The Residential Tenancies (Miscellaneous) Amendment Act 2023 (SA) and associated regulations came into force on 1 July 2024. These brought about a number of changes to the law in relation to tenancies. For more information, please refer to Consumer and Business Services, SA Rental reform update July 2024. This section of the handbook has now been updated to reflect these changes.
This section is concerned with renting a home and other types of accommodation covered by the Residential Tenancies Act 1995 (SA), and the relationship between landlords and tenants.
The Residential Tenancies Act 1995 (SA) applies to most residential tenancy agreements.
Not all kinds of tenancies are covered by this Act, for example, caravan park tenants are covered by the Residential Parks Act 2007 (SA), and boarders and lodgers are still regulated by the common law and certain other statutes.
In addition, the rights and obligations of members of a housing co-operative (whether registered or not) differ slightly from those of other tenants. For more information, please refer to Public Housing.
The following agreements are not covered by the Residential Tenancies Act 1995 (SA) [s 5]:
Agreements where the tenant is a party to a contract for the sale or purchase of the premises that confers a right to occupy the premises for a period of 28 days or less are now covered by the Residential Tenancies Act 1995 (SA). Where the agreement is for a period of more than 28 days the Act does not apply.
For further tenancy information see The SA Gov website regarding Renting. The website also has information on renting explained in various languages.
A residential tenancy agreement is formed when a person (the landlord) grants another person (the tenant) a legal right to occupy, whether alone or with others, residential premises in return for rent. An agreement may be in writing, verbal or even implied.
To be a residential tenancy agreement, an agreement must be in relation to residential premises rented for the purpose of residence. An agreement to rent commercial premises (such as a shop) cannot be a residential tenancy agreement. An agreement to rent residential premises that are part of commercial premises or are situated on land rented for commercial or agricultural purposes is not a residential tenancy agreement, unless the occupant of the residential premises is not the tenant under the commercial tenancy (in other words, they are rather a sub-tenant).
For a tenancy agreement to come under the Residential Tenancies Act 1995 (SA), the tenant does not have to have sole possession of the premises. For example, where several people rent a house, sharing facilities such as kitchens, bathrooms and living areas but with a room each, there may be a residential tenancy agreement in respect of each individual tenant or as joint tenants. It is also not necessary that the whole of the premises be occupied by the tenant - the agreement can specify that part of the premises (such as a shed or a room) be kept for the use of the landlord. A residential tenancy agreement may also be made in relation to a granny flat.
When entering a residential tenancy agreement a landlord must ensure they provide their name and postal or email address at the time of entering a lease [s 48]. Where an agent is acting for the landlord, their name, telephone number and postal or email address must also be provided [Residential Tenancies Act 1995 (SA) s 48].
Verbal or implied agreements
As stated above, a residential tenancy agreement need not be in writing - it can be verbal or there might not be any express agreement at all. Even if not in writing, certain terms are included under the Residential Tenancies Act 1995 (SA) (see Terms of the agreement).
When a person:
this is likely to be an implied residential tenancy agreement. Such an agreement is just as valid and binding as a written or specific verbal agreement.
Written agreements
A written residential tenancy agreement (also known as a lease) sets out the names of the parties, the premises to be rented, the rent, when and where the rent is to be paid, how long the agreement is to last and any other conditions.
Under the Residential Tenancies Act 1995 (SA), no matter who asks for a written agreement to be prepared, the landlord must pay the cost of its preparation [s 50]. At the time the agreement is signed the landlord must give a copy to the tenant. If the landlord has not signed the agreement at this time, the landlord must deliver a properly executed copy to the tenant within 21 days or as soon as practicable after that time [s 49(6)].
If the parties would like a written agreement they can make one up themselves or obtain a standard form one free of charge created by Consumer and Business Services via the SA Gov- Lease agreements.
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’.
A fixed term tenancy exists where the parties agree on a single, specific length of tenancy - usually for 6 months or one year, although it can be for any period as long as the period is fixed.
If the term is for 90 days or less, it would be taken to be a periodic tenancy unless the landlord can show that the tenant genuinely wanted and requested that the tenancy end at the end of the short fixed term, or the landlord gave the tenant a written warning and the tenant signed a statement in the form required by the regulations [Residential Tenancies Act 1995 (SA) s 4 and Residential Tenancies (Miscellaneous) Regulations 2010 (SA) reg 5 and sch 1 (Form 1)].
If a tenant wants to leave premises before the end of a fixed term it is always worth discussing this with the landlord as it may end by agreement between the parties.
Under the Residential Tenancies Act 1995 (SA) a tenant generally cannot give notice to end a fixed term agreement early, except where:
Notice by either party of an intention not to continue with a tenancy at the end of a fixed term can be provided under section 83A (for landlords) or section 86A (for tenants).
From 1 July 2024, a landlord must have a prescribed reason to terminate at the end of a fixed term. A landlord can no longer terminate simply because the fixed term has expired.
If a fixed term agreement has not terminated before or at the end of the fixed term, the agreement continues as a periodic tenancy agreement. The tenancy period will be determined by the interval between rental payment times under the agreement (e.g. fortnightly, monthly). A periodic tenancy is for an indefinite recurring period without a fixed term. Many periodic tenancies are verbal agreements, however, a periodic tenancy can be written, and standard form agreements are available online on the SA Gov Website.
For more information about ending a tenancy (as a tenant or landlord, and for various types of tenancies), please refer to Terminating a tenancy agreement.
Many tenants of a house or flat have other people living in the premises, often with no express agreement between them as to the terms on which the others remain, except for the amount of their contributions to rent and other expenses. Whether they are joint tenants, sub-tenants or merely boarders or lodgers of the tenant depends on the circumstances.
If 2 or more tenants enter into a tenancy agreement together they are joint tenants and are jointly and severally (separately) liable for the obligations of the tenancy. This means that any one of them can be liable for the full amount of the rent and the full cost of any compensation payable to the landlord in respect of a breach of the agreement. The landlord can bring an action against one or all of the tenants.
Where liability is joint and several, the fact that one person has not caused the loss is not a defence. Where disputes arise between joint tenants, the Residential Tenancies Act 1995 (SA) does not apply and SACAT has no jurisdiction.
Disputes such as payment of expenses or the repayment of bond money must be sorted out between the co-tenants and if necessary can be resolved using mediation or alternatively in the Magistrates Court. If a bond is lodged in several names, SACAT will generally pay it out in equal portions.
Domestic violence
There is an exception to the above in cases of domestic violence. If only one tenant was responsible for the damage and there is an intervention order in place against them for the protection of the co-tenant, or where it is satisfied that there has been domestic abuse, SACAT can make a determination that a co-tenant is not liable [s 89A(11)]. Similarly an order can be made for repayment of any outstanding bond money (if any exists) to the tenant not responsible for the damage [s 89A(12)]. For more information, please refer to Intervention orders and tenancy agreements.
Every tenant is entitled to sublet or assign a tenancy, unless the landlord has been exempt from the provision of the Residential Tenancies Act 1995 (SA) [s 74]. An exemption applies where the landlord is a registered community housing organisation [s 74(4)].
A tenant may only sublet or assign the tenancy with the landlord's written consent, but a landlord's consent cannot be unreasonably withheld [s 74(1)-(2)]. It would be unreasonable to withhold consent for a discriminatory reason under the Equal Opportunity Act 1984 (SA) [s 74(3)].
A landlord cannot demand or receive a fee or payment for giving consent to the assignment or sub-letting of a lease. To do so would be an offence for which the maximum penalty is $20,000 (expiation fee $1,200).
Assigning or subletting all or part of any premises without the landlord’s consent is invalid unless the South Australian Civil and Administrative Tribunal determines that consent is not required [s 74(5)]. If a tenant believes a landlord has unreasonably withheld consent to assign or sublet a premises, they can apply to SACAT for a determination that consent is not required [s 74A].
The relationship of head tenant (who enters into the original tenancy agreement with the landlord) and sub-tenant (who enters into a tenancy agreement with the head tenant) is, in essence, the same as that of landlord and tenant. The sub-tenant pays rent to the head tenant for the right to exclusive occupation of part or all of the premises for which the head tenant has been granted a similar right by the landlord. A sub-tenancy must be for at least one day less than the head tenant's own term, otherwise it is regarded as an assignment of the tenancy agreement.
It is important to remember that under the original tenancy agreement, and for as long as the sub-tenancy or assignment lasts, the head tenant is responsible and liable to the landlord for the rent and the condition of the premises. The sub-tenant is responsible only to the head tenant and a sub-tenancy agreement automatically terminates on the termination of the main tenancy agreement. If a sub-tenant damages the property the landlord will have an action against the head tenant or assignor, who can then take action against the sub-tenant for rent owing or for the damage to the premises for which the landlord has a claim.
