RESIDENTIAL TENANCIES AMENDMENT BILL 2011
This is a Bill, not an Act. For current law, see the Acts databases.
RESIDENTIAL TENANCIES AMENDMENT BILL 2011
Western Australia Residential Tenancies Amendment Bill 2011 CONTENTS Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 3. Act amended 2 Part 2 -- General amendments 4. Long title amended 3 5. Section 3 amended 3 6. Section 5 amended 5 7. Section 7 amended 6 8. Section 9 amended 7 9. Section 10 amended 8 10. Section 11A amended 9 11. Section 13 amended 9 12. Section 13A amended 9 13. Section 15 amended 9 14. Section 16 amended 10 15. Section 17A inserted 11 17A. Disputes between tenants 11 16. Section 17 amended 11 17. Section 19 amended 12 18. Section 20 amended 13 19. Section 22 amended 13 20. Section 23 amended 15 21. Part IV heading replaced 16 Part IV -- Residential tenancy agreements 22. Part IV Division 1A inserted 16 199--3 page i Residential Tenancies Amendment Bill 2011 Contents Division 1A -- Form of residential tenancy agreement and associated documents 27A. Written residential tenancy agreement to be in prescribed form 16 27B. Information to be given to tenant by lessor 16 27C. Property condition report at start and end of tenancy 17 23. Section 27 amended 18 24. Section 28 amended 19 25. Section 29 amended 19 26. Section 29A deleted 22 27. Section 30 amended 22 28. Sections 31A and 31B inserted 23 31A. Variation of rent where calculated by reference to tenant's income 23 31B. Increase in rent after renegotiating lease 23 29. Section 31 amended 24 30. Section 32 amended 24 31. Section 33 amended 25 32. Section 34A inserted 26 34A. Manner of payment of rent 26 33. Section 34 amended 26 34. Section 35 amended 27 35. Part IV Division 2 heading amended 27 36. Section 37 deleted 27 37. Section 38 amended 27 38. Section 39 amended 28 39. Section 40 replaced 28 40. Vacant possession 28 40. Section 41 amended 29 41. Sections 42 to 46 replaced 29 42. Lessor's responsibility for cleanliness and repairs 29 43. Urgent repairs 30 44. Quiet enjoyment 32 45. Securing premises 32 46. Lessor's right of entry 33 42. Section 47 amended 35 43. Section 48 amended 36 44. Section 49A inserted 37 49A. Lessor's and tenant's responsibilities in respect of public utility services 37 45. Section 49 amended 38 46. Section 50 amended 39 page ii Residential Tenancies Amendment Bill 2011 Contents 47. Part IV Division 3 heading inserted 39 Division 3 -- General 48. Section 51 replaced 39 51. Tenant to be notified of lessor's name and address 39 49. Section 52 amended 40 50. Section 53 replaced 41 53. Tenant's name, place of employment and forwarding address 41 51. Section 54 amended 41 52. Section 55 replaced 42 55. Cost of written agreement to be borne by lessor 42 53. Section 56 amended 43 54. Section 57 amended 43 55. Section 58 amended 44 56. Sections 59A to 59F inserted 44 59A. Minors 44 59B. Death of one of 2 or more tenants 44 59C. Recognition of certain persons as tenants 45 59D. Tenant compensation bonds 46 59E. Interference with quiet enjoyment 47 59F. Offences relating to security of residential premises 47 57. Part V Division 1 heading inserted 48 Division 1 -- How residential tenancy agreements are terminated 58. Section 59 deleted 48 59. Section 60 amended 48 60. Part V Division 2 heading inserted 49 Division 2 -- Notices of termination 61. Section 61 replaced 49 61. Form of notice of termination by lessor 49 62. Section 62 amended 50 63. Sections 63 and 64 replaced 50 63. Notice of termination by lessor who has entered into contract of sale 50 64. Notice of termination by lessor without any ground 51 64. Section 65 amended 52 65. Section 66 amended 52 66. Section 68 amended 52 67. Section 69 amended 53 68. Section 70A inserted 53 page iii Residential Tenancies Amendment Bill 2011 Contents 70A. Notice of termination by lessor or tenant at end of fixed term tenancy 53 69. Part V Division 4 heading inserted 55 Division 4 -- Orders for termination of residential tenancy agreement 70. Section 71 amended 55 71. Section 72 amended 56 72. Section 73 amended 57 73. Section 74 amended 57 74. Sections 76A and 76B, Part V Division 5 heading and section 76C inserted 57 76A. Termination of agreement by lessor if premises abandoned 57 76B. Dispute about s. 76A notice 58 Division 5 -- General 76C. Fixed term tenancies continued as periodic tenancies 59 75. Section 77 replaced 59 77. Abandonment of premises 59 78A. Order about abandonment 60 78B. Review of abandonment order 61 76. Section 79 amended 61 77. Section 80A inserted 64 80A. Abandoned documents 64 78. Section 80 amended 66 79. Section 81 replaced 66 81A. Mortgagee repossessions of rented properties 66 81B. Notice of proposed recovery of premises by person with superior title 68 81. Order for tenancy against person with superior title 69 80. Section 82 amended 70 81. Section 85 amended 71 82. Sections 86 and 87A inserted 72 86. Court may refer matter to Commissioner for investigation 72 87A. Defence where lessor and property manager are both charged with the same offence 72 83. Section 88A inserted 73 88A. Infringement notices 73 84. Section 88 amended 75 85. Section 90 amended 76 86. Part VII inserted 76 page iv Residential Tenancies Amendment Bill 2011 Contents Part VII -- Savings and transitional provisions relating to the Residential Tenancies Amendment Act 2011 Division 1 -- Contracting out 91. Savings in relation to contracting out of standard terms 76 Division 2 -- Security bonds held in AFI 92. Terms used 77 93. All security bonds to be transferred to the bond administrator after renewal of agreement or within 18 months 77 94. Requirements for AFI holding security bonds 78 95. Power of Commissioner to obtain information relating to AFI security bond accounts 79 96. Disposal of security bond held in AFIs 81 Division 3 -- Residential tenancy databases 97. Application of Part VIA to listings existing before commencement 82 87. Schedule 1 amended 83 Schedule 1 -- Provisions relating to holding and disposal of bonds and income from bonds Division 1 -- General Division 2 -- Security bonds 5A. Security bond moneys to be paid to bond administrator 87 Division 3 -- Tenant compensation bonds 9. Application of Division 90 10. Disposal of tenant compensation bond to tenant by bond administrator 90 11. Disposal of tenant compensation bond to lessor by bond administrator 91 88. Various references to "agreement" amended 92 89. Various references to "owner" amended 93 Part 3 -- Amendments relating to terminating social housing tenancy agreements 90. Section 3 amended 97 91. Section 60 amended 97 92. Part V Division 3 inserted 97 page v Residential Tenancies Amendment Bill 2011 Contents Division 3 -- Special provisions about terminating social housing tenancy agreements Subdivision 1 -- Preliminary 71A. Terms used 97 71B. Application of Division 98 Subdivision 2 -- Notice of termination where tenant not eligible for social housing premises 71C. Notice of termination by lessor on ground that tenant not eligible for social housing premises 98 71D. Assessment of tenants eligibility for social housing premises 99 71E. Criteria for assessing eligibility of tenants for social housing premises under section 71D 99 71F. Review of decision to give notice on ground that tenant not eligible for social housing premises 100 71G. Time periods to be observed where notice of termination given under this Subdivision 101 Subdivision 3 -- Notice of termination where tenant offered alternative social housing premises 71H. Notice of termination by lessor where tenant offered alternative social housing premises 102 71I. Review of decision to give notice on ground that tenant offered alternative social housing premises 102 71J. Time periods to be observed where notice of termination given under this Subdivision 104 93. Section 71 amended 105 94. Section 73A inserted 107 73A. Notice of termination not required in certain cases 107 95. Section 75A inserted 108 75A. Termination of social housing tenancy agreement due to objectionable behaviour 108 Part 4 -- Amendments relating to residential tenancy databases 96. Part VIA inserted 110 Part VIA -- Residential tenancy databases Division 1 -- Preliminary 82A. Terms used 110 82B. Application of Part 112 page vi Residential Tenancies Amendment Bill 2011 Contents Division 2 -- Tenancy database information 82C. Notice of usual use of database 112 82D. Notice of listing if database used 114 82E. Listing can be made only for particular breaches by particular persons 115 82F. Further restriction on listing 115 82G. Ensuring quality of listing -- lessor's or agent's obligation 116 82H. Ensuring quality of listing -- database operator's obligation 117 82I. Providing copy of personal information listed 118 82J. Disputes about listings 118 82K. Keeping personal information listed 119 Part 5 -- Amendments to other Acts Division 1 -- Disposal of Uncollected Goods Act 1970 amended 97. Act amended 122 98. Schedule amended 122 Division 2 -- Housing Act 1980 amended 99. Act amended 122 100. Section 62G amended 122 Division 3 -- Magistrates Court (Civil Proceedings) Act 2004 amended 101. Act amended 123 102. Section 7 amended 123 Division 4 -- Rates and Charges (Rebates and Deferments) Act 1992 amended 103. Act amended 123 104. Section 29B amended 123 Division 5 -- Residential Parks (Long-stay Tenants) Act 2006 amended 105. Act amended 124 106. Section 22 amended 124 107. Glossary amended 124 108. Various references to "Fund" changed to "Account" 125 page vii Western Australia LEGISLATIVE ASSEMBLY (As amended in Committee) Residential Tenancies Amendment Bill 2011 A Bill for An Act to amend the Residential Tenancies Act 1987 and to consequentially amend various other Acts. The Parliament of Western Australia enacts as follows: page 1 Residential Tenancies Amendment Bill 2011 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Residential Tenancies Amendment Act 2011. 4 2. Commencement 5 This Act comes into operation as follows -- 6 (a) sections 1 and 2 -- on the day on which this Act 7 receives the Royal Assent; 8 (b) the rest of the Act -- on a day fixed by proclamation, 9 and different days may be fixed for different provisions. 10 3. Act amended 11 This Act amends the Residential Tenancies Act 1987. page 2 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 4 1 Part 2 -- General amendments 2 4. Long title amended 3 In the long title delete "owners" and insert: 4 5 lessors 6 7 5. Section 3 amended 8 (1) In section 3 delete the definitions of: 9 owner 10 tenant 11 (2) In section 3 insert in alphabetical order: 12 13 bond means a security bond or a tenant compensation 14 bond; 15 bond administrator means the Commissioner as 16 defined in the Fair Trading Act 2010 section 6; 17 expiry day, in relation to a residential tenancy 18 agreement that creates a tenancy for a fixed term, 19 means the day on which the residential tenancy 20 agreement would (but for the operation of this Act) 21 upon its terms have terminated by effluxion of time or 22 the happening of an event; 23 lessor -- 24 (a) means a person who grants the right to occupy 25 residential premises under a residential tenancy 26 agreement; and 27 (b) includes -- 28 (i) a personal representative, successor or 29 assignee of a lessor; and page 3 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 5 1 (ii) where the context requires, a 2 prospective, or former, lessor; 3 property manager means a person who is -- 4 (a) licensed under the Real Estate and Business 5 Agents Act 1978; and 6 (b) in relation to a residential tenancy agreement, 7 the agent of the lessor of the premises to which 8 the agreement relates; 9 reasonable grounds, for suspecting that a tenant has 10 abandoned residential premises, means that the tenant 11 has failed to pay rent under the residential tenancy 12 agreement and that at least one of the following has 13 occurred -- 14 (a) the presence at the premises of uncollected 15 mail, newspapers or other material; 16 (b) reports from neighbours of the tenant or from 17 other persons indicating the tenant has 18 abandoned the premises; 19 (c) the absence of household goods at the premises; 20 (d) the disconnection of services (including gas, 21 electricity and telephone) to the premises; 22 Rental Accommodation Account means the Rental 23 Accommodation Account established under Schedule 1 24 clause 3; 25 tenant -- 26 (a) means a person who is granted a right of 27 occupancy of residential premises under a 28 residential tenancy agreement; and 29 (b) includes, where the context requires, a 30 prospective, or former, tenant; 31 tenant compensation bond means a bond referred to in 32 section 59D(2). 33 page 4 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 6 1 (3) In section 3 in the definition of residential tenancy agreement 2 before "whether express" insert: 3 4 whether or not in writing and 5 6 (4) In section 3 in the definition of security bond delete "his" and 7 insert: 8 9 the tenant's 10 11 6. Section 5 amended 12 (1) In section 5(2): 13 (a) delete "agreement --" and insert: 14 15 agreement in any of the following circumstances -- 16 17 (b) in paragraph (a) delete "premises;" and insert: 18 19 premises, unless the period of the tenancy is 20 one month or longer; 21 22 (c) in paragraph (f) delete "as owner," and insert: 23 24 as lessor, 25 26 (d) in paragraph (f) delete "Crown; or" and insert: 27 28 Crown; 29 page 5 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 7 1 (2) In section 5(3): 2 (a) delete "to --" and insert: 3 4 to any of the following -- 5 6 (b) delete paragraph (b) and insert: 7 8 (b) accommodation for students provided -- 9 (i) by an educational institution; or 10 (ii) by an entity, other than the educational 11 institution, if the accommodation is 12 provided other than for the purpose of 13 making a profit, 14 unless the accommodation is prescribed, or is 15 of a class prescribed, for the purposes of this 16 paragraph; 17 (ca) any part of a hospital or nursing home; 18 19 (c) delete paragraph (d) and insert: 20 21 (d) any premises used to provide residential care to 22 approved care recipients by an approved 23 provider as defined in the Aged Care Act 1997 24 (Commonwealth); 25 26 7. Section 7 amended 27 In section 7(3): 28 (a) in paragraph (b) delete "his" and insert: 29 30 the lessor's 31 page 6 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 8 1 (b) delete "apply, notwithstanding section 29(4) -- " and 2 insert: 3 4 apply -- 5 6 (c) in paragraph (c) delete "in accordance with either 7 paragraph (a) or (b) of clause 2(1) of Schedule 1;" and 8 insert: 9 10 to the bond administrator; 11 12 (d) in paragraph (d) delete "agreement; and" and insert: 13 14 agreement; 15 16 (e) delete paragraph (e) and insert: 17 18 (e) any amount paid to the bond administrator must 19 be credited to the Rental Accommodation 20 Account and is to be taken, for the purposes of 21 this Act, to have been paid under 22 section 29(4)(b). 23 24 Note: The heading to amended section 7 is to read: 25 Transitional provisions relating to the commencement of this Act 26 8. Section 9 amended 27 (1) Before section 9(1) insert: 28 29 (1A) In this section -- 30 party, in relation to a residential tenancy agreement, 31 means a lessor or tenant under that agreement. 32 page 7 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 9 1 (2) In section 9(2) delete "he" and insert: 2 3 the Commissioner 4 5 (3) In section 9(3)(b) delete "him" and insert: 6 7 the Commissioner 8 9 (4) In section 9(4)(e) delete "his" and insert: 10 11 the party's 12 13 (5) In section 9(5) delete "he" and insert: 14 15 the Commissioner 16 17 (6) In section 9(6) delete "he" and insert: 18 19 the Commissioner 20 21 (7) Delete section 9(10). 22 9. Section 10 amended 23 In section 10 delete "his" and insert: 24 25 the Commissioner's 26 page 8 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 10 1 10. Section 11A amended 2 In section 11A(1) delete the Penalty and insert: 3 4 Penalty: a fine of $20 000. 5 6 11. Section 13 amended 7 In section 13(5) delete "he" and insert: 8 9 the plaintiff 10 11 12. Section 13A amended 12 (1) In section 13A(3) delete "situated but, with the consent of the 13 parties, may be made to the court at any other place." and insert: 14 15 situated. 16 17 (2) After section 13A(3) insert: 18 19 (4) Subsection (3) does not prevent the Magistrates Court 20 from making an order under the Magistrates Court 21 (Civil Proceedings) Act 2004 section 22 that 22 proceedings under this Act are to be conducted at 23 another place in the State. 24 25 13. Section 15 amended 26 (1) In section 15(1) delete "he" and insert: 27 28 the lessor or tenant 29 page 9 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 14 1 (2) In section 15(4): 2 (a) delete "an agreement," and insert: 3 4 a residential tenancy agreement, 5 6 (b) after "by the" insert: 7 8 lessor or 9 10 (3) After section 15(4) insert: 11 12 (5) The court may order that a person be joined as a party 13 to the proceedings if the court considers that -- 14 (a) the person ought to be bound by, or have the 15 benefit of, a decision of the court in the 16 proceedings; or 17 (b) the person's interests are affected by the 18 proceedings; or 19 (c) for any other reason it is desirable that the 20 person be joined as a party. 21 (6) The court may make an order under subsection (5) on 22 the application of any person or on its own initiative. 23 24 14. Section 16 amended 25 In section 16(1) delete the Penalty and insert: 26 27 Penalty: a fine of $10 000. 28 page 10 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 15 1 15. Section 17A inserted 2 After section 16 insert: 3 4 17A. Disputes between tenants 5 (1) Where 2 or more tenants under a residential tenancy 6 agreement are jointly liable under the agreement to pay 7 an amount to the lessor and one of the tenants (the first 8 tenant) pays another tenant's portion of that amount, 9 the first tenant may apply to a competent court for an 10 order that the other tenant pay to the first tenant the 11 other tenant's portion. 12 (2) The court hearing the application may -- 13 (a) make the order referred to in subsection (1); 14 and 15 (b) order the payment of compensation to the first 16 tenant by the other tenant for loss or injury, 17 other than personal injury, caused by a failure 18 by the other tenant to pay that tenant's portion 19 of the amount referred to in subsection (1); and 20 (c) make such ancillary or incidental order as the 21 court considers appropriate. 