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Renting

07 Sep 2016 - 12:17 | Version 27 |

Contributed by LokeshKashyap and current to 1 May 2016

Renting, or tenancy, is a tenant's right to occupy premises based on their legal relationship with their landlord.

The Residential Tenancies Act 1999 (NT) ('the RTA') is the legislation that covers most residential tenancy agreements in the Northern Territory (NT). It provides clear guidelines about the basic rights and responsibilities of a tenant and a landlord and their agent.

The RTA also creates a Commissioner of Tenancies ('the Commissioner'), based at Northern Territory Consumer Affairs ('NTCA') (see Contact points ). The RTA provides the Commissioner with wide ranging functions that include investigating and researching matters affecting tenants and landlords; and publishing reports to inform the public about the RTA and residential tenancies. The RTA also contains appropriate penalties for breaches of key provisions that may be referred to the Commissioner, who can then investigate the matter and take appropriate action.

Even though the Commissioner has power to investigate suspected breaches of the RTA, the Commissioner no longer has power to resolve disputes between parties to a tenancy agreement. The RTA was amended in 2015 and from 1 June 2015, disputes between parties to a tenancy agreement are dealt with by the Northern Territory Civil and Administrative Tribunal ('the NTCAT').

The RTA applies to most types of tenancies, including:
  • private tenants who rent directly from a landlord
  • private tenants who rent through a real estate agent
  • boarders and lodgers when there are three or more living in the premises
  • tenants in accommodation provided by their employer
  • caravans rented on property other than a caravan park
  • public housing tenants who rent from Department of Housing (although some sections of the RTA do not apply - see Government housing ).

There are certain types of arrangements that the RTA does not apply to [s.6], such as:
  • an arrangement under which someone living in a premises provided for the purpose of holiday accommodation (although under some circumstances occupants may be covered by the RTA - see Special situations ).
  • boarders or lodgers when there are less than three living in the premises (see Special situations ).
  • caravans, immovable dwellings or mobile homes that are in caravan parks (see Special situations)
  • emergency or charitable accommodation.

Residential Tenancy

A residential tenancy usually exists where a person ('the tenant') agrees to pay money to another ('the landlord') in return for a right to occupy the landlord's premises for the purpose of living there as a resident.

Landlords often employ real estate agents ('the agent') to manage rented premises on their behalf. A landlord is usually liable for any acts performed or promises made by their agents.

A tenant could have an exclusive occupancy of all or only part of the premises. This entitles a tenant to exclude everybody, including the landlord and the agent, from the residential premises for the duration of the agreement. There are some exceptions to this for example, where the landlord or the agent enters the premises for the purpose of inspection after giving proper notice. Any inspection and notice given must comply with the RTA.

Tenancy agreement or lease

The words 'tenancy agreement' and 'lease' are interchangeable when they apply to residential tenancies. However, in the interests of consistency, only the term 'tenancy agreement' is used in this section, in line with usage in the RTA.

Types of tenancy

There are two basic types of tenancy:
  • fixed term tenancy
  • periodic tenancy.

Fixed term tenancy

A fixed term tenancy lasts for a specific period of time with an end date, such as six months or one year.

In most cases these agreements are made in writing and cannot be terminated before the end of the fixed term except where certain breaches have occurred (see Ending a tenancy ). A tenant will generally have to pay costs for breaking an agreement.

Periodic tenancy

A periodic tenancy does not have an end date. Periodic tenancies are usually for a recurring period.

Many periodic tenancies are verbal agreements where rent is paid periodically in advance, for example, weekly, fortnightly or monthly, until either the tenant or the landlord lawfully brings the agreement to an end. The term of a periodic tenancy is determined by the rent payment cycle, for example, if the rent is paid weekly in advance, then the tenancy would be a weekly periodic tenancy.

If a tenancy agreement is verbal, the terms and conditions set out in the prescribed form of tenancy agreement found in Schedule 2 of the Residential Tenancies Regulations ('the RTA Regulations') will apply.

Fixed term tenancy rolling into periodic tenancy

If a fixed term tenancy finishes, a periodic tenancy is created in the following circumstances:
  • the fixed term tenancy agreement does not provide for the continuation of the tenancy after the day the term ends
  • a notice of termination has not been given
  • the tenant continues to occupy the premises after the day the term ends.

If a periodic tenancy is created in this way, the terms of the fixed term tenancy agreement continue to apply, but there is no end date to the agreement.

Special situations

Caravans and mobile homes

A person living in a caravan park ('the resident') managed by another person ('the operator') may be covered by the Caravan Parks Act 2012 ('the CPA') and not under the RTA. The CPA applies to a person who entered into an agreement after 1 May 2012 to live in a caravan park for 12 months or more.

The table below explains the circumstances in which residents of a caravan would be covered under the protections of the RTA or the CPA.
Legislation Who is covered? Who is not covered?
RTA Residents living in caravans, mobile homes or immovable dwellings that are not located in a caravan park. The resident who occupies the caravan for the purpose of holiday accommodation
The agreement does not require the resident to pay rent
The caravan and/or site is provided for use of homeless, unemployed or disadvantaged people for charitable purposes or for the purpose of providing emergency shelter or accommodation
The agreement is between family members or friends and a small amount of rent is charged, unless the parties intend to create an agreement covered by the RTA.
CPA Residents living in caravans, mobile homes or immovable dwellings that are located in a caravan park
If the agreement says that you are covered by the CPA
If you are a long term occupant who has resided in a caravan park for more than 5 years
Caravan park that is advertised as being only for holiday or tourist accommodation
The agreement does not require the resident to pay rent
The caravan and/or site is provided for use by homeless, unemployed or disadvantaged people for charitable purpose or for the purpose of providing emergency shelter or accommodation
The agreement is between family members or friends and a small amount of rent is charged, unless the parties intend to create an agreement covered by the CPA
Please see this factsheet for more information on caravans and mobile homes.
Occupancy agreement

An occupancy agreement can be entered into either verbally or in writing.

There is no single required format for a written occupancy agreement, however it must be signed by both parties to be legally binding.

Section 27 of the CPA provides for default agreement terms. These terms apply if:
  • if there is no written occupancy agreement;
  • if both parties do not sign a written occupancy agreement; or
  • if the written occupancy agreement is invalid because it does not comply with the CPA .

If a resident enters into an occupancy agreement for a period of under 12 months, then the operator must advise the resident, either orally or in writing or by installing a signage, that the resident is not covered under the protections of the CPA, before the resident commences occupancy.

A resident is well advised to read the occupancy agreement carefully before signing it. Parties entering into an occupancy agreement may seek legal advice if they are unsure about their legal rights and responsibilities (see Contact points).

For information on resolving disputes (see Resolving disputes ).

Houseboats

Houseboats that are intended to be a residence are protected under the RTA.

Demountables

Demountable buildings fall within the definition of 'residential premises' and are protected under the RTA.

Squatters

A squatter is a person who lives or 'squats' in someone else's empty premises without permission. A person who squats has no tenancy agreement with the owner of the premises and can be evicted as a trespasser. The law allows a trespasser to be physically evicted as long as no more force than necessary is applied. Police officers should be present at the time of eviction to ensure that no breach of the peace occurs, although it is not their job to carry out the eviction.

Sometimes a squatter may claim some legal right to being on the property. In some cases it might become necessary to test the claim to legal entitlement in court and a landlord who is confronted with this scenario should seek legal advice.

The Trespass Act (NT) enables the owner or the police to give notice (which often is in writing) or a warning to stay off the place. Failure to comply with the notice or warning can be treated by a court as an offence under that Act. A copy of a trespass notice is attached below. Failure to comply with the notice or warning can be treated by a court as an offence.

In addition, the police may arrest the person or remove the person by force if necessary whether arrested or not. It is usual for a written notice to be served to the trespasser and this acts as the notice or warning required under the Trespass Act [s.10] (see Neighbours).

Holiday accommodation

The RTA may not apply to someone staying in holiday accommodation if the reason for their stay is for the purpose of a holiday.

Whether someone is covered under the protections of the RTA will depend on individual circumstances, such as:
  • whether the parties entered into an agreement;
  • the length of the occupancy;
  • activities engaged in by the occupant.

Shared housing

Shared housing is a common phenomenon in the rental market. People who share premises need to know their tenancy status, responsibilities and rights. People who decide to share a house should agree on the way in which rent and bills are to be paid and put that agreement in writing signed by all the tenants. An email or SMS can be proof of the terms of an agreement.

Some people in shared housing are protected by the RTA. Whether they are protected depends upon their tenancy status.
Ways of sharing

It can be difficult to decide whether someone residing in shared housing is a head tenant, sub-tenant, boarder or lodger.

The head tenant is the person who originally enters the tenancy agreement with the landlord. If there is a written agreement, the head tenant is the person whose name is on the tenancy agreement.

The legal test to determine if someone is a sub-tenant, boarder or a lodger is whether or not the occupant has 'exclusive possession' of their part of the premises (making the occupant a sub-tenant), or whether the owner or head tenant retains 'mastery' over the premises (making the occupant a boarder or lodger).

This means that the original agreement between the owner or the head tenant and the occupant needs to be examined. Generally, it is oral and vague which may complicate the matter further.

This is a grey area of the law, and it can be difficult to apply the test with any certainty. People in shared housing who are unsure about their legal status and rights should seek legal advice (see Contact points).
Co-tenant

When two or more tenants enter into a tenancy agreement with a landlord, or landlord's agent, they become co-tenants.

Co-tenants are said to be 'jointly and severally liable' for the tenancy. This means that any one or all of them can be held legally responsible for the full amount of the rent and the full cost of any compensation owed to the landlord if the agreement is breached. The landlord can bring an action against one or all of the tenants. If two out of three co-tenants disappear after causing damage to the property, the remaining tenant can be held responsible for all of the damage even if they did not cause it.

This 'joint and several' liability makes it important for co-tenants to resolve any disputes between themselves (see Resolving disputes). A co-tenant experiencing difficulties with other tenants may seek legal advice about their options (see Contact points).
Scenario 1

John is the owner of a two bedroom unit in Darwin. John leases his unit to Casey and Tosha. Under the tenancy agreement, the tenants are to pay $900 per week and $3000 in security deposit. Casey and Tosha are partners and share the first bedroom. Both contribute $1500 each towards the security deposit and $450 each towards the rent. The security deposit and rent is transferred into John's bank account directly.

Relationship in this scenario:
  • Landlord: John
  • Co-tenants: Casey and Tosha
Sub-tenant

A sub-tenancy arises where the head tenant(s) agrees to sublet the rented premises to another person, called the sub-tenant. The sub-tenant's obligations under a verbal or written tenancy agreement are to the head tenant, not to the landlord.

A tenant may only sublet with the landlord's consent, which cannot be unreasonably withheld. It is best to obtain that consent in writing to avoid any dispute.

The relationship between a head tenant and sub-tenant is essentially the same as that between landlord and tenant.

If the sub-tenant damages the residential premises or fails to pay rent, the landlord must recover the loss from the head tenant, who can then seek to recover the debt from the sub-tenant. In any event, it is important that a head tenant who wants a sub-tenant to leave follows the proper eviction procedures (see Ending a tenancy ).
Scenario 2

Casey and Tosha are struggling to meet the rent. Casey finds another person, Paul to live in the second bedroom. Now all three, Casey, Tosha and Paul, pay $300 each. Paul transferred $1000 in security deposit and pays rent into Casey's bank account.

Relationship in this scenario:
  • Landlord: John
  • Head tenants: Casey and Tosha
  • Sub-tenant: Paul

Note: in this scenario, Casey and Tosha have assumed the responsibility of a landlord as a head-tenant of Paul. However, John still remains the landlord of Casey and Tosha.
Boarders and lodgers

Boarders and lodgers live in a range of shared accommodation, including boarding houses, guest houses, hostels, motels, hotels and private homes. In return for paying a fee or rent, they are permitted to occupy part of the premises. Boarders or lodgers usually have their own room, but share common areas, such as the kitchen, toilet and laundry facilities. The landlord may also be known as the owner, proprietor or head tenant.

