Residential Tenancies Amendment Act 2011 (WA)

Western Australia

Residential Tenancies Amendment Act 2011

Western Australia

Residential Tenancies Amendment Act 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

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

Residential Tenancies Amendment Act 2011

Contents

Division 1A — Form of residential tenancy

agreement and associated documents

27A.

Written residential tenancy agreement to

be in prescribed form

27B.

Information to be given to tenant by lessor

27C.

Property condition report at start and end

of tenancy

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

31B.

Increase in rent after renegotiating lease

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

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

40.	Section 41 amended	29
41.	Sections 42 to 46 replaced	29

42. Lessor’s responsibility for cleanliness and

repairs

43.

Urgent repairs

44.

Quiet enjoyment

45.

Securing premises

46.

Lessor’s right of entry

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

45.	Section 49 amended	38
46.	Section 50 amended	39

Residential Tenancies Amendment Act 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

49.	Section 52 amended	40
50.	Section 53 replaced	41

53. Tenant’s name, place of employment and

forwarding address

51.	Section 54 amended	41
52.	Section 55 replaced	42

55. Cost of written agreement to be borne by

lessor

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

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

64. Notice of termination by lessor without any

ground

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

Residential Tenancies Amendment Act 2011

Contents

70A.

Notice of termination by lessor or tenant at

end of fixed term tenancy

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

76B.

Dispute about s. 76A notice

Division 5 — General

76C.

Fixed term tenancies continued as

periodic tenancies

75.

Section 77 replaced

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

78.	Section 80 amended	66
79.	Section 81 replaced	66

81A.

Mortgagee repossessions of rented

properties

81B.

Notice of proposed recovery of premises

by person with superior title

81.

Order for tenancy against person with

superior title

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

87A.

Defence where lessor and property

manager are both charged with the same

offence

83.

Section 88A inserted

88A.

Infringement notices

84.	Section 88 amended	75
85.	Section 90 amended	76
86.	Part VII inserted	76

Residential Tenancies Amendment Act 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

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

87.

Schedule 1 amended

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

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

Residential Tenancies Amendment Act 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

Residential Tenancies Amendment Act 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

Western Australia

Residential Tenancies Amendment Act 2011

No. 60 of 2011

An Act to amend the Residential Tenancies Act 1987 and to consequentially amend various other Acts.

[Assented to 14 December 2011]

The Parliament of Western Australia enacts as follows:

Residential Tenancies Amendment Act 2011

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1. Short title

This is the Residential Tenancies Amendment Act 2011.

2. Commencement

This Act comes into operation as follows —

(a)	sections 1 and 2 — on the day on which this Act receives the Royal Assent;
(b)	the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

3. Act amended

This Act amends the Residential Tenancies Act 1987.

Residential Tenancies Amendment Act 2011

General amendments

Part 2

s. 4

Part 2 — General amendments

4. Long title amended

In the long title delete “owners” and insert:

lessors

5. Section 3 amended

(1)	In section 3 delete the definitions of:
*owner tenant*
(2)	In section 3 insert in alphabetical order:

bond means a security bond or a tenant compensation

bond;

bond administrator means the Commissioner as

defined in the Fair Trading Act 2010 section 6;

expiry day, in relation to a residential tenancy

agreement that creates a tenancy for a fixed term,

means the day on which the residential tenancy

agreement would (but for the operation of this Act)

upon its terms have terminated by effluxion of time or

the happening of an event;

lessor —

(a)	means a person who grants the right to occupy residential premises under a residential tenancy agreement; and

(b) includes —

(i) a personal representative, successor or assignee of a lessor; and

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 5

(ii) where the context requires, a prospective, or former, lessor;

property manager means a person who is —

(a)	licensed under the Real Estate and Business Agents Act 1978; and
(b)	in relation to a residential tenancy agreement, the agent of the lessor of the premises to which the agreement relates;

reasonable grounds, for suspecting that a tenant has

abandoned residential premises, means that the tenant

has failed to pay rent under the residential tenancy

agreement and that at least one of the following has

occurred —

(a)	the presence at the premises of uncollected mail, newspapers or other material;
(b)	reports from neighbours of the tenant or from other persons indicating the tenant has abandoned the premises;
(c)	the absence of household goods at the premises;
(d)	the disconnection of services (including gas, electricity and telephone) to the premises;

Rental Accommodation Account means the Rental

Accommodation Account established under Schedule 1

clause 3;

tenant —

(a)	means a person who is granted a right of occupancy of residential premises under a residential tenancy agreement; and
(b)	includes, where the context requires, a prospective, or former, tenant;

tenant compensation bond means a bond referred to in

section 59D(2).

Residential Tenancies Amendment Act 2011

General amendments

Part 2

s. 6

(3)	In section 3 in the definition of *residential tenancy agreement* before “whether express” insert:
whether or not in writing and
(4)	In section 3 in the definition of *security bond* delete “his” and insert:
the tenant’s

6. Section 5 amended

(1)	In section 5(2):

(a)	delete “agreement —” and insert:

agreement in any of the following circumstances —

(b)	in paragraph (a) delete “premises;” and insert:

premises, unless the period of the tenancy is

one month or longer;

(c)	in paragraph (f) delete “as owner,” and insert:

as lessor,

(d)	in paragraph (f) delete “Crown; or” and insert:

Crown;

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 7

(2)	In section 5(3):

(a)	delete “to —” and insert:

to any of the following —

(b)

delete paragraph (b) and insert:

(b)	accommodation for students provided —

(i) by an educational institution; or

(ii) by an entity, other than the educational institution, if the accommodation is provided other than for the purpose of making a profit,

unless the accommodation is prescribed, or is of a class prescribed, for the purposes of this paragraph;

(ca)	any part of a hospital or nursing home;

(c)

delete paragraph (d) and insert:

(d)	any premises used to provide residential care to approved care recipients by an approved provider as defined in the Aged Care Act 1997 (Commonwealth);

7. Section 7 amended

In section 7(3):

(a)	in paragraph (b) delete “his” and insert:

the lessor’s

Residential Tenancies Amendment Act 2011

General amendments

Part 2

s. 8

(b)	delete “apply, notwithstanding section 29(4) — ” and insert:

apply —

(c)	in paragraph (c) delete “in accordance with either paragraph (a) or (b) of clause 2(1) of Schedule 1;” and insert:

to the bond administrator;

(d)	in paragraph (d) delete “agreement; and” and insert:

agreement;

(e)

delete paragraph (e) and insert:

(e)	be credited to the Rental Accommodation Account and is to be taken, for the purposes of

any amount paid to the bond administrator must section 29(4)(b).

Note:	The heading to amended section 7 is to read:
Transitional provisions relating to the commencement of this Act

8. Section 9 amended

(1)	Before section 9(1) insert:

(1A)

In this section —

party, in relation to a residential tenancy agreement,

means a lessor or tenant under that agreement.

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 9

(2)	In section 9(2) delete “he” and insert:
the Commissioner
(3)	In section 9(3)(b) delete “him” and insert:
the Commissioner
(4)	In section 9(4)(e) delete “his” and insert:
the party’s
(5)	In section 9(5) delete “he” and insert:
the Commissioner
(6)	In section 9(6) delete “he” and insert:
the Commissioner
(7)	Delete section 9(10).

9. Section 10 amended

In section 10 delete “his” and insert:

the Commissioner’s

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 10

10. Section 11A amended

In section 11A(1) delete the Penalty and insert:

Penalty: a fine of $20 000.

11. Section 13 amended

In section 13(5) delete “he” and insert:

the plaintiff

12. Section 13A amended

(1)

In section 13A(3) delete “situated but, with the consent of the

parties, may be made to the court at any other place.” and insert:

situated.

(2)

After section 13A(3) insert:

(4)	Subsection (3) does not prevent the Magistrates Court from making an order under the Magistrates Court (Civil Proceedings) Act 2004 section 22 that proceedings under this Act are to be conducted at another place in the State.

13. Section 15 amended

(1)	In section 15(1) delete “he” and insert:
the lessor or tenant

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 14

(2)	In section 15(4):

(a)	delete “an agreement,” and insert:

a residential tenancy agreement,

(b)	after “by the” insert:

lessor or

(3)

After section 15(4) insert:

(5)	The court may order that a person be joined as a party to the proceedings if the court considers that —

(a)	the person ought to be bound by, or have the benefit of, a decision of the court in the proceedings; or
(b)	the person’s interests are affected by the proceedings; or
(c)	for any other reason it is desirable that the person be joined as a party.

(6)	The court may make an order under subsection (5) on the application of any person or on its own initiative.

14. Section 16 amended

In section 16(1) delete the Penalty and insert:

Penalty: a fine of $10 000.

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 15

15. Section 17A inserted

After section 16 insert:

17A.

Disputes between tenants

(1)

Where 2 or more tenants under a residential tenancy

agreement are jointly liable under the agreement to pay

an amount to the lessor and one of the tenants (the first

tenant) pays another tenant’s portion of that amount,

the first tenant may apply to a competent court for an

order that the other tenant pay to the first tenant the

other tenant’s portion.

(2)

The court hearing the application may —

(a)	make the order referred to in subsection (1); and
(b)	order the payment of compensation to the first tenant by the other tenant for loss or injury, other than personal injury, caused by a failure by the other tenant to pay that tenant’s portion of the amount referred to in subsection (1); and
(c)	make such ancillary or incidental order as the court considers appropriate.

16. Section 17 amended

(1)	In section 17(1):

(a)	delete “the court that heard and determined the proceedings” and insert:

a competent court

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 17

(b)	delete “his” and insert:

the person’s

(2)	In section 17(2) delete “within 14 days of ” and insert:
within 14 days after

17. Section 19 amended

(1)	In section 19(1)(b):

(a)	in subparagraph (ii) delete “he” and insert:

the person

(b)	in subparagraph (ii) delete “him” and insert:

the person

(c)	in subparagraph (iii) delete “he” and insert:

the person

(d)	in subparagraph (iii) delete “him” and insert:

the person

(2)	In section 19(2):

(a)	delete “him” and insert:

the person

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 18

(b)	delete the Penalty and insert:

Penalty: a fine of $10 000.

