Residential Tenancies (Amendment) Act 1989 (NSW)
RESIDENTIAL TENANCIES (AMENDMENT) ACT 1989
No. 73
NEW SOUTH WALES
TABLE OF PROVISIONS
1. Short title
2. Commencement
3. Amendment of Residential Tenancies Act 1987 No. 26
4. Amendment of Landlord and Tenant (Amendment) Act 1987 No. 27
SCHEDULE 1—AMENDMENT OF THE RESIDENTIAL TENANCIES ACT 1987
RESIDENTIAL TENANCIES (AMENDMENT) ACT 1989 No. 73
NEW SOUTH WALES
Act No. 73, 1989
An Act to amend the Residential Tenancies Act 1987 with respect to the rights and obligations of landlords and tenants under residential tenancy agreements and the appointment of a Tenancy Commissioner; to amend the Landlord and Tenant (Amendment) Act 1987; and for other purposes. [Assented to 2 June 1989]
2 Act No. 73
Residential Tenancies (Amendment) 1989
The Legislature of New South Wales enacts:
Short title
This Act may be cited as the Residential Tenancies (Amendment) Act
1989.
Commencement
2. (1) This Act commences on a day or days to be appointed by
proclamation, except as provided by subsection (2).
(2) Section 4 commences on the date of assent to this Act.
Amendment of Residential Tenancies Act 1987 No. 26
3. The Residential Tenancies Act 1987 is amended as set out in
Schedule 1.
Amendment of Landlord and Tenant (Amendment) Act 1987 No. 27
4. The Landlord and Tenant (Amendment) Act 1987 is amended by
omitting Schedule 2 (2)-(5), (7) and (9).
SCHEDULE 1—AMENDMENT OF THE RESIDENTIAL
TENANCIES ACT 1987
(Sec. 3)
(1) Section 3 (Interpretation)—
(a) Section 3 (1), definition of "Commissioner for Consumer Omit the definition.
(b) Section 3(1)—
After the definition of "Deputy Registrar", insert: "investigator" means an officer appointed as an investigator by
the Minister under section 11 9A;
(c) Section 3(1)—
After the definition of "movable dwelling", insert:"officer" means—
(a) the Tenancy Commissioner; or
(b)
a person employed under the Public Sector Management Act 1988 as referred to in section 1 17B (1); or
(c)
a person whose services are used in accordance with section 11 7B (2);
Residential Tenancies (Amendment) 1989
SCHEDULE 1—AMENDMENT OF THE RESIDENTIAL TENANCIES
ACT 1987—continued
(d) Section 3 (1)—
After the definition of "tenancy", insert:"Tenancy Commissioner" means the Tenancy Commissioner
referred to in section 11 7A;
(e) Section 3 (4)—
Omit the subsection, insert instead:(4) For the purpose of determining whether an agreement is a residential tenancy agreement as defined in subsection (1), it does not matter that the person granted the right of occupation is a corporation if the premises are used (or intended for use) as a residence by a natural person.
(2) Section 12 (Costs of preparation etc. of residential tenancy
agreement)—
Section 12(4)—
After section 12 (3), insert:(4) If the regulations prescribe a maximum amount payable by the tenant for any such costs or charges, any difference between those costs or charges and the maximum amount prescribed is payable by the landlord.
(3) Section 16 (Applications relating to a breach of residential tenancy
agreement)—
(a) Section 16 (l)-(lc)—
Omit section 16 (1), insert instead:
(1) If a landlord or a tenant under a residential tenancy agreement claims that a breach of a term of the agreement has occurred, the landlord or the tenant may, not later than 30 days after becoming aware of the breach, apply to the Tribunal for an order in respect of the breach. (1A) If a landlord or a tenant under a residential tenancy agreement claims that a dispute has arisen under the agreement, the landlord or the tenant may refer the dispute to the Tenancy Commissioner.
(1B) When a dispute is referred to the Tenancy Commissioner under this section, the Tenancy Commissioner may attempt to
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ACT 1987—continued
(lc) If the landlord and tenant fail to make such a settlement, the landlord or the tenant may, with the consent of the Tenancy Commissioner, apply to the Tribunal for an order in respect of the dispute.
(b)
Section 16 (2) (d) (i)— After "rent;", insert "and".
(c)
Section 16 (2) (d) (ii)— Omit "unreasonably".
(4) Section 17 (Landlord to give tenant copy of residential tenancy
agreement)—
Section 17(1)—
Omit "each tenant", insert instead "the tenant".
(5) Section 24 (Landlord's access to residential premises)—
(a) Section 24 (1)—
Omit "in writing".(b) Section 24 (1) (b), (c)— Omit "written" wherever occurring. (c) Section 24 (4A)—
After section 24 (4), insert:(4A) Without limiting the generality of subsection (4), the Tribunal may make an order under that subsection authorising the landlord or any other person to enter the residential premises for the purpose of determining whether the tenant has breached the term of the residential tenancy agreement set out in section 23.
| (6) Section 27 (Alterations, additions etc. to residential premises)— |
(a) Section 27 (c)—
Omit the paragraph.(b) Section 27 (e)—
Omit "reasonably".(c) Section 27 (2)—
At the end of section 27, insert:(2) Despite section 133B of the Conveyancing Act 1919 or any other law, it is not an implied term of a residential tenancy agreement that the landlord shall not unreasonably withhold or refuse consent to any proposed action by the tenant referred to in subsection (1) (a) or (b).
