The special conditions you can and can’t include in a rental agreement

“It’s my property and I can dictate how I expect the tenant to behave and what they can do.”

I hear this a lot from landlords and they are quite taken aback when I tell them, well, actually no, you can only put in conditions that are consistent with the legislation.

I get it – a landlord wants to protect themselves and their investment as much as possible. And so, I commonly see all manner of special clauses in the lease – from carpet cleaning to inspections to not being allowed to drink alcohol or play music.

Can someone tell me what I can and can’t drink in my rental? Picture: iStock

However, under tenancies legislation, any term of a lease that is inconsistent with the law is not enforceable and any person who enters into an arrangement to defeat or prevent the operation of the legislation is guilty of an offence of $50,000.

The most common term that I see (still!) added into a lease is that the tenant must professionally steam clean the carpets at the end of the tenancy.

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It seems to be fair enough – the carpets may have been professionally cleaned before the tenant moved in, the tenants may have been in there for a while, why shouldn’t they get the carpets professionally cleaned?

However, under the legislation, the tenant is only required to return the property back to the landlord in a reasonable condition and in a reasonable state of cleanliness.

Any term that seeks to put a higher standard on the tenant is therefore unenforceable and must absolutely not be in the lease.

Cancel the professional cleaner – the tenant is only required to return the property back to the landlord in a reasonable condition. Pic: iStock.

Another common term included is that the tenant agrees that the landlord is only required to attend to emergency maintenance or even that the landlord is not responsible for maintenance at all! This is also unenforceable.

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The tenancies legislation clearly states that it is the landlord’s responsibility to keep the premises in a reasonable state of repair and you cannot exclude or modify what is set out in the legislation.

One of the most surreal conditions I have seen is that the tenant is not able to drink alcohol at the premises at any time or have visitors from 5pm Friday to 9am Monday.

Start popping bottles. Your landlord can’t tell you not to! Pic: iStock

Once again, this would be unenforceable as the tenant has a right to quiet enjoyment of the property and you cannot seek to exclude that right.

Remember, a lease is a special type of contract – a contract governed by very specific legislation. If you are in doubt, seek your own advice but beware that you cannot just add anything you like to a lease because you think that you have the right because you own the property.

– Paul Edwards is the Real Estate Institute of South Australia’s legislation and industry adviser.

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