18. Section 20 amended

In section 20(f) delete “application or other step in respect of

proceedings must be made or” and insert:

action must be

19. Section 22 amended

(1)	Before section 22(1) insert:

(1A)

In this section —

proceedings means proceedings under this Act other

than proceedings for an offence against this Act.

(2)

In section 22(1) delete “his” (each occurrence) and insert:

the party’s

(3)

Delete section 22(2) and insert:

(2)	A party to any proceedings may be represented or assisted by an agent in the presentation of the party’s case if the agent is authorised by the party to do so and is —

(a)	the property manager of the premises the subject of the proceedings; or

Residential Tenancies Amendment Act 2011

Part 2

General amendments

s. 19

(b)	employed or engaged by a non-profit association or similar body to act as an advocate for tenants or lessors in proceedings.

(3A)	The authorisation must —

(a)	be made in writing in a form approved by the Minister; and
(b)	be lodged with the court together with the application, or response to the application, to which the proceedings relate, as the case requires.

(4)	In section 22(3):

(a)	delete “if —” and insert:

if any of the following applies —

(b)	in paragraph (d) delete “appear personally or conduct the proceedings properly himself; or” and insert:

conduct the proceedings without representation

by a legal practitioner;

(5)	In section 22(4):

(a)	in paragraph (a) delete “he” and insert:

the officer or employee

(b)	in paragraph (b) delete “his” and insert:

the person’s

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 20

(6)	In section 22(5):

(a)	in paragraphs (a) and (b) delete “he” and insert:

the person

(b)

delete paragraph (c) and insert:

(c)	where the party is a lessor, the person is a property manager of the premises the subject of the proceedings.

(c)

delete the Penalty and insert:

Penalty: a fine of $5 000.

(d)	after paragraph (a) insert:

20. Section 23 amended

(1)	In section 23(1)(a) delete “his” and insert:
the party’s
(2)	In section 23(2) delete “he” and insert:
the judicial officer

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 21

(3)

After section 23(3) insert:

(4)	The order is valid despite any inconsistency with Part IV or V.

21. Part IV heading replaced

Delete the heading to Part IV and insert:

Part IV — Residential tenancy agreements

22. Part IV Division 1A inserted

At the beginning of Part IV insert:

Division 1A — Form of residential tenancy agreement

and associated documents

27A.	Written residential tenancy agreement to be in prescribed form
A lessor must not enter into a written residential tenancy agreement except in the prescribed form.
Penalty: a fine of $5 000.
27B.	Information to be given to tenant by lessor
A lessor must give a copy of the information (if any) prescribed for the purposes of this section to each tenant —

(a)	in the case of a written residential tenancy agreement, at the time of entering into the agreement; or

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 22

(b)	in any other case, within 14 days after the tenant has taken possession of the residential premises.

Penalty: a fine of $5 000.

27C.

Property condition report at start and end of

tenancy

(1)	A lessor must, within 7 days after a tenant has entered into occupation of residential premises under a residential tenancy agreement —

(a)	prepare a report describing the condition of the premises; and
(b)

provide 2 copies of the report to the tenant. Penalty: a fine of $5 000.

(2)	A tenant given copies of a report under subsection (1)(b) who disagrees with any information in the report must, within 7 days of receiving the copies —

(a)	mark a copy in a manner that shows the information with which the tenant disagrees; and
(b)	give the copy back to the lessor.

(3)

If the tenant does not give a copy of the report back to

the lessor under subsection (2), the tenant is to be taken

to accept the report as a true and accurate description

of the condition of the residential premises.

(4)

A lessor must, as soon as practicable, and in any event

within 14 days, after the termination of a tenancy —

(a)	conduct an inspection of the residential premises; and
(b)	prepare a final report describing the condition of the premises; and

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 23
(c)
provide a copy of the report to the tenant. Penalty: a fine of $5 000.

(5)

The tenant is to be given a reasonable opportunity to be

present at the inspection conducted under

subsection (4)(a).

(6)

The regulations may prescribe information that must be

included in a property condition report.

23. Section 27 amended

(1)	In section 27(1):

(a)	delete “or prospective tenant”;
(b)	delete “consideration for or in relation to entering into, renewing, extending or continuing” and insert:

amount for or in relation to

(c)	delete the Penalty and insert:

Penalty: a fine of $5 000.

(2)	Delete section 27(2)(a) and insert:

(a)	any amount, not exceeding a prescribed amount, required or received as consideration for an option to enter into a residential tenancy agreement if —

(i) upon the option being exercised, the amount is refunded in cash or applied towards the rent payable under the agreement; or

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 24

(ii) upon the option being refused, and within 7 days of the decision to refuse the option, the amount is refunded in cash, by electronic means or in any other prescribed way;

and

24. Section 28 amended

(1)	In section 28(1) delete the Penalty and insert:

Penalty: a fine of $5 000.

(2)

Delete section 28(2) and insert:

(2)	A person must not require any payment of rent (other than the first payment) under a residential tenancy agreement —

(a)	until the period of the tenancy in respect of which any previous payment has been made has elapsed; and
(b)	unless the amount does not exceed 2 weeks’ rent.

Penalty: a fine of $5 000.

25. Section 29 amended

(1)	Before section 29(1) insert:

(1A)

In this section, unless the contrary intention appears —

pet does not include a guide dog as defined in the Dog

Act 1976 section 3(1);

security bond includes an instalment of a security

bond.

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 25

(2)	In section 29(1):

(a)	delete paragraph (b)(ii) and insert:

(ii) if the tenant is permitted to keep on the premises any pet capable of carrying parasites that can affect humans — a prescribed amount to meet the cost of any fumigation of the premises that may be required on the termination of the tenancy.

(b)	delete the Penalty and insert:

Penalty: a fine of $5 000.

(3)	Delete section 29(2) and insert:

(2A)	Subsection (1)(a) does not prevent a person from receiving a security bond in instalments.

(2)	Subsection (1)(b) does not apply in relation to a residential tenancy agreement where the weekly rate of rent payable under the agreement exceeds a prescribed amount.

(4)	In section 29(4):

(a)

delete paragraphs (b) and (c) and insert:

(b)	shall pay the amount of the bond to the bond administrator in accordance with Schedule 1 clause 5A; and
(c)	shall, at the time of making the payment referred to in paragraph (b), lodge with the

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 25

bond administrator a record in a form approved

by the Minister relating to the payment.

(b)	delete paragraph (d);
(c)	delete the Penalty and insert:

Penalty: a fine of $20 000.

(d)	after paragraph (a) insert:

and

(5)	Delete section 29(5).
(6)	In section 29(6):

(a)	after “false” insert:

or misleading

(b)	delete the Penalty and insert:

Penalty: a fine of $5 000.

(7)

After section 29(6) insert:

(7)

The bond administrator must pay the amount of the

security bond in accordance with Schedule 1 clause 5.

(8)

A lessor and property manager must ensure that an

application form referred to in Schedule 1

clause 5(1)(a) is not signed by a tenant unless —

(a)	the residential tenancy agreement to which the security bond relates has terminated; and

Residential Tenancies Amendment Act 2011

Part 2

General amendments

s. 26

(b)	any amount of the security bond to be paid to the lessor or tenant is stipulated on the form.

Penalty: a fine of $5 000.

26. Section 29A deleted

Delete section 29A.

27. Section 30 amended

(1)	In section 30(1):

(a)	delete “section,” and insert:

section and except where rent payable under a residential tenancy agreement is calculated by reference to the tenant’s income,

(b)	delete “notice in writing to the tenant” and insert:

written notice to the tenant, in a form approved by the

Minister,

(2)	In section 30(2)(a) delete “the agreement provides that the rent may increase or be increased; and” and insert:

the amount of the increase, or the method of

calculating the amount of the increase, is set out

in the agreement; and

Note:

The heading to amended section 30 is to read:

Variation of rent (except where calculated by reference to tenant’s

income)

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 28

28. Sections 31A and 31B inserted

After section 30 insert:

31A.

Variation of rent where calculated by reference to

tenant’s income

(1)

Where rent payable under a residential tenancy

agreement is calculated by reference to the tenant’s

income, the method by which the rent is calculated by

reference to that income may be changed by the lessor

in accordance with this section but otherwise the rent

must not increase or be increased.

(2)

The method may be changed by notice in writing to the

tenant, in a form approved by the Minister,

specifying —

(a)	the change to the method; and
(b)	the day as from which the change will take effect, being a day —

(i) not less than 60 days after the day on which the notice is given; and

(ii) not less than 6 months after the day on which the tenancy commenced, or, if the means of calculating rent has been changed under this section, the day on which it was last so changed.

31B.	Increase in rent after renegotiating lease
If —

(a)	a residential tenancy agreement creates a tenancy for a fixed term (the *former agreement*); and
(b)	the parties enter into a new residential tenancy agreement in relation to the same premises (the

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 29

new agreement) that is to commence

immediately after the end of the term of the

former agreement, whether under the terms of

the agreement or under section 76C,

then, during the first 30 days after the new agreement was entered into, the tenant cannot be required under the new agreement to pay an amount of rent more than

the amount payable under the former agreement.

29. Section 31 amended

In section 31(1)(b) delete “12 months” and insert:

6 months

30. Section 32 amended

(1)

Delete section 32(2) and insert:

(2)	An application under subsection (1) must be made not more than 30 days, or any greater period as the court thinks fit having regard to the justice and merits of the case, after —

(a)	the tenant has received notice of —

(i) an increase in the rent payable; or

(ii) a change in the method of calculating rent that results in an increase in the rent payable;

(b)	there has been, without any default on the part of the tenant, a significant reduction in the chattels or facilities provided with the premises.