22 23 16. Section 17 amended 24 (1) In section 17(1): 25 (a) delete "the court that heard and determined the 26 proceedings" and insert: 27 28 a competent court 29 page 11 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 17 1 (b) delete "his" and insert: 2 3 the person's 4 5 (2) In section 17(2) delete "within 14 days of " and insert: 6 7 within 14 days after 8 9 17. Section 19 amended 10 (1) In section 19(1)(b): 11 (a) in subparagraph (ii) delete "he" and insert: 12 13 the person 14 15 (b) in subparagraph (ii) delete "him" and insert: 16 17 the person 18 19 (c) in subparagraph (iii) delete "he" and insert: 20 21 the person 22 23 (d) in subparagraph (iii) delete "him" and insert: 24 25 the person 26 27 (2) In section 19(2): 28 (a) delete "him" and insert: 29 30 the person 31 page 12 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 18 1 (b) delete the Penalty and insert: 2 3 Penalty: a fine of $10 000. 4 5 18. Section 20 amended 6 In section 20(f) delete "application or other step in respect of 7 proceedings must be made or" and insert: 8 9 action must be 10 11 19. Section 22 amended 12 (1) Before section 22(1) insert: 13 14 (1A) In this section -- 15 proceedings means proceedings under this Act other 16 than proceedings for an offence against this Act. 17 18 (2) In section 22(1) delete "his" (each occurrence) and insert: 19 20 the party's 21 22 (3) Delete section 22(2) and insert: 23 24 (2) A party to any proceedings may be represented or 25 assisted by an agent in the presentation of the party's 26 case if the agent is authorised by the party to do so and 27 is -- 28 (a) the property manager of the premises the 29 subject of the proceedings; or page 13 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 19 1 (b) employed or engaged by a non-profit 2 association or similar body to act as an 3 advocate for tenants or lessors in proceedings. 4 (3A) The authorisation must -- 5 (a) be made in writing in a form approved by the 6 Minister; and 7 (b) be lodged with the court together with the 8 application, or response to the application, to 9 which the proceedings relate, as the case 10 requires. 11 12 (4) In section 22(3): 13 (a) delete "if --" and insert: 14 15 if any of the following applies -- 16 17 (b) in paragraph (d) delete "appear personally or conduct 18 the proceedings properly himself; or" and insert: 19 20 conduct the proceedings without representation 21 by a legal practitioner; 22 23 (5) In section 22(4): 24 (a) in paragraph (a) delete "he" and insert: 25 26 the officer or employee 27 28 (b) in paragraph (b) delete "his" and insert: 29 30 the person's 31 page 14 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 20 1 (6) In section 22(5): 2 (a) in paragraphs (a) and (b) delete "he" and insert: 3 4 the person 5 6 (b) delete paragraph (c) and insert: 7 8 (c) where the party is a lessor, the person is a 9 property manager of the premises the subject of 10 the proceedings. 11 12 (c) delete the Penalty and insert: 13 14 Penalty: a fine of $5 000. 15 16 (d) after paragraph (a) insert: 17 18 or 19 20 20. Section 23 amended 21 (1) In section 23(1)(a) delete "his" and insert: 22 23 the party's 24 25 (2) In section 23(2) delete "he" and insert: 26 27 the judicial officer 28 page 15 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 21 1 (3) After section 23(3) insert: 2 3 (4) The order is valid despite any inconsistency with 4 Part IV or V. 5 6 21. Part IV heading replaced 7 Delete the heading to Part IV and insert: 8 9 Part IV -- Residential tenancy agreements 10 11 22. Part IV Division 1A inserted 12 At the beginning of Part IV insert: 13 14 Division 1A -- Form of residential tenancy agreement 15 and associated documents 16 27A. Written residential tenancy agreement to be in 17 prescribed form 18 A lessor must not enter into a written residential 19 tenancy agreement except in the prescribed form. 20 Penalty: a fine of $5 000. 21 27B. Information to be given to tenant by lessor 22 A lessor must give a copy of the information (if any) 23 prescribed for the purposes of this section to each 24 tenant -- 25 (a) in the case of a written residential tenancy 26 agreement, at the time of entering into the 27 agreement; or page 16 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 22 1 (b) in any other case, within 14 days after the 2 tenant has taken possession of the residential 3 premises. 4 Penalty: a fine of $5 000. 5 27C. Property condition report at start and end of 6 tenancy 7 (1) A lessor must, within 7 days after a tenant has entered 8 into occupation of residential premises under a 9 residential tenancy agreement -- 10 (a) prepare a report describing the condition of the 11 premises; and 12 (b) provide 2 copies of the report to the tenant. 13 Penalty: a fine of $5 000. 14 (2) A tenant given copies of a report under 15 subsection (1)(b) who disagrees with any information 16 in the report must, within 7 days of receiving the 17 copies -- 18 (a) mark a copy in a manner that shows the 19 information with which the tenant disagrees; 20 and 21 (b) give the copy back to the lessor. 22 (3) If the tenant does not give a copy of the report back to 23 the lessor under subsection (2), the tenant is to be taken 24 to accept the report as a true and accurate description 25 of the condition of the residential premises. 26 (4) A lessor must, as soon as practicable, and in any event 27 within 14 days, after the termination of a tenancy -- 28 (a) conduct an inspection of the residential 29 premises; and 30 (b) prepare a final report describing the condition 31 of the premises; and page 17 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 23 1 (c) provide a copy of the report to the tenant. 2 Penalty: a fine of $5 000. 3 (5) The tenant is to be given a reasonable opportunity to be 4 present at the inspection conducted under 5 subsection (4)(a). 6 (6) The regulations may prescribe information that must be 7 included in a property condition report. 8 9 23. Section 27 amended 10 (1) In section 27(1): 11 (a) delete "or prospective tenant"; 12 (b) delete "consideration for or in relation to entering into, 13 renewing, extending or continuing" and insert: 14 15 amount for or in relation to 16 17 (c) delete the Penalty and insert: 18 19 Penalty: a fine of $5 000. 20 21 (2) Delete section 27(2)(a) and insert: 22 23 (a) any amount, not exceeding a prescribed 24 amount, required or received as consideration 25 for an option to enter into a residential tenancy 26 agreement if -- 27 (i) upon the option being exercised, the 28 amount is refunded in cash or applied 29 towards the rent payable under the 30 agreement; or page 18 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 24 1 (ii) upon the option being refused, and 2 within 7 days of the decision to refuse 3 the option, the amount is refunded in 4 cash, by electronic means or in any 5 other prescribed way; 6 and 7 8 24. Section 28 amended 9 (1) In section 28(1) delete the Penalty and insert: 10 11 Penalty: a fine of $5 000. 12 13 (2) Delete section 28(2) and insert: 14 15 (2) A person must not require any payment of rent (other 16 than the first payment) under a residential tenancy 17 agreement -- 18 (a) until the period of the tenancy in respect of 19 which any previous payment has been made has 20 elapsed; and 21 (b) unless the amount does not exceed 2 weeks' 22 rent. 23 Penalty: a fine of $5 000. 24 25 25. Section 29 amended 26 (1) Before section 29(1) insert: 27 28 (1A) In this section, unless the contrary intention appears -- 29 pet does not include a guide dog as defined in the Dog 30 Act 1976 section 3(1); 31 security bond includes an instalment of a security 32 bond. page 19 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 25 1 2 (2) In section 29(1): 3 (a) delete paragraph (b)(ii) and insert: 4 5 (ii) if the tenant is permitted to keep on the 6 premises any pet capable of carrying 7 parasites that can affect humans -- a 8 prescribed amount to meet the cost of 9 any fumigation of the premises that may 10 be required on the termination of the 11 tenancy. 12 13 (b) delete the Penalty and insert: 14 15 Penalty: a fine of $5 000. 16 17 (3) Delete section 29(2) and insert: 18 19 (2A) Subsection (1)(a) does not prevent a person from 20 receiving a security bond in instalments. 21 (2) Subsection (1)(b) does not apply in relation to a 22 residential tenancy agreement where the weekly rate of 23 rent payable under the agreement exceeds a prescribed 24 amount. 25 26 (4) In section 29(4): 27 (a) delete paragraphs (b) and (c) and insert: 28 29 (b) shall pay the amount of the bond to the bond 30 administrator in accordance with Schedule 1 31 clause 5A; and 32 (c) shall, at the time of making the payment 33 referred to in paragraph (b), lodge with the page 20 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 25 1 bond administrator a record in a form approved 2 by the Minister relating to the payment. 3 4 (b) delete paragraph (d); 5 (c) delete the Penalty and insert: 6 7 Penalty: a fine of $20 000. 8 9 (d) after paragraph (a) insert: 10 11 and 12 13 (5) Delete section 29(5). 14 (6) In section 29(6): 15 (a) after "false" insert: 16 17 or misleading 18 19 (b) delete the Penalty and insert: 20 21 Penalty: a fine of $5 000. 22 23 (7) After section 29(6) insert: 24 25 (7) The bond administrator must pay the amount of the 26 security bond in accordance with Schedule 1 clause 5. 27 (8) A lessor and property manager must ensure that an 28 application form referred to in Schedule 1 29 clause 5(1)(a) is not signed by a tenant unless -- 30 (a) the residential tenancy agreement to which the 31 security bond relates has terminated; and page 21 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 26 1 (b) any amount of the security bond to be paid to 2 the lessor or tenant is stipulated on the form. 3 Penalty: a fine of $5 000. 4 5 26. Section 29A deleted 6 Delete section 29A. 7 27. Section 30 amended 8 (1) In section 30(1): 9 (a) delete "section," and insert: 10 11 section and except where rent payable under a 12 residential tenancy agreement is calculated by 13 reference to the tenant's income, 14 15 (b) delete "notice in writing to the tenant" and insert: 16 17 written notice to the tenant, in a form approved by the 18 Minister, 19 20 (2) In section 30(2)(a) delete "the agreement provides that the rent 21 may increase or be increased; and" and insert: 22 23 the amount of the increase, or the method of 24 calculating the amount of the increase, is set out 25 in the agreement; and 26 27 Note: The heading to amended section 30 is to read: 28 Variation of rent (except where calculated by reference to tenant's 29 income) page 22 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 28 1 28. Sections 31A and 31B inserted 2 After section 30 insert: 3 4 31A. Variation of rent where calculated by reference to 5 tenant's income 6 (1) Where rent payable under a residential tenancy 7 agreement is calculated by reference to the tenant's 8 income, the method by which the rent is calculated by 9 reference to that income may be changed by the lessor 10 in accordance with this section but otherwise the rent 11 must not increase or be increased. 12 (2) The method may be changed by notice in writing to the 13 tenant, in a form approved by the Minister, 14 specifying -- 15 (a) the change to the method; and 16 (b) the day as from which the change will take 17 effect, being a day -- 18 (i) not less than 60 days after the day on 19 which the notice is given; and 20 (ii) not less than 6 months after the day on 21 which the tenancy commenced, or, if the 22 means of calculating rent has been 23 changed under this section, the day on 24 which it was last so changed. 25 31B. Increase in rent after renegotiating lease 26 If -- 27 (a) a residential tenancy agreement creates a 28 tenancy for a fixed term (the former 29 agreement); and 30 (b) the parties enter into a new residential tenancy 31 agreement in relation to the same premises (the page 23 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 29 1 new agreement) that is to commence 2 immediately after the end of the term of the 3 former agreement, whether under the terms of 4 the agreement or under section 76C, 5 then, during the first 30 days after the new agreement 6 was entered into, the tenant cannot be required under 7 the new agreement to pay an amount of rent more than 8 the amount payable under the former agreement. 9 10 29. Section 31 amended 11 In section 31(1)(b) delete "12 months" and insert: 12 13 6 months 14 15 30. Section 32 amended 16 (1) Delete section 32(2) and insert: 17 18 (2) An application under subsection (1) must be made not 19 more than 30 days, or any greater period as the court 20 thinks fit having regard to the justice and merits of the 21 case, after -- 22 (a) the tenant has received notice of -- 23 (i) an increase in the rent payable; or 24 (ii) a change in the method of calculating 25 rent that results in an increase in the rent 26 payable; 27 or 28 (b) there has been, without any default on the part 29 of the tenant, a significant reduction in the 30 chattels or facilities provided with the premises. page 24 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 31 1 (3A) An application under subsection (1) may be made 2 despite the fact that the tenant has paid, or agreed to 3 pay, the rent to which the application relates. 4 5 (2) In section 32(4) delete "not being" and insert: 6 7 which may be a day 8 9 (3) In section 32(7) delete the Penalty and insert: 10 11 Penalty: a fine of $5 000. 12 13 31. Section 33 amended 14 (1) In section 33(1): 15 (a) delete "within 3 days of " and insert: 16 17 within 3 days after 18 19 (b) delete "give, or cause to be prepared and given, to" and 20 insert: 21 22 give to 23 24 (c) delete the Penalty and insert: 25 26 Penalty: a fine of $5 000. 27 28 (2) In section 33(2) delete "of the Commonwealth" and insert: 29 30 (Commonwealth) 31 page 25 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 32 1 32. Section 34A inserted 2 After section 33 insert: 3 4 34A. Manner of payment of rent 5 Except as otherwise provided in a residential tenancy 6 agreement, a tenant under the agreement may pay rent 7 in the form of cash or a cheque, or in the manner 8 referred to in section 33(2). 9 10 33. Section 34 amended 11 (1) In section 34(1): 12 (a) after "record" insert: 13 14 in accordance with subsection (2A) 15 16 (b) delete the Penalty and insert: 17 18 Penalty: a fine of $5 000. 19 20 (2) After section 34(1) insert: 21 22 (2A) The record should specify all of the following -- 23 (a) the fact that the payment is for rent; 24 (b) the date the rent is received; 25 (c) the name of the person paying the rent; 26 (d) the amount paid; 27 (e) the period in respect of which it is paid; 28 (f) the premises in respect of which it is paid. 29 page 26 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 34 1 (3) In section 34(2): 2 (a) delete "is to his knowledge false" and insert: 3 4 the person knows is false or misleading 5 6 (b) delete the Penalty and insert: 7 8 Penalty: a fine of $5 000. 9 10 34. Section 35 amended 11 In section 35 delete the Penalty and insert: 12 13 Penalty: a fine of $5 000. 14 15 35. Part IV Division 2 heading amended 16 In the heading to Part IV Division 2 delete "General" and 17 insert: 18 19 Standard terms 20 21 36. Section 37 deleted 22 Delete section 37. 23 37. Section 38 amended 24 (1) In section 38(1) delete "every agreement" and insert: 25 26 every residential tenancy agreement 27 page 27 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 38 1 (2) In section 38(1)(b) delete "but within 3 days of " and insert: 2 3 after 4 5 38. Section 39 amended 6 In section 39 delete "every agreement" and insert: 7 8 every residential tenancy agreement 9 10 39. Section 40 replaced 11 Delete section 40 and insert: 12 13 40. Vacant possession 14 (1) In this section -- 15 premises does not include -- 16 (a) any part of the premises in respect of which the 17 tenant does not have a right of exclusive 18 occupation; or 19 (b) any part of the premises to which the parties to 20 the residential tenancy agreement have agreed 21 the tenant will not have access. 22 (2) It is a term of every residential tenancy agreement that 23 the tenant must have vacant possession of the premises 24 on the day on which the tenant is entitled to enter into 25 occupation of the premises under the agreement. 26 page 28 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 40 1 40. Section 41 amended 2 In section 41: 3 (a) delete "every agreement" and insert: 4 5 every residential tenancy agreement 6 7 (b) delete "he" and insert: 8 9 the lessor 10 11 41. Sections 42 to 46 replaced 12 Delete sections 42 to 46 and insert: 13 14 42. Lessor's responsibility for cleanliness and repairs 15 (1) In this section -- 16 premises includes fixtures and chattels provided with 17 the premises, but does not include -- 18 (a) any fixture or chattel disclosed by the lessor as 19 not functioning before the agreement was 20 entered into; or 21 (b) any other fixture or chattel that the tenant could 22 not reasonably have expected to be functioning 23 at the time the agreement was entered into. 24 (2) It is a term of every residential tenancy agreement that 25 the lessor -- 26 (a) must deliver up to the tenant vacant possession 27 of the premises in a reasonable state of 28 cleanliness and a reasonable state of repair 29 having regard to its age and character; and page 29 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 41 1 (b) must maintain the premises in a reasonable 2 state of repair having regard to its age and 3 character and must conduct any repairs within a 4 reasonable period after the need for the repair 5 arises; and 6 (c) must comply with all requirements in respect of 7 buildings, health and safety under any other 8 written law insofar as they apply to the 9 premises. 10 43. Urgent repairs 11 (1) In this section -- 12 prescribed period, in relation to the carrying out of 13 urgent repairs, means -- 14 (a) in relation to repairs necessary for the supply or 15 restoration of a service prescribed in the 16 regulations as an essential service -- 24 hours; 17 or 18 (b) in relation to any other urgent repairs -- 19 48 hours or any longer period prescribed in the 20 regulations; 21 suitable repairer, in relation to urgent repairs, means a 22 person who is suitably qualified, trained or, if 23 necessary under any written law, licensed or otherwise 24 authorised, to undertake the work necessary to carry 25 out the repairs; 26 urgent repairs, in relation to residential premises, 27 means repairs to the premises that are necessary -- 28 (a) for the supply or restoration of a service 29 prescribed in the regulations as an essential 30 service; or page 30 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 41 1 (b) to avoid -- 2 (i) exposing a person to the risk of injury; 3 or 4 (ii) exposing property to damage; or 5 (iii) causing the tenant undue hardship or 6 inconvenience. 