In boarding and lodging situations, the landlord:
  • retains the possession and control over rooms and means of entry and exit;
  • provides services, examples include washing and ironing
  • may have house rules that govern the conduct of tenants in the common areas and the area of exclusive possession.

The only difference between a boarder and a lodger is that boarders are provided with meals by their landlords, whereas lodgers are not.

Boarders and lodgers have the same protection under the RTA as other tenants if and only if:
  • they board/lodge in a residence from week to week or for more than a week; and
  • they are one of three or more people boarding or lodging at the premises (excluding the landlord, the landlord's family or a caretaker, if they are all living in the same premises).

The RTA may not cover a boarder or lodger who does not fit this description, however, they may have rights in contract law. The rights will depend on what was verbally agreed to, or the terms of any written agreement. Usually no formal agreement exists to protect such people and they can do little to resist eviction. Despite their position, boarders and lodgers should insist upon receiving rent receipts so that if a dispute arises they can prove they are current with their rent payments.
Scenario 3

Casey and Tosha have set some rules and have full control over the unit. Casey and Tosha also provide Paul with laundry and cleaning service.

Relationship in this scenario:
  • Co-tenants: Casey and Tosha
  • Head tenants: Casey and Tosha
  • Lodger: Paul

Note 1: in this scenario, Paul may not be covered under the RTA as there are less than three boarders/lodgers staying at the premises.

Note 2: if Paul was being provided with cooked meals, then Paul would be a boarder.

Please see this factsheet for more information about boarders and lodgers
Long staying guests

A person who has been invited to live in another person's home (including a 'granny flat' or an external building) may after a period of time try to claim some right of tenancy. Unless that person can show that they were granted a right of occupancy under a tenancy agreement (written or verbal) in exchange for valuable consideration (something of worth, such as money), they can be asked to leave. If they refuse to leave, they can be treated as a trespasser (see Squatters ).

The valuable consideration may be a specific payment for the right to occupy such as rent or board or lodging. However, contributing to household expenses, such as the cost of food or electricity, would not be considered as payment for the right to occupy.

If the parties do not intend to create a tenancy agreement and the long staying guest is charged nominal rent, then the guest may not be able to enforce their rights as a tenant under the RTA.

However, if a long staying guest demonstrates:
  • they have been granted right of occupancy; and
  • the rent that they are paying is similar to that charged for same or similar premises in same or similar locality

then they are likely to fall within the RTA's definition of 'tenant' and may be entitled to the rights and protections provided therein.
Scenario 4

Casey and Tosha have a friend, Paul, who is visiting Darwin for two months from Sydney. As Casey and Tosha have a spare room in their unit, they offer it to Paul for the whole duration of his stay in Darwin.

Relationship in this scenario:
  • Co-tenants: Casey and Tosha
  • Long staying guest: Paul
Scenario 5

Casey and Tosha have a friend, Paul, who is visiting Darwin for two months from Sydney. As Casey and Tosha have a spare room in their unit, they offer it to Paul for the whole duration of his stay in Darwin. However, Casey and Tosha charge him $190 per week in rent.

Relationship in this scenario:
  • Co-tenants: Casey and Tosha
  • Head tenants: Casey and Tosha
  • sub-tenant: Paul

Note 1: in this scenario, Paul may not be covered under the RTA if all the parties did not intend to create a tenancy agreement and if the rent is nominal as compared to similar properties in same or similar localities in the NT.

Note 2: in this scenario, if Casey and Tosha had full control over the unit, and provided Paul with additional service(s) then Paul may be classified as a boarder or lodger. However, Paul may not be covered under the RTA as there are less than three boarders/lodgers staying at the premises.
What arrangement suits me?

If a tenant wants to sublet part of their premises, they must have the landlord's permission. Without this, the landlord can end the tenancy because the tenants have broken a term of the agreement (see Ending a tenancy ). Any such agreement should be in writing.

Tenants should read their tenancy agreements carefully to also check that the number of people living in the premises does not exceed the maximum number, if there is such a term in the tenancy agreement.

If a tenant is unsure about their rights and responsibilities, they should seek legal advice (see Contact points).

Please see this factsheet for more information about share house arrangements.

Discrimination

It is illegal to refuse to grant or to vary a tenancy agreement or to discriminate against a tenant in any way on the basis of gender, race or ethnic origin. Such discrimination may include a demand for a higher security deposit because of ethnic origin. Direct any complaints to the Australian Human Rights Commission or the Northern Territory Anti-Discrimination Commission (see Contact points), preferably after seeking legal advice (see Discrimination and Human Rights).

Please see this factsheet for more information on discrimination and renting.

Keeping records

A tenant should keep all records related to the tenancy in a safe place, including the tenancy agreement, written correspondence with the landlord/agent, condition reports and rent receipts.
  • If the tenant makes rental payment in cash, then the landlord must give the tenant a receipt before the end of the next business day after the landlord receives the cash.
  • If the tenant makes rental payment by cheque, then the landlord must give the tenant a receipt within 3 business days after the date of request by the tenant or a tenant's representative.
  • If the tenant makes rent by direct debit, the landlord does not have to provide a receipt.

A rent receipt must have:
  • Date on which it was received; and
  • Name of the person who paid it; and
  • The amount of rent paid; and
  • The period of the tenancy to which the payment relates; and
  • The address of the premises to which the payment relates.

The record can be in electronic form as long as it includes this information.

The landlord must keep a written record of all rent paid and permit the tenant to examine the record upon request.

It is against the law to make false entries.

Cost of renting

Finding a place

It is wise to shop around for rental accommodation, keeping in mind the price, location, the closeness of transport, shops and entertainment, the cost of buying furniture if the place is unfurnished, electricity and telephone connection fees and the cost of bond (security deposit). Rent is usually required to be paid in advance at the beginning of each rental period. Ideally, tenants should aim to pay no more than 25% of their weekly take home wage in rent.

It is illegal for a landlord or their real estate agent to seek any payment from a tenant other than rent and a security deposit or bond [RTA s.24]; however, a landlord is permitted to require payment of a debt owed in respect of a tenancy as a condition of the granting, renewal or extension of a tenancy.

An owner or agent is also not allowed to charge for:
  • the cost of a rent payment card, if the rent payment card is the sole method of paying rent
  • inspecting rented premises
  • holding premises for the tenant until a tenancy agreement is signed (reservation fee)
  • the use of a key
  • a key deposit
  • the preparation of a tenancy agreement.

Any deposits and connection fees a tenant owes for telephone and electricity are paid directly to the appropriate authority.

Insurance

Landlords usually insure the buildings they rent out, but it is the tenant's responsibility to insure their personal belongings against loss by fire, theft or other damage. As the tenant has exclusive use of the premises, they are also responsible for taking out occupier's liability insurance, which indemnifies them against claims for damage or injury suffered by visitors or other callers while on the premises.

A tenant should shop around for the best insurance deal or engage an insurance broker to shop for them. The broker's fee is paid as a commission by the insurance company with whom the tenant places their business. Most policies incorporate personal property and occupier's liability insurance in the one policy but this should be confirmed when taking out the policy (see Insurance ).

Rates and taxes

A landlord cannot require a tenant to pay for charges, levies, rates or taxes, other than those that are owed for electricity, gas or water supplied to the premises. Generally, local council rates and PowerWater water rates are sent to the owner of the premises. If the tenant has agreed to pay all or part of the water rates or electricity or gas charges, this must be stated in the tenancy agreement. In some tenancy agreements, such as Department of Housing agreements, the landlord pays part of the water rates but requires the tenant to pay for all water consumption exceeding a specified quantity. This specified quantity should be included in the tenancy agreement [RTA s118].

Cost of connecting services

A tenant is generally liable for the cost of connecting services - telephone, gas, electricity and so on - to their rented premises. A tenant who is moving into a newly constructed residence should first check whether there is a phone jack. The cost of having a phone line installed is a considerable expense in addition to the connection fee. If a phone jack does not exist, installation costs should be negotiated with the landlord before the tenancy agreement is signed. Installing a phone line would amount to an improvement of the premises, so a landlord could well agree to pay some or all of the costs. Any agreement should preferably be in the tenancy agreement or at the very least be in writing and signed by both parties.

Tenancy agreements

Tenancy agreements should always be made in writing. When misunderstandings or disputes arise, it is much easier to prove and enforce an agreement if it is in writing and signed by both parties. It is even more preferable that any provision agreed to, for example, an agreement to allow the tenant to keep a small dog, be written not on a separate document but rather into the tenancy agreement proper before it is signed.

A tenancy agreement should contain all of the conditions required under the RTA (see below), and any additional terms agreed upon, provided they do not conflict with the RTA.

Written tenancy agreements do not have to conform to any particular format. Landlords and real estate agents can use any form of written agreement as long as it complies fully with the RTA. Landlords who do not want to bother with drafting their own agreement can use either the prescribed tenancy agreement provided in the regulations to the RTA (see below), or buy from the Real Estate Institute a tenancy agreement that has been approved by the Agents Licensing Board and is popular with many real estate agents.

The prescribed tenancy agreement

Generally a tenancy agreement is made in writing. However, sometimes no written tenancy agreement exists or the agreement that has been written up is not signed by both tenant and landlord. In such cases a prescribed tenancy agreement applies. This may not suit either the landlord or the tenant's particular requirements but it is legally binding. This prescribed agreement is found in the Residential Tenancies Regulations (RT Regulations) [reg. 10, Schedule 2].

What must be in an agreement?

A written tenancy agreement must include:
  • The name of the tenant and the agent, if any;
  • The full name of the landlord;
  • Address for service on the landlord, or if the landlord has an agent, then the address for service on the agent;
  • Details of the premises to which the tenancy agreement relates;
  • The standard terms and conditions set out in the RTA;
  • Start and end dates of the tenancy, or just the start date if it is a periodic tenancy;
  • Details about the amount of rent payable and how it is to be paid;
  • Any terms agreed to by the landlord and tenant as long as they do not conflict with the RTA. In particular:
    • If the landlord wishes to charge security deposit (ie bond), then the agreement must include details about the amount of the security deposit.
    • If two or more people are contributing to the security deposit, then the names of the contributors and the amount each person contributed; and
    • If the landlord wishes to charge for the utilities, then the tenancy agreement should mention what utilities the landlord will cover and what are to be covered by the tenant. It should also include how the utilities will be apportioned between the people sharing the utilities and paid.

If the landlord agrees to replace or repair something before the tenant moves in, this should be written into the terms of the agreement.

A landlord faces a penalty for attempting to exclude, modify or restrict the operation of the RTA [s.20]. An example of an attempt to exclude would be including in an agreement or arrangement a provision that prevents a person from taking a complaint to the Commissioner. An attempt to modify would be including in an agreement a provision requiring the tenant to steam clean the carpets at the end of the tenancy even if they are in reasonably good condition. Section 51(2) of the RTA requires a tenant to hand the premises back in a reasonable state of repair and in a reasonably clean condition, allowing for reasonable wear and tear. Thus to require steam cleaning without regard to the fact that the carpets are in reasonably clean condition is a modification of the RTA. An example of an attempt to restrict the operation of the RTA would be including in an agreement a provision that says that the tenant cannot deduct from the rent any money the landlord owes them for the cost of repairs carried out by them under section 60 of the RTA. Section 61 of the RTA specifically allows the tenants to do this.

While a landlord is penalised for including these kinds of provisions, it does not mean that the tenancy agreement is made invalid. The agreement or arrangement is valid except for where it is inconsistent with the RTA.

Also note that a tenant cannot waive their rights under the RTA.

The process of making an agreement

Both the landlord and tenant have responsibilities in the process of making a tenancy agreement.

A landlord is obliged to:
  • organise the tenancy agreement
  • provide a copy of the agreement to the tenant
  • complete a condition report in the presence of the tenant (see Condition report )
  • sign the tenancy agreement once it has been signed by the tenant and returned
  • provide the tenant with a copy signed by both parties within seven days.

