RESIDENTIAL TENANCIES AMENDMENT BILL 2009 Explanatory Statement

Northern Territory Explanatory Statements

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RESIDENTIAL TENANCIES AMENDMENT BILL 2009

2009

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

SERIAL NO. 84

RESIDENTIAL TENANCIES AMENDMENT BILL

GENERAL OUTLINE

The Residential Tenancies Amendment Bill 2009 amends the Residential Tenancy Act (the Act) so as to provide for:

· the application of the Act to long-term tenancies in caravan parks;

· transitional arrangements concerning the application of the Act to caravan park tenants as at the time of the commencement of the legislation;

· provisions to ensure condition reports entered into at the beginning of a tenancy remain valid for the whole of the period of occupation resulting from that tenancy, including extensions and variations of the tenancy;

· a power for the Commissioner of Tenancies to pay for valuations required for the determination of rents in appropriate circumstances such as economic hardship;

· in determining the payment of compensation to tenants for breaches of the Act, the Commissioner of Tenancies to be able to take into account whether the tenant has agreed to the breach; and

· amendments of a minor and technical nature.

NOTES ON CLAUSES

Part 1 Preliminary matters

1. Short Title

This is a formal clause which provides for the citation of the Bill.
The Bill when passed may be cited as the Residential Tenancies Amendment Act 2009.

2. Commencement

This clause, when read with section 6A of the Interpretation Act, provides that the provisions of the Bill will commence on the day or days fixed by the Administrator by notice in the Government Gazette.

3. Act amended

The Bill provides for amendment of the Residential Tenancies Act
(the Act).

Part 2 Amendments relating to caravan parks

4. Amendment of section 4 (Definitions)

Clause 4 amends section 4 of the Act so as to:

· Omit definition of ‘residential premises’ and insert new definition that covers caravans and caravan sites in caravan parks;
· Insert definitions of:
(1) caravan;
(2) caravan park;
(3) caravan park agreement;
(4) caravan park owner;
(5) caravan park rules;
(6) caravan park site agreement;
(7) caravan park tenancy agreement;
(8) common area;
(9) resident; and
(10) residential premises.
· amend the definitions of ‘tenancy agreement’, ‘landlord’, ‘tenancy agreement’ and ‘tenant’ to clarify that they cover tenancies in caravan parks.

5. New sections 4A and 4B

4A. Meaning of caravan

This clause defines what a caravan is for the purposes of the Act.
A caravan can be an immovable dwelling in a caravan park
(ie mobile home). It is also defined as a trailer designed principally for residential purposes, designed to be attached to and towed by another vehicle and capable of being registered. However, this clause also covers caravans that can no longer be towed (eg their wheels have been taken off) and caravans that are also vehicles (eg combis).

4B Meaning of various terms if tenancy agreement relates to caravan park, and related matters

This clause sets out the details of the definitions of caravan park agreement, caravan park site agreement and caravan park tenancy agreement. It also clarifies that the use of the term ‘landlord’ in the Act also includes a caravan park owner and ‘tenant’ includes a resident of a caravan park.

6. Amendment of section 6 (Agreements to which this Act does not apply)

Section 6(h) currently provides that the Act does not apply to an agreement under which a person occupies or intends to occupy a caravan or a mobile home that is in a caravan park.

Clause 6 repeals section 6(h) and replaces it with new section 6(1)(h) which provides that the Act does not apply to tenancies in caravan park that are less than 60 days in length, otherwise the Act does apply to caravan parks. It will count as a continuous period even if the resident stops occupying a caravan in a caravan park for a period that is less than seven days. This will allow residents to leave the park for a short time and still be covered by the Act, and it will also prevent owners from attempting to avoid their obligations by requiring long-term tenants to leave their site for a day or two.

7. Amendment of section 19 (Tenancy agreements to be written)

Clause 7(1) repeals and replaces the heading of section 19. This heading now recognises that all tenancy agreements are to be in writing.

Clause 7(2) and (3) are statute law corrections. Clause 7(2) ensures that section 19(1)(a) of the Act deals with the tenant’s details and section 19(1)(b) deals with the details of the landlord and the landlord’s agent (if any).

8. Amendment of section 24 (Landlord cannot impose extra charges or liabilities)

Section 24 limits the payments that a landlord can require to be made by a tenant. Clause 8 provides for new section 24(4) which sets out that a landlord is not prohibited from requiring amounts to be paid as a deposit for keys or similar device to access a caravan park or part of a caravan park.

