Landlord and Tenant (Amendment) Act 1948 (NSW)
An Act relating to the control of rents of certain premises and the recovery of possession of certain premises; to repeal the Fair Rents Act 1939; to amend the Landlord and Tenant Act of 1899 and certain other Acts; and for purposes connected therewith.
This Act may be cited as the Landlord and Tenant (Amendment) Act 1948.
This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette.
The Fair Rents Act 1939 is hereby repealed.
(Repealed)
(Repealed)
All applications to, and other proceedings before, the Commonwealth Rent Controller under the Commonwealth Regulations which are pending or purport to be pending immediately before the commencement of this Act may be continued before, and may be determined by, the Controller under this Act, and any application pending or purporting to be pending shall be deemed to be an application to the Controller under this Act, and the provisions of this Act shall apply to those applications and proceedings as if they were applications to, or proceedings before, the Controller under this Act.
All proceedings before a Fair Rents Board in this State under the Commonwealth Regulations which are pending or purport to be pending immediately before the commencement of this Act, may be continued before and determined by a Fair Rents Board under this Act, and the provisions of this Act shall apply to those proceedings as if they were proceedings before a Fair Rents Board under this Act.
All proceedings under Part 3 of the Commonwealth Regulations which are pending or purport to be pending immediately before the commencement of this Act may be continued and determined under Part 3 of this Act as if they had been commenced thereunder.
The generality of this section shall not be affected by any saving in any other section of this Act nor shall this section limit any saving in the Interpretation Act of 1897, as amended by subsequent Acts.
This Act shall not bind:
(a) the Crown in right of the Commonwealth or of the State, or
(b) the New South Wales Land and Housing Corporation.
On and from 1 January 1986, the provisions of Parts 2, 3, 4 and 5:
(a) do not apply in respect of prescribed premises unless the premises were the subject of a lease immediately before 1 January 1986, and
(b) cease to apply, and shall not thereafter apply, to any such premises upon vacant possession of the premises being obtained or upon those provisions ceasing to apply to the premises by reason of the operation of section 5A or any other provision of this Act.
A statement signed by the lessee of premises and stating that the lessee did not enter into possession of the premises until on or after 1 January 1986 is admissible in any proceedings arising out of or taken under this Act and, unless evidence is given to the contrary, shall be presumed to be correct.
A statement under this section is not admissible in proceedings unless the lessor of the premises became the lessor after the statement was signed by the lessee.
The provisions of Parts 2, 3, 4 and 5 do not apply in respect of the following prescribed premises, that is to say:
(a) a dwelling-house that was in the course of erection at, or the erection of which commenced after, the sixteenth day of December, one thousand nine hundred and fifty-four,
(b) a residential unit that came into existence on or after the first day of January, one thousand nine hundred and sixty-nine,
(c) a dwelling-house or a residential unit that was, at the first day of January, one thousand nine hundred and sixty-nine, the subject of a lease that is registered under the section that this section replaces as in force at the time when the registration was effected,
(d) a dwelling-house or a residential unit:
(i) of which:
(a) vacant possession was obtained on or after the first day of January, one thousand nine hundred and sixty-nine, or that was occupied personally by the lessor or his or her predecessor in title on or after that day, or
(b) vacant possession was obtained before that day and that has remained vacant from the time when vacant possession was obtained until that day,
(ii) that is the subject of a lease, being a lease, except where the lessee is a company or other body corporate:
(a) the execution of which by the lessee was witnessed by a solicitor instructed and employed independently of the lessor or by a registrar of the Local Court, and
(b) that bears a certificate by that solicitor or registrar of the Local Court that he or she explained the lease to the lessee before it was executed by him or her, and
(c) (Repealed)
(iii) the lease of which is after that day registered in the Department,
(e) a dwelling-house or a residential unit:
(i) of which vacant possession was obtained before the first day of January, one thousand nine hundred and sixty-nine,
(ii) that is the subject of a lease:
(a) that was executed by the lessee before that day,
(b) being a lease, except where the lessee is a company or other body corporate and the lease was executed by the company or other body corporate on or after the tenth day of April, one thousand nine hundred and fifty-eight:
(i) the execution of which by the lessee was witnessed by a solicitor instructed and employed independently of the lessor or by a registrar of the Local Court, and
(ii) that bears a certificate by that solicitor or registrar of the Local Court that he or she explained the lease to the lessee before it was executed by him or her, and
(c) that after that first day of January is registered in the Department, and
(iii) that, had this section not been substituted by the Landlord and Tenant (Amendment) Act 1968 would, upon registration of that lease in the Department immediately after its execution by the lessee, have been exempt from the provisions of Parts 2, 3, 4 and 5 under the section that this section replaces as in force at the time when the lease was executed by the lessee,
(f) a dwelling-house or a residential unit to which the provisions of Parts 2, 3, 4 and 5 have at any time ceased to apply by reason of paragraph (c), (d) or (e).
For the purposes of:
(a) paragraphs (c), (d) and (e) of subsection (1), “lease” does not include a concurrent lease, and
(b) paragraph (c) of subsection (1) “lease” does not include a lease that was or is registered in the Department on or after the twenty-sixth day of November, one thousand nine hundred and sixty-eight, and that was executed by the lessee before the first day of January, one thousand nine hundred and sixty-nine, unless the premises the subject of the lease are premises that, had this section not been substituted by the Landlord and Tenant (Amendment) Act 1968, would upon registration of the lease in the Department have been exempt from the provisions of Parts 2, 3, 4 and 5 under the section that this section replaces as in force at the time when the lease was executed by the lessee.