7 (2) It is a term of every residential tenancy agreement that 8 if a need for urgent repairs arises otherwise than as a 9 result of a breach of the agreement by the tenant -- 10 (a) the tenant is to notify the lessor of the need for 11 those repairs as soon as practicable after the 12 need arises; and 13 (b) the lessor is to ensure that the repairs are 14 carried out by a suitable repairer as soon as 15 practicable after that notification. 16 (3) It is a term of every residential tenancy agreement that 17 if, within the prescribed period after the need for the 18 urgent repairs arises, the tenant is unable to contact the 19 lessor or, having notified the lessor of the need for the 20 repair, the lessor fails to ensure that the repairs are 21 carried out by a suitable repairer as soon as practicable 22 after that notification -- 23 (a) the tenant may arrange for the repairs to be 24 carried out by a suitable repairer to the 25 minimum extent necessary to effect those 26 repairs; and 27 (b) the lessor must, as soon as practicable after the 28 repairs are carried out, reimburse the tenant for 29 any reasonable expense incurred by the tenant 30 in arranging for those repairs to be carried out 31 and paying for those repairs. page 31 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 41 1 44. Quiet enjoyment 2 (1) In this section -- 3 premises includes fixtures and chattels provided with 4 the premises, but does not include -- 5 (a) any fixture or chattel disclosed by the lessor as 6 not functioning before the agreement was 7 entered into; or 8 (b) any other fixture or chattel that the tenant could 9 not reasonably have expected to be functioning 10 at the time the agreement was entered into. 11 (2) It is a term of every residential tenancy agreement -- 12 (a) that the tenant is to have quiet enjoyment of the 13 premises without interruption by the lessor or 14 any person claiming by, through or under the 15 lessor or having superior title to that of the 16 lessor; and 17 (b) that the lessor must not cause or permit any 18 interference with the reasonable peace, comfort 19 or privacy of the tenant in the use by the tenant 20 of the premises; and 21 (c) that the lessor must take all reasonable steps to 22 enforce the obligation of any other tenant of the 23 lessor in occupation of adjacent premises not to 24 cause or permit any interference with the 25 reasonable peace, comfort or privacy of the 26 tenant in the use by the tenant of the premises. 27 45. Securing premises 28 It is a term of every residential tenancy agreement -- 29 (a) that the lessor must provide and maintain such 30 means to ensure that the residential premises 31 are reasonably secure as are prescribed in the 32 regulations; and page 32 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 41 1 (b) that any lock or other means of securing the 2 residential premises must not be altered, 3 removed or added by a lessor or tenant without 4 the consent of the other given at, or 5 immediately before, the time that the alteration, 6 removal or addition is carried out; and 7 (c) that the lessor or the tenant must not 8 unreasonably withhold the consent referred to 9 in paragraph (b). 10 46. Lessor's right of entry 11 (1) In this section -- 12 lessor, in relation to premises, includes the property 13 manager of the premises acting on behalf of the lessor; 14 premises means any part of the premises in respect of 15 which the tenant has a right of exclusive occupation; 16 reasonable time means -- 17 (a) between 8.00 a.m. and 6.00 p.m. on a weekday; 18 or 19 (b) between 9.00 a.m. and 5.00 p.m. on a Saturday; 20 or 21 (c) at any other time agreed between the lessor and 22 each tenant. 23 (2) It is a term of every residential tenancy agreement that 24 the lessor may enter the premises in all or any of the 25 following circumstances but not otherwise -- 26 (a) in any case of emergency; 27 (b) for conducting routine inspections of the 28 premises or any other purpose, on a day and at 29 a reasonable time, specified by notice in writing 30 given to the tenant -- 31 (i) not less than 7 days before the proposed 32 entry; and page 33 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 41 1 (ii) within 14 days before the proposed 2 entry; 3 (c) at any reasonable time for the purpose of 4 collecting the rent under the agreement, where 5 it is payable not more frequently than once 6 every week and it is agreed that the rent be 7 collected at the premises; 8 (d) under section 77(4); 9 (e) for the purpose of carrying out or inspecting 10 necessary repairs to or maintenance of the 11 premises, at any reasonable time, after giving 12 the tenant not less than 72 hours notice in 13 writing before the proposed entry; 14 (f) for the purpose of showing the premises to 15 prospective tenants, at any reasonable time and 16 on a reasonable number of occasions during the 17 period of 21 days preceding the termination of 18 the agreement, after giving the tenant 19 reasonable notice in writing; 20 (g) for the purpose of showing the premises to 21 prospective purchasers, at any reasonable time 22 and on a reasonable number of occasions, after 23 giving the tenant reasonable notice in writing; 24 (h) with the consent of the tenant given at, or 25 immediately before, the time of entry. 26 (3) It is a term of every residential tenancy agreement that 27 the lessor may enter the premises under 28 subsection (2)(b) for the purpose of inspecting the 29 premises not more than 4 times in any 12 month 30 period. 31 (4) It is a term of every residential tenancy agreement that 32 before the lessor gives notice under subsection (2) of a 33 proposed entry to the premises, the lessor must make a page 34 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 42 1 reasonable attempt to negotiate a day and time for that 2 entry that does not unduly inconvenience the tenant. 3 (5) It is a term of every residential tenancy agreement that 4 where a lessor gives a tenant notice of an intention to 5 enter premises on a particular day under subsection (2), 6 the notice must specify -- 7 (a) the day of the entry; and 8 (b) whether the entry will be before or after 9 12.00 p.m. on that day. 10 (6) It is a term of every residential tenancy agreement that 11 if the lessor exercises a right of entry under 12 subsection (2)(f) or (g) the tenant is entitled to be on 13 the premises during the entry. 14 (7) It is a term of every residential tenancy agreement that 15 the lessor exercising a right of entry under this 16 section -- 17 (a) must do so in a reasonable manner; and 18 (b) must not, without the tenant's consent, stay or 19 permit others to stay on the premises longer 20 than is necessary to achieve the purpose of the 21 entry. 22 (8) It is a term of every residential tenancy agreement that 23 the lessor is to compensate the tenant if the lessor or 24 any person accompanying the lessor causes damage to 25 the tenant's goods on the premises when exercising a 26 right of entry under subsection (2). 27 28 42. Section 47 amended 29 (1) In section 47(1) delete "An agreement" and insert: 30 31 A residential tenancy agreement 32 page 35 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 43 1 (2) In section 47(2)(b) and (c) delete "he" (each occurrence) and 2 insert: 3 4 the tenant 5 6 (3) After section 47(2) insert: 7 8 (3) It is a term of every residential tenancy agreement 9 that -- 10 (a) the lessor may affix any fixture or make any 11 renovation, alteration or addition to the 12 premises, but only with the tenant's consent; 13 and 14 (b) the tenant must not unreasonably withhold such 15 consent. 16 17 43. Section 48 amended 18 (1) In section 48: 19 (a) delete "It is a term of every agreement" and insert: 20 21 (1) It is a term of every residential tenancy agreement 22 23 (b) in paragraph (c) delete ""water services", as defined in 24 the Water Agencies (Powers) Act 1984," and insert: 25 26 water supply or sewerage services under the 27 Water Agencies (Powers) Act 1984, 28 page 36 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 44 1 (2) At the end of section 48 insert: 2 3 (2) It is a term of every residential tenancy agreement that 4 a contribution levied on a proprietor under the Strata 5 Titles Act 1985 section 36 cannot be passed on to a 6 tenant. 7 8 44. Section 49A inserted 9 After section 48 insert: 10 11 49A. Lessor's and tenant's responsibilities in respect of 12 public utility services 13 (1) In this section -- 14 GST has the meaning given in the A New Tax System 15 (Goods and Services Tax) Act 1999 (Commonwealth); 16 public utility services has the meaning given in the 17 Land Administration Act 1997 section 3(1). 18 (2) It is a term of every residential tenancy agreement that 19 the tenant must pay a charge in relation to a public 20 utility service provided to the premises only if -- 21 (a) the charge is calculated by reference to 22 consumption at the residential premises by the 23 tenant; and 24 (b) the tenant is given notice in writing of the 25 charge in relation to the public utility service, 26 specifying -- 27 (i) if consumption at the premises is 28 metered -- the relevant meter reading, 29 or readings, and the charge per metered 30 unit; or page 37 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 45 1 (ii) if consumption at the premises is not 2 metered and the lessor and tenant have 3 agreed in writing to an alternative 4 method of calculating the charge to be 5 paid by the tenant -- the charge 6 calculated in accordance with the agreed 7 method; 8 and 9 (c) the tenant is provided with full details of the 10 account for the charge including -- 11 (i) any meter readings and the charge per 12 metered unit; or 13 (ii) the agreed method of calculating 14 referred to in paragraph (b)(ii), 15 and the amount of GST payable in respect of 16 the provision of the public utility service to the 17 residential premises. 18 19 45. Section 49 amended 20 (1) In section 49(1): 21 (a) delete "An agreement" and insert: 22 23 A residential tenancy agreement 24 25 (b) in paragraphs (a), (b) and (c) delete "his" and insert: 26 27 the tenant's 28 29 (2) In section 49(2)(b) delete "his" and insert: 30 31 the lessor's 32 page 38 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 46 1 46. Section 50 amended 2 In section 50(1) delete "every agreement" and insert: 3 4 every residential tenancy agreement 5 6 47. Part IV Division 3 heading inserted 7 After section 50 insert: 8 9 Division 3 -- General 10 11 48. Section 51 replaced 12 Delete section 51 and insert: 13 14 51. Tenant to be notified of lessor's name and address 15 (1) Unless subsection (2) applies, at the time of entering 16 into a residential tenancy agreement the lessor must 17 notify the tenant, or cause the tenant to be notified, in 18 writing of -- 19 (a) if the lessor is an individual -- the full name 20 and address of -- 21 (i) the lessor; and 22 (ii) any person having superior title to that 23 of the lessor; 24 or 25 (b) if the lessor is a body corporate -- the full 26 name and business address of the secretary of 27 the body corporate. 28 Penalty: a fine of $5 000. page 39 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 49 1 (2) If residential premises that are the subject of a 2 residential tenancy agreement are managed by a 3 property manager, the lessor and the property manager 4 must, at the time of entering into the agreement, notify 5 the tenant, or cause the tenant to be notified, in writing 6 of -- 7 (a) the full name of the lessor; and 8 (b) the full name and address of the property 9 manager. 10 Penalty: a fine of $5 000. 11 (3) Where a person succeeds another person as the lessor 12 under a residential tenancy agreement, the new lessor 13 must, within 14 days after the succession, notify the 14 tenant, or cause the tenant to be notified, in writing 15 of -- 16 (a) the full name and address of the new lessor; and 17 (b) where the new lessor is a body corporate, the 18 full name and business address of the secretary 19 of the body corporate. 20 Penalty: a fine of $5 000. 21 (4) Where any name or address of which the lessor is 22 required to notify the tenant under this section is 23 changed, the lessor must, within 14 days after the 24 change, notify the tenant, or cause the tenant to be 25 notified, in writing of the changed name or address. 26 Penalty: a fine of $5 000. 27 28 49. Section 52 amended 29 In section 52 delete the Penalty and insert: 30 31 Penalty: a fine of $5 000. 32 page 40 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 50 1 50. Section 53 replaced 2 Delete section 53 and insert: 3 4 53. Tenant's name, place of employment and 5 forwarding address 6 (1) A tenant under a residential tenancy agreement must 7 not falsely state to the lessor the tenant's name or place 8 of employment. 9 Penalty: a fine of $5 000. 10 (2) Where a tenant has stated a place of employment to the 11 lessor and that place is changed, the tenant must, within 12 14 days after the change, notify the lessor, or cause the 13 lessor to be notified, in writing of the new place of 14 employment. 15 Penalty: a fine of $5 000. 16 (3) A tenant under a residential tenancy agreement must, at 17 the time of delivering up possession of the premises to 18 which the agreement relates, notify the lessor, or cause 19 the lessor to be notified, in writing of -- 20 (a) the address at which the tenant intends to next 21 reside; or 22 (b) the tenant's postal address. 23 Penalty: a fine of $5 000. 24 25 51. Section 54 amended 26 (1) In section 54(1): 27 (a) delete "An owner, or agent of an owner" and insert: 28 29 A lessor or a property manager of residential premises 30 page 41 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 52 1 (b) after "written" insert: 2 3 residential tenancy 4 5 (c) in paragraph (b) delete "within 21 days" and insert: 6 7 within 14 days 8 9 (d) delete the Penalty and insert: 10 11 Penalty: a fine of $5 000. 12 13 (2) In section 54(2): 14 (a) delete "an owner, or agent of an owner," and insert: 15 16 a lessor or a property manager of residential premises 17 18 (b) delete "the owner, or agent of the owner," and insert: 19 20 the lessor or property manager 21 22 Note: The heading to amended section 54 is to read: 23 Lessor to deliver copy of agreement to tenant 24 52. Section 55 replaced 25 Delete section 55 and insert: 26 27 55. Cost of written agreement to be borne by lessor 28 Where a lessor requires the execution of a written 29 residential tenancy agreement or a memorandum of a 30 residential tenancy agreement, the cost of its 31 preparation must be borne by the lessor. 32 page 42 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 53 1 53. Section 56 amended 2 (1) In section 56(1) delete the Penalty and insert: 3 4 Penalty: a fine of $5 000. 5 6 (2) In section 56(2)(b): 7 (a) delete "his" and insert: 8 9 the person's 10 11 (b) delete "person, if it" and insert: 12 13 person on the ground that it 14 15 (c) delete the Penalty and insert: 16 17 Penalty: a fine of $5 000. 18 19 (3) Delete section 56(3). 20 54. Section 57 amended 21 After section 57(1) insert: 22 23 (2A) A lessor or property manager who executes a 24 residential tenancy agreement with a provision of the 25 kind referred to in subsection (1) commits an offence. 26 Penalty: a fine of $5 000. 27 page 43 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 55 1 55. Section 58 amended 2 In section 58 delete "an agreement." and insert: 3 4 a residential tenancy agreement. 5 6 56. Sections 59A to 59F inserted 7 At the end of Part IV insert: 8 9 59A. Minors 10 (1) In this section -- 11 minor means a person who has reached 16 years of age 12 but who has not reached 18 years of age. 13 (2) Despite any other law in force in this State -- 14 (a) a minor has the capacity to enter into a 15 residential tenancy agreement as a tenant; and 16 (b) a residential tenancy agreement may be 17 enforced in accordance with this Act against a 18 minor who is a tenant. 19 59B. Death of one of 2 or more tenants 20 (1) This section applies if -- 21 (a) 2 or more tenants are parties to a residential 22 tenancy agreement; and 23 (b) the tenants are not joint tenants under the 24 agreement; and 25 (c) one of the tenants dies. 26 (2) On the death of the tenant -- 27 (a) the deceased tenant's interest in the tenancy 28 ends; and page 44 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 56 1 (b) the agreement continues in force with the 2 parties to the agreement being the lessor and 3 the surviving tenant or tenants. 4 (3) Subsection (2) does not affect, as between the deceased 5 tenant and the surviving tenant or tenants, any right 6 (including, in particular, a right relating to a security 7 bond) or liability of the deceased tenant existing 8 immediately before the deceased tenant's death. 9 59C. Recognition of certain persons as tenants 10 (1) A person who is not a tenant but who is occupying 11 residential premises to which a residential tenancy 12 agreement applies may apply to a competent court to 13 be recognised as a tenant under the agreement or to be 14 joined as a party to any proceedings before the court 15 relating to the premises, or both. 16 (2) An application by a person to be recognised as a tenant 17 may be made at the same time as any other application 18 or during proceedings before the court or 19 independently of any such other application or 20 proceedings. 21 (3) On application by a person under this section the court 22 may make either or both of the following orders -- 23 (a) an order recognising the person as a tenant 24 under a residential tenancy agreement and in 25 that case the person is to be taken, for the 26 purposes of this or any other Act and of the 27 agreement, to be a tenant under the agreement; 28 (b) an order joining the person as a party to 29 proceedings. 30 (4) In making an order referred to in subsection (3)(a) the 31 court may order that the tenancy be continued on such 32 of the terms and conditions of the residential tenancy page 45 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 56 1 agreement as it thinks are appropriate having regard to 2 the circumstances of the case. 3 59D. Tenant compensation bonds 4 (1) In this section -- 5 tenant compensation order means an order under 6 section 15(2)(b) in relation to a failure by a lessor to 7 reimburse a tenant for reasonable expenses incurred by 8 the tenant in arranging for urgent repairs to be carried 9 out, and paying for those repairs, in accordance with 10 section 43. 11 (2) A court that makes a tenant compensation order against 12 a lessor may make a further order requiring the lessor 13 to pay to the bond administrator a tenant compensation 14 bond to cover any future tenant compensation orders 15 that might be made against the lessor in respect of -- 16 (a) a particular tenant or particular residential 17 premises of the lessor; or 18 (b) any tenant or residential premises of the lessor. 19 (3) The tenant compensation bond is to be an amount 20 determined by the court. 