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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Residential Tenancies (Miscellaneous) Amendment
Bill 2012
A BILL FOR
An Act to amend the Residential
Tenancies Act 1995; and to make related amendments to the Fair
Trading Act 1987 and the Residential
Parks Act 2007.
Contents
Part 1—Preliminary
1Short title
2Commencement
3Amendment
provisions
Part 2—Amendment of Residential
Tenancies Act 1995
4Amendment of section
3—Interpretation
5Amendment of section 5—Application of
Act
6Substitution of section
15
15Registrars
7Amendment of
section 16—Registrar may exercise jurisdiction in certain cases
8Amendment of section 21—Duty to act
expeditiously
9Amendment of section 24—Jurisdiction of
Tribunal
10Amendment of section 25—Application to
Tribunal
11Repeal of Part 3 Division 4
12Amendment of section 31—Tribunal's power
to gather evidence
13Amendment of section 32—Procedural
powers of Tribunal
14Repeal of Part 3 Division 6
15Amendment of section 37—Application to
vary or set aside order
16Amendment of section
41—Appeals
17Repeal of section 42
18Amendment of section 45—Punishment of
contempts
19Amendment of section 46—Fees
20Amendment of section 47—Procedural
rules
21Insertion of Part 4 Division A1
Division A1—Before entering into
residential tenancy agreement
47AProspective tenant to be notified of sale of
premises
22Substitution of section
48
48Information to be
provided by landlords to tenants
23Substitution of
section 49
49Written
residential tenancy agreements
24Amendment of section
50—Cost of preparing agreement
25Amendment of section
51—False information from tenant
26Amendment of
section 52—Discrimination against tenants with children
27Amendment of section 53—Permissible
consideration for residential tenancy
28Amendment of section
54—Rent in advance
29Amendment of section 55—Variation
of rent
30Amendment of section 56—Excessive
rent
31Insertion of section
56A
56AManner of payment of
rent
32Amendment of section 57—Landlord's duty
to keep proper records of rent and other payments
33Substitution of
section 58
58Duty to provide
statement or give receipt for rent
58APayment of rent by electronic
transaction
34Amendment of heading to Part 4 Division
4
35Amendment of section 61—Bond
36Amendment of section 62—Receipt of bond
and transmission to Commissioner
37Amendment of section
63—Repayment of bond
38Amendment of section 65—Quiet
enjoyment
39Amendment of section 66—Security of
premises
40Amendment of section 68—Landlord's
obligation to repair
41Amendment of section 69—Tenant's
responsibility for cleanliness, damage and loss
42Amendment of
section 70—Alteration of premises
43Insertion of Part
4 Division 9A
Division 9A—Landlord's obligation to
advise of sale of premises
71ASale of residential premises
44Substitution of section
72
72Right of
entry
45Substitution of heading to Part 4 Division
11
46Amendment of section 73—Statutory
charges
47Amendment of section 74—Assignment of
tenant's rights under residential tenancy agreement
48Amendment of
section 77—Accelerated rent and liquidated damages
49Insertion of section
78A
78ACompensation for
expenses
50Amendment of section 79—Termination of
residential tenancy
51Insertion of section
79A
79AAgreement for fixed
term continues if not terminated
52Amendment of
section 81—Termination because possession is required by landlord for
certain purposes
53Amendment of section 83—Termination by
landlord without specifying a ground of termination
54Insertion of
sections 83A and 83B
83ANotice to be given at end of fixed
term
83BTermination
where agreement frustrated
55Amendment of section
84—Limitation of right to terminate
56Insertion of
section 85A
85ATermination
by tenant if residential premises for sale
57Insertion of
sections 86A and 86B
86ANotice to be given at end of fixed
term
86BTermination
where agreement frustrated
58Amendment of section
87—Termination on application by landlord
59Amendment of
section 90—Tribunal may terminate tenancy if tenant's conduct
unacceptable
60Insertion of section
92A
92ANotice of termination
void if no action taken
61Amendment of section
93—Order for possession
62Amendment of section
94—Abandoned premises
63Amendment of section
95—Repossession of premises
64Substitution of Part 5 Division
7
Division 7—Abandoned
property
97Abandoned
property
97AOffence
to deal with abandoned property in unauthorised
way
97BAction to deal
with abandoned property other than personal
documents
97CAction
to deal with abandoned personal documents
65Amendment of
section 99—Enforcement of orders for possession
66Insertion of Part 5A
Part 5A—Residential tenancy
databases
99ADefinitions
99BApplication
99CNotice of usual use of
database
99DNotice of
listing if database used
99EListing can be made only for particular breaches by
particular persons
99FFurther restriction on
listing
99GEnsuring quality of
listing—landlord’s or agent’s
obligation
99HEnsuring quality of listing—database
operator’s obligation
99IProviding copy of personal information
listed
99JKeeping
personal information listed
99KPowers of
Tribunal
99LNotifying relevant non-parties of Tribunal order
about listing
67Amendment of section 100—Residential
Tenancies Fund
68Amendment of section 101—Application of
income
69Substitution of Part
7
Division 1—Interpretation
103Interpretation
Division 2—Rooming house
agreements
104Standard terms of rooming
house agreements
105Copies of written agreements
Division 3—House
rules
105AHouse
rules
105BAmendment
of house rules
105CApplication to Tribunal if house rules are
considered unreasonable
105DAvailability of house rules
Division 4—Mutual rights and
obligations of proprietors and residents
Subdivision 1—Rent and other
charges
105EPermissible
consideration and statutory charges
105FRent in advance
105GDuty to provide statement or give receipt for
payments
105HPayment
of rent by electronic transaction
105IRent increases
105JRent decreases
Subdivision 2—Bonds
105KBond
105LReceipt of bond and transmission to
Commissioner
105MRepayment of bond
Subdivision 3—Other obligations of
proprietor
105NUse and
enjoyment of room and facilities
105OSecurity of premises and
personal property
105PObligation to repair and keep room and premises
clean
105QSale of
rooming house
Subdivision 4—Other obligations of
resident
105RGeneral
obligations of resident
Subdivision 5—Miscellaneous
105SAccelerated rent and liquidated
damages
105TGoods
not to be taken in lieu of amounts owing to proprietor
Division 5—Termination of rooming
house agreement
105UTermination of rooming house
agreement
105VAbandoned
room
105WAbandoned
property
70Substitution of Part 8
Division 1
Subdivision 1—Definitions for this
Division
106Definitions
Subdivision 2—Conciliation of
dispute by Commissioner
107Conciliation by
Commissioner
Subdivision 3—Conciliation of
dispute by Tribunal
108Referral of dispute to
conciliation conference
Subdivision 4—Duties and
procedure
108ADuties of
conciliators
108BProcedure
108CRestriction on evidence
71Amendment of section 110—Powers of
Tribunal
72Amendment of section 113—Representation
in proceedings before Tribunal
73Amendment of section
114—Remuneration of representative
74Amendment of
section 115—Contract to avoid Act
75Repeal of
section 116
76Insertion of section
117A
117ALiability to
prosecution not to derogate from civil liability
77Amendment of section 119—Tribunal may
exempt agreement or premises from provision of Act
78Amendment of
section 120—Service
79Amendment of section
121—Regulations
80Substitution of Schedule
Schedule 1—Transitional
provisions—Residential Tenancies (Miscellaneous) Amendment
Act 2012
1Interpretation
2Operation of
amendments
3Registrar and deputy
registrars
4Jurisdiction of
Tribunal
5Interest
payable on repayment of bond
6Abandoned property
7Application to existing house
rules
8Other
provisions
Part 1—Amendment of
Fair Trading Act 1987
1Amendment of section
30—Application of Part
Part 2—Amendment of
Residential Parks Act 2007
2Amendment of
section 29—Repayment of bond
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Residential Tenancies (Miscellaneous)
Amendment Act 2012.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Residential Tenancies
Act 1995
4—Amendment
of section 3—Interpretation
(1) Section 3(1)—after the definition of ancillary
property insert:
bond means an amount a tenant is required to pay under a
residential tenancy agreement, or an agreement collateral to a residential
tenancy agreement, as security for the performance of obligations under a
residential tenancy agreement;
collateral agreement, in relation to a residential tenancy
agreement for residential premises in a no premium retirement village, includes
a domestic services agreement that a tenant of the premises is required to enter
into as a condition of the residential tenancy agreement or otherwise as a
condition of admission as a resident of the village;
(2) Section 3(1)—after the definition of Commissioner
insert:
domestic facility requiring instructions means an appliance
or device provided by a landlord for the use of a tenant for which it would be
reasonable to expect the tenant to require instructions;
domestic services agreement means an agreement with a tenant
of residential premises in a no premium retirement village for the provision of
domestic services (such as meals, cleaning, gardening and laundry of
linen);
(3) Section 3(1), definition of mediation—delete
the definition and substitute:
no premium retirement village means a complex of residential
premises or a number of separate complexes of residential premises that would be
a retirement village within the meaning of the Retirement
Villages Act 1987 except that no resident or prospective resident
of the village pays a premium (within the meaning of that Act) in consideration
for, or in contemplation of, admission as a resident of the village;
personal documents means official documents, photographs,
correspondence or other documents that it would be reasonable to expect a person
might wish to keep;
(4) Section 3(1), definition of registered
agent—delete the definition and substitute:
registered community housing organisation means a registered
housing association or a registered housing co-operative;
registered housing association means a housing association
registered under Schedule 1 of the
South
Australian Co-operative and Community Housing Act 1991;
(5) Section 3(1), definition of registered housing
co-operative—delete "
Housing
Co-operatives Act 1991" and substitute:
South
Australian Co-operative and Community Housing Act 1991
(6) Section 3(1), definition of rent—delete the
definition and substitute:
rent consists of—
(a) the amount payable under a residential tenancy agreement for the right
to occupy premises for a period of the tenancy; and
(b) if the residential tenancy agreement is for residential premises in a
no premium retirement village and there is a domestic services agreement
collateral to the residential tenancy agreement—the amount payable under
the domestic services agreement for the period of the tenancy referred to in
paragraph (a);
(7) Section 3(1), definitions of security and
security bond—delete the definitions
(8) Section 3(1), definition of statutory rates, taxes and
charges—delete the definition and substitute:
statutory charges means—
(a) rates or charges imposed under the Local
Government Act 1999; and
(b) rates or charges imposed under the Waterworks
Act 1932 or the Sewerage
Act 1929; and
(c) land tax under the Land
Tax Act 1936; and
(d) levies under the Emergency
Services Funding Act 1998; and
(e) levies under the Natural
Resources Management Act 2004; and
(f) any charges of a kind imposed under an Act and declared by regulation
to be statutory charges;
(9) Section 3(1), definition of tenancy
dispute—after paragraph (b) insert:
or
(c) any matter that may be the subject of an application under this Act to
the Tribunal;
5—Amendment
of section 5—Application of Act
(1) Section 5(1)(a)(ii)—after the present contents of
subparagraph (ii) insert:
Example—
An agreement under which a right of occupancy is given to a student in
accommodation provided within an educational institution or college would not be
an agreement to which this Act applies (but this Act would apply, subject to
this Act, to an agreement under which a right of occupancy is given to a student
in accommodation that is not within an educational institution or
college).
(2) Section 5(1)(c)—delete "An agreement conferring a right to
occupy premises for a fixed term of 60 days or longer will be taken, in the
absence of proof to the contrary, not to have been genuinely entered into for
the purpose of conferring a right to occupy premises for a holiday."
(3) Section 5(1)(e)—after "premises" insert:
for a period of 28 days or less
(4) Section 5—after subsection (1a) insert:
(1b) For the purposes of this Act, an agreement conferring a right to
occupy premises for a fixed term of 60 days or longer is to be taken, in
the absence of proof to the contrary, not to be an agreement referred to in
subsection (1)(c).
(1c) For the purposes of this Act, a residential tenancy agreement for
residential premises in a no premium retirement village is to be taken not to be
an agreement under which a person boards or lodges with another.
Section 15—delete the section and substitute:
15—Registrars
(1) There is to be a registrar and 1 or more deputy registrars of the
Tribunal.
(2) The registrar and deputy registrars are to be Public Service
employees.
(3) The registrar is the Tribunal's principal administrative officer and
reports to the Commissioner.
