Before a tenant moves in, the landlord and tenant need to complete a tenancy agreement, which sets out the key things the landlord and tenant agree to do.
Under the Residential Tenancies Act, all tenancies entered into after 1 December 1996 must have a written tenancy agreement, which must include the following.
- The names and contact addresses of the landlord and tenant.
- The address of the property.
- The date the tenancy agreement is signed.
- The date the tenancy is to begin.
- Addresses for service for both the landlord and the tenant.
- Whether the tenant is under the age of 18.
- The rent amount and frequency of payments.
- The amount of any bond.
- The place or bank account number where the rent is to be paid.
- Any fees (letting agent or solicitor’s) to be paid (if applicable).
- A list of any chattels (like furniture, curtains and other fittings) provided by the landlord.
- The type of tenancy and the date the tenancy will end if it is a fixed-term tenancy.
Both the landlord and tenant must sign the agreement, and the landlord must give the tenant a copy before the tenancy begins.
The Residential Tenancies Amendment Act 2010 extended the Act’s coverage to include boarding house tenancies.
Get a copy of the tenancy agreement
The tenancy agreement includes a property inspection report, as well as a summary of the Residential Tenancies Act.
Some questions and answers about tenancy agreements
Can other conditions be included in the tenancy agreement?
Other things may be included that are specific to the particular tenancy, for example:
- how many people are allowed to live in the house or flat
- whether the tenants may sublet or assign (transfer) the tenancy to anyone else (but this does not prohibit the tenant from having flat mates or boarders)
- where cars may be parked
However, if something has been written down as a provision of a tenancy agreement but it is inconsistent with what the law says, it has no effect. A landlord cannot enforce what is outside the law and tenants cannot give away any of their rights. For example, even if the tenancy agreement says the tenant must leave on a month’s notice, the tenant is still entitled to 90 or 42 days’ notice, whichever is applicable under the Residential Tenancies Act.
What is an address for service?
An address for service is a physical street address where official notices will be accepted by, or on behalf of the person concerned. It is an address where you can be sent mail about the tenancy at any time, even after the tenancy has ended. It is a good idea to get an address for service for your tenant that is not the address of the rental property – perhaps a relative’s or a next of kin’s.
In addition to a physical address, an email address, PO Box number or fax number can be provided as an additional Address for Service.
If this address changes then it is very important that the other party (that is, the landlord or the tenant) is informed. If you have paid/lodged a bond, then it is important to inform the Department of Building and Housing as well.
Are there different types of tenancies?
There are two basic types of tenancies: periodic tenancies and fixed term tenancies. Special rules apply if the tenancy is a service tenancy or boarding house tenancy. When deciding what sort of tenancy will best suit your needs, both landlord and tenant should be aware of what their obligations would be.
What is a periodic tenancy?
Any tenancy that is not for a specific term. This is the most common form of tenancy. It continues until the landlord or tenant gives the appropriate notice to end it.
What is a fixed-term tenancy?
This finishes on a specific date set down in the written tenancy agreement. There is no provision for either the landlord or the tenant to give notice to end the tenancy during the term. A fixed term tenancy automatically becomes a periodic tenancy on expiry of the fixed term, unless either party gives notice they do not want that to happen. This notice needs to be given no sooner than 90 days before the end of the tenancy and no later than 21 days before the end of the tenancy.
If a landlord plans to go overseas for a year and arranges a fixed-term tenancy, and then finds circumstances have changed and they have to come home early, they may be unable to move back into their home until the end of the fixed term. If tenants have a fixed-term tenancy and their situation changes so they are unable to stay in that property, they may remain responsible for the tenancy and the rent payments until the landlord is able to find suitable replacement tenants, or until the end date of the tenancy.
If unexpected circumstances mean a landlord or tenant wishes to end a fixed-term tenancy early, then they may apply to the Tenancy Tribunal to end the tenancy. The Tribunal may shorten the tenancy if there has been an unforeseen change in the applicant’s circumstances and if the hardship caused to the applicant by the tenancy continuing would be greater than the hardship caused to the other person by the tenancy ending. The Tribunal can also order compensation to be paid.
If there is a right to renew or extend the tenancy in the tenancy agreement, and the tenant wishes to renew or extend the tenancy, then the tenant must write to the landlord advising them at least 21 days before the fixed-term tenancy is due to end.
Fixed-term tenancies are fully covered by the Residential Tenancies Act, with some small exceptions.
- If the parties agree to a tenancy that is 90 days or less (and it will not be renewed or extended) this is considered a short fixed-term tenancy. The rules relating to market rent, rent increases for improved facilities and notice to terminate the tenancy do not apply to short fixed-term tenancies. In general all other provisions of the Residential Tenancies Act apply.
- Tenancy agreements for fixed-term tenancies of 5 years or more will not be subject to the Residential Tenancies Act as long as this is clearly stated in the tenancy agreement.
What is a service tenancy?
This is where an employer provides an employee with a property to live in during their period of employment. Service tenancies are fully covered by the Residential Tenancies Act, but have special rules covering rent paid in advance and notice to quit the tenancy. (We recommend you seek advice from us if you are contemplating a service tenancy.)
In a service tenancy, the tenancy usually ends when the employment ends, and the employer has given 2 weeks’ notice to quit the house. If an employer rents a property to a non-employee that is usually used for housing an employee, and the tenancy agreement says the property may be needed for an employee on 42 days’ notice, then, when the property is needed for that purpose, 42 days’ notice can be given.
Where a landlord is also the tenant’s employer and takes the rent out of the tenant’s pay, they can also take rent out of pay to cover the holiday period.
What is a boarding house tenancy?
A boarding house is a residential premises that contains one or more boarding rooms, with facilities for communal use by the tenants, and is intended to be occupied by at least 6 tenants at any one time.
A boarding house tenancy is one that lasts or is intended to last for 28 days or more. The tenant has exclusive rights to occupy sleeping quarters and rights to shared use of facilities (i.e. bathrooms, laundry and kitchen) in a boarding house.
A separate boarding house tenancy agreement should be entered and include a statement of any services provided by the landlord. The landlord must also give the tenant a copy of the house rules.
Who is responsible for water charges?
A tenant is responsible for outgoings they actually consume or use. The outgoings must be exclusively attributable to the tenant’s occupation of the premises or use of the facilities. This includes the supply of water if the water supplier charges for water provided to the premises on the basis of consumption (i.e. metered water).