The tenant is obliged to:
  • read the proposed agreement carefully and understand it fully
  • ensure that any information provided to the landlord is accurate and truthful
  • negotiate any special terms required and ensure they are included in the written agreement
  • ensure any additional terms agreed upon by the parties are included in the written agreement
  • sign the agreement if all the terms are agreed on
  • return the agreement to the landlord
  • ensure they receive a copy of the signed tenancy agreement within seven days of signing and returning it to the landlord.

Negotiating terms

The landlord may try to insert additional terms in a tenancy agreement, such as restrictions on pets or a requirement that tenants steam clean carpets at the end of their tenancy. Additional terms should be reasonable and not inconsistent with the RTA. While a restriction on pets may not be regarded as unreasonable, steam cleaning carpets may be unreasonable if the carpets are not dirty.

A tenant who is unhappy with any terms in a lease can ask the landlord or agent to change, add to or remove them before they sign the lease. A tenant can ask that a tenancy agreement presented to them for signing be altered if they are unhappy with any of the terms. Whether it is wise to insist on an alteration if the landlord refuses will depend on how important the issue is to the tenant, and the state of the residential tenancy market. In other words, negotiating a tenancy agreement is no different to negotiating any other legal agreement. If a landlord is anxious to acquire a tenant, they may be prepared to amend the agreement to encourage a tenant to sign. If, however, a number of tenants are competing for the property, the landlord may not agree to any alterations. Sometimes a good real estate agent can smooth the way for a compromise so that both parties end up satisfied with the deal. Any changes to the agreement should be initialled by both landlord and tenant.

Obtain verbal promises in writing

Verbal promises made by landlords or agents, like 'don't worry about those taps, we'll get them fixed before you move in' or 'of course that pile of rubbish will be removed' or 'yes, you can have a cat', are difficult to enforce unless a tenant has proof of the agreement in writing. An agent who makes a promise on behalf of a landlord may not have the landlord's authority to do so. Although the tenant may be able to enforce the agreement, it is better to obtain written confirmation of all the agreed terms from the landlord or agent before signing the tenancy agreement. Ideally all agreed terms, conditions and promises should be included in the tenancy agreement.

Condition reports

A condition report covers the state of repair and cleanliness of a rental property and of any fixtures, fittings and appliances that come with the premises. The report is filled in when a tenant starts renting and again at the end of the tenancy.

In some Australian States a landlord has to provide a tenant with a condition report. In the NT condition reports are not compulsory, but many owners and agents, realising the value of them in preventing bond disputes, use them anyway. There is no provision in the RTA giving a tenant the right to demand a condition report, although they could ask for one to be prepared in accordance with the RTA. However it is probably in the tenant's interests not to seek one if the landlord does not require it, because when a condition report is not used at the beginning of a tenancy, at the end of the tenancy the tenant is deemed to have complied with the requirement to hand over the premises in a reasonable state of repair and cleanliness [RTA s.51]. The premises and fixtures, fittings and appliances are deemed to be in the same condition at the end of the tenancy as they were at the beginning if a condition report was not prepared and accepted by both parties when the tenancy began. A landlord who does not complete a condition report, both incoming and outgoing (see below), and comply with Part 5 of the RTA cannot claim against the bond money (security deposit) at the end of the tenancy for cleaning, damage or lost property.

If a condition report is to be prepared then the landlord or agent is required to fill it in in the presence of the tenant or their representative, unless it is not practical to do so or the tenant fails to appear at the agreed time.

Incoming condition report

If a landlord wishes to prepare an incoming condition report, it must be prepared and signed by the landlord and given to the tenant within three business days after the tenant takes possession of the premises [RTA s.25].

A condition report may be entirely in writing, entirely by using images or partly both. Images may include photographs, video or film or other mechanical, electronic, digital or similar methods of making a visual record.

Within five business days of receiving the condition report the tenant must go through the report carefully and inspect the property and either:
  • Accept the report by signing it and returning it to the landlord; or
  • Modify the report by writing comments against anything that the tenant doesn't agree with and initial the modification and return the report to the landlord. The tenant should also take photos or record videos to support their modifications.

If the tenant fails to return the report or returns the report without modification, the tenant will be taken to have accepted the report as prepared by the landlord, even if the report does not accurately describe the condition of the premises at the beginning of the tenancy.

If a tenant modifies the report, then the tenant should make a copy of the report with their modification for their own record before returning it to the landlord.

The landlord then has five business days to either:
  • Accept the report as modified by the tenant by initialing the modifications and, without making further modifications, return a copy of the report to the tenant; or
  • Attempt to reach an agreement with the tenant on the condition of the property. Both parties should only initial the modifications made by the tenant that are accepted by both the parties; or
  • Apply to the NTCAT to prepare a condition report under section 27 of the RTA.

If the landlord fails to take any of the above actions and the tenant does not apply to the NTCAT under section 27 either, then the landlord is taken to have accepted the report as modified by the tenant.

Both the tenant and the landlord should keep a copy of the condition report in a safe place, as it can be used as conclusive evidence of the condition of the premises at the beginning of the tenancy should a dispute arise. For this reason a tenant should take some care in checking the report to make sure that they agree with its contents before returning it to the landlord.

It has been observed that some forms of condition reports used by agents are very poorly designed. In trying to combine on the same page the incoming and the outgoing condition reports, deep confusion can arise. A well-designed report will have columns opposite each item being described (for example, kitchen sink) headed 'landlord's comments', 'tenant's comments' under a general heading of 'incoming condition report' and separate columns for 'landlord's comments', 'tenant's comments' under a general heading of 'outgoing condition report'. If comments are written they should be in decipherable handwriting and stay within the column and it should be very clear which comments are the landlord's comments and which are tenant's comments.

At the end of the report there should be separate sections on the last page for landlord/agent's signatures and tenant's signature/s for both incoming report and outgoing report. Each section must be dated on the day it was signed by each respective party. These reports can be very useful during the hearing of an inquiry before the NTCAT in relation to security bond disputes and claims for compensation generally. However, if not decipherable or not signed and dated or simply written all over the page (as is frequently the case) then they are worse than useless for the purpose of making properly informed decisions and may well be rejected as inconclusive evidence.

Outgoing condition report

Within three business days of the tenant giving vacant possession of the premises, the landlord may fill out and sign and give a tenant a condition report. The condition report is to be filled out in the presence of the tenant or tenant's representative unless it is not practical to do so or if the tenant fails to appear at the agreed time.

The tenant or tenant's representative may accept the report by signing it and returning it to the landlord.

If the tenant and the landlord disagree about an issue relating to the condition report, then the tenant must refuse to accept the condition report. If the tenant verbally notifies the landlord about their refusal to accept the report, the tenant should follow it up with an email or SMS soon after the verbal notification.

If the landlord and tenant cannot come to an agreement within 7 business days after the condition report was given to the tenant, and both parties have not accepted the report, then either party may apply to NTCAT to prepare a condition report.

Please see this factsheet for more information on condition reports.

The security deposit or bond money

Most tenancy agreements provide for the payment of a security deposit or bond. A security deposit is the amount of money a tenant pays to provide landlords with some security should tenants fail to meet their obligations under a tenancy agreement.

The maximum security deposit a landlord (or their agent) can ask a tenant to pay is the equivalent of four weeks' rent. When it is paid by cash, cheque or credit card, the landlord must give the tenant a receipt immediately.

The landlord holds the security deposit in trust for the tenant and must pay it back in full at the end of the tenancy if there are no claims against it. In the NT there is no statutory body or bond authority set up for the purposes of holding security deposits as there is in every other Australian jurisdiction.

If a real estate agent is involved in the transaction, they must hold the money in a trust account set up in accordance with section 50 of the Agents Licensing Act (ALA). Under the RTA a landlord is required to pay the security deposit into either an account held by them in a bank, building society, credit union or statutory corporation of the Territory or Commonwealth. If the account is with a statutory corporation, the money must be held in trust for the tenant.

A landlord should be familiar with the requirements of section 29 of the RTA before accepting a security deposit. Section 29 also requires a landlord - who either resides outside of the NT or intends to leave the NT for more than 14 days - to pay any bond money held to a real estate agent or person approved in writing by the Commissioner and notify the tenant of the name of the real estate agent or person.

A tenant can ask the landlord or agent for details about the account in which the security deposit is held, but this request needs to be made in writing. If a tenant has a reasonable suspicion that the landlord may have spent the security deposit or failed to deposit it in accordance with section 29 of the RTA, they should seek legal advice. They might also issue the landlord with a written demand to provide proof within a specified time that everything is in order. After that a complaint to the police may be appropriate. The matter could also be referred to the Commissioner, who has the power to investigate and if appropriate seek penalties which are provided for in the RTA for such breaches.

Where there are two or more tenants, the tenancy agreement must state the amount of security deposit paid by each, otherwise it is assumed that each tenant paid equal amounts.

Interest on the security deposit

A security deposit held in trust in a bank account will accumulate interest. If the tenancy agreement does not specify who is to receive interest on the deposit, it must be paid to the person who is entitled to receive the greater part of the security deposit at the end of the tenancy. The exception is where the security deposit is held by a real estate agent. Under these circumstances the real estate agent keeps the interest.

Returning the security deposit

The landlord must return the security deposit (less any amount they are entitled to retain) to the tenant within seven business days of the tenant vacating the premises [RTA s.112]. A landlord who fails to comply with the RTA's provisions about returning security deposits [ss.112-116] can jeopardise their rights to claim against it. They may also face a fine by the Commissioner if the matter is investigated.

Claims made against the security deposit

At the end of the tenancy the landlord can claim on the security deposit if the tenant has unpaid rent or the property is damaged or is unreasonably unclean. However, a landlord cannot claim for reasonable wear and tear. For instance, the cost of removing grease marks from a carpet might justify a claim against the security deposit, but the removal of scuff marks on lino in the kitchen would probably not. That is why it is important for a tenant to record every mark at the start of the tenancy on the incoming condition report to prevent later arguments.

The landlord is entitled to retain so much of the security deposit as is necessary to [RTA s.112]:
  • make good any damage to the premises, furniture or fixtures, other than reasonable wear and tear, caused by the tenant
  • replace furniture or fixtures lost or destroyed by the tenant
  • clean the premises and any furniture and fixtures left unreasonably dirty
  • replace locks that were altered, removed or added by the tenant without the landlord's consent
  • pay for unpaid rent or for any unpaid electricity, gas or water charges owed under section 117
  • compensate the landlord if the tenant remains in the property after they were required to hand it over [s.121]
  • pay any money that the NTCAT has ordered the tenant pay.

A landlord who plans to keep any or all of a tenant's security deposit must notify the tenant of that fact within seven business days of them leaving the premises. The notice must set out how much the landlord wishes to retain, what it is for and attach receipts and other supporting documentation. The landlord must return the portion of the security deposit not claimed within the seven day period [RTA s112 (5)].

A landlord may not recover claims from the security deposit for the first three dot point items above (damage, replacement, cleaning) unless, in addition to the notice referred to, incoming and outgoing condition reports were given [RTA s.112 (4)].

A tenant who disputes a landlord's claim should first try to resolve the issue with the landlord directly. If the dispute can not be resolved, either party can refer the matter to the NTCAT (see Resolving disputes ). A tenant can get legal advice from DCLS, another community legal centre, a private solicitor or the NT Legal Aid Commission.

Transferring a security deposit

Security deposits can be transferred between tenants in shared accommodation. For instance, an outgoing tenant may have their share of the bond refunded by an incoming tenant or the remaining tenants. The agreement reached between co-tenants should be communicated in writing to the landlord or agent to avoid any later dispute over the rightful recipient of refunded bond money.

Before signing the agreement to transfer the security deposit, the tenant should ensure they have received the money from the co-tenant.

Please see this factsheet for more information on security deposits.

Paying rent

The tenancy agreement should set out the details of how, where and how often the rent is to be paid. A landlord cannot ask for more than one rental period of rent in advance.