A reference in paragraphs (c) and (e) of subsection (1), and in paragraph (b) of subsection (2), to the section that this section replaces as in force at a particular time shall be construed as a reference to section 5A, as inserted by the Landlord and Tenant (Amendment) Act 1954, and includes a reference to that section as amended up to that time.
An application for the registration under this section of a lease shall be made to, in the form approved by and containing particulars required by, the Secretary and shall be accompanied by:
(a) the original lease and a copy thereof, which copy:
(i) shall be certified to be a true copy by the lessor, the lessor’s solicitor or an agent of the lessor, and
(ii) shall be so certified in a manner approved by the Secretary, and
(b) a fee of two dollars or, where another fee has been prescribed in lieu thereof, by that other fee.
Without limiting the form of notice that may be approved under subsection (4), the form may be an electronic form accessible on a publicly available website.
A person who provides the Secretary with a statutory declaration the particulars required by the approved form is taken to have done so in the approved form.
The registration after the first day of January, one thousand nine hundred and sixty-nine, under this section of a lease shall be deemed to be effected upon the making of an entry in relation to the lease, in the manner approved by the Secretary, in a register to be kept by the Secretary for the purposes of this section and the endorsement on the original lease and certified copy thereof of a memorial of the entry.
After registration under this section of a lease the original lease shall be returned to the person by whom the application for registration was made.
The provisions of subsection (1) and section 5AA have effect subject to the provisions of subsection (1) of section 6, section 6A and section 81A.
Notwithstanding the provisions of subsection (1) and section 5AA, the provisions of sections 36 (except paragraph (a), subparagraph (i) of paragraph (b) and paragraph (c) of subsection (1)), 36A, 55, 77, 93, 95 and 98 apply in respect of premises exempted from the operation of provisions of the Act by subsection (1) or section 5AA.
The Secretary shall not register a lease under paragraph (d) or (e) of subsection (1) if he or she is satisfied:
(a) where the lease is of a dwelling-house, that the dwelling-house is a dwelling-house referred to in paragraph (a) of that subsection,
(b) where the lease is of a residential unit, that the residential unit is a residential unit referred to in paragraph (b) of that subsection, or
(c) that the lease is in contravention of any of the provisions of section 77.
On and after 1 January 1986, the Secretary shall not register a lease under this section unless:
(a) the lease was executed by the lessee before 1 January 1986, and
(b) the application for registration was made on or before 30 June 1986, or a Fair Rents Board has recommended under subsection (9C) that the application be dealt with.
Where an application for the registration of a lease under this section is made to the Secretary after 30 June 1986, but before 1 January 1989, the Secretary may refer the application to a Fair Rents Board if of the opinion that the Board could make a recommendation under subsection (9C) that the application be dealt with.
A Fair Rents Board may, if satisfied that in the particular circumstances of an application for registration referred to it under subsection (9B) there is a reasonable excuse for the delay in the making of the application, recommend to the Secretary that the application be dealt with.
A certificate:
(a) purporting to be signed by a solicitor or a registrar of the Local Court, being a certificate referred to in paragraph (b) of subparagraph (ii) of paragraph (d), or subparagraph (ii) of paragraph (b) of subparagraph (ii) of paragraph (e), of subsection (1), shall be admissible in any proceedings and shall, in all courts and upon all occasions whatsoever, be prima facie evidence of the particulars certified in and by the certificate, or
(b) purporting to be signed by the Secretary or his or her delegate and certifying:
(i) that a lease specified or referred to in the certificate was registered in the Department on a day specified in the certificate, or
(ii) the particulars referred to in subparagraph (i), that the lease bears a certificate referred to in paragraph (b) of subparagraph (ii) of paragraph (d), or subparagraph (ii) of paragraph (b) of subparagraph (ii) of paragraph (e), of subsection (1) purporting to be signed by a solicitor or a registrar of the Local Court, and the particulars certified in and by the certificate that the lease bears,
shall be admissible in any proceedings and shall, in all courts and upon all occasions whatsoever, be prima facie evidence of the particulars referred to in subparagraph (i) and, where the certificate certifies that the lease bears a certificate as referred to in subparagraph (ii), of the particulars certified in and by the certificate that the lease bears, as certified in and by the certificate under this paragraph.
An application for a certificate under paragraph (b) of subsection (10):
(a) may be made by any person,
(b) shall be made in writing to the Secretary, and
(c) shall be accompanied by a fee of five dollars or, where another fee has been prescribed in lieu thereof, by that other fee.
In this section:
(a) the premises of any lodging-house or boarding-house, and
(b) any part of premises that is used or has been designed for use for the purposes of residence independently of any other part of the premises,
but does not include a residential unit or premises licensed for the sale of spirituous or fermented liquors.
The Governor may, by order published in the Gazette, declare that the application of this Act shall extend to premises, or the premises included in any class of premises, specified in the order, and thereupon the application of this Act shall, notwithstanding anything contained in paragraph (b) of subsection (1) of section 12 or section 78, extend to those premises (including goods leased with those premises) or to the premises included in that class of premises (including goods leased with those premises).
