughout the tenancy?
Tenants also have a number of obligations that they must fulfil during the tenancy. It is important for tenants meet these obligations to avoid potentially having to pay compensation to the landlord, or the tenancy agreement being terminated.
What the tenant must not do
The tenant must not “cause or permit” any of the following things:
- Illegality - the rented premises must not be used for an illegal purpose. Examples of an illegal purpose include: cultivating, storing or hiding illegal drugs, storing or hiding stolen goods, or operating as an illegal brothel or casino.
- Nuisance - the tenant must not cause or allow nuisance. Examples of nuisances can include excessive noise, violence, unpleasant smells, rubbish, car parking, criminal activity, harassing neighbours, or other offensive behaviour.
- Interference with Peace, Comfort, Privacy of Neighbours - the tenant must not cause or allow any anti-social behaviour towards their neighbours. A neighbour is any person who the tenant would reasonably consider to be affected by the anti-social behaviour, and can extend behind people just living next door.
- Damage to Premises - the tenant must not intentionally or negligently cause or allow damage to the rented premises. Damage can be to any part of the premises. It is for the landlord to prove that the tenant actually caused the damage.
- Exceeding Maximum Number of Occupants - if the tenancy agreement specifies a maximum number of occupants of the premises, then the tenant must not allow the amount of people living there to exceed that number. Temporary, short-term guests usually do not count as an occupant. However, if a person starts to live on a permanent basis at the premises and doing so will exceed a maximum number of occupants, then the tenant should inform the landlord to negotiate an outcome.
What the tenant needs to do
During the tenancy, the tenant has the following obligations:
- Keep the Premises Clean - throughout the tenancy, the tenant must keep the premises reasonably clean relative to the condition at the beginning of the agreement. This generally means that the tenant should aim to keep the rented premises in the same or a better state of cleanliness than it was at the start of the tenancy. Problems about cleanliness often arise regarding mould and who is responsible for it. The general answer is that if the tenant’s actions have caused the mould, then they will be responsible, but if the mould is caused by a structural problem at the premises then the landlord is responsible.
- Notify Landlord of Damage to Premises - if the tenant becomes aware of any damage to any part of the premises, then they must inform the landlord as soon as possible. If the tenant does not notify the landlord despite knowing about the damage, the tenant may be liable for any amount of the damage that was caused because they failed to notify the landlord.
What are the tenant’s obligations at the end of the tenancy?
At the end of the tenancy, the tenant should do the following:
- Remove Belongings from Premises - the tenant must remove all their property from the rented premises at the end of the tenancy.
- Return Premises to Same Condition as at Start of Tenancy - the tenant must give the rented premises back to the landlord in the same condition it was in at the beginning of the tenancy. The ’same condition’ allows for ‘fair wear and tear’ to the property. This means that the tenant is not liable for deterioration to the rented premises that occurred due to natural forces or the normal, daily use of the premises. ‘Fair wear an tear’ includes things that could reasonably be expected to occur in using the premises in a normal way. Refer to our Condition Reports section for more information.
- Leave Premises Clean - the tenant should return the rented premises to the landlord in the same or a better state of cleanliness than it was in at the start of tenancy.
- Remove Rubbish - the tenant must have all rubbish removed from the premises at the end of tenancy. Generally, the tenant does not have to remove rubbish that was already at the premises when they moved in.
- Return Keys to Landlord - the tenant must return all the keys, or similar devices, to the landlord at the end of the tenancy.
Can the tenant be liable for the actions of other people?
Tenants will be held liable for any breach of the above obligations that are made by people who are lawfully on the rented premises. For example, this means that the tenant will be liable for damage to the premises caused by their family members, visitors, sub-tenants / boarders, or trades persons hired by the tenant. The tenant will generally not be liable for the actions of people who are not lawfully on the premises, e.g. trespassers like burglars or people whose permission to be at the premises has been revoked by the tenant.
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.