Tenant rental rights you might not know you had

Battle lines are often drawn between tenants and property owners (or their agents), but there is no need to wage a war if you understand your rights and responsibilities and those of your landlord.

A lot of tenants think when it comes to rentals, the balance of power weighs heavily on the side of the landlord. Yes, landlords do have a lot of rights; it is their property after all. But, as a tenant, that property is your home and you have a number of rights protected in legislation too.

A misunderstanding about who is responsible for what can often result in tension between tenants and landlords or agents. In worst case scenarios, the parties wind up at tribunal or court – an experience that can not only destroy relationships, but can be very costly for everyone involved.

At EBM RentCover, care and consideration drives everything we do. We do not want to see any of our landlords and their tenants in a legal wrangle, so here is some info to help clarify matters that often result in argy-bargy.

Rent increases

Your landlord or agent has the right to increase your rental amount. However, in order to do so, they must abide by rules set out under legislation. The below is a guide only (check requirements in your state or territory).

• If you are on a fixed-term tenancy of two years or more, the rent can be increased at any time, provided 60 days’ written notice is given. However, the rent cannot be increased more than once within any given 12 months throughout the lease term.
• If you are on a fixed-term tenancy of two years or less, your landlord generally cannot increase your rent, unless it is written into the agreement.
• If the fixed-term lease has expired, unless you sign another agreement, you will move onto a periodic agreement (or month-to-month rolling lease). During this time, the rent can be increased, but generally only once every six months (Qld, Vic, WA, NT) or 12 months (ACT, Tas, SA). Note: there is no limit in NSW.
• If you have entered into a tenancy arrangement without having signed a written agreement or contract, then the rent can’t be increased during the first six months of your arrangement.

Before your landlord ups your rent, they must give you 60 days notice (except in the NT, where it’s 30 days) and clearly note in writing the new figure and the date the new rental amount kicks in.

If you’ve received a rental increase notice and you believe it is unfair, you have the right to negotiate this with your landlord or agent. If negotiation fails, you can apply to the tribunal within 30 days of receiving the notice. Any increase must not be ‘excessive, however there is no official definition of how much is too much (except in the ACT where any increase 20 per cent more than the average increase in rents in a given area is considered excessive).

Rules around sub-letting

If you are the head-tenant on the lease, you have the right to ask your landlord if you can sub-let. What is sub-letting? This is when you personally rent out part of the home to someone else e.g. you rent one of the spare rooms to a friend.

You can only sub-let if your landlord gives written consent. In most states and territories, your landlord cannot unreasonably say no when you propose to sub-let while you are living in the premises. However, your landlord can refuse consent if you propose a sub-let for your whole tenancy or the whole premises.

In this situation where you have sub-let a room, you (head-tenant) take on the full legal responsibility of a landlord, which means you must comply with tenancy legislation regarding matters like bonds and payments, notices to vacate/terminations, maintenance and repairs, and safety and security.

Importantly, as head-tenant, you are the one who is totally responsible for any loss or damage to the home, or for rental arrears. This means you can be held responsible for any loss that your landlord suffers because of the actions of your sub-tenant.

For example, if your sub-tenant caused damage to the property, your landlord could claim compensation from you, and you would have to try and recover the money from your sub-tenant. As head-tenant you are also responsible for paying the rent to your landlord, regardless of any sub-let arrangement, so if your sub-tenant fails to pay, you will need to pay up or risk breaching your tenancy agreement.

Evictions for breaching rental agreement

If you have broken the rules set out in your rental agreement, your landlord may be able to terminate the lease. Most landlords will generally only go down this path if it is the last resort.Reasons for termination include:

• Significant damaged to the property
• Failure to pay rent or consistently late payments
• Being a nuisance to neighbours
• Using the premises for illegal activities

Your rights vary depending on the reason for termination, the state or territory you live in, and the type of lease agreement in place (e.g. fixed-term or month-to-month).

However, your landlord or their agent must follow the procedure set out in the relevant Residential Tenancies Act if they want to legally evict you. This includes issuing notices (and following strict timeframes) and giving you time to fix any issues (except in some circumstances like illegal activities). Note: You have the right to appeal any eviction with your state/territory tribunal.

Return of bond

In most states and territories, your bond will be lodged with a bond authority. The money is held by the authority for the duration of your tenancy in case there is unpaid rent or you damage the property. At the end of your tenancy, your bond will be returned to you in full unless the landlord makes a claim against the money.

The top three reasons why renters don’t get their bond back are

1. Rent arrears ­­(rent is not up to date).
2. Damage caused by the tenant.
3. Lack of cleaning at the end of a tenancy.

The bond is your money, and your landlord/their agent cannot take money from your bond unless they have good reason.

You can apply to have your bond refunded independently if your landlord or agent doesn’t authorise its release in a timely manner. Different rules about getting bond back apply in different states and territories.

Tenancy database blacklisting

Landlords and agents can screen potential tenants in a tenancy database or ‘blacklist’. These databases store information about a person’s rental history. Except in the NT and NSW, the landlord or agent needs to tell you which databases they intend to search when you apply for the property.

Under the Australian Privacy Principles, you’re entitled to access the information these databases hold on you (note: you can be charged a fee to access your tenancy file). 

In most states and territories there are strict rules around what information can be stored on these databases. You can only be listed on a blacklist if you owe more money than the bond covers, or a tribunal has ruled to end the lease because of a breach. You can't be listed simply because you exercised your rights.

You can also only be listed on the database once the lease has ended (not during it) and for a maximum of three years. If the landlord or agent is going to list you, they must tell you, so you have time to consider and argue the information they are using as grounds for listing. If you think the listing is unjust, talk to your landlord or agent and ask them to amend it. If you can't resolve the issue, you can apply to the tribunal to have the listing amended or removed. 

Also, if the landlord or agent finds you listed, they are required to tell you. If you think you've been wrongly listed, or if the listing is ‘out of date’ or ‘inaccurate’, you can apply to have it removed or amended.

By understanding and respecting your rights and obligations and those of your landlord, you can avoid unpleasant interactions and potentially costly legal battles. And that’s a win–win for everyone.

*While we have taken care to ensure the information above is true and correct at the time of publication, changes in circumstances and legislation after the displayed date may impact the accuracy of this article. If you need us we are there, contact 1800 661 662 if you have any questions.