The Governor may, by order published in the Gazette, declare that any premises, or the premises included in any class of premises, shall be excluded from the operation of this Act or of such of the provisions of this Act as are specified in the order, and thereupon those premises, or premises of that class, shall be excluded accordingly.
Any declaration made or purporting to have been made before the commencement of this Act under sub-regulation four or sub-regulation five of Regulation seven of the Commonwealth Regulations and having force or effect or purporting to have force or effect in this State immediately before such commencement shall continue to have force and effect in all respects as if this section had been in force at the time when such declaration was made or purported to have been made, and the declaration had been made thereunder by the Governor.
The Governor may, by order published in the Gazette, declare that any premises shall be “special premises” for the purposes of this Act and may also by that order declare that each and every part of those premises which is at any time while the order has force or effect the subject of a separate agreement or arrangement whether oral or in writing of leave and licence for the use of that part shall be “special premises” for the purposes of this Act.
(a) Any order made under subsection (1) before the commencement of the Landlord and Tenant (Amendment) Act 1954 and having force or effect immediately before such commencement declaring that any premises shall be “special premises” for the purposes of this Act shall have effect and shall be deemed always to have had effect as though that order had also declared that each and every part of those premises which is at any time while the order has force or effect the subject of a separate agreement or arrangement whether oral or in writing of leave and licence for the use of that part shall be “special premises” for the purposes of this Act.
(b) A person shall not, by reason of the enactment of paragraph (a), be guilty of an offence against this Act in respect of anything done or omitted to be done by him or her before the commencement of the Landlord and Tenant (Amendment) Act 1954, if he or she would not have been so guilty had that paragraph not been enacted.
In the application of this Act to or in respect of “special premises”:
(a) “lease” includes any leave and licence for the use of the “special premises” whether such leave and licence is granted orally or in writing; and “lessor”, “lessee”, “to lease”, and “to let”, and expressions derived therefrom shall have a corresponding meaning,
(b) “rent” includes any payment or consideration in respect of any leave and licence for the use of the “special premises” and for any services provided for or supplied to any person using the “special premises” under leave and licence,
(c) (i) subsection (3) of section 62 shall be read and construed as if the words “for a period determined in accordance with section 63” were omitted therefrom and the words “for a period of at least seven days or, where a period shorter than seven days is reasonable in the circumstances, for that shorter period” were inserted in lieu thereof,
(ii) subsection (5) of section 62 shall be read and construed as if paragraph (d) thereof were omitted and the following paragraph inserted in lieu thereof:
(d) (i) that the conduct of the lessee is obnoxious to any other occupant or occupants of the premises or of the building in which the premises are situated, or tends to bring the premises or building as aforesaid into disrepute, or
(d) where recovery of possession of the special premises is sought on the ground referred to in subparagraph (i) of paragraph (d) of subsection (5) of section 62, as substituted by subparagraph (ii) of paragraph (c), sections 63 and 72 shall be deemed to be omitted therefrom.
(a) Where any premises (not being premises that are declared to be “special premises” under subsection (1) or subsection (1A)) are after the commencement of the Landlord and Tenant (Amendment) Act 1958 occupied by any person for the purposes of residence under an agreement or arrangement whether oral or in writing of leave and licence for the use thereof (whether that agreement or arrangement was entered into before or after that commencement, whether or not that agreement or arrangement was entered into in substitution for a lease of such premises or of any part of such premises or of the premises of which such premises form a part, and whether the occupancy by that person for the purposes of residence under that agreement or arrangement commenced before or after that commencement), and such premises or any part of such premises or the premises of which such premises form a part have, after the thirtieth day of June, one thousand nine hundred and forty-nine, and before that agreement or arrangement was entered into, been the subject of a lease (whether the lease was entered into before or after that date and whether or not the lease is still subsisting), the premises shall, subject to paragraphs (b), (c) and (d), be deemed to be “special premises” for the purposes of this Act.
(b) The Governor may, by order published in the Gazette, exempt any class of premises specified in the order from the operation of paragraph (a) and thereupon that paragraph shall not apply to the class of premises so specified.
(c) The Secretary, in his or her discretion, may, either unconditionally or subject to such conditions as he or she thinks fit, issue a certificate excluding any premises from the operation of paragraph (a), for such period as is specified in the certificate and the premises shall, so long as the certificate remains in force, be excluded accordingly.
The Secretary may at any time revoke or vary any certificate issued under this paragraph.
(d) In this subsection the expression “agreement or arrangement whether oral or in writing of leave and licence for the use thereof” in relation to premises does not include such an agreement or arrangement under which the licensee of the prescribed premises is a bona-fide boarder.
In this paragraph
bona-fide boarder means a licensee who is supplied by the licensor with:
(i) one meal before midday consisting of at least two courses, one of which comprises cereal or porridge and the other of which comprises cooked meat, eggs or a like dish, together with bread (or toast), butter, jam and tea or coffee, and
(ii) one meal after midday consisting of at least two courses, one of which comprises fish or meat (other than in sandwich form) and cooked vegetables,
if the value of the meals so supplied forms a substantial portion of the whole charge paid by the licensee under the agreement or arrangement.
(e) Nothing in this subsection affects the operation of subsection (1).
