Landlord and Tenant (Amendment) Act 1935 (NSW)

LANDLORD AND TENANT

(AMENDMENT) ACT,

An act to amend in certain respects the law relating to landlord and tenant; to amend the Landlord and Tenant (Amendment) Act, 1932, and certain other Acts in certain respects : and for purposes connected there- with. [Assented to, 11th April, 1935.] BE

Act No. 33, 1935.

BE it enacted by the K ing ' s Most Exce l len t b y and wi th the advice a n d consent of t he Legis­

Majes ty ,

la t ive Counci l and Legis la t ive Assembly of N e w South

W a l e s in Pa r l i amen t assembled, and by the au thor i ty of

t h e same, as follows :—

1. (1) This Act may be cited as the " L a n d l o r d and

Tenan t (Amendment) Act, 1935."

(2) This Act shall be read with the Landlord and Tenan t (Amendment) Act, 1932, which Act is in this Act refer red to as the Pr inc ipa l Act.
(3) The Pr inc ipa l Act, as amended by this Act, may be cited as the Landlord and Tenant (Amendment)
Act, 1932-1930.

2 .     The Pr inc ipa l Act is amended—

(a) by omitting from section twenty-eight the word

" t h i r t y - f i v e " and by inser t ing in lieu thereof

the word " t h i r t y - s i x " ;

(b)	by inserting in section thirteen in the definition of " L e a s e " after the word " d e e d " the words " a n d every agreement for such a let t ing and
any tenancy whether at will or o t h e r w i s e " ;
(c)	by inserting at the end of subsection two of section fourteen the following words and sub­ section :—
The following leases shall for the purposes of this P a r t of this Act be deemed to be leases subsist ing on the th i r t ie th day of June , one
thousand nine hundred and th i r t y :—

(a) a lease g ran ted after the th i r t ie th of June , one thousand nine hundred and

day

th i r ty , pu r suan t to an agreement made pr io r to tha t date whether or not such agreement was pu t in wr i t ing and signed by the par t ies so making the same or their agents thereunto lawfully

author ised by w r i t i n g ;

(b) a lease g ran ted after the th i r t ie th day

of June , one thousand nine hundred and thi r ty , whereby there is expressed to be created a t e rm commencing as from a day p r io r to tha t date .

(2A)

(2A) I n the case of any lease b rought within

the opera t ion of this P a r t of this Act by the

amendment made by section two of the Land lo rd and Tenan t (Amendment ) Act, 1935, th i s Part

of this Act shall apply only where the lease is

one of the class re fe r red to in subsection two

of this section and was subsis t ing a t the commencement of the Land lo rd and Tenant (Amendment ) Act, 1935, and where the lessee
under such lease has not t r ans fe r red or ass igned

his in teres t	thereunder .
(d)	by inserting at the end of section fifteen the

following new subsection:—

(6) I n i ts appl icat ion to leases b rought within

the opera t ion of this P a r t of this Act by the

amendment made by section two of the L a n d l o r d
and Tenan t (Amendment) Act, 1935, the reduc­

t ion effected by this section shall da te from the

commencement of P a r t I I I of this Act, a n d the amount by which the rent is so reduced for the
period p r io r to the commencement of the Land ­
lord and Tenan t (Amendment) Act, 1935, may

be deducted by the lessee from any r en t due or

accruing due under the lease or may be set off

p ro t an to agains t the amount payable unde r any judgment recovered by the lessor aga ins t the lessee for ren t expressed to be payable under

the lease, but where the full amount of the rent

expressed to be payable under the lease has, for or on account of such period, been pa id , the amount by which the amount so pa id exceeds

the reduced r en t for such per iod shall not be	otherwise recoverable.
(e)	by inserting at the end of section sixteen the

following new subsect ion:—

(6) I n the case of a lease b rought wi th in the

operat ion of this P a r t of this Act by the amend­

ments made by section two of the L a n d l o r d and

Tenant (Amendment ) Act, 1935—

(a) an application under this section shall be made within three months of the commencement of tha t A c t : and any

order made on such appl icat ion shall

take

take effect on a da te to be fixed by the order , but such date shall not be la te r than the first day of Apr i l , one thousand nine hundred and th i r ty- three , or ear l ier t han the thirty-first day of December, one thousand nine

and

th i r ty - two;

