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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Residential Tenancies Amendment
(Occupancy Agreements) Bill 2011
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Residential Tenancies Act 2010 No 42 3
b2011-015-11.d22
New South Wales
Residential Tenancies Amendment
(Occupancy Agreements) Bill 2011
No , 2011
A Bill for
An Act to amend the Residential Tenancies Act 2010 to extend certain rights and
duties under that Act to occupants of residential premises who are not covered by that
Act; and for other purposes.
Clause 1 Residential Tenancies Amendment (Occupancy Agreements) Bill 2011
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Residential Tenancies Amendment (Occupancy 3
Agreements) Act 2011. 4
2 Commencement 5
This Act commences 3 months after the date of assent to this Act (unless 6
commenced sooner by proclamation). 7
Page 2
Residential Tenancies Amendment (Occupancy Agreements) Bill 2011
Amendment of Residential Tenancies Act 2010 No 42 Schedule 1
Schedule 1 Amendment of Residential Tenancies 1
Act 2010 No 42 2
[1] Long title 3
Insert "and of other grantors and occupants" after "tenants". 4
[2] Long title 5
Insert "and occupancy agreements" after "agreements". 6
[3] Section 3 Definitions 7
Insert in alphabetical order in section 3 (1): 8
grantor has the meaning given by section 186A. 9
occupancy agreement has the meaning given by section 186B. 10
occupancy principles has the meaning given by section 186D. 11
[4] Section 3 (1), definition of "rent" 12
Insert "or occupancy agreement" after "residential tenancy agreement". 13
[5] Section 7 Premises to which Act does not apply 14
Insert ", except to the extent provided by Part 8A," after "does not". 15
[6] Section 8 Agreements to which Act does not apply 16
Insert ", except to the extent provided by Part 8A," after "does not" in 17
section 8 (1). 18
[7] Section 11 Declaration by Tribunal 19
Insert "or occupancy agreement" after "residential tenancy agreement". 20
[8] Part 8A 21
Insert after Part 8: 22
Part 8A Occupancy agreements 23
186A Definitions 24
In this Part: 25
grantor means the person who grants the right to occupy 26
residential premises under an occupancy agreement, and includes 27
a prospective grantor. 28
Page 3
Residential Tenancies Amendment (Occupancy Agreements) Bill 2011
Schedule 1 Amendment of Residential Tenancies Act 2010 No 42
occupant means the person who has the right to occupy 1
residential premises under an occupancy agreement, and includes 2
a prospective occupant. 3
186B Agreements that are occupancy agreements 4
(1) An occupancy agreement is an agreement under which a person 5
grants to another person for value a right to occupy specified 6
residential premises as a residence (whether or not with other 7
persons). 8
(2) Without limiting the operation of subsection (1), this Part applies 9
to occupancy agreements under which the person who is granted 10
the right to occupy premises is: 11
(a) a boarder or lodger in a private home, or 12
(b) a boarder in a boarding house, or 13
(c) an occupant of premises the subject of a residential 14
tenancy agreement (such as a shared household) who, 15
because of the operation of section 10, is not a tenant for 16
the purposes of this Act, or 17
(d) a person who lives in a group home, or residential centre, 18
for persons with disabilities, or 19
(e) an occupant of an educational institution or residential 20
college, or 21
(f) an occupant of a hotel or motel or backpackers' hostel, or 22
(g) an occupant of a serviced apartment (that is, a building or 23
part of a building used to provide self-contained tourist and 24
visitor accommodation that is regularly cleaned by or on 25
behalf of the owner or manager), or 26
(h) a person who lives in refuge or crisis accommodation, or 27
(i) a person who lives in supported accommodation (that is 28
accommodation where persons are supported with daily 29
living skills and other care), or 30
(j) a person who lives in a caravan in a caravan park who 31
enters into an agreement to which neither the Residential 32
Parks Act 1998 nor the Holiday Parks (Long-term Casual 33
Occupation) Act 2002 applies, or 34
(k) a person of a class prescribed by the regulations for the 35
purposes of this section. 36
Page 4
Residential Tenancies Amendment (Occupancy Agreements) Bill 2011
Amendment of Residential Tenancies Act 2010 No 42 Schedule 1
(3) However, this Part does not apply: 1
(a) to an agreement that is a residential tenancy agreement to 2
which this Act applies, or 3
(b) to an agreement to which the Landlord and Tenant 4
(Amendment) Act 1948 applies. 5
(4) An occupancy agreement may be express or implied and may be 6
oral or in writing, or partly oral and partly in writing. 7
(5) An agreement may be an occupancy agreement for the purposes 8
of this Part even though: 9
(a) it does not grant a right of exclusive occupation, or 10
(b) it grants the right to occupy residential premises together 11
with the letting of furniture or goods or the provision of 12
services or facilities. 13