A boarder or lodger is a licensee who is merely licensed to occupy part of premises for consideration. If a 'landlord' retains control of the building the occupier will be a lodger. Boarders are usually provided with services in addition to accommodation, such as meals, washing and cleaning. Usually a boarder or lodger has no exclusive legal right to possess the occupied area, although this may not always be so. Generally, the owner retains control of the premises, with the lodger or boarder having restricted rights. In either case a boarder or a lodger is not afforded the protection of the Residential Tenancies Act 1995 (SA) [s 5(b)]. Similarly, lodgers of a tenant have no rights against a landlord.
Problems often arise where a landowner shares premises with another. The few court cases that have dealt with the topic, such as the South Australian Supreme Court case of Noblett v Manley (1952) SASR 155, have emphasised the element of control. While there is no presumption that a person sharing a house with the owner is not a tenant, it may be difficult to establish a tenancy without proof of exclusive occupation over a long period. To determine whether a lease or licence situation has arisen it is important to look at the intention of the parties and whether there is evidence of control over the property.
A written agreement between the parties is not essential but may help avoid and resolve any disputes.
The protection given by the law to a licensee is much less than that given to a tenant. The same may be said for the owner or licensor as opposed to a landlord. For example, an owner having difficulty recovering payment from a boarder or lodger or terminating an agreement and evicting a boarder or lodger would need to take court action. Most disputes would be heard in the Magistrates Court, depending on the nature of the claim. These cases are likely to be decided according to common law, where the court may consider the intention of the parties, their agreement (verbal or written), the particulars of their arrangement, evidence of control over the property and so forth. A boarder or lodger can rarely take court action to stop the owner or licensor from terminating the agreement and evicting them. In most cases, the only remedy is an action for damages, that is, compensation for breaching the licence agreement.
The distinction between boarders and lodgers and tenants is often difficult and legal advice should be sought.
This section sets out some things to consider when seeking to become a tenant.
When a tenancy agreement is entered into the landlord must also provide the tenant with an information brochure [Residential Tenancies Act 1995 (SA) s 49(3)]. A landlord who fails to provide this information may be fined $25,000 (expiation fee $1,200).
This brochure explains the general rights and obligations of landlords and tenants under residential tenancy agreements in South Australia and also provides the names and addresses of agencies that can be approached for further information or assistance.
This information booklet, inspection sheets and other forms can be obtained free of charge from the SA Gov- Starting a Tenancy Website.
The following easy read guide is also available Renting in SA: Know Your Rights (PDF, 1.3 MB).
A number of more detailed tenancy guides in English and other languages are also available.
Offering premises for rent for fixed amount
A landlord or their agent must not advertise or otherwise offer premises for rent under a residential tenancy agreement unless the rent is advertised or offered as a fixed amount [Residential Tenancies Act 1995 (SA) s 52A(1)]. However, this does not prevent a landlord from placing a sign at or near the physical premises that offers the premises for rent and does not state an amount of rent for the premises [s 52A(2)]. The maximum penalty for an offence against this provision is a fine of $20,000, but the offence may be expiated.
A landlord or their agent must not solicit or otherwise invite an offer of an amount of rent under a residential tenancy agreement that is higher than the advertised amount of rent for the premises [s 52A(3)]. The maximum penalty for an offence against this provision is a fine of $20,000, but this offence may be expiated.
A person acting in trade or commerce (other than an agent of a landlord) must not provide an assessment or rating of suitability of a prospective tenant if the basis of the rating or suitability relates to the fact that the amount of rent the prospective tenant is willing to pay is higher than the fixed amount, or to the fact of how much the prospective tenant is willing to pay where the amount of rent is not yet fixed [s 52B]. The maximum penalty for an offence against this provision is a fine of $20,000.
Prospective sale of premises
A landlord or their agent must not advertise a premises for rent without stating if they intend to sell the premises within 3 months of entering into the residential tenancy agreement [s 47B and Residential Tenancies Regulations 2010 (SA) reg 6B]. The maximum penalty for an offence against this provision is a fine of $35,000, but the offence may be expiated.
Prospective tenant information
From 1 July 2024, there are new protections for both landlords and tenants in relation to the tenant information.
A landlord or their agent must not request prescribed information from a prospective tenant [s 47B(1) and reg 6A(1)]. They may, however, require a prospective tenant to provide the application form, 2 documents verifying their identity, 2 documents relating to their ability to pay rent and 2 documents relating to their suitability as a tenant [reg 6A(5)]. A prospective tenant must not give a landlord or agent a false document in connection with their application to enter into a tenancy agreement [s 47B(2a)]. The maximum penalty for an offence against this provision is a fine of $20,000, but the offence may be expiated. A tenant who provides false information about their identity or occupation may also be fined up to $20,000 [s 51].
Any person who holds prospective tenant information must take steps to protect the information from misuse or unauthorised access or disclosure [s 76B(1)]. The information must be destroyed within 30 days of entering the tenancy, unless the tenant consents to it being held for 6 months [s 76B(2)].
A person must not, except in prescribed circumstances, require or receive from a prospective tenant any payment for an assessment or rating of suitability. The maximum penalty for an offence against this provision is a fine of $20,000, but this offence may be expiated.
Residential tenancy databases are privately owned commercial databases containing information about individual tenants’ rental histories. These databases are subject to the provisions in Part 5A of the Residential Tenancies Act 1995 (SA).
Because personal information held on such databases can have serious consequences in determining whether a person can secure rental accommodation, they are now regulated to ensure information is accurate and complete.
The provisions also apply to interstate operators and a breach of them is an offence under the Residential Tenancies Act 1995 (SA) [s 99C].
A landlord (or their agent if they have one) must give written notice advising a tenant of the name of each residential tenancy database they usually use for assessing tenants. Prospective tenants must also be provided with contact details for the database operator. Failure to provide this information is an offence under section 99D of the Act with a maximum penalty of $35,000 (expiation fee: $2,000).
In addition, a landlord (or their agent) must provide an applicant with written notice of the actual database(s) they use within 7 days of accessing the database(s). They must provide the name of the database(s) in a written notice stating:
[Residential Tenancies Act 1995 (SA) s 99E]
There are limitations on when personal information can be listed about a person. Information can only be listed where [s 99F]:
The personal information recorded must relate only to the breach and be accurate, complete and unambiguous [s 99F(1)(d)].
Landlords and agents are prohibited from listing personal information in a residential tenancy database unless they have given the person a copy of the information (without charge) or taken reasonable steps to disclose the information to the person [s 99G]. They must also provide them with 14 days to review the information and make submissions. A maximum penalty of $35,000 (expiation fee $2,000) applies to any breach of these provisions. If, however, the landlord or agent cannot locate the person after making reasonable enquiries then the landlord or agent will not be in breach [s 99G(2)].
Landlords and agents have an obligation to ensure information is accurate, complete, current and unambiguous [s 99H].
Landlords and agents who list personal information about a person in a residential tenancy agreement must, if requested in writing by the person, give them a copy of the information within 14 days after the request is made [99J(1)]. The same provision applies to a database operator if they receive a written request for a copy [s 99J(2)]. From 1 July 2024, landlords, agents and database operators must not charge a fee for giving this personal information [s 99J(3)]. Maximum penalty $35,000 (expiation fee $2,000).
As a general rule, personal information must not be kept for more than 3 years [s 99K].
The South Australian Civil and Administrative Tribunal may make orders to ensure compliance with these provisions [s 99L].
Terminations based on domestic violence
Where a breach of a residential tenancy agreement has occurred as a consequence of domestic violence SACAT can make an order prohibiting an applicant's personal information from being published in a residential tenancy database. When making such an order SACAT must be satisfied either that the applicant did not cause the breach, or that the breach was the result of an act of domestic abuse against the applicant [s 89A(4)(d)].
The Equal Opportunity Act 1984 (SA) makes it unlawful to discriminate against anyone because of their sex, sexual orientation, gender identity or intersex status [s 40]; race [s 62]; age [s 85L]; disability [s 66]; marital or domestic partnership status, identity of spouse or domestic partner, pregnancy or caring responsibilities [s 85ZH] while they are trying to obtain accommodation. This includes renting flats, houses or rooms and staying in hotels, motels or caravan parks. For example, it would be illegal for a landlord to refuse to accept an application for rental from a single pregnant woman because there was no man around to help.
Complaints can be made to the Equal Opportunity Commission. For more information, please refer to Discrimination.
The penalty under the Residential Tenancies Act 1995 (SA) for refusing to let premises to a person because it is intended that a child will live in the premises is a maximum fine of $ 25,000 [s 52]. This section does not apply if the landlord resides in the premises.
At the time a tenancy agreement is entered into, the landlord must complete and give to the tenant 2 signed copies of an inspection sheet, on which itemised details of the contents and condition of the premises at the beginning of the tenancy are set out [Residential Tenancies Regulations 2010 (SA) reg 4].