Residential Tenancies (Amendment) 1989
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ACT 1987—continued
(7) Section 28 (Urgent repairs)—
(a) Section 28 (1)—
Omit "$800", insert instead "$500".(b) Section 28 (1) (cl)—
After section 28 (1) (c), insert:(cl) if the landlord has, in the agreement, nominated a licensed or otherwise properly qualified person or persons to carry out repairs of the kind concerned, the tenant has made a reasonable attempt to arrange for that person or one of those persons to carry out the repairs;
(8) Section 32 (Changes of name or address)—
After section 32 (2), insert:
(2A) A landlord is not required to give the tenant notice of the landlord's residential address under this section if the landlord has given the tenant notice in writing of the business address of the landlord's agent.
(9) Section 33 (Right to assign rights or sub-let)—
(a) Section 33 (a)—
After "premises;", insert "and".(b) Section 33 (b)—
Omit the paragraph.(c) Section 33 (2)—
At the end of section 33, insert:
(2) Despite section 133B of the Conveyancing Act 1919 or any agreement that the landlord shall not unreasonably withhold or
other law, it is not an implied term of a residential tenancy
refuse consent to an assignment or sub-letting referred to in
subsection (1).(10) Section 38 (Rent in advance)—
Section 38 (1) (b)—
Omit "4 weeks' ", insert instead "1 month's".
(11) Section 48 (Matters to be considered in determining rent
applications)—
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(12) Section 49 (Orders as to excessive rent increases or rents)—
(a) Section 49 (3)— withdrawal by the landlord of any goods, services or facilities provided with the premises".
(b) Section 49 (3)— instead "the date of that reduction or withdrawal".
(13) Section 65 (Suspension or refusal of orders for termination)—
After section 65 (1), insert:
(1A) The Tribunal may, as a condition of the suspension of the operation of an order for possession, require the tenant to pay to the landlord an occupation fee specified by the Tribunal for the period for which the order for possession is suspended.
(14) Section 73 (Enforcement of orders for possession)—
Omit section 73 (1), insert instead:
(1) If an order for possession of residential premises is made by the Tribunal, then the Chairperson, any other member, the Registrar or a Deputy Registrar may—
(a) on the application of the person in whose favour the order was made; and (b) if satisfied that the order for possession or a condition of suspension of the order has not been complied with,
issue a warrant, in or to the effect of the prescribed form, authorising a sheriffs officer to enter the residential premises and
to give possession to the person in whose favour the order was made.
(15) Section 81 (Registrar, Deputy Registrars and staff of the Tribunal)—
(a) Section 81 (1)— Management Act 1988".
(b) Section 81 (3)—
Omit the subsection, insert instead:(3) The Tribunal may, with the approval of the Minister,
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ACT 1987—continued
(16) Sections 93 (5), 94 (2) (b) and (5), 95, 96 (1), 97, 98 (1), 104 (c) and
117—
Omit "Commissioner for Consumer Affairs" wherever occurring, insert instead "Tenancy Commissioner".
(17) Section 116 (Misconduct in proceedings before Tribunal)—
Section 116(3)— regulations for the purposes of this section".
(18) Part 7, head ing-
Omit "MISCELLANEOUS", insert instead "ADMINIS- TRATION".
(19) Sections 117A, 1 1 7 B — Before section 118, insert:
Tenancy Commissioner
11 7A. (1) A Tenancy Commissioner shall be employed under the Public Sector Management Act 1988.
(2) The Tenancy Commissioner has the functions conferred or imposed on the Tenancy Commissioner by or under this or any other Act.
(3) If the Tenancy Commissioner is absent from duty, the Minister may appoint an officer to act as Tenancy Commissioner during that absence and an officer so acting has the functions of the Tenancy Commissioner.
(4) It shall be presumed, unless the contrary is proved, that an
officer purporting to act under subsection (3) has been duly
appointed under that subsection. (5) The Tenancy Commissioner (including an acting Tenancy Commissioner) is, in the exercise of his or her functions as Tenancy Commissioner, subject to the control and direction of the Minister.
Staff
117B. (1) Such staff as may be necessary to enable the Tenancy Commissioner to exercise his or her functions shall be employed under the Public Sector Management Act 1988.
(2) The Tenancy Commissioner may, with the approval of the Minister, arrange for the use of the services of any staff or facilities of a government department, administrative office or a public or local authority.