21 (4) The lessor may apply to the court for an order that the 22 whole or part of a tenant compensation bond is to be 23 paid back to the lessor. 24 (5) The court may make the order referred to in 25 subsection (4) if it is satisfied that it is appropriate in 26 the circumstances to do so. 27 (6) The bond administrator must pay the amount of the 28 tenant compensation bond in accordance with -- 29 (a) Schedule 1 clause 10; or 30 (b) an order under subsection (5) and Schedule 1 31 clause 11. page 46 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 56 1 59E. Interference with quiet enjoyment 2 (1) A lessor who causes or permits interference with the 3 reasonable peace, comfort or privacy of the tenant in 4 the tenant's use of the premises commits an offence. 5 Penalty: a fine of $10 000. 6 (2) The liability of a person in civil proceedings is not 7 affected by the commencement of proceedings against 8 the person for an offence under subsection (1) or the 9 conviction of the person in proceedings for the offence. 10 59F. Offences relating to security of residential premises 11 (1) A lessor or tenant who breaches the term referred to in 12 section 45(b) without reasonable excuse commits an 13 offence. 14 Penalty: a fine of $20 000. 15 (2) A property manager of residential premises who, 16 without reasonable excuse alters, removes or adds a 17 lock or other means of securing the residential 18 premises without the consent of the tenant given at, or 19 immediately before, the time that the alteration, 20 removal or addition is carried out, in addition to any 21 civil liability that the property manager might incur, 22 commits an offence. 23 Penalty: a fine of $20 000. 24 (3) The liability of a person in civil proceedings is not 25 affected by the commencement of proceedings against 26 the person for an offence under this section or the 27 conviction of the person in proceedings for the offence. 28 page 47 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 57 1 57. Part V Division 1 heading inserted 2 At the beginning of Part V insert: 3 4 Division 1 -- How residential tenancy agreements 5 are terminated 6 7 58. Section 59 deleted 8 Delete section 59. 9 59. Section 60 amended 10 (1) In section 60(1): 11 (a) delete "(1) Notwithstanding" and insert: 12 13 Despite 14 15 (b) delete "except --" and insert: 16 17 except in one of the following circumstances -- 18 19 (c) delete paragraph (b) and insert: 20 21 (b) in the case of a tenancy for a fixed term, where 22 the lessor or tenant gives a notice of 23 termination under section 70A and -- 24 (i) the tenant delivers up possession of the 25 premises on or after the day on which 26 the term of the agreement expires in 27 accordance with that section; or 28 (ii) a competent court, upon application by 29 the lessor, terminates the agreement 30 under section 72; 31 page 48 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 60 1 (d) delete paragraph (h) and insert: 2 3 (h) where the agreement terminates by merger; 4 5 (e) after paragraph (h) insert: 6 7 (i) where every tenant dies. 8 9 (2) Delete section 60(2) and (3). 10 60. Part V Division 2 heading inserted 11 After section 60 insert: 12 13 Division 2 -- Notices of termination 14 15 61. Section 61 replaced 16 Delete section 61 and insert: 17 18 61. Form of notice of termination by lessor 19 Notice of termination of a residential tenancy 20 agreement by the lessor must -- 21 (a) be in writing and in the prescribed form; and 22 (b) be signed by the lessor or a property manager 23 of the residential premises; and 24 (c) identify the premises the subject of the 25 agreement; and 26 (d) specify the day on which possession of the 27 premises is to be delivered up by the tenant; 28 and page 49 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 62 1 (e) specify and give particulars of the ground, if 2 any, upon which the notice is given. 3 4 62. Section 62 amended 5 In section 62(2) delete "7 days." and insert: 6 7 7 days before the day on which the tenant is required 8 under the notice to give the lessor possession of the 9 premises. 10 11 63. Sections 63 and 64 replaced 12 Delete sections 63 and 64 and insert: 13 14 63. Notice of termination by lessor who has entered into 15 contract of sale 16 (1) A lessor may give notice of termination of a residential 17 tenancy agreement to the tenant on the ground that the 18 lessor has entered into a contract for the sale of the 19 premises to which the agreement relates and under that 20 contract the lessor is required to give vacant possession 21 of the premises. 22 (2) Where a lessor gives notice of termination under 23 subsection (1) the period of notice must be not less 24 than 30 days before the day on which the tenant is 25 required under the notice to give to the lessor 26 possession of the premises. 27 (3) A lessor, or a property manager acting on behalf of the 28 lessor, must not give notice of termination under this 29 section that the person knows is false or misleading in 30 a material particular. 31 Penalty: a fine of $10 000. page 50 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 63 1 (4) This section does not apply to a residential tenancy 2 agreement that creates a tenancy for a fixed term 3 during the currency of that term. 4 64. Notice of termination by lessor without any ground 5 (1) A lessor may give notice of termination of a residential 6 tenancy agreement to the tenant without specifying any 7 ground for the notice. 8 (2) Where a lessor gives notice of termination under this 9 section, the period of notice must be not less than 10 60 days before the day on which the tenant is required 11 under the notice to give to the lessor possession of the 12 premises. 13 (3) A tenant may, within 7 days after receiving a notice of 14 termination under this section, apply to a competent 15 court for an order -- 16 (a) that the period of notice be extended by a 17 further period of up to 60 days; or 18 (b) if the tenant is of the opinion that the grounds 19 set out in section 71(3)(b)(i) apply -- that the 20 residential tenancy agreement is not terminated 21 as a consequence of the notice. 22 (4) On an application under subsection (3) the court may, 23 as it thinks fit having regard to the justice and merits of 24 the case -- 25 (a) extend the period of notice for a further period 26 of up to 60 days and make such other orders as 27 to compensation of the lessor for any loss 28 caused by the extension or as to any other 29 matter that it considers is, in the circumstances 30 of the case, appropriate; or 31 (b) make an order that the residential tenancy 32 agreement is not terminated as a consequence 33 of the notice; or page 51 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 64 1 (c) make an order referred to in section 71(2) and 2 in that case the court must specify the day as 3 from which the order for possession operates, 4 being a day that is the later of -- 5 (i) a day not less than 60 days after the day 6 on which the notice of termination was 7 received; or 8 (ii) a day within 7 days after the day on 9 which the order was made. 10 (5) This section does not apply in relation to a residential 11 tenancy agreement that creates a tenancy for a fixed 12 term during the currency of that term. 13 14 64. Section 65 amended 15 In section 65(1) delete "an agreement --" and insert: 16 17 a residential tenancy agreement -- 18 19 65. Section 66 amended 20 In section 66 delete "he" and insert: 21 22 the lessor 23 24 66. Section 68 amended 25 In section 68(2) delete "21 days." and insert: 26 27 21 days before the termination day. 28 page 52 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 67 1 67. Section 69 amended 2 (1) In section 69(2) delete "7 days." and insert: 3 4 7 days before the termination day. 5 6 (2) In section 69(3) delete "2 days." and insert: 7 8 2 days before the termination day. 9 10 68. Section 70A inserted 11 After section 69 insert: 12 13 70A. Notice of termination by lessor or tenant at end of 14 fixed term tenancy 15 (1) In this section -- 16 agreement means a residential tenancy agreement that 17 creates a tenancy for a fixed term; 18 notice means a notice of termination referred to in 19 subsection (2); 20 possession day means the day specified in a notice as 21 the day on which possession of the premises is to be 22 delivered up by the tenant and has the meaning affected 23 by subsection (6). 24 (2) Despite any other written law or a requirement under a 25 contract, the term of a residential tenancy agreement 26 does not end on the expiry day unless the lessor or 27 tenant has given a notice of termination of the 28 agreement to the other party specifying a day on which 29 possession of the residential premises is to be delivered 30 up by the tenant. page 53 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 68 1 (3) The notice must be given not later than 30 days before 2 the possession day. 3 (4) The possession day must not be a day earlier than the 4 expiry day. 5 (5) If the possession day is later than the expiry day, 6 then -- 7 (a) the term of the agreement expires on the 8 possession day, and not on the expiry day; and 9 (b) the terms of the agreement are to be taken, for 10 all purposes, to be varied to that extent. 11 (6) If both the lessor and tenant give a notice to each other 12 and the notices specify different possession days, then 13 the day that is the earlier of the 2 days is to be taken to 14 be the possession day. 15 (7) If -- 16 (a) the day on which the term of the agreement is 17 to expire under subsection (5)(a) is the 18 possession day under a notice given by the 19 lessor; and 20 (b) the tenant delivers up possession of the 21 premises after the expiry day but before the 22 possession day, 23 then the day on which the tenant delivers up possession 24 of the premises is to be taken to be the possession day 25 for the purposes of subsection (5). 26 page 54 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 69 1 69. Part V Division 4 heading inserted 2 Before section 71 insert: 3 4 Division 4 -- Orders for termination of residential 5 tenancy agreement 6 7 70. Section 71 amended 8 (1) In section 71(1) after "under this Act" insert: 9 10 except under section 70A 11 12 (2) In section 71(3)(a) delete "30 days," and insert: 13 14 30 days after the day on which the orders are made, 15 16 (3) In section 71(4): 17 (a) delete "his" and insert: 18 19 the tenant's 20 21 (b) delete "he" and insert: 22 23 the lessor 24 25 (4) In section 71(5) delete "not more than" and insert: 26 27 within 28 page 55 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 71 1 71. Section 72 amended 2 (1) Delete section 72(1) and insert: 3 4 (1A) In this section -- 5 agreement has the meaning given in section 70A(1); 6 possession day has the meaning given in 7 section 70A(1). 8 (1) Where a lessor or a tenant under an agreement gives 9 notice of termination under section 70A and the tenant 10 fails to deliver up possession of the premises on the 11 possession day, the lessor may, within 30 days after the 12 possession day, apply to a competent court for an order 13 terminating the agreement and an order for possession 14 of the premises. 15 16 (2) In section 72(3)(b): 17 (a) in subparagraph (i) delete "he" and insert: 18 19 the lessor 20 21 (b) in subparagraph (ii) delete "his" and insert: 22 23 the tenant's 24 25 (3) In section 72(4) delete "not more than" and insert: 26 27 within 28 page 56 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 72 1 72. Section 73 amended 2 In section 73(1) delete "the owner or his agent" and insert: 3 4 the lessor or the property manager of the premises 5 6 73. Section 74 amended 7 (1) In section 74(1): 8 (a) delete "the owner" (each occurrence) and insert: 9 10 the lessor or tenant 11 12 (b) delete "he" and insert: 13 14 the lessor or tenant 15 16 (2) In section 74(2)(b) after "tenant" insert: 17 18 or lessor 19 20 Note: The heading to amended section 74 is to read: 21 Termination of agreement where lessor or tenant would otherwise 22 suffer undue hardship 23 74. Sections 76A and 76B, Part V Division 5 heading and 24 section 76C inserted 25 After section 75 insert: 26 27 76A. Termination of agreement by lessor if premises 28 abandoned 29 (1) If a lessor suspects on reasonable grounds that a tenant 30 has abandoned the residential premises, the lessor may page 57 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 74 1 give a written notice to the tenant terminating the 2 agreement. 3 (2) The notice must be in a form approved by the Minister 4 and must -- 5 (a) be signed by or for the lessor or property 6 manager; and 7 (b) identify the residential premises; and 8 (c) state the lessor is terminating the agreement 9 because the tenant has abandoned the premises. 10 (3) If the tenant does not take action under section 76B to 11 dispute the notice within 7 days after being given the 12 notice, the tenant is to be taken to have abandoned the 13 premises. 14 76B. Dispute about s. 76A notice 15 (1) If the tenant wishes to dispute a notice given under 16 section 76A, the tenant may apply to a competent court 17 for an order -- 18 (a) setting aside the notice; or 19 (b) for compensation. 20 (2) The application must be made within 28 days after the 21 notice is given. 22 (3) On an application under this section, the court may -- 23 (a) if the application was made within 7 days after 24 the notice was given -- make an order setting 25 aside the notice; or 26 (b) if paragraph (a) does not apply -- make any of 27 the following orders -- 28 (i) an order terminating the agreement; 29 (ii) an order requiring the lessor to pay to 30 the tenant the amount stated by the court 31 as compensation for loss or expense page 58 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 75 1 incurred by the tenant because of the 2 termination of the agreement; 3 (iii) any other order it considers appropriate. 4 Division 5 -- General 5 76C. Fixed term tenancies continued as periodic 6 tenancies 7 (1) This section applies to a residential tenancy agreement 8 that creates a tenancy for a fixed term unless the 9 agreement is terminated before the expiry day. 10 (2) Subject to subsection (3), a residential tenancy 11 agreement continues as a periodic tenancy after the 12 expiry day on the same terms that applied immediately 13 before the expiry day. 14 (3) A competent court may, upon application by the lessor 15 or tenant, make such modification to the terms of the 16 residential tenancy agreement as may be necessary for, 17 or appropriate to, its continuance. 18 19 75. Section 77 replaced 20 Delete section 77 and insert: 21 22 77. Abandonment of premises 23 (1) If the lessor suspects on reasonable grounds that the 24 tenant has abandoned the residential premises, the 25 lessor may give to the tenant a written notice stating 26 that -- 27 (a) the lessor suspects that the tenant has 28 abandoned the premises; and 29 (b) unless the tenant informs the lessor within 30 24 hours after the giving of the notice that the page 59 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 75 1 tenant has not abandoned the premises, the 2 lessor -- 3 (i) will enter the premises for the purpose 4 of inspecting and securing them; and 5 (ii) may give to the tenant a notice under 6 section 76A or apply to a competent 7 court for an order under section 78A. 8 (2) The notice under subsection (1) must be in a form 9 approved by the Minister. 10 (3) The lessor must give the notice to the tenant by -- 11 (a) leaving a copy at the premises; and 12 (b) leaving a copy at the tenant's last known place 13 of employment. 14 (4) If the tenant fails to notify the lessor within 24 hours 15 after notice has been given under subsection (3) that 16 the premises have not been abandoned, the lessor may 17 enter the premises for the purposes of inspecting and 18 securing them. 19 78A. Order about abandonment 20 (1) If a lessor suspects on reasonable grounds that the 21 tenant has abandoned the residential premises, the 22 lessor may apply to a competent court for an order 23 under this section. 24 (2) The lessor may make the application instead of giving 25 a notice under section 76A to the tenant. 26 (3) If an application is made, the court may make an order 27 declaring that the premises were abandoned by the 28 tenant on the day stated in the order. 29 (4) If the court makes an order under subsection (3), the 30 tenant is taken to have abandoned the premises on the 31 day stated in the order. page 60 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 76 1 78B. Review of abandonment order 2 (1) The tenant under a residential tenancy agreement who 3 is dissatisfied with a decision of a court under 4 section 78A(3) declaring that the tenant abandoned the 5 premises on a stated day may apply to the court for a 6 review of the decision. 7 (2) The application must be made within 28 days after the 8 decision is made. 9 (3) The review is to be by way of a rehearing. 10 (4) The court -- 11 (a) must exercise its original jurisdiction for the 12 review; and 13 (b) may make an order under this section if it is 14 satisfied the applicant did not abandon the 15 premises or only abandoned the premises on a 16 day after the day stated. 17 (5) The order the court may make is an order requiring the 18 lessor under the agreement to pay to the tenant an 19 amount the court considers appropriate as 20 compensation for any loss or expense incurred by the 21 tenant by the termination of the agreement. 22 23 76. Section 79 amended 24 (1) Before section 79(1) insert: 25 26 (1A) In this section -- 27 goods does not include a tenant's document as defined 28 in section 80A. 29 page 61 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 76 1 (2) In section 79(2) delete "60 days." and insert: 2 3 60 days after the day on which the agreement is terminated. 4 5 (3) At the end of section 79(2) insert: 6 7 Penalty: a fine of $5 000. 8 9 (4) In section 79(3): 10 (a) delete "he" and insert: 11 12 the lessor 13 14 (b) in paragraph (a) delete "former"; 15 (c) in paragraph (a) delete "him" and insert: 16 17 the lessor 18 19 (d) in paragraph (a) delete "his" and insert: 20 21 the tenant's 22 23 (5) At the end of section 79(3) insert: 24 25 Penalty: a fine of $5 000. 26 27 (6) In section 79(4) delete "his" and insert: 28 29 the Commissioner's 30 page 62 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 76 1 (7) In section 79(5): 2 (a) delete "an owner" and insert: 3 4 a lessor 5 6 (b) delete "he" (each occurrence) and insert: 7 8 the lessor 9 10 (c) delete "the owner" (second occurrence) and insert: 11 12 the lessor 13 14 (8) In section 79(6): 15 (a) in paragraph (c) delete "his" and insert: 16 17 the Commissioner's 18 19 (b) delete "him" and insert: 20 21 the lessor 22 23 (9) In section 79(10): 24 (a) delete "he" (each occurrence) and insert: 25 26 the lessor 27 28 (b) delete "his" and insert: 29 30 the lessor's 31 page 63 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 77 1 (10) In section 79(12) delete "him." and insert: 2 3 the person. 