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TASMANIA
__________
RESIDENTIAL TENANCY AMENDMENT
BILL 2003
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 6 amended (Non-application of Act)
6. Section 17 substituted
17. Money other than rent
7. Section 19 amended (Payment period)
8. Section 24 substituted
24. Distress for rent prohibited
9. Section 27 substituted
27. Return of security deposit, &c.
10. Section 28 amended (Disputes)
11. Section 29 amended (Determination of dispute)
12. Section 32 amended (General repairs and maintenance)
13. Section 33 amended (Urgent repairs)
14. Section 34 amended (Emergency repairs)
15. Section 36A inserted
36A. Order for repairs
[Bill 66]-I
16. Section 37 amended (Termination of agreement)
17. Section 39 amended (Effect of notice of termination)
18. Section 41 amended (Order of termination)
19. Section 42 amended (Notice to vacate by owner)
20. Section 43 amended (Effect of notice to vacate)
21. Section 45 amended (Order for vacant possession)
22. Sections 46 and 47 substituted
46. Early vacation
47. Abandonment
47A. Order declaring abandonment
47B. Loss following abandonment or early vacation
47C. Joint tenant ceases occupancy
23. Section 56 amended (Right of entry)
24. Section 57 amended (Locks and security devices)
25. Section 64 amended (Certain provisions void)
26. Sections 64A, 64B and 64C inserted
64A. Mitigation of loss
64B. Keeping of pets
64C. Strata title property by-laws
27. Section 65 amended (Regulations)
28. Land Titles Act 1980 amended
2
RESIDENTIAL TENANCY AMENDMENT
BILL 2003
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to amend the Residential Tenancy Act 1997
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
Short title
1. This Act may be cited as the Residential Tenancy
Amendment Act 2003.
Commencement
2. The provisions of this Act commence on a day or days to
be proclaimed.
Principal Act
3. In this Act, the Residential Tenancy Act 1997* is
referred to as the Principal Act.
*No. 82 of 1997
[Bill 66] 3
s. 4 No. Residential Tenancy Amendment 2003
Section 3 amended (Interpretation)
4. Section 3(1) of the Principal Act is amended as follows:
(a) by omitting the definition of "abandoned" and
substituting the following definition:
"abandoned" means abandoned as
referred to in section 47;
(b) by inserting the following definition after the
definition of "dispute":
"early vacation" means early vacation
as referred to in section 46;
(c) by inserting the following paragraph after
paragraph (b) in the definition of "essential
service":
(c) removal of grey water from
premises, including ensuring the
effective functioning of any on-site
water treatment facility, but not
including pipes, plumbing or other
water-disposal or sewage-disposal
facilities owned by a council;
(d) by inserting the following definition after the
definition of "essential service":
"grey water" means grey water or
sullage as defined in Australia
New Zealand Standard (AS/NZS
1547:2000 On-site domestic-
wastewater management);
(e) by omitting the definition of "owner" and
substituting the following definition:
"owner" means
4
2003 Residential Tenancy Amendment No. s. 5
(a) a person who holds legal
title to residential premises;
and
(b) that person's successors and
assigns; and
(c) an agent of that person; and
(d) a mortgagee who made an
application under section 85
of the Land Titles Act 1980;
and
(e) a mortgagee or
encumbrancee who gave or
left a notice under section 77
of the Land Titles Act 1980;
Section 6 amended (Non-application of Act)
5. Section 6 of the Principal Act is amended as follows:
(a) by omitting paragraphs (c) and (d) from
subsection (1);
(b) by omitting paragraphs (f), (g), (h) and (i) from
subsection (2) and substituting the following
paragraphs:
(f) any premises used to provide
residential care, within the
meaning of the Aged Care Act
1997 of the Commonwealth;
(g) any premises in respect of which a
memorandum of lease is
registered under the Land Titles
Act 1980.
