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RESIDENTIAL TENANCIES ACT 1995 - SECT 89A

RESIDENTIAL TENANCIES ACT 1995 - SECT 89A

89A—Termination based on domestic abuse

        (1)         The Tribunal may, on application by a tenant or a co-tenant, terminate a residential tenancy from a date specified in the Tribunal's order if satisfied—

            (a)         that an intervention order is in force against a person who resides at the residential premises for the protection of—

                  (i)         the applicant; or

                  (ii)         a domestic associate of the applicant who normally or regularly resides at the residential premises; or

            (b)         that a person who resides at the residential premises has committed domestic abuse against—

                  (i)         the applicant; or

                  (ii)         a domestic associate of the applicant who normally or regularly resides at the residential premises.

        (2)         The Tribunal may, on application by the South Australian Housing Trust, a subsidiary of the South Australian Housing Trust or a community housing provider registered under the Community Housing Providers National Law , terminate a residential tenancy from a date specified in the Tribunal's order if satisfied—

            (a)         that an intervention order is in force against a tenant for the protection of a person who normally or regularly resides at the residential premises; or

            (b)         that a tenant has committed domestic abuse against a person who normally or regularly resides at the residential premises.

        (3)         For the purposes of an application under this section, the applicant, the landlord and any tenant or co-tenant under the residential tenancy agreement are parties to proceedings concerning the tenancy dispute.

        (4)         The Tribunal may, on application by a party to proceedings under this section, make 1 or more of the following additional orders:

            (a)         subject to this section, an order requiring the landlord to enter into a new residential tenancy agreement with the applicant or a co-tenant under the terminated agreement (or both) for the remainder of the term of the tenancy;

            (b)         an order that the landlord may enter the residential premises at a time determined by the Tribunal to inspect the premises before a determination is made under this section;

            (c)         an order for possession of the premises on a date specified by the Tribunal;

            (d)         if the Tribunal is satisfied that—

                  (i)         the applicant did not cause or reasonably cause a breach of the residential tenancy agreement; or

                  (ii)         the nature of any breach of the residential tenancy agreement resulted from an act of abuse or domestic abuse against the applicant,

an order that the landlord, landlord's agent or a database operator must not list the applicant's personal information in a residential tenancy database under section 99F(1).

        (5)         The Tribunal must not make an order under subsection (4)(a) requiring the landlord to enter into a new residential tenancy agreement with a co-tenant who is—

            (a)         the person referred to in subsection (1)(a) against whom an intervention order is in force; or

            (b)         the person referred to in subsection (1)(b) whom the Tribunal is satisfied has committed domestic abuse against an applicant or a domestic associate of the applicant who normally or regularly resides at the residential premises,

if the landlord indicates, as part of proceedings before the Tribunal, that the landlord considers it would be unreasonable for such an order to be made.

        (6)         Before making an order under subsection (4)(a), the Tribunal must be satisfied—

            (a)         that any tenant or co-tenant under the new residential tenancy agreement could reasonably be expected to comply with the obligations under the agreement; and

            (b)         in a case where the landlord is the South Australian Housing Trust or a subsidiary of the South Australian Housing Trust—that any tenant under the new residential tenancy agreement meets the eligibility requirements of the Trust; and

            (c)         in a case where—

                  (i)         the landlord is a community housing provider registered under the Community Housing Providers National Law ; and

                  (ii)         the residential premises constitute community housing within the meaning of that Law,

that any tenant under the new residential tenancy agreement meets the eligibility requirements for such community housing and any membership or other requirements of the landlord associated with occupation of those premises.

        (7)         If the landlord or any co-tenant objects to an application for the making of an order under subsection (1) or (4)(a), the Tribunal must not make the order unless satisfied that the hardship likely to be suffered by the applicant or a domestic associate of the applicant who normally or regularly resides at the residential premises would, if the order were not made, be greater than any hardship likely to be suffered by the objector as a consequence of the making of the order.

        (8)         A new residential tenancy agreement entered into by order of the Tribunal under subsection (4)(a) must be on the same terms and conditions as the terminated tenancy agreement, subject to any changes determined by the Tribunal.

        (9)         In considering an application under this section, the Tribunal must have regard to such of the following orders and proceedings (if any) as are relevant to the application:

            (a)         an order, injunction, undertaking, plan, recognisance or other form of obligation imposed or agreement made under the Family Law Act 1975 of the Commonwealth;

            (b)         an order made under the Children's Protection Act 1993 or the Children and Young People (Safety) Act 2017 ;

            (c)         an order made under the Intervention Orders (Prevention of Abuse) Act 2009 ;

            (d)         a pending application for an order referred to in paragraph (a), (b) or (c);

            (e)         any other relevant legal proceedings.

        (10)         If a residential tenancy is terminated under this section because of an intervention order in force against a co-tenant under the residential tenancy agreement, or because a co-tenant under the agreement has committed domestic abuse, the Tribunal may order the co-tenant to make a payment of compensation to the landlord for loss and inconvenience resulting, or likely to result, from the termination of the tenancy or from any additional order made under subsection (4).

        (11)         If the Tribunal finds, in relation to a residential tenancy that is terminated under this section, that 1 or more, but not all, of the co-tenants under the residential tenancy agreement are responsible for damage to the residential premises or ancillary property, the Tribunal may determine that the responsible co-tenant or co-tenants are liable (to the exclusion of other co-tenants) for making any payment of compensation ordered under section 110(1)(c).

        (12)         If 1 or more, but not all, of the co-tenants under a residential tenancy agreement are liable under subsection (10) or (11) for making a payment of compensation, the following provisions apply:

            (a)         the Tribunal may give a direction under section 110(1)(i) that the bond (if any) be paid to the landlord and any co-tenant who is not liable for making the payment in such proportions as the Tribunal thinks fit;

            (b)         a direction under paragraph (a) may not operate to limit the amount of bond payable to a landlord under section 110(1)(i).