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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 2020
A BILL FOR
An Act to amend the
Residential
Tenancies Act 1995
.
Contents
Part 2—Amendment of Residential
Tenancies Act 1995
4Amendment of section
3—Interpretation
47ADisclosures to be
made by landlords before residential tenancy agreement entered
47BMisleading or deceptive conduct
etc inducing a person to enter residential tenancy agreement
47CMisleading or
deceptive conduct etc inducing landlord etc to enter residential tenancy
agreement
52APremises to be
offered for rent at fixed amount
7Amendment of heading to Part 4 Division
7
67ALandlord to
ensure premises meets minimum standards
9Amendment of section 79A—Agreement for
fixed term continues if not terminated
81AWrongful
termination under section 81
85ATermination by
tenant where contravention of section 47A or 47B
14Amendment of section 88—Termination on
application by tenant
Part 7A—Register of non-compliance by
landlords, rooming house proprietors and agents
105ZPerson may
apply to Commissioner for correction etc of Register
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Residential Tenancies (Miscellaneous)
Amendment Act 2020.
This Act comes into operation 1 month after the day on which it is
assented to by the Governor.
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
Section 3(1), definition of tenancy dispute—after
paragraph (b) insert:
(ba) a dispute arising out of the operation of section 47A, 47B or
47C of this Act; or
Section 47A—delete section 47A and substitute:
47A—Disclosures to be made by landlords before
residential tenancy agreement entered
(1) Before entering a
residential tenancy agreement, a landlord must give to a tenant a written notice
that discloses such of the following as may be applicable:
(a) if the premises to which the residential tenancy agreement relates are
for sale—details of any existing sales agency agreement for the
sale;
(b) if the landlord intends to sell or otherwise dispose of the premises,
or the landlord's interest in the premises, to which the residential tenancy
agreement relates for sale prior to the end of the tenancy period—that
fact;
(c) if a mortgagee has commenced a proceeding to enforce a mortgage over
the premises to which the agreement relates—that a mortgagee is taking
action for possession of the premises;
(d) if the landlord is not the owner of the premises to which the
agreement relates—that the landlord has a right to let the
premises;
(e) if the premises to which the agreement relates are supplied with
electricity from an embedded electricity network—the prescribed details of
the operator of the embedded electricity network;
(f) if the landlord or owner of the premises to which the agreement
relates are aware that there is asbestos, or any other prescribed material, in
or on the premises—the nature and location of the asbestos or other
material;
(g) if the premises to which the agreement relates are the subject of a
rating under the Nationwide House Energy Rating Scheme—that
rating;
(h) any other information prescribed by the regulations for the purposes
of this paragraph.
(2) A landlord who contravenes
subsection (1)
is guilty of an offence.
Maximum penalty: $5 000.
Note—
A contravention of this section may also result in termination of the
residential tenancy agreement—see sections 85A and 88.
47B—Misleading or deceptive conduct etc inducing a
person to enter residential tenancy agreement
(1) This section applies to the following persons:
(a) a landlord who
is not acting in trade or commerce in entering into a residential tenancy
agreement;
(b) the agent of a landlord referred to in
paragraph (a)
who is not acting in trade or commerce.
(2) A person to
whom this section applies must not induce a person to enter into a residential
tenancy agreement by engaging in conduct, or making an omission, that is
misleading or deceptive, or that is likely to mislead or deceive.
(3) A person to
whom this section applies must not induce a person to enter into a residential
tenancy agreement by making a false or misleading representation concerning any
of the following:
(a) the landlord's interest in the land;
(b) the rent payable under the agreement;
(c) the location of the premises to be let under the agreement;
(d) the characteristics of the premises to be let under the
agreement;
(e) the use to which the premises to be let under the agreement are
capable of being put or may lawfully be put;
(f) the existence or availability of facilities associated with the
premises to let under the agreement.
(4) A person who contravenes
subsection (2)
or
(3)
is guilty of an offence.
Maximum penalty: $5 000.
Note—
A contravention of this section may also result in termination of the
residential tenancy agreement—see sections 85A and 88.
(5) Nothing in this section limits the operation of the
Fair
Trading Act 1987
or the
Australian
Consumer Law (SA)
.
47C—Misleading or deceptive conduct etc inducing
landlord etc to enter residential tenancy agreement
(1) A person must
not induce a person to whom
section 47B
applies to enter into a residential tenancy agreement by engaging in
conduct, or making an omission, that is misleading or deceptive, or that is
likely to mislead or deceive.
(2) A person must
not induce a person to whom
section 47B
applies to enter into a residential tenancy agreement by making a false or
misleading representation.
(3) A person who contravenes
subsection (1)
or
(2)
is guilty of an offence.
Maximum penalty: $5 000.