5
s. 6 No. Residential Tenancy Amendment 2003
Section 17 substituted
6. Section 17 of the Principal Act is repealed and the
following section is substituted:
Money other than rent
17. (1) A person must not require or receive from a
tenant or prospective tenant any money or other
consideration for entering into, renewing, extending
or continuing a residential tenancy agreement other
than
(a) rent in advance for the relevant
payment period; and
(b) a security deposit; and
(c) a holding fee.
Penalty: Fine not exceeding 50 penalty units.
(2) Except as provided otherwise in the
regulations made under this Act, a person must not
require or receive from another person any money or
other consideration for or in relation to any of the
following:
(a) making an application to rent
residential premises;
(b) providing keys for the inspection of
residential premises;
(c) giving permission to examine or inspect
residential premises;
(d) supplying details of residential premises
available for rental;
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2003 Residential Tenancy Amendment No. s. 7
(e) placing the name of that other person on
any waiting list for vacant residential
premises;
(f) any other prescribed activity.
Penalty: Fine not exceeding 50 penalty units.
(3) An owner must not require or receive from
a tenant during the term of a residential tenancy
agreement any money or other consideration other
than
(a) rent in advance for the relevant
payment period; and
(b) a water consumption charge if the
residential premises are equipped with a
device that calculates the amount of
water used at those premises; and
(c) reasonable compensation for damage to
the residential premises arising from the
actions of the tenant or any loss incurred
by the owner arising from the actions of
the tenant.
(4) In this section, "water consumption
charge" means an amount levied on an owner by a
council for water consumed by an occupant of
residential premises that is calculated as a fee for
each unit of water consumed.
Section 19 amended (Payment period)
7. Section 19(2) of the Principal Act is amended by
omitting "4 weeks" and substituting "31 days".
7
s. 8 No. Residential Tenancy Amendment 2003
Section 24 substituted
8. Section 24 of the Principal Act is repealed and the
following section is substituted:
Distress for rent prohibited
24. (1) A person must not levy or make distress for
any amount due that is unpaid.
Penalty: Fine not exceeding 50 penalty units.
(2) In addition to any penalty imposed on a
person for an offence under subsection (1), the
person
(a) is liable to pay any costs incurred by any
other person as a result of that offence;
and
(b) must return any goods seized to the
owner of the goods or, if the goods
cannot be returned, pay the owner the
value of the goods.
Section 27 substituted
9. Section 27 of the Principal Act is repealed and the
following section is substituted:
Return of security deposit, &c.
27. (1) On termination of a residential tenancy
agreement, the owner is to
(a) return the security deposit to the tenant
within 3 working days of the
termination of the residential tenancy
agreement together with the prescribed
amount of interest (if any such amount
8
2003 Residential Tenancy Amendment No. s. 10
is prescribed) less any amount due to the
owner arising from the non-performance
of the residential tenancy agreement by
the tenant; or
(b) give to the tenant a notice stating the
reasons why the security deposit has
been retained and
(i) a statement of the loss incurred by
the owner; or
(ii) an estimate of the date on which it
is expected that the loss will be
determined.
(2) If the tenant is given a notice under
subsection (1), the owner is to provide the tenant
with a statement to the effect that, if the tenant is
dissatisfied with the matters contained in the notice,
the tenant may apply to the Commissioner for
resolution of the matter, and is to provide the tenant
with the address of the Commissioner.
(3) In this section, "working day" means a
weekday that is not a statutory holiday, within the
meaning of the Statutory Holidays Act 2000, in the
area in which the residential premises to which the
residential tenancy agreement relates are situated.
Section 28 amended (Disputes)
10. Section 28(2)(a) of the Principal Act is amended by
inserting "within 60 days after the termination of the
residential tenancy agreement" after "Commissioner".