The tenant should then go through the premises, preferably with the landlord, and note on the sheet whether or not, in the tenant's opinion, the items are in fact as described by the landlord. This provides a record of the state of the premises at the beginning of the tenancy, and of the tenant's written agreement or objections.
After completing the inspection sheets the tenant should keep one copy and send the other back to the landlord or agent. The inspection sheet is then referenced at the end of the tenancy to see whether any damage has been caused during the tenant's occupation and whether the premises have been left in a reasonably clean condition. If they are to be of any use, it is important that inspection sheets are filled out properly and that a copy is kept by each party.
A landlord can only demand payment of 2 weeks rent in advance and a bond [ss 53 and 54]. Significant penalties, being a fine of $20,000 (or expiation fees of $1,200 to $1,500), may apply for any breach of these provisions. The total amount of the payment in advance can add up to a substantial sum, although help may be obtained from Housing SA, see Financial assistance.
A landlord can legally request payment from a prospective tenant for an option to enter into a residential tenancy agreement. If the prospective tenant goes ahead with the residential tenancy agreement, the landlord must then apply the money received against rent payable under the agreement. If the prospective tenant does not enter into the residential tenancy agreement, the landlord may keep the money received [s 53(2)(a)].
The landlord may also require a tenant to reimburse the landlord for water rates (if separately metered) as well as electricity, gas, telephone, internet and/or subscription television services if these accounts are in the landlord's name [s 53(2)(b) and(c) and reg 7]. With the exception of separately metered water supply charges, a landlord cannot pass on any statutory charges connected with a property (e.g. sewerage, Emergency Services Levy) [s 73]. If the tenant notifies the landlord of excessive water usage charged caused by a fault with the premises, the landlord is liable for part of the excessive charges [s 73B]. Section 73 sets out how permissible rates and charges are to be divided in the absence of agreement. It also stipulated that a tenant is not required to pay rates and charges if the landlord fails to provide a copy of the invoice for them with in 30 days of the issue of the invoice from the supplier [s 73(3)]. From 1 July 2024, a landlord and tenant may enter into an agreement in relation to the costs and charges for the installation of a solar energy system for the premises [s 73A].
If a landlord (or an agent acting for a landlord) invites or requires a tenant or prospective tenant to sign a written residential tenancy agreement, the landlord must bear the costs of its preparation [s 50].
For more information about rent, including increases to rental payments, please also refer to Rights and Obligations, Rent.
The tenant is generally required to pay a bond (also known as security deposit or rental bond). This is paid by the tenant before moving into the house or flat. The bond is calculated by reference to the weekly rent.
From 1 April 2023, where the rent does not exceed $800 per week, the maximum bond is the equivalent of four weeks rent. However, where the weekly rent is more than $800, the maximum bond is the equivalent of six weeks rent [see Residential Tenancies Act 1995 (SA) s 61(3) and Residential Tenancies Regulations 2010 (SA) reg 8]. A landlord who breaches these requirements may be fined up to $25,000 (expiation fee ($1,200) [Residential Tenancies Act 1995 (SA) s 61].
Previously, where the rent did not exceed $250 per week, the maximum bond was the equivalent of four weeks rent and where it was more than $250 per week, the maximum bond was the equivalent of six weeks rent. This still applies to the bond paid or payable under residential tenancy agreements entered into prior to 1 April 2023. In other words, tenants cannot get a bond refund based on the changed maximum bond amounts.
All bonds paid in relation to premises in South Australia must be lodged with, and are held by, the Commissioner for Consumer Affairs [s 62]. They provide security against:
It is the responsibility of the landlord to lodge the security bond with the Commissioner within 2 weeks (registered agents have up to 4 weeks) [see s 62(2) and Residential Tenancies Regulations 2010 (SA) reg 9(1)]. From 1 July 2024, a tenant may themselves lodge their bond with the Commissioner who will then notify the landlord or the landlord's agent of the receipt of the amount, including the date it was received, from whom it was received and the relevant premises [s 62(3)]. If an amount received by way of bond is not within the definition of bond, the Commissioner may refund the amount [s 62(4)].
Once a bond has been lodged a landlord can ask a tenant to increase this bond by giving 60 days notice, but only at 2 yearly intervals and it cannot be increased beyond the ceiling referred to above.
When bond money is paid the landlord or real estate agent must provide a receipt within 48 hours [Residential Tenancies Act 1995 (SA) s 62]. The tenant must also sign a form which the landlord or real estate agent must send with the bond money to the Commissioner. After the Commissioner has received the money and the properly signed form, a bond number and receipt are sent to the tenant. If this number is not received within a reasonable time it is possible that the bond money has not been lodged and Consumer and Business Services should be notified immediately.
There is an online facility called Residential bonds online through which registered agents, landlords and tenants can check the status of their bond.
For more information about the return of the bond, please refer to Finalising a tenancy.
The SA Housing Trust provides financial assistance on a case by case basis for bonds and rent in advance or arrears. The current level of assistance is flexible and is assessed on the basis of an interview with a housing officer. More information is available on the SA Gov - SA Housing Trust website.
The rights and duties of landlords and tenants during the term of a tenancy are set out in this section.
It is an important part of tenancy that the tenant has possession of the premises, just as though they were the owner. This normally means that the tenant can stop anyone from entering the property - including the landlord, the agent and any of their employees. For example, the landlord, or the landlord's family, cannot come on to the property to tend a garden or to pick fruit without the tenant's consent and they certainly cannot insist on inspecting the premises at a moment's notice.
Under section 72 of the Residential Tenancies Act 1995 (SA), the landlord or the landlord's agent has the right to enter the premises in the following circumstances only.
In the case of an emergency [s 72(1)(a)]
A landlord may enter any time and without giving notice. However, in such cases the landlord must be able to establish that their actions were justified, equitable and lawful. Generally, only danger to the property or to a person in the vicinity will satisfy the definition of an emergency.
To inspect the premises [s 72(1)(c)]*
From 1 July 2024, this may be not more than 4 times in a year (unless SACAT orders otherwise) – after giving at least 7 days (but not more than 28 days) written notice of the purpose and date of entry. A period of up to 2 hours within which the proposed entry is to occur (which must be within normal hours*) must also be specified in the notice. Previously this could be once each 4 weeks with 7-14 days notice.
To collect rent [s 72(1)(b)]
Not more than once a week and only at a time previously arranged with the tenant. This right exists only if the tenant has been offered a reasonable alternative method of payment of rent that does not involve attendance by the landlord but the tenant has refused the alternative.
To carry out non-emergency repairs or necessary maintenance [s 71(1)(e)]
At a time within normal hours** after having given the tenant at least 48 hours notice. The requirement for 48 hours may be waived by the tenant at their own request (i.e. not under direction by the landlord).
To carry out the requirements of a housing assessment or improvement order [s 72(1)(ea)]
At a reasonable time after having given the tenant at least 48 hours notice.
To carry out garden maintenance [s 72(1)(d)]
To inspect premises in accordance with an order of SACAT [s 72(1)(ca)]*
The order of SACAT is to enable inspection of premises under section 89A(4)(b) before a new tenancy agreement is entered into following termination due to domestic abuse.
To show premises to prospective tenants [s 72(1)(f)]*
During the period of 28 days before the end of the existing tenancy agreement and only after giving reasonable notice for a reasonable number of occasions at times occurring within normal hours*. The tenant may request attendance before the 28 day period commences if they choose (i.e. not as initiated by the landlord).
To show premises to prospective purchasers [s 71(1)(g)]*
On not more than 2 occasions in any 7 day period (unless the tenant agrees otherwise) but only at a time previously arranged with the agreement of the tenant (who must not reasonably refuse to agree) or, if no agreement can be reached, at a time within normal hours* once the tenant has been given reasonable notice.
To determine if a breach of section 80 (breach of agreement) has been remedied [s 72(1)(h)]*
Only in accordance with a written notice in the prescribed form (see Form 1A in Schedule 1 of the Residential Tenancies Regulations 2010 (SA)) given to the tenant no less than 7 days and no more than 14 days before the proposed day of entry. The notice must state the proposed date and time of entry and this must be within normal hours*.
For any other genuine purpose [s 72(1)(i)]
In accordance with written notice given no less than 7 days and no more than 14 days before the proposed date of entry stating the purpose of the proposed entry and date and time (which must be within normal hours*); otherwise, with the consent of the tenant.
* From 1 July 2024, the regulations may prescribe requirements in relation to the production, distribution and publication of documents or records in connection with the relevant entry onto the premises. Under regulation 13(1) a photo or video recording capturing the tenant's personal possessions must not be produced during entry unless the landlord or their agent has given the tenant 7 days prior notice, and the tenant has provided their written consent. Similarly a photo or video record produced during entry must not be distributed or published to the public unless the landlord or their agent has given the tenant 7 days prior notice of the production [reg 13(2)].