(4) Nothing in this section limits the operation of the
Fair
Trading Act 1987
or the
Australian
Consumer Law (SA)
.
Before section 53 insert:
52A—Premises to be offered for rent at fixed amount
(1) A landlord, or
an agent of a landlord, must not advertise or otherwise offer premises for rent
under a residential tenancy agreement unless the rent under the agreement is
advertised or offered as a fixed amount.
Maximum penalty: $5 000.
(2) However, nothing in
subsection (1)
prevents a person from placing a sign at or near premises for rent
that—
(a) advertises or offers premises for rent; and
(b) does not state an amount of rent for premises.
(3) A landlord, or an agent of a landlord, must not solicit or otherwise
invite an offer of an amount of rent under a residential tenancy agreement that
is higher than the advertised amount of rent for the premises.
Maximum penalty: $5 000.
(4) Nothing in this section limits the operation of the
Fair
Trading Act 1987
or the
Australian
Consumer Law (SA)
.
7—Amendment
of heading to Part 4 Division 7
Heading to Part 4 Division 7—delete "condition of the"
After section 67 insert:
67A—Landlord to ensure premises meets minimum
standards
(1) A landlord must (at
the landlord's expense) ensure that premises the subject of a residential
tenancy agreement comply with the following requirements:
(a) the premises must contain—
(i) a toilet; and
(ii) cooking facilities; and
(iii) a sink and food preparation area; and
(iv) hot and cold water connections in the kitchen, bathrooms and
laundry;
(b) each external door and window must be able to be secured to prevent
entry;
(c) each bedroom, bathroom and toilet window must have appropriate
curtains or blinds, or be constructed of frosted glass or other appropriate
material, so as to ensure privacy;
(d) each window through which a person in the premises can be, or is
likely to be, seen by a person outside of the premises (whether in a
neighbouring property or a public place) must have appropriate curtains or
blinds so as to ensure privacy;
(e) there must be a vermin proof rubbish bin or bins at the
premises;
(f) any other requirements set out in the regulations for the purposes of
this paragraph.
(2) For the purposes of this Act, a reference to a required item or area
in
subsection (1)
will be taken to be a reference to an item or area that—
(a) is functional and otherwise in good condition; and
(b) is, having regard to the intended use of the premises, of an
appropriate size and kind; and
(c) is in all respects fit for purpose.
(3) A failure by a landlord to comply with this section will, for the
purposes of this Act, be taken to be a breach of a residential tenancy
agreement.
(4) This section is in addition to, and does not derogate from, a
provision of a building code, or a provision of this or any other Act or
law.
9—Amendment
of section 79A—Agreement for fixed term continues if not
terminated
Section 79A—after subsection (2) insert:
(3) To avoid doubt, nothing in this section prevents the parties to a
residential tenancy agreement contemplated by subsection (1) from entering
a new residential tenancy agreement for a fixed term.
10—Amendment
of section 81—Termination because possession is required by landlord for
certain purposes
(1) Section 81(3), penalty provision—delete "$2 500." and
substitute:
$5 000.
(2) Section 81(4)—delete subsection (4) and substitute:
(4) A landlord who
recovers possession of premises under this section must not, without the consent
of the Tribunal—
(a) grant a fresh
tenancy over the premises within 6 months after recovering possession;
or
(b) use the premises
for a purpose other than—
(i) the purpose stated in the notice of termination; or
(ii) a purpose otherwise referred to in subsection (1) as a ground of
termination,
within 6 months after recovering possession.
Maximum penalty: $5 000.
(5) However,
subsection (4)(a)
does not apply in relation to a fresh tenancy granted to a tenant under
the periodic residential tenancy terminated under this section.
After section 81 insert:
81A—Wrongful termination under
section 81
(1) If—
(a) a periodic residential tenancy is terminated under section 81;
and
(b) 1 or more of the following applies in relation to the
termination:
(i) a landlord or other person is charged with, or found guilty of, an
offence against section 81(3) or (4);
(ii) the ground of termination stated in the notice of termination under
section 81 (or some other purpose that amounts to a ground of termination
under section 81(1)) does not occur—
(A) within 6 months after recovering possession of the premises under
that section; or
(B) before the end of the current period of the tenancy (had the
termination not occurred),
whichever is the longer;
(iii) the termination occurs in, or otherwise involves, circumstances
prescribed by the regulations for the purposes of this paragraph,
then a tenant under the periodic residential tenancy may apply to the
Tribunal for an order under this section.
(2) The Tribunal may, on application under this section, make 1 or
more of the following orders:
(a) an order reinstating rights under the periodic residential
tenancy;
(b) an order that the landlord enter a new periodic residential tenancy
with the applicant on the same terms and conditions as the terminated rooming
house agreement, subject to any changes determined by the Tribunal;
(c) an order that the landlord compensate the applicant in relation to the
wrongful termination;
(d) any other order that the Tribunal considers appropriate.