4 5 (11) In section 79(13): 6 (a) delete "he" and insert: 7 8 the purchaser 9 10 (b) delete "former". 11 (12) In section 79(14)(b): 12 (a) delete "he" and insert: 13 14 the lessor 15 16 (b) delete "former". 17 (13) In section 79(15) delete "former". 18 (14) Delete section 79(16). 19 77. Section 80A inserted 20 After section 79 insert: 21 22 80A. Abandoned documents 23 (1) In this section -- 24 tenant's document means -- 25 (a) an official document; or 26 (b) a photograph; or 27 (c) correspondence; or 28 (d) any other document which it would be 29 reasonable to expect that a person would want 30 to keep. page 64 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 77 1 (2) This section applies if -- 2 (a) a residential tenancy agreement is terminated; 3 and 4 (b) a tenant's document is left on premises the 5 subject of the agreement. 6 (3) The lessor must take reasonable care of the tenant's 7 document for a period of 60 days after the termination 8 of the agreement. 9 Penalty: a fine of $5 000. 10 (4) The lessor must, during the period of 60 days after the 11 termination of the agreement, take reasonable steps to 12 notify the tenant -- 13 (a) that the document was left at the premises; and 14 (b) as to when and from where the document may 15 be collected. 16 Penalty: a fine of $5 000. 17 (5) A person who has a lawful right to the document may 18 reclaim it at any time before it is disposed of in 19 accordance with subsection (7) if the person pays the 20 lessor the reasonable costs, if any, incurred by the 21 lessor in discharging the duties imposed on the lessor 22 under this section in relation to that document. 23 (6) If a person who has a lawful right to a document 24 reclaims the document and pays an amount equal to the 25 reasonable costs incurred by the lessor in discharging 26 the duties imposed on the lessor under this section, the 27 lessor must give the document to that person. 28 Penalty: a fine of $5 000. 29 (7) If the document has not been claimed under 30 subsection (5) within 60 days after the day on which 31 the agreement was terminated, the lessor may destroy 32 or otherwise dispose of the document. page 65 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 78 1 (8) If a lessor destroys or otherwise disposes of a 2 document under subsection (7), a competent court may, 3 on an application by the lessor, make an order for the 4 payment to the lessor out of moneys standing to the 5 credit of the Rental Accommodation Account, in 6 accordance with Schedule 1 clause 3(3)(a), of an 7 amount equal to the reasonable costs incurred by the 8 lessor in discharging the duties imposed on the lessor 9 under this section. 10 (9) Nothing in this section affects the operation of any 11 other Act or law affecting the destruction or disposal of 12 a document. 13 14 78. Section 80 amended 15 In section 80 delete the Penalty and insert: 16 17 Penalty: a fine of $20 000. 18 19 79. Section 81 replaced 20 Delete section 81 and insert: 21 22 81A. Mortgagee repossessions of rented properties 23 (1) In this section -- 24 notice to vacate, in relation to residential premises, 25 means a written notice to vacate the premises; 26 specified date means a date, specified in a notice to 27 vacate, by which the tenant is to vacate the residential 28 premises. 29 (2) If a residential tenancy agreement is terminated under 30 section 60(e), the mortgagee is not to take possession 31 of the residential premises from a tenant who is holding page 66 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 79 1 over after termination of the agreement unless the 2 mortgagee, after becoming entitled to take possession, 3 gives the tenant a notice to vacate the premises. 4 (3) The notice to vacate must be in a form approved by the 5 Minister and must include a specified date that is not 6 less than 30 days after the date on which the notice is 7 given to the tenant. 8 (4) The tenant who is holding over after termination of the 9 residential tenancy agreement -- 10 (a) is not, during the period of 30 days following 11 the date on which the tenant is given the notice 12 to vacate, required to pay any rent, fee or other 13 charge to occupy the residential premises; and 14 (b) is, if the tenant has paid any rent in advance for 15 any part of that period, entitled to be repaid the 16 amount of that rent. 17 (5) A competent court may, on application by the tenant, 18 order the repayment to the tenant of any such amount 19 referred to in subsection (4)(a) or (b). 20 (6) The mortgagee (or any person acting on behalf of the 21 mortgagee) is, during the period in which the tenant is 22 holding over after termination of the residential 23 tenancy agreement, entitled to enter the residential 24 premises to show the premises to prospective 25 purchasers on a reasonable number of occasions, but 26 only if the tenant -- 27 (a) is given reasonable notice of each such 28 occasion; and 29 (b) agrees to the date and time of the inspection. 30 (7) This section does not prevent the mortgagee from -- 31 (a) taking possession of the residential premises 32 before the specified date if the tenant page 67 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 79 1 voluntarily vacates the premises before that 2 date; or 3 (b) changing the specified date to a later date by 4 further notice in writing given to the tenant; or 5 (c) entering into a new residential tenancy 6 agreement with the tenant in respect of the 7 residential premises. 8 (8) This section extends to a tenant who is, immediately 9 before the commencement of this section, holding over 10 after termination of the residential tenancy agreement. 11 (9) This section has effect despite the terms of any court 12 order made before the commencement of this section 13 or any contract or other agreement. 14 81B. Notice of proposed recovery of premises by person 15 with superior title 16 (1) This section applies where a person (the plaintiff) 17 brings proceedings in a competent court for the 18 recovery of possession of residential premises. 19 (2) The court must not make an order for possession unless 20 it is satisfied -- 21 (a) that a person is not in possession of the 22 residential premises as -- 23 (i) a tenant under a residential tenancy 24 agreement; or 25 (ii) a tenant holding over after termination 26 of a residential tenancy agreement; 27 or 28 (b) if there is such a person in possession of the 29 residential premises and the plaintiff is not the 30 lessor under the residential tenancy 31 agreement -- that the person has been given 32 written notice, in a form approved by the page 68 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 79 1 Minister, of the proceedings not less than 2 30 days before the commencement of the 3 proceedings. 4 (3) Failure to comply with this section does not invalidate 5 or otherwise affect the judgment or order. 6 81. Order for tenancy against person with superior title 7 (1) This section applies to a person who is or was in 8 possession of residential premises as -- 9 (a) a tenant under a residential tenancy agreement; 10 or 11 (b) a tenant holding over after termination of a 12 residential tenancy agreement, 13 at a time when proceedings for the recovery of 14 possession of the premises had been commenced 15 before a court by a person (the plaintiff) who is not the 16 lessor under the agreement. 17 (2) A person to whom this section applies may apply for 18 an order under this section and such an application may 19 be made to -- 20 (a) the court before which the proceedings are 21 pending; or 22 (b) if the proceedings have been completed or 23 possession has been recovered -- a competent 24 court, 25 within a reasonable time after the applicant was given 26 notice of the proceedings or, if no notice was given, 27 within a reasonable time after the recovery of 28 possession of the residential premises. 29 (3) The court may, on such an application, and if it thinks 30 it appropriate to do so in the special circumstances of 31 the case, make an order vesting a tenancy over the 32 residential premises in the applicant. page 69 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 80 1 (4) The tenancy is to be held of the plaintiff, and on such 2 terms and conditions as the court thinks fit, having 3 regard to the circumstances of the case. 4 (5) Such an application or order may be made, even 5 though -- 6 (a) notice was not given to the applicant of the 7 proceedings brought by the plaintiff; or 8 (b) the proceedings brought by the plaintiff have 9 been completed or possession of the residential 10 premises has been recovered by the plaintiff. 11 12 80. Section 82 amended 13 (1) In section 82(1) delete "in subsection (3) or by or under any 14 other provision of " and insert: 15 16 under 17 18 (2) In section 82(2): 19 (a) delete "Except as permitted by subsection (3) or by or 20 under any other provision of this Act, no person shall" 21 and insert: 22 23 A person must not 24 25 (b) delete the Penalty and insert: 26 27 Penalty: a fine of $10 000. 28 29 (3) Delete section 82(3). page 70 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 81 1 81. Section 85 amended 2 (1) In section 85(1)(b) delete "his" and insert: 3 4 any place specified by the person as a place 5 where the person's mail may be directed or, if 6 the person has not so specified, at the person's 7 8 (2) In section 85(3) delete "if a copy of it is published in a daily 9 newspaper circulating throughout the State." and insert: 10 11 if -- 12 (a) a copy of it is published in a daily newspaper 13 circulating throughout the State; or 14 (b) a court hearing proceedings under this Act 15 orders an alternative means of giving the notice 16 or document, and that means of giving the 17 notice or document is effected. 18 19 (3) In section 85(5): 20 (a) delete "to the owner" and insert: 21 22 to the lessor 23 24 (b) delete "agent of the owner," and insert: 25 26 property manager of the residential premises, 27 28 (4) In section 85(6) delete "owners" (each occurrence) and insert: 29 30 lessors 31 page 71 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 82 1 82. Sections 86 and 87A inserted 2 After section 85 insert: 3 4 86. Court may refer matter to Commissioner for 5 investigation 6 (1) If, while hearing proceedings under this Act, a court 7 forms a suspicion that a person has committed an 8 offence against this Act (other than an offence to which 9 the proceedings relate), the court may refer the matter 10 to the Commissioner for investigation. 11 (2) A court referring a matter to the Commissioner under 12 subsection (1) is to give to the Commissioner any 13 relevant documents or other records in the court's 14 possession. 15 87A. Defence where lessor and property manager are 16 both charged with the same offence 17 If a lessor under a residential tenancy agreement and a 18 property manager of the residential premises under that 19 agreement are both charged with the same offence 20 under this Act, it is a defence to the charge for one of 21 them to prove that he or she -- 22 (a) did not aid, abet, counsel or procure the act or 23 omission of the other giving rise to the offence; 24 and 25 (b) was not in any way, by act or omission, directly 26 or indirectly, knowingly concerned in, or party 27 to, the act or omission by the other. 28 page 72 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 83 1 83. Section 88A inserted 2 After section 87 insert: 3 4 88A. Infringement notices 5 (1) In subsection (2), (3), (6) or (7) -- 6 authorised person means a person appointed under 7 subsection (13) by the Commissioner to be an 8 authorised person for the purposes of the subsection in 9 which the term is used. 10 (2) An authorised person who has reason to believe that a 11 person has committed a prescribed offence under this 12 Act may give an infringement notice to the alleged 13 offender within -- 14 (a) 21 days after forming the opinion that there is 15 sufficient evidence to support the allegation of 16 the offence; and 17 (b) 6 months after the alleged offence is believed to 18 have been committed. 19 (3) An infringement notice is to be in the prescribed form 20 and is to -- 21 (a) contain a description of the alleged offence; and 22 (b) advise that if the alleged offender does not wish 23 to have a complaint of the alleged offence 24 heard and determined by a court, the amount of 25 money specified in the notice as being the 26 modified penalty for the offence may be paid to 27 an authorised person within a period of 28 days 28 after the giving of the notice; and 29 (c) inform the alleged offender as to who are 30 authorised persons for the purposes of receiving 31 payment of modified penalties. page 73 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 83 1 (4) In an infringement notice the amount specified as being 2 the modified penalty for the offence referred to in the 3 notice is to be the amount that was the prescribed 4 modified penalty at the time the alleged offence is 5 believed to have been committed. 6 (5) The modified penalty that may be prescribed for an 7 offence is not to exceed 20% of the maximum penalty 8 that could be imposed for that offence by a court. 9 (6) An authorised person may, in a particular case, extend 10 the period of 28 days within which the modified 11 penalty may be paid and the extension may be allowed 12 whether or not the period of 28 days has elapsed. 13 (7) An authorised person may, within 60 days after an 14 infringement notice has been given and whether or not 15 the modified penalty has been paid, withdraw the 16 infringement notice by sending to the alleged offender 17 a notice in the prescribed form stating that the 18 infringement notice has been withdrawn. 19 (8) Where an infringement notice is withdrawn after the 20 modified penalty has been paid, the amount is to be 21 refunded. 22 (9) Subsection (10) applies if the modified penalty 23 specified in an infringement notice has been paid 24 within 28 days or such further time as is allowed and 25 the notice has not been withdrawn. 26 (10) If this subsection applies it prevents the bringing of 27 proceedings and the imposition of penalties to the same 28 extent that they would be prevented if the alleged 29 offender had been convicted by a court of, and 30 punished for, the alleged offence. 31 (11) Payment of a modified penalty is not to be regarded as 32 an admission for the purposes of any proceedings, 33 whether civil or criminal. page 74 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 84 1 (12) Unless subsection (8) requires it to be refunded, an 2 amount paid as a modified penalty is to be dealt with as 3 if it were a penalty imposed by a court as a penalty for 4 an offence. 5 (13) The Commissioner may, in writing, appoint persons or 6 classes of persons to be authorised persons for the 7 purposes of subsection (2), (3), (6) or (7) or for the 8 purposes of 2 or more of those subsections, but a 9 person who is authorised to give infringement notices 10 under subsection (2) is not eligible to be an authorised 11 person for the purposes of any of the other subsections. 12 (14) The Commissioner is to issue to each person who is 13 authorised to give infringement notices under this 14 section a certificate of that person's authorisation, and 15 the authorised person is to produce the certificate 16 whenever required to do so by a person to whom an 17 infringement notice has been or is about to be given. 18 19 84. Section 88 amended 20 In section 88(2): 21 (a) delete paragraphs (b), (c) and (d); 22 (b) in paragraph (e) delete "$500," and insert: 23 24 $5 000 25 26 (c) after paragraph (a) insert: 27 28 and 29 page 75 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 85 1 85. Section 90 amended 2 In section 90(2) delete "his" and insert: 3 4 the Minister's 5 6 86. Part VII inserted 7 After section 90 insert: 8 9 Part VII -- Savings and transitional provisions 10 relating to the Residential Tenancies Amendment 11 Act 2011 12 Division 1 -- Contracting out 13 91. Savings in relation to contracting out of standard 14 terms 15 (1) In this section -- 16 commencement day means the day on which the 17 Residential Tenancies Amendment Act 2011 18 section 80(3) comes into operation. 19 (2) If a residential tenancy agreement subsisting 20 immediately before the commencement day contains a 21 provision referred to in section 82(3), as in force 22 immediately before that day, then that provision of the 23 agreement continues to have effect after the 24 commencement day despite the deletion of 25 section 82(3) by section 80(3) of the Residential 26 Tenancies Amendment Act 2011. page 76 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 86 1 Division 2 -- Security bonds held in AFI 2 92. Terms used 3 In this Part -- 4 authorised financial institution or AFI means -- 5 (a) an ADI (authorised deposit taking institution) 6 as defined in the Banking Act 1959 7 (Commonwealth) section 5; or 8 (b) a bank constituted by a law of a State, a 9 Territory or the Commonwealth; or 10 (c) any other body, 11 that was prescribed, or that belongs to a class of bodies 12 that was prescribed, for the purposes of the definition 13 of that term under Schedule 1 clause 1 as in force 14 immediately before the commencement day; 15 commencement day means the day on which the 16 Residential Tenancies Amendment Act 2011 section 87 17 comes into operation; 18 security bond held in an AFI means an amount of a 19 security bond held in an AFI and that was so held 20 immediately before the commencement day. 21 93. All security bonds to be transferred to the bond 22 administrator after renewal of agreement or within 23 18 months 24 (1) A lessor under a residential tenancy agreement must 25 take all reasonable steps to ensure that a security bond 26 held in an AFI that was paid in relation to the 27 agreement is paid from the account in accordance with 28 subsection (2) -- 29 (a) if the agreement is renewed -- as soon as 30 practicable after the renewal; or page 77 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 86 1 (b) in any other case -- not later than 18 months 2 after the commencement day. 3 Penalty: a fine of $5 000. 4 (2) The security bond is to be paid either -- 5 (a) to the tenant; or 6 (b) to the bond administrator, in which case 7 section 29(4)(b), (c) and (d) apply, with all 8 necessary changes, to the payment. 9 94. Requirements for AFI holding security bonds 10 (1) An AFI must ensure that the following records are 11 kept, in a form approved by the Minister, in relation to 12 each security bond held in the AFI -- 13 (a) the name and number of the account in which 14 the security bond is held in the AFI; 15 (b) the amount of the security bond; 16 (c) the date the security bond was paid into the 17 account. 