Where any prescribed premises are not holiday premises by reason only of the fact that they have at some time subsequent to the first day of March, one thousand nine hundred and forty-five, and before the commencement of the Landlord and Tenant (Amendment) Act 1952, been leased to or occupied by a lessee for a continuous period exceeding three months or that they have at some time after the commencement of the Landlord and Tenant (Amendment) Act 1952 been leased to or occupied by a lessee for a continuous period exceeding eight weeks, the owner or lessor of those prescribed premises may make application in writing to the Secretary to exclude the premises from the operation of this Act.
The applicant shall furnish such information in relation to the application as the Secretary requires.
The Secretary, in his or her discretion, may, either unconditionally or subject to such conditions as he or she thinks fit, issue a certificate excluding the premises from the operation of this Act or of such of the provisions of this Act as are specified in the certificate, for such period as is so specified and the premises shall, so long as the certificate remains in force, but subject to any variation thereof, be excluded accordingly.
Any certificate issued or purporting to have been issued before the commencement of this Act under sub-regulation three of Regulation 7A of the Commonwealth Regulations and having force or effect or purporting to have force or effect in this State immediately before such commencement shall continue to have force and effect in all respects as if this section had been in force at the time when such certificate was issued or purported to have been issued and the certificate had been issued under this section.
The Secretary may at any time revoke or vary any certificate issued under subsection (3) or continued in force under subsection (4).
In this Act, unless the contrary intention appears:
(a) a person appointed by the Secretary in writing to be an authorised officer for the purposes of this Act, or
(b) an investigator appointed under section 18 of the Fair Trading Act 1987.
(a) the person employed in the Public Service as the clerk of the Board, or
(b) if there is no person employed as the clerk of the Board—the registrar of the Local Court for the place at which the Board is constituted.
(a) during the period commencing on the first day of March, one thousand nine hundred and forty-five, and ending on the sixteenth day of December, one thousand nine hundred and forty-six, have ordinarily been leased for holiday purposes only,
(b) have not at any time during that period been leased to or occupied by any lessee for a continuous period exceeding three months, and
(c) were not, on the sixteenth day of December, one thousand nine hundred and forty-six, leased for purposes other than holiday purposes,
but does not include any such premises which:
(d) at any time after that date are or were leased for purposes other than holiday purposes, or
(e) at any time after that date but before the commencement of the Landlord and Tenant (Amendment) Act 1952 were leased to or occupied by any lessee for a continuous period exceeding three months, or
(f) at any time after the commencement of the Landlord and Tenant (Amendment) Act 1952 are leased to or occupied by any lessee for a continuous period exceeding eight weeks.
(a) a mesne lessor and a mesne lessee,
(b) a sub-lessor and sub-lessee,
(c) in respect of premises which are subject to a mortgage, a mortgagee who enters or has entered into possession of the premises under the mortgage and a person who was the lessee of the premises under the mortgagor immediately prior to the mortgagee entering into possession, and
(d) the persons who, by operation of section 22A of the Landlord and Tenant Act of 1899 as amended by subsequent Acts are presumed to be the landlord and tenant respectively.
(a) where a dwelling-house does not form part of other premises—that dwelling-house,
(b) where premises consist only of a number of dwelling-houses—those premises and each of those dwelling-houses, and
(c) where premises consist partly of dwelling-houses and partly of other premises—such part of the premises as consists of dwelling-houses and each dwelling-house of which that part consists, and includes any land or appurtenances leased with any prescribed premises as defined in paragraph (a), (b) or (c) of this definition.
(a) the value to the lessor of any covenants, conditions or other provisions of, or relating to, the lease to be performed by the lessee, other than covenants, conditions and provisions usually entered into by a lessee, and
(b) any rates or taxes payable by a lessee in respect of any prescribed premises, other than excess water rates,
and where, in any lease:
(c) it is provided that a reduced amount, as rent, shall be accepted by the lessor upon any condition to be performed by the lessee, that reduced amount shall be deemed to be the rent payable under the lease, and
(d) any rebate, discount, allowance or other reduction is provided for, the amount payable after each such reduction is made shall be deemed to be the rent payable under the lease.
(a) the Commissioner for Fair Trading, Department of Finance, Services and Innovation, or
(b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department of Finance, Services and Innovation.
“De facto relationship” is defined in section 21C of the Interpretation Act 1987.
In this Act (other than in section 112) unless the contrary intention appears,
(a) the premises of any lodging-house or boarding-house,
(b) any part of premises which is leased separately for the purposes of residence,
but does not include premises licensed for the sale of spirituous or fermented liquors.
For the purposes only of the definition of
(a) includes:
(i) any premises, or the premises included in any class of premises, to which the application of this Act has been extended under subsection (1) of section 6, and
(ii) any premises that are “special premises” for the purposes of this Act, and
(b) does not include any of the following premises that are not premises referred to in paragraph (a), that is to say:
(i) premises that are, by the same lease, leased partly as a dwelling-house and partly as a shop within the meaning of the Retail Trading Act 2008 or that are the subject of a lease part of the demised premises being a dwelling-house and the other part being such a shop,
(ii) premises that are at any time, on or after the first day of January, one thousand nine hundred and sixty-nine, used partly as a dwelling-house and partly for business or commercial purposes where the use of the premises for business or commercial purposes constitutes the principal or a substantial use of the premises and where the use for business or commercial purposes does not arise by reason that the premises are sub-let for residential purposes,
(iii) holiday premises, or
(iv) any premises, or the premises included in any class of premises, excluded from the operation of Parts 2, 3, 4 and 5 under subsection (2) of section 6.