** Normal hours is defined as between 8am and 8pm on any day other than a Sunday or a public holiday.
The landlord must:
* From 1 July 2024, a protected person under an intervention order who is a party to the tenancy or who has been living in the premises as their primary place of residence may alter any lock or security device of the premises [s 66A(1)]. The protected person must give the landlord or agent a key and a copy of their intervention order as soon as possible [s 66A(3)]. For more information, please refer to CBS' Domestic abuse - Protections for tenants (PDF, 304 KB).
In addition, if a tenant in other circumstances believes a landlord is unreasonably withholding consent to alter, remove or add a lock or security device to the premises may apply to SACAT for a determination that consent is not required [s 66B].
The tenant must:
See Residential Tenancies Act 1995 (SA) ss 69-71.
*An exception to the tenant’s responsibility to compensate for damage occurs where a tenant unintentionally causes damage to the premises or ancillary property as a result of the use of a domestic facility requiring instruction where the landlord has failed to instruct the tenant as to its proper use [ss 48(2), 69(3a)]. A tenant who intentionally causes serious damage commits an offence and may be fined up to $25,000 [Residential Tenancies Act 1995 (SA) s 69(2)].
Alterations and additions
Unless it is allowed by the tenancy agreement, the tenant may not make any alteration or addition to the premises without the landlord's written consent [s 70 (1)]. However, a landlord must not unreasonable withhold consent to an alteration or addition to the premises that:
A landlord may refuse consent for a number of reasons, including if a valid notice of termination has been given to the tenant, if the alteration or addition would significantly change the premises or it would be difficult to return the premises to their original condition [s 70(1ab)].
Unless otherwise agreed between the landlord and tenant, the tenant must cover the cost of any alteration and addition and return the premises to their original condition at the end of the tenancy [s 70(2a)]. This is regardless of whether the alteration or addition was made with the landlord's consent or not [s 70(2b)].
A tenant can remove any fixture that was fixed by them during the tenancy, as long as the removal does not cause irreparable damage [s 70(2)]. If damage is caused by removing the fixture the tenant must notify the landlord and either repair the damage or compensate the landlord – the choice is the landlord's [s 70(3)].
A tenant must not intentionally or negligently cause or permit any damage to the property and is responsible for any damage caused intentionally or negligently [Residential Tenancies Act 1995 (SA) s 69]. This includes damage caused by guests unless the tenant can show that they could not reasonably have prevented the damage. Where the damage was caused negligently or intentionally by a guest, a tenant wanting to deny responsibility should report the matter to the police as a criminal offence.
The tenant is not responsible for damage caused by a genuine accident or through normal wear and tear, nor are they responsible for damage caused unintentionally through use of a domestic appliance requiring instruction for which the landlord has failed to provide instructions [ss 69(3a), 48(2)].
The landlord must ensure that a property is in a reasonable state of repair, although this does not apply to a property that is subject to an order under the Housing Improvement Act 2016 (SA) [See Residential Tenancies Act 1995 (SA) ss 67, 68].
The landlord is not in breach of their obligation to repair unless they have notice of the defect and fail to act with reasonable diligence to have it repaired [s 68(2)]. If something needs repair, the tenant should notify the landlord as soon as possible [Residential Tenancies Act 1995 (SA) s 69(1)].
If:
then the tenant can arrange for the repairs to be done and recover the cost from the landlord [s 68(3)]. The repairs must be carried out by a suitably licensed person, who should provide a report as to the apparent cause of the disrepair [s 68(3)(e)]. The tenant can also claim, by application to SACAT, reasonable compensation for any damage they have suffered as a result of the failure to repair [s 68(5)]. However, if the loss could have been mitigated by taking reasonable steps, then compensation will be reduced for failure to do so [s 68(3)(d)].
Consumer and Business Services have a Request for repairs form (PDF, 263 KB) which a tenant can send to their landlord/agent.
Minimum housing standards
From 1 July 2024 a landlord must ensure that premises comply with the prescribed minimum housing standards under the Housing Improvement Act 2016 (SA) at the beginning of a tenancy [s 67A]. The prescribed minimum standards are set out tin the Housing Improvement Regulations 2017 (SA). If premises do not comply, the tenant may require the landlord to carry out urgent repairs to ensure that they comply with the standards. A tenant may also terminate a tenancy if the premises do not comply with these minimum standards [s 85B]. For more information, please refer to Tenant terminating a tenancy.
At the time a tenancy agreement is entered into the parties should arrange when and where the rent is to be paid, and should keep to that arrangement throughout the tenancy unless new arrangements are made.
Significant penalties may apply to non-compliance with the below requirements.
Payment arrangements
A landlord must provide a tenant with at least one means of payment that is electronic and does not involve the collection of rent by a third party who charges a fee for collection [Residential Tenancies Act 1995 (SA) s 56A (1)]. No fee may be charged for the payment of collection of rent [s 56A(2)].
Payment records
A landlord must keep the following records of any payments received:
See Residential Tenancies Act 1995 (SA) s 57(1).
A landlord or real estate agent must give a statement of payment information (with the details as listed in the paragraph above) within 7 days of a written request made by a tenant [s 58(1)]. If payment is made by means other than by deposit in a bank, building society or credit union account, the tenant must be given a receipt within 48 hours [Residential Tenancies Act 1995 (SA) s 58(2)].
Payment in advance
A landlord or agent cannot require a tenant to pay rent more than 2 weeks in advance. The prohibition is against the landlord or agent requiring such an advance payment so, if a tenant voluntarily chooses to pay rent for more than two weeks in advance, the landlord may accept the payment [s 54].
Rent increases
The rent cannot be increased under a fixed term agreement unless the agreement specifically allows for an increase [s 55(2)(b)].
Whether a tenancy agreement is periodic or for a fixed term, the rent cannot be increased during the first 12 months of the tenancy. In addition, any later increase cannot be within 12 months of a previous increase [s 55(2)(c)]. A series of agreements between the same parties (on the same or different terms) is treated as a single agreement unless at least 12 months have elapsed since the rent was last fixed or increased [s 55(7)].
Different rules apply where a rent control notice ceases to be in force or the landlord is a community housing provider [s 55(c)((i)-(iii)].
When rent is to be increased, the tenant must be given at least 60 days written notice, setting out the amount of the increase and the day on which it is to take effect [s 55(2)(c)]. There is no limit to the amount by which rent can be increased. A tenant who thinks that rent is excessive can apply to the South Australian Civil and Administrative Tribunal for an order to that effect [s 56(1)]. If the application is based on an excessive increase, the application must be made within 90 days after the notice of increased rent is given [s 56(1a)]. Among other things, from 1 July 2024, SACAT will consider whether the increase is disproportionate considering the amount of rent payable [s 56(2)(fc)]. If SACAT finds that the rent is excessive, it can fix a maximum rent for up to one year [s 56(3)].
The rent payable under a residential tenancy agreement may be increased at any time by mutual agreement between a landlord and tenant as long as it is not within the first 12 months of the tenancy or within 12 months of a previous increase [ss 55(2a) and (2b)].
Unfit premises
See Housing Improvement Orders.
From 1 July 2024, a tenant may keep a pet at their rental premises with the landlord's approval [Residential Tenancies Act 1995 (SA) s 66C(1)]. A landlord may only refuse a request to keep a pet on prescribed grounds [s 66C(4)].
Prescribed grounds
A landlord may only refuse a tenant's request to keep a pet at their rental property on the basis that [s 66D]:
Reasonable conditions
A landlord may approve the tenant's request unconditionally or subject to reasonable conditions [s 66C(4)]. Reasonable conditions should be set out in writing and based on the type of pet and the nature of the premises [s 66C(8)] and may include [s 66C(9)]:
A landlord may not impose a condition that would require a tenant to [s 66C(10)]:
Applications and appeals
A tenant may seek approval to keep a pet when applying for a residential tenancy or at any time during a residential tenancy by giving the landlord a completed Application for approval to keep a pet on rental premises [s 66C(2)].
The landlord or their agent must, within 14 days after receiving the request, approve the request, approve the request with reasonable conditions, or refuse the request on prescribed grounds [s 66C(4)]. If the landlord refuses the application, they must set out in writing the prescribed grounds for refusal and why they believe they apply.
A tenant refused approval to keep a pet at their rental premises may apply to SACAT for a review [s 66E].
Exempt animals
The above rules only apply to pets. A tenant is entitled to keep an exempt animal at their rental premises with or without their landlord's approval [s 66C(1)]. An exempt animal means an assistance animal or a therapeutic animal as defined in the Equal Opportunity Act 1984 (SA)].
For more information about renting with pets, read Consumer and Business Services' Renting with pets: Rights and responsibilities (PDF, 280 KB).