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 31

(3A)	An application under subsection (1) may be made despite the fact that the tenant has paid, or agreed to pay, the rent to which the application relates.

(2)	In section 32(4) delete “not being” and insert:
which may be a day
(3)	In section 32(7) delete the Penalty and insert:

Penalty: a fine of $5 000.

31. Section 33 amended

(1)	In section 33(1):

(a)	delete “within 3 days of ” and insert:

within 3 days after

(b)	delete “give, or cause to be prepared and given, to” and insert:

give to

(c)	delete the Penalty and insert:

Penalty: a fine of $5 000.

(2)	In section 33(2) delete “of the Commonwealth” and insert:
(Commonwealth)

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 32

32. Section 34A inserted

After section 33 insert:

34A.	Manner of payment of rent
Except as otherwise provided in a residential tenancy agreement, a tenant under the agreement may pay rent in the form of cash or a cheque, or in the manner
referred to in section 33(2).

33. Section 34 amended

(1)	In section 34(1):

(a)	after “record” insert:

in accordance with subsection (2A)

(b)	delete the Penalty and insert:

Penalty: a fine of $5 000.

(2)	After section 34(1) insert:

(2A)	The record should specify all of the following —

(a)	the fact that the payment is for rent;
(b)	the date the rent is received;
(c)	the name of the person paying the rent;

(d) the amount paid;

(e)	the period in respect of which it is paid;
(f)	the premises in respect of which it is paid.

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 34

(3)	In section 34(2):

(a)	delete “is to his knowledge false” and insert:

the person knows is false or misleading

(b)	delete the Penalty and insert:

Penalty: a fine of $5 000.

34. Section 35 amended

In section 35 delete the Penalty and insert:

Penalty: a fine of $5 000.

35. Part IV Division 2 heading amended

In the heading to Part IV Division 2 delete “General” and

insert:

Standard terms

36. Section 37 deleted

Delete section 37.

37. Section 38 amended

(1)	In section 38(1) delete “every agreement” and insert:
every residential tenancy agreement

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 38

(2)	In section 38(1)(b) delete “but within 3 days of ” and insert:
after

38. Section 39 amended

In section 39 delete “every agreement” and insert:

every residential tenancy agreement

39. Section 40 replaced

Delete section 40 and insert:

40. Vacant possession

(1) In this section —

premises does not include —

(a)	any part of the premises in respect of which the tenant does not have a right of exclusive occupation; or
(b)	any part of the premises to which the parties to the residential tenancy agreement have agreed the tenant will not have access.

(2)	It is a term of every residential tenancy agreement that the tenant must have vacant possession of the premises on the day on which the tenant is entitled to enter into
occupation of the premises under the agreement.

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 40

40. Section 41 amended

In section 41:

(a)	delete “every agreement” and insert:

every residential tenancy agreement

(b)	delete “he” and insert:

the lessor

41. Sections 42 to 46 replaced

Delete sections 42 to 46 and insert:

42. Lessor’s responsibility for cleanliness and repairs

(1) In this section —

premises includes fixtures and chattels provided with

the premises, but does not include —

(a)	any fixture or chattel disclosed by the lessor as not functioning before the agreement was entered into; or
(b)	any other fixture or chattel that the tenant could not reasonably have expected to be functioning at the time the agreement was entered into.

(2)	It is a term of every residential tenancy agreement that the lessor —

(a)	must deliver up to the tenant vacant possession of the premises in a reasonable state of cleanliness and a reasonable state of repair having regard to its age and character; and

Residential Tenancies Amendment Act 2011

Part 2

General amendments

s. 41

(b)	must maintain the premises in a reasonable state of repair having regard to its age and character and must conduct any repairs within a

reasonable period after the need for the repair

arises; and

(c)	must comply with all requirements in respect of buildings, health and safety under any other written law insofar as they apply to the premises.

43. Urgent repairs

(1)

In this section —

prescribed period, in relation to the carrying out of

urgent repairs, means —

(a)	in relation to repairs necessary for the supply or restoration of a service prescribed in the regulations as an essential service — 24 hours; or
(b)

in relation to any other urgent repairs — regulations;

suitable repairer, in relation to urgent repairs, means a

person who is suitably qualified, trained or, if

necessary under any written law, licensed or otherwise

authorised, to undertake the work necessary to carry

out the repairs;

urgent repairs, in relation to residential premises,

means repairs to the premises that are necessary —

(a)	for the supply or restoration of a service prescribed in the regulations as an essential service; or

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 41

(b) to avoid —

(i) exposing a person to the risk of injury; or

(ii) exposing property to damage; or

(iii) causing the tenant undue hardship or inconvenience.

(2)	It is a term of every residential tenancy agreement that if a need for urgent repairs arises otherwise than as a result of a breach of the agreement by the tenant —

(a)	the tenant is to notify the lessor of the need for those repairs as soon as practicable after the need arises; and
(b)	the lessor is to ensure that the repairs are carried out by a suitable repairer as soon as practicable after that notification.

(3)

It is a term of every residential tenancy agreement that

if, within the prescribed period after the need for the

urgent repairs arises, the tenant is unable to contact the

lessor or, having notified the lessor of the need for the

repair, the lessor fails to ensure that the repairs are

carried out by a suitable repairer as soon as practicable

after that notification —

(a)	the tenant may arrange for the repairs to be carried out by a suitable repairer to the minimum extent necessary to effect those repairs; and
(b)	the lessor must, as soon as practicable after the repairs are carried out, reimburse the tenant for any reasonable expense incurred by the tenant in arranging for those repairs to be carried out and paying for those repairs.

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 41

44. Quiet enjoyment

(1) In this section —

premises includes fixtures and chattels provided with

the premises, but does not include —

(a)	any fixture or chattel disclosed by the lessor as not functioning before the agreement was entered into; or
(b)	any other fixture or chattel that the tenant could not reasonably have expected to be functioning at the time the agreement was entered into.

(2)	It is a term of every residential tenancy agreement —

(a)	that the tenant is to have quiet enjoyment of the premises without interruption by the lessor or any person claiming by, through or under the lessor or having superior title to that of the lessor; and
(b)	that the lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises; and
(c)	that the lessor must take all reasonable steps to enforce the obligation of any other tenant of the lessor in occupation of adjacent premises not to cause or permit any interference with the
reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.

45. Securing premises

It is a term of every residential tenancy agreement —

(a)	that the lessor must provide and maintain such means to ensure that the residential premises are reasonably secure as are prescribed in the regulations; and

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 41

(b)	that any lock or other means of securing the residential premises must not be altered, removed or added by a lessor or tenant without the consent of the other given at, or immediately before, the time that the alteration, removal or addition is carried out; and
(c)	that the lessor or the tenant must not unreasonably withhold the consent referred to in paragraph (b).

46. Lessor’s right of entry

(1)	In this section —
*lessor*, in relation to premises, includes the property manager of the premises acting on behalf of the lessor;
*premises* means any part of the premises in respect of which the tenant has a right of exclusive occupation;
*reasonable time* means —

(a)	between 8.00 a.m. and 6.00 p.m. on a weekday; or
(b)	between 9.00 a.m. and 5.00 p.m. on a Saturday; or
(c)	at any other time agreed between the lessor and each tenant.

(2)	It is a term of every residential tenancy agreement that the lessor may enter the premises in all or any of the following circumstances but not otherwise —

(a)	in any case of emergency;
(b)	premises or any other purpose, on a day and at

for conducting routine inspections of the given to the tenant —

(i) not less than 7 days before the proposed entry; and

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 41

(ii) within 14 days before the proposed entry;

(c)	at any reasonable time for the purpose of collecting the rent under the agreement, where it is payable not more frequently than once every week and it is agreed that the rent be collected at the premises;

(d) under section 77(4);

(e)	for the purpose of carrying out or inspecting necessary repairs to or maintenance of the premises, at any reasonable time, after giving the tenant not less than 72 hours notice in writing before the proposed entry;
(f)	for the purpose of showing the premises to prospective tenants, at any reasonable time and on a reasonable number of occasions during the period of 21 days preceding the termination of the agreement, after giving the tenant reasonable notice in writing;
(g)	for the purpose of showing the premises to prospective purchasers, at any reasonable time and on a reasonable number of occasions, after giving the tenant reasonable notice in writing;
(h)	with the consent of the tenant given at, or immediately before, the time of entry.

(3)

It is a term of every residential tenancy agreement that

the lessor may enter the premises under

subsection (2)(b) for the purpose of inspecting the

premises not more than 4 times in any 12 month

period.

(4)

It is a term of every residential tenancy agreement that before the lessor gives notice under subsection (2) of a proposed entry to the premises, the lessor must make a

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 42

reasonable attempt to negotiate a day and time for that

entry that does not unduly inconvenience the tenant.

(5)	It is a term of every residential tenancy agreement that where a lessor gives a tenant notice of an intention to enter premises on a particular day under subsection (2), the notice must specify —

(a)	the day of the entry; and
(b)	whether the entry will be before or after 12.00 p.m. on that day.

(6)

It is a term of every residential tenancy agreement that

if the lessor exercises a right of entry under

subsection (2)(f) or (g) the tenant is entitled to be on

the premises during the entry.

(7)

It is a term of every residential tenancy agreement that

the lessor exercising a right of entry under this

section —

(a)	must do so in a reasonable manner; and
(b)	must not, without the tenant’s consent, stay or permit others to stay on the premises longer than is necessary to achieve the purpose of the entry.

(8)	It is a term of every residential tenancy agreement that the lessor is to compensate the tenant if the lessor or any person accompanying the lessor causes damage to the tenant’s goods on the premises when exercising a right of entry under subsection (2).