18 (2) The AFI must hold a security bond on the following 19 terms -- 20 (a) interest at a rate not less than the prescribed rate 21 must accrue on the amount of the bond for the 22 period during which it is held by the AFI; 23 (b) the amount of interest accrued at the prescribed 24 rate must be paid, at such times as are 25 prescribed, to the Rental Accommodation 26 Account and if interest is paid at a rate 27 exceeding the prescribed rate, the amount of 28 interest accrued above the prescribed rate must 29 be paid, at such times as are prescribed, to the 30 person who paid the bond; 31 (c) the AFI may deduct from a payment to the 32 credit of the Rental Accommodation Account page 78 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 86 1 or from a payment to a tenant under 2 paragraph (b) an amount not exceeding the 3 amount of the fee as is prescribed in respect of 4 a payment of that kind; 5 (d) the amount of the security bond must be paid 6 out in accordance with section 96. 7 (3) In regulations made under section 88 the prescribed 8 rate referred to in subsection (2)(a) and (b) may be 9 prescribed by reference to a market rate indicator 10 specified in the regulations. 11 95. Power of Commissioner to obtain information 12 relating to AFI security bond accounts 13 (1) Where a security bond is held in an AFI, the 14 Commissioner may require the AFI to give to the 15 Commissioner such information as the Commissioner 16 requires in relation to an account in which the security 17 bond is held, including information as to the balances 18 of and amounts of interest paid on that account. 19 (2) A requirement under subsection (1) -- 20 (a) must be given by notice in writing to the AFI; 21 and 22 (b) must specify the time at or within which the 23 information is to be given; and 24 (c) may, by its terms, require that the information 25 be -- 26 (i) given in writing; and 27 (ii) certified as correct by a person who is 28 registered as an auditor, or taken to be 29 registered as an auditor, under the 30 Corporations Act 2001 31 (Commonwealth) Part 9.2 and is 32 specified in the requirement; and page 79 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 86 1 (iii) given at or sent or delivered to any place 2 specified in the requirement; and 3 (iv) sent or delivered by any means specified 4 in the requirement; and 5 (v) given on oath or affirmation or by 6 statutory declaration; 7 and 8 (d) must state that the AFI is required under this 9 Act to give the information. 10 (3) A person must not, without reasonable excuse, refuse 11 or fail to comply with a requirement under 12 subsection (1). 13 Penalty: a fine of $3 000. 14 (4) A person must not give information in response to a 15 requirement under subsection (1) that the person knows 16 is false or misleading in a material particular. 17 Penalty: a fine of $3 000. 18 (5) It is a defence in proceedings for an offence against 19 subsection (3) for the person to show that -- 20 (a) the notice under subsection (2)(a) did not state 21 that the person was required under this Act to 22 give the information; or 23 (b) the time specified in the requirement did not 24 give the person sufficient notice to enable 25 compliance with the requirement. 26 (6) Where a person is required to give information under 27 subsection (1), the person cannot refuse to comply with 28 that requirement on the ground that the information 29 may tend to incriminate the person or render the person 30 liable to any penalty. 31 (7) Despite subsection (6), information given under this 32 section is not admissible in evidence in any page 80 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 86 1 proceedings against the person other than proceedings 2 in respect of an offence against subsection (4). 3 96. Disposal of security bond held in AFIs 4 (1) Where a security bond is held in an AFI in the name of 5 a real estate agent under the Real Estate and Business 6 Agents Act 1978, the real estate agent must on receipt 7 of -- 8 (a) an application in a form approved by the 9 Minister signed by all parties to the residential 10 tenancy agreement to which the bond relates; or 11 (b) a copy of an order under Schedule 1 clause 8, 12 pay from the account the amount of the bond, or where 13 subsection (4) applies part of that amount, in 14 accordance with the application or the order. 15 (2) A real estate agent must pay an amount under 16 subsection (1) -- 17 (a) within the period, if any, specified in the 18 relevant application or order; or 19 (b) if no such period is specified, as soon as 20 practicable but, in any case, not later than 21 7 days after receipt of the application or copy of 22 the order. 23 Penalty: a fine of $5 000. 24 (3) Where a security bond is held in an AFI in an account 25 in the names of the lessor and the tenant entitled 26 "tenancy bond account", the AFI that holds the account 27 must on receipt of -- 28 (a) an application in a form approved by the 29 Minister signed by all parties to the residential 30 tenancy agreement to which the bond relates; or page 81 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 86 1 (b) a copy of an order under Schedule 1 clause 8, 2 pay the amount of the bond, or where subsection (4) 3 applies part of that amount, in accordance with the 4 application or the order. 5 (4) An application under subsection (1)(a) or (3)(a) may 6 relate to part of the amount of a security bond. 7 (5) Schedule 1 clause 5(3) applies in respect of an 8 application referred to in subsection (1) or (3) as if it 9 were an application referred to in clause 5(1) of that 10 Schedule. 11 (6) Schedule 1 clause 5(4) applies, with all necessary 12 changes, in respect of a security bond held in an AFI. 13 (7) Regulations made under section 88 may authorise the 14 payment of an unclaimed bond to the credit of the 15 Rental Accommodation Account. 16 Division 3 -- Residential tenancy databases 17 97. Application of Part VIA to listings existing before 18 commencement 19 (1) In this section -- 20 commencement day means the day on which the 21 Residential Tenancies Amendment Act 2011 section 96 22 comes into operation. 23 (2) For the period of 3 months from the commencement 24 day, Part VIA applies only in respect of personal 25 information that is listed after that day. 26 (3) A term used in subsection (2) that is used in Part VIA 27 has the same meaning in that subsection as it has in that 28 Part. 29 page 82 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 87 1 87. Schedule 1 amended 2 (1) Delete the heading to Schedule 1 and the reference after it and 3 insert: 4 5 Schedule 1 -- Provisions relating to holding and 6 disposal of bonds and income from bonds 7 [s. 3, 7(3), 12, 29(4), (7), (8), 59D(6), 79(5), (6), (11) and 80A(8)] 8 9 (2) Delete the heading to Schedule 1 Part A and insert: 10 11 Division 1 -- General 12 13 (3) In Schedule 1 clause 1 delete the definitions of: 14 authorised financial institution 15 bond administrator 16 (4) In Schedule 1 clause 1 in the definition of authorised agent: 17 (a) delete "his" and insert: 18 19 the bond administrator's 20 21 (b) delete "Gazette;" and insert: 22 23 Gazette. 24 25 (5) Delete Schedule 1 clause 2. page 83 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 87 1 (6) In Schedule 1 clause 3(2): 2 (a) delete "Account --" and insert: 3 4 Account all of the following -- 5 6 (b) delete paragraphs (a) and (aa) and insert: 7 8 (a) all moneys received under section 29(4)(b); 9 (ba) all moneys received pursuant to a court order under 10 section 59D(2); 11 (bb) interest payable to the fund under section 94(2)(b); 12 (bc) amounts payable to the fund under the Residential 13 Parks (Long-stay Tenants) Act 2006 sections 75(3) 14 and 92(b); 15 (bd) amounts payable to the fund under the Residential 16 Parks (Long-stay Tenants) Act 2006 section 94(a); 17 18 (c) in paragraph (b) delete "Treasurer; and" and insert: 19 20 Treasurer; 21 22 (7) In Schedule 1 clause 3(3): 23 (a) after "The" insert: 24 25 interest referred to in subclause (2)(bb), the amounts 26 referred to subclause (2)(bc), the 27 28 (b) in paragraph (a) delete "section 79(5) or (6);" and insert: 29 30 section 79(5) or (6) or 80A(8); and 31 page 84 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 87 1 (c) in paragraph (ab) delete "bond agents" and insert: 2 3 authorised agents 4 5 (d) in paragraph (b)(ii) delete "his" and insert: 6 7 the bond administrator's 8 9 (e) in paragraph (c) delete "subclause (5)." and insert: 10 11 subclause (5); and 12 13 (f) after paragraph (c) insert: 14 15 (d) in funding any not-for-profit body, one of the main 16 functions of which is the delivery of free or 17 substantially subsidised legal services to tenants and 18 that is approved by the Minister for the purposes of 19 this paragraph. 20 21 (g) after each of paragraphs (aa) and (ab) insert: 22 23 and 24 25 (8) In Schedule 1 clause 3(4): 26 (a) in paragraph (a) delete "Department" and insert: 27 28 Magistrates Court (Civil Proceedings) Act 2004 29 30 (b) in paragraph (b) delete "the Consolidated Account." and 31 insert: 32 33 an operating account of the Department and the 34 department principally assisting in the page 85 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 87 1 administration of the Magistrates Court (Civil 2 Proceedings) Act 2004 respectively. 3 4 (9) In Schedule 1 clause 3(5): 5 (a) delete "Account he may" and insert: 6 7 Account the Treasurer may, after consulting the Minister, 8 9 (b) delete "for the purpose of public housing in such manner as 10 he may specify." and insert: 11 12 by the Housing Authority as defined in 13 section 71A for the purpose of social housing 14 premises in such manner as the Treasurer might 15 specify. 16 17 (10) In Schedule 1 clause 4: 18 (a) in paragraph (a) delete "Rental Accommodation Account 19 established under clause 3; and" and insert: 20 21 Rental Accommodation Account; and 22 23 (b) in paragraph (b) delete "him" and insert: 24 25 the bond administrator 26 27 (c) in paragraph (b) delete "clause 2(1)(a) --" and insert: 28 29 section 29(4)(b) -- 30 31 (d) in paragraph (b)(ii) delete "clause 5." and insert: 32 33 clause 5; 34 page 86 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 87 1 (e) after paragraph (b) insert: 2 3 (c) in relation to the amount of a tenant compensation 4 bond paid to the bond administrator under 5 section 59D(2) -- 6 (i) show in such records the name and address 7 of the lessor and the tenant in respect of 8 whom, and any residential premises in 9 respect of which, the bond was paid; and 10 (ii) pay out the amount of the bond in 11 accordance with Division 3. 12 13 (f) after paragraph (b) insert: 14 15 and 16 17 (11) Delete the heading to Schedule 1 Part B and insert: 18 19 Division 2 -- Security bonds 20 21 (12) Before Schedule 1 clause 5 insert: 22 23 5A. Security bond moneys to be paid to bond administrator 24 (1) The payment of an amount under section 29(4)(b) must be 25 made as soon as practicable, and in any event within 26 14 days, after the person's receipt of the bond. 27 (2) The payment may be made either directly, including by 28 electronic means, or by lodging the amount with an 29 authorised agent of the bond administrator. 30 page 87 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 87 1 (13) In Schedule 1 clause 5(1): 2 (a) in paragraph (a)(i) before "bond relates" insert: 3 4 security 5 6 (b) in paragraph (a)(ii) delete "his" and insert: 7 8 the bond administrator's 9 10 (c) before "bond," insert: 11 12 security 13 14 (14) In Schedule 1 clause 5(3): 15 (a) delete "party" (each occurrence) and insert: 16 17 tenant 18 19 (b) delete "his" and insert: 20 21 the tenant's 22 23 (15) In Schedule 1 clause 5(4): 24 (a) after "If " insert: 25 26 the bond administrator is satisfied that 27 28 (b) before "bond has" insert: 29 30 security 31 page 88 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 87 1 (c) delete "bond shall" and insert: 2 3 amount of the bond or any remaining portion of that amount 4 must 5 6 (16) Delete Schedule 1 Part C. 7 (17) Delete the heading to Schedule 1 Part D. 8 (18) In Schedule 1 clause 8(3): 9 (a) delete "him" and insert: 10 11 the party 12 13 (b) delete "he" and insert: 14 15 the party 16 17 (19) In Schedule 1 clause 8(4): 18 (a) in paragraph (b) after "that notice," insert: 19 20 or such longer period as the court hearing the 21 application thinks fit, 22 23 (b) in paragraph (b) delete "he" and insert: 24 25 the party 26 27 (c) delete "a competent court" and insert: 28 29 the court 30 page 89 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 87 1 (20) In Schedule 1 clause 8(5) delete "he" and insert: 2 3 the party 4 5 (21) In Schedule 1 clause 8(7)(b) delete "he" and insert: 6 7 the tenant 8 9 (22) In Schedule 1 clause 8(9) delete "or 7(4)". 10 (23) At the end of Schedule 1 insert: 11 12 Division 3 -- Tenant compensation bonds 13 9. Application of Division 14 This Division applies where the bond administrator has been 15 paid a tenant compensation bond in accordance with an 16 order under section 59D(2). 17 10. Disposal of tenant compensation bond to tenant by bond 18 administrator 19 (1) The bond administrator must on receipt of -- 20 (a) an application in a form approved by the 21 Minister -- 22 (i) signed by a tenant to a residential tenancy 23 agreement to which the tenant 24 compensation bond relates; and 25 (ii) lodged, including lodged by facsimile or 26 electronic means, with the bond 27 administrator or the bond administrator's 28 authorised agent; 29 and page 90 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 87 1 (b) a copy of an order -- 2 (i) made under section 15(2)(b) in relation to a 3 failure by a lessor to compensate a tenant 4 for reasonable expenses incurred by the 5 tenant in arranging for urgent repairs to be 6 carried out in accordance with section 43; 7 and 8 (ii) subsequent to the order under 9 section 59D(2), 10 pay the amount of the tenant compensation bond, or where 11 subclause (2) applies part of that amount, in accordance with 12 the application. 13 (2) An application under subclause (1)(a) may relate to part of 14 the amount of a tenant compensation bond. 15 (3) If a tenant is deceased, the signature of the tenant's executor 16 or administrator to an application is sufficient for the 17 purposes of subclause (1)(a), and if a tenant is represented 18 by a manager or administrator under any written law, the 19 signature of the manager or administrator is sufficient for 20 such purposes. 21 (4) A payment under subclause (1) is to be taken to be a 22 payment by the lessor in satisfaction, or part satisfaction as 23 the case may be, of the order referred to in subclause (1)(b). 24 11. Disposal of tenant compensation bond to lessor by bond 25 administrator 26 The bond administrator must on receipt of -- 27 (a) an application in a form approved by the 28 Minister -- 29 (i) signed by the lessor to whom the tenant 30 compensation bond relates; and 31 (ii) lodged, including lodged by facsimile or 32 electronic means, with the bond 33 administrator or the bond administrator's 34 authorised agent; 35 and page 91 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 88 1 (b) a copy of an order made under section 59D(5), 2 pay the amount of the tenant compensation bond, or part of 3 that amount, ordered by the court in accordance with the 4 application. 5 6 Note: The heading to amended Schedule 1 clause 8 is to read: 7 Court may determine disposal of security bond 8 88. Various references to "agreement" amended 9 In the provisions listed in the Table delete "an agreement" and 10 insert: 11 12 a residential tenancy agreement 13 14 Table s. 30(2)(a) s. 33(2) s. 47(2) s. 49(2) s. 49(3) s. 52 s. 57(1) s. 57(2) s. 60(1) (first occurrence) s. 62(1) s. 62(6) s. 62(7) s. 67 s. 68(1) s. 68(3) s. 69(1) s. 69(4) s. 70 s. 71(1) s. 71(5) page 92 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 89 s. 72(4) s. 73(1) s. 73(2) s. 74(1) s. 74(2) s. 75(1) s. 75(2) s. 78(1) s. 79(1) s. 79(2) s. 79(6) s. 80 (each occurrence) 1 89. Various references to "owner" amended 2 In the provisions listed in the Table: 3 (a) delete "An owner" (each occurrence) and insert: 4 5 A lessor 6 7 (b) delete "an owner" (each occurrence) and insert: 8 9 a lessor 10 11 (c) delete "new owner" (each occurrence) and insert: 12 13 new lessor 14 15 (d) delete "the owner" (each occurrence) and insert: 16 17 the lessor 18 page 93 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 89 1 (e) delete "owner's" (each occurrence) and insert: 2 3 lessor's 4 5 Table s. 7(3)(b), (c) s. 15(1) s. 27(2)(b) s. 30(1) s. 30(2) s. 30(3) s. 31(1) s. 31(3) s. 32(3)(c), (d) s. 32(6) s. 33(2) s. 34(1) s. 38(1)(b) s. 41 s. 47(1)(b) s. 47(2)(a), (b), (c) s. 48 s. 49(1)(c) s. 49(2)(a), (b) s. 52 s. 60(1)(a), (d), (g) s. 62(1) s. 62(2) s. 62(4)(b) s. 62(5)(a), (b) s. 65(1)(a), (b) s. 65(2) s. 66 s. 68(1) s. 69(1)(b) s. 69(2) s. 71(1) page 94 Residential Tenancies Amendment Bill 2011 General amendments Part 2 s. 89 s. 71(2)(a), (b) s. 71(3)(a), (b)(i), (ii), (iii) s. 71(4) s. 72(3)(a)(i), (b)(i) s. 73(1) s. 75(1) s. 76(1) s. 76(2) s. 78(1) s. 78(2) s. 79(1) s. 79(2) s. 79(3) s. 79(4) s. 79(6) s. 79(7) s. 79(8) s. 79(9) s. 79(10) s. 79(14) s. 79(15) s. 85(5) s. 85(6) Sch. 1 cl. 4(b)(i) Sch. 1 cl. 8(1) 1 Note: The headings to the amended sections listed in the Table are to read 2 as set out in the Table. 3 Table Amended section Section heading s. 42 Lessor's responsibility for cleanliness and repairs s. 46 Lessor's right of entry s. 48 Lessor to bear outgoings in respect of premises s. 62 Notice of termination by lessor upon ground of breach of term of agreement page 95 Residential Tenancies Amendment Bill 2011 Part 2 General amendments s. 89 Amended section Section heading s. 65 Termination by lessor where section 32 invoked s. 66 Notice by lessor not waived by acceptance of rent s. 69 Notice of termination by lessor or tenant where agreement frustrated s. 71 Application by lessor for termination and order for possession s. 75 Termination of agreement for breach by lessor s. 76 Compensation to lessor for holding over s. 78 Right of lessor to compensation where tenant abandons premises page 96 Residential Tenancies Amendment Bill 2011 Amendments relating to terminating social housing tenancy Part 3 agreements s. 90 1 Part 3 -- Amendments relating to terminating social 2 housing tenancy agreements 3 90. Section 3 amended 4 In section 3 insert in alphabetical order: 5 6 social housing premises has the meaning given in 7 section 71A; 8 social housing provider has the meaning given in 9 section 71A; 10 social housing tenancy agreement has the meaning 11 given in section 71A; 12 13 91. Section 60 amended 14 In section 60(1)(c) delete "74" and insert: 15 16 74, 75A 17 18 92. Part V Division 3 inserted 19 After section 70 insert: 20 21 Division 3 -- Special provisions about terminating 22 social housing tenancy agreements 23 Subdivision 1 -- Preliminary 24 71A. Terms used 25 In this Division -- 26 criteria means the criteria approved under section 71E; page 97 Residential Tenancies Amendment Bill 2011 Part 3 Amendments relating to terminating social housing tenancy agreements s. 92 1 Housing Authority means the Housing Authority 2 referred to in the Housing Act 1980 section 6(4); 3 Minister for Housing means the Minister to whom the 4 administration of the Housing Act 1980 is committed; 5 social housing premises means residential premises let 6 by a social housing provider under a social housing 7 tenancy agreement, but does not include any premises 8 that are excluded by regulation from the ambit of this 9 definition; 10 social housing provider means any of the following -- 11 (a) the Housing Authority; 12 (b) a body or person prescribed, or of a class 13 prescribed, for the purposes of this definition; 14 social housing tenancy agreement means a residential 15 tenancy agreement in respect of social housing 16 premises, but does not include any agreement that is 17 excluded by regulation from the ambit of this 18 definition. 