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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 ).
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.
