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Residential Tenancy Act 1997 (No. 82 of 1997)
Requested:  23 Nov 2014
Consolidated as at:  11 Jan 2005

PART 3 - Residential tenancy agreements

Division 1 - Form of agreements

10. Residential tenancy agreement

      (1) A residential tenancy agreement exists where a right of occupancy of residential premises is granted by the owner of the premises to a person for value –

(a) whether or not the right is a right of exclusive occupation; or

(b) whether the agreement is express or implied; or

(c) whether the agreement is oral or in writing, or partly oral and partly in writing; or

(d) whether or not the agreement is for a fixed period.

      (2) A residential tenancy agreement is for a fixed period if it is for a period of at least 4 weeks.

      (3) The provisions of this Act form part of a residential tenancy agreement.

11. Expiry

      (1) A residential tenancy agreement for a fixed period, unless earlier terminated under Part 4, expires –

(a) on a date specified in the agreement; or

(b) if a date is not specified in the agreement, on a date agreed on by both parties.

      (2) If a residential tenancy agreement for a fixed period expires and it is not extended or renewed under section 12, a new residential tenancy agreement for no fixed period is established.

      (3) A residential tenancy agreement established under subsection (2) is subject to the same terms and conditions that existed before that establishment.

12. Extension and renewal

      (1) A residential tenancy agreement that has expired may only be extended or renewed within 28 days after it has expired.

      (2) A residential tenancy agreement for a fixed period may only be extended or renewed by agreement in writing of the owner and the tenant.

13. Written agreement

      (1) A written residential tenancy agreement is to be –

(a) easily legible; and

(b) clearly expressed; and

(c) if printed, in 10 points or more.

      (2) The owner is to provide the tenant of residential premises to which a residential tenancy agreement relates with a copy of the agreement within 14 days after the agreement takes effect.

14. Information as to rights and obligations

[Section 14 Amended by No. 17 of 1996, Applied:24 Jan 2002] [Section 14 Amended by No. 49 of 2003, s. 8, Applied:25 Aug 2004] An owner of residential premises is to give the tenant of the premises a copy of any information relating to rights and obligations under residential tenancy agreements as the Director of Consumer Affairs and Fair Trading may direct.

15. Inconsistent provisions

A provision of a residential tenancy agreement that is inconsistent with a provision of this Act has no effect.

16. Orders relating to inconsistency

      (1) [Section 16 Subsection (1) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] Either party to a residential tenancy agreement may apply to the Court for an order determining whether or not a provision of the agreement is inconsistent with this Act.

      (2) [Section 16 Subsection (2) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] The Court may –

(a) order that the provision be modified in a specified manner; or

(b) declare that the provision has no effect.

      (3) The fact that a provision of a residential tenancy agreement is declared to have no effect does not affect the right of occupancy conferred generally or specifically by the agreement.

Division 2 - Rent

17. Money other than rent

[Section 17 Substituted by No. 67 of 2003, s. 6, Applied:01 Feb 2004]

      (1) A person must not require or receive from a tenant or prospective tenant any money or other consideration for entering into, renewing, extending or continuing a residential tenancy agreement other than –

(a) rent in advance for the relevant payment period; and

(b) a security deposit; and

(c) a holding fee.

Penalty:

Fine not exceeding 50 penalty units.

      (2) Except as provided otherwise in the regulations made under this Act, a person must not require or receive from another person any money or other consideration for or in relation to any of the following:

(a) making an application to rent residential premises;

(b) providing keys for the inspection of residential premises;

(c) giving permission to examine or inspect residential premises;

(d) supplying details of residential premises available for rental;

(e) placing the name of that other person on any waiting list for vacant residential premises;

(f) any other prescribed activity.

Penalty:

Fine not exceeding 50 penalty units.

      (3) An owner must not require or receive from a tenant during the term of a residential tenancy agreement any money or other consideration other than –

(a) rent in advance for the relevant payment period; and

(b) a water consumption charge if the residential premises are equipped with a device that calculates the amount of water used at those premises; and

(c) reasonable compensation for damage to the residential premises arising from the actions of the tenant or any loss incurred by the owner arising from the actions of the tenant.

      (4) In this section,

water consumption charge means an amount levied on an owner by a council for water consumed by an occupant of residential premises that is calculated as a fee for each unit of water consumed.

18. Rent payable in advance

Rent is payable in advance for a payment period.

19. Payment period

      (1) The payment period must not be varied during the period of the residential tenancy agreement unless the owner and tenant agree.

      (2) [Section 19 Subsection (2) amended by No. 67 of 2003, s. 7, Applied:05 Mar 2004] [Section 19 Subsection (2) substituted by No. 49 of 2003, s. 9, Applied:25 Aug 2004] A payment period must not exceed –

(a) 2 weeks in the case of boarding premises; or

(b) 4 weeks in any other case.