(4) In directing the registrar in relation to the administration of the
Tribunal, the Commissioner must consult with the Presiding Member of the
Tribunal.
7—Amendment
of section 16—Registrar may exercise jurisdiction in certain
cases
Section 16—after its present contents (now to be designated as
(subsection (1)) insert:
(2) The Registrar may make an order in relation to a tenancy dispute with
the written consent of the parties to the dispute (and such an order operates as
an order of the Tribunal).
8—Amendment
of section 21—Duty to act expeditiously
Section 21—delete "hear and"
9—Amendment
of section 24—Jurisdiction of Tribunal
(1) Section 24(1)(a)—delete "a matter that may be the subject
of an application under this Act" and substitute:
a tenancy dispute
(2) Section 24(2) and (5)—delete "$10 000" wherever
occurring and substitute in each case:
$40 000
10—Amendment
of section 25—Application to Tribunal
Section 25—after subsection (2) insert:
(3) A notice under subsection (2) directed to an occupier or
subtenant of premises need not address the occupier or subtenant by
name.
11—Repeal
of Part 3 Division 4
Part 3 Division 4—delete the Division
12—Amendment
of section 31—Tribunal's power to gather evidence
(1) Section 31(2)—delete "and liable to a penalty not exceeding
$2 000"
(2) Section 31(2)—at the foot of subsection (2)
insert:
Maximum penalty: $2 500.
(3) Section 31—after subsection (2) insert:
(3) Evidence before the Tribunal cannot be used in criminal proceedings
except proceedings for an offence against this Act or for perjury.
13—Amendment
of section 32—Procedural powers of Tribunal
(1) Section 32(1)(c)—delete "the application frivolous" and
substitute:
that the application is vexatious or frivolous or involves a trivial matter
or amount
(2) Section 32(1)(d)—delete "hear and"
(3) Section 32—after subsection (1) insert:
(1a) The Tribunal may determine an application without proceeding to a
hearing if the Tribunal is satisfied that the issues for determination can be
adequately determined in the absence of the parties by consideration of the
application and other documents or materials lodged with or produced before the
Tribunal.
(4) Section 32(2)—delete subsection (2) and
substitute:
(2) The Tribunal's proceedings must be conducted with the minimum of
formality, and in the exercise of its jurisdiction the Tribunal—
(a) is not bound by evidentiary rules but may inform itself as it thinks
appropriate; and
(b) must act according to equity, good conscience and the substantial
merits of the case without regard to technicalities and legal forms.
14—Repeal
of Part 3 Division 6
Part 3 Division 6—delete the Division
15—Amendment
of section 37—Application to vary or set aside order
(1) Section 37(2)—delete "three months" and
substitute:
1 month
(2) Section 37—after subsection (2) insert:
(3) If the reasons of the Tribunal are not given in writing at the time of
making an order and the applicant for an order varying or setting aside the
order then requests the Tribunal to state its reasons in writing, the time for
making the application runs from the time when the applicant receives the
written statement of the reasons.
16—Amendment
of section 41—Appeals
(1) Section 41(1)—after "lies to" insert:
the Administrative and Disciplinary Division of
(2) Section 41(2)—delete subsection (2)
Section 42—delete the section
18—Amendment
of section 45—Punishment of contempts
(1) Section 45(1)(a)—delete "$2 000" and substitute:
$5 000
(2) Section 45(1)—after paragraph (a) insert:
(ab) it may suspend the right of a person under section 113 to
represent parties to tenancy disputes for a specified period or until further
order; or
(3) Section 45(1)(b)—delete "six months" and
substitute:
1 year
(4) Section 45—after subsection (2) insert:
(3) An order for commitment made under this section may be executed as if
it were an order for commitment made by the Magistrates Court.
19—Amendment
of section 46—Fees
Section 46—after subsection (2) insert:
(3) A fee paid by a party is not recoverable, including in connection with
an award of costs or an order to pay compensation.
20—Amendment
of section 47—Procedural rules
Section 47—after subsection (3) insert:
(4) The Subordinate
Legislation Act 1978 does not apply to Rules of the
Tribunal.
21—Insertion
of Part 4 Division A1
Part 4—before Division 1 insert:
Division A1—Before entering into residential
tenancy agreement
47A—Prospective tenant to be notified of sale of
premises
A landlord must ensure that a prospective tenant is advised, before
entering into a residential tenancy agreement, if the landlord has advertised,
or intends to advertise, the residential premises for sale and of any existing
sales agency agreement for the sale of the residential premises.
Section 48—delete the section and substitute:
48—Information to be provided by landlords to
tenants
(1) A landlord must ensure that a tenant is given, before or at the time
the landlord and tenant enter into a residential tenancy agreement, a written
notice setting out—
(a) if an agent is acting for the landlord—the agent's name,
telephone number and address for service of documents; and
(b) the landlord’s full name and address for service of documents
(which must not be the agent's address for service); and
(c) if no agent is acting for the landlord—the landlord's telephone
number; and
(d) the full name and address of any person with superior title to the
landlord; and
(e) if the landlord is a company—the address of the registered
office of the company; and
(f) any other information required by the Commissioner.
Maximum penalty: $1 250.
Expiation fee: $210.
(2) A landlord must take reasonable steps to ensure that a tenant is
given, before or at the time the tenant commences occupation of the premises
under a residential tenancy agreement, manufacturers' manuals, or written or
oral instructions, about the operation of any domestic facilities requiring
instructions.
Maximum penalty: $1 250.
Expiation fee: $210.
Note—
Domestic facilities requiring instructions should also be listed in the
tenancy agreement—see section 69(3a).
(3) If a person succeeds another as the landlord, the new landlord must,
within 14 days, ensure that the tenant is given a written notice setting
out—
(a) if an agent is acting for the new landlord—the agent's name,
telephone number and address for service of documents; and
(b) the new landlord's full name and address for service of documents
(which must not be the agent's address for service); and
(c) if no agent is acting for the new landlord—the new landlord's
telephone number; and
(d) if the new landlord is a company—the address of the registered
office of the company; and
(e) any other information required by the Commissioner.
Maximum penalty: $1 250.
Expiation fee: $210.
(4) If a name, address or telephone number of which the landlord is
required to notify the tenant under this section changes, the landlord must,
within 14 days of becoming aware of the change, notify the tenant in
writing of the change.
Maximum penalty: $1 250.
Expiation fee: $210.
Section 49—delete the section and substitute:
49—Written residential tenancy
agreements
(1) A written
residential tenancy agreement entered into after the commencement of this
section must be in the form approved by the Commissioner.
(2) A landlord or tenant must not prepare or authorise the preparation of
a written residential tenancy agreement in a form that is not the form approved
by the Commissioner.
Maximum penalty: $5 000.
Expiation fee: $315.
(3) 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 ensure that—
(a) the tenant receives a copy of the agreement when the tenant signs it;
and
(b) if the agreement has not then been signed by the landlord, a copy of
the agreement, as executed by all parties, is delivered to the tenant within
21 days after the tenant gives the agreement back to the landlord or the
landlord's agent to complete its execution.
Maximum penalty: $5 000.
Expiation fee: $315.
(4) A failure to comply with this section does not make the residential
tenancy agreement illegal, invalid or unenforceable.
24—Amendment
of section 50—Cost of preparing agreement
Section 50—delete ", or a document recording its
terms,"
25—Amendment
of section 51—False information from tenant
Section 51, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $1 250.
26—Amendment
of section 52—Discrimination against tenants with
children
(1) Section 52(1), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $2 500.
(2) Section 52(2), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $2 500.
27—Amendment
of section 53—Permissible consideration for residential
tenancy
(1) Section 53(1)—delete "security" and substitute:
a bond
(2) Section 53(1), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $2 500.
28—Amendment
of section 54—Rent in advance
(1) Section 54(1), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $2 500.
Expiation fee: $210.
(2) Section 54(2), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $2 500.
Expiation fee: $210.
(3) Section 54(3), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $2 500.
Expiation fee: $210.
29—Amendment
of section 55—Variation of rent
(1) Section 55(1)—delete "A series of residential tenancy
agreements between the same parties and relating to the same premises is treated
as a single residential tenancy agreement for the purposes of this section
unless at least six months have elapsed since rent for the premises was
fixed or last increased."
(2) Section 55(2)(c)—delete "six months" wherever
occurring and substitute in each case:
12 months
(3) Section 55(2)(c)(ii) and (iii)—delete "registered
housing co-operative" wherever occurring and substitute in each case:
registered community housing organisation
(4) Section 55—after subsection (6) insert:
(7) For the purposes of this section, a series of residential tenancy
agreements between the same parties and relating to the same premises is treated
as a single residential tenancy agreement unless at least 12 months have
elapsed since rent for the premises was fixed or last increased.
30—Amendment
of section 56—Excessive rent
(1) Section 56(2)—after paragraph (f) insert:
(fa) the estimated cost of goods and services provided under any domestic
services agreement collateral to the residential tenancy agreement;
and
(2) Section 56(5), penalty provision— delete the penalty provision
and substitute:
Maximum penalty: $2 500.
After section 56 insert:
56A—Manner of payment of rent
A landlord under a residential tenancy agreement must permit a tenant to
pay rent under the agreement by at least 1 means that does not involve the
payment of cash by the tenant or the collection of rent from the tenant by a
third party who charges a fee, payable by the tenant, for the collection
service.
Maximum penalty: $5 000.
Expiation fee: $315.
32—Amendment
of section 57—Landlord's duty to keep proper records of rent and other
payments
(1) Section 57(1)—delete "a proper record is kept of rent
received under the agreement." and substitute:
the following information is recorded in respect of payments received under
the agreement:
(a) the date on which the payment was received;
(b) the name of the person making the payment;
(c) the amount paid;
(d) the address of the premises to which the payment relates;
(e) if the payment is for rent—the period of the tenancy to which
the payment relates;
(f) if the payment is a bond—a statement of that fact;
(g) if the payment is not for rent or a bond—a description of the
purpose of the payment, including, if applicable, the period of time to which
the payment relates.
(2) Section 57(1), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $1 250.
Expiation fee: $210.
(3) Section 57(2)(a)—delete "the rent" and substitute:
a payment
(4) Section 57(2), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $2 500.
Section 58—delete the section and substitute:
58—Duty to provide statement or give receipt for
rent
(1) A landlord under a
residential tenancy agreement must, at the written request of the tenant, give
the tenant a statement of the information recorded by the landlord under
section 57(1) in respect of the rent received during the period specified
in the request (and such statement must be given to the tenant within
7 days of the making of the request).
Maximum penalty: $2 500.
Expiation fee: $210.
(2) If a tenant pays rent other than into an ADI account, the person who
receives the rent must, within 48 hours after receiving the rent, give the
tenant a receipt setting out the information required to be recorded by the
landlord under section 57(1) in respect of the rent received.
Maximum penalty: $2 500.
Expiation fee: $210.
58A—Payment of rent by electronic
transaction
If a tenant pays rent into an ADI account kept by the landlord or the
landlord's agent, the payment will be taken to have been made when it is
credited to the ADI account.
34—Amendment
of heading to Part 4 Division 4
Heading to Part 4 Division 4—delete
"Security"
35—Amendment
of section 61—Bond
(1) Section 61(1)(a)—delete "security"
(2) Section 61(1)(b)—delete "security" and
substitute:
a bond
(3) Section 61(1), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
(4) Section 61(2)—delete "the security under a security" and
substitute:
a
(5) Section 61(2)—delete "the security by" and
substitute:
the bond by
(6) Section 61(2)—delete "the security exceeds" and
substitute:
the bond exceeds
(7) Section 61(2)—delete "The requirement has effect as if it
were a term of the residential tenancy agreement."
(8) Section 61—after subsection (2) insert:
(2a) A requirement under subsection (2) has effect as if it were a
term of the residential tenancy agreement.
(9) Section 61(3)—delete subsection (3) and
substitute:
(3) The relevant limit is determined as follows:
(a) if the rent payable under the agreement does not exceed the prescribed
amount (which must be at least $250 per week), the relevant limit
is—
(i) in the case of an agreement under which the tenant is permitted, at
the request of the tenant, to keep an animal at the residential
premises—5 weeks rent under the agreement; and
(ii) in any other case—4 weeks rent under the
agreement;
(b) if the rent payable under the agreement exceeds the prescribed amount,
the relevant limit is—
(i) in the case of an agreement under which the tenant is permitted, at
the request of the tenant, to keep an animal at the residential
premises—7 weeks rent under the agreement; and
(ii) in any other case—6 weeks rent under the
agreement.