Section 83—delete the section
13—Substitution
of section 85A
Section 85A—delete the section and substitute:
85A—Termination by tenant where contravention of
section 47A or 47B
(1) 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 landlord did not, before
the residential tenancy agreement was entered into, advise the tenant as
required under section 47A; or
(b) the landlord contravened section 47A or 47B in relation to the
residential tenancy agreement.
(2) A notice of
termination for the purposes of
subsection (1)(a)
must, if the landlord has given written notice advising the tenant of the
contract for the sale of the residential premises (whether in accordance with
section 71A(2) or otherwise), be given to the landlord within 2 months
after the day on which the notice was given to the tenant.
(3) The minimum period of notice under this section is
14 days.
14—Amendment
of section 88—Termination on application by tenant
Section 88(a) and (b)—delete paragraphs (a) and (b) and
substitute:
(a) the landlord has committed a breach of the residential tenancy
agreement and the breach is sufficiently serious to justify termination of the
tenancy1; or
(b) the landlord contravened section 47A or 47B in relation to the
residential tenancy agreement.
After section 105W insert:
Part 7A—Register of non-compliance by landlords,
rooming house proprietors and agents
105X—Application of Part
(1) This Part applies
in relation to the following persons:
(a) a landlord against whom 1 or more prescribed orders have been
made by the Tribunal:
(b) a rooming house proprietor against whom 1 or more prescribed
orders have been made by the Tribunal;
(c) an agent of a landlord or rooming house proprietor against whom
1 or more prescribed orders have been made by the Tribunal.
(2) For the purposes of
subsection (1)
, a reference to a landlord, rooming house proprietor or agent will be
taken to include a reference to a person who was at the relevant time, but is no
longer, a landlord, rooming house proprietor or agent (as the case
requires).
(3) In this section—
prescribed order means—
(a) an order that requires a person to remedy a breach of this Act, a
residential tenancy agreement, a rooming house agreement, or an agreement
collateral to a residential tenancy agreement or a rooming house agreement;
or
(b) an order that requires a person to comply with an obligation under
this Act, a residential tenancy agreement, a rooming house agreement or an
agreement collateral to a residential tenancy agreement or a rooming house
agreement; or
(c) an order that restrains a person from taking action that is in breach
of this Act, a residential tenancy agreement, a rooming house agreement, or an
agreement collateral to a residential tenancy agreement or a rooming house
agreement; or
(d) an order that requires a person to make a payment (which may include
compensation) for a breach of this Act, a residential tenancy agreement, a
rooming house agreement, or an agreement collateral to a residential tenancy
agreement or a rooming house agreement; or
(e) any other order declared by the regulations to be included in the
ambit of this paragraph.
105Y—Commissioner to establish register of
non-compliant landlords, rooming house proprietors and
agents
(1) The Commissioner must establish and maintain a register of persons in
relation to whom this Part applies (the register of non-compliant
landlords, rooming house proprietors and agents or the
Register).
(2) The Register must contain the following information in relation to
each person on the Register:
(a) the full name of the person;
(b) the address of any premises to which a prescribed order made against
the person relates;
(c) details of each prescribed order made against the person;
(d) if the landlord or rooming house proprietor has an agent or
agents—the name and business address of each such agent;
(e) any other information required by the regulations for the purposes of
this paragraph,
and may contain any other information the Commissioner thinks
appropriate.
(3) The Register may be kept electronically, and may, if the Commissioner
considers it appropriate, be combined with another register or database kept
under this Act.
(4) The Commissioner must correct an entry in the Register that is not, or
has ceased to be, correct.
(5) The Commissioner
must cause a copy of the Register, as in force from time to time, to be
published on a website determined by the Commissioner.
(6) The Register (including the copy of the Register published under
subsection (5)
) may be inspected (without charge) by any person.
105Z—Person may apply to Commissioner for
correction etc of Register
(1) A person to whom
this Part applies may make a written request to the Commissioner to remove or
correct (as the case requires) any information contained in the register in
relation to the person that is incorrect.
(2) The Commissioner must, if satisfied that the information is incorrect,
remove or correct the information (as the case requires).
(3) The Commissioner must take reasonable steps to notify the person who
makes a request under
subsection (1)
whether or not the request is to be is to be granted.
(4) If the Commissioner refuses to grant a request under
subsection (1)
, the person who made the request may, within 1 month after receiving
notification of that decision, apply in writing to the Ombudsman for a review of
the decision.
(5) In conducting a review under this section, the Ombudsman may exercise
the same powers as it may exercise in conducting a review of a determination
under the
Freedom
of Information Act 1991
.