9
s. 11 No. Residential Tenancy Amendment 2003
Section 29 amended (Determination of dispute)
11. Section 29 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "disbursing
the security deposit together with the
prescribed rate of interest as the
Commissioner considers appropriate in the
circumstances" and substituting "giving notice
to the parties of the Commissioner's decision
to disburse the security deposit together with
the prescribed amount of interest (if any such
amount is prescribed) in the manner specified
in the notice";
(b) by inserting the following subsections after
subsection (2):
(3) The Commissioner may refuse to
determine a dispute if the application is made
after the period referred to in section 28(2)(a).
(4) The Commissioner may refund
(a) to the owner the fee paid under
section 28(5) if of the opinion that
the application by the tenant is
vexatious; or
(b) to the tenant the fee paid under
section 28(2)(c) if of the opinion
that any action of the owner in
relation to the subject matter of
the dispute is vexatious.
(5) If after the expiration of 7 days from
the date on which the determination is made
no appeal has been lodged under section 30(1),
the Commissioner is to disburse the security
deposit together with the prescribed amount of
10
2003 Residential Tenancy Amendment No. s. 12
interest (if any such amount is prescribed) in
the manner specified in the notice referred to
in subsection (1).
Section 32 amended (General repairs and
maintenance)
12. Section 32 of the Principal Act is amended by omitting
subsection (4).
Section 33 amended (Urgent repairs)
13. Section 33 of the Principal Act is amended by
inserting after subsection (4) the following subsection:
(4A) If the owner arranges for the carrying out
of any urgent repair within 24 hours after being
notified, the owner is to ensure that the repair is
carried out as soon as practicable.
Section 34 amended (Emergency repairs)
14. Section 34 of the Principal Act is amended by
inserting after subsection (4) the following subsection:
(4A) If the owner arranges for the carrying out
of any emergency repair after being notified of the
need for repair, the owner is to ensure that the
repair is carried out as soon as practicable.
Section 36A inserted
15. After section 36 of the Principal Act, the following
section is inserted in Division 4:
11
s. 16 No. Residential Tenancy Amendment 2003
Order for repairs
36A. A tenant may apply to the Court for an order
that the owner carry out any reasonable repairs
under this Division that do not arise from any fault
of the tenant.
Section 37 amended (Termination of agreement)
16. Section 37(1)(e) of the Principal Act is amended by
inserting "or early vacation" after "abandonment".
Section 39 amended (Effect of notice of termination)
17. Section 39(2) of the Principal Act is amended by
inserting ", other than a provision relating to repairs,"
after "agreement".
Section 41 amended (Order of termination)
18. Section 41(1) of the Principal Act is amended by
omitting paragraphs (a) and (b) and substituting the
following paragraphs:
(a) that another party has intentionally or
recklessly caused or permitted, or is likely to
intentionally or recklessly cause or permit,
serious damage to
(i) the residential premises or contents of
those premises; or
(ii) any neighbouring premises;
(b) that another party has caused physical injury,
or is likely to cause physical injury, to that
12
2003 Residential Tenancy Amendment No. s. 19
party or a person occupying neighbouring
premises.
Section 42 amended (Notice to vacate by owner)
19. Section 42(1) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (c) "purpose." and
substituting "purpose;";
(b) by inserting the following paragraphs after
paragraph (c):
(d) that a residential tenancy
agreement is due to expire at least
28 days after service of the notice;
(e) that an order has been made
under section 86 of the Land Titles
Act 1980 for foreclosure of the
premises;
(f) that the premises are to be sold
pursuant to section 78 of the Land
Titles Act 1980;
(g) that the tenant has caused
nuisance at the premises that is
substantial.
Section 43 amended (Effect of notice to vacate)
20. Section 43 of the Principal Act is amended as follows:
(a) by omitting from subsection (1)(a)
"section 42(1)(a) or (b)" and substituting
"section 42(1)(a), (b) or (g)";
13
s. 21 No. Residential Tenancy Amendment 2003
(b) by omitting from subsection (1)(b)
"section 42(1)(c)" and substituting
"section 42(1)(c), (d), (e) or (f)";
(c) by inserting the following subsection after
subsection (3):
(4) A notice to vacate expires after the
period of 28 days from the day on which it took
effect.