19 71B. Application of Division 20 This Division does not limit the operation of the other 21 provisions of this Part in relation to residential tenancy 22 agreements that are social housing tenancy agreements. 23 Subdivision 2 -- Notice of termination where tenant not 24 eligible for social housing premises 25 71C. Notice of termination by lessor on ground that 26 tenant not eligible for social housing premises 27 A lessor under a social housing tenancy agreement may 28 give notice of termination of the agreement to the 29 tenant on the ground that the lessor has determined, as 30 the result of an assessment carried out under 31 section 71D, that the tenant is not eligible to reside in page 98 Residential Tenancies Amendment Bill 2011 Amendments relating to terminating social housing tenancy Part 3 agreements s. 92 1 social housing premises, or to reside in the class of 2 social housing premises to which the agreement relates. 3 71D. Assessment of tenants eligibility for social housing 4 premises 5 (1) In carrying out an assessment of the eligibility of a 6 tenant under a social housing tenancy agreement (the 7 agreement) to reside in social housing premises, or to 8 reside in the class of social housing premises to which 9 the agreement relates, the lessor is to apply the criteria 10 approved under section 71E for the purposes of this 11 Subdivision. 12 (2) The lessor may request the tenant to provide any 13 information that is reasonably required to enable the 14 lessor to determine whether the tenant meets the 15 criteria for the purposes of an assessment under this 16 section. 17 (3) If the tenant refuses to provide any such information to 18 the lessor, the lessor may determine, without further 19 inquiry, that the tenant is not eligible to reside in social 20 housing premises, or to reside in the class of social 21 housing premises to which the agreement relates. 22 (4) In the case of a social housing tenancy agreement that 23 creates a tenancy for a fixed term, an assessment under 24 this section may not be carried out prior to 6 months 25 before the end of the term. 26 71E. Criteria for assessing eligibility of tenants for social 27 housing premises under section 71D 28 (1) The Minister for Housing is to approve criteria for the 29 purposes of this Subdivision. 30 (2) The criteria may differ from the criteria used to assess 31 a person's eligibility to commence residing in social page 99 Residential Tenancies Amendment Bill 2011 Part 3 Amendments relating to terminating social housing tenancy agreements s. 92 1 housing premises, or in a particular class of social 2 housing premises. 3 (3) The criteria must not relate to whether or not a tenant 4 has complied with any term of a residential tenancy 5 agreement. 6 (4) The criteria must be made publicly available. 7 (5) A copy of the criteria must be provided, on request, to 8 any tenant under a social housing tenancy agreement 9 free of charge and to other persons either free of charge 10 or on payment of the reasonable cost incurred in 11 copying the criteria. 12 71F. Review of decision to give notice on ground that 13 tenant not eligible for social housing premises 14 (1) Before giving notice of termination of a social housing 15 tenancy agreement to a tenant on the ground referred to 16 in section 71C, the lessor must advise the tenant of the 17 decision to do so by notice in writing. 18 (2) A notice given under this section must -- 19 (a) contain particulars of the reasons why the 20 tenant is no longer considered eligible to reside 21 in the premises; and 22 (b) state that the tenant may apply to the lessor for 23 a review of the decision within 30 days after the 24 notice is given and give particulars of how such 25 an application may be made; and 26 (c) state that the tenant is entitled to make 27 representations to the lessor in writing, or (if 28 the tenant wishes) orally, as to why the 29 agreement should not be terminated. 30 (3) The tenant may, in accordance with the notice -- 31 (a) apply to the lessor for a review of the decision; 32 and page 100 Residential Tenancies Amendment Bill 2011 Amendments relating to terminating social housing tenancy Part 3 agreements s. 92 1 (b) make representations in writing, or (if the 2 tenant wishes) orally, to the lessor as to why the 3 agreement should not be terminated. 4 (4) If the tenant applies to the lessor for a review under this 5 section, the lessor must review the decision, in 6 accordance with any procedures approved by the 7 Minister for Housing for the purposes of this section, 8 and consider any representations made by the tenant. 9 (5) After the review is carried out, the lessor may -- 10 (a) give notice of termination of the agreement on 11 the ground referred to in section 71C; or 12 (b) advise the tenant, by notice in writing, that the 13 lessor has decided not to give notice of 14 termination of the agreement. 15 71G. Time periods to be observed where notice of 16 termination given under this Subdivision 17 (1) A notice of termination of a social housing tenancy 18 agreement cannot be given to a tenant on the ground 19 referred to in section 71C before the later of the 20 following -- 21 (a) the end of the 30 day period within which the 22 tenant may apply for a review under 23 section 71F of the decision to give notice of 24 termination; 25 (b) the end of any such review carried out in 26 respect of that decision. 27 (2) The notice of termination cannot specify as the day on 28 which vacant possession of the premises is to be 29 delivered up to the lessor a day that is earlier than -- 30 (a) in the case of a social housing tenancy 31 agreement that creates a tenancy for a fixed 32 term, 60 days after the day on which the notice page 101 Residential Tenancies Amendment Bill 2011 Part 3 Amendments relating to terminating social housing tenancy agreements s. 92 1 is given or the day the term of the agreement 2 ends, whichever is the later; or 3 (b) in any other case, 60 days after the day on 4 which the notice of termination is given. 5 Subdivision 3 -- Notice of termination where tenant offered 6 alternative social housing premises 7 71H. Notice of termination by lessor where tenant offered 8 alternative social housing premises 9 A lessor under a social housing tenancy agreement may 10 give notice of termination of the agreement (the 11 existing agreement) to the tenant on the ground that 12 the lessor has offered to enter into a new social housing 13 tenancy agreement with the tenant in respect of 14 alternative premises to the premises the subject of the 15 existing agreement. 16 71I. Review of decision to give notice on ground that 17 tenant offered alternative social housing premises 18 (1) Before giving notice of termination of a social housing 19 tenancy agreement to a tenant on the ground referred to 20 in section 71H, the lessor must advise the tenant of the 21 decision to do so by notice in writing. 22 (2) The lessor may make the offer to enter into a new 23 social housing tenancy agreement and give notice of 24 the decision at the same time. 25 (3) A notice given under this section must -- 26 (a) contain particulars of the reasons why the lessor 27 wishes the tenant to move to alternative 28 premises; and 29 (b) state that the tenant may apply to the lessor for 30 a review of the decision within 30 days after the page 102 Residential Tenancies Amendment Bill 2011 Amendments relating to terminating social housing tenancy Part 3 agreements s. 92 1 notice is given and give particulars of how such 2 an application may be made; and 3 (c) state that the tenant is entitled to make 4 representations to the lessor in writing, or (if 5 the tenant wishes) orally, as to why the existing 6 agreement should not be terminated. 7 (4) The tenant may, in accordance with the notice -- 8 (a) apply to the lessor for a review of the decision; 9 and 10 (b) make representations in writing, or (if the 11 tenant wishes) orally, to the lessor as to why the 12 existing agreement should not be terminated. 13 (5) If the tenant applies to the lessor for a review under this 14 section, the lessor must review the decision, in 15 accordance with any procedures approved by the 16 Minister for Housing for the purposes of this section, 17 and consider any representations made by the tenant. 18 (6) After the review is carried out, the lessor may -- 19 (a) give notice of termination of the existing 20 agreement on the ground referred to in 21 section 71H; or 22 (b) advise the tenant, by notice in writing, that the 23 lessor has decided not to give notice of 24 termination of the existing agreement; or 25 (c) make a new offer to the tenant to enter into a 26 new social housing tenancy agreement in 27 respect of alternative premises that differ from 28 those the subject of the offer in respect of 29 which the review was carried out. 30 (7) If a new offer is made under subsection (6)(c), 31 subsections (1) to (6) apply in relation to giving notice 32 of termination in connection with the new offer. page 103 Residential Tenancies Amendment Bill 2011 Part 3 Amendments relating to terminating social housing tenancy agreements s. 92 1 (8) If the situation referred to in subsection (7) applies, the 2 lessor is required to give a second notice, and the 3 tenant is entitled to a second review, under this section, 4 however, the lessor is not required to give any further 5 notice, and the tenant is not entitled to any further 6 review, under this section in relation to giving notice of 7 termination following a second review. 8 71J. Time periods to be observed where notice of 9 termination given under this Subdivision 10 (1) A notice of termination of a social housing tenancy 11 agreement cannot be given to a tenant on the ground 12 referred to in section 71H before the later of the 13 following -- 14 (a) the end of the 30 day period within which the 15 tenant may apply for any review under 16 section 71I of the decision to give the notice of 17 termination; 18 (b) the end of any such review carried out in 19 respect of that decision. 20 (2) Despite subsection (1), if the lessor and tenant enter 21 into a new social housing tenancy agreement before the 22 end of that 30 day period or any such review, the notice 23 of termination may be given on or after the day on 24 which they enter into the new agreement. 25 (3) The notice of termination cannot specify a day earlier 26 than 60 days after the day on which the notice is given 27 as the day on which vacant possession of the premises 28 the subject of the existing agreement is to be delivered 29 up to the lessor, unless it specifies an earlier day to 30 which the tenant has consented. 31 (4) The notice of termination is ineffective unless the 32 alternative premises in connection with which the 33 notice of termination is given are available for page 104 Residential Tenancies Amendment Bill 2011 Amendments relating to terminating social housing tenancy Part 3 agreements s. 93 1 occupation no later than 7 days before the date 2 specified in the notice as the day on which vacant 3 possession is to be delivered up to the lessor. 4 (5) In the case of a social housing tenancy agreement that 5 creates a tenancy for a fixed term, the notice of 6 termination is not ineffective merely because a day 7 earlier than the day on which the term ends is specified 8 as the day on which vacant possession is to be 9 delivered up to the lessor. 10 11 93. Section 71 amended 12 (1) In section 71(2): 13 (a) in paragraph (b) after "Act," insert: 14 15 other than a notice given by a lessor on a 16 ground referred to in section 71C or 71H, 17 18 (b) in paragraph (b) delete "agreement." and insert: 19 20 agreement; and 21 22 (c) after paragraph (b) insert: 23 24 (c) where the notice was given by a lessor upon a 25 ground referred to in section 71C or 71H, in 26 respect of the relevant matters referred to in 27 subsection (3A). 28 page 105 Residential Tenancies Amendment Bill 2011 Part 3 Amendments relating to terminating social housing tenancy agreements s. 93 1 (2) After section 71(2) insert: 2 3 (3A) The matters in respect of which the court is to be 4 satisfied for the purposes of subsection (2)(c) in respect 5 of a social housing tenancy agreement are -- 6 (a) where the notice was given by the lessor upon a 7 ground referred to in section 71C, that the 8 tenant is not eligible to reside in social housing 9 premises, or to reside in the class of social 10 housing premises to which the agreement 11 relates under the criteria approved under 12 section 71E for the purposes of Division 3 13 Subdivision 2; or 14 (b) where the notice was given by the lessor upon a 15 ground referred to in section 71H, that the 16 lessor has offered to enter into a new social 17 housing tenancy agreement with the tenant in 18 respect of alternative premises to the premises 19 the subject of the existing agreement and those 20 alternative premises (which might or might not 21 be the same as the premises in connection 22 which the notice was given) are available for 23 occupation by the tenant. 24 (3B) The court is not to make an order terminating a social 25 housing tenancy agreement on a ground referred to in 26 section 71C or 71H unless it is satisfied that -- 27 (a) any notice required to be given under 28 section 71F or 71I before giving notice of 29 termination was given and that it was given in 30 accordance with that section; and 31 (b) any review required to be carried out under 32 section 71F or 71I was carried out and that it 33 was carried out in accordance with that section. page 106 Residential Tenancies Amendment Bill 2011 Amendments relating to terminating social housing tenancy Part 3 agreements s. 94 1 (3C) Without limiting the obligations of the court under 2 subsection (2), in considering the circumstances of a 3 case concerning social housing premises under that 4 provision, the court, in addition to having regard to the 5 circumstances of the tenant and other circumstances of 6 the case, is to have regard to such of the following 7 matters as may be relevant -- 8 (a) any serious adverse effects the tenancy has had 9 on neighbouring residents or other persons; 10 (b) whether any breach of the residential tenancy 11 agreement was a serious one, and whether, 12 given the behaviour or likely behaviour of the 13 tenant, a failure to terminate the agreement 14 would subject, or continue to subject, 15 neighbouring residents or any persons or 16 property to unreasonable risk; 17 (c) the lessor's responsibility to its other tenants; 18 (d) whether the tenant, wilfully or otherwise, is or 19 has been in breach of an order of the court; 20 (e) the history of the tenancy concerned, including, 21 if the tenant is a tenant under a social housing 22 tenancy agreement, any prior tenancy of the 23 tenant arising under any such agreement. 24 25 94. Section 73A inserted 26 After section 72 insert: 27 28 73A. Notice of termination not required in certain cases 29 An application under section 73, 74, 75A or 75 may be 30 made whether or not notice of termination has been 31 given. 32 page 107 Residential Tenancies Amendment Bill 2011 Part 3 Amendments relating to terminating social housing tenancy agreements s. 95 1 95. Section 75A inserted 2 After section 74 insert: 3 4 75A. Termination of social housing tenancy agreement 5 due to objectionable behaviour 6 (1) A competent court may, upon application by the lessor 7 under a social housing tenancy agreement, terminate 8 the agreement if it is satisfied that the tenant has -- 9 (a) used the social housing premises, or caused or 10 permitted the social housing premises to be 11 used, for an illegal purpose; or 12 (b) caused or permitted a nuisance by the use of the 13 social housing premises; or 14 (c) interfered, or caused or permitted any 15 interference, with the reasonable peace, comfort 16 or privacy of any person who resides in the 17 immediate vicinity of the premises, 18 and that the behaviour justifies terminating the 19 agreement. 20 (2) The court may, on an application made under this 21 section, make such other orders or give such other 22 directions as the court in the circumstances of the case 23 thinks fit, including, if there has been a breach of the 24 agreement, making any order that the court may make 25 under section 15. 26 (3) In deciding if the behaviour justifies terminating the 27 agreement, or making any order or giving any direction 28 referred to in subsection (2), the court may have regard 29 to whether the behaviour was recurrent and, if it was 30 recurrent, the frequency of the recurrences. 31 (4) Subsection (3) does not limit the issues to which the 32 court may have regard. page 108 Residential Tenancies Amendment Bill 2011 Amendments relating to terminating social housing tenancy Part 3 agreements s. 95 1 (5) Where a court terminates a social housing tenancy 2 agreement under this section, it must also make an 3 order for possession of the social housing premises and 4 must specify a day as from which the orders are to 5 operate that it considers, in the circumstances of the 6 case, appropriate. 7 (6) For the purposes of section 16(1), an order made by the 8 court under subsection (2) is to be taken to have been 9 made under section 15(2). 