20. Increase in rent

      (1) An owner, by written notice to the tenant, may increase the amount of the rent payable by the tenant in respect of residential premises if –

(a) the written residential tenancy agreement for those premises allows for an increase; or

(b) there is no written residential tenancy agreement for those premises.

      (2) A notice is to specify –

(a) the amount of the rent as increased; and

(b) the day from which the increase in the rent takes effect.

      (3) An increase in the rent may only take effect from a day that is –

(a) more than 60 days after the day on which the notice is given; or

(b) if the residential tenancy agreement commenced less than 60 days before the day on which the notice was given, more than 6 months after that commencement; or

(c) if rent has been previously increased, more than 6 months after the last increase; or

(d) [Section 20 Subsection (3) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] if the Court makes an order under section 23(3), more than 6 months after the date of that order.

      (4) A notice operates to vary the residential tenancy agreement to the effect that the increased rent as specified in the notice is payable under the agreement from the day specified in the notice.

21. Receipt for rent paid

On receiving rent in cash or by cheque from a tenant, an owner is to give the tenant a receipt stating –

(a) the date on which it was received; and

(b) the name of the tenant; and

(c) the residential premises in respect of which the rent is paid; and

(d) [Section 21 Amended by No. 49 of 2003, s. 10, Applied:25 Aug 2004] the amount of rent paid; and

(e) [Section 21 Amended by No. 49 of 2003, s. 10, Applied:25 Aug 2004] the period to which the payment relates.

22. Postdated cheques

An owner is not to require a cheque or other negotiable instrument that is postdated in payment for rent.

23. Unreasonable increase

      (1) [Section 23 Subsection (1) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] A tenant may apply to the Court for an order declaring that an increase in the rent payable under a residential tenancy agreement is unreasonable.

      (2) [Section 23 Subsection (2) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] In determining whether an increase in the rent is unreasonable, the Court is to have regard to –

(a) the general level of rents for comparable residential premises in the locality or a similar locality; and

(b) any other relevant matter.

      (3) [Section 23 Subsection (3) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] If satisfied that the increase in the rent is unreasonable, the Court may order that the increase in the rent be changed to an amount that does not exceed a specified amount.

      (4) An order remains in force until the day on which rent may be increased under section 20.

24. Distress for rent prohibited

[Section 24 Substituted by No. 67 of 2003, s. 8, Applied:05 Mar 2004]

      (1) A person must not levy or make distress for any amount due that is unpaid.

Penalty:

Fine not exceeding 50 penalty units.

      (2) In addition to any penalty imposed on a person for an offence under subsection (1), the person –

(a) is liable to pay any costs incurred by any other person as a result of that offence; and

(b) must return any goods seized to the owner of the goods or, if the goods cannot be returned, pay the owner the value of the goods.

Division 3 - Security deposits and holding fees

25. Security deposits

      (1) [Section 25 Subsection (1) amended by No. 49 of 2003, s. 11, Applied:25 Aug 2004] Except in the case of boarding premises, an owner may require a prospective tenant to pay an amount as security for the performance of obligations under a residential tenancy agreement.

      (2) On receipt of the security deposit from the tenant, the owner must give to the tenant a written notice stating –

(a) the name of the tenant; and

(b) the amount deposited by the tenant as a security deposit; and

(c) the residential premises in respect of which it is paid; and

(d) the date on which the notice is given; and

(e) the name and address of the owner.

Penalty:

Fine not exceeding 10 penalty units.

      (3) An owner must not –

(a) require or receive more than one security deposit in relation to one residential tenancy agreement; or

(b) require an amount as security deposit that exceeds 4 weeks' rent payable under the residential tenancy agreement.

Penalty:

Fine not exceeding 50 penalty units.

26. Condition report

      (1) If an owner requires a prospective tenant to pay an amount as a security deposit in respect of any residential premises, the owner is to give the tenant 2 copies of a report stating the condition of the premises on or before the day on which the tenant occupies the premises.

      (2) A condition report is to –

(a) specify the general state of repair and condition of the premises to which it relates; and

(b) be signed by the owner.

      (3) On receipt of the copies of the condition report the tenant is to –

(a) sign one of the copies of the report endorsed with a statement that the tenant agrees or disagrees with the report as a whole or any part of it; and

(b) return that signed and endorsed copy to the owner within 2 days.

      (4) A condition report that is given under this section is evidence of the state of repair and condition of the residential premises to which it relates.

27. Return of security deposit, &c.

[Section 27 Substituted by No. 67 of 2003, s. 9, Applied:05 Mar 2004]

      (1) On termination of a residential tenancy agreement, the owner is to –

(a) return the security deposit to the tenant within 3 working days of the termination of the residential tenancy agreement together with the prescribed amount of interest (if any such amount is prescribed) less any amount due to the owner arising from the non-performance of the residential tenancy agreement by the tenant; or

(b) give to the tenant a notice stating the reasons why the security deposit has been retained and –

(i) a statement of the loss incurred by the owner; or

(ii) an estimate of the date on which it is expected that the loss will be determined.

