LANDLORD AND TENANT (AMENDMENT) ACT 1948 - SECT 62 Restriction on eviction

This legislation has been repealed.

LANDLORD AND TENANT (AMENDMENT) ACT 1948 - SECT 62

62 Restriction on eviction

(1) Except as provided by this Part, the lessor of any prescribed premises shall not give any notice to terminate the tenancy or take or continue any proceedings to recover possession of the premises from the lessee or for the ejectment of the lessee therefrom.

(1A) Where any premises consist partly of prescribed premises and partly of other premises, the provisions of this Part apply to such part of the premises as consists of prescribed premises.

(1B) Subject to subsection (1C), where there are two or more lessees of any prescribed premises and they are not lessees under the same lease:

(a) a notice, given before or after the date upon which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 was signified, to terminate the tenancy of any one of the lessees shall not have any force or operation against the other lessee or any of the other lessees, whether or not the other lessee or any of the other lessees has attorned tenant to the lessee to whom the notice was given, and

(b) an order, made under this Part after that day, for the recovery of possession of the premises shall not have any force or operation against any such lessee unless such a notice had been validly given to him or her, whether or not he or she has attorned tenant to another of the lessees against whom such an order has been made.

(1C) Nothing in subsection (1B) prevents a notice to terminate the tenancy of, or an order for the recovery of possession of premises from, or for the ejectment from premises of, a sub-lessor having force or operation against a sub-lessee to whom that sub-lessor has sub-let the premises.

(1D) Where before the date upon which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 was signified an order for the recovery of possession of any prescribed premises had been made on the application of a person who became the lessor by virtue of a concurrent lease and the order had not, before that day, been executed, the order shall not be executed against any lessee of the premises other than that person.

(2) A notice to quit given in contravention of this section shall not operate so as to terminate the tenancy in respect of which the notice was given.

(3) Subject to this Part, a lessor may take proceedings in any court of competent jurisdiction for an order for the recovery by him or her of any prescribed premises (or of any goods leased therewith) if the lessor, before taking the proceedings, has given to the lessee, upon one or more of the prescribed grounds but upon no other ground, notice to quit in writing for a period determined in accordance with section 63, and that period of notice has expired.

(4) Service of the notice to quit may, without prejudice to any other mode of service, be effected:

(i) by delivering the notice to:

(a) some person apparently over the age of sixteen years and apparently residing in or in occupation of the premises, or

(b) the person by whom the rent of the premises is customarily paid,

(ii) with the leave of the court, by affixing the same to the premises and by sending copies thereof by prepaid post addressed to the lessee at the premises and at his or her address last known to the lessor.

(4A)

(a) Where a lessee of prescribed premises has died and probate or letters of administration of his or her estate have not been granted, any notice to quit which might have been given to the legal personal representative of the deceased lessee had probate or letters of administration of his or her estate been granted may be given by affixing the same to the premises and:

(i) where any person or persons are apparently residing in or in occupation of the premises--by delivering the notice to any of such persons apparently over the age of sixteen years,

(ii) in any other case--by publishing the notice twice in a daily newspaper circulating in the district in which the premises are situated or by publishing the notice in a manner approved in writing by the Secretary for notices of that kind.

(b) Where any proceedings for an order for the recovery of possession of any prescribed premises are taken in reliance on any notice to quit given in the manner provided in paragraph (a), any occupant of the premises or other person claiming an interest therein shall be entitled to be heard in the proceedings. The contesting of any such proceedings shall not of itself be regarded as an act of administration or as intermeddling in the estate of the deceased lessee or as constituting the person so contesting any such proceedings executor de son tort of the deceased lessee.

(c) Nothing in this subsection shall affect the right of a lessor to give notice to quit otherwise than as provided in this subsection.

(5) The prescribed grounds shall be:

(a) that the lessee has failed to pay the rent in respect of a period:

(i) where the lessee's period of occupation does not exceed twelve months--of not less than fourteen days, and

(ii) in any other case--of not less than twenty-eight days,

(b)

(i) that the lessee has failed to perform or observe some other term or condition of the lease and the performance or observance of that other term or condition has not been waived or excused by the lessor,

(ii) that the lessee has become the lessee by reason of an assignment or transfer made after the fourteenth day of March, one thousand nine hundred and forty-seven, in breach of a term or condition of the lease and the transfer or assignment has not been consented to or approved by the lessor,

(c) that the lessee has failed to take reasonable care of the premises, or of any goods leased therewith, or has committed waste,

(d) that the lessee has been guilty of conduct which is a nuisance or annoyance to adjoining or neighbouring occupiers,

(d1) that the premises are being used for the purpose of prostitution or of soliciting for prostitution,

(e) that the lessee or any other person has been convicted, during the currency of the lease, of any offence arising out of the use of the premises for any illegal purpose or that a court has found or declared that the premises have, during the currency of the lease, been used for some illegal purpose,