For the purposes of this Act,
No prescribed premises forming part of other prescribed premises shall be regarded as not forming a complete residence in themselves by reason only of the fact that a laundry or laundry facilities are used by the lessee of that part in common with any one or more of the following persons, namely, the lessor or other persons occupying other parts of the prescribed premises of which the firstmentioned prescribed premises form a part.
Where the lessor of prescribed premises supplies or provides any service in connection with the premises and a separate charge is made for those services, the amount charged shall, for the purposes of this Act, be deemed to form part of the rent payable under the lease.
Any declarations made or purporting to have been made before the commencement of this Act under paragraph (b) of the definition of
Notes included in this Act do not form part of this Act.
The Minister may, for the purposes of this Act, constitute Fair Rents Boards at such places as he or she thinks fit.
All Fair Rents Boards constituted or purporting to have been constituted in this State before the commencement of this Act under Regulation nine of the Commonwealth Regulations and in existence or purporting to be in existence immediately before such commencement shall be deemed to have been constituted under this subsection.
The Minister may abolish any Fair Rents Board.
Where a Fair Rents Board is abolished, the Minister may, by order, make provision for the transfer of pending applications and appeals before the Board to some other Fair Rents Board and pending applications and appeals so transferred may be heard and determined by the Board to which they are transferred.
The Governor may by regulations regulate the procedure of Fair Rents Boards.
(Repealed)
(Repealed)
The Secretary and each Fair Rents Board shall have and may exercise such powers and functions as are conferred upon him or her or it respectively by this Act, and may exercise those powers and functions:
(a) in relation to all prescribed premises (including goods leased therewith), or
(b) where the Governor by order published in the Gazette, declares that it is desirable that the powers and functions of the Secretary and of Boards shall be exercisable with respect to certain prescribed premises only, or with respect to a limited class of prescribed premises only—in relation to those prescribed premises (including goods leased therewith) only or to that limited class of prescribed premises (including goods leased therewith) only.
The powers and functions of a Fair Rents Board may be exercised by any Magistrate.
(Repealed)
(Repealed)
Where:
(a) before the date upon which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 was signified, an agreement made or purporting to have been made under the section that this section replaces had been executed by the lessee of any prescribed premises, and
(b) that agreement:
(i) was expressed to be in force for a specified period (whether or not it was also expressed to continue in force after the expiration of that specified period) and that specified period had not, on or before that date, expired, or
(ii) did not contain any provision expressing it to be in force for a specified period but contained a provision fixing the fair rent of the premises as on and from a day being less than twelve months before that date,
the amount specified in the agreement as the rent shall, without any determination or further determination being made, be for all purposes the fair rent and the rent of the premises without goods or together with goods, as the case may be, on and from that date or the day specified in that behalf in the agreement not being earlier than the day on which the agreement was executed by the lessee, whichever is the later.
Where:
(a) before the date on which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 was signified, an agreement made or purporting to have been made under the section that this section replaces had been executed by the lessee of any prescribed premises,
(b) that agreement:
(i) was expressed to be in force for a specified period (whether or not it was also expressed to continue in force after the expiration of that specified period) and that specified period had, on or before that date, expired, or
(ii) did not contain any provision expressing it to be in force for a specified period but contained a provision fixing the fair rent of the premises as on and from a day being, or being more than, twelve months before that date, and
(c) the lessee, in respect of the rent payable in respect of the premises on the due date for the payment of the rent that last occurred before that firstmentioned date, paid to the lessor as rent of the premises the amount specified in the agreement as rent,
the amount specified in the agreement as the rent shall, without any determination or further determination being made, be for all purposes the fair rent and the rent of the premises without goods or together with goods, as the case may be, on and from that firstmentioned date.
Where on or after the date on which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 is signified, an agreement in writing is entered into by the lessor and lessee of any prescribed premises leased with or without goods and under that agreement the lessor and lessee agree as to the amount of the rent to be paid by the lessee to the lessor in respect of the premises, the rent shall, without any determination or further determination being made, be for all purposes the fair rent and the rent of the premises without goods or together with goods, as the case may be, on and from the day specified in that behalf in the agreement not being earlier than the day on which the agreement is executed by the lessee.
Notwithstanding anything contained in any agreement referred to in subsection (1), (2) or (3), the rent fixed under any such subsection shall continue to be the fair rent and the rent of the premises without goods or together with goods, as the case may be:
(a) until it is varied by a further agreement referred to in subsection (3), or
(b) until it is varied pursuant to an application made under subsection (12) or (13) or Division 4AA,
whichever first occurs.
Notwithstanding any other provision of this Act, except subsections (12) and (13) and Division 4AA, no proceedings for the determination, and no application for the assessment, of the fair rent of any premises the fair rent of which is fixed under subsection (1), (2) or (3) shall be commenced or lodged under this Act.
