New South Wales Consolidated Acts

LANDLORD AND TENANT (AMENDMENT) ACT 1948 - SECT 21

21 Matters to be considered

(1) In determining the fair rent a Fair Rents Board shall have regard to:

(a) the capital value of the premises at the prescribed date, or, if the premises were not in existence on that date, on the date on which the erection of the premises was completed,

(b) the lessor’s liability for annual rates and insurance premiums in respect of such premises and fixtures thereon,

(c) the estimated annual cost of repairs, maintenance and renewals of the premises and fixtures thereon,

(d) the estimated amount of annual depreciation in the value of the premises and the estimated time per annum during which the premises may be vacant,

(e) the rents, fixed by a determination in force under this Part, of other prescribed premises (other than premises which are the subject of an agreement in force under section 17A or of a determination made under Division 4AA) which:

(i) are in the locality of,

(ii) are subject to the same provisions of this Act as are, and

(iii) are otherwise comparable in all respects to,

the premises the subject of the application,

(f) the rate of interest charged upon overdrafts by the Commonwealth Bank of Australia,

(g) any services provided by the lessor or lessee in connection with the lease or the value of any goods leased with the premises,

(h) any obligation on the part of the lessee to effect any improvements, alterations or repairs to the premises at his or her own expense,

(i) the conduct of the parties, and

(j) the amount, if any, that the Fair Rents Board is satisfied was necessarily expended by the lessor since the prescribed date referred to in subsection (4) of section 20 upon the improvement or structural alteration of the premises (but not including decoration, repairs or maintenance).

In determining the fair rent of any premises the Fair Rents Board shall not make any allowance by reason of any loss which might be imposed upon the lessor by an order fixing the rent of the premises at an amount less than the lessor’s liability under a mortgage of, or contract of sale in respect of, the premises, or under a hire purchase agreement or contract of sale in respect of any goods leased with the premises.
Notwithstanding any other provision of this Act, a Fair Rents Board shall not, in making a determination, or a variation of a determination, of the fair rent of any prescribed premises have regard to any capital value of those premises other than the appropriate capital value of those premises referred to in paragraph (a).

(1A) A Fair Rents Board in determining the fair rent of prescribed premises not being a dwelling-house shall in addition to the matters specified in subsection (1) have regard to land tax payable in respect of the premises by the lessor under the Land Tax Management Act 1956 and the Land Tax Act 1956 , or any Act amending or replacing any such Act, or where such land tax is payable by the lessor in respect of the premises together with other lands, to the extent to which such land tax would be payable were the premises the only land in respect of which the lessor was liable for any such land tax.

(1AB) In determining the fair rent of any prescribed premises a Fair Rents Board may include in the fair rent an allowance in respect of agent’s collecting commission or, where an agent does not collect the rent of the prescribed premises, such amount in respect of the collection of the rent as the Board deems proper.

(1C) Where a Fair Rents Board would, but for this subsection, increase the fair rent of any prescribed premises and the Board is of opinion that the lessee would not reasonably be able to pay the fair rent as so increased, the Board shall, in determining the amount of the increase, if any, have regard to the financial circumstances of the lessor and the lessee.

(1D) In determining or varying the fair rent of any prescribed premises, a Fair Rents Board shall not make any allowance:

(a) based on paragraph (f) of subsection (1) in excess of such percentage of the capital value of the prescribed premises at the prescribed date referred to in subsection (4) of section 20 as is equal to the difference between the rate per centum of interest charged upon overdrafts by the Commonwealth Bank of Australia, or the Commonwealth Trading Bank of Australia, as the case may be, at that prescribed date and the rate per centum of interest charged upon overdrafts by the Commonwealth Trading Bank of Australia at the date of the determination or variation, or

(b) based on paragraph (j) of subsection (1) in excess of eight per centum of the amount referred to in that paragraph.

(1E) In determining or varying the fair rent of any prescribed premises, a Fair Rents Board shall not make any allowance by reason of any change, since the prescribed date referred to in subsection (4) of section 20 or since any previous determination or variation or since any earlier date whatsoever, in any economic conditions affecting the community generally or a substantial part of the community.

(2) In considering the matters referred to in subsection (1):

(a) any bonus, premium or sum of money (other than rent) or other consideration given or promised or agreed to be given by the lessor, or

(b) the purchase or exchange by the lessor of any goods or goodwill,

which would have been in contravention of subsection (1) of section 36 had the prescribed premises concerned not been excluded from the operation of that section or had the consent of the Director-General or a Board, as the case may be, not been obtained, shall be disregarded.