9. Amendment of section 25 (Condition report at beginning of tenancy)

This clause omits and replaces section 25(2)(a). The effect of the change is to set out what should be covered by a condition report for a caravan, a caravan park site or a houseboat and covers a caravan that is not in a caravan park (eg it is in someone’s backyard). The provisions relating to other premises are unchanged but are now located in new section 25(2)(a)(i).

10. Repeal and substitution of Part 7 heading

Part 7 Repairs, maintenance and related matters

This clause repeals and replaces the heading for Part 7.

11. Amendment of section 48 (Premises to be clean and suitable for habitation)

This an amendment of a technical nature identified by the Parliamentary Counsel.

12. New sections 48A and 48B

Clause 12 inserts new sections 48A and 48B

48A. Keeping caravan park etc. clean

New section 48A provides that it is a term of a caravan park tenancy that the caravan park owner must keep the various common areas in a caravan park clean and safe and also arrange for the collection of garbage.

48B. Keeping communal areas clean and tidy

New section 48B provides that it is a term of a caravan park tenancy that the caravan park owner must keep communal bathrooms and the like clean and tidy. In doing so, the caravan park owner is obliged to minimise inconvenience and disruption to residents.

13. Amendment of section 51 (Cleanliness and damage)

This clause makes some minor technical amendments but also inserts new section 51(1)(g), that provides that it is a term of caravan park tenancy agreement that the tenant must not intentionally or recklessly cause or permit damage to common areas.

14. Amendment of section 56 (Tenant to notify if premises to be vacant for more than 30 days)

This clause provides that it is a term of a tenancy agreement that a tenant of a caravan or a houseboat who leaves the tenanted premises vacant for more than 14 days must notify the landlord. The period for other types of tenancies remain at 30 days.

15.

Amendment of section 57 (Landlord’s obligation to repair)

This clause makes technical corrections as identified by the Parliamentary Counsel.

16. Amendment of section 65 (Tenant to be able to use and enjoy property)

This clause provides that it is a term of a tenancy agreement that a caravan park owner will not cause interference with the tenant’s use of the common areas in the caravan park.

17. New section 88B

This clause inserts new section 88B.

88B. Serious misconduct by resident of caravan park

This clause provides for emergency terminations for serious misconduct by a resident of a caravan park. A caravan park owner may terminate an agreement if the resident, or a person on the premises with the consent of the resident, has caused or is likely to cause serious damage to caravan park property, personal injury to another or serious interference with the reasonable peace, comfort or privacy of another resident or another person nearby.

A notice of termination can be given immediately or on a later date. However, within three business days of giving the notice, the owner must make an application to the Commissioner of Tenancies
(the Commissioner) for confirmation. If an application is not made within that time, the termination lapses and the resident is entitled to return to the park on the same terms.

This provision for immediate terminations are in recognition of the unique status of caravan parks where the actions of residents can have a very significant impact on the caravan park owners and other residents and their ability to use and enjoy the park and its amenities.

New section 88B does not limit the caravan park owner from taking other termination actions under the Act.
18. Repeal and substitution of section 90 (Fixed term tenancy)

This clause provide the notice period for terminating at the end of a fixed term lease for a caravan park agreement as at least 28 days. The period of time for other types of residential premises is at least 14 days.

The reason for the different approach reflects the specific circumstances of caravan parks as moving out of a caravan park site may be much more difficult than with other types of tenancies. It is not always just a matter of packing up and leaving as with a house or apartment. Some caravan park residents have semi-permanent annexes and concrete sites; others have gardens and picket fences.

19. New section 100B

This clause inserts new section 100B.

100B Application for confirmation of notice of termination given to resident of caravan park

This clause relates to notices of termination under new clause 88B, where the owner has made an application for a confirmation of the termination within the 3 business days required under new clause 88B.

The Commissioner must give the resident an opportunity to respond to the application before making his or her decision. If there were grounds for the owner to give the notice and it was reasonable in the circumstances, the Commissioner must confirm the termination. However, if the Commissioner is not so satisfied, he or she must declare the termination invalid.

Additionally, if the termination is declared invalid and the Commissioner considers it appropriate, the Commissioner may also order the owner to pay all, or part of, the accommodation expenses of the resident during the termination. This is to discourage vexatious emergency terminations from being made and is not intended to impact on the ability of owners to make reasonable emergency terminations.

20.