Section 45 amended (Order for vacant possession)
21. Section 45(5) of the Principal Act is amended by
omitting paragraph (c).
Sections 46 and 47 substituted
22. Sections 46 and 47 of the Principal Act are repealed
and the following sections are substituted:
Early vacation
46. Early vacation of residential premises occurs
if
(a) the tenant has ceased to occupy those
premises; and
(b) a notice of termination has not been
served in respect of those premises; and
(c) a notice to vacate has not been served in
respect of those premises; and
(d) the tenant notified the owner of the
intention to vacate the premises.
14
2003 Residential Tenancy Amendment No. s. 22
Abandonment
47. Residential premises are abandoned if
(a) the tenant has ceased to occupy those
premises; and
(b) a notice of termination has not been
served in respect of those premises; and
(c) a notice to vacate has not been served in
respect of those premises.
Order declaring abandonment
47A. (1) An owner of residential premises may
apply to the Court for an order declaring that the
premises are abandoned.
(2) If satisfied that the residential premises
are abandoned, the Court may make an order to that
effect.
(3) Vacant possession of the residential
premises is delivered to the owner as at the date of
the order.
Loss following abandonment or early vacation
47B. Following abandonment or early vacation of
residential premises, a tenant is liable to the owner
for
(a) rent payable under the residential
tenancy agreement from the date of the
abandonment or early vacation of the
premises until
(i) the date on which another
residential tenancy agreement is
entered into; or
15
s. 23 No. Residential Tenancy Amendment 2003
(ii) the date at which the residential
tenancy agreement for those
premises could have been
terminated under this Act, if
another residential tenancy
agreement is not entered into
before that date; and
(b) any other loss arising from the
abandonment or early vacation.
Joint tenant ceases occupancy
47C. If a joint tenant ceases to occupy residential
premises and any other tenant remains in occupancy
of those premises, the joint tenant is not liable for
any loss incurred by any action of any other tenant
remaining in occupancy of those premises.
Section 56 amended (Right of entry)
23. Section 56 of the Principal Act is amended as follows:
(a) by inserting in subsection (1) "or permit any
other person to enter the premises" after "the
premises";
(b) by omitting from subsection (3) "without the
tenant's permission between 8 a.m. and
6 p.m.";
(c) by omitting paragraphs (a) and (b) from
subsection (3);
(d) by inserting the following paragraph after
paragraph (e) in subsection (3):
(ea) except in the case of boarding
premises, to carry out an
16
2003 Residential Tenancy Amendment No. s. 23
inspection within one month of the
commencement of the residential
tenancy agreement;
(e) by omitting subsection (4) and substituting the
following subsections:
(4) An owner of residential premises
may enter the premises without the approval
of the tenant to show the premises to one
prospective tenant only and any persons
accompanying the prospective tenant
(a) if a notice to terminate or notice to
vacate has been given
(i) on not more than one
occasion on any day; and
(ii) on not more than 5 days in
any week; and
(iii) on the giving of not less than
48 hours' notice in writing to
the tenant; and
(iv) between the hours of 8 a.m.
and 6 p.m.; or
(b) if a notice to terminate or notice to
vacate has not been given, within
28 days of the expiry of the
residential tenancy agreement
(i) on not more than one
occasion on any day; and
(ii) on not more than 5 days in
any week; and
17
s. 23 No. Residential Tenancy Amendment 2003
(iii) on the giving of not less than
48 hours' notice in writing to
the tenant; and
(iv) between the hours of 8 a.m.
and 6 p.m.
(4A) An owner who wishes to let
residential premises may, with the prior
written approval of the tenant of the premises,
by notice to the public, invite prospective
tenants to inspect the premises in the
presence of the owner within the period
specified in the approval.