(f) that the lessee has given notice in writing of his or her intention to vacate the premises and, in consequence of that notice, the lessor has agreed to sell or let the premises or has taken any other steps as a result of which he or she would be seriously prejudiced if he or she could not obtain possession,

(g) that the premises:

(i) being a dwelling-house--are reasonably required by the lessor for personal occupation as a residence by himself or herself or by some person who ordinarily resides with, and is wholly or partly dependent upon, him or her, or

(ii) not being a dwelling-house--are reasonably required for occupation by the lessor or by a person associated or connected with the lessor in his or her trade, profession, calling or occupation,

(h) that the premises are used as, or have been acquired for use as, a parsonage, vicarage, presbytery or other like premises and are reasonably required for the personal occupation as a residence of a minister of religion (including a person who, although not ordained, is performing all the duties of a minister of religion),

(i) that the lessor is a trustee and the premises are reasonably required by a beneficiary under the trust for his or her personal occupation as a residence or for the occupation as a residence of some person who ordinarily resides with, and is wholly or partly dependent upon, him or her,

(j) that the lessor is a person, body or authority carrying on a hospital or nursing service, or a trustee for such a person, body or authority, and the use of the premises is reasonably required for the purposes of the hospital or nursing service (including the accommodation of the staff of the hospital or nursing service),

(k) that the premises have been occupied, or are occupied, in consequence of his or her employment by some person in the employ of the lessor and are reasonably required for the personal occupation as a residence in consequence of that employment of some other person employed by, or about to become employed by, the lessor,

(l) that the lessor has agreed to sell the premises by an agreement which requires the purchaser to pay not less than one-fourth of the whole purchase money within twelve months from the date thereof and by which the purchaser is entitled to vacant possession of the premises and the premises:

(i) being a dwelling-house--are reasonably required by the purchaser for personal occupation as a residence by himself or herself or by some person who ordinarily resides with, and is wholly or partly dependent upon, him or her, or

(ii) not being a dwelling-house--are reasonably required for occupation by the purchaser or by a person associated or connected with the purchaser in his or her trade, profession, calling or occupation,

(m) that the premises are reasonably required by the lessor for reconstruction or demolition,

(n) that the lessee has become the lessee of the premises being a dwelling-house by virtue of an assignment or transfer which the lessor has not consented to or approved,

(o) that the lessee has sub-let the premises being a dwelling-house or some part of the dwelling-house by a sub-lease which has not been consented to or approved by the lessor, or

(p)

(i) that the lessee has parted with the possession of premises being a dwelling-house without the consent or approval of the lessor, or

(ii) that the lessee, not having parted with possession of the premises being a dwelling-house, has, without the consent or approval of the lessor, ceased for a period exceeding six months to be a bona fide occupant of the premises,

(q) that the lessee by sub-letting or parting with possession of the premises or any part thereof or by permitting use of the premises or any part thereof by any other person for reward is receiving rents or profits equal to or in excess of an amount equivalent to one hundred and twenty per centum of the rent paid by him or her,

(r) that the premises being a garage (not ordinarily used as a dwelling) situated within the curtilage of a dwelling-house are reasonably required for letting to a lessee of that dwelling-house or part thereof, and that the lessee of the garage is not a lessee of the dwelling-house or any part thereof (other than the garage),

(s) that the lessor is a person, body or authority carrying on a school or educational establishment, or a trustee for such a person, body or authority, and the use of the premises is reasonably required for the purposes of the school or educational establishment (including the accommodation of the staff or students of the school or educational establishment),

(t) that the premises, being a dwelling-house, are owned by the lessor who, being a male, is of or over the age of sixty-five years or, being a female, is of or over the age of sixty years, that not more than two other dwelling-houses (exclusive of the dwelling-house in which he or she resides) are owned by the lessor if he or she is living alone or, if the lessor is living with his or her spouse, not more than two other dwelling-houses (exclusive of the dwelling-house in which they reside) are owned by them, that the income of the lessor if he or she is living alone, or, if the lessor is living with his or her spouse, his or her income together with that of his or her spouse, does not exceed the Sydney basic wage, and that the premises are required for sale with vacant possession,

(u) that, where the premises are a dwelling-house, the lessee has reasonably suitable alternative accommodation available for his or her occupation for residential purposes and has an estate in the land on which that accommodation is situated,

(v) that the premises, being shared accommodation, are required by the lessor, being a person of or over the age of sixty-five years, and that at the date on which the notice to quit was given and during the three years immediately preceding that date only one lease of shared accommodation in the dwelling-house of which the shared accommodation forms part was in force at any one time,

(w) that, where the premises are a dwelling-house, the means of the lessee (together with the means of any person ordinarily residing in the premises other than a child under the age of sixteen years, a sub-lessee or a boarder who is not a relative, as defined in subsection (1) of section 31MAA, of the lessee or a lodger who is not such a relative) are such that it is reasonable that the lessee or the lessee and any such person should acquire or lease other premises,

(x) that the lessor is a personal representative or trustee of the estate of a deceased person, that the value of the premises determined for the purposes of the Stamp Duties Act 1920 , as subsequently amended, constitutes not less than one-half the dutiable estate under that Act of which they form or formed part and that the lessor, as such personal representative or trustee, holds the premises subject to a trust for sale, or

(y) that, where the premises are a dwelling-house, the lessor has available for the lessee's occupation as a residence reasonably suitable alternative accommodation which has been erected with assistance provided under the Aged Persons Homes Act 1954 (as amended by subsequent Acts) of the Parliament of the Commonwealth at a rental which does not exceed the rental being paid by the lessee of the prescribed premises and which accommodation is available without payment of any premium or other money by the lessee.