In subsections (1), (2) and (3),
(a) that is or was registered in the Department within three months after the day on which it was executed by the lessee, and
(b) except where the lessee is a company or other body corporate:
(i) the execution of which by the lessee was witnessed by a solicitor instructed and employed independently of the lessor or by a registrar of the Local Court, and
(ii) that bears a certificate by that solicitor or registrar of the Local Court that he or she explained the agreement to the lessee before it was executed by him or her.
An application for the registration under this section of an agreement shall be made in writing to the Secretary and shall be accompanied by:
(a) the original agreement and a copy thereof, which copy:
(i) shall be certified to be a true copy by the lessor, the lessor’s solicitor or an agent of the lessor, and
(ii) shall be so certified in a manner approved by the Secretary, and
(b) a fee of two dollars or, where another fee has been prescribed in lieu thereof, by that other fee.
The registration, on or after the date on which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 was signified, of an agreement shall be deemed to be effected upon the making of an entry in relation to the agreement, in the manner approved by the Secretary, in a register to be kept by the Secretary for the purposes of this section and the endorsement on the original agreement and certified copy thereof of a memorial of the entry.
After registration under this section of an agreement the original agreement shall be returned to the person by whom the application for registration was made.
A certificate:
(a) purporting to be signed by a solicitor or a registrar of the Local Court, being a certificate referred to in subparagraph (ii) of paragraph (b) of subsection (6), shall be admissible in any proceedings and shall, in all courts and upon all occasions whatsoever, be prima facie evidence of the particulars certified in and by the certificate, or
(b) purporting to be signed by the Secretary or his or her delegate and certifying:
(i) that an agreement specified or referred to in the certificate was registered in the Department on a day specified in the certificate, or
(ii) the particulars referred to in subparagraph (i), that that agreement bears a certificate referred to in subparagraph (ii) of paragraph (b) of subsection (6) purporting to be signed by a solicitor or a registrar of the Local Court, and the particulars certified in and by the certificate that the lease bears,
shall be admissible in any proceedings and shall, in all courts and upon all occasions whatsoever, be prima facie evidence of the particulars referred to in subparagraph (i) and, where the certificate certifies that the agreement bears a certificate as referred to in subparagraph (ii), of the particulars certified in and by the certificate that the agreement bears, as certified in and by the certificate under this paragraph.
An application for a certificate under paragraph (b) of subsection (10):
(a) may be made by any person,
(b) shall be made in writing to the Secretary, and
(c) shall be accompanied by a fee of five dollars or, where another fee has been prescribed in lieu thereof, by that other fee.
The lessee of any prescribed premises the fair rent of which is fixed under subsection (1), (2) or (3) may, notwithstanding the provisions of subsection (2) of section 32, make application at any time after the agreement in respect of those premises was executed by him or her:
(a) where the prescribed premises are not shared accommodation referred to in section 26E—to a Fair Rents Board, or
(b) where the prescribed premises are any such shared accommodation—to the Secretary,
for a determination of the fair rent of those premises and the Fair Rents Board or the Secretary, as the case may be, shall in accordance with the provisions of this Act, determine the fair rent of those premises where the lessee proves to the satisfaction of the Fair Rents Board or the Secretary, as the case may be, that:
(c) the amount specified in the agreement as rent was, at the time the agreement was executed by the lessee, harsh or unconscionable, or
(d) the agreement was obtained by fraud, duress, intimidation or improper means.
The lessor of any prescribed premises the fair rent of which is fixed under subsection (1), (2) or (3) may, subject to subsection (2) of section 32, make application at any time after the agreement in respect of those premises was executed by the lessee:
(a) where the prescribed premises are not shared accommodation referred to in section 26E—to a Fair Rents Board,
(b) where the prescribed premises are any such shared accommodation—to the Secretary, or
(c) where:
(i) the prescribed premises are not shared accommodation,
(ii) the fair rent of the prescribed premises had been fixed by a determination made under this Part, except Division 4AA, and in force immediately before the time the agreement in respect of those premises was executed by the lessee,
(iii) the application is made under section 24A, and
(iv) the prescribed premises are:
(a) premises referred to in paragraph (a) of subsection (2) of section 24A—to the Secretary, or
(b) premises referred to in paragraph (b) of that subsection—to the clerk of the Fair Rents Board nearest to the premises,
for a determination or assessment of the fair rent of those premises and the Fair Rents Board, the Secretary or the clerk of the Fair Rents Board, as the case may be, shall, in accordance with the provisions of this Act, determine, or make an assessment of, the fair rent of those premises.
Where an application is made to the Secretary or a clerk of a Fair Rents Board in accordance with paragraph (c) of subsection (13), the reference in subsection (3) of section 24A to the existing fair rent of the prescribed premises shall, for the purpose of dealing with the application, be construed as a reference to the fair rent of those premises as last fixed by a determination made under this Part, except Division 4AA, before the fair rent of the premises was fixed under this section.
Any person, whether as principal or agent or otherwise, who procures the execution by a lessee of an agreement referred to in subsection (3) by fraud, duress, intimidation or improper means is guilty of an offence against this Act.
Any provision in an agreement made or purporting to have been made under the section that this section replaces whereby the agreement is expressed to be in force for a specified period and to continue in force thereafter is, and shall be deemed always to have been, to the extent only that it is expressed to be in force after the expiration of that specified period, void.