(4B) An owner of residential premises
may enter the premises without the approval
of the tenant to show the premises to one
prospective purchaser only and any persons
accompanying the prospective purchaser
(a) on not more than one occasion on
any day; and
(b) on not more than 5 days in any
week; and
(c) on the giving of not less than 48
hours' notice in writing to the
tenant; and
(d) between the hours of 8 a.m. and
6 p.m.
(4C) An owner who wishes to sell
residential premises may, with the prior
written approval of the tenant of the premises,
by notice to the public, invite prospective
purchasers to inspect the premises in the
18
2003 Residential Tenancy Amendment No. s. 24
presence of the owner within the period
specified in the approval.
(f) by omitting subsection (5) and substituting the
following subsection:
(5) After giving notice under
subsection (3), the owner may enter the
premises
(a) during any period agreed to by the
owner and the tenant of the
premises; or
(b) if there is no agreement, between
8 a.m. and 6 p.m. as specified by
the owner.
Section 57 amended (Locks and security devices)
24. Section 57 of the Principal Act is amended by
inserting after subsection (1) the following subsection:
(1B) A tenant of residential premises may
apply to the Court for an order requiring the owner
of the premises to comply with subsection (1).
Section 64 amended (Certain provisions void)
25. Section 64 of the Principal Act is amended by
inserting after subsection (2) the following subsection:
(3) A provision of a residential tenancy
agreement that imposes on a tenant a penalty or
fine or a charge that exceeds the cost incurred by the
owner of the residential premises has no effect.
19
s. 26 No. Residential Tenancy Amendment 2003
Sections 64A, 64B and 64C inserted
26. After section 64 of the Principal Act, the following
sections are inserted in Part 5:
Mitigation of loss
64A. The owner of residential premises
(a) is to take all reasonable measures to
mitigate any loss or damage to the
premises; and
(b) is to take all reasonable measures to
enter into a residential tenancy
agreement in respect of the premises
with another tenant as soon as possible
after the early vacation of those
premises or after those premises have
been abandoned; and
(c) is not entitled to be paid for any loss or
damage that occurs because of the
failure to take those measures.
Keeping of pets
64B. (1) A tenant is not to keep a pet on residential
premises
(a) without permission of the owner of the
premises; or
(b) unless permitted to do so under the
residential tenancy agreement.
(2) This section does not apply to a guide dog
as defined by the Guide Dogs and Hearing Dogs Act
1967.
20
2003 Residential Tenancy Amendment No. s. 27
Strata title property by-laws
64C. The owner of residential premises that are a
strata title lot is to give to a prospective tenant
before entering into a residential tenancy agreement
a copy of the by-laws made by the body corporate of
the strata title property.
Section 65 amended (Regulations)
27. Section 65 of the Principal Act is amended by
inserting after subsection (1) the following subsection:
(1A) The regulations may provide that a
prescribed provision of the Act does not apply to the
following:
(a) any prescribed residential tenancy
agreement or any prescribed provision of
a prescribed residential tenancy
agreement;
(b) any residential tenancy agreement of a
prescribed class or any provision of a
residential tenancy agreement of a
prescribed class;
(c) any prescribed premises or part of
prescribed premises;
(d) any premises or part of premises of a
prescribed class.
Land Titles Act 1980 amended
28. The Land Titles Act 1980 is amended as follows:
21
s. 28 No. Residential Tenancy Amendment 2003
(a) by omitting from section 40(3)(d)(iii)
"registration;" and substituting "registration;
and";
(b) by inserting the following subparagraph after
subparagraph (iii) in section 40(3)(d):
(iv) a residential tenancy agreement to
which the Residential Tenancy Act
1997 applies;
(c) by inserting in section 146(6) ", subject to
subsection (6A)," after "Court";
(d) by inserting the following subsection after
subsection (6) in section 146:
(6A) A writ is not to be issued under
subsection (6) unless at least 28 days' written
notice is given to the tenant of the affected
mortgagor.
22 Government Printer, Tasmania