Lease agreements explained
A tenancy agreement is normally in writing and both the tenant and the landlord sign it. An agreement can also be verbal or implied. All tenancy agreements are legal contracts. However, if it’s in writing, the details of the agreement are easier to prove if you have a problem.
A written lease agreement must include:
- name, address, phone number and registration number of the agent if one is used
- landlord’s name and address – eg residential or postal address. Landlords who don’t have an agent must also provide a phone number.
- name of all tenants included in the agreement
- address of premises
- rent amount
- how and when rent is paid
- how long the lease agreement lasts
- who pays for water supply and use
- anything excluded from the agreement – eg tenant’s use of the shed.
- any other terms – eg rules about pets
- date and signature of all parties.
You can include extra conditions in a lease as long as they don't contradict the Residential Tenancies Act 1995 .
Fixed term agreements
Fixed term lease agreements include a date the tenancy ends. The date can only be changed if the landlord and tenant agree.
Rent can't be increased during a fixed term agreement unless a condition is included in the agreement. The date of the increase, the new amount and how it was worked out is needed, eg – Rent increases to $400 dollars a week from 20 December 2016 (calculated in line with CPI).
Ending a fixed term lease
The tenant or the landlord must tell the other person if the lease agreement is ending and not being renewed, at least 28 days before the end date. If no one gives notice, the agreement continues as a periodic lease.
If the tenant moves out before the end of the agreement, they may need to pay re-letting costs, loss of rent and pro-rata advertising costs. The landlord must try to re-let the premises quickly to keep these costs as low as possible.
For further information see the claiming costs from a broken lease bulletin
The landlord can end a fixed term agreement early if:
- the tenant agrees
- the tenant breaks a condition of the agreement such as unpaid rent.
Extending a fixed term lease
The landlord should give written notice of lease extension to a tenant if a fixed term lease is being extended. A new lease agreement is another option. Rent can be increased with either option if there hasn’t been an increase for 12 months.
Short fixed term agreements
Short fixed term leases are tenancy agreements for up to 90 days. Other conditions stay the same as a traditional fixed term agreement. The landlord needs to give the tenant a written notice of a short fixed term agreement as well as a lease agreement. Both documents must be signed by the landlord and the tenant.
Periodic lease agreements
Periodic lease agreements do not have a date that the tenancy ends. They continue until the tenant gives written notice to move out or the landlord gives written notice to end the tenancy.
Notice to end a periodic lease
The tenant needs to give at least 21 days written notice or one month's written notice if rent is paid monthly. The landlord may accept less than the 21 days’ notice but it’s recommended that this be in writing.
The landlord needs to give at least 90 days written notice to end a periodic agreement if there is no specific reason.
The landlord can give 60 days written notice if:
- the property owner wants to live in the property
- major renovations are needed
- demolition is planned
- the property has been sold and the contract states that the property will be vacant.
Changing the conditions of a lease agreement
To change the details in a lease agreement after it has been signed:
- The tenant must agree to the new conditions
- The changes must be written clearly on the original lease agreement
- The tenant must sign the changes
- The landlord must give a copy of the changed agreement to the tenant and keep one for the records.
A tenant can rent to another individual – a sub-tenant – if the landlord gives permission. The original or ‘head tenant’ is still responsible for everything in the lease agreement, eg – if the sub-tenant damages the property, the head tenant is legally responsible.
Assigning the lease
The tenant can hand the lease over to another person. This is called ‘assigning’ a lease. For example, half way through a 12 month lease, the tenant finds someone to move into the property and signs over the lease agreement to the new tenant for the remaining six months.
Consent to sublet or assign a lease
Tenants must get written permission from the landlord before they sublet or assign a lease. It is a breach of the agreement if they don’t have consent. A breach notice can be served within 21 days of a landlord becoming aware of subletting or assigning a lease.
A landlord must have a good reason to refuse permission to sublet. They cannot write into an agreement that subletting isn’t allowed. A tenant can apply to the South Australian Civil and Administrative Tribunal to get permission if they feel the landlord is refusing without a good reason.
The landlord can ask the tenant to pay reasonable costs for subletting or assigning a lease – eg agent related costs.
Contact Consumer and Business Services if you have questions about your rights and responsibilities with lease agreements.