A landlord is required to keep rental records (see Keeping records ).

Rent payable under a tenancy agreement accrues daily. Rent can only be increased if the tenancy agreement gives the landlord a right to raise it and defines the amount of the increase or the way an increase is to be calculated. Rent can also be reduced if both parties agree or if the tenancy agreement permits it and states the way it is to be reduced.

Excessive rents

The NTCAT can declare rent to be excessive in certain circumstances. A tenant who believes they are paying too much rent can apply to the NTCAT for a declaration that the rent is excessive. In the course of inquiries, the NTCAT will invite the landlord to submit arguments. The Tribunal may get a rental valuation.

The Tribunal may then either refuse the tenant's request to reduce the rent or make an order reducing the rent from a certain date and specify the period that the altered rent will apply for [the RTA s.42].

This does not apply to public housing tenants [the RTA s.7(5)].

Please see this factsheet for more information on rent increases and rent reductions.

When a tenant falls behind in rent

If a tenant fails to pay rent for a period of 14 days or more, the landlord can give them notice that unless the rent is paid before the date specified in the notice (which must be more than seven days after the notice is given) then the landlord will seek orders for termination and possession (see Ending a tenancy ).

A landlord is not allowed to seize or sell a tenant's goods for non-payment of rent unless the goods have been abandoned (see Abandoned goods ).

GST

No Goods and Services Tax (GST) is payable on residential rent. Landlords have to pay GST on management fees charged by agents, but they can claim this back through the tax system.

Rights and responsibilities

Most terms and conditions of a tenancy are contained in the written tenancy agreement or negotiated verbally between landlord and tenant. In addition, the RTA specifies various rights and obligations that apply to a landlord and tenant, regardless of whether they form part of the negotiated tenancy agreement (whether written or verbal).

Of the landlord

Right of entry

The most important characteristic of tenancy is that the tenant has exclusive possession of the premises. A tenant can stop anyone from entering the property, including the landlord, the agent and any of their employees. For example, the landlord or the landlord's family cannot come onto the property to tend a garden or to pick mangoes without the tenant's consent and they certainly cannot insist upon inspecting the premises at a moment's notice.
Reason for entry Minimum notice required to be given How often can an entry be made
Collection of rent At a pre-arranged time if at least 7 days notice is given Every 7 days
Inspection of premises 7 days notice to be given Every 3 months
To repair the premises 24 hours oral or written notice to be given No limit
To complete an entry condition report 24 hours oral or written notice to be given No later than 3 business days after the start of the tenancy
To complete an exit condition report 24 hours oral or written notice No later than 3 business days after the end of the tenancy
To show the premises to prospective tenants 24 hours oral or written notice The entry can only be made for this purpose during the last 28 days of the tenancy
No more than a reasonable number of occasions
To show the premises to prospective buyers 24 hours oral or written notice No more than a reasonable number of occasions
In an emergency or if the landlord reasonably suspects that significant damage has occurred, is occurring or is about to occur No notice required No limit
By agreement of the tenant and landlord at or immediately before the time of entry No notice required No limit
If premises have been abandoned by the tenant and rent is owing, no notice needs to be given to gain entry.

Apart from cases of emergency or abandonment, all other entries or inspections must take place between 7am and 9pm. The landlord can also enter the premises between these hours for any purpose provided the tenant gives consent at or immediately before they enter.

If the landlord has the right to enter the premises and a tenant tries to prevent them from entering, the landlord can apply to the NTCAT for an order permitting entry.

A tenant has the right to use the premises without interference from the landlord or the agent. If this right is not respected, the tenant can make an application to the NTCAT (see Resolving disputes ).

Please see this factsheet for more information on a tenants right to access and privacy.

Inspections

Any inspection must be carried out in the presence of the tenant, unless:
  • the tenant has refused to be present
  • the tenant has, in writing, waived the right to appear or be represented at the inspection
  • the tenant is not at the premises at the time specified for the inspection
  • it is an emergency.

Security

The landlord has to take reasonable steps to provide and maintain the locks and other security devices necessary to ensure the residence and its contents are reasonably secure. This may mean supplying locks on windows and doors. What constitutes 'reasonably secure' will depend on the level of risk in the area and the security history of the premises. For example, a house with a history of break-ins may require particularly tight security.

If the tenant's insurance company requires a certain standard of locks, this should be explained to the landlord who may agree to provide them. Locks usually become the landlord's property, so a tenant wanting more costly security may be able to negotiate with the landlord to have the landlord pay for the locks if the tenant installs them or to share the costs of purchase and installation.

Where a landlord refuses to cooperate, exposing a tenant's possessions to risk from burglary, legal advice should be sought. It could be argued that a landlord's failure to secure the premises amounts to a breach of the tenancy agreement [RTA s.49].

A tenant should also seek legal advice if their requests for reasonable security have been ignored and their possessions are subsequently stolen. It may be possible to seek compensation from the landlord for the loss of the goods.

A landlord must not alter, remove or add a lock or security device to the premises without the tenant's consent, but if they do they must provide a key to the tenant as soon as practicable. A penalty can result from a breach [RTA s.50]. Similarly, a tenant should not without reasonable excuse, alter, remove or add locks without the landlord's consent. If they do, they must provide the landlord or agent with a key as soon as possible [RTA ss.49, 50, 52 and 53].

Repairs and maintenance

The landlord must ensure that the premises are habitable, meet all health and safety requirements required by law and are reasonably clean at the start of a tenancy [RTA ss.47, 48]. They are also required to hand over the premises and fixtures and fittings in a reasonable state of repair and maintain that state, having regard to their age, character and prospective life. This does not apply to repairs that the tenant knew were required at the start of the tenancy and agreed, in writing, to waive the right to have those particular repairs made.

When a tenant notices something that needs repairing, they must notify the landlord verbally or in writing as soon as practicable. A landlord may insist on being notified in writing. A term to that effect is frequently included in the printed tenancy agreement. Accordingly, even though the RTA permits notice to the landlord either orally or in writing, the tenancy agreement may negate the right to give oral notice. It is therefore advisable to put all complaints or notices regarding repairs in writing.
Emergency repairs

Under the RTA certain repairs are considered to be 'emergency repairs'.

Emergency repairs means work needed to repair the following burst water service where that service provides water to the premises:
  • a blocked or broken toilet
  • a serious roof leak
  • a gas leak
  • a dangerous electrical fault
  • flooding or serious flood damage
  • serious storm, fire or impact damage
  • a failure or breakdown of the gas, electricity or water supply
  • a failure or breakdown of an essential service or an appliance for water or cooking
  • a fault or damage that makes the premises unsafe or insecure
  • a fault or damage that is likely to injure a person, damage property or unduly inconvenience a resident
  • a serious fault in a staircase or lift or other area that makes it difficult for a resident to access or use their premises.

If a repair falls within one of the above categories, it is an emergency repair.

After receiving a notice requiring emergency repairs or maintenance from a tenant, a landlord must:
  • within 5 business days after receipt of a notice requiring repairs and maintenance, a landlord/agent must have either:
    • had the repairs carried out; or
    • made arrangements for the repairs to be made and have notified the tenant accordingly; and
  • if arrangements for the repairs have been made, a landlord/agent must have had the repairs carried out within 14 days of the date of the notice.

If a landlord/agent fails to have the emergency repair addressed within the above time frame then the landlord is in breach of the tenancy agreement and a tenant may serve a notice to remedy or apply to the NTCAT.
Non-emergency repairs

Under the RTA certain repairs are considered to be 'non-emergency' or 'general' or 'ordinary repairs'. These repairs are all repairs that are not classified as being 'emergency repairs'.

Non-emergency repairs can include repairs such as:
  • the handle on an internal door being loose or not secure;
  • an air conditioner or fan not working; and
  • the shower pressure decreasing.

After receiving a notice requiring non-emergency repairs or maintenance from a tenant, a landlord must:
  • within 7 business days after receipt of a notice requiring repairs and maintenance, a landlord/agent must have either:
    • had the repairs carried out; or
    • made arrangements for the repairs to be made and have notified the tenant accordingly; and
  • if arrangements for the repairs have been made, a landlord/agent must have had the repairs carried out within 21 days of the date of the notice.

If a landlord/agent fails to have the emergency repair addressed within the above time frame then the landlord is in breach of the tenancy agreement and a tenant may serve a notice to remedy or apply to the NTCAT.

When a tenant can arrange for repairs to be done

In some circumstances a tenant can arrange to have repairs done themselves, but the law in this area is complex so legal advice should be sought. The maximum amount a tenant can recover for repair costs they have carried out or arranged is an amount equivalent to two weeks' rent.

The tenant can only arrange the repairs if:
  • the premises are uninhabitable or unsafe, or if the repairs are not made there is a reasonable possibility of damage occurring to the premises or its contents or they are likely to become unsafe, uninhabitable or unsecure
  • the state of disrepair did not result from a breach of the tenancy agreement by the tenant
  • the tenant has given notice in writing [RTA s.58] that the repairs were required and the landlord either:
    • failed to make the repairs within seven days or failed to notify the tenant within seven days of arrangements to make the repairs
    • notified the tenant within seven days of the arrangements to make the repairs but then failed to make them within 21 days of the date of the original notice from the tenant.

The tenant must take all reasonable steps to engage a repairer who has been nominated by the landlord. If a tenant has a reasonable belief that the nominated repairer is not legally entitled to carry out repair (such as an unlicensed electrician for electrical repairs or similar for plumbing repairs), they should raise the issue with the landlord or agent. If unsatisfied with the response, the tenant should seek a ruling from the NTCAT.

The tenant must provide the landlord with proof of the repair costs, such as quotations, invoices or receipts. The tenant can ask the landlord to pay the cost of repairs directly to the repairer, reimburse them, or deduct the costs from rent owed.

Please see this factsheet for more information on repairs and maintenance.

Of the tenant

The tenant has a responsibility to notify the landlord:
  • If repairs or maintenance are required [s.58]
  • Of any damage or potential damage to the premises [s.51]
  • If the premises are to be vacant for more than 30 days [s.56]

The tenant is not allowed to:
  • Maintain the premises in an unreasonably dirty condition [s.51]
  • Intentionally or negligently cause or permit damage to be caused to the premise [s.51]
  • Use the premises for any illegal purpose, such as growing marijuana [s.54]
  • Cause or permit nuisance [s.54]
  • Cause interference with the reasonable peace or privacy of co-tenants and neighbours [s.54]
  • Alter the premises without written consent of the landlord [RTA s.55]
  • Add, alter or remove locks from the premises without written consent of the landlord [s.53].

Assignments of tenancy

An assignment of tenancy occurs when the person who entered into the original tenancy agreement transfers all their rights and duties as a tenant to a third person, called the assignee. In other words, the assignee takes the place of the original tenant for as long as the assignment lasts. The assignee is then directly liable to the landlord for rent and the condition of the premises.

Assignments may only take place with the landlord's consent. However, the landlord's consent can not be unreasonably withheld. In certain circumstances the landlord will be deemed to have given consent to the assignment [RTA s.79]. The assigning tenant must also assign their interest in the security deposit. A landlord can only charge reasonable expenses for consenting to an assignment.

Difference between subletting and assignment

Scenario 6

John is the owner of a two bedroom unit in Darwin. John enters into a residential tenancy agreement with Casey. Under the tenancy agreement, Casey paid $3000 in security deposit. The rent is $900 per week which is deposited directly in John's bank account.

Relationship in this scenario:
  • Landlord: John
  • Tenant: Casey
Scenario 7

Casey is struggling to meet the rent and finds another person, Tosha, to live in the second bedroom. Both Casey and Tosha contribute $450 each week towards rent. Tosha deposits $1000 as security deposit and weekly rent directly into Casey's bank account.

