Many Australian visitors will probably be all too aware that property prices in the country are rather expensive, and the dreams of home ownership may be out of reach for some. As a consequence, renting has become a viable alternative for those who are unable to afford buying property, and furthermore, it’s conceivable that some landlords and tenants may not have a complete awareness of their rights and obligations. There are numerous common law and statutory covenants that a landlord and tenant must abide by if certain matters do arise, and guidance can be found on the express terms of the lease, statute, as well as the common law when trying to resolve an issue between the parties.
What are the general express terms that can be found in a lease?
Before outlining the implied terms of the common law, it would perhaps be useful to touch upon the express terms which can be found in the majority of leases.
Although, leases can have various differences, there is however typical express covenants which can be found generally in leases, and include the following:
- the tenant must pay rent
- the landlord is to provide quiet enjoyment for the tenant
- the tenant must not interfere with the peace and enjoyment of their neighbours, or to be a nuisance
- the landlord is to maintain the premises in a reasonable state of repair
- the tenant must not cause an injury to the land, and a tenant will not be held responsible for normal wear and tear
- the landlord must not derogate from the grant (such as making the premises unfit, or materially less fit for the designated purpose)
- the tenant is to repair and keep the premises in good order
- the landlord is to provide notice and a reasonable opportunity to pay rent if they are behind in payment
- the landlord has the right to re-entry if a tenant fails to pay rent
- the tenant must give permission for the landlord to inspect the premises for specified purposes
- the tenant is to give up possession to the landlord at the expiration of the lease.
Although a leasing agreement can include any covenants that the parties wish to include under the common law, that being said, the agreement cannot contain terms that is not allowable by legislation. However, absent of any express terms or statutory restraints, the covenants can be implied by common law.
How, and what terms are implied at common law?
In the event that an issue arises between a tenant and the landlord, the courts will generally look to the express terms of the leasing agreement. Outside of the legislative requirements that govern the parties, any matters which do not expressly cover the specific issue at hand, it is then up to common law to fill in the gaps in regards to the implied terms of an executed lease.
When trying to ascertain the implied terms of a lease, the test from Liverpool City Council v Irwin  AC 239, will be applied. The House of Lords in the case, stated, that in order to avoid liabilities, the landlord must include such responsibilities within the leasing agreement with a tenant, and that terms will be implied if it satisfies the business efficacy test.
Problems between tenants and landlords may sometimes arise. If you have any issues relating to your lease, always seek the help of a lawyer who will be able to assist you with your matter.