42. Section 47 amended

(1)	In section 47(1) delete “An agreement” and insert:
A residential tenancy agreement

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 43

(2)

In section 47(2)(b) and (c) delete “he” (each occurrence) and

insert:

the tenant

(3)

After section 47(2) insert:

(3)	It is a term of every residential tenancy agreement that —

(a)	the lessor may affix any fixture or make any renovation, alteration or addition to the premises, but only with the tenant’s consent; and
(b)	the tenant must not unreasonably withhold such consent.

43. Section 48 amended

(1)	In section 48:

(a)	delete “It is a term of every agreement” and insert:

(1)	It is a term of every residential tenancy agreement

(b)	in paragraph (c) delete ““water services”, as defined in the Water Agencies (Powers) Act 1984,” and insert:

water supply or sewerage services under the

Water Agencies (Powers) Act 1984,

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 44

(2)

At the end of section 48 insert:

(2)	It is a term of every residential tenancy agreement that a contribution levied on a proprietor under the Strata Titles Act 1985 section 36 cannot be passed on to a tenant.

44. Section 49A inserted

After section 48 insert:

49A.

Lessor’s and tenant’s responsibilities in respect of

public utility services

(1)	In this section —
*GST* has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth);
*public utility services* has the meaning given in the Land Administration Act 1997 section 3(1).
(2)	It is a term of every residential tenancy agreement that the tenant must pay a charge in relation to a public utility service provided to the premises only if —

(a)	the charge is calculated by reference to consumption at the residential premises by the tenant; and
(b)	the tenant is given notice in writing of the charge in relation to the public utility service, specifying —

(i) if consumption at the premises is metered — the relevant meter reading, or readings, and the charge per metered unit; or

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 45

(ii) if consumption at the premises is not metered and the lessor and tenant have agreed in writing to an alternative method of calculating the charge to be paid by the tenant — the charge calculated in accordance with the agreed method;

and

(c)	the tenant is provided with full details of the account for the charge including —

(i) any meter readings and the charge per metered unit; or

(ii) the agreed method of calculating referred to in paragraph (b)(ii),

and the amount of GST payable in respect of

the provision of the public utility service to the

residential premises.

45. Section 49 amended

(1)	In section 49(1):

(a)	delete “An agreement” and insert:

A residential tenancy agreement

(b)	in paragraphs (a), (b) and (c) delete “his” and insert:

the tenant’s

(2)	In section 49(2)(b) delete “his” and insert:
the lessor’s

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 46

46. Section 50 amended

In section 50(1) delete “every agreement” and insert:

every residential tenancy agreement

47. Part IV Division 3 heading inserted

After section 50 insert:

Division 3 — General

48. Section 51 replaced

Delete section 51 and insert:

51. Tenant to be notified of lessor’s name and address

(1)	Unless subsection (2) applies, at the time of entering into a residential tenancy agreement the lessor must notify the tenant, or cause the tenant to be notified, in
writing of —

(a)	if the lessor is an individual — the full name and address of —

(i) the lessor; and

(ii) any person having superior title to that of the lessor;

(b)	if the lessor is a body corporate — the full name and business address of the secretary of the body corporate.

Penalty: a fine of $5 000.

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 49

(2)	If residential premises that are the subject of a residential tenancy agreement are managed by a property manager, the lessor and the property manager must, at the time of entering into the agreement, notify the tenant, or cause the tenant to be notified, in writing of —

(a)	the full name of the lessor; and
(b)	the full name and address of the property manager.

Penalty: a fine of $5 000.

(3)

Where a person succeeds another person as the lessor under a residential tenancy agreement, the new lessor must, within 14 days after the succession, notify the

tenant, or cause the tenant to be notified, in writing

of —

(a)	the full name and address of the new lessor; and
(b)	where the new lessor is a body corporate, the full name and business address of the secretary of the body corporate.

Penalty: a fine of $5 000.

(4)

Where any name or address of which the lessor is

required to notify the tenant under this section is

changed, the lessor must, within 14 days after the

change, notify the tenant, or cause the tenant to be

notified, in writing of the changed name or address.

Penalty: a fine of $5 000.

49. Section 52 amended

In section 52 delete the Penalty and insert:

Penalty: a fine of $5 000.

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 50

50. Section 53 replaced

Delete section 53 and insert:

53. Tenant’s name, place of employment and forwarding address

(1)	A tenant under a residential tenancy agreement must not falsely state to the lessor the tenant’s name or place of employment.
Penalty: a fine of $5 000.
(2)	Where a tenant has stated a place of employment to the lessor and that place is changed, the tenant must, within 14 days after the change, notify the lessor, or cause the lessor to be notified, in writing of the new place of
employment.
Penalty: a fine of $5 000.
(3)	A tenant under a residential tenancy agreement must, at the time of delivering up possession of the premises to which the agreement relates, notify the lessor, or cause the lessor to be notified, in writing of —

(a)	the address at which the tenant intends to next reside; or

(b) the tenant’s postal address.

Penalty: a fine of $5 000.

51. Section 54 amended

(1)	In section 54(1):

(a)	delete “An owner, or agent of an owner” and insert:

A lessor or a property manager of residential premises

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 52

(b)	after “written” insert:

residential tenancy

(c)	in paragraph (b) delete “within 21 days” and insert:

within 14 days

(d)	delete the Penalty and insert:

Penalty: a fine of $5 000.

(2)	In section 54(2):

(a)	delete “an owner, or agent of an owner,” and insert:

a lessor or a property manager of residential premises

(b)	delete “the owner, or agent of the owner,” and insert:

the lessor or property manager

Note:	The heading to amended section 54 is to read:
Lessor to deliver copy of agreement to tenant

52. Section 55 replaced

Delete section 55 and insert:

55. Cost of written agreement to be borne by lessor

Where a lessor requires the execution of a written

residential tenancy agreement or a memorandum of a

residential tenancy agreement, the cost of its

preparation must be borne by the lessor.

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 53

53. Section 56 amended

(1)	In section 56(1) delete the Penalty and insert:

Penalty: a fine of $5 000.

(2)	In section 56(2)(b):

(a)	delete “his” and insert:

the person’s

(b)	delete “person, if it” and insert:

person on the ground that it

(c)	delete the Penalty and insert:

Penalty: a fine of $5 000.

(3)	Delete section 56(3).

54. Section 57 amended

After section 57(1) insert:

(2A)

A lessor or property manager who executes a

residential tenancy agreement with a provision of the

kind referred to in subsection (1) commits an offence.

Penalty: a fine of $5 000.

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 55

55. Section 58 amended

In section 58 delete “an agreement.” and insert:

a residential tenancy agreement.

56. Sections 59A to 59F inserted

At the end of Part IV insert:

59A.

Minors

(1) In this section —

minor means a person who has reached 16 years of age

but who has not reached 18 years of age.

(2)	Despite any other law in force in this State —

(a)	a minor has the capacity to enter into a residential tenancy agreement as a tenant; and
(b)	a residential tenancy agreement may be enforced in accordance with this Act against a minor who is a tenant.

59B.

Death of one of 2 or more tenants

(1)	This section applies if —

(a)	2 or more tenants are parties to a residential tenancy agreement; and
(b)	the tenants are not joint tenants under the agreement; and
(c)	one of the tenants dies.

(2)	On the death of the tenant —

(a)	the deceased tenant’s interest in the tenancy ends; and

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 56

(b)	the agreement continues in force with the parties to the agreement being the lessor and the surviving tenant or tenants.

(3)	Subsection (2) does not affect, as between the deceased tenant and the surviving tenant or tenants, any right (including, in particular, a right relating to a security bond) or liability of the deceased tenant existing immediately before the deceased tenant’s death.

59C.

Recognition of certain persons as tenants

(1)	A person who is not a tenant but who is occupying residential premises to which a residential tenancy agreement applies may apply to a competent court to
be recognised as a tenant under the agreement or to be joined as a party to any proceedings before the court relating to the premises, or both.
(2)	An application by a person to be recognised as a tenant may be made at the same time as any other application or during proceedings before the court or
independently of any such other application or proceedings.
(3)	On application by a person under this section the court may make either or both of the following orders —

(a)	an order recognising the person as a tenant under a residential tenancy agreement and in that case the person is to be taken, for the purposes of this or any other Act and of the agreement, to be a tenant under the agreement;
(b)	an order joining the person as a party to proceedings.

(4)	In making an order referred to in subsection (3)(a) the court may order that the tenancy be continued on such of the terms and conditions of the residential tenancy

Residential Tenancies Amendment Act 2011

Part 2

General amendments

s. 56

agreement as it thinks are appropriate having regard to

the circumstances of the case.

59D.

Tenant compensation bonds

(1) In this section —

tenant compensation order means an order under

section 15(2)(b) in relation to a failure by a lessor to

reimburse a tenant for reasonable expenses incurred by

the tenant in arranging for urgent repairs to be carried

out, and paying for those repairs, in accordance with

section 43.

(2)	A court that makes a tenant compensation order against a lessor may make a further order requiring the lessor to pay to the bond administrator a tenant compensation bond to cover any future tenant compensation orders that might be made against the lessor in respect of —

(a)	a particular tenant or particular residential premises of the lessor; or
(b)	any tenant or residential premises of the lessor.

(3)	The tenant compensation bond is to be an amount determined by the court.
(4)	The lessor may apply to the court for an order that the whole or part of a tenant compensation bond is to be paid back to the lessor.
(5)	The court may make the order referred to in subsection (4) if it is satisfied that it is appropriate in the circumstances to do so.
(6)	The bond administrator must pay the amount of the tenant compensation bond in accordance with —

(a)	Schedule 1 clause 10; or
(b)	an order under subsection (5) and Schedule 1 clause 11.

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 56

59E.

Interference with quiet enjoyment

(1)

A lessor who causes or permits interference with the reasonable peace, comfort or privacy of the tenant in the tenant’s use of the premises commits an offence.

Penalty: a fine of $10 000.

(2)

The liability of a person in civil proceedings is not

affected by the commencement of proceedings against

the person for an offence under subsection (1) or the

conviction of the person in proceedings for the offence.

