Australian housing prices still for the most part remain quite high when compared with the rest of the world, so as a consequence, many people choose to rent property. When a person is subject to a rental agreement, there are many rights and obligations attached on both the tenant and landlord which this piece will broadly cover.
What should be in a tenancy agreement?
In respect to the written agreement between a tenant and a landlord, generally speaking, there should be a condition report and an outline of the associated rights and obligations of the tenant in accordance with the legislation of each State and Territory. For example, in Victoria under s 26 of the Residential Tenancies Act 1997
(VIC), agreements in writing must follow the standard form, and under the provisions of s 35, a condition report and a statement of rights and obligations must be provided to the tenant. While in Queensland, the Residential Tenancies Act 1994
(QLD) states that the agreement must be in writing, and the details of the written agreement must be prescribed, along with a statement of rights and obligations to be provided to a tenant (s 43), a condition report is to be completed (s 47), which will be referred to as evidence of the condition of the premises (s 316).
The right to undisturbed possession
Tenants may be in a rental property for a limited period of time, however, they are still granted the right during the tenancy period of undisturbed possession of the property – even against the landlord. All jurisdictions in Australia imposes an obligation on the landlord to respect the right of the tenant to enjoy quiet possession of the property, with the landlord permitted to only enter the premises under limited circumstances, which can include:
- examining the property after providing the appropriate, statutory notice;
- carrying out repairs or maintenance of the property;
- showing prospective tenants or purchasers the property;
- collecting rent.
The right of the tenant to enjoy quiet possession is as such, that even lawful acts by the landlord that interferes with a tenant’s right to quiet enjoyment, can under certain circumstances be considered as a breach by the landlord per Worrall v Commissioner of Housing for the Australian Capital Territory  FCAFC 127.
The landlord in Worrall allowed contractors to carry out necessary repairs on the property, however, the common garden became unusable and the repairs caused noise and the common garden became muddy. The Full Court of the Federal Court held that the landlord would be in breach of the covenant for quiet enjoyment if the actions ‘substantially’ interfered with the tenant’s quiet enjoyment.
The tenant is obliged not to be a nuisance
Although landlords are restrained from interfering with the tenant’s quiet enjoyment of the property, it should be pointed out that tenants are also obligated not to interfere with the quiet enjoyment of neighbours, nor are they allowed to create a nuisance – with the obligations being applicable to guests of the tenant as well.
The landlord has a duty to repair the premises
The duty to repair the premises is generally non-delegable, and the landlord may also be responsible for the actions of any tradesperson employed (per Greko v C Gillam Investments Pty Ltd  QCA 184). Although, the duty of the landlord to repair the property is dependent on the statutory duty imposed on the tenant to take care of the premises, and to avoid causing damage. Therefore, there may not be an obligation imposed on the landlord to repair any damage caused intentionally, recklessly, or negligently by either the tenant, or guests of the tenant. Furthermore, the obligation to repair is also subject to notice requirements imposed on the tenant, and the duty imposed on the tenant may be held as a qualifier in relation to the landlord’s duty to repair.