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ACT 1987—continued
(20) Sections 118, 119 (1)—
Omit "Commissioner for Consumer Affairs" wherever occurring, insert instead "Tenancy Commissioner".
| (21) | Sections | 1 I 9 A - 1 1 9 E — |
After section 119, insert:
Office and identification of investigator11 9A. (1) The Minister may appoint an officer as an investigator for the purposes of this Act.
(2) The Minister may provide an investigator with a certificate of identification as an investigator.
(3) An investigator may not exercise in any premises a function conferred by section 11 9B unless the investigator produces his or her certificate of identification if requested to do so by a person apparently in charge of those premises or apparently in charge of any work being performed on those premises.
(4) A person is not required to give to an investigator information or evidence, or to produce a document, in compliance with a notice under section 11 9B unless the investigator produces, if requested to do so, his or her certificate of identification.
Power of investigator to obtain information, documents and evidence
119B. (1) If the Tenancy Commissioner believes on reasonable grounds that a person is capable of giving information, producing documents or giving evidence in relation to a matter
that constitutes, or may constitute, an offence against this Act, an investigator may, by notice in writing given to the person, require the person—
(a)
to provide an investigator, by writing signed by the person (or, in the case of a body corporate, by a competent officer of the body corporate) and given to the investigator within the time and in the manner specified in the notice, with any such information; or
(b)
to produce to an investigator, in accordance with the notice, any such documents; or
(c)
to appear before an investigator at a time and place specified in the notice and give any such evidence, either orally or in writing, and produce any such documents.
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ACT 1987—continued
(2) If the Tenancy Commissioner believes on reasonable grounds that a person has engaged, or is engaging, in conduct that constitutes, or may constitute, an offence against this Act, an investigator may, for the purpose of ascertaining by the examination of documents in the possession or under the control of the person whether the person has engaged, or is engaging, in that conduct—
(a) enter any premises; and
(b)
inspect any documents in the possession or under the control of the person; and
(c) make copies of, or take extracts from, those documents.
(3) A person shall not—
(a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it; or (b) in purported compliance with such a notice, provide information, or give evidence, that the person knows is false or misleading; or (c) hinder or obstruct an investigator exercising his or her functions under subsection (2). (4) A person is excused from providing information, giving evidence or producing or permitting the inspection of a document in accordance with this section on the ground that the information, evidence or document may tend to incriminate the person.
(5) This section does not authorise any person to enter a part of any premises that is being used for residential purposes without
the consent of the occupier of that part of the premises.
Inspection of documents by Tenancy Commissioner and others
119c. (1) The Tenancy Commissioner, a person authorised by the Commissioner or an investigator may inspect a document produced in accordance with a notice under section 1 19B and may make copies of, or take extracts from, the document.
(2) For the purposes of this Act, the Tenancy Commissioner or an investigator may—
(a) take possession; and
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ACT 1987—continued
of a document produced in accordance with a notice under section
119B.
(3) A person who is otherwise entitled to possession of a document retained under this section is entitled to be supplied, as soon as practicable, with a copy certified by an officer to be a true copy and the certified copy is admissible as evidence in all courts as if it were the original document.
Exclusion of personal liability
11 9D. No personal liability is incurred by the Tenancy Commissioner, an investigator or any other officer, for any act done or omitted in good faith for the purpose of executing this Act.
Annual report
11 9E. (1) AS soon as practicable after 30 June, but on or before 31 December, in each year, the Tenancy Commissioner shall prepare and forward to the Minister a report of the operations of the Tenancy Commissioner during that year.
(2) The Minister shall lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.
(22) Part 8, heading—
Before section 120, insert:
PART 8—MISCELLANEOUS
(23) Section 120A—
After section 120, insert:
Costs in court proceedings
120A. If a court in any proceedings is of the opinion that,
having regard to the subject-matter of the proceedings, the taking of the proceedings was not warranted in the circumstances of the case because this Act makes adequate provision for the enforcement by the Tribunal of the rights concerned, the court shall order the plaintiff to pay the defendant's costs in such amount as the court determines.
(24) Section 125 (Offences and penalties)—
Section 125 (1)—
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ACT 1987—continued
(25) Section 130 (Service of documents)—
(a) Section 130 (2) (b)—
Omit "or" where lastly occurring.(b) Section 130 (2) (bl)—
After section 130 (2) (b), insert:(bl) by sending it by facsimile transmission to the landlord's
usual place of residence or business or employment; or
(c) Section 130 (3)— transmission".
(26) Section 131 (Penalty notices for certain offences)—
Omit the section.
(27) Section 132 (New South Wales Land and Housing Corporation)—
(a) Section 132—
Omit "27, 33, 40 and 41", insert instead "40, 41 and 45 (2)".(b) Section 132(2)—
At the end of section 132, insert:(2) Section 35 does not apply to premises of which the New South Wales Land and Housing Corporation is the landlord.
(28) Section 135 (Amendment of Act No. 27, 1902, s. lOOi
(Interpretation))—
Omit the section.
[Minister's second reading speech made in—
Legislative Assembly on 10 November 1988
Legislative Council on 16 November 1988]
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