(10) Section 61(4)—delete "security" and substitute:
bond
(11) Section 61—after subsection (4) insert:
(5) For the purposes of determining the relevant limit, any amount payable
under a domestic services agreement collateral to the residential tenancy
agreement is not to be regarded as rent.
36—Amendment
of section 62—Receipt of bond and transmission to
Commissioner
(1) Section 62(1)—delete "security, give the person who pays"
and substitute:
a bond, give the person who paid
(2) Section 62(1), penalty provision and expiation fee—delete
the penalty provision and expiation fee and substitute:
Maximum penalty: $2 500.
Expiation fee: $210.
(3) Section 62(2)—delete "of security" and
substitute:
of a bond
(4) Section 62(2)—delete "the security" and
substitute:
the bond
(5) Section 62(2), penalty provision and expiation fee—delete
the penalty provision and expiation fee and substitute:
Maximum penalty: $5 000.
Expiation fee: $315.
37—Amendment
of section 63—Repayment of bond
(1) Section 63(1)(a) and (b)—delete "security" wherever
occurring and substitute in each case:
bond
(2) Section 63(3)—delete "security" and substitute:
bond
(3) Section 63(5)—delete subsection (5) and
substitute:
(5) If the respondent does not give the Commissioner written notice of
dispute within 10 days after the day on which the Commissioner's notice
under subsection (4) is given to the respondent, the Commissioner may pay
out the amount of the bond as proposed in the application.
(5a) However, if the application is made by the landlord alone more than
12 months after the termination of the residential tenancy
agreement—
(a) the Commissioner must refer the application to the Tribunal for
determination; and
(b) the Tribunal may authorise payment of the amount of the bond as
proposed in the application if the Tribunal is satisfied, on the basis of
information provided by the landlord, that the landlord is entitled to the
payment.
(4) Section 63(6)—delete "security" and substitute:
bond
(5) Section 63(7)—delete "security" wherever occurring and
substitute in each case:
bond
(6) Section 63(7)(a)—after "provided or paid" insert:
on behalf of the tenant
(7) Section 63(8)—delete "security"
(8) Section 63(9)(a)—delete "security for the performance of
obligations under a residential tenancy agreement is provided" and
substitute:
a bond is provided on behalf of the tenant
(9) Section 63(9)(b)—delete "security" and
substitute:
bond
(10) Section 63(11)—delete "and, in the case of a payment to a
tenant, must include interest"
(11) Section 63(12)—delete subsection (12)
(12) Section 63(13)(a)—delete "security" wherever occurring and
substitute in each case:
bond
38—Amendment
of section 65—Quiet enjoyment
(1) Section 65(2), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $5 000.
(2) Section 65(2)—delete "The liability to be prosecuted for
the offence is in addition to civil liability for breach of the
agreement."
39—Amendment
of section 66—Security of premises
(1) Section 66(1)—after paragraph (b) insert:
and
(c) neither the landlord nor the tenant will unreasonably withhold his or
her consent to the alteration, removal or addition of a lock or security device
by, and at the expense of, the other.
(2) Section 66(2), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $5 000.
(3) Section 66(2)—delete "The liability to be prosecuted for
the offence is in addition to civil liability for breach of the
agreement."
(4) Section 66(3), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $5 000.
(5) Section 66(3)—delete "The liability to be prosecuted for
the offence is in addition to civil liability the agent or the landlord may
incur."
40—Amendment
of section 68—Landlord's obligation to repair
(1) Section 68(1)—delete "The obligation applies even though
the tenant had notice of the state of disrepair before entering into
occupation."
(2) Section 68—after subsection (1) insert:
(1a) The obligation to repair applies even though the tenant had notice of
the state of disrepair before entering into occupation.
(3) Section 68(2)(b)—delete "registered housing co-operative"
and substitute:
registered community housing organisation
(4) Section 68(3)—delete subsection (3) and
substitute:
(3) If—
(a) premises or ancillary property are in a state of disrepair that does
not arise from a contravention of the residential tenancy agreement by the
tenant; and
(b) the state of disrepair is, unless remedied, likely to result in
personal injury or damage to property or undue inconvenience; and
(c) the landlord—
(i) has been notified of the state of disrepair by the tenant but has
failed to take reasonable action to remedy the state of disrepair; or
(ii) has not been notified of the state of disrepair despite the tenant's
reasonable attempts to do so,
then the tenant is entitled—
(d) to reasonable compensation from the landlord in respect of any damage
to property resulting from the state of disrepair after the tenant has notified,
or made a reasonable attempt to notify, the landlord of the state of disrepair
(however, the tenant must take reasonable steps to mitigate any loss and is not
entitled to compensation for damage that could have been avoided by those
steps); and
(e) to recover from the landlord reasonable costs incurred by the tenant
in having the state of disrepair remedied, but only if the repairs are carried
out by a person who is licensed to carry out the necessary work and the person
provides the landlord with a report on the work carried out and the apparent
cause of the state of disrepair.
(5) Section 68(4)—after "repairing the premises"
insert:
or to compensation under this section
(6) Section 68—after subsection (4) insert:
(5) The Tribunal may, on application by the tenant, order the landlord to
pay to the tenant compensation to which the tenant is entitled under this
section.
41—Amendment
of section 69—Tenant's responsibility for cleanliness, damage and
loss
(1) Section 69(1)—after paragraph (a) insert:
(ab) must replace, or compensate the landlord for the reasonable cost of
replacing, any ancillary property lost or destroyed while in the care of the
tenant; and
(2) Section 69(2), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $2 500.
(3) Section 69(2)—delete "The liability to be prosecuted for an
offence is in addition to any civil liability for breach of the
agreement."
(4) Section 69—after subsection (3) insert:
(3a) If a tenant unintentionally causes damage to the premises or
ancillary property as a result of the use of a domestic facility requiring
instruction, the landlord is not entitled to compensation for the damage
unless—
(a) the domestic facility is listed in the residential tenancy agreement
as a domestic facility requiring instruction; and
(b) the landlord complied with section 48(2) in relation to the
domestic facility.
42—Amendment
of section 70—Alteration of premises
(1) Section 70(1)—after "written consent" insert:
(which must not be unreasonably withheld)
(2) Section 70(3)—after "premises by" insert:
making an alteration or addition to the premises or by
43—Insertion
of Part 4 Division 9A
After Part 4 Division 9 insert:
Division 9A—Landlord's obligation to advise of sale
of premises
71A—Sale of residential
premises
(1) It is a term of a residential tenancy agreement that—
(a) the landlord will give the tenant written notice of the landlord's
intention to sell the residential premises not later than 14 days after the
landlord enters into a sales agency agreement for the sale of the premises or
determines to make the premises available for inspection by prospective
purchasers; and
(b) the residential premises will not be advertised for sale or made
available for inspection by prospective purchasers before the day falling
14 days after the tenant is given notice of the landlord's intention to
sell the premises.
(2) It is a term of a residential tenancy agreement that, if a contract is
entered into for the sale of the residential premises, the landlord must, not
less than 14 days before the day of settlement under the contract or, if
the day of settlement is less than 14 days after the day on which the
contract is entered into, as soon as possible after the contract is entered
into, give the tenant written notice of the name of the purchaser under the
contract and the date from which rent is to be paid to him or her.
Section 72—delete the section and substitute:
72—Right of entry
(1) It is a term of a
residential tenancy agreement that the landlord (or an agent of the landlord)
may enter the premises—
(b) to collect rent (if a reasonable alternative method of payment of rent
not involving attendance at the premises has been offered to, but not accepted
by, the tenant)—
(i) not more than once each week; and
(ii) only at a time previously arranged with the tenant (which may only be
outside normal hours if the arrangement has been made no more than 7 days
before the day of entry); or
(c) to inspect the premises—
(i) not more than once each 4 weeks; and
(ii) only in accordance with a written notice given to the tenant no less
than 7 and no more than 14 days before the day of
entry—
(A) stating the purpose of the proposed entry and the date of the proposed
entry; and
(B) specifying a period of up to 2 hours (which must be within normal
hours) within which the proposed entry will occur,
(however, if the premises are in a remote location or it is necessary for
the landlord or agent to be accompanied by a person for the purposes of the
inspection, the notice need not specify a 2 hour period within which the
proposed entry is to occur, but the entry must occur within normal
hours);
(d) to carry out garden maintenance, but only—
(i) at a time previously arranged with the tenant no more than 7 days
before the day of entry; or
(ii) in accordance with a written notice given to the tenant no less
than 7 and no more than 14 days before the day of entry stating the
purpose of the proposed entry and the date and time (which must be within normal
hours) of the proposed entry; or
(e) to carry out necessary maintenance (other than garden maintenance) or
repairs (other than in an emergency), but only at a time within normal hours of
which the tenant has been given at least 48 hours notice; or
(f) to show the premises to prospective tenants during the period of
28 days preceding the termination of the tenancy agreement, but only on a
reasonable number of occasions and only at a time within normal hours of which
the tenant has been given reasonable notice; or
(g) to show the premises to prospective purchasers, on not more than
2 occasions in any 7 day period (unless the tenant has agreed
otherwise), but only—
(i) at a time previously arranged with the agreement of the tenant (who
must not unreasonably refuse to agree to times when the premises are to be
available for inspection by prospective purchasers); or
(ii) if agreement cannot be reached with the tenant—at a time within
normal hours of which the tenant has been given reasonable notice; or
(h) if the landlord has
given the tenant notice of a breach of the residential tenancy agreement under
section 80—to determine whether the breach has been remedied, but
only in accordance with a written notice in the prescribed form given to the
tenant no less than 7 and no more than 14 days before the day of entry
stating the purpose of the proposed entry and the date and time (which must be
within normal hours) of the proposed entry; or
(i) for some other genuine purpose, but only—
(i) in accordance with a written notice given to the tenant no less
than 7 and no more than 14 days before the day of entry and stating
the purpose of the proposed entry and the date and time (which must be within
normal hours) of the proposed entry; or
(ii) with the consent of the tenant; or
(j) if the landlord
believes on reasonable grounds that the tenant has abandoned the
premises.
(2) It is a term of
a residential tenancy agreement that if the tenant has indicated to the landlord
that he or she wishes to be present during the period when the landlord or
landlord's agent is at the premises, the landlord (or an agent of the landlord)
may not enter the premises unless a reasonable effort has been made to arrange
for the visit to occur at a time when it is convenient for the tenant to be
present (having regard to the work and other commitments of both the tenant and
the persons entering the premises).
(3)
Subsection (2)
does not apply to entry under
subsection (1)(a),
(h) or
(j).
(4) It is a term of a residential tenancy agreement that neither the
landlord nor an agent of the landlord may enter the premises otherwise than in
accordance with the preceding subsections.
(5) This section does not apply to a part of the premises that the tenant
uses in common with the landlord or another tenant of the landlord.
(6) In this section—
normal hours means the hours between 8am and 8pm on any day
other than a Sunday or public holiday.
45—Substitution
of heading to Part 4 Division 11
Heading to Part 4 Division 11—delete the heading and
substitute:
Division 11—Statutory charges
46—Amendment
of section 73—Statutory charges
(1) Section 73(1)—delete "statutory rates, taxes and charges"
and substitute:
statutory charges
(2) Section 73(2)—delete subsection (2) and
substitute:
(2) However, the following provisions apply subject to
subsection (3):
(a) rates and charges for water supply are to be borne as agreed between
the landlord and tenant;
(b) in the absence of an agreement—
(i) if the supply of water to the premises is separately
metered—rates and charges for water supply are to be borne by the tenant;
and
(ii) in any other case—rates and charges for water supply are to be
borne by the landlord.
(3) A tenant is not
required to pay rates and charges for water supply if—
(a) the landlord fails to request payment from the tenant within
3 months of the issue of the bill for those rates and charges by the water
supply authority; or
(b) the tenant has requested from the landlord a copy of the account for
the rates and charges and the landlord has failed to provide the copy to the
tenant within 14 days of the request and at no cost.
