THE ACT is the only jurisdiction in Australia that allows landlords to “contract out” of their legal obligations, according to a new report by the tenant advocacy group, Better Renting.
The report published today, (June 15) claims that a unique process in the ACT allows landlords and agents to add unfair and legally questionable terms to tenancy agreements that many tenants feel they have no option but to accept under pressure of losing a lease.
The report found some of these terms included inspections within 10 hours notice, tenants being unable to have friends stay overnight, and standard operating hours for ducted heating during winter being limited to six hours a day at set temperatures.
One tenant, Emma Collins, said she had no choice but to sign four extra pages given to her by her agency which included 38 of these additional terms.
“I was only presented with the document of additional terms when I turned up to sign the lease,” said Emma.
“At that point I’d arranged to have movers and a truck and was moving out of my existing home so I definitely felt like I needed to sign or they probably wouldn’t have me.”
In the ACT, the Residential Tenancies Act 1997 (RTA) details standard contractual terms that cover all residential tenancies.
However, additional terms inconsistent with those set out in the Act may be added to an agreement if applied for and subsequently endorsed by the The ACT Civil and Administrative Tribunal (ACAT).
Although the application form must be signed by both parties, the report says many tenants felt pressured into signing the form at risk of losing the tenancy and the landlord or agent moving to the next applicant.
“They're never presented as a request or a negotiation, it's more like a direction,” said Emma.
"My current tenancy is one of the worst I've had. From the get-go it's been very critical. All the extra terms are confusing, and it makes me wonder if I've got fewer rights. It also makes me feel untrusted, and like I'm a lesser person."
Given that other jurisdictions in Australia, such as NSW and Victoria, have lists of prohibited additional terms, the report recommends the ACT government establish stricter laws which better protect the rights of tenants.
“The ACT government should introduce a prescribed tenancy agreement and establish penalties for agents or landlords who use inconsistent terms or mislead renters about their rights,” the report reads.
However, according to an ACT government spokesperson, the provision provides important flexibility in certain circumstances.
“Some crisis accommodation providers sometimes use [additional], endorsed terms to effectively manage a tenancy agreement in the context of the provision of emergency accommodation,” said the spokesperson.
“If a tenant is unsure about a proposed inconsistent term, then they are also able to obtain legal advice about the term before signing the agreement.”
The spokesperson said the government produces a Renting Book, a guide to support tenants in understanding tenancy laws, including information in relation to inconsistent terms.
But according to the report many tenants were unaware of the existence of the Renting Book, despite a requirement under the RTA that tenants receive a copy of the publication on signing their lease.
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