Relationship in this scenario:
  • Head tenant: Casey
  • Sub-tenant: Tosha

Note 1: in this scenario, Casey assumes the responsibility of a landlord as a head-tenant of Tosha. However, John still remains the landlord of Casey.
Note 2: See table below for scenarios 6 and 7.
Legal Relationship Original Arrangement New Arrangement Liability (for the period of the new arrangement) Security Deposit Payment of Rent
Sub-lease Landlord: John
Tenant: Casey
Landlord: John is Casey's landlord
Casey is Tosha's landord
Tenant: Casey is John's tenant
Tosha is Casey's tenant
Casey is liable to meet all the responsibilities as a tenant under the tenancy agreement in the event Tosha moves out, stops paying rent, or doesn't maintain or damages the unit. Tosha pays the security deposit to Casey. However, the security deposit given by Casey at the start of her tenancy remains in Casey's name. Tosha can claim the security deposit back at the end of her tenancy from Casey. Casey can claim the security deposit back at the end of her tenancy from John. Tosha can either pay rent to Casey or John as specified under her tenancy agreement. Casey must pay rent to John or as specified under her tenancy agreement.

Scenario 8

Casey finds a job in Sydney and needs to move out. Casey finds Paul, and with the written agreement of John assigns, ie transfers, her interest in the tenancy to Paul. Paul pays Casey $3000 in security deposit and Casey transfers the security deposit held with John into Paul's name. Paul deposits $900 each every week directly in John's bank account.

Relationship in this scenario:
  • Landlord: John
  • Tenant: Paul

Note: See table below for scenarios 6 and 8.
Legal relationship Original Arrangement New Arrangement Liability (for the period of the new arrangement) Security Deposit Payment of Rent
Assignment Landlord: John
Tenant: Casey
Landlord: John
Tenant: Paul
Paul is liable to meet all the responsibilities as a tenant under the tenancy agreement At the time of assignment of the tenancy agreement, Paul must pay the security deposit to Casey. Casey then has to transfer the security deposit that she paid to John at the beginning of her tenancy in Paul's name. Paul at the end of his tenancy can claim the security deposit back from John. After the assignment, Paul must pay rent to John or as specified under her tenancy agreement.

Residential tenancy databases

Residential tenancy databases are privately owned, electronic databases that hold information regarding an individual tenant's rental history. Real estate agents and property managers pay for access to one or more tenancy databases in order to screen prospective tenants and/or 'list' tenants who have had problems with previous tenancies.

There are a number of tenancy databases operating in Australia. The three main tenant database companies that are used by real estate agents are the National Tenancy Database, the Tenancy Information Centre Australasia (TICA) and Trading Reference Australia (TRA). These databases are largely unregulated. As a result, tenants can sometimes be 'blacklisted' for trivial matters or for simply exercising their rights against landlords or agents. Once a tenant is listed they can find it difficult to rent a property.

The RTA does not regulate the operations of these database companies and the NTCAT has no jurisdiction under the RTA to resolve disputes relating to a tenant's details or alleged behaviour having been placed by an agent on a tenancy database.

The Privacy Act requires database companies to operate according the Australian Privacy Principles when collecting personal information. Tenants have the right to know what information an organisation holds about them and have the right to correct that information if it is wrong.

If a tenancy database holds or shares information about a tenant that is incomplete or inaccurate, a tenant can write to the tenancy database company or the landlord who listed the tenant and outline their concerns. The landlord or the tenancy database company then need to use their best efforts to check the accuracy or completeness of the information.

The Australian Privacy Principles apply to all tenancy database operators. These principles say that:
  • An organisation must only collect personal information about you directly from you, unless you have given permission for the information to be collected from someone else.
  • An organisation that has collected personal information about you must, if it is reasonable in the circumstances, tell you its name and contact details, why they have collected your personal information and how to locate their privacy policy. Their privacy policy must tell you how you can access and seek the correction of your personal information.
  • An organisation must take reasonable steps to ensure the personal information it collects and discloses is accurate, up to date and complete.

If a tenant thinks they have been treated unfairly, or that the information recorded about them by a database company is incorrect, they can ask the company to investigate the matter and make the necessary corrections.

Tenants who think their personal information is being misused should telephone the Australian Information Commissioner on 1300 363 992 or email at enquiries@oaic.gov.au. To make a complaint online visit www.oaic.gov.au.

Please see this factsheet for more information on tenancy databases.

Fixtures

A fixture is an object attached to land or built into premises in such a way that it becomes part of the land or building and no longer has a separate identity. The degree of attachment; that is, whether it is stuck, nailed or screwed to the building or merely rests by its own weight; and the purpose of the attachment, determines whether the object is a fixture. For example, an object attached so as to bring about a permanent improvement in the land or building is probably a fixture.

A tenant who wishes to alter or add to premises must obtain the landlord's written consent [RTA s.55]. A tenant can remove a fixture they have added unless its removal will cause damage to the premises. If damage does result from removing or installing a fixture, the tenant must notify the landlord. The landlord can insist that the tenant repair the damage or pay for the reasonable cost of having it repaired.

Ending a tenancy

A tenancy is terminated [RTA s.82] in the following circumstances:
  • If the landlord or tenant terminates the tenancy under the RTA
  • If the NTCAT terminates the tenancy
  • If the premises are abandoned before the end of the tenancy agreement (this includes a scenario where a tenant breaks the lease - see Lease break/abandonment of premises ).
  • If a tenant gives up vacant possession of the premises with the landlord's consent
  • If a sole tenant dies and the landlord knows no details of any spouse, de facto partner or dependants (if the tenancy is a tenancy under the Housing Act (HA) the tenancy is terminated when the sole tenant dies irrespective of whether there is a spouse, de facto partner or dependants).
  • If a person with superior title to the landlord's title becomes entitled to possession of the premises under an order of the NTCAT
  • If the interests of all tenants merge with another estate or interest in the premises.

Different procedures for ending a tenancy

There are four fundamentally different methods of terminating a tenancy before the end of the agreement. The form of notice (if required by the RTA) and method will depend on what ground for termination is being pursued.

Termination notice

In some circumstances a notice can be given by one party to the other which will terminate the tenancy without the intervention of the NTCAT. However, if, having terminated the tenancy, the person giving the notice is unable to obtain vacant possession and consequently seeks possession of the premises, then notwithstanding that the tenancy may have been terminated on a specified date in such notice, it will still be necessary to obtain an order from the NTCAT ordering vacant possession. Such a notice must comply in form with section 101 of the RTA and the order for possession will be in pursuance of section 104.

This notice can be downloaded from the NTCA's website at http://www.consumeraffairs.nt.gov.au/Pages/default.aspx

A termination notice is appropriate.
To end a fixed term tenancy

Most tenancy agreements run for a fixed term, such as six or 12 months. Under the RTA, a fixed term tenancy automatically becomes a periodic tenancy if, after the term expires, the tenant remains in possession of the premises and no written notice of termination (of at least 14 days) was given by either landlord [s.90] or tenant [s.95].

If a landlord or a tenant wants to ensure that the tenancy terminates when the fixed term expires, they must give 14 days notice in writing before the fixed term expires. They should give the required 14 day notice well before the last 14 days of the term to avoid slip-ups as to timing.

The notice can be in the form of a simple letter as long as it contains the information required under section 101 of the RTA, which is:
  • the address of the premises
  • the date when vacant possession is to be given up (which is the date specified in the agreement)
  • the grounds for termination (which is the end of the fixed term).

Section 101 also requires any information prescribed by the RT Regulations to be included in the notice.

The notice must be addressed to the applying landlord or tenant, and be signed by the landlord or the tenant. If the tenant is giving notice and there is more than one tenant, each person must sign the notice.

The tenancy agreement must stipulate where notices are to be served. If it does not, notice should be served on a person at their last known place of business or residence or postal address, and on a company at its registered office [RTA s.154]. To avoid dispute about service of notice, it is good practice to send the notice via registered post.

NTCA has a form notice of termination for use by the public or the sample letter shown at Example 1 could be adapted for use.

Example 1: Ending a FIXED TERM tenancy agreement - letter from landlord to tenant

Harold Smith [landlord]
3 Jones Street
DARWIN NT 0801

1 February 2007 [this date must be at least 14 days before the end of the fixed term]

To Robert Brown [tenant]
5 Adelaide Street
DARWIN NT 0801

Dear Sir,

Re: your tenancy of premises 5 Adelaide Street Darwin

This letter is notice as required by the Residential Tenancies Act to advise you that you are required to give up vacant possession of the above premises on the 1 April 2007 being the last day of the fixed term of 12 months provided for in the tenancy agreement.

Please deliver the keys to me on that date

Yours faithfully

[signature]
Harold Smith
Where premises have become flooded, unsafe or uninhabitable

A landlord [RTA s.86] or tenant [RTA s.92] can terminate a tenancy agreement if the rented premises have become uninhabitable. To do so, either party may be given two days' written notice in accordance with section 101 of the RTA if:
  • access to the premises has not been available for more than three days because of flooding
  • continued occupation of the premises is a threat to the health or safety of the tenant or members of the public or a threat to the safety of the landlord's property
  • the premises have become uninhabitable.

To end a periodic tenancy

A landlord can terminate a periodic tenancy without giving any reasons by giving the tenant 42 days' written notice [RTA s.89]. A tenant may terminate a periodic tenancy by giving 14 days' written notice RTA s.94]. All notices must be given in accordance with section 101 of the RTA (see Fixed term tenancy).
To end an employment-related tenancy [RTA s.91].

If an employee is provided with premises as a condition or benefit of employment and the employer (as landlord) has terminated their employment, the landlord can also terminate the tenancy agreement. The employer is required to terminate the agreement in accordance with section 101, giving the employee tenant [RTA s.91]:
  • two days' written notice if the employment was terminated because the employee breached the employment agreement
  • 14 days' written notice in all other cases.

However, this section is subject to the Commonwealth Work Place legislation, which covers such matters as unfair dismissal by an employer (see Employment). Legal advice should be sought by a tenant who believes that their employment has been terminated unfairly.
Where a tenant has been allocated public housing [RTA s.96]

If a tenant is offered accommodation by Territory Housing under the Housing Act 1982(HA), the tenant may terminate their private sector tenancy agreement by giving 14 days' written notice to the landlord in accordance with section 101 of the RTA. The tenant can only do this if the tenant:
  • had applied for housing under the HA before entering into the tenancy agreement
  • had advised the landlord of the application before signing the tenancy agreement [RTA s.96]
  • has accepted the offer of housing under the HA.

A tenant who accepts an offer of public housing has the right to break a private sector tenancy provided the above conditions apply and it does not matter what the tenancy agreement says [s.96].
Where a drug premises order is made [RTA s.88A]

A landlord of drug premises within the meaning of the Misuse of Drugs Act 1990 may terminate the tenancy by 14 days' written notice to the tenant in accordance with section 101 of the RTA.

Please see these factsheets for termination of tenancy by tenant and termination of tenancy by landlord.

Notice to remedy breach

In certain other circumstances it is not possible to terminate the tenancy by giving a notice.

Such notice must first give the other party an opportunity of remedying their breach of the tenancy agreement by a specified date or otherwise an application will be made to the NTCAT seeking orders for both termination of the tenancy and possession (where applicable) to the person giving the notice. Such a notice must comply with the requirements of sections 96A, 96B or 96C of the RTA as the circumstances dictate. The order for termination and possession will be in pursuance of section 100A.

It should be noted that in neither case should the party seeking possession attempt to evict the tenant without an order for possession from NTCAT, even where the tenancy has been terminated by a termination notice under section 101. Set out above, are the circumstances where a termination notice is appropriate [RTA s.101], and, set out below, are the circumstances where a notice requiring a party to remedy a breach of a tenancy agreement is appropriate [RTA ss.96A, 96B or 96C].

A notice to remedy breach is appropriate:
When the tenant is in arrears of rental [RTA s.96A]

Where the tenant is in arrears with rental the landlord may serve a notice under this section. The rent must be in arrears for not less than 14 days. There is no prescribed form of notice but the notice must comply with the requirements for its contents set out in section 96A and regulation 10A of the RTA. NTCA have a form notice which complies with the above requirements and this may be obtained from its website or office.

