Extra terms and standard leases – what terms are enforceable?

The 100 standard tenancy terms in the Standard Lease apply to every tenancy in the ACT, even if you have never seen them before, or you don’t have a written agreement, or you have a written agreement that crosses some out or says they don’t apply. 

Sometimes landlords and tenants agree to different terms or extra terms, either in the lease or verbally.  These different terms may not be enforceable, even though you have signed them or agreed to them.

If an extra term is consistent with the standard lease it is enforceable.  However, if a term is inconsistent with the standard lease, it is void and unenforceable unless it had been endorsed by the Tribunal for your tenancy (section 9(1) of the Residential Tenancies Act). 

In summary:

  • Consistent terms are enforceable.
  • Inconsistent terms that have been endorsed are enforceable.
  • Inconsistent terms that haven’t been endorsed are not enforceable.

Is the term endorsed?

  • For a term to be endorsed, you have to sign an Application for Endorsement form which asks the ACT Civil and Administrative Tribunal to endorse the inconsistent terms.  If the Tribunal has endorsed the term before, they will probably endorse it for you.  They will notify the real estate agent if it has been endorsed, but generally won’t tell you.  You can call the Tribunal on 6207 1740 and ask whether any inconsistent terms have been endorsed for your tenancy.
  • The Tribunal can endorse a term which is inconsistent with the standard lease.  However, the Tribunal cannot endorse a term that is inconsistent with the Residential Tenancies Act.  A term that is inconsistent with the Act is always void (section 9(2)).

What is an inconsistent term?

A term is inconsistent with the standard terms if it imposes extra obligations or restrictions on you compared to the standard terms. 

However there are 2 inconsistent terms set out in section 8 of the Act that do not need to be endorsed:

  • The posting clause; and
  • The fee for breaking a lease clause (a break fee).

It is also important to note that Standard term 53 says:

Unless otherwise agreed in writing, the tenant has exclusive possession of the premises, as described in the agreement, from the date of commencement of the tenancy agreement provided for in the agreement. 

The Tribunal has interpreted this clause to mean that a lot of extra terms are consistent with your lease.  They say that, if an extra term limits your right to exclusive possession, it is consistent with clause 53 and is enforceable.  The Tribunal has held that clauses which prohibit pets or smoking are agreed restrictions on your right to exclusive possession, so are consistent with clause 53 and don’t need to be endorsed.  This has not been tested.  (There have been amendments to the ACT in relation to pets.  These will either take effect on 1 November 2019 or earlier if the ACT Government announces a date)

Avoid making false or misleading statements:

You should still be careful what you say or agree to before you start a tenancy.  If the landlord discovers and can show that you made a false or misleading statement which induced them to enter into the tenancy with you, they can apply to the Tribunal and ask the Tribunal to end your tenancy under section 52 of the Act.

Examples of extra terms:

  • You signed a term that says you have to give 4 weeks’ notice to break the lease. 

->Not enforceable.  Under the Act, the tenancy ends when you vacate in accordance with your notice, and it doesn’t require you to give any particular amount of notice.  The term you signed is inconsistent with the Act, and therefore isn’t enforceable.

  • You signed a term that you would pay for 1/3 of the electricity usage, but there is no separate meter between the flat you rent and the house that the landlord lives in, and you didn’t sign an application for the term to be endorsed. 

-> Not enforceable.  This term is inconsistent with standard term 42(c), which says that the landlord is responsible for services where there is no separate metering device.  The term you signed is inconsistent with the standard terms and it wasn’t endorsed, so it isn’t enforceable.

  • You signed the electricity term above, but you signed an application for it to be endorsed, and you called the Tribunal and they said it was endorsed for your tenancy. 

-> Enforceable.  The term you signed is inconsistent, but the Tribunal endorsed it for your tenancy, so it is enforceable.

  • You have no written lease, but you agreed with the landlord that you would have an ongoing tenancy which either of you could end by giving 2 weeks notice.

-> Not enforceable.  Because you have no end date or agreed amount of time that you will stay, you are in a periodic tenancy.  In a periodic tenancy, standard term 88 says that if the tenant wants to move out, they have to give 3 weeks notice.  Standard term 94 says that if the landlord wants the tenant to move out for no reason they have to give you 26 weeks notice (see Tenancy Factsheet: Eviction in the ACT).  The term you agreed to is inconsistent with the standard terms, so it isn’t enforceable.

 

Reviewed: 2/11/2018

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