59F.

Offences relating to security of residential premises

(1)	A lessor or tenant who breaches the term referred to in section 45(b) without reasonable excuse commits an offence.
Penalty: a fine of $20 000.
(2)	A property manager of residential premises who, without reasonable excuse alters, removes or adds a lock or other means of securing the residential premises without the consent of the tenant given at, or immediately before, the time that the alteration, removal or addition is carried out, in addition to any civil liability that the property manager might incur, commits an offence.
Penalty: a fine of $20 000.
(3)	The liability of a person in civil proceedings is not affected by the commencement of proceedings against the person for an offence under this section or the conviction of the person in proceedings for the offence.

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 57

57. Part V Division 1 heading inserted

At the beginning of Part V insert:

Division 1 — How residential tenancy agreements

are terminated

58. Section 59 deleted

Delete section 59.

59. Section 60 amended

(1)	In section 60(1):

(a)	delete “(1) Notwithstanding” and insert:

Despite

(b)	delete “except —” and insert:

except in one of the following circumstances —

(c)

delete paragraph (b) and insert:

(b)	in the case of a tenancy for a fixed term, where the lessor or tenant gives a notice of termination under section 70A and —

(i) the tenant delivers up possession of the premises on or after the day on which the term of the agreement expires in accordance with that section; or

(ii)

a competent court, upon application by under section 72;

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 60

(d)

delete paragraph (h) and insert:

(h)	where the agreement terminates by merger;

(e)

after paragraph (h) insert:

(i)	where every tenant dies.

(2)	Delete section 60(2) and (3).

60. Part V Division 2 heading inserted

After section 60 insert:

Division 2 — Notices of termination

61. Section 61 replaced

Delete section 61 and insert:

61. Form of notice of termination by lessor

Notice of termination of a residential tenancy

agreement by the lessor must —

(a)	be in writing and in the prescribed form; and
(b)	be signed by the lessor or a property manager of the residential premises; and
(c)	identify the premises the subject of the agreement; and
(d)	specify the day on which possession of the premises is to be delivered up by the tenant; and

Residential Tenancies Amendment Act 2011

Part 2

General amendments

s. 62

(e)	specify and give particulars of the ground, if any, upon which the notice is given.

62. Section 62 amended

In section 62(2) delete “7 days.” and insert:

7 days before the day on which the tenant is required

under the notice to give the lessor possession of the

premises.

63. Sections 63 and 64 replaced

Delete sections 63 and 64 and insert:

63. Notice of termination by lessor who has entered into contract of sale

(1)	A lessor may give notice of termination of a residential tenancy agreement to the tenant on the ground that the lessor has entered into a contract for the sale of the
premises to which the agreement relates and under that contract the lessor is required to give vacant possession of the premises.
(2)	Where a lessor gives notice of termination under subsection (1) the period of notice must be not less than 30 days before the day on which the tenant is required under the notice to give to the lessor possession of the premises.
(3)	A lessor, or a property manager acting on behalf of the lessor, must not give notice of termination under this section that the person knows is false or misleading in a material particular.
Penalty: a fine of $10 000.

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 63

(4)	This section does not apply to a residential tenancy agreement that creates a tenancy for a fixed term during the currency of that term.

64. Notice of termination by lessor without any ground

(1)

A lessor may give notice of termination of a residential tenancy agreement to the tenant without specifying any ground for the notice.

(2)

Where a lessor gives notice of termination under this

section, the period of notice must be not less than

60 days before the day on which the tenant is required

under the notice to give to the lessor possession of the

premises.

(3)

A tenant may, within 7 days after receiving a notice of

termination under this section, apply to a competent

court for an order —

(a)	that the period of notice be extended by a further period of up to 60 days; or
(b)	if the tenant is of the opinion that the grounds set out in section 71(3)(b)(i) apply — that the residential tenancy agreement is not terminated

as a consequence of the notice.

(4)	On an application under subsection (3) the court may, as it thinks fit having regard to the justice and merits of the case —

(a)

extend the period of notice for a further period of up to 60 days and make such other orders as to compensation of the lessor for any loss

caused by the extension or as to any other

matter that it considers is, in the circumstances

of the case, appropriate; or

(b)

make an order that the residential tenancy agreement is not terminated as a consequence of the notice; or

Residential Tenancies Amendment Act 2011

Part 2

General amendments

s. 64

(c)	make an order referred to in section 71(2) and in that case the court must specify the day as from which the order for possession operates, being a day that is the later of —

(i) a day not less than 60 days after the day on which the notice of termination was received; or

(ii) a day within 7 days after the day on which the order was made.

(5)	This section does not apply in relation to a residential tenancy agreement that creates a tenancy for a fixed term during the currency of that term.

64. Section 65 amended

In section 65(1) delete “an agreement —” and insert:

a residential tenancy agreement —

65. Section 66 amended

In section 66 delete “he” and insert:

the lessor

66. Section 68 amended

In section 68(2) delete “21 days.” and insert:

21 days before the termination day.

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 67

67. Section 69 amended

(1)	In section 69(2) delete “7 days.” and insert:
7 days before the termination day.
(2)	In section 69(3) delete “2 days.” and insert:
2 days before the termination day.

68. Section 70A inserted

After section 69 insert:

70A.

Notice of termination by lessor or tenant at end of

fixed term tenancy

(1)

In this section —

agreement means a residential tenancy agreement that

creates a tenancy for a fixed term;

notice means a notice of termination referred to in

subsection (2);

possession day means the day specified in a notice as

the day on which possession of the premises is to be

delivered up by the tenant and has the meaning affected

by subsection (6).

(2)

Despite any other written law or a requirement under a

contract, the term of a residential tenancy agreement

does not end on the expiry day unless the lessor or

tenant has given a notice of termination of the

agreement to the other party specifying a day on which

possession of the residential premises is to be delivered

up by the tenant.

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 68

(3)

The notice must be given not later than 30 days before

the possession day.

(4)

The possession day must not be a day earlier than the

expiry day.

(5)

If the possession day is later than the expiry day,

then —

(a)	the term of the agreement expires on the possession day, and not on the expiry day; and
(b)	the terms of the agreement are to be taken, for all purposes, to be varied to that extent.

(6)	If both the lessor and tenant give a notice to each other and the notices specify different possession days, then the day that is the earlier of the 2 days is to be taken to be the possession day.

(7) If —

(a)	the day on which the term of the agreement is to expire under subsection (5)(a) is the possession day under a notice given by the lessor; and
(b)	the tenant delivers up possession of the premises after the expiry day but before the possession day,

then the day on which the tenant delivers up possession

of the premises is to be taken to be the possession day

for the purposes of subsection (5).

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 69

69. Part V Division 4 heading inserted

Before section 71 insert:

Division 4 — Orders for termination of residential

tenancy agreement

70. Section 71 amended

(1)	In section 71(1) after “under this Act” insert:
except under section 70A
(2)	In section 71(3)(a) delete “30 days,” and insert:
30 days after the day on which the orders are made,
(3)	In section 71(4):

(a)	delete “his” and insert:

the tenant’s

(b)	delete “he” and insert:

the lessor

(4)	In section 71(5) delete “not more than” and insert:
within

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 71

71. Section 72 amended

(1)	Delete section 72(1) and insert:

(1A)

In this section —

agreement has the meaning given in section 70A(1);

possession day has the meaning given in

section 70A(1).

(1)

Where a lessor or a tenant under an agreement gives

notice of termination under section 70A and the tenant

fails to deliver up possession of the premises on the

possession day, the lessor may, within 30 days after the

possession day, apply to a competent court for an order

terminating the agreement and an order for possession

of the premises.

(2)	In section 72(3)(b):

(a)	in subparagraph (i) delete “he” and insert:

the lessor

(b)	in subparagraph (ii) delete “his” and insert:

the tenant’s

(3)	In section 72(4) delete “not more than” and insert:
within

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 72

72. Section 73 amended

In section 73(1) delete “the owner or his agent” and insert:

the lessor or the property manager of the premises

73. Section 74 amended

(1)	In section 74(1):

(a)	delete “the owner” (each occurrence) and insert:

the lessor or tenant

(b)	delete “he” and insert:

the lessor or tenant

(2)

In section 74(2)(b) after “tenant” insert:

or lessor

Note:

The heading to amended section 74 is to read:

Termination of agreement where lessor or tenant would otherwise

suffer undue hardship

74. Sections 76A and 76B, Part V Division 5 heading and section 76C inserted

After section 75 insert:

76A.

Termination of agreement by lessor if premises

abandoned

(1)	If a lessor suspects on reasonable grounds that a tenant has abandoned the residential premises, the lessor may

Residential Tenancies Amendment Act 2011

Part 2

General amendments

s. 74

give a written notice to the tenant terminating the

agreement.

(2)	The notice must be in a form approved by the Minister and must —

(a)	be signed by or for the lessor or property manager; and
(b)	identify the residential premises; and
(c)	state the lessor is terminating the agreement because the tenant has abandoned the premises.

(3)	If the tenant does not take action under section 76B to dispute the notice within 7 days after being given the notice, the tenant is to be taken to have abandoned the premises.

76B.

Dispute about s. 76A notice

(1)	If the tenant wishes to dispute a notice given under section 76A, the tenant may apply to a competent court for an order —

(a)	setting aside the notice; or

(b) for compensation.

(2)

The application must be made within 28 days after the

notice is given.

(3)

On an application under this section, the court may —

(a)	if the application was made within 7 days after the notice was given — make an order setting aside the notice; or
(b)	if paragraph (a) does not apply — make any of the following orders —

(i) an order terminating the agreement;

(ii)

an order requiring the lessor to pay to as compensation for loss or expense

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 75

incurred by the tenant because of the

termination of the agreement;

(iii) any other order it considers appropriate.

Division 5 — General

76C.