47—Amendment
of section 74—Assignment of tenant's rights under residential tenancy
agreement
(1) Section 74(2)(b)(i)—delete "registered housing
co-operative" and substitute:
registered community housing organisation
(2) Section 74(2a)—delete subsection (2a) and
substitute:
(2a) The absence of consent does not invalidate an assignment or sublease
unless the landlord is a registered community housing organisation.
(2ab) However, if the landlord's consent to an assignment is not
obtained—
(a) the tenant who assigns the interest remains liable to the landlord
under the residential tenancy agreement (together with the new tenant, who is
jointly and severally liable) unless the landlord has unreasonably withheld
consent; but
(b) this continuing liability of the assignor does not apply, in the case
of a periodic tenancy, to a liability accruing more than 21 days after the
landlord became aware or ought reasonably to have become aware of the assignment
(whichever is the earlier).
(3) Section 74(5)—delete "security" wherever occurring and
substitute in each case:
a bond
48—Amendment
of section 77—Accelerated rent and liquidated damages
Section 77(3), penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $5 000.
Expiation fee: $315.
After section 78 insert:
78A—Compensation for expenses
(1) If, as a direct consequence of a tenant being at fault, a landlord
reasonably incurs costs or expenses in connection with the residential tenancy
agreement, the landlord is entitled to compensation for the costs or
expenses.
Note—
Examples of faults that may give rise to compensation for costs or expenses
under this section:
• the dishonouring of a cheque provided by the tenant;
• the failure of a transaction for the transfer of funds from the
tenant to the landlord;
• the loss by the tenant of a record or document.
(2) The Tribunal may, on application by the landlord, order the tenant to
pay to the landlord compensation to which the landlord is entitled under this
section.
50—Amendment
of section 79—Termination of residential tenancy
Section 79(a)—delete paragraph (a)
After section 79 insert:
79A—Agreement for fixed term continues if not
terminated
(1) If a residential tenancy agreement for a fixed term has not terminated
before the end of the fixed term or at the end of the fixed term by notice of
termination under section 83A or 86A, the agreement
continues—
(a) as a residential tenancy agreement for a periodic tenancy with a
tenancy period equivalent to the interval between rental payment times under the
agreement; and
(b) with terms of agreement that in other respects are the same as those
applying under the agreement immediately before the end of the fixed
term.
(2) This section does not apply in relation to a residential tenancy
agreement to which section 4 applies.
52—Amendment
of section 81—Termination because possession is required by landlord for
certain purposes
(1) Section 81(3), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $2 500.
(2) Section 81(4), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $2 500.
53—Amendment
of section 83—Termination by landlord without specifying a ground of
termination
Section 83(2)—delete subsection (2) and
substitute:
(2) However—
(a) a tenancy cannot be terminated under this section if—
(i) it is for a fixed term; or
(ii) the premises are subject to a housing improvement notice; or
(iii) an order is in force under section 56 (Excessive rent) in
respect of the premises or proceedings for such an order have been commenced;
and
(b) a registered housing co-operative cannot terminate a tenancy with a
member of the co-operative.
54—Insertion
of sections 83A and 83B
After section 83 insert:
83A—Notice to be given at end of fixed
term
(1) A landlord may, by notice of termination given to the tenant,
terminate a residential tenancy agreement for a fixed term at the end of the
fixed term without specifying a ground of termination.
(2) The period of notice under this section must be at least
28 days.
83B—Termination where agreement
frustrated
(1) A landlord may,
by notice of termination given to the tenant, terminate a residential tenancy
agreement on the ground that, otherwise than as a result of a breach of the
agreement, the premises or a substantial portion of the
premises—
(a) have been
destroyed or rendered uninhabitable; or
(b) have ceased to
be lawfully usable for residential purposes; or
(c) have been
acquired by compulsory process.
(2) A notice given under
subsection (1)(a)
or
(b) may terminate the
agreement immediately.
(3) A notice given under
subsection (1)(c)
must provide for a period of notice of at least 60 days.
55—Amendment
of section 84—Limitation of right to terminate
(1) Section 84(1)—delete subsection (1) and
substitute:
(1) If—
(a) premises to which a residential tenancy agreement applies are subject
to a housing improvement notice; or
(b) an order is in force under section 56 (Excessive rent) in respect
of the premises or proceedings for such an order have been commenced,
the landlord may only terminate the tenancy by notice of termination under
this Part if—
(c) the notice of termination is given on 1 or more grounds
prescribed by regulation for the purposes of this subsection; and
(d) the Tribunal authorises the notice of termination.
(2) Section 84—after subsection (2) insert:
(3) This section does not apply to a notice of termination given by the
landlord—
(a) to terminate a residential tenancy agreement for a fixed term at the
end of the fixed term; or
(b) for a failure to pay rent.
After section 85 insert:
85A—Termination by tenant if residential premises
for sale
The tenant under a residential tenancy agreement may, by notice of
termination given to the landlord, terminate the tenancy if—
(a) within 2 months after the start of the agreement, the landlord
enters into a contract for the sale of the residential premises; and
(b) the landlord did not, before the residential tenancy agreement was
entered into, advise the tenant as required under section 47A.
57—Insertion
of sections 86A and 86B
After section 86 insert:
86A—Notice to be given at end of fixed
term
(1) The tenant under a residential tenancy agreement for a fixed term may,
by notice of termination given to the landlord, terminate the tenancy at the end
of the fixed term without specifying a ground of termination.
(2) The period of notice under this section must be at least
28 days.
86B—Termination where agreement
frustrated
(1) A tenant may, by
notice of termination given to the landlord, terminate a residential tenancy
agreement on the ground that, otherwise than as a result of a breach of the
agreement, the premises or a substantial portion of the
premises—
(a) have been destroyed
or rendered uninhabitable; or
(b) have ceased to be
lawfully usable for residential purposes; or
(c) have been acquired
by compulsory process.
(2) A notice given under
subsection (1) may
terminate the agreement immediately.
58—Amendment
of section 87—Termination on application by landlord
Section 87—after subsection (1) insert:
(1a) The Tribunal may,
on application by a landlord, terminate a residential tenancy and make an order
for possession of the premises if satisfied that—
(a) the tenant has failed to pay rent in breach of the residential tenancy
agreement; and
(b) on at least 2 occasions in the 12 month period preceding the
breach—
(i) the tenant was given a notice under section 80 of a breach of the
agreement on the ground of a failure to pay rent; and
(ii) the notice was not ineffectual within the meaning of
section 80(2).
(1b) On an application
under
subsection (1a), the
Tribunal may make alternative orders providing for the tenant to comply with
specified conditions in relation to the payment of rent under the
agreement.
59—Amendment
of section 90—Tribunal may terminate tenancy if tenant's conduct
unacceptable
(1) Section 90(3), definition of interested
person—after paragraph (b) insert:
or
(c) a strata corporation or community corporation representing the
interests of persons who have been adversely affected by the conduct of the
tenant on which the application is based; or
(d) a police officer; or
(e) an authorised officer within the meaning of the Fair
Trading Act 1987.
(2) Section 90—after subsection (3) insert:
(4) If an
application relating to a tenant is, or is to be, made under this section by an
authorised officer within the meaning of the Fair
Trading Act 1987, the authorised officer may refer the application
to the Commissioner of Police.
(5) As soon as reasonably practicable following referral of an application
under
subsection (4),
the Commissioner of Police must make available to the authorised officer
information to which the Commissioner of Police has access relevant to the
application (unless the Commissioner of Police considers there is good reason
for withholding the information).
After section 92 insert:
92A—Notice of termination void if no action
taken
If—
(a) a notice of termination is given to a landlord or tenant;
and
(b) the tenant has not given up vacant possession of the residential
premises to the landlord within 1 month after the day on which he or she is
to do so in accordance with the notice; and
(c) the landlord has not, within that period, applied to the Tribunal for
an order for possession of the premises,
the notice of termination is ineffectual and the residential tenancy will
be taken not to have been terminated.
61—Amendment
of section 93—Order for possession
(1) Section 93(1)—delete subsection (1) and
substitute:
(1) If a residential tenancy is terminated by notice of termination under
this Act or, in the case of a tenancy under which the South Australian Housing
Trust is landlord, under the residential tenancy agreement, the landlord may
apply to the Tribunal for an order for possession of the premises.
Note—
The landlord may not make the application if the notice of termination is
ineffectual under section 92A.
(2) Section 93(2)—delete "has terminated or"
62—Amendment
of section 94—Abandoned premises
Section 94—after subsection (1) insert:
(1a) In determining whether a tenant has abandoned premises, the Tribunal
may have regard to—
(a) any failure by the tenant to pay rent or to carry out obligations
under the residential tenancy agreement; and
(b) any evidence suggesting that the tenant no longer occupies the
premises as a place of residence; and
(c) any other matter the Tribunal thinks fit.
63—Amendment
of section 95—Repossession of premises
Section 95, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $5 000.
64—Substitution
of Part 5 Division 7
Part 5 Division 7—delete the Division and
substitute:
Division 7—Abandoned property
97—Abandoned property
(1) This Division applies to property (abandoned property)
that is left on residential premises by a tenant after termination of a
residential tenancy agreement.
(2) Nothing in this Division affects any obligation a landlord may have in
relation to property left on the premises under another Act or law.
97A—Offence to deal with abandoned property in
unauthorised way
A landlord must not deal with abandoned property otherwise than in
accordance with this Division.
Maximum penalty: $2 500.
97B—Action to deal with abandoned property other
than personal documents
(1) This section applies to abandoned property other than personal
documents.
(2) The landlord may,
at any time after recovering possession of the premises, remove from the
premises and destroy or dispose of abandoned property consisting of perishable
goods.
(3) The landlord may,
when at least 2 days have passed after recovering possession of the
premises, remove from the premises and destroy or dispose of abandoned property,
other than perishable goods, if the value of the property is less than a fair
estimate of the cost of removal, storage and sale of the property.
(4) If there is
abandoned property (other than personal documents) on the premises that may not
be dealt with under
subsection (2) or
(3) (valuable
abandoned property), the landlord must —
(a) as soon as practicable, make reasonable attempts to notify the tenant
that such property has been found on the premises; and
(b) take reasonable
steps to keep the property safe until at least 28 days after possession of
the premises is recovered.
(5) A person who is entitled to possession of valuable abandoned property
may reclaim the property by paying to the landlord the reasonable costs incurred
by the landlord in dealing with the property in accordance with this Division
and any other reasonable costs incurred by the landlord as a result of the
property being left on the premises.
(6) If valuable abandoned property is not reclaimed within the period of
28 days referred to in
subsection (4)(b),
the landlord may, subject to the regulations, sell or otherwise lawfully dispose
of the property (as if the landlord were the owner of the property).
(7) If valuable abandoned property is sold in accordance with this
section, the landlord—
(a) may retain out of the proceeds of sale—
(i) the reasonable costs incurred by the landlord in dealing with the
property in accordance with this Division and any other reasonable costs
incurred by the landlord as a result of the property being left on the premises;
and
(ii) any amounts owed to the landlord under the residential tenancy
agreement; and
(b) must pay the balance (if any) to the owner of the property, or if the
identity and address of the owner are not known to, or reasonably ascertainable
by, the landlord, to the Commissioner for the credit of the Fund.
(8) If a dispute arises between a landlord and tenant about the exercise
of powers conferred by this section, the Tribunal may, on application by either
party to the dispute, make orders resolving the matters in dispute.
97C—Action to deal with abandoned personal
documents
(1) This section applies to abandoned property consisting of personal
documents.
(a) as soon as practicable, make reasonable attempts to notify the tenant
that the documents have been found on the premises; and
(b) take reasonable
steps to keep the documents safe until at least 28 days after possession of
the premises is recovered.
(3) If the personal
documents are not reclaimed by the tenant within the 28 day period referred
to in
subsection (2)(b),
the landlord may destroy or dispose of the documents.
(4)
Subsection (3)
applies subject to any Act relating to the preservation of records.