A notice to remedy requires the tenant to remedy the breach of the tenancy agreement by paying up all arrears before the compliance date set out in the notice. This compliance date must be more than seven days after the date that the notice is served on the tenant. The notice can be served either personally on the tenant or by post.

The notice must set out the following:
  • The address of the premises to which the tenancy agreement relates;
  • Following details about the rental obligations:
    • The date the obligation to pay rent commenced
    • The current rent payable
    • The frequency that rent is payable
    • The date on which rent was last paid
    • The amount of rent that was last paid
    • The date that rent will be next payable after the breach is remedied
  • That the tenant is in breach of the agreement by failing to pay rent in accordance with the agreement and the rent is in arrears;
  • The amount of rent payable by the tenant in order to remedy the breach
  • The tenant is required to remedy the breach before the date specified in the notice, which must be more than 7 days after the notice is given
  • If the tenant does not remedy the breach as required, the landlord intends to apply to the NTCAT for an order for termination of the tenancy and possession of the premises.

The landlord must sign the notice. This notice can be downloaded from NTCA's website at http://www.consumeraffairs.nt.gov.au/Pages/default.aspx

A tenant must comply with the notice by the due date. Payment on or after the compliance date does not remedy the breach. This means that even if all arrears are paid by the time the dispute comes before the NTCAT, the landlord may still be entitled to an order for termination of the tenancy and vacant possession.

An application to the NTCAT for an order for termination of the tenancy and vacant possession is made by filling a Form 1 Initiating Application. If a landlord applies to the NTCAT for such an order, the landlord must complete an 'Application Summary and Service Declaration' and provide a copy of the notice to the NTCAT as well as the tenant by no later than two business days before the hearing date. Both of these forms can be downloaded from NTCAT's website at http://www.ntcat.nt.gov.au

If the tenancy is terminated by the NTCAT, the NTCAT may give a tenant no more than five business days to move out. This means that the tenant usually has only about a week to find alternative accommodation and move out, after cleaning and tidying the premises. This is a very short period of time in practical terms and in order to avoid serious problems and inconvenience the tenant is well advised to remedy the breach before the compliance date.

In special circumstances, the NTCAT may refuse to make orders for termination and possession. For example, where the circumstances were beyond the control of the tenant causing the tenant to fall in rental arrears, such as a bank mistake.

In cases where severe hardship is likely if the tenant were to move out within five business days, the NTCAT may extend the date for giving possession for a period up to 90 days [RTA s.105] However, the NTCAT has to be satisfied about a number of matters set out in section 105 of the RTA before an extension can be granted (see Suspension of order for possession).
Where the tenant is in breach of some term of the tenancy agreement other than non-payment of rent [RTA s.96B]

A landlord may give the tenant an opportunity to remedy a breach of the agreement, other than for non-payment of rent. Examples of such breaches might be where the tenant causes or permits frequent noise, disturbance and nuisance to adjoining occupiers; failure to keep the premises in a reasonably clean condition; causing ongoing damage to the premises; permitting more than the permitted number of persons to occupy the premises; keeping pets without permission.

There is no prescribed form of notice but the notice must comply with the requirements for its contents set out in section 96B of the RTA. The notice should mention:
  • the address of the premises to which the tenancy agreement relates
  • the tenant is in breach of the agreement
  • the nature of the breach
  • the tenant is required to remedy the breach, or take steps to the landlord's satisfaction to do so, before the date specified in the notice, which must be more than 7 days after the notice is given;
  • if the tenant does not remedy the breach or take steps to the landlord's satisfaction to do so, as required, the landlord intends to apply to the NTCAT for an order for termination of the tenancy and possession of the premises.

The landlord must sign the notice. This notice can be downloaded from NTCA's website at http://www.consumeraffairs.nt.gov.au/Pages/default.aspx

Compliance might involve desisting from creating the noise and disturbance prior to the compliance date, cleaning the premises to a reasonable standard, desisting from damaging the premises, ejecting excess occupants or removing pets which are not approved to be on the premises. Failure to comply by the compliance date gives the landlord the same rights to terminate the tenancy and seek vacant possession as under section 96A (see above).
Where the landlord is in breach of some term of the tenancy agreement [RTA s.96C]

A tenant may give notice to the landlord when the landlord is in breach of a term of the tenancy agreement and the agreement specifies that a breach permits termination or the term is a term of the agreement by virtue of the RTA.

An example of such a breach might be the landlord's failure to permit the tenant to have 'quiet enjoyment' of the premises, that is persistently coming onto the premises without the tenant's prior permission for any purpose other than permitted by the RTA, such as carrying out capital works, picking mangoes, carrying out maintenance without prior approval or arrangement with the tenant.

The notice must comply with the requirements of section 96C of the RTA and should include the following:
  • the address of the premises to which the tenancy agreement relates
  • that the landlord is in the breach of the agreement
  • the nature of the breach
  • the landlord is required to remedy the breach, or take steps to the tenant's satisfaction to do so, before the date specified in the notice, which must be more than 7 days after the notice is given;
  • if the landlord does not remedy the breach or take steps to the tenant's satisfaction to do so, as required, the tenant intends to apply to the NTCAT for an order for termination of the tenancy and possession of the premises.

The tenant must sign the notice. This notice can be downloaded from NTCA's website at http://www.consumeraffairs.nt.gov.au/Pages/default.aspx

In all three cases (notices under ss.96A, 96B and 96C) the application to the NTCAT seeking orders for termination of the tenancy and possession must be filed within 14 days after the compliance date specified in the notice.

Tribunal-ordered termination

In certain cases of serious breach, unacceptable conduct or undue hardship, the NTCAT has the power to terminate the tenancy and order possession.

The NTCAT has the power to terminate tenancies under the following circumstances:
Serious breach by landlord or tenant [RTA ss.97 and 98]

The NTCAT may terminate a tenancy agreement if either the landlord or the tenant has breached the tenancy agreement and that such breach is sufficiently serious to justify termination in circumstances other than those where a termination notice [RTA s.101] is appropriate (see above). If the NTCAT terminates the agreement, an order for possession of the premises to be given by the tenant to the landlord occurs seven days after the NTCAT terminates the agreement.

Some circumstances which would enable the NTCAT to make such an order might be where there is constant noisy behaviour at the premises, crowds of visitors drinking frequently and disrupting the neighbourhood, causing damage or making alterations to the premises which are not permitted, causing a public health problem through extremely unsanitary behaviour, or where reasonably urgent orders are required without the delay of having to issue notices.

The NTCAT may [RTA s.97(2)] terminate a tenancy and make an order for immediate possession of the premises if the tenant, or a person on the premises with the consent of the tenant, intentionally or recklessly causes or permits serious damage to the premises or personal injury to the landlord or a person in the vicinity of the premises. The purpose of this section is to urgently stop behaviour of an extreme kind in addition to any criminal proceedings that might be taken.
Undue hardship of landlord or tenant [RTA s.99]

The NTCAT may terminate a tenancy and order possession if satisfied that the continuation of the tenancy would result in undue hardship to the landlord or the tenant, provided that the circumstances of hardship had not arisen before the tenancy agreement was entered into. If the NTCAT terminates a tenancy under section 99, the NTCAT will set a date on which the tenancy ends and if the tenant is not required to move out on the same day, then the NTCAT will also mention the date the tenant is to move out of the premises.

An example might be where the tenant's financial circumstances change so dramatically that they are unable to pay the rent, where a death occurs causing major changes in circumstances for either party, or where illness arises requiring a tenant to give up work or go interstate for long-term medical treatment. No order should be made if the party seeking the order on the grounds of hardship knew or should have known at the time of entering the tenancy agreement of the existence of the circumstances causing hardship.
Tenant's failure to enter into or comply with acceptable behaviour agreement under Housing Act [RTA s.99A]

The Housing Act, which regulates public housing administered by the Chief Executive Officer of Territory Housing was amended in 2006 to require certain tenants with a history of poor tenant behaviour to enter into acceptable behaviour agreements as a condition precedent to their obtaining any tenancy with Territory Housing. The acceptable behaviour agreements require a commitment from the tenant that they will behave appropriately as tenants during the tenancy.

Section 99A of the RTA empowers the NTCAT to terminate a tenancy and order vacant possession of the premises if a tenant, who has been required to enter into an acceptable behaviour agreement, fails or refuses to do so, or, having done so, seriously or repeatedly breaches the terms of the acceptable behaviour agreement.

Where the breach relates to the behaviour of a person occupying the premises with the consent of the tenant, the NTCAT may have regard to the actions taken by the tenant in trying to prevent the breach and if satisfied that the tenant has taken all reasonable actions to prevent the breach then the NTCAT may decide that there has been no breach by the tenant.
Unacceptable conduct of tenant - application by landlord or 'interested person' [RTA s.100]

The NTCAT may, on the application of the landlord or an 'interested person', terminate a tenancy and make an order for possession if satisfied that the tenant has (a) used the premises for an illegal purpose; (b) repeatedly caused a nuisance on and from the premises; or (c) repeatedly caused or permitted interference with the reasonable peace and privacy of a person residing in the immediate vicinity of the premises.

Section 100 of the RTA permits persons other than the landlord (the 'interested person') to take action to evict a tenant where the behaviour of the tenant causes repeated nuisance or interference with the reasonable peace and privacy of a person residing in the immediate vicinity of the premises. 'Interested person' is defined as a person who has been adversely affected by the conduct described in the application to the court.

Where an interested person makes an application for termination of the tenancy agreement and possession to be given to the landlord, the landlord must be served with notice of the proceedings and be given an opportunity to be heard by the NTCAT. If the landlord objects to the interested person's application, the NTCAT may make orders terminating the tenancy only if satisfied that exceptional circumstances justify it.

Section 100 provides neighbours of tenanted premises the opportunity to seek termination of a tenant's tenancy agreement when the landlord does not take such action.
Suspension of order for possession [RTA s.105]

If the tenancy is termination by the NTCAT, the RTA requires that a tenant deliver possession of the premises at a date not more than five business days from the date of the NTCAT order. However, if the NTCAT is satisfied that making of an order for immediate possession of the premises would cause severe hardship to the tenant, the NTCAT may suspend the order for possession for up to 90 days.

When considering the issue of hardship, the NTCAT has to take the following matters into account:
  • Whether the tenant has caused a nuisance to, threatened or harassed neighbours or damaged their property
  • Any incidents relating to the tenancy
  • The seriousness of the breach that entitles the landlord to the order of possession
  • Whether an unacceptable risk would be posed to neighbours, visitors or the property if the order were to be suspended
  • Whether the tenant is able to pay the outstanding and future rent in relation to the premises

If the order for possession is suspended and during the suspension period the tenant does not pay the rent within seven days after it is due, the landlord must give the tenant another termination notice of not less than seven days. The tenant must then give up possession of the premises to the landlord on the date specified in the notice.

If the tenant fails to vacate after the seven days notice is given during the suspension period, then the landlord may make a further application to the NTCAT and seek an order for immediate possession. The landlord will need to prove service of the notice.

Lease break/abandonment of the premises [RTA s.108]

Premises can be termed 'abandoned' under the following scenarios:
Where a tenant breaks a tenancy agreement

This is where a tenant wishes to break a fixed term tenancy agreement without termination of the agreement under any of the above procedures.

Under the RTA, breaking a lease is seen as abandonment of premises, even if the tenant has notified the landlord of the tenant's intention to break the lease in advance.

If a tenant wishes to pursue this option, they should give as much notice as possible and help the landlord to find someone to replace them. This will not only assist the landlord, but will also help reduce the financial liability that a tenant may incur as a result of breaking the lease.
Where a tenant moved out without notice

This is where a tenant moves out of the premises before the expiry of their tenancy without notifying the landlord.

Under the RTA, where the landlord has reasonable grounds to believe that the tenant has abandoned the premises and rent is outstanding, the landlord may take possession of the premises without the need for an order for possession from the NTCAT. However, the NTCAT has the power to declare that premises were abandoned on a certain date and make an order for immediate possession. In that case the tenant is taken to have abandoned the premises on that date. A cautious landlord would seek the order from the NTCAT as to abandonment and whether or not rent is outstanding.