Where an agreement made or purporting to have been made under the section that this section replaces in relation to any premises:
(a) was expressed to be in force for a specified period (whether or not it was also expressed to continue in force after the expiration of that specified period) and that specified period had expired before the date on which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 was signified, or
(b) was not expressed to be in force for a specified period but contained a provision fixing the fair rent of the premises as on and from a day being more than twelve months before that date,
the amount payable in respect of the fair rent and the rent of the premises without goods or together with goods, as the case may be, shall, subject to subsection (2), to any determination made under any of the provisions of this Act and to any further agreement made under the section that this section replaces or this section, be and be deemed always to have been:
(c) in the case of an agreement that was expressed to be in force for a specified period—as on and from the expiration of that specified period, and
(d) in the case of an agreement that was not expressed to be in force for a specified period—as on and from the expiration of the period of twelve months commencing on the day as on and from which the fair rent of the premises was fixed by the agreement,
the amount of the rent properly payable in respect of the premises immediately before the day as on and from which the fair rent of the premises was fixed by the agreement.
Notwithstanding the provisions of subsection (16) or (17), where the lessee of any premises the subject of an agreement referred to in those subsections has, after the expiration of the period referred to in paragraph (c) or (d) of subsection (17) and before the date on which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 was signified, continued to pay the rent fixed by the agreement, the lessor is not liable to refund the difference between the amount of the rent so fixed and the amount of the rent that would have been payable by the lessee had he or she continued to pay the amount of the rent properly payable in respect of the premises immediately before the day on and from which the fair rent of the premises was fixed by the agreement.
A reference in this section to “the section that this section replaces” shall be construed as a reference to section 17A, as inserted by the Landlord and Tenant (Amendment) Act 1964, or to that section as amended, as in force at the time the agreement was executed by the lessee.
Where any prescribed premises (not being prescribed premises referred to in section 32B) were the subject of a lease for a fixed term, the fair rent and the rent of the premises or of the premises together with goods leased therewith shall, notwithstanding any other provision of this Act, be, as on and from the date on which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 was signified and while the lease remains in force:
(a) where the rent was fixed by a determination made before the twenty-sixth day of November, one thousand nine hundred and sixty-eight, and in force immediately before that day—the rent fixed by that determination, or
(b) where the rent payable immediately before that day was fixed under section 17A—that rent,
or if the contractual rent provided for from time to time by the lease is greater than the rent referred to in paragraph (a) or (b), that contractual rent.
The lessor, or a lessee who has paid, or has offered (either to the lessor personally or to the person to whom the rent is ordinarily paid) the money payable for, all rent due and payable under the lease up to a date not earlier than twenty-eight days before the date of the receipt of the application in the office of the clerk of the Board, of any prescribed premises other than shared accommodation (not being prescribed premises in relation to which a Fair Rents Board is not authorised to exercise the powers conferred by this Part), or the person having power to lease any such premises which are not leased in exercise of that power, may apply in writing to a Fair Rents Board to have the fair rent of the prescribed premises determined by the Board.
Such application shall be made to the Board nearest to the prescribed premises or to any other Board if that other Board is satisfied that hardship will not be occasioned thereby to any party to the determination.
Where an application has been made for the determination of the fair rent of any prescribed premises other than shared accommodation, the applicant shall give at least seven days’ notice in writing of the time, date and place fixed for the determination of the application to the lessor or lessee, if any, as the case may be, of the prescribed premises.
Where an application is made by a mesne lessor or mesne lessee, or by a sub-lessor or a sub-lessee, the applicant shall give at least seven days’ notice in writing of the time, date and place fixed for the determination of the application to his or her superior lessor, and the superior lessor shall be entitled to be a party to the application.
Where a superior lessor to whom notice is given under subsection (2) or under this subsection is himself or herself a lessee, mesne lessee or sub-lessee, he or she shall forthwith give notice in writing of the time, date and place fixed for the determination of the application to his or her superior lessor, and the superior lessor shall be entitled to be a party to the application.
Where any prescribed premises other than shared accommodation in respect of which an application is made are the subject of a mortgage, the lessor shall give notice in writing of the time, date and place fixed for the determination of the application to the mortgagee, who shall be entitled to be a party to the application.
Notice under this subsection shall:
(a) where the lessor is the applicant—be given at least seven days before the date fixed for the determination of the application, and
(b) in any other case—be given forthwith upon the receipt of notice of the application under subsection (1), (2) or (3).
Where an application has been made for the determination of the fair rent of any prescribed premises other than shared accommodation, the Fair Rents Board shall, after making such inquiries and obtaining such reports (if any) as it considers necessary, and after considering any representations made by any person whose rights may be affected by the determination, determine the fair rent of the prescribed premises at an amount equal to the rent of the prescribed premises at the prescribed date adjusted by such amount as the Board deems proper having regard only to the matters specified in section 21 or, where the prescribed premises were not leased at the prescribed date, at an amount equal to the rental value of the prescribed premises at the prescribed date adjusted in like manner.
(Repealed)
Where the Fair Rents Board is of opinion, having regard to the matters specified in section 21, that the rent of the prescribed premises, being premises that were leased on the prescribed date, was, as at that date, insufficient, the determination may increase the fair rent (in addition to any other amount by which it is increased under this section) by an amount not exceeding the amount which, in the opinion of the Fair Rents Board, is the amount of the insufficiency.