For other information about pet ownership, you may wish to read our section on Animals which includes information about dog and cat ownership, registration and microchipping.
There are various ways a tenancy agreement can end.
A landlord or tenant may seek to terminate (end) an agreement in certain circumstances. An 'interested party' such as a tenant's neighbour may also seek to terminate a tenancy if the tenant's conduct is unacceptable. For more information, please refer to Unacceptable conduct by a tenant.
At the end of an agreement, there are certain steps that should be taken to finalise the relationship between landlord and tenant.
In some instances, specific notices or forms should be served on the other party as part of the process of termination. For copies of the relevant forms, visit the SA Gov - Forms and Factsheets for Private Rental Tenancies website.
For more information about terminating a tenancy, please refer to Consumer and Business Services' Terminating a tenancy guide (PDF, 446 KB).
From 1 July 2024, new provisions in the Residential Tenancies Act 1995 (SA) seek to ensure that a landlord is genuine, and not retaliatory, in their reasons for terminating a tenancy. A tenant may apply to SACAT for a declaration that a landlord's termination notice has no effect or refusing a landlord's application for termination if it is retaliatory in nature [s 90A(1)]. SACAT may find that the notice or application is retaliatory in nature if satisfied that the landlord was partly motivated to terminate because the tenant proposed to enforce a right under the tenancy or apply to SACAT for an order [s 90A(3)].
Where there is a breach by the tenant
A landlord can seek to terminate either a fixed term tenancy or a periodic tenancy by written notice if the tenant breaches the agreement [Residential Tenancies Act 1995 (SA) s 80]. After receiving a notice of termination and before giving vacant possession to the landlord, the tenant may apply to the South Australian Civil and Administrative Tribunal to have a tenancy reinstated if the breach has been remedied or if the tenant does not believe that they have breached the agreement [s 80(4)]. A landlord may also apply to SACAT to terminate a tenancy where the tenant has breached the agreement and the breach is sufficiently serious to justify termination of the tenancy, such as where the breach is not able able to be remedied (fixed) [s 87(1)] or where the tenant has failed to pay rent and there have been repeated breach notices in relation to unpaid rent (i.e. at least 2 previous occasions within the last 12 months) [s 87(1a)].
If the tenant or a domestic associate of a tenant who normally or regularly resides in the premises has been subjected to domestic abuse and the breach (or prescribed reason listed below) was caused by an act of a person subjected them to domestic abuse, then the tenant may apply for an order that the notice of termination is invalid [s 90B(1)]. This application must be made within 30 days of the notice of termination [s 90B(2)].
For more information, please refer to Breach of tenancy.
Where there is drug contamination
A landlord may terminate a tenancy if they become aware that the tenant or another person has engaged in drug related conduct at the premises or property and testing under s 67B has confirmed that the premises or property are contaminated as a result of the conduct [s 80A].
Where the sole tenant dies
A tenancy terminates 30 days after the death of a sole tenant or such earlier time as may be given by notice, agreed, ordered by SACAT or given by vacant possession [s 79B].
Where the premises are destroyed or uninhabitable
A landlord may immediately terminate a tenancy (using Form 10) where the premises or a substantial portion of the premises [s 86B]:
A landlord must provide 60 days notice if the premises have been acquired by a compulsory process.
Where there is a prescribed reason or possession is required
Fixed tenancies - prescribed reason
A tenant who has a tenancy for a fixed term has the advantage of secure tenure of the premises for the period of the term. The tenant can generally only be required to leave before the end of the term if they have breached a term of the lease.
From 1 July 2024, a landlord may only terminate a tenancy at the end of a fixed term for a reason prescribed by the regulations [s 83A an reg 16]. At least 60 days notice (using Form 9) must be given [reg14].
Regulation 16 sets out the following reasons for terminating a tenancy at the end of a fixed term:
If a landlord or their agent terminates a tenancy on a ground prescribed by regulation (demolition, renovation, own or family’s occupation or contract of sale), there are some evidence requirements that apply and they are prohibited from re-letting the premises for use primarily as a residence before the end of a 6 month period [s 91A and reg 19E]. For more information about the evidence that must accompany the notice of termination, please refer to CBS' Evidence requirements for termination (PDF, 145KB).
Periodic tenancies - prescribed reason
From 1 July 2024, a landlord can only end a periodic tenancy for a reason prescribed by the regulations [s 83 and Residential Tenancies Regulations 2010 (SA) reg 15]. At least 90 days notice (using Form 3) must be given [ss 83(1) and (3)].
Regulation 15 sets out the following reasons for terminating a periodic tenancy:
Periodic tenancies - possession required
There are certain specific situations where a landlord can terminate a periodic tenancy (but not a fixed term tenancy) by giving only 60 days notice (using Form 3):
See Residential Tenancies Act 1995 (SA) ss 81(1),(2). A landlord who recovers possession under the above circumstances must provide evidence and must not grant a fresh tenancy without the SACAT's consent within 6 months of recovering possession [s 81(4)]. For more information about the evidence that must accompany the notice of termination, please refer to CBS' Evidence requirements for termination (PDF, 145KB).
A tenant may give up possession of the premises prior to the end of the notice period, and will not be liable for more than 7 days rent following notice of their intention to give up the premises early [s 81(2a)].
Where there is domestic abuse
A landlord can apply to SACAT to terminate a tenancy if there is an intervention order in force against a tenant for the protection of a person who normally resides in the premises or the tenant has committed domestic abuse against a person who normally resides at the premises [s 89A]. However, SACAT may make a range of orders upon this application, including that the landlord enter into a new tenancy with a co-tenant or another person who normally resides at the premises for whose protection an intervention order is in force or against whom domestic abuse was committed. For more information, please refer to Intervention orders and tenancy agreements.
Where there is undue hardship
A landlord can apply to SACAT to end an agreement if the continuation of the residential tenancy agreement would result in undue hardship [Residential Tenancies Act 1995 (SA) s 89]. SACAT may also make an order compensating the tenant for loss and inconvenience resulting, or likely to result, from the early termination of the tenancy.
Order for vacant possession
If a landlord terminates an agreement and the tenant does not leave as required the landlord cannot evict the tenant but can apply to the SACAT for an order of vacant possession of the premises [Residential Tenancies Act 1995 (SA) s 93]. If the SACAT grants the order it is enforced by a bailiff as soon as possible [s 99].
Where there is a breach by the landlord
If a landlord has breached a tenancy agreement and it is possible for the landlord to remedy the breach, the tenant may give the landlord a notice of the breach (using Form 11). If the breach is not remedied within a specified period (at least 7 days) then the tenancy is automatically terminated by force of the notice after the expiration of at least a further 7 days [Residential Tenancies Act 1995 (SA) s 85].
However, section 85 also allows that a landlord may, before the date of termination fixed in the notice or the date the tenant moves out, apply to SACAT for an order refusing termination if the landlord was not in breach or has remedied the breach, or reinstating the tenancy [s 85(2)].
A tenant can apply to SACAT to end a fixed term tenancy or a periodic tenancy where the landlord has committed a serious breach of the agreement [s 88]. Note that a fee usually applies unless you apply for an exemption (available to concession card holders and full time students) or waiver (due to financial hardship).
Where there are repeated breaches by the landlord
A tenant may terminate a tenancy by giving the landlord a notice (using Form 12) where the landlord has breached the tenancy agreement and has already breached the same provision on 2 previous occasions in the last 12 months [s 85AA]. The notice must specify the breach and give at least 7 days notice of termination [s 85AA(2)].
Where the premises do not comply with minimum standards or safety
A tenant may terminate a tenancy by giving the landlord 7 days notice (using Form 14) [s 85B]:
Where the premises are destroyed or uninhabitable
A tenant may immediately terminate a tenancy (using Form 18) where the premises or a substantial portion of the premises [s 86B]:
If the premises are safe to live in, but require repairs, a tenant needs to give the landlord notice of the repairs. For more information, please refer to Repairs.
Where the residential premises are for sale
If, within 2 months of the start of a residential tenancy agreement, the landlord enters into a contract for sale of the premises which was not disclosed when the agreement was signed (as required under section 47A), the tenant may give notice of termination (using Form 13) [s 85A]. If the landlord provides written notice of the contract of sale the tenant must exercise their right to terminate within 2 months after receiving the notice.
Where certain circumstances apply
A tenant may terminate a tenancy by giving the landlord 7 days notice (using Form 14) if the tenant [s 85C]:
Where there is domestic abuse
A tenant may terminate a tenancy by giving the landlord notice (using Form 15) if [s 85D]:
A copy of the intervention order or signed report from an authorised professional must accompany the notice of termination and the notice must specify a termination date [s 85D(2)].
SACAT may also terminate a tenancy due to reasons relating to domestic violence. For more information, please refer to Intervention orders and tenancy agreements.