Amendment of section 110 (Condition report at end of tenancy)

This clause amends section 110(4)(a) by adding in the requirements for end of tenancy condition reports for caravans, caravan sites and houseboats.

21. Amendment of Part 13, Division 1, heading and new section 116A

This clause changes the heading for Division 1 of Part 13 and includes new section 116A.

Division 1 Rates and charges generally

116A. Application of Division

This clause provides that Division 1 does not apply to landlords and tenants under caravan park agreements (which are covered by new Division 1A).

22. Part 13, Division 1A

This clause inserts new Division 1A (comprising new sections
119A-119D).

119A. Application of Division

This clause states that Division 1A applies to landlords and tenants under caravan park agreements.

119B. Payment of electricity, gas or water charges

This new section provides that a tenant in a caravan park cannot be obliged to pay for various utility charges (ie electricity, gas, water) except for services provided to the specific caravan or site.

The maximum penalty for breach is 20 penalty units ($2600).

119C. No charge payable unless specified in caravan park agreement

New section 119C(1) provides that payments for electricity, gas or water can only be required if the caravan park agreement provides for the payment and if the site or caravan is individually metered for the electricity, gas or water.

New section 119C(2) and (3) provide for various offences consequential to the general principle set out in section 119C(1). The maximum penalty for breach is 20 penalty units ($2600).

119D. Commissioner may determine charges payable

New section 119D provides that the Commissioner of Tenancies may, on application of an owner or a resident, determine a resident’s proportion of electricity, gas or water charges.

23. New Part 13A

Clause 20 inserts new Part 13A (comprising new sections 122A-122L)

Part 13A Further provisions relevant to caravan parks and caravan park agreements

Division 1 Formation of caravan park agreements

122A. Caravan park agreement to be in writing

This new section provides that caravan park agreements must be in writing and must contain the matters required by section 19 for other tenancy agreements.

The maximum penalty for breach is 20 penalty units ($2600).

If a caravan park agreement is not in writing, the Regulations can prescribe an agreement to apply in such circumstances.

122B. Agreements incorporate caravan park rules

New section 122B provides that the relevant caravan park rules are taken to be part of each caravan park agreement.

Division 2 Caravan park rules

122C. Caravan park rules

New section 122C(1) provides that a caravan park owner may make rules about the use, enjoyment, control and management of a caravan park. New section 122C(2) lists the matters that can be dealt with in the rules. Regulations may add to the list of matters.

If a residents committee exists under new section 122F, the owner must consult with the committee prior to making or amending park rules

122D. Amendment of caravan park rules

New section 122D sets out that a caravan park owner must give
14 days notice to each resident of any proposed change to caravan park rules.

122E. Application if park rules are considered unreasonable

New section 122E provides that, on application, the Commissioner of Tenancies, may make an order that a caravan park rule is unreasonable. The Commissioner also has the power to amend a rule to make it reasonable.

122F. Residents committee

New section 122F provides that residents of a caravan park are entitled to form residents committee to represent the interests they have in common as residents of the caravan park. In order to form such a committee, there must be at least five long-term residents. However, there can be only one such committee for each park.

An owner must not interfere with caravan park committees or similar groups.

The maximum penalty for breach is 50 penalty units ($6,500).

Division 3 Obligations of caravan park owners

122G. Information to be provided by caravan park owner to resident

New section 122G provides that at, or before, the time of entering into a caravan park agreement, the caravan park owner must give the resident a copy of the caravan park rules and a notice containing information as required under the Regulations. Relevant user manual and/or instructions must also be provided.

If a person takes over a caravan park (eg becomes the new owner) the person must provide various details of the change to each resident within 14 days.

The maximum penalty for breach is 20 penalty units ($2600).

122H. Enforcing caravan park rules

New section 122H provides that it is a term of a caravan park agreement, that the caravan park owner must take all reasonable steps to ensure that caravan park rules are observed by all relevant persons and that the rules are enforced and interpreted consistently and fairly.

122J. Access to caravan park

New section 122J provides that it is a term of a caravan park agreement that the caravan park owner provide 24 hour access to the caravan site and to key communal facilities (such as toilets and bathrooms).

Division 4 Relocation of sites or caravans

122K. Changing caravan or site within caravan park

New section 122K sets out the circumstances in which a caravan park owner can re-locate a resident. These include where work is to be carried out, for health and safety reasons or for emergency situations. The caravan park owner must also give reasonable notice of a
re-location.

122L. Options after giving notice about relocation

New section 122L provides for re-location agreements. In the absence of an agreement, the caravan park owner may seek an appropriate order from the Commissioner of Tenancies.