In this section,
In determining the fair rent a Fair Rents Board shall have regard to:
(a) the capital value of the premises at the prescribed date, or, if the premises were not in existence on that date, on the date on which the erection of the premises was completed,
(b) the lessor’s liability for annual rates and insurance premiums in respect of such premises and fixtures thereon,
(c) the estimated annual cost of repairs, maintenance and renewals of the premises and fixtures thereon,
(d) the estimated amount of annual depreciation in the value of the premises and the estimated time per annum during which the premises may be vacant,
(e) the rents, fixed by a determination in force under this Part, of other prescribed premises (other than premises which are the subject of an agreement in force under section 17A or of a determination made under Division 4AA) which:
(i) are in the locality of,
(ii) are subject to the same provisions of this Act as are, and
(iii) are otherwise comparable in all respects to,
the premises the subject of the application,
(f) the rate of interest charged upon overdrafts by the Commonwealth Bank of Australia,
(g) any services provided by the lessor or lessee in connection with the lease or the value of any goods leased with the premises,
(h) any obligation on the part of the lessee to effect any improvements, alterations or repairs to the premises at his or her own expense,
(i) the conduct of the parties, and
(j) the amount, if any, that the Fair Rents Board is satisfied was necessarily expended by the lessor since the prescribed date referred to in subsection (4) of section 20 upon the improvement or structural alteration of the premises (but not including decoration, repairs or maintenance).
In determining the fair rent of any premises the Fair Rents Board shall not make any allowance by reason of any loss which might be imposed upon the lessor by an order fixing the rent of the premises at an amount less than the lessor’s liability under a mortgage of, or contract of sale in respect of, the premises, or under a hire purchase agreement or contract of sale in respect of any goods leased with the premises.
Notwithstanding any other provision of this Act, a Fair Rents Board shall not, in making a determination, or a variation of a determination, of the fair rent of any prescribed premises have regard to any capital value of those premises other than the appropriate capital value of those premises referred to in paragraph (a).
A Fair Rents Board in determining the fair rent of prescribed premises not being a dwelling-house shall in addition to the matters specified in subsection (1) have regard to land tax payable in respect of the premises by the lessor under the Land Tax Management Act 1956 and the Land Tax Act 1956, or any Act amending or replacing any such Act, or where such land tax is payable by the lessor in respect of the premises together with other lands, to the extent to which such land tax would be payable were the premises the only land in respect of which the lessor was liable for any such land tax.
In determining the fair rent of any prescribed premises a Fair Rents Board may include in the fair rent an allowance in respect of agent’s collecting commission or, where an agent does not collect the rent of the prescribed premises, such amount in respect of the collection of the rent as the Board deems proper.
(Repealed)
Where a Fair Rents Board would, but for this subsection, increase the fair rent of any prescribed premises and the Board is of opinion that the lessee would not reasonably be able to pay the fair rent as so increased, the Board shall, in determining the amount of the increase, if any, have regard to the financial circumstances of the lessor and the lessee.
In determining or varying the fair rent of any prescribed premises, a Fair Rents Board shall not make any allowance:
(a) based on paragraph (f) of subsection (1) in excess of such percentage of the capital value of the prescribed premises at the prescribed date referred to in subsection (4) of section 20 as is equal to the difference between the rate per centum of interest charged upon overdrafts by the Commonwealth Bank of Australia, or the Commonwealth Trading Bank of Australia, as the case may be, at that prescribed date and the rate per centum of interest charged upon overdrafts by the Commonwealth Trading Bank of Australia at the date of the determination or variation, or
(b) based on paragraph (j) of subsection (1) in excess of eight per centum of the amount referred to in that paragraph.
In determining or varying the fair rent of any prescribed premises, a Fair Rents Board shall not make any allowance by reason of any change, since the prescribed date referred to in subsection (4) of section 20 or since any previous determination or variation or since any earlier date whatsoever, in any economic conditions affecting the community generally or a substantial part of the community.
In considering the matters referred to in subsection (1):
(a) any bonus, premium or sum of money (other than rent) or other consideration given or promised or agreed to be given by the lessor, or
(b) the purchase or exchange by the lessor of any goods or goodwill,
which would have been in contravention of subsection (1) of section 36 had the prescribed premises concerned not been excluded from the operation of that section or had the consent of the Secretary or a Board, as the case may be, not been obtained, shall be disregarded.
Every determination of the fair rent of prescribed premises other than shared accommodation made by a Fair Rents Board shall come into force on a date fixed by the Board, but the date so fixed shall not be earlier than the date of the receipt of the application in the office of the clerk of the Board.
After the making of any such determination, other than a determination made under section 23A, the clerk of the Board shall give notice in writing thereof, and of the date fixed as the date on which the determination shall come into force, to the applicant and to any other person to whom it has been established in the proceedings that notice has been given under section 19 or section 24.
After the making of any determination of the fair rent of any prescribed premises under section 23A, the clerk of the Board shall give notice in writing thereof, and of the date fixed as the date on which the determination shall come into force, to the persons to whom notice of the time, date and place fixed for that determination was given under subsection (2) of that section.
Where any fair rent has been determined by a Fair Rents Board it shall, as from the date fixed under section 22:
A certificate purporting to be issued in pursuance of subsection (5) shall, in the absence of proof to the contrary, be deemed to have been duly issued.
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