10 page 109 Residential Tenancies Amendment Bill 2011 Part 4 Amendments relating to residential tenancy databases s. 96 1 Part 4 -- Amendments relating to residential 2 tenancy databases 3 96. Part VIA inserted 4 After section 81 insert: 5 6 Part VIA -- Residential tenancy databases 7 Division 1 -- Preliminary 8 82A. Terms used 9 In this Part -- 10 agent, of a lessor, means a person employed, or 11 otherwise authorised, by the lessor to act as the lessor's 12 agent; 13 database means a system, device or other thing used 14 for storing information, whether electronically or in 15 some other form; 16 database operator means an entity that operates a 17 residential tenancy database; 18 inaccurate, in relation to personal information in a 19 residential tenancy database, includes information that 20 is inaccurate because -- 21 (a) the information indicates that the person owes a 22 lessor an amount that is more than the security 23 bond for a residential tenancy agreement; and 24 (b) the amount owed was paid to the lessor more 25 than 3 months after the amount became due; 26 list, personal information about a person in a residential 27 tenancy database -- 28 (a) means -- 29 (i) to enter the personal information into 30 the database; or page 110 Residential Tenancies Amendment Bill 2011 Amendments relating to residential tenancy databases Part 4 s. 96 1 (ii) to give the personal information to a 2 database operator or someone else for 3 entry into the database; 4 and 5 (b) includes to amend personal information about a 6 person in the database to include additional 7 personal information about the person; 8 out-of-date, in relation to personal information in a 9 residential tenancy database, means the information is 10 no longer accurate because -- 11 (a) for a listing made on the basis the person owes 12 a lessor an amount that is more than the 13 security bond for a residential tenancy 14 agreement -- the amount owed was paid to the 15 lessor within 3 months after the amount became 16 due; or 17 (b) for a listing made on the basis a court has made 18 an order terminating the residential tenancy 19 agreement -- the order has been set aside on 20 appeal; 21 personal information means information (including an 22 individual's name) or an opinion, whether true or not, 23 about an individual whose identity is apparent, or can 24 reasonably be ascertained, from the information or 25 opinion; 26 residential premises includes a long-stay site in a 27 residential park as those terms are defined in the 28 Residential Parks (Long-stay Tenants) Act 2006; 29 residential tenancy agreement includes a long-stay 30 agreement as defined in the Residential Parks 31 (Long-stay Tenants) Act 2006; page 111 Residential Tenancies Amendment Bill 2011 Part 4 Amendments relating to residential tenancy databases s. 96 1 residential tenancy database means a database -- 2 (a) containing personal information -- 3 (i) relating to, or arising from, the 4 occupation of residential premises under 5 a residential tenancy agreement; or 6 (ii) entered into the database for reasons 7 relating to, or arising from, the 8 occupation of residential premises under 9 a residential tenancy agreement; 10 and 11 (b) the purpose of which is for use by lessors or 12 agents of lessors for checking a person's 13 tenancy history to decide whether a residential 14 tenancy agreement should be entered into with 15 the person; 16 tenant includes a long-stay tenant as defined in the 17 Residential Parks (Long-stay Tenants) Act 2006. 18 82B. Application of Part 19 This Part does not apply to a residential tenancy 20 database kept by an entity (including a government 21 department of this State, another State or a Territory) 22 for use only by that entity or its officers, employees or 23 agents. 24 Division 2 -- Tenancy database information 25 82C. Notice of usual use of database 26 (1) This section applies if -- 27 (a) a person (the applicant) applies to a lessor, 28 whether or not through the lessor's agent, to 29 enter into a residential tenancy agreement; and 30 (b) the lessor or, if the application is made through 31 the lessor's agent, the lessor or agent usually page 112 Residential Tenancies Amendment Bill 2011 Amendments relating to residential tenancy databases Part 4 s. 96 1 uses one or more residential tenancy databases 2 for deciding whether a residential tenancy 3 agreement should be entered into with a person. 4 (2) The lessor or agent must, when the application is made, 5 give the applicant written notice stating the 6 following -- 7 (a) the name of each residential tenancy database 8 the lessor or agent usually uses, or may use, for 9 deciding whether a residential tenancy 10 agreement should be entered into with a person; 11 (b) that the reason the lessor or agent uses a 12 residential tenancy database mentioned in 13 paragraph (a) is for checking an applicant's 14 tenancy history; 15 (c) for each residential tenancy database mentioned 16 in paragraph (a), how persons may contact the 17 database operator who operates the database 18 and obtain information from the operator. 19 Penalty: a fine of $5 000. 20 (3) Subsection (2) applies in relation to a residential 21 tenancy database whether or not the lessor or agent 22 intends to use the database for deciding whether a 23 residential tenancy agreement should be entered into 24 with the applicant. 25 (4) However, the lessor or agent is not required to give the 26 written notice mentioned in subsection (2) if a written 27 notice stating the matters mentioned in the subsection 28 was given to the applicant not more than 7 days before 29 the application was made. page 113 Residential Tenancies Amendment Bill 2011 Part 4 Amendments relating to residential tenancy databases s. 96 1 82D. Notice of listing if database used 2 (1) This section applies if -- 3 (a) a person (the applicant) applies to a lessor, 4 whether or not through the lessor's agent, to 5 enter into a residential tenancy agreement; and 6 (b) the lessor or, if the application is made through 7 the lessor's agent, the lessor or agent uses a 8 residential tenancy database for checking 9 whether personal information about the 10 applicant is in the database; and 11 (c) personal information about the applicant is in 12 the database. 13 (2) The lessor or agent must, as soon as possible but within 14 7 days after using the database, give the applicant a 15 written notice stating -- 16 (a) the name of the database; and 17 (b) that personal information about the applicant is 18 in the database; and 19 (c) the name of each person who listed the personal 20 information in the database; and 21 (d) how and in what circumstances the applicant 22 can have the personal information removed or 23 amended under this Part. 24 Penalty: a fine of $5 000. 25 (3) However, subsection (2)(c) requires the written notice 26 to state the name of a person only if the person is 27 identified in the residential tenancy database as the 28 person who listed the personal information in the 29 database. page 114 Residential Tenancies Amendment Bill 2011 Amendments relating to residential tenancy databases Part 4 s. 96 1 82E. Listing can be made only for particular breaches by 2 particular persons 3 (1) A lessor, lessor's agent or database operator must not 4 list personal information about a person in a residential 5 tenancy database unless -- 6 (a) the person was named as a tenant in a 7 residential tenancy agreement that has ended; 8 and 9 (b) the person has breached the agreement; and 10 (c) because of the breach, either -- 11 (i) the person owes the lessor an amount 12 that is more than the security bond for 13 the agreement; or 14 (ii) a court has made an order terminating 15 the residential tenancy agreement; 16 and 17 (d) the personal information -- 18 (i) relates only to the breach; and 19 (ii) is accurate, complete and unambiguous. 20 Penalty: a fine of $5 000. 21 (2) Without limiting subsection (1)(d)(ii), the personal 22 information must indicate the nature of the breach. 23 82F. Further restriction on listing 24 (1) A lessor, lessor's agent or database operator must not 25 list personal information about a person in a residential 26 tenancy database unless the lessor, agent or operator -- 27 (a) has, without charging a fee -- 28 (i) given the person a copy of the personal 29 information; or 30 (ii) taken other reasonable steps to disclose 31 the personal information to the person; 32 and page 115 Residential Tenancies Amendment Bill 2011 Part 4 Amendments relating to residential tenancy databases s. 96 1 (b) has given the person at least 14 days to review 2 the personal information and make 3 submissions -- 4 (i) objecting to its entry into the database; 5 or 6 (ii) about its accuracy, completeness and 7 clarity; 8 and 9 (c) has considered any submissions made. 10 Penalty: a fine of $5 000. 11 (2) Subsection (1) does not apply if the lessor, lessor's 12 agent or database operator cannot locate the person 13 after making reasonable enquiries. 14 (3) Subsection (1)(b) and (c) do not apply -- 15 (a) to information that, at the time of the listing, is 16 contained in publicly available court or tribunal 17 records; or 18 (b) to a listing involving only an amendment of 19 personal information about a person under 20 section 82G. 21 82G. Ensuring quality of listing -- lessor's or agent's 22 obligation 23 (1) This section applies if a lessor or lessor's agent who 24 lists personal information in a residential tenancy 25 database becomes aware that the information is 26 inaccurate, incomplete, ambiguous or out-of-date. page 116 Residential Tenancies Amendment Bill 2011 Amendments relating to residential tenancy databases Part 4 s. 96 1 (2) The lessor or agent must, within 7 days, give written 2 notice of the following to the database operator who 3 operates the database -- 4 (a) if the information is inaccurate, incomplete or 5 ambiguous -- 6 (i) that the information is inaccurate, 7 incomplete or ambiguous; and 8 (ii) how the information must be amended 9 so that it is no longer inaccurate, 10 incomplete or ambiguous; 11 (b) if the information is out-of-date -- that the 12 information is out-of-date and must be 13 removed. 14 Penalty: a fine of $5 000. 15 (3) The lessor or agent must keep a copy of the written 16 notice for one year after it was given under 17 subsection (2). 18 Penalty: a fine of $5 000. 19 82H. Ensuring quality of listing -- database operator's 20 obligation 21 (1) This section applies if a lessor or agent of a lessor who 22 has listed personal information about a person in a 23 residential tenancy database gives the database 24 operator that operates the database written notice that 25 the personal information must be -- 26 (a) amended in a stated way to make it accurate, 27 complete and unambiguous; or 28 (b) removed. 29 (2) The database operator must amend the personal 30 information in the stated way, or remove the personal 31 information, within 14 days of the notice being given. 32 Penalty: a fine of $5 000. page 117 Residential Tenancies Amendment Bill 2011 Part 4 Amendments relating to residential tenancy databases s. 96 1 82I. Providing copy of personal information listed 2 (1) A lessor or lessor's agent who lists personal 3 information about a person in a residential tenancy 4 database must, if asked in writing by the person, give 5 the person a copy of the information within 14 days 6 after the request is made. 7 Penalty: a fine of $5 000. 8 (2) A database operator must, if asked in writing by a 9 person whose personal information is in the residential 10 tenancy database kept by the operator, give the person 11 a copy of the information within 14 days after the 12 request is made. 13 Penalty: a fine of $5 000. 14 (3) If a lessor or lessor's agent charges a fee for giving 15 personal information under subsection (1), or a 16 database operator charges a fee for giving personal 17 information under subsection (2), the subsection 18 applies only if the fee has been paid. 19 (4) A fee charged by a lessor or lessor's agent for giving 20 personal information under subsection (1) or by a 21 database operator for giving personal information 22 under subsection (2) -- 23 (a) must not be excessive; and 24 (b) must not apply to lodging a request for the 25 information. 26 82J. Disputes about listings 27 (1) A person may apply to a competent court for an order 28 under this section if personal information about the 29 person has been listed in a residential tenancy database. page 118 Residential Tenancies Amendment Bill 2011 Amendments relating to residential tenancy databases Part 4 s. 96 1 (2) The court may make an order under this section if it is 2 satisfied that -- 3 (a) the residential tenancy database includes 4 personal information about the applicant that is 5 inaccurate, incomplete, ambiguous or 6 out-of-date; or 7 (b) the inclusion of the applicant's name or other 8 personal information about the applicant is 9 unjust in the circumstances, having regard to all 10 of the following -- 11 (i) the reason for the listing; 12 (ii) the tenant's involvement in any acts or 13 omissions giving rise to the listing; 14 (iii) any adverse consequences suffered, or 15 likely to be suffered, by the tenant 16 because of the listing; 17 (iv) any other relevant matter. 18 (2) The court may order personal information about a 19 person in a residential tenancy database to be wholly or 20 partly removed, amended in a stated way or not listed 21 in a residential tenancy database. 22 (3) The court must give a copy of the order to the lessor, 23 tenant and database operator. 24 (4) If the court makes an order directing a person other 25 than a lessor or agent to remove, amend or not list 26 information in a residential tenancy database, the court 27 must give a copy of the order to the person. 28 82K. Keeping personal information listed 29 (1) In this section -- 30 national privacy principles means the principles stated 31 in the Privacy Act 1988 (Commonwealth). page 119 Residential Tenancies Amendment Bill 2011 Part 4 Amendments relating to residential tenancy databases s. 96 1 (2) A database operator must not keep personal 2 information about a particular person in the operator's 3 residential tenancy database for longer than -- 4 (a) 3 years; or 5 (b) if, under the national privacy principles, the 6 operator of the database is required to remove 7 the personal information before the end of the 8 3 year period mentioned in paragraph (a) -- the 9 period ending when the information must be 10 removed under the national privacy principles; 11 or 12 (c) if the person -- 13 (i) was a minor as defined in section 14 59A(1) when the information was listed 15 in the database; and 16 (ii) reaches 18 years of age before the end 17 of the 3 year period mentioned in 18 paragraph (a), 19 the period ending when the person reaches 18 20 years of age. 21 Penalty: a fine of $5 000. 22 (3) However, a database operator may keep the person's 23 name in the operator's residential tenancy database for 24 longer than the period stated in subsection (2)(a) or (b) 25 if -- 26 (a) other personal information about the person in 27 the database is attached to the name; and 28 (b) the other personal information is not required to 29 be removed under subsection (2) or another 30 law. page 120 Residential Tenancies Amendment Bill 2011 Amendments relating to residential tenancy databases Part 4 s. 96 1 (4) This section does not limit the operation of another 2 provision of this Part or of another law that requires the 3 removal of the personal information. 4 page 121 Residential Tenancies Amendment Bill 2011 Part 5 Amendments to other Acts Division 1 Disposal of Uncollected Goods Act 1970 amended s. 97 1 Part 5 -- Amendments to other Acts 2 Division 1 -- Disposal of Uncollected Goods Act 1970 amended 3 97. Act amended 4 This Division amends the Disposal of Uncollected Goods 5 Act 1970. 6 98. Schedule amended 7 In the Schedule delete "Section 79 of the Residential Tenancies 8 Act 1987." and insert 9 10 Residential Tenancies Act 1987 sections 79 and 80A. 11 12 Division 2 -- Housing Act 1980 amended 13 99. Act amended 14 This Division amends the Housing Act 1980. 15 100. Section 62G amended 16 (1) In section 62G(1)(b) delete "owner," and insert 17 18 lessor, 19 20 (2) In section 62G(2) delete "owner" and insert 21 22 lessor 23 page 122 Residential Tenancies Amendment Bill 2011 Amendments to other Acts Part 5 Magistrates Court (Civil Proceedings) Act 2004 amended Division 3 s. 101 1 Division 3 -- Magistrates Court (Civil Proceedings) 2 Act 2004 amended 3 101. Act amended 4 This Division amends the Magistrates Court (Civil 5 Proceedings) Act 2004. 6 102. Section 7 amended 7 In section 7(1) in the definition of trader delete "an owner" and 8 insert 9 10 a lessor 11 12 Division 4 -- Rates and Charges (Rebates and Deferments) 13 Act 1992 amended 14 103. Act amended 15 This Division amends the Rates and Charges (Rebates and 16 Deferments) Act 1992. 17 104. Section 29B amended 18 (1) In section 29B(1) delete the definition of owner. 19 (2) In section 29B(1) insert in alphabetical order: 20 21 lessor, in relation to land, has the meaning given in the 22 Residential Tenancies Act 1987 section 3; 23 24 (3) In section 29B(3) delete "the owner" and insert: 25 26 the lessor 27 page 123 Residential Tenancies Amendment Bill 2011 Part 5 Amendments to other Acts Division 5 Residential Parks (Long-stay Tenants) Act 2006 amended s. 105 1 Division 5 -- Residential Parks (Long-stay Tenants) 2 Act 2006 amended 3 105. Act amended 4 This Division amends the Residential Parks (Long-stay 5 Tenants) Act 2006. 6 106. Section 22 amended 7 (1) In section 22(1)(a) delete "a bond agent; or" and insert: 8 9 an authorised agent as defined in the 10 Residential Tenancies Act 1987 Schedule 1 11 clause 1; or 12 13 (2) Delete section 22(2)(a) and insert: 14 15 (a) an account in the name of the agent entitled 16 "tenancy bond trust account", used for the 17 purpose of holding a security bond under this 18 subsection or the Residential Tenancies 19 Act 1987 and for no other purpose; or 20 21 107. Glossary amended 22 (1) In the Glossary delete the definitions of: 23 authorised financial institution 24 bond administrator 25 bond agent 26 Rental Accommodation Fund 27 (2) In the Glossary insert in alphabetical order: 28 29 authorised financial institution has the meaning given in 30 the Residential Tenancies Act 1987 section 92; page 124 Residential Tenancies Amendment Bill 2011 Amendments to other Acts Part 5 Residential Parks (Long-stay Tenants) Act 2006 amended Division 5 s. 108 1 bond administrator means the Commissioner as defined in 2 the Fair Trading Act 2010 section 6; 3 Rental Accommodation Account means the Rental 4 Accommodation Account established under the Residential 5 Tenancies Act 1987 Schedule 1 clause 3; 6 7 108. Various references to "Fund" changed to "Account" 8 In the provisions listed in the Table delete "Fund" and insert: 9 10 Account 11 12 Table s. 51 s. 75(3) s. 76(3) s. 77(1) s. 77(2) s. 92(b) s. 94(a)