2.8 The Tenancy Agreement

What is a Tenancy Agreement?

A Tenancy Agreement is sometimes known as a lease. It sets out the conditions of your tenancy including things like:

• How long can you stay - for a fixed or unlimited time?
• How much rent do you have to pay and how often?
• Who pays the water costs? Are they shared?
• How many people may live in the premises?

The Tenancy Agreement is a legal contract between you and the owner. It allows you to live in rental housing in exchange for "valuable consideration". This usually means money or the tenant's labour. Not all agreements are covered by the Residential Tenancies Act . Check with the

Tenants Advice Service or the Ministry of Fair Trading if you are not sure, especially if you live with the owner or in a shared tenancy.

Are there different types of Tenancy Agreements?

Yes. A Tenancy Agreement may be written or verbal, and it may be for a definite or an indefinite amount of time:

• A "periodic tenancy" is for an indefinite amount of time. There is no definite end date.
• A "fixed term tenancy" is for a definite amount of time. A fixed term tenancy has a start and end (expiry) date.

The Tenancy Agreement is a legally binding contract. It is important that you understand and agree with the conditions and obligations that have been included. Sometimes only the basic conditions of the Tenancy Agreement are written and others may be verbal. Avoid verbal or partially verbal agreements because they are difficult to prove. Make sure that any verbal agreements are included in your written agreement. This can include any repairs or maintenance the owner/agent has agreed to. If the owner/agent won't put it in the agreement it is an indication they may not do it when the need arises.

If you live in a flat or unit, your Tenancy Agreement may state you will agree to comply with Strata company or Body Corporate rules. If this is the case, you should ask for a copy of the rules so you know what you are agreeing to.

Will the agreement include how much and when rent is paid?

Yes. Your rental commitments will be agreed as part of the Tenancy Agreement. Whether the tenancy is a fixed term or periodic agreement, the rent may be paid weekly, fortnightly, monthly or at any other interval decided on by the owner and yourself.

What does the agreement say?

The agreement sets out the rules of the tenancy. These are known as conditions and will guide what happens if either party breaks one of the conditions. It is important to be aware and understand all the tenancy conditions before you sign. Take the agreement home and read it carefully, get a friend to read and "witness" (sign) it.

How does the Residential Tenancies Act (1987) relate to my agreement?

The Residential Tenancies Act (1987) sets out the rights and responsibilities of the owner and tenant and how Tenancy Agreements may be ended. These rules are not always written into your agreement but they will automatically apply to your tenancy and can't be changed. Other parts of the Act can be changed in your agreement (see the section on contracting out below). To be legally binding these changes must be written in the agreement.

What conditions should be included?

When you read the Tenancy Agreement ask the following questions to make sure you understand and agree to the conditions:

• Is the tenancy for a fixed term or periodic?
• If it is a fixed term tenancy, when does the tenancy start and finish, and can I stay on after the expiry date?
• How much rent do I pay?
• How often is the rent due (weekly, fortnightly or monthly)?
• How can I pay the rent (by cash, cheque or any other method)?
• Do I pay the rent to the owner, agent or the owner's bank account?
• Who pays the water costs? How will I be charged for water usage? (For more information see section 2.5 Water Charges )
• Can I rent rooms out to other people?
• Is the house likely to be offered for sale during the tenancy?
• Do I have to get the carpets or curtains professionally cleaned when I move out? (This might depend on whether they were cleaned before you moved in)
• Is the property to be rented 'as is'? Does the owner or the tenant have to maintain or do repairs to the property?
• What happens if the owner wants to enter the property regularly for any reason?
• Am I allowed to have pets?

What is the contracting out clause?

The term "contracting out" refers to clauses that can be included in your written Tenancy Agreement that change your tenancy rights as set out in the Residential Tenancies Act (1987) .

A contracting out clause may say "Sections 42 and 43 do not apply to this contract" or "Sections 40 and 45 may have been modified, excluded or restricted".

The wording of the clause allows the owner to modify or exclude sections of the Act without you knowing what they refer to or how it will affect you. Do not agree to a clause if you do not understand the sections that will be contracted out or, the implications of losing any of your rights.

The Residential Tenancies Act sets out which sections can be altered in a written Tenancy Agreement (s. 82.).

These include:

• Tenant's responsibility for cleanliness and damage (s.38)
• Tenant's conduct on the premises (s39)
• The tenant to have vacant possession of the rented property on the day the tenant is to move in (s.40).
• The owner/agent cannot rent out the property if they know there are legal barriers to the tenant's occupation of the property (s.41).
• Owner's responsibility for providing the property in a clean condition and the owner's responsibility for maintaining and carrying out repairs on the property (S.42).
• Compensation where a tenant sees to URGENT repairs (S.43).
• The owner's responsibility to provide and maintain locks. The inability of the owner or the tenant to remove or change the locks without the other party's permission (S.45).
• Owner's right of entry - restricted to the conditions of the Act and not under any other circumstances (S.46).
• Right of tenant to affix and remove fixtures (S.47)
• Owner to bear outgoings in respect of premises (S.48)
• Right of tenant to assign or sub-let (S.49)
• Vicarious responsibility of tenant for breach by other person lawfully on premises (S.50)
• Cost of written agreement to be borne by owner (S.55)
• Discrimination against tenants with children (S.56)

No other sections of the Residential Tenancies Act (1987) can be contracted out. For example, under no circumstances can the owner/agent take away your right to be served the correct notices before they evict you. As at July 1996 the Real Estate Institute of WA's (REIWA) Agreement to Take Residential Premises takes away some rights, as provided by the Act, including your right to do urgent repairs and claim the cost back from the owner.

Some examples of tenancy agreements can be found at the end of the Tenants' Rights Manual.

Should I Get a Copy of My Agreement?

The owner must give you a copy of your agreement at the time you sign it (s54(1)(a). penalty $1000) and a booklet which sets out your rights and responsibilities (s88(2)(c) and Regulation 14 clause 2). You should also get a fully executed copy of your Tenancy Agreement within 21 days, or as soon as practical, after it is signed (s54(1)(b). penalty $1000).

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