Fixed term tenancies continued as periodic

tenancies

(1)

This section applies to a residential tenancy agreement

that creates a tenancy for a fixed term unless the

agreement is terminated before the expiry day.

(2)

Subject to subsection (3), a residential tenancy

agreement continues as a periodic tenancy after the

expiry day on the same terms that applied immediately

before the expiry day.

(3)

A competent court may, upon application by the lessor

or tenant, make such modification to the terms of the

residential tenancy agreement as may be necessary for,

or appropriate to, its continuance.

75. Section 77 replaced

Delete section 77 and insert:

77. Abandonment of premises

(1)	If the lessor suspects on reasonable grounds that the tenant has abandoned the residential premises, the lessor may give to the tenant a written notice stating that —

(a)	the lessor suspects that the tenant has abandoned the premises; and
(b)	unless the tenant informs the lessor within 24 hours after the giving of the notice that the

Residential Tenancies Amendment Act 2011

Part 2	General amendments
s. 75

tenant has not abandoned the premises, the

lessor —

(i) will enter the premises for the purpose of inspecting and securing them; and

(ii) may give to the tenant a notice under section 76A or apply to a competent court for an order under section 78A.

(2)

The notice under subsection (1) must be in a form

approved by the Minister.

(3)

The lessor must give the notice to the tenant by —

(a)	leaving a copy at the premises; and
(b)	leaving a copy at the tenant’s last known place of employment.

(4)

If the tenant fails to notify the lessor within 24 hours after notice has been given under subsection (3) that the premises have not been abandoned, the lessor may

enter the premises for the purposes of inspecting and

securing them.

78A.

Order about abandonment

(1)	If a lessor suspects on reasonable grounds that the tenant has abandoned the residential premises, the lessor may apply to a competent court for an order under this section.
(2)	The lessor may make the application instead of giving a notice under section 76A to the tenant.
(3)	If an application is made, the court may make an order declaring that the premises were abandoned by the tenant on the day stated in the order.
(4)	If the court makes an order under subsection (3), the tenant is taken to have abandoned the premises on the day stated in the order.

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 76

78B.

Review of abandonment order

(1)

The tenant under a residential tenancy agreement who

is dissatisfied with a decision of a court under

section 78A(3) declaring that the tenant abandoned the

premises on a stated day may apply to the court for a

review of the decision.

(2)

The application must be made within 28 days after the

decision is made.

(3)

The review is to be by way of a rehearing.

(4) The court —

(a)	must exercise its original jurisdiction for the review; and
(b)	may make an order under this section if it is satisfied the applicant did not abandon the premises or only abandoned the premises on a day after the day stated.

(5)	The order the court may make is an order requiring the lessor under the agreement to pay to the tenant an amount the court considers appropriate as compensation for any loss or expense incurred by the tenant by the termination of the agreement.

76. Section 79 amended

(1)	Before section 79(1) insert:

(1A)

In this section —

goods does not include a tenant’s document as defined

in section 80A.

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Part 2	General amendments
s. 76

(2)	In section 79(2) delete “60 days.” and insert:
60 days after the day on which the agreement is terminated.
(3)	At the end of section 79(2) insert:

Penalty: a fine of $5 000.

(4)	In section 79(3):

(a)	delete “he” and insert:

the lessor

(b)	in paragraph (a) delete “former”;
(c)	in paragraph (a) delete “him” and insert:

the lessor

(d)	in paragraph (a) delete “his” and insert:

the tenant’s

(5)	At the end of section 79(3) insert:

Penalty: a fine of $5 000.

(6)	In section 79(4) delete “his” and insert:
the Commissioner’s

Residential Tenancies Amendment Act 2011

General amendments	Part 2
s. 76

(7)	In section 79(5):

(a)	delete “an owner” and insert:

a lessor

Part 3

Amendments relating to terminating social housing tenancy

agreements

s. 92

Housing Authority means the Housing Authority referred to in the Housing Act 1980 section 6(4);

Minister for Housing means the Minister to whom the

administration of the Housing Act 1980 is committed;

social housing premises means residential premises let

by a social housing provider under a social housing

tenancy agreement, but does not include any premises

that are excluded by regulation from the ambit of this

definition;

social housing provider means any of the following — (a) the Housing Authority;

(b)	a body or person prescribed, or of a class prescribed, for the purposes of this definition;

social housing tenancy agreement means a residential

tenancy agreement in respect of social housing

premises, but does not include any agreement that is

excluded by regulation from the ambit of this

definition.

71B.	Application of Division
This Division does not limit the operation of the other provisions of this Part in relation to residential tenancy agreements that are social housing tenancy agreements.

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

A lessor under a social housing tenancy agreement may

give notice of termination of the agreement to the

tenant on the ground that the lessor has determined, as

the result of an assessment carried out under

section 71D, that the tenant is not eligible to reside in

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agreements

s. 92

social housing premises, or to reside in the class of

social housing premises to which the agreement relates.

71D.

Assessment of tenants eligibility for social housing

premises

(1)	In carrying out an assessment of the eligibility of a tenant under a social housing tenancy agreement (the *agreement*) to reside in social housing premises, or to reside in the class of social housing premises to which the agreement relates, the lessor is to apply the criteria approved under section 71E for the purposes of this Subdivision.
(2)	The lessor may request the tenant to provide any information that is reasonably required to enable the lessor to determine whether the tenant meets the criteria for the purposes of an assessment under this section.
(3)	If the tenant refuses to provide any such information to the lessor, the lessor may determine, without further inquiry, that the tenant is not eligible to reside in social housing premises, or to reside in the class of social housing premises to which the agreement relates.
(4)	In the case of a social housing tenancy agreement that creates a tenancy for a fixed term, an assessment under this section may not be carried out prior to 6 months
before the end of the term.

71E.

Criteria for assessing eligibility of tenants for social

housing premises under section 71D

(1)

The Minister for Housing is to approve criteria for the

purposes of this Subdivision.

(2)

The criteria may differ from the criteria used to assess

a person’s eligibility to commence residing in social

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agreements

s. 92

housing premises, or in a particular class of social

housing premises.

(3)

The criteria must not relate to whether or not a tenant

has complied with any term of a residential tenancy

agreement.

(4)

The criteria must be made publicly available.

(5)

A copy of the criteria must be provided, on request, to

any tenant under a social housing tenancy agreement

free of charge and to other persons either free of charge

or on payment of the reasonable cost incurred in

copying the criteria.

71F.

Review of decision to give notice on ground that

tenant not eligible for social housing premises

(1)	Before giving notice of termination of a social housing tenancy agreement to a tenant on the ground referred to in section 71C, the lessor must advise the tenant of the decision to do so by notice in writing.
(2)	A notice given under this section must —

(a)	contain particulars of the reasons why the tenant is no longer considered eligible to reside in the premises; and
(b)

state that the tenant may apply to the lessor for notice is given and give particulars of how such an application may be made; and

(c)	state that the tenant is entitled to make representations to the lessor in writing, or (if the tenant wishes) orally, as to why the agreement should not be terminated.

(3)	The tenant may, in accordance with the notice —

(a)	apply to the lessor for a review of the decision; and

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agreements

s. 92

(b)

make representations in writing, or (if the agreement should not be terminated.

(4)

If the tenant applies to the lessor for a review under this

section, the lessor must review the decision, in

accordance with any procedures approved by the

Minister for Housing for the purposes of this section,

and consider any representations made by the tenant.

(5)

After the review is carried out, the lessor may —

(a)	give notice of termination of the agreement on the ground referred to in section 71C; or
(b)	advise the tenant, by notice in writing, that the lessor has decided not to give notice of termination of the agreement.

71G.

Time periods to be observed where notice of

termination given under this Subdivision

(1)	A notice of termination of a social housing tenancy agreement cannot be given to a tenant on the ground referred to in section 71C before the later of the following —

(a)	tenant may apply for a review under

the end of the 30 day period within which the termination;

(b)	the end of any such review carried out in respect of that decision.

(2)	The notice of termination cannot specify as the day on which vacant possession of the premises is to be delivered up to the lessor a day that is earlier than —

(a)	in the case of a social housing tenancy agreement that creates a tenancy for a fixed term, 60 days after the day on which the notice

Residential Tenancies Amendment Act 2011

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agreements

s. 92

is given or the day the term of the agreement

ends, whichever is the later; or

(b)	in any other case, 60 days after the day on which the notice of termination is given.

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

A lessor under a social housing tenancy agreement may

give notice of termination of the agreement (the

existing agreement) to the tenant on the ground that

the lessor has offered to enter into a new social housing

tenancy agreement with the tenant in respect of

alternative premises to the premises the subject of the

existing agreement.

71I.

Review of decision to give notice on ground that

tenant offered alternative social housing premises

(1)

Before giving notice of termination of a social housing tenancy agreement to a tenant on the ground referred to in section 71H, the lessor must advise the tenant of the decision to do so by notice in writing.

(2)

The lessor may make the offer to enter into a new

social housing tenancy agreement and give notice of

the decision at the same time.

(3)

A notice given under this section must —

(a)	contain particulars of the reasons why the lessor wishes the tenant to move to alternative premises; and
(b)	state that the tenant may apply to the lessor for a review of the decision within 30 days after the

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s. 92

notice is given and give particulars of how such

an application may be made; and

(c)	state that the tenant is entitled to make representations to the lessor in writing, or (if the tenant wishes) orally, as to why the existing agreement should not be terminated.

(4)	The tenant may, in accordance with the notice —

(a)	apply to the lessor for a review of the decision; and
(b)

make representations in writing, or (if the existing agreement should not be terminated.

(5)

If the tenant applies to the lessor for a review under this

section, the lessor must review the decision, in

accordance with any procedures approved by the

Minister for Housing for the purposes of this section,

and consider any representations made by the tenant.