A tenant may potentially be liable for damages equivalent to lost rent and associated costs until the end of the lease or until a replacement tenant is found, whichever comes first. This is, however, conditional on the landlord being able to prove that they took reasonable measures to mitigate the loss for the tenant. A tenant may also be liable for a letting fee (see below) and reasonable costs associated with finding a new tenant, such as advertising costs. A tenant may be listed on a tenancy database for the reason of abandonment of the premises, as a tenant is breaking a legally binding contract and such can be construed as a breach of contract.
Letting fee

When a tenancy ends because of a lease break, a proportion of the letting fee may be charged to the outgoing tenant. This is because breaking a lease is seen as a failure by the tenant to comply with the agreement it could be described as a breach of the agreement for which compensation may be awarded pursuant to section 122 of the RTA.

A letting fee is usually applicable for properties managed by real estate agents if such is charged by the agent. A tenancy agreement can specifically provide for a formula to calculate the proportion of letting fee that is applicable in a lease break situation. Generally industry practice is 1 week in rental amount of the letting fee for a 12-month tenancy agreement. It would be reasonable to calculate this at a pro-rata basis for the gap period in the lease break. Any more than this being claimed could be challenged as being unreasonable.

Abandoned goods

If goods are left at premises at the end of a tenancy, the landlord is required to store them in a safe place until they are reclaimed by the owner. An exception is made for perishables and goods that cost more to remove, store and sell than they are worth. These can be removed and destroyed or disposed of [RTA s.109].

Within 14 days of storing the goods, the landlord must send a notice to the tenant and to any other person who the landlord knows has a legal interest in the goods. The notice has to be in the prescribed form called a Notice by Landlord of Storage of Goods. The notice is contained in the RT Regulations [reg.11, Sch.3] and accessible at http://www.nt.gov.au/dcm/legislation/current or from NTCA's office (see Contact points).

The landlord also has to publish the same notice in a newspaper that circulates throughout the NT. The landlord is entitled to be reimbursed by the owner of the goods for the cost of the advertisement.

Any person entitled to possession of the goods can reclaim them [RTA s.109(5)] by paying to the landlord:
  • the reasonable cost of their removal and storage
  • the cost of publishing the newspaper notice.

If the goods are not reclaimed within 30 days of the landlord taking possession of the premises, the landlord must sell them at public auction. From the sale proceeds, in addition to the costs for removal, storage and publishing notices, the landlord can keep costs incurred for selling the goods and any money owed to them under the tenancy agreement. Any remaining money must be returned to the owner of the goods or, where their identity and address are unknown, to the Commissioner.

Abandoned motor vehicles

These may attract special problems relating to transfer of registration of a registered vehicle and the existence of registered interests in such vehicles (such as security interests over such vehicle). Most abandoned goods outside residential tenancy arrangements can be disposed of under the Uncollected Goods Act (NT) 2004. The procedure for disposing of a motor vehicle abandoned by a tenant under a tenancy agreement appears to be the procedure set out under section 109 of the RTA - which also applies to any other type of abandoned goods (as set out above). However, difficulties may arise as to transfer of registration (if registered). Similarly a purchaser may need to be cautious as to obtaining a good title to the vehicle (irrespective of registration) bearing in mind that it has been abandoned (although section 109(9) does provide that a purchaser at auction acquires a good title). A landlord should obtain legal advice regarding the disposal of a motor vehicle left on premises that were the subject of a tenancy.

Where the landlord will not allow collection of goods

Apart from the landlord's right to retain moneys from the sale of abandoned goods for rental (see Abandoned goods), a landlord is not entitled to seize the tenant's goods for the purpose of satisfying a debt such as for rent allegedly owed. If, however, the debt is a judgment debt (see Resolving disputes), then an authorised bailiff of the court can seize the goods and sell them to satisfy the judgment debt.

Where a landlord deals with abandoned goods under section 109 of the RTA, the landlord is subject to penalties for failing to observe the requirements of that section. In addition, section 109(10) gives the NTCAT power to make orders to resolve any dispute.

Scenarios where a landlord refuses to allow a tenant to come onto the premises for the purposes of collecting their goods could include:
  • where the tenant has apparently abandoned the premises and goods;
  • where the tenant has complied with an order or agreement to vacate the premises but has not removed their goods prior to moving elsewhere;
  • where a landlord breaks an agreement giving the tenant the right to come back onto the premises to collect goods; or
  • where a landlord unlawfully takes possession without legal right.

The first two scenarios in the previous paragraph could be resolved by the NTCAT under section 109(10).

It is not clear whether the NTCAT would have powers to resolve a dispute where the landlord breaks an agreement permitting the tenant to come back onto premises to collect goods as these may not fall within the category of 'abandoned goods'. However, a provable agreement may well be the basis of an action to a court seeking return of goods under the laws relating to detention of goods.

Where a landlord unlawfully takes possession without legal right to do so whether by mistake or deliberately in breach of the law, then Part 8 of the RTA may well be the basis of any action by the tenant against the landlord. If the landlord unlawfully takes possession of the premises (and the tenant's goods) the landlord is breaching the tenant's rights to enjoy the property without disturbance. Generally, a tenant is entitled to exclusive possession under a tenancy and, subject to certain qualifications in the RTA, the landlord has no right to breach that right by coming onto the property without the tenant's permission. Section 66 of Part 8 of the RTA specifically states that a landlord must not force, or attempt to force, a tenant to vacate the premises, (a) except in accordance with the RTA or (b) in circumstances that amount to harassment. If in the course of breaching Part 8 the landlord is in effect depriving the tenant of their goods then the penalties prescribed under the RTA for these offences will apply.

In all cases where there are disputes relating to the collection of goods it is desirable that legal advice be obtained in order to clarify the circumstances and choose the appropriate remedy.

Termination of tenancy in a shared house

Co-tenants

A co-tenant cannot be forced to leave shared housing by the other tenants.

A co-tenant can terminate their tenancy by getting their name taken off the tenancy agreement with the written consent of all the other co-tenants as well as the landlord. A co-tenant who wishes to leave may also assign their interest in the residential tenancy agreement to an existing or new co-tenant.

A co-tenant must ensure that their name is taken off the tenancy agreement, otherwise they will continue to be liable as a tenant until the agreement is terminated.

Assignment requires the consent of the other co-tenants. It also requires the agreement of the landlord and the tenants must pay for any reasonable expenses involved.

If the landlord will not agree to the assignment, a tenant can apply to the NTCAT seeking declaration that the landlord's refusal is unreasonable.

A co-tenant can get their name taken off the tenancy agreement with the written consent of all other co-tenants as well as the landlord.

Sub-tenants

A sub-tenant can be asked to leave by the head tenant, but the head tenant must follow the procedures set out in the RTA including the appropriate amount of written notice (see Different procedures to ending a tenancy ).

Boarders and lodgers

A boarder or lodger who is covered by the RTA (see Special situations ) must be given the appropriate amount of written notice by the landlord (see Different procedures for ending a tenancy ).

A boarder or lodger who is not covered by the RTA must only be given reasonable notice by the landlord. The same notice period applies to the boarder and lodger if they wish to leave. Generally, the rental period would be considered reasonable notice (if, for example, rent is paid every week then one week's notice would be considered reasonable). However, if the person has lived in the premises for a long time, more time should be given. It is difficult to enforce this. The landlord and the boarder or lodger should try to negotiate a date to leave.

Vacancies in a shared house

If a room in a shared house is vacant, the tenants whose names are on the agreement will be liable to pay the extra rent until they can find someone to take the room, although a co-tenant who moves out without assigning their interest in the agreement (see above) can be held liable for the rent by the other tenants (and also by the landlord).

If the fixed term has ended, the remaining tenants may decide to end the tenancy.

Security deposit (bond)

The names of all the tenants who have paid security deposit money should be on the receipt. If a co-tenant assigns their rights to the tenancy to one of their co-tenants, then they must also assign their interest in the security deposit to the co-tenant (see Security deposit or bond money). This assignment should be made in writing and signed by all parties. A co-tenant should not assign their interest in the security deposit until they have received the return of their share of the money they paid.

Liabilities to service providers

Service providers such as the telephone company and the local electricity authority will hold the person whose name is on the bill responsible for the amount due. This can cause problems if one of the co-tenants in a shared house will not pay their portion of the bill. However, sub-tenants and boarders or lodgers are not liable to pay electricity bills unless their part of the premises is separately metered.

If a co-tenant leaves without paying bills

If a co-tenant leaves without paying their share of the bills, the other tenants may have to take legal action to get the money back as a debt (see Debts ).

Disputes between people in shared housing

Community justice centres can mediate disputes between people in shared housing (see Alternative dispute resolution ).

Squatters

A squatter is a person who lives in premises without the owner's consent. They are not legally recognised as tenants, and have no legal protection against eviction (see Squatters ).

A squatter threatened with eviction should get legal advice as soon as possible from a community legal centre (see Contact points ). They should also try to negotiate with the owner, who may be willing to let them occupy the premises if satisfied that no damage is being caused.

It might also help to contact their local Member of Parliament, the Department of Housing, or other emergency accommodation providers for help with finding other accommodation.

Service of notices generally under the RTA

It is important that notices are served strictly in accordance with the RTA. Thus, where a notice is required to give a period of time in which the other party must comply with a particular requirement (such as a notice requiring a tenant to remedy a breach of the tenancy agreement before a certain date), it is not only necessary to ensure that the period of time allowed in the notice to take a certain action is no less than the correct period, but it is important to remember that the period of time allowed does not start to run until the day following the date the notice was actually served on the recipient of the notice.

For example, a notice terminating a fixed term tenancy (which will expire on a certain date) requires 14 days notice of termination to the other party. The notice would be ineffective if the 14th day of the notice period occurred after the last date of the fixed term because that would not be 14 days notice. If the notice is served on the recipient in person (by handing it to them) then the 14 days starts on the day following such personal service.

If, however, the notice is posted, then one has to allow for the time taken for the document to be actually delivered in the ordinary course of post to elapse before the 14 days notice will commence to run. For example, if a notice is posted today in Darwin City, then provided it was posted by a certain time of day (often placarded on the Australia Post letterbox), then in the ordinary course of post it could be deemed to be received by the recipient on the following day in one of the Darwin suburbs.

It is open to the recipient to prove to the NTCAT that in fact they did not receive it the following day. If the sending party made no allowance for a 'buffer period' then it may mean that the notice given did not in fact allow the required 14 days. This is likely to be crucial to the sender of the notice who may well fail in any action before the NTCAT seeking an order for possession. The likely outcome would be that the notice is deemed ineffective, in which case the party who gave the notice may have to start over again by issuing a further notice.

There are two ways of avoiding problems with time limits in notices required by the RTA:
  • The first is to avoid inserting in the notice a period which is the minimum period required by the RTA . Try to allow an extra 'buffer period' which allows for any delay in getting the document served on the recipient.
  • The other is to serve the notice personally rather than by post. At any hearing before the NTCAT, evidence on oath can then be accepted without any concern about the time it might have taken to get to the recipient by post. Busy letting agents may find service of numerous notices by personally handing same to tenants is impracticable but this does not alter the fact that evidence of service by a person handing a document to another person is unequivocal evidence as to when that person actually received the document.

Finally, it is pointed out that there have been instances where the notice that is a day short has been deemed to be invalid.

The most common disputes

Utilities

One of the most common disputes relate to the charge of utilities. Under the RTA, a landlord can only pass on the utilities if:
  • the tenancy agreement states the tenant must pay for the consumption; and
  • the rental premises are individually metered

If the rental premises aren't individually metered then the tenancy agreement must state:
  • the service or facility for which the charges are payable; and
  • the method of determining the apportionment of the charge; and
  • how the charge may be recovered by the landlord from the tenant.

A landlord cannot ask a tenant to pay for charges, levies, rates or taxes other than a charge payable by the owner or occupier of the premises supplied to the premises.