Division 5 Sale of caravans on site

122M. Sale of caravan on site

New section 122M provides that it is a term of a caravan park agreement that the resident can sell his or her caravan but must give appropriate notice before displaying a ‘for sale’ sign (the maximum size to be prescribed by Regulations). The park owner must take hinder or prevent sales.

The maximum penalty for breach is 50 penalty units ($6,500).

24. Amendment of section 142 (Entry and inspection of property)

Clause 24 amends section 142 so that it applies to caravans, allowing the Commissioner of Tenancies to enter and inspect a caravan or site or to authorise a person to do so.

25. New Part 19

Clause 25 inserts new Park 19 comprising new section 164.

Part 19 Transitional provisions for Part 2 of Residential Tenancies Amendment Act 2009

164. Application to certain agreements at commencement

New section 164 clarifies that the new provisions contained in the Bill have retrospective application ie they apply to an existing caravan park agreements entered into before the Bill commences. However, it also sets out specific provisions of the Act that don’t apply to existing agreements as they would be impractical, such as, the requirement for an agreement to be in writing and the requirement to keep past rent receipts.

All provisions of the Bill relating to caravan parks will apply once a caravan park agreement comes into force that involves the same persons as those under the existing agreement or (at any time after the commencement of this section) or the existing agreement is renewed or varied or the tenancy becomes a periodic tenancy any time after 6 months after commencement.

Part 3 Amendments relating to condition reports and other matters

26. Amendment of section 4 (Definitions)

This inserts a new definition of ‘continuation’ that applies to the extension or renewal of tenancies.

27. Amendment of section 25 (Condition report at beginning of tenancy)

This clause clarifies that condition reports may be prepared at the beginning of a continuation of a tenancy eg where an existing tenancy is renewed.

28. Repeal and substitution of section 28

This clause inserts new sections 28, 28A and 28B.

28. Condition report conclusive of condition at start of tenancy

This clause provides that a condition report prepared at the start of tenancy is conclusive proof of the evidence of the condition of the premises and any ancillary property. It also provides the same for condition report prepared at the start of a continuation eg a renewed lease.

28A. Condition report has effect for continuation of tenancy

New section 28A provides that an initial condition report, prepared at the commencement of a tenancy, continues to apply to the premises the subject of the tenancy where a new tenancy is made with the tenant or where the tenancy continues as a periodic tenancy, unless a new condition report is prepared under section 25. New section 28A will apply whether or not:

1. there is a waiver of rent at any time between an initial tenancy and a further tenancy; or
2. all of the tenants for the new or periodic tenancy were tenants under the original tenancy agreement, as long as one of the tenants for the new agreement or continuation was a tenant under the original tenancy.

28B. Landlord must not require tenant to vacate for condition report

New section 28B provides that a landlord must not require a tenant to vacate premises in order to make a further condition report.

29. New section 42A

This clause amends section 122 to provide that the Commissioner may, if the Commissioner considers it appropriate, pay or undertake to pay for a valuation of premises that is, or that may be, the subject of an application for a declaration of excessive rent.

30. Amendment of section 110 (Condition report at end of tenancy)

This provides for technical amendments identified by the Parliamentary Counsel.

31.

Amendment of section 112 (When landlord may keep security deposit)

Makes some technical amendments and also inserts new sub-section (10) to clarify that, where there is a continuing lease eg a renewal, a landlord need only return a security deposit at the end of the continuing lease.

32. Amendment of section 122 (Compensation and civil penalties)

This clause makes some technical amendments to section 122. However, it also inserts the words ‘or this Act’ into section 122(3)(b). The effect of this is that the Commissioner of Tenancies must, when considering compensation payments to be made to an applicant for breach of the Act, take into account whether the applicant has knowingly agreed to the breach, such as, an increase in rent not strictly in accordance with the Act.

33. New Part 20

This clause inserts new Part 20 that consists of new section 165.

Part 20 Transitional provisions for Part 3 of Residential Tenancies Amendment Act 2009

165. Application of section 122

New section 165 provides that the Commissioner of Tenancies must, in dealing with an application for compensation under section 122, take the matters listed in section 122(3) (including subsection 122(3)(b)) into account even if the tenancy agreement to which the application relates was entered into before the commencement of new section 165.

Part 4 Further amendments

34. Further amendments

This gives effect to the Schedule to the Bill containing a number of minor and technical amendments.

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