(6) The right to occupy premises under an occupancy agreement may 14
operate regardless of whether the same premises are also subject 15
to a residential tenancy agreement. 16
(7) An occupancy agreement is terminated if the occupant under the 17
agreement becomes a tenant under a residential tenancy 18
agreement (including if the occupant is recognised by the 19
Tribunal as a tenant under a residential tenancy agreement in 20
pursuance of section 77 or 79). This subsection does not limit the 21
circumstances in which an occupancy agreement may be 22
terminated. 23
(8) This Part applies, so far as is reasonably practicable, to 24
occupancy agreements in respect of residential premises whether 25
made before or after the commencement of this section. 26
186C Commencement of an occupancy agreement 27
An occupancy agreement starts, or is taken to have started, on the 28
earliest of the following days: 29
(a) the day stated in the agreement, 30
(b) the first day both parties have signed the agreement and 31
each has received a copy signed by the other, 32
(c) the day the occupant takes possession of the premises, 33
(d) the first day the grantor receives rent from the occupant. 34
Page 5
Residential Tenancies Amendment (Occupancy Agreements) Bill 2011
Schedule 1 Amendment of Residential Tenancies Act 2010 No 42
186D Occupancy principles 1
(1) The following principles (the occupancy principles) apply in 2
relation to occupancy agreements: 3
(a) an occupant is entitled to live in premises that are: 4
(i) reasonably clean when the occupant moves in, and 5
(ii) in a reasonable state of repair, and 6
(iii) reasonably secure, 7
(b) the grantor is entitled to set reasonable rules that the 8
occupant will be required to comply with and an occupant 9
is entitled to know the rules of the premises before moving 10
in, 11
(c) an occupant is entitled to the certainty of having the 12
occupancy agreement in writing, 13
(d) an occupant is entitled to be given a written receipt for the 14
payment of any money to the grantor, 15
(e) an occupant is entitled to quiet enjoyment of the premises, 16
(f) a grantor is entitled to enter the premises at a reasonable 17
time on reasonable grounds to carry out inspections or 18
repairs and for other reasonable purposes, 19
(g) an occupant is entitled to reasonable notice before the 20
grantor increases the amount to be paid for the right to 21
occupy the premises and is entitled to know before moving 22
in how much notice will be given, 23
(h) an occupant is not liable to pay a penalty or fee for breach 24
of any term of the agreement or any of the rules of the 25
premises, 26
(i) a grantor is entitled to charge for the use of a utility, 27
provided that the amount charged is determined according 28
to the cost to the grantor of providing the utility and a 29
reasonable measure or estimate of the occupant's use of 30
the utility, 31
(j) an occupant is entitled to know why and how the 32
occupancy may be terminated, including how much notice 33
will be given before eviction, 34
(k) an occupant must not be evicted without reasonable notice, 35
(l) a grantor and occupant should try to resolve disputes using 36
reasonable dispute resolution processes. 37
Page 6
Residential Tenancies Amendment (Occupancy Agreements) Bill 2011
Amendment of Residential Tenancies Act 2010 No 42 Schedule 1
(2) If an occupant occupies a moveable dwelling on land in a 1
residential park or holiday park and the moveable dwelling is not 2
provided by the grantor: 3
(a) the occupancy principle in subsection (1) (a) applies to the 4
site but does not apply to the moveable dwelling, and 5
(b) despite the occupancy principle in subsection (1) (f), the 6
grantor is entitled to enter the moveable dwelling only with 7
reasonable notice, at reasonable times, on reasonable 8
grounds and for reasonable purposes, and 9
(c) the occupancy principle in subsection (1) (g) applies to the 10
land and fixtures provided by the grantor, but not the 11
moveable dwelling. 12
186E Regulations about occupancy agreements 13
(1) The regulations may make provision in relation to occupancy 14
agreements, including, for example, standard occupancy terms. 15
(2) The regulations may provide for more than one form of standard 16
occupancy agreement for use for different classes of residential 17
premises, occupancy agreements or parties. 18
(3) A regulation that makes provision in relation to standard 19
occupancy terms must not be made unless the Minister has 20
certified that the regulation is consistent with the occupancy 21
principles. 22
186F Standard occupancy terms 23
(1) An occupancy agreement: 24
(a) must contain, and is taken to contain, terms to the effect of 25
the occupancy principles, and 26
(b) must contain, and is taken to contain, terms to the effect of 27
the standard occupancy terms prescribed by the 28
regulations. 29
(2) Subsection (1) does not prevent an occupancy agreement from 30
containing any other term, provided the term is consistent with: 31
(a) the standard occupancy terms prescribed by the 32
regulations, and 33
(b) the occupancy principles. 34