(6)

After the review is carried out, the lessor may —

(a)	give notice of termination of the existing agreement on the ground referred to in section 71H; or
(b)	advise the tenant, by notice in writing, that the lessor has decided not to give notice of termination of the existing agreement; or
(c)	make a new offer to the tenant to enter into a new social housing tenancy agreement in respect of alternative premises that differ from those the subject of the offer in respect of which the review was carried out.

(7)	If a new offer is made under subsection (6)(c), subsections (1) to (6) apply in relation to giving notice of termination in connection with the new offer.

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s. 92

(8)

If the situation referred to in subsection (7) applies, the

lessor is required to give a second notice, and the

tenant is entitled to a second review, under this section,

however, the lessor is not required to give any further

notice, and the tenant is not entitled to any further

review, under this section in relation to giving notice of

termination following a second review.

71J.

Time periods to be observed where notice of

termination given under this Subdivision

(1)	A notice of termination of a social housing tenancy agreement cannot be given to a tenant on the ground referred to in section 71H before the later of the following —

(a)	tenant may apply for any review under

the end of the 30 day period within which the termination;

(b)	the end of any such review carried out in respect of that decision.

(2)	Despite subsection (1), if the lessor and tenant enter into a new social housing tenancy agreement before the end of that 30 day period or any such review, the notice of termination may be given on or after the day on which they enter into the new agreement.
(3)	The notice of termination cannot specify a day earlier than 60 days after the day on which the notice is given as the day on which vacant possession of the premises the subject of the existing agreement is to be delivered up to the lessor, unless it specifies an earlier day to
which the tenant has consented.
(4)	The notice of termination is ineffective unless the alternative premises in connection with which the notice of termination is given are available for

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s. 93

occupation no later than 7 days before the date

specified in the notice as the day on which vacant

possession is to be delivered up to the lessor.

(5)	In the case of a social housing tenancy agreement that creates a tenancy for a fixed term, the notice of termination is not ineffective merely because a day earlier than the day on which the term ends is specified as the day on which vacant possession is to be delivered up to the lessor.

93. Section 71 amended

(1)	In section 71(2):

(a)	in paragraph (b) after “Act,” insert:

other than a notice given by a lessor on a ground referred to in section 71C or 71H,

(b)	in paragraph (b) delete “agreement.” and insert:

agreement; and

(c)

after paragraph (b) insert:

(c)	where the notice was given by a lessor upon a ground referred to in section 71C or 71H, in respect of the relevant matters referred to in subsection (3A).

Residential Tenancies Amendment Act 2011

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s. 93

(2)	After section 71(2) insert:

(3A)	The matters in respect of which the court is to be satisfied for the purposes of subsection (2)(c) in respect of a social housing tenancy agreement are —

(a)

where the notice was given by the lessor upon a tenant is not eligible to reside in social housing premises, or to reside in the class of social housing premises to which the agreement relates under the criteria approved under section 71E for the purposes of Division 3 Subdivision 2; or

(b)

where the notice was given by the lessor upon a ground referred to in section 71H, that the lessor has offered to enter into a new social housing tenancy agreement with the tenant in respect of alternative premises to the premises the subject of the existing agreement and those alternative premises (which might or might not be the same as the premises in connection which the notice was given) are available for occupation by the tenant.

(3B)	The court is not to make an order terminating a social housing tenancy agreement on a ground referred to in section 71C or 71H unless it is satisfied that —

(a)

any notice required to be given under termination was given and that it was given in accordance with that section; and

(b)	any review required to be carried out under section 71F or 71I was carried out and that it was carried out in accordance with that section.

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s. 94

(3C)

Without limiting the obligations of the court under

subsection (2), in considering the circumstances of a

case concerning social housing premises under that

provision, the court, in addition to having regard to the

circumstances of the tenant and other circumstances of

the case, is to have regard to such of the following

matters as may be relevant —

(a)	any serious adverse effects the tenancy has had on neighbouring residents or other persons;
(b)	whether any breach of the residential tenancy agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk;
(c)	the lessor’s responsibility to its other tenants;
(d)	whether the tenant, wilfully or otherwise, is or has been in breach of an order of the court;
(e)	the history of the tenancy concerned, including, if the tenant is a tenant under a social housing tenancy agreement, any prior tenancy of the tenant arising under any such agreement.

94. Section 73A inserted

After section 72 insert:

73A.

Notice of termination not required in certain cases

An application under section 73, 74, 75A or 75 may be

made whether or not notice of termination has been

given.

Residential Tenancies Amendment Act 2011

Part 3

Amendments relating to terminating social housing tenancy

agreements

s. 95

95. Section 75A inserted

After section 74 insert:

75A.

Termination of social housing tenancy agreement

due to objectionable behaviour

(1)	A competent court may, upon application by the lessor under a social housing tenancy agreement, terminate the agreement if it is satisfied that the tenant has —

(a)	used the social housing premises, or caused or permitted the social housing premises to be used, for an illegal purpose; or
(b)	caused or permitted a nuisance by the use of the social housing premises; or
(c)	interfered, or caused or permitted any interference, with the reasonable peace, comfort or privacy of any person who resides in the immediate vicinity of the premises,

and that the behaviour justifies terminating the

agreement.

(2)	The court may, on an application made under this section, make such other orders or give such other directions as the court in the circumstances of the case
thinks fit, including, if there has been a breach of the agreement, making any order that the court may make under section 15.
(3)	In deciding if the behaviour justifies terminating the agreement, or making any order or giving any direction referred to in subsection (2), the court may have regard to whether the behaviour was recurrent and, if it was recurrent, the frequency of the recurrences.
(4)	Subsection (3) does not limit the issues to which the court may have regard.

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s. 95

(5)

Where a court terminates a social housing tenancy agreement under this section, it must also make an order for possession of the social housing premises and

must specify a day as from which the orders are to

operate that it considers, in the circumstances of the

case, appropriate.

(6)

For the purposes of section 16(1), an order made by the

court under subsection (2) is to be taken to have been

made under section 15(2).

Residential Tenancies Amendment Act 2011

Part 4	Amendments relating to residential tenancy databases
s. 96

Part 4 — Amendments relating to residential

tenancy databases

96. Part VIA inserted

After section 81 insert:

Part VIA — Residential tenancy databases

Division 1 — Preliminary

82A.	Terms used
In this Part —
*agent*, of a lessor, means a person employed, or otherwise authorised, by the lessor to act as the lessor’s agent;
*database* means a system, device or other thing used for storing information, whether electronically or in some other form;
*database operator* means an entity that operates a residential tenancy database;
*inaccurate*, in relation to personal information in a residential tenancy database, includes information that is inaccurate because —

(a)	the information indicates that the person owes a lessor an amount that is more than the security bond for a residential tenancy agreement; and
(b)	the amount owed was paid to the lessor more than 3 months after the amount became due;

list, personal information about a person in a residential

tenancy database —

(a) means —

(i) to enter the personal information into the database; or

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(ii) to give the personal information to a database operator or someone else for entry into the database;

and

(b)	includes to amend personal information about a person in the database to include additional personal information about the person;

out-of-date, in relation to personal information in a

residential tenancy database, means the information is

no longer accurate because —

(a)	a lessor an amount that is more than the

for a listing made on the basis the person owes agreement — the amount owed was paid to the lessor within 3 months after the amount became due; or

(b)	for a listing made on the basis a court has made an order terminating the residential tenancy agreement — the order has been set aside on appeal;

personal information means information (including an

individual’s name) or an opinion, whether true or not,

about an individual whose identity is apparent, or can

reasonably be ascertained, from the information or

opinion;

residential premises includes a long-stay site in a

residential park as those terms are defined in the

Residential Parks (Long-stay Tenants) Act 2006;

residential tenancy agreement includes a long-stay

agreement as defined in the Residential Parks

(Long-stay Tenants) Act 2006;

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Part 4	Amendments relating to residential tenancy databases
s. 96
*residential tenancy database* means a database —
(a) containing personal information —

(i)

relating to, or arising from, the a residential tenancy agreement; or

(ii)	relating to, or arising from, the

entered into the database for reasons a residential tenancy agreement;

and

(b)	the purpose of which is for use by lessors or agents of lessors for checking a person’s tenancy history to decide whether a residential tenancy agreement should be entered into with the person;

tenant includes a long-stay tenant as defined in the

Residential Parks (Long-stay Tenants) Act 2006.

82B.

Application of Part

This Part does not apply to a residential tenancy

database kept by an entity (including a government

department of this State, another State or a Territory)

for use only by that entity or its officers, employees or

agents.

Division 2 — Tenancy database information

82C.

Notice of usual use of database

(1)	This section applies if —

(a)	a person (the *applicant*) applies to a lessor, whether or not through the lessor’s agent, to enter into a residential tenancy agreement; and
(b)	the lessor or, if the application is made through the lessor’s agent, the lessor or agent usually

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s. 96

uses one or more residential tenancy databases

for deciding whether a residential tenancy

agreement should be entered into with a person.

(2)	The lessor or agent must, when the application is made, give the applicant written notice stating the following —

(a)	the name of each residential tenancy database the lessor or agent usually uses, or may use, for deciding whether a residential tenancy agreement should be entered into with a person;
(b)	that the reason the lessor or agent uses a residential tenancy database mentioned in paragraph (a) is for checking an applicant’s tenancy history;
(c)	for each residential tenancy database mentioned in paragraph (a), how persons may contact the database operator who operates the database and obtain information from the operator.

Penalty: a fine of $5 000.

(3)

Subsection (2) applies in relation to a residential

tenancy database whether or not the lessor or agent

intends to use the database for deciding whether a

residential tenancy agreement should be entered into

with the applicant.

(4)

However, the lessor or agent is not required to give the written notice mentioned in subsection (2) if a written notice stating the matters mentioned in the subsection was given to the applicant not more than 7 days before the application was made.

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82D.

