Parties are generally free to say what the terms of their agreement will be. However, there are certain terms that are required of an agreement under the Residential Tenancies Act 1995 (SA) and even where they are not expressly included in the agreement they will be read into any agreement by virtue of the legislation.
Required terms – written agreements
Where an agreement is in writing the following terms must be included under section 49(1)(vi) of the Act:
Terms created by the Act – written and verbal or implied agreements
The Residential Tenancies Act 1995 (SA) provides many terms that are included in every residential tenancy agreement (whether the agreement is in writing or not) and these are implied even if not expressly stated in the agreement.
Terms that are created under the Act include, but are not limited to, the following:
Unless they successfully apply to the South Australian Civil and Administrative Tribunal for an exemption, the parties to the agreement cannot leave out any mandatory terms, even if they agree to do so [s 119].
Terms that are inconsistent with the Act
It is an offence to enter into an agreement or arrangement that is designed to exclude or circumvent terms created under the Act, and it is not possible to waive rights that are granted under the Act [s 115]. The maximum penalty for entering into an agreement to defeat, evade or prevent the operation of the Residential Tenancies Act 1995 (SA) is $10,000.
Where an inconsistent term exists it will be unenforceable. An example of an inconsistent term is the popular: “All carpets shall be professionally cleaned by the tenant at the termination of the tenancy.” This term suggests that even if the carpets are in a clean and reasonable condition they must be professionally cleaned (at the tenant’s expense). However, section 69(3) of the Residential Tenancies Act 1995 (SA) simply requires a tenant to leave the premises in a reasonable condition and a reasonable state of cleanliness. Professional carpet cleaning is inconsistent with section 69(3) of the Act and would be unenforceable.
For further examples of inconsistent tenancy agreement terms see the Consumer and Business Services factsheet ‘Lease agreement terms inconsistent with the Residential Tenancies Act 1995’.
Residential tenancy agreements
Fixed term or periodic tenancies