Where there is undue hardship
A tenant can apply to SACAT to end an agreement if the continuation of the residential tenancy agreement would result in undue hardship [Residential Tenancies Act 1995 (SA) s 89]. SACAT may also make an order compensating the landlord for loss and inconvenience resulting, or likely to result, from the early termination of the tenancy.
Where there is no breach
Periodic tenancies
At any time during a periodic tenancy a tenant can give written notice that they are going to leave the premises (using Form 16). The period of notice must be 21 days or a period equivalent to a single period of the tenancy (whichever is longer). The notice must specify the premises and the date on which the tenant intends to leave. No reason need be given. Even if the tenant does not give notice, the landlord cannot claim any re-letting or advertising costs, although in this case the tenant may for instance, be liable for three weeks rent in lieu of the 21 days notice [Residential Tenancies Act 1995 (SA) ss 86].
Fixed term tenancies
At the end of a fixed term tenancy a tenant can give written notice that they are going to leave the premises (using Form 17). The period of notice must be 28 days [s 86A].
If a fixed term has not expired but the tenant no longer wants to occupy the premises, the tenant should approach the landlord and attempt to come to some arrangement. The landlord might agree to allow the tenant to leave as long as the tenant gives certain notice and pays the re-letting costs, or if the tenant can find someone suitable to take over the remainder of the term of the agreement. If the tenant simply moves out and assumes that the landlord will re-let the premises and so relieve the tenant of liability to pay, the landlord can sue the tenant for the rent due under the tenancy agreement and for other costs.
While a landlord does not have to agree to allow a tenant to leave, at the same time a tenant cannot be forced to stay. If the tenant does leave without coming to some agreement with the landlord (that is, abandons the tenancy), the landlord is entitled to recover certain costs. However, the landlord must mitigate (reduce) the loss caused by the tenant's abandonment by seeking another tenant for the premises as quickly as possible. The tenant's liability to the landlord for abandonment of the tenancy agreement is for rent to the date of re-letting or to the end of the fixed term (whichever is sooner) and all or part of the advertising costs and the re-letting fee. If the landlord does not attempt to re-let the premises the tenant may not be liable for anything.
Where a tenant abandons the property, the landlord may apply to SACAT for an order that the property has been abandoned. SACAT may also order that the tenant pay compensation to the landlord [Residential Tenancies Act 1995 (SA) s 94]. In deciding whether a tenant has abandoned premises SACAT can look at any failure to pay rent or evidence the tenant no longer occupies the premises as a place of residence.
An interested party can apply to the South Australian Civil and Administrative Tribunal to terminate the tenancy [Residential Tenancies Act 1995 (SA) s 90]. The definition of interested party includes:
To justify termination, the tenant's conduct must be causing or permitting:
SACAT has to be satisfied that terminating the tenancy is the appropriate remedy.
A serious breach of a tenancy agreement is grounds for terminating the tenancy – either by notice to the other party or by application to the South Australian Civil and Administrative Tribunal.
Generally terminations by notice are for less serious breaches or where a breach is capable of being remedied (fixed). In some instances the right to terminate may be available both by notice or by application.
This section is focused on how to give notice (rules of service) in the event of breaches of the tenancy agreement.
See also Terminating a Tenancy Agreement.
The following is a summary of what actions are available to a landlord where a tenant has breached the residential tenancy agreement. Most of these apply to both fixed and periodic tenancies. At the end of a fixed term, a landlord may also terminate a tenancy for a prescribed reason which includes that the tenant has been given 2 notices under section 80 for the same or substantially similar breach by the tenant, and has then breached the agreement in the same or substantially similar way a third time [Residential Tenancies Act 1995 (SA) s 83A and reg 16].
From 1 July 2024, new provisions in the Residential Tenancies Act 1995 (SA) seek to ensure that a landlord is genuine, and not retaliatory, in their reasons for terminating a tenancy. A tenant may apply to SACAT for a declaration that a landlord's termination notice has no effect or refusing a landlord's application for termination if it is retaliatory in nature [s 90A(1)]. SACAT may find that the notice or application is retaliatory in nature if satisfied that the landlord was partly motivated to terminate because of a SACAT order, or because the tenant applied or proposed to apply to SACAT for an order or take an action or enforce a right under tenancy [s 90A(3)]. New provisions also seek to protect a tenant or a domestic associate of a tenant who normally or regularly resides in the premises and has been subjected to domestic abuse from suffering the consequences of a breach caused by an act of a person who subjected them to domestic abuse, The tenant in these circumstances may apply for an order that the notice of termination is invalid [s 90B(1)]. This application must be made within 30 days of the notice of termination [s 90B(2)].
Unpaid rent [s 80] – by notice
Where the rent (or any part of the rent) remains unpaid for at least 14 days the landlord may give a notice (Form 5– also referred to as a breach notice) to the tenant requiring them to remedy the breach. The tenant then has 7 clear days to pay the rent owing. If the rent is not paid within the time given the tenancy terminates automatically [Residential Tenancies Act 1996 (SA) s 80(2)(c)]. This is distinct from other circumstances when a tenant breaches an agreement [see s 80(1)], where the tenant is given a further 7 days to leave. See below, Other breaches.
However, the breach notice will be ineffectual unless served the day after rent becomes due. For example, if rent has been paid until 1 September the rent is next due on 2 September. This means that a tenant would not be in arrears until 3 September, making the earliest date for which a notice can be issued 17 September.
Other breaches [s 80] – by notice
For breaches other than non-payment of rent and serious breaches, the landlord must give the tenant at least 7 days notice (Form 5) to remedy the breach. The tenant then has a further 7 days to vacate if the breach is not rectified [Residential Tenancies Act 1995 (SA) s 80(1)(b)(ii)].
If a tenant wishes to preserve the tenancy, the tenant may apply to SACAT for an order declaring that they are not in breach, or have remedied the breach or to have the tenancy reinstated [see 80(4)]. Such an application can be made at any time after receiving the notice but before giving vacant possession to the landlord. There is provision under section 80(5) for SACAT to reinstate a tenancy, even where satisfied that it has been validly terminated, if SACAT concludes that it would be just and equitable to reinstate the tenancy.
Repeated failure to pay rent [s 87(1a)] – by application to SACAT
A landlord may apply to SACAT to terminate a residential tenancy agreement where the tenant has failed to pay rent and has already been given notice under section 80 on at least 2 previous occasions in the 12 months. However, under section 87(1b) SACAT may make alternative orders requiring the tenant to comply with specified conditions relating to payment of rent.
Serious breaches [s 87(1)] – by application to SACAT
A landlord may apply to SACAT for an order terminating a tenancy and granting possession of the premises where there has been a breach of the agreement that is sufficiently serious to justify termination of the agreement [s 87(1)] .This procedure may be preferable to termination by notice under section 80 where the breach is not capable of being remedied.
Serious damage or injury [s 87(2)] – by application to SACAT
A landlord may apply to SACAT to terminate a residential tenancy agreement if the tenant intentionally or recklessly causes, or is likely to cause, serious damage to the premises or injury to the landlord or people in adjacent premises [s 87(2)].
Example of an breach that cannot be rememdied by tenant
Yeomans v Janoska & Parry (RT10/1337)The tenants were responsible for serious damage to the rental premises including a hole in the front door and a bedroom screen that was destroyed and removed during an altercation. In addition, there were frequent loud arguments between the tenants which disturbed their neighbours. The male tenant had threatened several of the neighbours, some of who were elderly, with violence to themselves or, in one case, to a pet dog. The Tribunal found that the tenancy agreement had been breached under section 87(2) and ordered termination of the agreement.
The following is a summary of what actions are available to a tenant where a landlord has breached the residential tenancy agreement. These apply to both fixed and periodic tenancies.
Non serious breaches/breaches capable of being remedied [s 85] - by notice
If a landlord has breached a tenancy agreement and it is possible for the landlord to remedy (fix) the breach, the tenant may serve a notice on the landlord (using Form 11). If the breach is not remedied within a specified period (at least 7 days) then the tenancy is automatically terminated by force of the notice after the expiration of at least a further 7 days [Residential Tenancies Act 1995 (SA) s 85].
The landlord may respond by applying to SACAT at any time before the date fixed by the notice or before the tenant gives up possession for an order declaring that there is no breach, that it has been remedied or that the tenancy be reinstated [s 85(2)].
Under section 85(3) even if SACAT is satisfied that the tenancy has been validly terminated it can reinstate the tenancy if satisfied that it is just and equitable to do so.
Repeated breaches [s 85AA] - by notice
If the landlord has been in breach of the same provision on 2 previous occasions in the last 12 months, the tenant may serve a notice on the landlord (using Form 12) [s 85AA]. The notice must specify the breach and give at least 7 days notice of termination [s 85AA(2)].