Notice of listing if database used

(1)	This section applies if —

(a)	a person (the *applicant*) applies to a lessor, whether or not through the lessor’s agent, to enter into a residential tenancy agreement; and
(b)	the lessor or, if the application is made through the lessor’s agent, the lessor or agent uses a residential tenancy database for checking whether personal information about the applicant is in the database; and
(c)	personal information about the applicant is in the database.

(2)	The lessor or agent must, as soon as possible but within 7 days after using the database, give the applicant a written notice stating —

(a)	the name of the database; and
(b)	that personal information about the applicant is in the database; and
(c)	the name of each person who listed the personal information in the database; and
(d)	how and in what circumstances the applicant can have the personal information removed or amended under this Part.

Penalty: a fine of $5 000.

(3)	However, subsection (2)(c) requires the written notice to state the name of a person only if the person is identified in the residential tenancy database as the person who listed the personal information in the database.

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82E.

Listing can be made only for particular breaches by

particular persons

(1)	A lessor, lessor’s agent or database operator must not list personal information about a person in a residential tenancy database unless —

(a)	the person was named as a tenant in a residential tenancy agreement that has ended; and
(b)	the person has breached the agreement; and
(c)	because of the breach, either —

(i) the person owes the lessor an amount that is more than the security bond for the agreement; or

(ii) a court has made an order terminating the residential tenancy agreement;

and (d) the personal information —

(i) relates only to the breach; and

(ii) is accurate, complete and unambiguous.

Penalty: a fine of $5 000.

(2)	Without limiting subsection (1)(d)(ii), the personal information must indicate the nature of the breach.

82F.

Further restriction on listing

(1)	A lessor, lessor’s agent or database operator must not list personal information about a person in a residential tenancy database unless the lessor, agent or operator —

(a)	has, without charging a fee —

(i) given the person a copy of the personal information; or

(ii) taken other reasonable steps to disclose the personal information to the person;

and

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Part 4

Amendments relating to residential tenancy databases

s. 96

(b)	has given the person at least 14 days to review the personal information and make submissions —

(i) objecting to its entry into the database; or

(ii) about its accuracy, completeness and clarity;

and

has considered any submissions made. Penalty: a fine of $5 000.

(c)

(2)	Subsection (1) does not apply if the lessor, lessor’s agent or database operator cannot locate the person after making reasonable enquiries.
(3)	Subsection (1)(b) and (c) do not apply —

(a)	to information that, at the time of the listing, is contained in publicly available court or tribunal records; or
(b)	to a listing involving only an amendment of personal information about a person under section 82G.

82G.

Ensuring quality of listing — lessor’s or agent’s

obligation

(1)	This section applies if a lessor or lessor’s agent who lists personal information in a residential tenancy database becomes aware that the information is inaccurate, incomplete, ambiguous or out-of-date.

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(2)	The lessor or agent must, within 7 days, give written notice of the following to the database operator who operates the database —

(a)	if the information is inaccurate, incomplete or ambiguous —

(i) that the information is inaccurate, incomplete or ambiguous; and

(ii) how the information must be amended so that it is no longer inaccurate, incomplete or ambiguous;

(b)	if the information is out-of-date — that the information is out-of-date and must be removed.

Penalty: a fine of $5 000.

(3)

The lessor or agent must keep a copy of the written

notice for one year after it was given under

subsection (2).

Penalty: a fine of $5 000.

82H.

Ensuring quality of listing — database operator’s

obligation

(1)	This section applies if a lessor or agent of a lessor who has listed personal information about a person in a residential tenancy database gives the database operator that operates the database written notice that the personal information must be —

(a)	amended in a stated way to make it accurate, complete and unambiguous; or

(b) removed.

(2)

The database operator must amend the personal

information in the stated way, or remove the personal

information, within 14 days of the notice being given.

Penalty: a fine of $5 000.

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s. 96

82I.

Providing copy of personal information listed

(1)	A lessor or lessor’s agent who lists personal information about a person in a residential tenancy database must, if asked in writing by the person, give the person a copy of the information within 14 days after the request is made.
Penalty: a fine of $5 000.
(2)	A database operator must, if asked in writing by a person whose personal information is in the residential tenancy database kept by the operator, give the person a copy of the information within 14 days after the request is made.
Penalty: a fine of $5 000.
(3)	If a lessor or lessor’s agent charges a fee for giving personal information under subsection (1), or a database operator charges a fee for giving personal information under subsection (2), the subsection applies only if the fee has been paid.
(4)	A fee charged by a lessor or lessor’s agent for giving personal information under subsection (1) or by a database operator for giving personal information under subsection (2) —

(a)	must not be excessive; and
(b)	must not apply to lodging a request for the information.

82J.

Disputes about listings

(1)	A person may apply to a competent court for an order under this section if personal information about the person has been listed in a residential tenancy database.

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(2)	The court may make an order under this section if it is satisfied that —

(a)	personal information about the applicant that is

the residential tenancy database includes out-of-date; or

(b)	the inclusion of the applicant’s name or other personal information about the applicant is unjust in the circumstances, having regard to all of the following —

(i) the reason for the listing;

(ii) the tenant’s involvement in any acts or omissions giving rise to the listing;

(iii) any adverse consequences suffered, or likely to be suffered, by the tenant because of the listing;

(iv) any other relevant matter.

(2)

The court may order personal information about a

person in a residential tenancy database to be wholly or

partly removed, amended in a stated way or not listed

in a residential tenancy database.

(3)

The court must give a copy of the order to the lessor,

tenant and database operator.

(4)

If the court makes an order directing a person other

than a lessor or agent to remove, amend or not list

information in a residential tenancy database, the court

must give a copy of the order to the person.

82K.

Keeping personal information listed

(1)

In this section —

national privacy principles means the principles stated

in the Privacy Act 1988 (Commonwealth).

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(2)	A database operator must not keep personal information about a particular person in the operator’s residential tenancy database for longer than —

(a) 3 years; or

(b)	operator of the database is required to remove the personal information before the end of the

if, under the national privacy principles, the period ending when the information must be removed under the national privacy principles; or

(c)	if the person —

(i)

was a minor as defined in was listed in the database; and

(ii) reaches 18 years of age before the end of the 3 year period mentioned in paragraph (a),

the period ending when the person reaches 18

years of age.

Penalty: a fine of $5 000.

(3)	However, a database operator may keep the person’s name in the operator’s residential tenancy database for longer than the period stated in subsection (2)(a) or (b) if —

(a)	other personal information about the person in the database is attached to the name; and
(b)

the other personal information is not required to law.

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s. 96

(4)	This section does not limit the operation of another provision of this Part or of another law that requires the removal of the personal information.

Residential Tenancies Amendment Act 2011

Part 5	Amendments to other Acts
Division 1	Disposal of Uncollected Goods Act 1970 amended
s. 97

Part 5 — Amendments to other Acts

Division 1 — Disposal of Uncollected Goods Act 1970 amended

97. Act amended

This Division amends the Disposal of Uncollected Goods

Act 1970.

98. Schedule amended

In the Schedule delete “Section 79 of the Residential Tenancies

Act 1987.” and insert

Residential Tenancies Act 1987 sections 79 and 80A.

Division 2 — Housing Act 1980 amended

99. Act amended

This Division amends the Housing Act 1980.

100. Section 62G amended

(1)	In section 62G(1)(b) delete “owner,” and insert
lessor,
(2)	In section 62G(2) delete “owner” and insert
lessor

Residential Tenancies Amendment Act 2011

Amendments to other Acts

Part 5

Magistrates Court (Civil Proceedings) Act 2004 amended

Division 3

s. 101

Division 3 — Magistrates Court (Civil Proceedings)

Act 2004 amended

101. Act amended

This Division amends the Magistrates Court (Civil

Proceedings) Act 2004.

102. Section 7 amended

In section 7(1) in the definition of trader delete “an owner” and

insert

a lessor

Division 4 — Rates and Charges (Rebates and Deferments)

Act 1992 amended

103. Act amended

This Division amends the Rates and Charges (Rebates and

Deferments) Act 1992.

104. Section 29B amended

(1)	In section 29B(1) delete the definition of *owner*.
(2)	In section 29B(1) insert in alphabetical order:

lessor, in relation to land, has the meaning given in the

Residential Tenancies Act 1987 section 3;

(3)	In section 29B(3) delete “the owner” and insert:
the lessor

Residential Tenancies Amendment Act 2011

Part 5	Amendments to other Acts
Division 5	Residential Parks (Long-stay Tenants) Act 2006 amended
s. 105

Division 5 — Residential Parks (Long-stay Tenants)

Act 2006 amended

105. Act amended

This Division amends the Residential Parks (Long-stay

Tenants) Act 2006.

106. Section 22 amended

(1)	In section 22(1)(a) delete “a bond agent; or” and insert:

an authorised agent as defined in the

Residential Tenancies Act 1987 Schedule 1

clause 1; or

(2)	Delete section 22(2)(a) and insert:

(a)	“tenancy bond trust account”, used for the purpose of holding a security bond under this

an account in the name of the agent entitled Act 1987 and for no other purpose; or

107. Glossary amended

(1)

In the Glossary delete the definitions of:

authorised financial institution

bond administrator

bond agent

Rental Accommodation Fund

(2)

In the Glossary insert in alphabetical order:

authorised financial institution has the meaning given in

the Residential Tenancies Act 1987 section 92;

Residential Tenancies Amendment Act 2011

Amendments to other Acts

Part 5

Residential Parks (Long-stay Tenants) Act 2006 amended

Division 5

s. 108

bond administrator means the Commissioner as defined in

the Fair Trading Act 2010 section 6;

Rental Accommodation Account means the Rental

Accommodation Account established under the Residential

Tenancies Act 1987 Schedule 1 clause 3;

108. Various references to “Fund” changed to “Account”

In the provisions listed in the Table delete “Fund” and insert:

Account

Table

s. 51	s. 75(3)
s. 76(3)	s. 77(1)
s. 77(2)	s. 92(b)
s. 94(a)