(6)

(a) In subsection (5), unless the contrary intention appears,
"lessor" includes, where there is more than one lessor, any one or more of the lessors, and
"lessee" includes, where there is more than one lessee, any one or more of the lessees.

(b) In paragraphs (g) and (l) of subsection (5),
"dwelling-house" does not include any premises referred to in subparagraph (i) or (ii) of paragraph (b) of subsection (1B) of section 8 that is a dwelling-house for the purposes of the definition of
"prescribed premises" in subsection (1) of that section, by reason of paragraph (a) of the said subsection (1B).

(b1) A notice to terminate the tenancy of a lessee of a lodging-house or boarding-house shall not be given on a ground specified in paragraph (n) or (o), or subparagraph (i) of paragraph (p), of subsection (5) where the assignment, transfer, sub-letting or parting with possession of the premises took place before the date on which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 was signified, or on the ground specified in subparagraph (ii) of paragraph (p) of that subsection unless the lessee has, since that date, ceased for a period exceeding six months to be a bona fide occupant of the premises.

(c) In paragraph (t) of subsection (5),
"Sydney basic wage" means the basic wage for adult males in force within the meaning of Part 5 of the Industrial Arbitration Act 1940 , as amended by subsequent Acts, immediately before the notice to quit concerned was given.

(d) For the purposes of paragraph (t) of subsection (5) if the lessor resides with his or her spouse a dwelling-house owned by them jointly or by either of them severally shall be taken to be owned by them.

(7) Notice to quit on a ground specified in paragraph (n) or paragraph (o) of subsection (5):

(a) shall not be given:

(i) where the lessee became the lessee by virtue of an assignment or transfer made before the fourteenth day of March, one thousand nine hundred and forty-seven, or the sub-lease was granted before that date,

(ii) where the lease is for a fixed term--unless that term has expired, or

(iii) in the case of a periodic lease--unless the period which was current at the date on which the assignment, transfer or sub-lease took effect has expired, and

(b) may be given only where the lease contains no covenant, whether absolute or conditional, against assigning, transferring or sub-letting by the lessee.

(8) Notice to quit on the ground specified in subparagraph (i) of paragraph (p) of subsection (5) shall not be given:

(a) where the lessee parted with the possession of the premises before the twenty-first day of July, one thousand nine hundred and forty-eight,

(b) where the lease is for a fixed term--unless that term has expired,

(c) in the case of a periodic lease--unless the period which was current at the date on which the parting with possession took place has expired, or

Any such notice may be given only where the lease contains no covenant, whether absolute or conditional, against parting with possession by the lessee.

(8A) Notice to quit on the ground specified in subparagraph (ii) of paragraph (p) of subsection (5) shall not be given:

(a) where the lessee ceased to be a bona fide occupant of the premises before the commencement of the Landlord and Tenant (Amendment) Act 1952 ,

(b) where the lease is for a fixed term--unless that term has expired, or

(c) in the case of a periodic lease--unless the period which was current at the date on which the lessee ceased to be a bona fide occupant of the premises has expired.

Any such notice may be given only where the lease contains no covenant, whether absolute or conditional, requiring the lessee to be a bona fide occupant of the premises.

(9) Notice to quit on the ground specified in paragraph (q) of subsection (5):

(a) may be given whether or not the sub-letting, parting with possession or permission to use was in breach of any covenant, and

(b) shall not be given:

(i) where the lease is for a fixed term--unless that term has expired,

(ii) in the case of a periodic lease--unless the period which was current at the date on which the sub-letting took effect or the parting with possession took place or the permission to use was given has expired.

(10) Nothing in subsection (7), (8) (8A) or (9) shall prejudice the right of a lessor to give notice to quit on the ground specified in paragraph (b) of subsection (5).

(11) Where notice to quit is given on the ground specified in paragraph (m) of subsection (5), the court shall not be precluded from making an order on the ground that the lessor intends to occupy the whole or part of the premises as reconstructed or the whole or part of any premises proposed to be erected in the place of the premises after their demolition.

(12) For the purposes of paragraph (u) of subsection (5) reasonably suitable alternative accommodation shall be deemed to be available for the lessee's occupation for residential purposes where he or she is the lessor of reasonably suitable alternative accommodation that is not subject to Parts 2, 3, 4 and 5 and he or she could, within a reasonable time, obtain vacant possession thereof.