A landlord can only ask a tenant to pay for the consumption charges and cannot pass on the fixed rate for the service or the facility on to the tenant.

Depending on the wording of the tenancy agreement as to how the charge may be recovered by the landlord, the landlord must pass on the bill to the tenant as and when the landlord receives the bills from the service provider.

Unpaid rent

The most common application is made under section 96A of the RTA seeking orders for termination of tenancy and possession on the grounds the tenant failed to pay rent arrears by the compliance date in the Notice to Remedy Breach of Tenancy Agreement.

Frequently the section 96A application is accompanied by an application by the landlord under section 122 of the RTA seeking compensation for the unpaid rent remaining as at the date of the inquiry. The NTCAT can order that arrears up to and including the date of the inquiry are payable by the tenant to the landlord. Both the possession under section 96A and the order for compensation under section 122 can be registered by the landlord at the Local Court civil registry and those orders then become orders enforceable under the process of the Local Court.

Resolving disputes

Disputes arise for many reasons: a tenant may believe that the landlord has breached a provision of the RTA; a landlord may feel that a tenant is acting in a way that amounts to a breach of the tenancy agreement; a tenant may have a dispute with a co-tenant. A landlord or tenant who are in dispute can:
  • try to resolve the dispute themselves
  • seek mediation through the Community Justice Centre (CJC)
  • apply to the NTCAT.

Before a dispute is taken to the NTCAT, the parties should first try to resolve it themselves. NTCA or DCLS can assist with the process and, where appropriate, disputes could be mediated by the CJC. Any agreement reached following a dispute should be in writing and signed by both parties. Both landlord and tenant should keep a copy.

Taking a dispute to the NTCAT

If the tenant and landlord cannot resolve the dispute themselves, either party can apply to the NTCAT for a resolution. An application to the NTCAT is made in writing and can be initiated by filling out a Form 1 Initiating Application. This application form can be downloaded from the NTCAT's website at http://www.ntcat.nt.gov.au .

The application must be lodged with a non-refundable application fee. The application can be lodged either:
  • in personat the NTCAT registry in Darwin or Alice Springs:
    • Level 1, Met Building, 13 Scaturchio Street, Casuarina; or
    • Westpoint Building, 1 Stott Terrace, Alice Springs,
    • by email to: AGD.ntcat@nt.gov.au (scanned copy of the signed original);
    • by post to: NTCAT, PO BOX 41860 Casuarina NT 0810; or
    • in remote locations to any Northern Territory Court Facility.

Please see this factsheet for more information on tenancy disputes in the NTCAT.

Fees

Before applying to the NTCAT, it is important to understand that the NTCAT is a cost jurisdiction, which means that costs may be awarded to one party against the other. This means that the unsuccessful party may have to pay the costs of the successful party. Costs can include the application, legal fees and any lost wages for attending the hearing. Costs will only be awarded where requested, so this means that an applicant must ask for them in the application itself.

A Form 1 Initiating Application includes an application fee, which is known as a filing fee. An applicant may also incur daily-hearing charges if the hearing goes for more than one day. The filing fee may be waived at the discretion of the NTCAT Registrar upon an applicant providing evidence of financial hardship and inability to afford the application fee, for example by producing a pension/health care card or bank statement.

If you are lodging the application form in person, you must ask for the fee to be waived at the time of lodgement. If you are emailing or posting the application form, you must also lodge with it an 'Electronic Payment Details' form. This form can be downloaded from the NTCAT's website at http://www.ntcat.nt.gov.au/

These fees are annexed annually and for more information visit www.ntcat.nt.gov.au/fees.shtml.

What happens after you submit your application?

After you lodge your application, the registry staff at the NTCAT will process your application and either:
  • ask you to amend your application; or
  • reject your application; or
  • accept your application and send you a stamped/sealed copy of your application.

You must ensure that the contact details you have provided to the NTCAT are correct so that they are able to contact you with any requests for additional information.

Notice of Directions / Sealed Initiating Application

If your application is accepted by the NTCAT, you will receive a Notice of Directions and/or Sealed Initiating Application. These documents will include:
  • a confirmation of the parties involved in the proceedings;
  • all deadlines for the service of documents that you will need to meet; and
  • the dates of any relevant Compulsory Conference, Mediation, Directions Hearing and/or Hearing.

It is important that you take note of any relevant dates and deadlines for documents at this stage of proceedings so that you do not miss anything. Orders can be made by the NTCAT without you being present and/or any material that you are filing with the NTCAT may not be accepted if you miss a deadline. You can do this by recording these important dates and deadlines in a calendar, electronic device or diary.

Effecting service

After receiving the Notice of Directions, you will have to effect service of the application on the other party to your matter.

Under the NTCAT Rules, the person required to serve the document must take reasonable steps to bring the document and its contents to the attention of the other person. In addition, the person must serve the document as soon as they reasonably can within 14 days from when they filed their application. The NTCAT Rules mean that you will need to take reasonable steps to bring the application to the attention of the other party as soon as you reasonably can. You can do this via a number of methods, including:
  • via registered post (so that you have a sent receipt);
  • via personally handing a document to the other party; or
  • via email (could provide evidence of a read receipt or reply).

When effecting service of the application, you should attempt all reasonable methods open to you to ensure that the document is brought to the attention of the other party. This is because the NTCAT may require you to provide evidence of the steps that you took to serve the documents. In addition, the NTCAT may refuse to proceed with your application if it is not satisfied that the other party has been served according to the NTCAT Rules.

Alternative dispute resolution under NTCAT

The use of alternative dispute resolution mechanisms such as mediation is promoted as much as possible for appropriate matters. Parties can expect that NTCAT will actively explore possibilities for settlement at all stages of a proceeding.
Compulsory Conference

NTCAT may require the parties to a proceeding to attend a compulsory conference. The purpose of the conference is to identify and clarify the issues in the proceeding and promote the resolution of the matter by a settlement between the parties.

The Tribunal member may determine the procedure to be followed at the conference and may:
  • ask a party to give particulars of their matter
  • determine who may be present at the hearing
  • permit a party to withdraw from the proceedings and an order accordingly
  • close the conference at any time if the Tribunal member believes that a settlement cannot be reached.

Mediation

NTCAT may require the parties to a proceeding to attend mediation by an approved mediator. The purpose of mediation is to promote the resolution of the matter by a settlement between the parties.
Procedure to be followed at compulsory conference and mediation
  • Both must be held in private unless otherwise ordered by the Tribunal member;
  • Evidence of anything said or done during either compulsory conference or mediation cannot be used in a proceeding before the Tribunal unless all the parties consent to it;
  • Even if parties reach a settlement, the Tribunal member has the power to not accept the settlement if:
    - it appears to be inconsistent with the RTA; and
    - if it prejudices a person who has material interest in the matter was not represented;
    - If the Tribunal member accepts the settlement, the member must put it in writing and make a decision or order accordingly.

The proceedings will normally be informal and either party can be represented by a lawyer or another person. The Tribunal member conducting the conference can refer questions of law to the President of the Tribunal. Parties should take all relevant documents to the conference as well as mediation
Hearing

If a matter is straightforward, a final hearing date, ideally within 14 days of the application, will be nominated. This may include matters relating to termination, possession, and unpaid rent. However, for more complex matters, such as bond disputes, general compensation and repairs, a directions hearing will be held. The purpose of holding a directions hearing is to identify the core aspects of the parties' dispute and requiring them to provide materials in support of their claims to each other and to NTCAT.

Submissions

Prior to your hearing, the NTCAT may require you to provide written submissions in support of your application. These written submissions would provide further details about your situation and the repairs, the actions of yourself and the landlord, and the compensation that you are seeking.

Written submissions may also be accompanied by a statutory declaration in support of your application. The statutory declaration will serve to provide details of your tenancy, but not of the argument / submissions that you are putting before the NTCAT. By making a statutory declaration, you will be making a promise to the NTCAT that certain events have occurred which have led to your application. This statutory declaration can be either sworn or affirmed in the presence of an authorised person.

The respondent services with an Initiating Application may lodge with NTCAT and serve on the applicant a Response in Form 2. This form can be downloaded from the NTCAT's website at http://www.ntcat.nt.gov.au/

Evidentiary Material

Prior to your hearing, the NTCAT may request that you file evidentiary material in support of your application. This evidentiary material could include emails, bank statements or statutory declarations in support of your submissions.

You should only file relevant evidentiary material with the NTCAT. This means that you will have to carefully read through any material before filing so as to ensure that you do not make your hearing longer than it needs to be.

The Tribunal member has wide powers in conducting an inquiry including the right to summon people to appear, and/or insist that books and records be produced. A person failing to appear or produce books or records as ordered can be heavily fined.

If orders are made in the absence of either party due to non-attendance at the NTCAT, the parties must immediately seek legal advice (see Contact points).

Appealing the decision

If either the tenant or the landlord disagrees with a decision or order of the NTCAT, they can seek a review of the decision through NTCAT's internal review process.

To file for an internal review, the tenant or landlord can lodge a Form 1 Initiating Application and lodge it with the application fee at the NTCAT. The application for internal review must be made within 28 days after the date of the NTCAT's decision or order.

If the NTCAT's decision requires a tenant to vacate the premises within five days, the tenant's application for internal review or appeal to the Supreme Court must be filed with the NTCAT within 4 days (and not 28 days). This is because the tenant must, in addition, to the internal review/appeal application, make a separate application seeking order to stay the NTCAT's initial orders. The stay application must be made before the order takes effect.

An application for a stay of the order will normally be held very quickly. If the Tribunal member is convinced that there are apparent grounds for a review, and that the applicant is not just trying to buy time, then the member will order a stay of the eviction process and set the internal review matter down for a hearing as to its merits in due course.

An appeal against the decision can be made to the Supreme Court but only on the question of law. An application can be made to seek leave to appeal as well as stay of the original decision. At this stage an appellant would be wise to seek legal advice.

Enforcement of Orders [NTCAT Act ss.84 and 85]

A person who fails to comply with an order of the NTCAT exposes themselves to heavy penalties.

The Registrar of NTCAT must certify the order before the party who wants to enforce the order files the order in the Local Court for enforcement purposes.

Once the Registrar of NTCAT certifies the order; you can take the order to the office of the Local Court who will register the order as an order of the Local Court. This then enables the enforcement procedures under the Local Court Act and Rules to be availed of.

A landlord can make an application for warrant of possession. Under the warrant, a bailiff can be engaged whose task is to retake possession of the premise enabling the landlord or their agent to take vacant possession.

If the NTCAT has ordered the payment of money, then registration of that order with the Local Court allows the use of the recovery processes for debt collection under the Court's rules.

The applicant in the enforcement proceedings is called the creditor and the respondent is called the debtor.

Where the debtor does not or cannot pay the amount straight away, the creditor can use various Court processes to enforce the judgment and make the debtor pay. These include:
Order for payments by instalments

An Instalment Order may have been made at the hearing. If not, a debtor who is unable to pay the full amount at once can obtain an Instalment Order by agreement with the creditor or can apply to the Court at any time.
Seizing the debtor's goods

A Warrant for Seizure and Sale can be issued by the civil registrar at the request of the creditor. The warrant is issued to a bailiff who then has the power to take possession of and sell the debtor's goods to cover the judgement debt, plus any costs and interests that have become due.
Attachment of earnings

If the debtor is employed, a creditor can apply for an Attachment of Earnings Order under which the debtor's employer makes payments to the creditor out of the debtor's earnings.
Garnishee Order

In circumstances where the debtor cannot pay directly and is owed money by someone else, a creditor can apply for a Garnishee Order under which a person who owes money to a debtor will be ordered to pay the money directly to the creditor to cover the judgment debt.

For more information on enforcement of a judgement debt, see this factsheet produced by the Northern Territory's Department of Attorney-General and Justice. Please note from 1 May 2016 there is going to be a major overhaul to the Small Claims Jurisdiction of the Local Court; please contact them for updated enforcement procedures.

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