Serious breaches/breaches not capable of being remedied [s 88] - by application to SACAT
Where a landlord has committed a serious breach of the tenancy agreement, a tenant may apply to SACAT for termination of the agreement [s 88]. The provision under section 88 is also appropriate where the breach is one that is not capable of being remedied.
Example of breach that cannot be remedied by landlord
Yeend v Rainsford (R0533/97)The tenant applied for an order to terminate the tenancy due to the landlord’s failure to advise about a restriction to her use of the back yard of her unit due to a neighbour’s right of access across the backyard. Under sections 64 and 65 of the Residential Tenancies Act 1995 a tenant is entitled to vacant possession of a premises and must be advised by a landlord if there is any legal impediment (such as a right of way). The landlord denied that there was any breach but the Tribunal concluded that the landlord was unable to provide possession free from the neighbour’s access to the yard and as such there was a breach to the tenant’s entitlement. As this situation could not be remedied and the tenant had suffered undue hardship termination of the agreement was ordered.
At the end of a tenancy, there are certain issues that need to be dealt with to finalise the tenancy.
Inspection of premises
The tenant and the landlord (or the landlord's agent) should meet at the premises on the last day - or as soon as possible after the tenant's possessions have been removed and the premises have been cleaned - to inspect the premises. Using the inspection sheets from the commencement of the tenancy both parties need to compare the present state of the premises with the state they were in when the tenancy began.
Keys
All keys must be returned to the landlord or the landlord may be able to have new locks fitted at the tenant's expense.
Bond
When a tenancy ends the security bond can be claimed through Consumer and Business Services'Residential Bonds Online portal. If both the tenant and landlord agree, the bond is paid as agreed.
Where an agreement cannot be reached and one party requests a refund or makes a claim, the Commissioner will post a notice to the other party giving that person 14 days to dispute the application [Residential Tenancies Act 1995 (SA) s 63 and Residential Tenancies Regulations 2010 (SA) reg 10].
If the application is disputed, the Tenancies Branch will attempt to conciliate and if it cannot be conciliated may refer it to the South Australian Civil and Administrative Tribunal. If the application is not disputed within the 14 days, the Commissioner will pay the security bond to the applicant [s 63].
From 1 July 2024, a full bond refund must be paid to co-tenants in equal shares unless each co-tenant consents to unequal shares. Where a balance of the bond is due after an amount going to the landlord, both co-tenants must consent to repayment in unequal shares and at least 1 of the co-tenants must consent to repayment in equal shares [s 63(14)].
Abandoned goods
Section 97B of the Residential Tenancies Act 1995 (SA) details the steps that must be taken by a landlord when dealing with abandoned goods (other than personal documents). The action that can be taken depends on the type of goods being dealt with.
Where the property concerned is perishable goods the landlord may, at any time after recovering possession of the premises, remove the perishable goods from the premises and destroy or dispose of them [s 97B(2)].
Within a period of 2 days after recovering possession a landlord must allow the tenant access to the premises in order to reclaim any abandoned property [s 97B(2a)]. Abandoned property cannot be removed or disposed of by the landlord during this time.
Where the property concerned is not perishable but is of low value the landlord may, after at least 2 days have passed since recovering possession of the premises, remove such property from the premises and destroy or dispose of them. For items to fall within this category the value of the property must be less than a fair estimate of the cost of removal, storage and sale of the property [s 97B(3)].
Where the abandoned property is not perishable or of low value the landlord must, as soon as reasonably practicable, make reasonable attempts to notify the tenant that such property has been found on the premises. The landlord must then take reasonable steps to keep the property safe for a period of at least 7 days after having taken possession of the premises [s 97B(4) and reg 19F]. Advertising is not necessary and the focus is instead on taking reasonable steps to notify the tenant and ensure the property is kept safe until at least 7 days after the landlord recovers possession of the premises.
The owner of the goods stored may, at any time before the goods are sold, reclaim the goods after paying the landlord reasonable costs for the removal and storage of them [s 97B(5)].
After the 7 days, the landlord may sell the abandoned property and recover the reasonable costs incurred in removal, storage and disposal of the items as well as any amounts owed under the residential tenancy agreement [ss 97B (6) and (7)]. The balance (if there is any) must be paid to the owner of the property, or if the identity and address of the owner are not known to, or reasonably discovered by the landlord, to the Commissioner for Consumer Affairs.
If a dispute arises regarding the disposal of goods SACAT has the power to make orders relating to the disposal, or payment of proceeds from any sale, of abandoned goods [s 97B(8)].
Abandoned documents
There are different procedures where the abandoned property consists of personal documents. In these cases the landlord must, as soon as practicable, make reasonable attempts to notify the tenant that the documents have been found on the premises. They must then take reasonable steps to keep the documents safe until at least 7 days after possession of the premises is recovered. If the documents are not claimed within this period, the landlord may destroy or dispose of them [s 97C and reg 19G].
These procedures only apply to property left behind after the end of a residential tenancy agreement. In other situations people who are left with unclaimed goods must follow the procedure set out in the Unclaimed Goods Act 1987 (SA). For more information, refer to our Unclaimed goods factsheet.
Abandoned tenancy
Where a tenant abandons the property, the landlord may apply to SACAT for an order that the property has been abandoned [s 94]. In determining whether a tenant has abandoned the premises SACAT may look at any failure to pay rent or any evidence that the tenant no longer occupies the premises as a place of residence. SACAT may also order that the tenant pay compensation to the landlord [s 94(3)].
The South Australian Civil and Administrative Tribunal
Disputes arising in relation to residential tenancy agreements are generally heard by the South Australian Civil and Administrative Tribunal.
SACAT does not have to follow the rules of evidence and can take evidence in whatever manner it thinks fit [South Australian Civil and Administrative Tribunal Act 2013 (SA) s 39]. Parties present their own cases.
SACAT generally will not allow a person to be represented by a lawyer unless all parties agree [Residential Tenancies Act 1995 (SA) s 113(2)]. If the property is managed by a land agent, the agent will usually appear for the landlord. Where a land agent appears, the tenant can be represented by a lawyer if they so wish [s 113(2)].
Generally parties must bear their own costs but SACAT can make an order for costs if they think it is appropriate [South Australian Civil and Administrative Tribunal Act 2013 (SA) s 57].
SACAT can arrange a free interpreter if one is needed. The SACAT registry should be informed as soon as possible before the hearing so that the necessary arrangements can be made.
Applications for orders can be lodged either personally, by post or online on the SACAT website. Wherever possible, applications are heard within 2 weeks and no later than 6 weeks after lodgement. SACAT has the power to make binding orders on any aspect of residential tenancy agreements.
The Tenancies Branch of Consumer and Business Services has a telephone advisory service that operates during work hours (call 131 882).
How applications are heard
SACAT can hear any application for an order relating to a residential tenancy agreement, except where one party is resident interstate [see Attorney-General (SA) v Raschke & Anor [2018] SASC 165 ; Burns v Corbett [2018] HCA 15]. In the case of monetary claims, the amount claimed must not be more than $40,000, unless both parties consent in writing to SACAT's jurisdiction [s 24]. Once such agreement is given, neither party can change their mind. If there is no such agreement, the application must be made in the appropriate court. The amount of the claim will determine which court has jurisdiction.
A party to a tenancy agreement who wishes to apply for an order must first fill out an application and pay the application fee of $85 (as at 1 July 2023).
SACAT has the power to require parties to attend a compulsory conference before the matter is listed for a hearing [s 50] and also has the power to refer a matter for mediation [s 51].
If no settlement is reached the matter is set down for a hearing. The parties should attend the hearing. If they do not it will proceed in their absence and they may lose the opportunity to argue their case. However, it is possible in exceptional circumstances for matters to be re-heard.
Orders the SACAT may make
Under sections 110 and 111 of the Residential Tenancies Act 1995 (SA) an applicant can ask SACAT for one or more of the following orders:
In addition, SACAT can also:
SACAT also has the power to make a restraining order where there is a risk that a tenant or a guest of the tenant may cause serious damage to the property or a person. The penalty for breaching a restraining order is imprisonment for up to one year [s 112]. This provision has been extended to include situations of domestic abuse. If SACAT is satisfied that a co-tenant may cause serious property damage or personal injury or commit an act of domestic abuse they may make an order prohibiting the co-tenant from engaging in such conduct [s 112(1a)].
Disputes where one party is resident interstate
Following the High Court decision in Burns v Corbett [2018] HCA 15and subsequent South Australian Supreme Court decision of Attorney-General (SA) v Raschke & Anor [2018] SASC 165any tenancy dispute where one party is resident interstate (such as where a landlord owns an investment property in another state) cannot be heard by a tribunal and must instead be heard by a court. Section 38B of the South Australian Civil and Administrative Tribunal Act 2013 (SA) provides for the vesting of jurisdiction (referred to as the federal diversity jurisdiction) in the Magistrates Court of South Australia to hear and determine disputes where one party is resident interstate. From 12 July 2018, matters in the federal diversity jurisdiction have been determined by the Magistrates Court, sitting at the SACAT premises, and hearings are conducted in the same general manner as they previously were conducted by SACAT.