65—Amendment
of section 99—Enforcement of orders for possession
(1) Section 99(1)—delete subsection (1) and
substitute:
(1) If an order for possession of premises is made by the Tribunal and the
person in whose favour the order was made advises the Tribunal, within
14 days of the day on which the order takes effect or such longer period as
the Tribunal may allow, that the order has not been complied
with—
(a) the order is enforceable by a bailiff of the Tribunal (and, subject to
subsection (3), only by a bailiff of the Tribunal); and
(b) the bailiff must enforce the order as soon as is practicable after the
Tribunal is advised that it has not been complied with.
(2) Section 99(3) and (8)—delete "member of the police
force" wherever occurring and substitute in each case:
police officer
(3) Section 99(5), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $2 500.
(4) Section 99(6), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $2 500.
After section 99 insert:
Part 5A—Residential tenancy
databases
99A—Definitions
In this Division—
agent of a landlord means a person employed, or otherwise
authorised, by the landlord to act as the landlord’s agent;
database means a system, device or other thing used for
storing information, whether electronically or in some other form;
database operator means an entity that operates a residential
tenancy database;
inaccurate, in relation to personal information in a
residential tenancy database, includes information that is inaccurate
because—
(a) the information indicates that the person owes a landlord an amount
that is more than the bond for a residential tenancy agreement; and
(b) the amount owed was paid to the landlord more than 3 months after
the amount became due;
Note—
If the amount is paid to the landlord within 3 months after the amount
became due, the information would be out of date. See definition of out of
date,
paragraph (a).
list personal information in a residential tenancy database
means—
(a) enter the personal information into the database; or
(b) give the personal information to a database operator or someone else
for entry into the database,
and includes amend personal information about a person in the database to
include additional personal information about the person;
out of date, in relation to personal information in a
residential tenancy database, means the information is no longer accurate
because—
(a) for a listing made
on the basis the person owes a landlord an amount that is more than the bond for
a residential tenancy agreement—the amount owed was paid to the landlord
within 3 months after the amount became due; or
(b) for a listing made on the basis the Tribunal has made an order
terminating the residential tenancy agreement—the order has been set
aside, varied or quashed on review or appeal;
personal information means information (including an
individual’s name) or an opinion, whether true or not, about an individual
whose identity is apparent, or can reasonably be ascertained, from the
information or opinion;
residential tenancy database means a
database—
(a) containing personal information—
(i) relating to, or arising from, the occupation of residential premises
under a residential tenancy agreement; or
(ii) entered into the database for reasons relating to, or arising from,
the occupation of residential premises under a residential tenancy agreement;
and
(b) with an intended purpose of use by landlords or agents of landlords
for checking a person’s tenancy history for deciding whether a residential
tenancy agreement should be entered into with the person.
Note—
For statutory provisions relating to reports provided otherwise than
through the use of a residential tenancy database see Part 4 of the Fair
Trading Act 1987.
99B—Application
This Division does not apply to a residential tenancy database kept by an
entity (including a department of the government of a State or Territory) for
use only by that entity or its officers, employees or agents.
99C—Notice of usual use of
database
(1) This section applies if—
(a) a person (the applicant) applies to a landlord, whether
or not through the landlord’s agent, to enter into a residential tenancy
agreement; and
(b) the landlord or, if the application is made through the
landlord’s agent, the landlord or agent usually uses 1 or more
residential tenancy databases for deciding whether a residential tenancy
agreement should be entered into with a person.
(2) The landlord or
agent must, when the application is made, give the applicant written notice
stating the following:
(a) the name of
each residential tenancy database the landlord or agent usually uses, or may
use, for deciding whether a residential tenancy agreement should be entered into
with a person;
(b) that the reason the landlord or agent uses a residential tenancy
database mentioned in
paragraph (a) is
for checking an applicant’s tenancy history;
(c) for each residential tenancy database mentioned in
paragraph (a),
how persons may contact the database operator who operates the database and
obtain information from the operator.
Maximum penalty: $5 000.
Expiation fee: $315.
(3)
Subsection (2)
applies in relation to a residential tenancy database whether or not the
landlord or agent intends to use the database for deciding whether a residential
tenancy agreement should be entered into with the applicant.
(4) However, the landlord or agent is not required to give the written
notice mentioned in
subsection (2)
if a written notice stating the matters mentioned in the subsection was given to
the applicant not more than 7 days before the application was
made.
Example—
The landlord or agent gave a written notice stating the matters mentioned
in
subsection (2)
to the applicant when the applicant obtained the application form and that
happened less than 7 days before the applicant made the
application.
99D—Notice of listing if database
used
(1) This section applies if—
(a) a person (the applicant) applies to a landlord, whether
or not through the landlord’s agent, to enter into a residential tenancy
agreement; and
(b) the landlord or, if the application is made through the
landlord’s agent, the landlord or agent uses a residential tenancy
database for checking whether personal information about the applicant is in the
database; and
(c) personal information about the applicant is in the database.
(2) The landlord or
agent must, as soon as possible but within 7 days after using the database,
give the applicant a written notice stating—
(a) the name of the database; and
(b) that personal information about the applicant is in the database;
and
(c) the name of
each person who listed the personal information in the database; and
(d) how and in what circumstances the applicant can have the personal
information removed or amended under this Division.
Maximum penalty: $5 000.
Expiation fee: $315.
(3) However,
subsection (2)(c)
requires the written notice to state the name of a person only if the person is
identified in the residential tenancy database as the person who listed the
personal information in the database.
99E—Listing can be made only for particular
breaches by particular persons
(1) A landlord,
landlord’s agent or database operator must not list personal information
about a person in a residential tenancy database unless—
(a) the person was named as a tenant in a residential tenancy agreement
that has ended; and
(b) the person has breached the agreement; and
(c) because of the breach, either—
(i) the person owes the landlord an amount that is more than the bond for
the agreement; or
(ii) the Tribunal has made an order terminating the residential tenancy
agreement; and
(i) relates only to the breach; and
(ii) is accurate,
complete and unambiguous.
Maximum penalty: $5 000.
(2) Without limiting
subsection (1)(d)(ii),
the personal information must indicate the nature of the breach.
Examples of how personal information can indicate nature of
breach—
• including the words ‘rent arrears’ in personal
information about a person who has breached a residential tenancy agreement by
failing to pay rent;
• including the words ‘damage to premises’ in the
personal information about a person who has breached a residential tenancy
agreement by damaging premises.
99F—Further restriction on
listing
(1) A landlord,
landlord’s agent or database operator must not list personal information
about a person in a residential tenancy database unless the landlord, agent or
operator—
(a) has, without charging a fee—
(i) given the person a copy of the personal information; or
(ii) taken other reasonable steps to disclose the personal information to
the person; and
(b) has given the
person at least 14 days to review the personal information and make
submissions—
(i) objecting to its entry into the database; or
(ii) about its accuracy, completeness and clarity; and
(c) has considered
any submissions made.
Maximum penalty: $5 000.
(2)
Subsection (1)
does not apply if the landlord, landlord’s agent or database operator
cannot locate the person after making reasonable enquiries.
(3)
Subsection (1)(b)
and
(c) do not
apply—
(a) to information that, at the time of the listing, is contained in
publicly available court or Tribunal records; or
(b) to a listing involving only an amendment of personal information about
a person under
section 99G.
99G—Ensuring quality of
listing—landlord’s or agent’s obligation
(1) This section applies if a landlord or landlord’s agent who lists
personal information in a residential tenancy database becomes aware that the
information is inaccurate, incomplete, ambiguous or out of date.
(2) The landlord or
agent must, within 7 days, give written notice of the following to the
database operator who keeps the database:
(a) if the information is inaccurate, incomplete, or
ambiguous—
(i) that the information is inaccurate, incomplete or ambiguous;
and
(ii) how the information must be amended so that it is no longer
inaccurate, incomplete or ambiguous;
Example—
A landlord lists, in a residential tenancy database, personal information
about a tenant who owes the landlord an amount that is more than the bond for a
residential tenancy agreement. The tenant pays the amount owed to the landlord
more than 3 months after the amount became due. The landlord must, within
7 days after the landlord becomes aware of the payment, give the database
operator who keeps the database written notice of—
(a) the personal information being inaccurate; and
(b) the details of the payment to be included in the personal information
so that it is no longer inaccurate.
(b) if the information is out of date—that the information is out of
date and must be removed.
Maximum penalty: $5 000.
(3) The landlord or agent must keep a copy of the written notice for
1 year after it was given under
subsection (2).
Maximum penalty: $5 000.
99H—Ensuring quality of listing—database
operator’s obligation
(1) This section applies if a landlord or landlord’s agent who has
listed personal information in a tenancy database gives the database operator
who operates the database a written notice stating that the personal information
must be—
(a) amended in a stated way to make it accurate, complete and unambiguous;
or
(b) removed.
(2) The database operator must amend the personal information in the
stated way, or remove the personal information, within 14 days after the
operator is given the written notice.
Maximum penalty: $5 000.
99I—Providing copy of personal information
listed
(1) A landlord or
landlord’s agent who lists personal information about a person in a
residential tenancy database must, if asked in writing by the person, give the
person a copy of the information within 14 days after the request is
made.
Maximum penalty: $5 000.
(2) A database
operator must, if asked in writing by a person whose personal information is in
the residential tenancy database kept by the operator, give the person a copy of
the information within 14 days after the request is made.
Maximum penalty: $5 000.
(3) If a landlord or landlord’s agent charges a fee for giving
personal information under
subsection (1),
or a database operator charges a fee for giving personal information under
subsection (2),
the subsection applies only if the fee has been paid.
(4) A fee charged by a landlord or landlord’s agent for giving
personal information under
subsection (1),
or by a database operator for giving personal information under
subsection (2)—
(a) must not be excessive; and
(b) must not apply to lodging a request for the information.
99J—Keeping personal information
listed
(1) A database
operator must not keep personal information about a particular person in the
operator’s residential tenancy database for longer than—
(b) if, under the
national privacy principles, the operator of the database is required to remove
the personal information before the end of the 3 year period mentioned in
paragraph (a)—the
period ending when the information must be removed under the national privacy
principles.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) However, a database operator may keep the person’s name in the
operator’s residential tenancy database for longer than the period stated
in
subsection (1)(a)
or
(b)
if—
(a) other personal information about the person in the database is
attached to the name; and
(b) the other personal information is not required to be removed under
subsection (1)
or another law.
(3) This section does not limit the operation of another provision of this
Part or any other law that requires the removal of the personal
information.
(4) In this section—
national privacy principles means the principles stated in
Schedule 3 of the Privacy Act 1988 of the Commonwealth.
99K—Powers of Tribunal
(1) The Tribunal
may, on the application of the Commissioner or a person whose personal
information is in a residential tenancy database, make such orders against a
landlord, landlord’s agent or database operator as may be necessary or
expedient in the opinion of the Tribunal to ensure that the compliance with this
Part or any provision of this Part.
(2) If a database
operator commits an offence against this Part, the Tribunal may, on the
application of the Commissioner, make an order requiring the database operator
to comply with conditions specified in the order in relation to a residential
tenancy database operated by the operator.
(3) An order under
subsection (1)
or
(2) is effective for
such period as may be specified in the order or until further order of the
Tribunal.
99L—Notifying relevant non-parties of Tribunal
order about listing
(1) This section applies if—
(a) the Tribunal makes an order that a person must, in relation to a
residential tenancy database—
(i) amend personal information in a stated way; or
(ii) remove all or particular personal information about a person;
and
(b) the person against whom the order is made (the relevant
person) is not a party to the proceedings before the Tribunal.
(2) The Tribunal must ensure that a copy of the order is given to the
relevant person.
67—Amendment
of section 100—Residential Tenancies Fund
(1) Section 100(3)—delete "security" and substitute:
bonds
(2) Section 100(5)—delete "security bonds" and
substitute:
bonds
(3) Section 100—after subsection (5) insert:
(6) In this section—
bond includes a bond within the meaning of
Part 7.