(b)

where an order is made by the court de termining the ren t a t a r a t e lower than tha t provided for in subsection one of section fifteen the amount by which the ren t is so reduced for the per iod p r io r to the da te upon which such o rde r was made may be deducted by the lessee from any ren t due or accruing due under the lease or may be se t off p ro t an to agains t the amount payable under any judgment recovered p r io r to the da te upon which such o r d e r was made by the lessor agains t the lessee for ren t under the lease, but where the full amount of the ren t pay­ able unde r the lease p r io r to the da te upon which such order was made has , for or on account of such period, been paid, the amount by which the amount so pa id exceeds the reduced ren t for such per iod shall not be otherwise recoverable.

3 . The Landlord and Tenan t (Amendment) Act, 1932,

i s amended by inser t ing next af ter section twenty-six

the following new sect ion:— 26A. (1) This section shall apply in the case of	a n y lease subsist ing a t the commencement of the
L a n d l o r d and Tenan t (Amendment) Act, 1935,
where—

(a ) the lease was originally g ran ted or

expressed to be g ran ted for a t e r m of not less than ninety-nine yea r s or is a sub­ lease g ran ted out of or unde r any such

lease ;	and
(b)	the lease does not contain any covenant or s t ipulat ion enforceable by the owner

of

of the land for the payment of ra tes , and where the lease is a sublease of the na tu re re fe r red to in p a r a g r a p h (a) of th is subsection nei ther the head lease nor any such sublease contains any such covenant

or s t ipu la t ion ; and

(c)	the obligation to pay rates is imposed upon the owner of the land by or unde r any Act which commenced after the da te upon which the lease was g r a n t e d ; and
(d)	such obligation was not at the date upon which the lease was granted, imposed upon the owner of the land.

(2) I n the case of every lease to which th is section applies , there shall be implied a covenant by the lessee to pay ra tes .

(3) The covenant implied by subsection two of this section shall be enforceable by the owner of the land against the lessee under any lease to which this section applies as though the same were expressly included in the lease.
(4) W h e r e any lessee makes any payment on account of ra tes , ei ther to the au thor i ty imposing the ra tes or to the owner of the land or to any p r io r lessee, he may recover from any lessee under him such propor t ion of the amount of any such payment as is pa id in respect of the land comprised in the lease of such las tmentioned lessee.

(5) Nothing in this section shall—

(a) be construed to affect any express

covenant or s t ipulat ion re la t ing to the

payment of r a t e s ; or

(b) entitle an owner of the land to recover more than the amount due or pa id in respect of any ra tes .

(6) I n this section the expression " o w n e r "

has the meaning ascribed there to by section four of the Metropol i tan Wate r , Sewerage, and Dra inage Act, 1924-1935, and the expression " r a t e s " includes any ra t e made and levied and any tax, impost or charge imposed by or unde r the Local Government Act, 1919, as amended by subsequent Acts, the Metropol i tan W a t e r , Sewerage, and Dra inage Act,

1924-

1924-1935, or the Sydnev Corporation Act, 1932- 1934, the Sydney Harbour Bridge Act, 1922, as amended by subsequent Acts, the Main Roads Act, 1924-1931, or by or under any Act amending any such Act, or by or under any Act repealed by any of those Acts or by any Act passed after the commence- ment of the Landlord and Tenant (Amendment) Act, 1935, replacing any of those Acts, but does not include any rate or charge levied under any Act relating to the sale of liquor.

(7) This section shall be deemed to have commenced on the first day of April, one thousand nine hundred and thirty-five.