186G Grantor must deposit bond 35
(1) The grantor under an occupancy agreement must deposit the 36
amount of any bond under the agreement with the 37
Director-General. 38
Page 7
Residential Tenancies Amendment (Occupancy Agreements) Bill 2011
Schedule 1 Amendment of Residential Tenancies Act 2010 No 42
(2) The amount of the bond must not be more than the equivalent of 1
2 weeks' rent. 2
(3) The deposit must be accompanied by a written notice that states: 3
(a) the names of, and addresses for service on, the occupant 4
and the grantor, and 5
(b) the amount of bond being deposited. 6
(4) If the Director-General accepts the amount of the bond, the 7
Director-General must: 8
(a) give the grantor a receipt for the amount, and 9
(b) give the occupant a copy of the notice under subsection 10
(3). 11
(5) If the Director-General accepts the amount of the bond, 12
Divisions 13 of Part 8 (sections 158 and 159 excluded) apply in 13
relation to the occupancy agreement as if: 14
(a) the amount had been received by the Director-General 15
under Part 8, and 16
(b) the occupancy agreement were a residential tenancy 17
agreement, and 18
(c) the occupant were the tenant under the agreement, and 19
(d) the grantor were the landlord under the agreement, and 20
(e) any other necessary changes, and any changes prescribed 21
by the regulations, were made. 22
(6) This section extends to an occupancy agreement made before the 23
commencement of this section. 24
[9] Section 187 Orders that may be made by Tribunal 25
Insert ", or a grantor or occupant," after "tenant" where firstly occurring in 26
section 187 (1). 27
[10] Section 187 (1) (a), (b), (e), (f) and (g) and (2) (b) 28
Insert "or occupancy agreement" after "residential tenancy agreement" 29
wherever occurring. 30
[11] Section 187 (1) (h) 31
Omit "or tenant". 32
Insert instead ", grantor, grantor's agent, tenant or occupant". 33
Page 8
Residential Tenancies Amendment (Occupancy Agreements) Bill 2011
Amendment of Residential Tenancies Act 2010 No 42 Schedule 1
[12] Section 187 (1) (k) 1
Insert after section 187 (1) (j): 2
(k) an order directing a grantor or grantor's agent to give a 3
former occupant or person authorised by a former 4
occupant access to residential premises for the purpose of 5
recovering goods of the former occupant or fixtures that 6
the former occupant is entitled to remove. 7
[13] Section 187 (5) 8
Insert after section 187 (4), before the note: 9
(5) In this section: 10
occupant has the same meaning as in Part 8A. 11
[14] Section 189 Application of provisions relating to Tribunal 12
Insert ", or a grantor or occupant," after "or tenant" in section 189 (1). 13
[15] Section 189 (1) 14
Insert ", or a former grantor or former occupant" after "former tenant". 15
[16] Section 189 (3) 16
Insert after section 189 (2): 17
(3) In this section: 18
occupant has the same meaning as in Part 8A. 19
[17] Section 189A 20
Insert after section 189: 21
189A Tribunal must give effect to occupancy principles 22
In considering a matter, or making a decision, under this Act in 23
relation to a dispute between the parties to an occupancy 24
agreement or a dispute that is about, or relates to, an occupancy 25
agreement, the Tribunal is to give effect to the occupancy 26
principles. 27
[18] Part 9, Division 2, heading 28
Insert "or occupancy agreements" after "agreements". 29
Page 9
Residential Tenancies Amendment (Occupancy Agreements) Bill 2011
Schedule 1 Amendment of Residential Tenancies Act 2010 No 42
[19] Section 190A 1
Insert after section 190: 2
190A Applications relating to breaches of occupancy agreements or 3
occupancy principles 4
(1) A grantor or an occupant may apply to the Tribunal for an order 5
in relation to: 6
(a) a breach of an occupancy agreement (including a breach of 7
any term of the agreement that gives effect to an 8
occupancy principle), or 9
(b) any other breach of an occupancy principle. 10
(2) Such an application must be made: 11
(a) in relation to a breach that occurred before the 12
commencement of this section, within 28 days after the 13
commencement of this section, or 14
(b) in relation to a breach that occurs on or after the 15
commencement of this section: 16
(i) within the period prescribed by the regulations after 17
the grantor or occupant becomes aware of the 18
breach, or 19
(ii) within such other period as may be prescribed by the 20
regulations. 21
(3) An application may be made: 22
(a) during or after the end of an occupancy agreement, and 23
(b) whether or not a termination notice has been given or a 24
termination order has been made. 25
(4) A grantor's agent may make an application on behalf of a grantor. 26
(5) In this section: 27
occupant has the same meaning as in Part 8A. 28
Page 10
Residential Tenancies Amendment (Occupancy Agreements) Bill 2011
Amendment of Residential Tenancies Act 2010 No 42 Schedule 1
[20] Schedule 2 Savings, transitional and other provisions 1
Insert at the end of clause 1 (1): 2
Residential Tenancies Amendment (Occupancy Agreements) Act 3
2011 4
Page 11
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