68—Amendment
of section 101—Application of income
(1) Section 101(a)—after "Tribunal)" insert:
and the Residential
Parks Act 2007
(2) Section 101(b) to (f) (inclusive)—delete
paragraphs (b) to (f) and substitute:
(b) for the education of landlords, tenants, rooming house proprietors,
rooming house residents and park owners and residents of residential parks about
their statutory and contractual rights and obligations, and for other
educational purposes approved by the Commissioner; and
(c) towards the costs of projects directed at providing accommodation, or
assistance related to accommodation, for the homeless or other disadvantaged
sections of the community; and
(d) on research, approved by the Commissioner, into—
(i) the availability of rental accommodation within the community;
and
(ii) areas of social need related to the availability (or
non-availability) of rental accommodation or particular kinds of rental
accommodation; and
(iii) other matters connected with, or arising under, this Act or the
Residential
Parks Act 2007; and
(e) for the benefit of landlords, tenants, rooming house proprietors,
rooming house residents and park owners and residents of residential parks in
other ways approved by the Commissioner; and
(f) for any other purposes connected with, or arising under, this Act or
the Residential
Parks Act 2007 approved by the Commissioner.
(3) Section 101—after its present contents as amended by this
section (now to be designated as subsection (1)) insert:
(2) In this section, residential park, park
owner and resident of a residential park have the same
respective meanings as in the Residential
Parks Act 2007.
Part 7—delete the Part and substitute:
Part 7—Rooming houses
Division 1—Interpretation
103—Interpretation
In this Part—
bond means an amount a resident is required to pay under a
rooming house agreement, or an agreement collateral to a rooming house
agreement, as security for the performance of obligations under a rooming house
agreement;
house rules—see
section 105A;
proprietor means rooming house proprietor;
rent means an amount payable under a rooming house agreement
for accommodation at the rooming house;
resident means a rooming house resident.
Division 2—Rooming house
agreements
104—Standard terms of rooming house
agreements
A rooming house agreement will be taken to include terms prescribed by
regulation as standard terms for rooming house agreements.
105—Copies of written
agreements
(1) If a proprietor invites or requires a resident to sign a written
rooming house agreement, or a document recording its terms, the proprietor must
ensure that—
(a) the resident receives a copy of the agreement or other document (for
the resident to keep), when the resident signs it; and
(b) if the agreement or other document has not been signed by the
proprietor, a copy of the agreement or other document, as executed by all
parties, is delivered to the resident within 14 days after the resident
gives the agreement or other document back to the proprietor to complete its
execution.
Maximum penalty: $2 500.
Expiation fee: $210.
(2) A rooming house agreement is not rendered void or unenforceable by
non-compliance with a requirement of this section.
Division 3—House rules
105A—House rules
(1) A proprietor of a rooming house may make written rules about conduct
or behaviour of the residents.
(2) A house rule will be void to the extent that—
(a) it is made for a purpose other than enhancing the health or safety of
persons or the safety of property; or
(b) it is inconsistent with this Act or any other Act or law.
(3) The house rules for a rooming house (as from time to time in force
under this section) are to be taken to constitute terms of every rooming house
agreement relating to the rooming house.
(4) The Subordinate
Legislation Act 1978 does not apply to house rules.
105B—Amendment of house rules
(1) A proprietor may make written amendments to house rules for a rooming
house.
(2) An amendment does not have effect unless each resident of the rooming
house has been given 7 days written notice of the amendment.
(3) In this section—
amendment to house rules includes—
(a) a variation of a house rule; or
(b) the addition to the house rules of a new rule; or
(c) the revocation of an existing house rule.
105C—Application to Tribunal if house rules are
considered unreasonable
(1) An application may be made to the Tribunal by a resident of a rooming
house for a declaration that a house rule for the rooming house is
unreasonable.
(2) On an application under this section, the Tribunal may, by
order—
(a) declare the rule or proposed rule to be reasonable; or
(b) declare the rule or proposed rule to be unreasonable and, if the
Tribunal considers it appropriate, require the proprietor to amend the rule in a
specified manner.
(3) A house rule is void if the Tribunal makes an order that the rule or
proposed rule is unreasonable.
(4) If a proprietor does not amend a house rule as required by order of
the Tribunal, the proprietor is guilty of an offence.
Maximum penalty: $2 500.
105D—Availability of house
rules
(1) A rooming house proprietor must—
(a) ensure that the house rules (as in force from time to time) are
displayed in a prominent place at the rooming house; and
(b) at the request of a resident or prospective resident of the rooming
house, provide a copy of the house rules (as in force from time to time) to the
resident or prospective resident.
Maximum penalty: $2 500.
Expiation fee: $210.
(2) However, if the rooming house proprietor has, within the previous
2 months, provided a copy of the house rules to a person, the proprietor
need not provide a further copy but, in that case, must make a copy available
for inspection by the person.
Division 4—Mutual rights and obligations of
proprietors and residents
Subdivision 1—Rent and other
charges
105E—Permissible consideration and statutory
charges
(1) A proprietor must not require or receive from a resident or
prospective resident a payment, other than rent or a bond (or both), under a
rooming house agreement, or as a condition to entering into, renewing or
extending a rooming house agreement.
Maximum penalty: $2 500.
(2) It is a term of a rooming house agreement that the proprietor must
bear all statutory charges imposed in respect of the accommodation.
(3) However, the proprietor may require a resident to make a
payment—
(a) for rates and charges for water supply; or
(b) for the provision of electricity, gas or telephone services at the
premises; or
(c) for meals or other facilities or services (such as meals, cleaning and
laundry of linen) provided by the proprietor,
if the proprietor has, before the facilities or services were made
available or provided to the resident, informed the resident in writing of the
basis on which charges for those facilities or services would be made.
(4) A proprietor must, before requiring a resident to make a payment for
facilities or services, give the resident an itemised account setting out the
resident's proportional use of the facilities or services.
Maximum penalty: $1 250.
105F—Rent in advance
(1) A person must not demand or require another person to pay more than
1 weeks rent under a rooming house agreement before the end of the first
week of the period of accommodation under the agreement.
Maximum penalty: $2 500.
Expiation fee: $210.
(2) If rent has been paid under a rooming house agreement, a person must
not require a further payment of rent until the end of the last period for which
rent has been paid.
Maximum penalty: $2 500.
Expiation fee: $210.
(3) A person must not require another person to give a post-dated cheque
or other post-dated negotiable instrument in payment of rent under a rooming
house agreement.
Maximum penalty: $2 500.
Expiation fee: $210.
105G—Duty to provide statement or give receipt for
payments
(1) If a resident makes
a payment under a rooming house agreement or an agreement collateral to a
rooming house agreement, the proprietor must, at the reasonable request of the
resident, give the resident a statement of the relevant information for each
payment made during the period specified in the request (and such statement must
be given to the resident within 7 days of the making of the
request).
Maximum penalty: $2 500.
Expiation fee: $210.
(2) If a resident makes a payment under a rooming house agreement or an
agreement collateral to a rooming house agreement other than into an
ADI account, the person who receives the payment must, within 48 hours
after receiving the payment, give the resident a receipt setting out the
relevant information in respect of the payment.
Maximum penalty: $2 500.
Expiation fee: $210.
(3) In this section—
relevant information in respect of a payment
means—
(a) the date on which the payment was received; and
(b) the name of the person making the payment; and
(c) the amount paid; and
(d) the address of the premises to which the payment relates;
and
(e) if the payment is for rent—the period of accommodation to which
the payment relates; and
(f) if the payment is a bond—a statement of that fact; and
(g) if the payment is for facilities or services (other than
accommodation)—a description of the facilities or services and the period
to which the payment relates.
105H—Payment of rent by electronic
transaction
If a resident pays rent into an ADI account kept by the proprietor or
the proprietor's agent, the payment will be taken to have been made when it is
credited to the ADI account.
105I—Rent increases
(1) A proprietor may increase the rent payable under a rooming house
agreement by giving written notice to the resident specifying the date as from
which the increase takes effect.
(2) However—
(a) the right to increase the rent may be excluded or limited by the terms
of the rooming house agreement; and
(b) if accommodation at the rooming house is to be provided for a fixed
term, the rooming house agreement is taken to exclude an increase in rent during
the term unless it specifically allows for an increase in rent; and
(c) the date fixed for an increase of rent must be at least 6 months
after the date of the agreement or, if there has been a previous increase of
rent under this section, the last increase and, subject to
subsection (3),
at least 4 weeks after the notice is given.
(3) If the maximum
rent for accommodation at the rooming house has been fixed by a housing
improvement notice, and the notice is revoked, the proprietor may, by notice
given under this section within 4 weeks after revocation of the housing
improvement notice, increase the rent for accommodation at the rooming house
from a date falling at least 14 days after the notice is given.
(4) If the rent payable under a rooming house agreement is increased under
this section, the terms of the agreement are varied accordingly.
(5) This section does not affect the operation of a provision of a rooming
house agreement under which the rent payable under the agreement changes
automatically on a basis set out in the agreement.
(6) For the purposes of this section, a series of rooming house agreements
between the same parties and relating to accommodation at the same rooming house
is treated as a single rooming house agreement unless at least 6 months
have elapsed since rent for accommodation at the rooming house was fixed or last
increased.
105J—Rent decreases
(1) The rent payable under a rooming house agreement may be reduced by
mutual agreement between the proprietor and the resident.
(2) The Tribunal may, on application by a resident, make an order for the
reduction of rent payable under the rooming house agreement if satisfied that
services or facilities ordinarily provided to the resident under the agreement
will not be provided by the proprietor for a period of time.
(3) A reduction of rent may be made on a temporary basis so that the rent
reverts to the level that would have been otherwise applicable at the end of a
specified period.
(4) If the rent payable under a rooming house agreement is reduced under
this section, the terms of the agreement are varied accordingly.
(5) This section does not affect the operation of a provision of a rooming
house agreement under which the rent payable under the agreement changes
automatically on a basis set out in the agreement.
(6) For the purposes of this section, a series of rooming house agreements
between the same parties and relating to accommodation at the same rooming house
is treated as a single rooming house agreement unless at least 6 months
have elapsed since rent for accommodation at the rooming house was fixed or last
increased.
Subdivision 2—Bonds
105K—Bond
A person must not—
(a) require more than 1 bond for the same rooming house agreement;
or
(b) require the payment of a bond exceeding 2 weeks rent under a
rooming house agreement.
Maximum penalty: $2 500.
105L—Receipt of bond and transmission to
Commissioner
(1) A person must, within 48 hours after receiving an amount paid by
way of a bond, give the person who paid a receipt stating the date payment was
received, the name of the person from whom the payment was received, the amount
paid, and the address of the rooming house to which the payment
relates.
Maximum penalty: $2 500.
Expiation fee: $210.
(2) A person who receives an amount by way of a bond must pay the amount
of the bond to the Commissioner within the period allowed by
regulation.
Maximum penalty: $5 000.
Expiation fee: $315.
105M—Repayment of bond
(1) An application may be made to the Commissioner for—
(a) payment of the whole amount of the bond either to the proprietor or
the resident; or
(b) payment of a specified amount of the bond to the proprietor and the
balance to the resident.
(2) The application—
(a) must be in a form approved by the Commissioner; and
(b) may be made jointly by the proprietor and the resident or by either
the proprietor or the resident.
(3) If the application is undisputed, the Commissioner must pay out the
amount of the bond as specified in the application.
(4) If an
application is liable to be disputed, the Commissioner must give the respondent
written notice of the application (in a form the Commissioner considers
appropriate) and inform the respondent that, if the respondent wants to dispute
the application, a written notice of dispute must be lodged with the
Commissioner within 10 days after the date the notice is given to the
respondent.
(5) If the respondent
does not give the Commissioner written notice of dispute within 10 days
after the day on which the Commissioner's notice under
subsection (4)
is given to the respondent, the Commissioner may pay out the amount of the bond
as proposed in the application.
(6) However, if the application is made by the proprietor alone more than
12 months after the termination of the rooming house
agreement—
(a) the Commissioner must refer the application to the Tribunal for
determination; and
(b) the Tribunal may authorise payment of the amount of the bond as
proposed in the application if the Tribunal is satisfied, on the basis of
information provided by the proprietor, that the proprietor is entitled to the
payment.
(7) If the Commissioner receives a written notice of dispute before the
amount of the bond is paid out under
subsection (5), the
Commissioner must refer the dispute to the Tribunal for determination.
