RESIDENTIAL TENANCIES ACT 1987 - SECT 64 Application to Tribunal by landlord for termination and order for possession

This legislation has been repealed.

RESIDENTIAL TENANCIES ACT 1987 - SECT 64

64 Application to Tribunal by landlord for termination and order for possession

(1) If:

(a) a landlord or a tenant gives notice of termination of a residential tenancy agreement under this Part, and

(b) the tenant fails to deliver up vacant possession of the residential premises on the day specified,

the landlord may, not later than 30 days after that day, apply to the Tribunal for an order terminating the agreement and an order for possession of the premises.

(2) The Tribunal, on application by a landlord under this section, is to make an order terminating the agreement if it is satisfied:

(a) in the case of a notice given by a landlord on a ground referred to in section 56 or 61--that the landlord has established the ground, or

(b) in the case of a notice given by a landlord on the ground referred to in section 57, relating to a breach of the agreement:

(i) that the landlord has established the ground, and

(ii) that the breach, in the circumstances of the case, is such as to justify termination of the agreement, or

(c) in any other case (except in the case of a notice given by a landlord on a ground referred to in section 63B, 63F or 63I):

(i) that the tenant has seriously or persistently breached the agreement, or

(ii) that, having considered the circumstances of the case, it is appropriate to do so.

(2A) The Tribunal, on application under this section by a landlord under a social housing tenancy agreement, is to make an order terminating the agreement ( "the existing agreement") if it is satisfied:

(a) in the case of a notice given on a ground referred to in section 63B--that the landlord has determined, as the result of an assessment carried out under section 63C, that the tenant is not eligible to reside in the class of social housing premises to which the agreement applies, or

(b) in the case of a notice given on a ground referred to in section 63F:

(i) that the landlord has offered to enter into a new social housing tenancy agreement with the tenant in respect of alternative premises to the premises the subject of the existing agreement, and

(ii) that alternative premises (which may or may not be the same as the alternative premises in connection with which the notice was given) are available for occupation by the tenant.

(2B) In deciding whether or not to make an order under subsection (2A) (a), the Tribunal is not to review the eligibility of the tenant to reside in the class of social housing premises to which the agreement applies.

(2C) In deciding whether or not to make an order under subsection (2A) (b), the Tribunal is not to review the landlord's reasons for making the offer concerned.

(2D) The Tribunal is, on application by the New South Wales Land and Housing Corporation on a ground referred to in section 63I, to make an order terminating the agreement if:

(a) in the case of the ground referred to in section 63I (1) (a):

(i) the Corporation has requested, in accordance with section 35A, that the tenant enter into an acceptable behaviour agreement, and

(ii) the Tribunal is satisfied that the tenant has failed or refused to do so, or

(b) in the case of the ground referred to in section 63I (1) (b):

(i) the Tribunal is satisfied that the tenant has entered into an acceptable behaviour agreement, and

(ii) the tenant has failed to satisfy the Tribunal that the tenant has not seriously or persistently breached the terms of that agreement.

(3) Except as provided by section 66, the Tribunal shall not make an order terminating a residential tenancy agreement under this section unless it is satisfied that notice of termination was given and that it was given in accordance with this Part.

(3A) The Tribunal is not to make an order terminating a social housing tenancy agreement on the ground referred to in section 63B or 63F unless it is satisfied that:

(a) except as provided by section 66, any notice required to be given under section 63D or 63G before giving notice of termination was given and that it was given in accordance with that section, and

(b) any review required to be carried out under section 63D or 63G was carried out and that it was carried out in accordance with that section.

(4) Without limiting the obligations of the Tribunal under subsection (2) (b) or (c), in considering the circumstances of a case concerning social housing premises under that provision, the Tribunal, in addition to having regard to the circumstances of the tenant and other circumstances of the case, is to have regard to such of the following matters as may be relevant:

(a) any serious adverse effects the tenancy has had on neighbouring residents or other persons,

(b) whether any breach of the residential tenancy agreement was a serious one (and, in particular, whether it was one to which subsection (6) applies), and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk,

(c) the landlord's responsibility to its other tenants,

(d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal,

(e) the history of the tenancy concerned, including, if the tenant is a tenant under a public housing tenancy agreement, any prior tenancy of the tenant arising under any such agreement.

(5) If the Tribunal makes an order terminating a residential tenancy agreement under this section, it must make a further order for possession of the residential premises, specifying the day on which the order takes effect.

(6) If the residential premises concerned are social housing premises, an order for possession made under this section is to be expressed to take effect immediately if, in the case of a breach of the agreement, the breach:

(a) involves the use of the premises, or any property adjoining or adjacent to the premises (including any property available for use by the tenant in common with others), for the purposes of the manufacture or sale of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 , or

(b) subjects persons or property to unreasonable risk,

unless the Tribunal considers that it would be unjust to do so.

(7) Nothing in this section affects the operation of section 68 or 68A.