See Uniform Civil Rules 2020 rule 334.4(5).
A Magistrates Court registry has been established at the SACAT premises to handle forms, documents and queries relating to the federal diversity jurisdiction.
Any applicant in dispute with a party who is resident interstate must still make their application to SACAT in the usual manner. SACAT will then make a determination as to whether it can deal with the application, or whether it should be transferred to the Magistrates Court. In matters where it is unclear whether one party is resident interstate, there may be a hearing to determine this preliminary issue. In situations where it is clear one party is resident interstate, a statutory declaration can be submitted with the initial application. SACAT is able to then transfer the proceedings to the Magistrates Court automatically without the need to conduct an initial hearing.
Once a matter has been transferred to the Magistrates Court, the parties will be receive a Notice of Hearing outlining the date, time and location of the hearing of the matter.
The fee payable for these applications is identical to the relevant fee payable to SACAT [see South Australian Civil and Administrative Tribunal Act 2013 (SA) s 38B(5)].
SACAT can transfer proceedings to the Magistrates Court in circumstances where there is some doubt as to whether it has jurisdiction to determine the dispute [see South Australian Civil and Administrative Tribunal Act 2013 (SA) s 38B(2)].
The Magistrates Court in hearing these disputes can exercise the jurisdiction, powers and functions that the Tribunal would exercise and had previously exercised in determining such disputes [see s 38C(3)].
Where the Magistrates Court makes an order, a party to the dispute can apply for a review of the decision in the same way they would apply for a review of any judgment of a Magistrate in a minor civil claim - by application to the District Court. For more information, please refer to Review of a Minor Civil Action Judgment.
SACAT has prepared a factsheet to assist parties affected by these jurisdictional changes - see Disputes Where One Party is Interstate (PDF, 161 KB).
Where SACAT has made a decision in relation to a tenancy matter, or where the parties have reached an agreement through SACAT conciliation and that agreement is recorded in a SACAT order, such orders will be enforceable. The process to enforce an order will vary depending on the type of order that was made.
A SACAT order for vacant possession
Where an order for vacant possession of a property (or room) has been made by SACAT, and the tenant has not complied, the landlord or proprietor can seek to enforce the order through using the SACAT Bailiff [Residential Tenancies Act 1995 (SA) s 99]. An affected landlord/proprietor should contact SACAT in writing to request that the Bailiff attend the premises to evict the tenant.
Where an order for possession was made as well as an order requiring a tenant to make payment of owed rent, and the tenant has not complied with either order, the landlord/proprietor can seek enforcement through the Bailiff and should provide to the Tribunal a statutory declaration outlining the payment owed along with a copy of the rent record to date.
A copy of the statutory declaration that should be completed in these circumstances can be obtained from the SACAT website.
A SACAT order for payment of a bond
Where SACAT has made an order that a bond be paid (whether to a landlord, a tenant, Housing SA, or a combination), then the Bonds section of Consumer and Business Services will make arrangement for the bond to be paid. Any queries relating to the payment of the bond should be directed to Bonds Section on 131 882.
A SACAT order for payment of a sum
Where SACAT has made an order for payment of a sum (for example, where unpaid rent is ordered to be paid from a tenant to a landlord) [see s 110(1)(c)] and the order is not complied with, the affected party can make an application to enforce the order through a Court, usually the Magistrates Court.
The amount owed pursuant to the SACAT order can be recovered as if it were a debt. A claim must be lodged (with the Minor Civil Claim division of the Magistrates Court, if the debt is $12 000 or less) in order to enforce the SACAT order. [Uniform Civil Rules 2020 (SA) r 245.10]
No pre-action notice is required. [r 333.2(3)(d)]
A claim must be instituted by filing a Form 1 or Form 1S prescribed form. The claim must identify the total amount owed [r 67.5(4) for Magistrates Court claims]. The applicant must, when filing a Claim, identify the Court location at which they request that the proceeding be heard, either close to where the claim arose or where the respondent lives. [r 63.1 (8)]. Claim lodgement fees and enforcement fees apply. In the event a person is successful in enforcing the order, they may seek to add the enforcement costs to the total amount sought.
Other SACAT orders
Where SACAT has made other orders (for example, an order for a landlord to undergo specific maintenance work), the SACAT order should specify the steps the person needs to take if the order is not complied with, or may make an order that something specific happens following non compliance [see s 111]. In most instances this will involve the affected party seeking further hearing at SACAT.
From 1 July 2024, a number of changes were made to the Residential Tenancies Act 1995 (SA) to increase protections for tenants and families subjected to domestic abuse. This includes:
- the ability to change locks where an intervention order is in place (this is an exception to the landlord's obligation to provide and maintain locks),
- the ability of the tenant to terminate a tenancy agreement by notice immediately where they are being subjected to domestic abuse or with 7 days notice when they need to go into crisis accommodation,
- allowing someone who normally or regularly resides at the premises to apply to SACAT to replace the tenancy agreement with an agreement with them (as set out below), and
- preventing the landlord terminating a tenancy for a breach or prescribed reason caused by the person subjecting the tenant and their family to domestic abuse.
For more information, please refer to CBS' Domestic abuse: Protection for tenants (PDF, 304 KB).
Where an intervention order has been issued by the Court or domestic abuse has occurred, a tenant may either terminate the tenancy by notice or by application to SACAT. For more information on the tenant terminating by notice for this reason, please refer to Tenant terminating a tenancy.
A tenant or landlord may also apply to the South Australian Civil and Administrative Tribunal to terminate a residential tenancy agreement for this reason.
If the landlord applies for termination under section 89A(2), then a person who normally or regularly resides at the premises for whose protection an intervention order is in force or against whom domestic abuse has been committed becomes a party to the proceedings [Residential Tenancies Act 1995 (SA) s 89A(3)]. When a landlord makes this application, then at the application of a party to the proceedings, SACAT may require the landlord to replace the agreement by entering into a new residential tenancy agreement for the remainder of the term with a co-tenant or a person who normally or regularly resides at the premises and is subjected to the abuse.
As a result, victims of domestic abuse may be able to:
1. remain in the tenancy (without the alleged abuser); OR
2. have the tenancy terminated so they can leave without being adversely affected financially or otherwise (e.g. see Residential Tenancy Databases – Terminations based on domestic violence for details about tenancy database issues).
A process to remain in the tenancy is also available to non-domestic abuse victims who may choose to apply for tenancy orders in the Magistrates Court as part of their application for an Intervention Order [see What can be ordered? Tenancy Orders].
Remaining in rental premises will require the existing agreement to be replaced. SACAT has the power in these cases to remove the alleged perpetrator from the lease [see Residential Tenancies Act 1995 (SA) s 89A(4)(a)]. Before making such an order SACAT must be satisfied that the tenant/co-tenants under the new agreement are able to reasonably comply with the new agreement [s 89A(6)(a)].
Choosing to leave rental premises will require the existing agreement to be terminated and SACAT has the power to do this under section 89A(1) of the Residential Tenancies Act 1995 (SA).
In either instance SACAT must be satisfied that an intervention order is in force against a person residing at the premises for the protection of either the tenant or a domestic associate of the tenant. In the absence of an intervention order SACAT can terminate or replace a residential tenancy agreement if satisfied that a person residing at the residential premises has committed domestic abuse against either the tenant or a domestic associate of the tenant.
The relationship of domestic associate covers many relationships. People are domestic associates if:
See Residential Tenancies Act 1995 (SA) s 3.
Liability for damage
Where a residential tenancy is terminated because of an intervention order or due to domestic abuse and SACAT finds that not all co-tenants under the lease are responsible for damage caused to the premises, SACAT may make an order for payment of compensation against those co-tenant(s) responsible [s 89A(11)].
Compensation for landlord
SACAT also has the power to make an order for compensation to a landlord for loss and inconvenience where termination of a residential tenancy agreement has been because of an intervention order [s 89A(10)].
Bond
Under section 89A(12), where an order has been made for payment for damage or compensation under section 89A(10) and/or 89A(11), SACAT may also make orders for payment of the bond to the landlord and any co-tenant who has been found not liable. A liable co-tenant may be required to pay any remaining amount of bond that is payable to the landlord.
For more information on a range of domestic abuse protections, please refer to CBS' Domestic abuse: protections for tenants (PDF, 304 KB).
If you are in fear of, or being subjected to, domestic abuse:
In an emergency contact: 000
For police attendance call: 131 444
Domestic Violence Crisis Line: 1800 800 098
1800 RESPECT: 1800 737 732.
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