(8) Despite a
preceding subsection, if—
(a) the bond has been provided or paid on behalf of the resident by a
third party prescribed by the regulations, or in circumstances prescribed by the
regulations; and
(b) the Commissioner is given notice of the third party's interest in
accordance with the regulations,
then—
(c) the third party is entitled to make application to the Commissioner
for the payment of the whole, or a specified part, of the bond; and
(d) —
(i) if the application is made with the consent of the
proprietor—the Commissioner must pay out the amount of the bond as
specified in the application;
(ii) in any other case—the Commissioner must give the proprietor
and, if the resident is still in possession of the premises, the resident,
written notice of the application (in a form the Commissioner considers
appropriate) and—
(A) if the Commissioner does not receive a written notice of dispute from
the party or parties to whom the notice of the application was given within
10 days after the date on which the original notice is given—the
Commissioner may pay out the amount of the bond as proposed in the
application;
(B) in any other case—the Commissioner must refer the matter to the
Tribunal for determination.
(9) If a payment is made under
subsection (8)
and the resident is still in possession of the premises, the proprietor may
require the resident to provide a new bond in accordance with
section 105K.
(a) a bond under a rooming house agreement is provided on behalf of the
resident by a third party prescribed by the regulations in circumstances
prescribed by the regulations; and
(b) the proprietor makes application to the Commissioner for the payment
of the whole, or a specified part, of the amount payable under the
bond,
then—
(c) if the application is made with the consent of the third
party—the Commissioner must pay out the amount as specified in the
application;
(d) in any other case—the Commissioner must give the third party
and, if the resident is still in possession of the premises, the resident,
written notice of the application (in a form the Commissioner considers
appropriate) and—
(i) if the Commissioner does not receive a written notice of dispute from
the party or parties to whom the notice of the application was given within
10 days after the date on which the original notice is given—the
Commissioner may pay out the amount as proposed in the application;
(ii) in any other case—the Commissioner must refer the matter to the
Tribunal for determination.
(11) If a payment is made under
subsection (10),
the third party must reimburse the Fund to the extent of the payment.
(12) A payment under this section will be made from the Fund .
(13) For the purposes of this section—
(a) an application is undisputed if it is—
(i) a joint application by the proprietor and the resident; or
(ii) an application by the proprietor that the whole of the amount of the
bond be paid to the resident; or
(iii) an application by the resident that the whole of the amount of the
bond be paid to the proprietor; and
(b) an application that does not fall into any of those categories is
liable to be disputed; and
(c) if the application was made by the proprietor, the resident is the
respondent; and
(d) if the application was made by the resident, the proprietor is the
respondent.
Subdivision 3—Other obligations of
proprietor
105N—Use and enjoyment of room and
facilities
(1) It is a term of a
rooming house agreement that the proprietor—
(a) will not unreasonably restrict, or interfere with—
(i) the quiet enjoyment of a room or facilities at the rooming house by
the resident; or
(ii) the reasonable peace, comfort or privacy of the resident in the
resident's use of a room or facilities at the rooming house; and
(b) will ensure that the resident has reasonable access (at all times) to
the resident's room, and to the toilet and bathroom facilities; and
(c) will exercise his or her right of access to the resident's room in a
reasonable manner and will not stay in the room longer than is necessary to
achieve the purpose of entry without the resident's consent.
(2) A proprietor who, without reasonable excuse, contravenes a term of an
agreement arising under
subsection (1) is
guilty of an offence.
Maximum penalty: $2 500.
105O—Security of premises and personal
property
(1) It is a term of
a rooming house agreement that—
(a) the proprietor will take reasonable steps to provide and maintain the
locks and other devices that are necessary to ensure each resident of the
rooming house may make his or her room reasonably secure; and
(b) neither the
proprietor nor the resident will alter or remove a lock or security device or
add a lock or security device without the consent of the other; and
(c) neither the proprietor nor the resident will unreasonably withhold his
or her consent to the alteration or removal of a lock or security device by the
other; and
(d) the proprietor will take reasonable steps to ensure the security of
personal property of each resident of the rooming house and, for that purpose,
will provide each resident with a cupboard, or other similar facility, capable
of being locked so as to enable the resident to keep personal property secure
within his or her room.
(2) A proprietor or resident who, without reasonable excuse, contravenes a
term of an agreement arising under
subsection (1)
is guilty of an offence.
Maximum penalty: $2 500.
105P—Obligation to repair and keep room and
premises clean
(1) It is a term of
a rooming house agreement that the proprietor—
(a) must ensure that the resident's room and any facilities shared with
other residents of the rooming house are in a reasonable state of repair when
the resident enters into occupation of the room and must keep them in a
reasonable state of repair having regard to their age, character and prospective
life; and
(b) must ensure that any facilities shared with other residents of the
rooming house are kept in a reasonable state of cleanliness; and
(c) must comply with statutory requirements affecting the rooming house;
and
(d) must give the resident not less than 14 days notice of
renovations to be carried on at the rooming house; and
(e) must, if required to carry out repairs to shared bathroom, toilet or
laundry facilities, minimise inconvenience or disruption to the resident and, if
necessary, provide temporary substitute facilities.
(2) The obligation to repair applies even though the resident had notice
of the state of disrepair before entering into occupation.
(3) However—
(a) the proprietor will not be regarded as being in breach of the
obligation to repair unless—
(i) the proprietor has notice of the defect requiring repair;
and
(ii) the proprietor fails to act with reasonable diligence to have the
defect repaired; and
(b) if the rooming house is subject to a housing improvement notice fixing
the maximum rent for the rooming house, the proprietor's obligation under
subsection (1)
to repair the rooming house does not apply.
105Q—Sale of rooming house
(1) It is a term of a rooming house agreement that—
(a) the proprietor will give the resident written notice of the
proprietor's intention to sell the rooming house not later than 14 days
after the proprietor enters into a sales agency agreement for the sale of the
premises; and
(b) the rooming house will not be advertised for sale or made available
for inspection by prospective purchasers before the day falling 14 days
after the resident is notified of the proprietor's intention to sell the rooming
house.
(2) It is a term of a rooming house agreement that, if the rooming house
is sold, the proprietor will give the resident written notice of the name of the
purchaser and the date from which rent is to be paid to him or her.
Subdivision 4—Other obligations of
resident
105R—General obligations of
resident
(1) It is a term of a rooming house agreement that the
resident—
(a) must not use the rooming house, or cause or permit the rooming house
to be used, for an illegal purpose; and
(b) must not keep an animal on the rooming house premises without the
proprietor's consent; and
(c) must keep the resident's room in a condition that does not give rise
to a fire or health hazard; and
(d) must notify the proprietor of damage to the rooming house or to
property provided by the proprietor for use by the resident; and
(e) must allow the proprietor reasonable access to the resident's
room.
(2) A resident who intentionally causes serious damage to the rooming
house is guilty of an offence.
Maximum penalty: $2 500.
Subdivision 5—Miscellaneous
105S—Accelerated rent and liquidated
damages
(1) If a rooming house agreement provides that, on breach by the resident
of a term about rent or other term of the agreement, the resident is liable to
pay—
(a) all or any part of the rent remaining payable under the agreement;
or
(b) rent of an increased amount; or
(c) an amount by way of penalty; or
(d) an amount by way of liquidated damages,
the provision is void.
(2) If a rooming house agreement provides that, on early or punctual
payment of rent, the rent will or may be decreased or the resident will or may
be granted or paid a rebate, refund or other benefit, the resident is entitled
to the reduction, rebate, refund or other benefit in any event.
(3) If a rooming house agreement contains a provision to which this
section applies, the proprietor is guilty of an offence.
Maximum penalty: $5 000.
Expiation fee: $315.
105T—Goods not to be taken in lieu of amounts owing
to proprietor
A proprietor must not take or dispose of a resident's goods on account of
any rent or other amount owing to the proprietor by the resident under the
rooming house agreement.
Maximum penalty: $5 000.
Division 5—Termination of rooming house
agreement
105U—Termination of rooming house
agreement
(1) If a resident under a rooming house agreement has abandoned the
resident's room, the rooming house agreement is terminated.
(2) A resident will be taken to have abandoned the resident's room
if—
(a) the Tribunal has made a declaration under
section 105V that the
resident abandoned the room; or
(b) —
(i) the rent payable under the agreement has remained unpaid in breach of
the agreement for not less than 7 days; and
(ii) the proprietor—
(A) has made reasonable efforts to contact the resident without success;
or
(B) has been advised by the resident that the room is abandoned.
(3) If rent remains outstanding for at least 2 rental periods or
2 weeks (whichever is the lesser), the proprietor may give the resident a
written notice informing the resident that if the amount owing is not paid
within a specified period (which must be a period of at least 2 clear days)
from the date the notice is given then—
(a) the rooming house agreement is terminated at the end of the specified
period by force of the notice; and
(b) the resident must vacate the premises at the end of the specified
period.
(4) If a resident, or a person who has entered the rooming house at the
resident's invitation, causes serious damage to the rooming house, creates a
danger to a person or property in the rooming house, or seriously interrupts the
privacy, peace, comfort or quiet enjoyment of another resident, the proprietor
may give the resident a written notice informing the resident
that—
(a) the rooming house agreement is terminated by force of the notice
immediately or on a specified day; and
(b) the resident must vacate the premises immediately or on or before the
specified day (as the case requires).
(5) If a resident breaches a term of the rooming house agreement
(otherwise than as referred to in a preceding subsection), the proprietor may
give the resident a written notice informing the resident that—
(a) the rooming house agreement is terminated by force of the notice on a
specified day (which must be at least 7 clear days after the day the notice
is given); and
(b) the resident must vacate the premises on or before the specified
day.
(6) A proprietor may terminate a rooming house agreement providing for
accommodation on a periodic basis without specifying a ground for termination by
giving the resident at least 4 weeks written notice of
termination.
(7) A resident under a rooming house agreement providing for accommodation
on a periodic basis may terminate the agreement without specifying a ground for
termination by giving the proprietor at least 1 days notice of
termination.
(8) A notice under this section must be in the form approved by the
Commissioner.
105V—Abandoned room
(1) The Tribunal may, on application by a proprietor, declare that a
resident abandoned the resident's room on a day stated in the
declaration.
(2) The resident is taken to have abandoned the room on the day stated in
a declaration under this section.
(3) If a resident under a rooming house agreement for the provision of
accommodation for a period of 6 months or more has abandoned the resident's
room, the proprietor is entitled to compensation for any loss (including loss of
rent) caused by the abandonment.
(4) However, the proprietor must take reasonable steps to mitigate any
loss and is not entitled to compensation for loss that could have been avoided
by those steps.
(5) The Tribunal may, on application by the proprietor, order the resident
to pay to the proprietor compensation to which the proprietor is entitled under
this section.
105W—Abandoned property
(1) If property is left on the premises by a resident after the resident
vacates the resident's room—
(a) the proprietor may, at any time after recovering possession of the
room, remove from the premises and destroy or dispose of property consisting of
perishable goods; and
(b) in the case of any other property (other than personal documents), the
proprietor—
(i) must, as soon as practicable, make reasonable attempts to notify the
resident that the property has been found on the premises; and
(ii) must take
reasonable steps to keep the property safe for at least 14 days after
possession of the room is recovered; and
(iii) may destroy or dispose of the property after taking steps to keep it
safe for the period referred to in
subparagraph (ii).
(2) If personal documents are left on the premises by a resident after the
resident vacates the resident's room, the proprietor—
(a) must, as soon as practicable, make reasonable attempts to notify the
resident that the documents have been found on the premises; and
(b) must take
reasonable steps to keep the documents safe for at least 14 days after
possession of the room is recovered; and
(c) may destroy or dispose of the documents if they are not reclaimed by
the resident within the 14 day period referred to in
paragraph (b).
(3) For the purposes of this section, a person who is entitled to
possession of the property may reclaim it by paying to the proprietor the
reasonable costs incurred by the proprietor as a result of the property being
left on the premises.
(4) A proprietor may not deal with property left on premises by a resident
after termination of a rooming house agreement otherwise than in accordance with
this section.
Maximum penalty: $2 500.
(5) Nothing in this section affects any obligation a proprietor may have
in relation to property left on the premises under another Act or law.