      (2) If the tenant is given a notice under subsection (1), the owner is to provide the tenant with a statement to the effect that, if the tenant is dissatisfied with the matters contained in the notice, the tenant may apply to the Commissioner for resolution of the matter, and is to provide the tenant with the address of the Commissioner.

      (3) In this section,

working day means a weekday that is not a statutory holiday, within the meaning of the Statutory Holidays Act 2000, in the area in which the residential premises to which the residential tenancy agreement relates are situated.

28. Disputes

      (1) If the tenant disputes the amount returned by the owner under section 27, the tenant may apply to the Commissioner to determine the dispute.

      (2) An application to determine the dispute is to be –

(a) [Section 28 Subsection (2) amended by No. 67 of 2003, s. 10, Applied:05 Mar 2004] in writing and lodged with the Commissioner within 60 days after the termination of the residential tenancy agreement; and

(b) accompanied by any information to support the dispute; and

(c) accompanied by the prescribed fee.

      (3) The Commissioner, by notice in writing, is to require the owner to lodge with the Commissioner within 7 days of receipt of the notice –

(a) the balance of any security deposit not paid to the tenant; and

(b) a copy of the condition report.

      (4) The owner must comply with the notice.

Penalty:

Fine not exceeding 50 penalty units.

      (5) The owner may lodge with the Commissioner, on payment of a prescribed fee and within 7 days of receipt of the notice, information to support the owner's decision to retain all or part of the security deposit.

29. Determination of dispute

      (1) [Section 29 Subsection (1) amended by No. 67 of 2003, s. 11, Applied:05 Mar 2004] The Commissioner is to determine a dispute by giving notice to the parties of the Commissioner's decision to disburse the security deposit together with the prescribed amount of interest (if any such amount is prescribed) in the manner specified in the notice.

      (2) The Commissioner is not to make a determination until at least 7 days have elapsed since receipt by the owner of a notice referred to in section 28(3).

      (3) [Section 29 Subsection (3) inserted by No. 67 of 2003, s. 11, Applied:05 Mar 2004] The Commissioner may refuse to determine a dispute if the application is made after the period referred to in section 28(2)(a).

      (4) [Section 29 Subsection (4) inserted by No. 67 of 2003, s. 11, Applied:05 Mar 2004] The Commissioner may refund –

(a) to the owner the fee paid under section 28(5) if of the opinion that the application by the tenant is vexatious; or

(b) to the tenant the fee paid under section 28(2)(c) if of the opinion that any action of the owner in relation to the subject matter of the dispute is vexatious.

      (5) [Section 29 Subsection (5) inserted by No. 67 of 2003, s. 11, Applied:05 Mar 2004] If after the expiration of 7 days from the date on which the determination is made no appeal has been lodged under section 30(1), the Commissioner is to disburse the security deposit together with the prescribed amount of interest (if any such amount is prescribed) in the manner specified in the notice referred to in subsection (1).

30. Appeal against determination

      (1) [Section 30 Subsection (1) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] A person may appeal to the Court against the determination of the Commissioner under section 29.

      (2) An appeal is to be instituted within 7 days after the determination is made.

      (3) [Section 30 Subsection (3) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] The Court is to hold a new hearing in deciding the appeal.

      (4) [Section 30 Subsection (4) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] In deciding the appeal, the Court may –

(a) confirm the determination of the Commissioner; or

(b) vary or quash the determination and order the security deposit to be disbursed in accordance with the order.

31. Holding agreement and fees

      (1) The owner of residential premises that are unoccupied and a prospective tenant may enter into an agreement to hold the premises for the future occupancy of the prospective tenant for a specified period exceeding 7 days.

      (2) The holding agreement may impose a fee payable by the prospective tenant as a condition of the holding agreement.

Division 4 - Repairs

32. General repairs and maintenance

      (1) The owner of residential premises is to maintain the premises as nearly as possible in the condition, apart from reasonable wear and tear, that existed on the day on which the residential tenancy agreement was entered into.

      (2) The tenant is to notify the owner of any repairs needed in respect of the premises within 7 days of the need arising.

      (3) [Section 32 Subsection (3) substituted by No. 49 of 2003, s. 12, Applied:25 Aug 2004] The owner is to carry out any repairs specified in the notice that do not arise from any fault of the tenant –

(a) in the case of boarding premises, within 7 days; or

(b) in any other case, within 28 days –

after receipt of the notice.

      (4) [Section 32 Subsection (4) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] [Section 32 Subsection (4) omitted by No. 67 of 2003, s. 12, Applied:05 Mar 2004] .  .  .  .  .  .  .  .  