70—Substitution
of Part 8 Division 1
Part 8 Division 1—delete the Division and
substitute:
Division 1—Conciliation
Subdivision 1—Definitions for this
Division
106—Definitions
In this Division—
conciliation of a dispute includes preliminary assistance in
dispute resolution such as the giving of advice to ensure that—
(a) the parties to the dispute are fully aware of their rights and
obligations; and
(b) there is full and open communication between the parties about the
dispute;
conciliation conference means—
(a) a conference called by the Commissioner under
section 107(4);
or
(b) a conference to which a tenancy dispute is referred by the Tribunal
under
section 108(2).
Subdivision 2—Conciliation of dispute by
Commissioner
107—Conciliation by
Commissioner
(1) If a party to a
tenancy dispute applies to the Commissioner for conciliation of the dispute, the
Commissioner may conciliate the dispute.
(2) A fee prescribed by regulation is payable on an application under
subsection (1).
(3) The registrar or deputy registrar may refer an application made to the
Tribunal to the Commissioner for conciliation.
(4) The Commissioner
may call a conference of the parties to the dispute for the purpose of
attempting to resolve the dispute by agreement.
(5) The Commissioner must notify the parties of the time and place fixed
for the conference.
(6) If conciliation of a dispute is terminated because it appears to the
Commissioner that it is unlikely that an agreed settlement can be reached within
a reasonable time or for any other reason, the Commissioner must refer the
matter to the registrar or deputy registrar for the listing of the matter before
the Tribunal.
Subdivision 3—Conciliation of dispute by
Tribunal
108—Referral of dispute to conciliation
conference
(1) Before making an
order to determine a tenancy dispute, it is the duty of the Tribunal to use its
best endeavours to bring the parties to the dispute to a settlement that is
acceptable to the parties.
(2) In addition to, or
in the course of, any action taken under
subsection (1), the
Tribunal may, before the hearing of proceedings concerning a tenancy
dispute—
(a) refer the dispute to a conference of the parties to the dispute to
explore the possibilities of resolving the matters at issue by agreement;
and
(b) require each party to the dispute (or a representative of a party who
has authority to settle the proceedings on behalf of the party) to attend the
conference.
(3) If a tenancy dispute is referred to a conciliation conference under
this section—
(a) the registrar must notify the parties of the time and place fixed for
the conference in a manner prescribed by the Rules; and
(b) a member of the Tribunal, the registrar or another officer of the
Tribunal authorised by the Presiding Member will preside at the
conference.
(4) If a party to a tenancy dispute fails to attend a properly convened
conciliation conference—
(a) the conference may proceed at the appointed time in the party's
absence; and
(b) the Tribunal may determine the proceeding adversely to the absent
party and make any appropriate orders.
Subdivision 4—Duties and
procedure
108A—Duties of conciliators
Conciliators have the following functions in the conciliation of a tenancy
dispute:
(a) to seek to identify the issues in dispute and to narrow the range of
the dispute;
(b) to encourage the settlement of the dispute by facilitating, and
helping to conduct, negotiations between the parties to the dispute;
(c) to promote the open exchange of information relevant to the dispute by
the parties;
(d) to provide to the parties information about the operation of this Act
relevant to a settlement of the dispute;
(e) to help in the settlement of the dispute in any other appropriate
way.
108B—Procedure
(1) A conciliation conference may, at the discretion of the conciliator,
be adjourned from time to time.
(2) Unless the conciliator decides otherwise, the conference will be held
in private and the conciliator may exclude from the conference any person apart
from the parties and their representatives.
(3) The conciliator (if not legally qualified) may refer a question of law
arising at the conference to a member of the Tribunal who is legally qualified
for determination.
(4) A party must, if required by the conciliator, disclose to the other
party details of the party's case and of the evidence available to the party in
support of that case.
(5) The conciliator or a party may terminate a conciliation at any
time.
(6) A settlement to which a party or representative of a party agrees at a
conciliation conference is binding on the party provided that it is not
inconsistent with this Act.
(7) The settlement must be put into writing and signed by or for the
parties (and if the conciliation conference was conducted by the Commissioner or
a delegate of the Commissioner, a copy of the signed settlement must be provided
to the Tribunal).
(8) The Tribunal
may make a determination or order to give effect to the settlement.
(9) A member of the Tribunal who conducts a conciliation conference in
relation to a tenancy dispute is not entitled to hear and determine proceedings
concerning the dispute unless the parties otherwise agree.
(10) A conciliator has the same protection and immunity as a member of the
Tribunal.
108C—Restriction on evidence
Evidence of anything said or done in the course of conciliation of a
tenancy dispute under this Division is inadmissible in proceedings before the
Tribunal except by consent of all parties to the proceedings.
71—Amendment
of section 110—Powers of Tribunal
(1) Section 110(1)(e)—after "residential tenancy" wherever
occurring insert:
or rooming house agreement
(2) Section 110(1)(f)—after "residential tenancy agreement"
insert:
or rooming house agreement
(3) Section 110(1)(i)—delete "security" and
substitute:
a bond (including a bond under Part 7)
72—Amendment
of section 113—Representation in proceedings before
Tribunal
(1) Section 113(1)—delete ", at a pre-trial conference or in
proceedings for the mediation of the dispute" and substitute:
or at a conciliation conference
(2) Section 113(3)(b)—after "landlord" wherever occurring
insert:
or rooming house proprietor
(3) Section 113(3)(b)—delete "landlord's" and
substitute:
party's
73—Amendment
of section 114—Remuneration of representative
Section 114—delete ", at a pre-trial conference or in
proceedings for the mediation of the dispute" and substitute:
or at a conciliation conference
74—Amendment
of section 115—Contract to avoid Act
Section 115(3), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $10 000.
Section 116—delete the section
After section 117 insert:
117A—Liability to prosecution not to derogate from
civil liability
The liability to be prosecuted for an offence is in addition to any civil
liability for breach of a residential tenancy agreement or rooming house
agreement or any other civil liability the person may incur.
77—Amendment
of section 119—Tribunal may exempt agreement or premises from provision of
Act
Section 119(3), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $2 500.
78—Amendment
of section 120—Service
(1) Section 120(1)—after paragraph (c) insert:
or
(d) transmitted by fax or email to a fax number or email address provided
by the person for the purposes of service under this Act (in which case the
notice or document will be taken to have been given or served at the time of
transmission); or
(e) given in some other manner permitted by the Tribunal.
(2) Section 120(2)—delete subsection (2)
79—Amendment
of section 121—Regulations
(1) Section 121(3)—delete "$500" and substitute:
$5 000
(2) Section 121(4)—delete "$100" and substitute:
$315
Schedule—delete the Schedule and substitute:
Schedule 1—Transitional
provisions—Residential Tenancies (Miscellaneous) Amendment
Act 2012
1—Interpretation
In this Schedule—
amending Act means the Residential
Tenancies (Miscellaneous) Amendment Act 2012.
2—Operation of amendments
(1) Subject to the regulations, an amendment made by the amending Act
applies to a residential tenancy agreement or rooming house agreement whether
the agreement was entered into before or after the commencement of the
amendment.
(2) However—
(a) subsection (3a) of section 69 as inserted by the amending
Act does not apply in relation to a residential tenancy agreement entered into
before the commencement of that subsection; and
(b) subsections (2) and (3) of section 73 as inserted by
the amending Act do not apply in relation to a residential tenancy agreement
entered into before the commencement of those subsections (and
section 73(2) and (3) as in force immediately before the commencement
of section 46 of the amending Act will continue to apply to residential
tenancy agreements entered into before that commencement); and
(c) section 85A as inserted by the amending Act does not apply in
relation to a residential tenancy agreement entered into before the commencement
of that section; and
(d) section 105Q as inserted by the amending Act does not apply in
relation to a rooming house agreement entered into before the commencement of
that section.
3—Registrar and deputy
registrars
Section 15(2) as inserted by the amending Act does not apply in
relation to a person appointed to be the registrar or a deputy registrar before
the commencement of that section.
4—Jurisdiction of Tribunal
The amendments made to section 24(2) and (5) by the amending
Act—
(a) do not apply in respect of proceedings commenced before the
commencement of the amendments (and those proceedings may continue as if the
amendments had not been made); and
(b) apply in respect of proceedings commenced on or after the commencement
of the amendments (including proceedings in respect of a claim arising before
the commencement of the amendments).
5—Interest payable on repayment of
bond
Section 63(11) and (12) as in force immediately before the
commencement of this clause apply in relation to a bond paid to the Commissioner
before that commencement as if the amendments made to that section by the
amending Act had not been made.
6—Abandoned property
(1) The revised abandoned property provisions apply in respect of property
left on premises whether the property was left on the premises before or after
the commencement of those provisions.
(2) In this clause—
revised abandoned property provisions means Part 5
Division 7 and section 105W as inserted by the amending Act.
7—Application to existing house
rules
Part 7 Division 3 as inserted by
section 69 of the
amending Act applies to house rules made by a rooming house proprietor and in
operation immediately before the commencement of this clause.
8—Other provisions
(1) The Governor
may, by regulation, make additional provisions of a saving or transitional
nature consequent on the enactment of the amending Act.
(2) A provision of
a regulation made under
subclause (1)
may, if the regulation so provides, take effect from the commencement of the
amending Act or from a later day.
(3) To the extent to which a provision takes effect under
subclause (2)
from a day earlier than the day of the regulation's publication in the Gazette,
the provision does not operate to the disadvantage of a person
by—
(a) decreasing the person's rights; or
(b) imposing liabilities on the person.
Part 1—Amendment of Fair Trading
Act 1987
1—Amendment
of section 30—Application of Part
(1) Section 30—delete "This Part" and substitute:
Subject to subsection (2), this Part
(2) Section 30—after its present contents as amended by this
section (now to be designated as subsection (1)) insert:
(2) This Part does not apply to or in relation to a prescribed report that
is provided through the use of a residential tenancy database to which
Part 5A of the Residential
Tenancies Act 1995 applies.
Part 2—Amendment of Residential Parks
Act 2007
2—Amendment
of section 29—Repayment of bond
(1) Section 29—after subsection (5) insert:
(5a) However, if the application is made by the park owner alone more than
12 months after the termination of the residential park
agreement—
(a) the Commissioner must refer the application to the Tribunal for
determination; and
(b) the Tribunal may authorise payment of the amount of the bond as
proposed in the application if the Tribunal is satisfied, on the basis of
information provided by the park owner, that the park owner is entitled to the
payment.
(2) Section 29—after subsection (6) insert:
(6a) Despite a
preceding subsection, if—
(a) the bond has been provided or paid on behalf of the resident by a
third party prescribed by the regulations, or in circumstances prescribed by the
regulations; and
(b) the Commissioner is given notice of the third party's interest in
accordance with the regulations,
then—
(c) the third party is entitled to make application to the Commissioner
for the payment of the whole, or a specified part, of the bond; and
(d) —
(i) if the application is made with the consent of the park
owner—the Commissioner must pay out the amount of the bond as specified in
the application; or
(ii) in any other case—the Commissioner must give the park owner
and, if the resident is still in possession of the premises, the resident,
written notice of the application (in a form the Commissioner considers
appropriate) and—
(A) if the Commissioner does not receive a written notice of dispute from
the party or parties to whom the notice of the application was given within
10 days after the date on which the original notice is given—the
Commissioner may pay out the amount of the bond as proposed in the application;
or
(B) in any other case—the Commissioner must refer the matter to the
Tribunal for determination.
(6b) If a payment is made under
subsection (6a)
and the resident is still in possession of the premises, the park owner may
require the resident to provide a new bond in accordance with
section 27.
(a) the bond is provided on behalf of the resident by a third party
prescribed by the regulations in circumstances prescribed by the regulations;
and
(b) the park owner makes application to the Commissioner for the payment
of the whole, or a specified part, of the amount payable under the
bond,
then—
(c) if the application is made with the consent of the third
party—the Commissioner must pay out the amount as specified in the
application; or
(d) in any other case—the Commissioner must give the third party
and, if the resident is still in possession of the premises, the resident,
written notice of the application (in a form the Commissioner considers
appropriate) and—
(i) if the Commissioner does not receive a written notice of dispute from
the party or parties to whom the notice of the application was given within
10 days after the date on which the original notice is given—the
Commissioner may pay out the amount as proposed in the application; or
(ii) in any other case—the Commissioner must refer the matter to the
Tribunal for determination.
(6d) If a payment is made under
subsection (6c),
the third party must reimburse the Fund to the extent of the payment.