33. Urgent repairs

      (1) [Section 33 Subsection (1) substituted by No. 49 of 2003, s. 13, Applied:25 Aug 2004] If an essential service ceases to function –

(a) the tenant is to notify the owner as soon as practicable of the need for urgent repair; and

(b) the owner is to carry out the necessary repairs, or otherwise cause the essential service to be restored, as soon as practicable after that notification.

      (2) If the owner is unable to be contacted or fails to arrange for the carrying out of any urgent repair that does not arise from any fault of the tenant within 24 hours after being notified, the tenant may authorise one of the following to carry out the repair:

(a) a nominated repairer; or

(b) if there is not a nominated repairer, a suitable repairer.

      (3) Any repairs under subsection (2) are to be carried out only to the extent that the essential service becomes functional.

      (4) The costs of any repairs carried out under subsection (2) are to be paid by –

(a) the owner, if carried out by a nominated repairer; or

(b) the tenant, if carried out by a suitable repairer.

      (4A) [Section 33 Subsection (4A) inserted by No. 67 of 2003, s. 13, Applied:05 Mar 2004] If the owner arranges for the carrying out of any urgent repair within 24 hours after being notified, the owner is to ensure that the repair is carried out as soon as practicable.

      (5) [Section 33 Subsection (5) inserted by No. 49 of 2003, s. 13, Applied:25 Aug 2004] Subsections (2), (3) and (4) do not apply to boarding premises.

34. Emergency repairs

      (1) [Section 34 Subsection (1) substituted by No. 49 of 2003, s. 14, Applied:25 Aug 2004] If damage occurs to residential premises –

(a) the tenant is to notify the owner as soon as practicable of the need to repair the damage; and

(b) the owner is to discharge his or her obligations under section 32(1) as soon as practicable.

      (2) If the owner is unable to be contacted or fails to arrange for the carrying out of any repairs and the damage is likely to result in further damage to, or deterioration of, the premises, the tenant may authorise one of the following to repair the damage:

(a) a nominated repairer;

(b) if there is not a nominated repairer, a suitable repairer.

      (3) Any repairs under subsection (2) are to be carried out only to the extent that is required to prevent further damage or deterioration of the premises.

      (4) The costs of repairs carried out under subsection (2) are to be paid by –

(a) the owner, if carried out by a nominated repairer; or

(b) the tenant, if carried out by a suitable repairer.

      (4A) [Section 34 Subsection (4A) inserted by No. 67 of 2003, s. 14, Applied:05 Mar 2004] If the owner arranges for the carrying out of any emergency repair after being notified of the need for repair, the owner is to ensure that the repair is carried out as soon as practicable.

      (5) [Section 34 Subsection (5) inserted by No. 49 of 2003, s. 14, Applied:25 Aug 2004] Subsections (2), (3) and (4) do not apply to boarding premises.

35. Reimbursement of cost of repairs

      (1) If a suitable repairer carried out repairs under section 33 or 34, the tenant is to give the owner the following documents:

(a) a statement from the repairer as to the apparent cause of the need for repair;

(b) a copy of the statement of account;

(c) a receipt of payment of the account.

      (2) The owner is to reimburse the tenant with the amount of the payment made by the tenant within 14 days after receiving the documents unless the owner makes an application under section 36.

      (3) [Section 35 Subsection (3) inserted by No. 49 of 2003, s. 15, Applied:25 Aug 2004] This section does not apply to boarding premises.

36. Disputing liability to reimburse

      (1) [Section 36 Subsection (1) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] If the owner disputes the liability to reimburse the tenant for repairs carried out under section 33 or 34 the owner may apply to the Court to determine the liability.

      (2) An application is to be made within 14 days after receiving the documents under section 35.

      (3) The only grounds on which liability may be disputed are as follows:

(a) that the owner was not notified of the need for repair;

(b) that the need for repair arose as a result of –

(i) the fault of the tenant; or

(ii) a non-compliance of a provision of the residential tenancy agreement;

(c) that the tenant gave an authorisation to carry out repairs within the 24 hour period referred to in section 33(2) and the repairs were carried out in that period.

      (4) [Section 36 Subsection (4) substituted by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] The Court may order that the owner –

(a) reimburse the tenant for the full amount or part of the amount as the Court considers appropriate; or

(b) is not liable to reimburse the tenant for any of the amount.

      (5) [Section 36 Subsection (5) inserted by No. 49 of 2003, s. 16, Applied:25 Aug 2004] This section does not apply to boarding premises.

36A. Order for repairs

[Section 36A Inserted by No. 67 of 2003, s. 15, Applied:05 Mar 2004] A tenant may apply to the Court for an order that the owner carry out any reasonable repairs under this Division that do not arise from any fault of the tenant.



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