Residential Tenancy Act 1997

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

This Act may be cited as the Residential Tenancy Act 1997 .

This Act commences on a day to be proclaimed.

[Section 3 Subsection (1) amended by No. 59 of 2005, s. 4, Applied:01 Jul 2009] agent means – (a) [Section 3 Subsection (1) amended by No. 45 of 2013, s. 4, Applied:01 Oct 2014] in relation to an owner, a person authorised by the owner to act on behalf of the owner in any matter to which this Act relates and who is not, in relation to the premises of the owner, a residential manager of the premises; or

(b) in relation to a tenant, a person authorised by the tenant to act on behalf of the tenant in any matter to which this Act relates;

[Section 3 Subsection (1) amended by No. 49 of 2003, s. 4, Applied:25 Aug 2004] boarding premises means a room and any other facilities provided with the room where – (a) the room is occupied as a principal place of residence; and

(b) any of the bathroom, toilet or kitchen facilities are shared with other persons –

(c) tertiary students; or

commencement day means the day on which this Act commences;

Commissioner means the Residential Tenancy Commissioner appointed under section 7 ;

condition report means a report referred to in section 26 ;

Court means the Magistrates Court exercising its civil jurisdiction in the civil division of that Court established under the Magistrates Court (Civil Division) Act 1992 ;

[Section 3 Subsection (1) amended by No. 59 of 2005, s. 4, Applied:01 Jul 2009] deposit contributor means a person or organisation, whether public or private, that – (a) is prescribed by the regulations for the purposes of this definition; and

(b) has paid to the Authority the whole or any part of a security deposit;

(b) a person who is in a significant relationship, within the meaning of the Relationships Act 2003 , with the owner;

(b) ending on whichever is the last occurring of the following: (i) the day 120 days after the COVID-19 emergency day;

(ii) a day to which the emergency period is extended by one or more orders under section 3A(1) ;

(iii) the day on which an order is made under section 3A(4) declaring that the emergency period has ended;

[Section 3 Subsection (1) amended by No. 45 of 2013, s. 4, Applied:01 Oct 2014] essential service means any of the following services: (a) water, sewerage, electricity, or heating, supplied to or within the premises;

(b) a cooking stove, or hot-water service, installed within the premises;

(c) removal of grey water from premises, including ensuring the effective functioning of any on-site water-treatment facility, but not including pipes, plumbing or other water-disposal or sewage-disposal facilities owned by a council –

and includes any tap washers, any light globes or light tubes that are inaccessible light globes or light tubes, and any fuses other than those that are within a meter box and relate to the supply of electricity to the premises;

[Section 3 Subsection (1) amended by No. 67 of 2003, s. 4, Applied:05 Mar 2004] grey water means grey water or sullage as defined in Australia New Zealand Standard AS/NZS 1547:2000 On-site domestic wastewater management;

holding agreement means an agreement referred to in section 31(1) ;

holding fee means a fee referred to in section 31(2) ;

[Section 3 Subsection (1) amended by No. 45 of 2013, s. 4, Applied:01 Oct 2014] inaccessible light globes or light tubes means light globes or light tubes that, when in place – (a) are above the height prescribed for the purposes of this definition; or

(b) are not reasonably accessible;

nominated repairer means a person nominated by the owner to carry out repairs to essential services;

notice of termination means a notice referred to in section 38 ;

notice to vacate means a notice referred to in section 42 ;

(b) that person's successors and assigns; and

(c) an agent of that person; and

payment date means the date on which rent is due under a residential tenancy agreement;

payment period means – (a) in respect of the first period of a new residential tenancy agreement, the period starting on the day on which occupancy is first granted under that residential tenancy agreement and ending on the day before the payment date; or

(b) in any other case, the period starting on the payment date and ending on the day before the next payment date;

rent means a payment payable under a residential tenancy agreement in respect of a period of tenancy;

(b) to a social housing provider or other person who is leasing, or sub-leasing, a dwelling-house to an eligible person under a residential tenancy agreement –

[Section 3 Subsection (1) amended by No. 33 of 2010, s. 4, Applied:03 Dec 2010] residential manager means a person who enters into a residential management agreement with the owner of residential premises under section 16A ;

[Section 3 Subsection (1) amended by No. 49 of 2003, s. 4, Applied:25 Aug 2004] residential premises means premises, or part of premises, and land provided with the premises used or intended to be used as a place of residence and includes boarding premises;

residential tenancy agreement means an agreement referred to in Part 3 ;

(b) any rules of the Commonwealth, as amended from time to time, which are made in substitution for those rules;

security deposit means the payment referred to in section 25(1) ;

(b) residential premises declared to be social housing under subsection (3) ; or

(c) residential premises of a kind declared to be social housing under subsection (3) ; or

(d) residential premises used, or proposed to be used, for a purpose declared under subsection (3) ;

[Section 3 Subsection (1) amended by No. 38 of 2018, s. 4, Applied:31 Mar 2019] social housing provider , in relation to residential premises, means – (a) [Section 3 Subsection (1) amended by No. 26 of 2022, s. 34, Applied:01 Dec 2022] Homes Tasmania unless there is, in relation to those premises, a person referred to in paragraph (b), (c) or (d); or

(b) a registered community housing provider in relation to those premises; or

(c) if those premises are social housing by reason of paragraph (b), (c) or (d) of the definition of social housing and a person, or a person of a class of persons, is declared in the notice under subsection (3) to be the social housing provider in respect of those premises, that person or the person of that class who leases or sub-leases, or proposes to lease or sub-lease, those premises to an eligible person; or

(d) if those premises are social housing by reason of paragraph (b), (c) or (d) of the definition of social housing and a person, or a person of a class of persons, is not declared in the notice under subsection (3) to be the social housing provider in respect of those premises, the person who leases or sub-leases, or proposes to lease or sub-lease, those premises to an eligible person;

suitable repairer means a person who – (a) holds a licence if required to do so under any Act to perform repairs to residential premises or essential services; and

(b) ordinarily performs those repairs in the course of a business or as an employee of a business;

tenancy means the right of occupancy of residential premises under a residential tenancy agreement;

[Section 3 Subsection (1) amended by No. 49 of 2003, s. 4, Applied:25 Aug 2004] tenant means a person who has the right to occupy residential premises under a residential tenancy agreement;

[Section 3 Subsection (1) amended by No. 59 of 2005, s. 4, Applied:01 Jul 2009] 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.

(2) A power or duty conferred or imposed on an owner under this Act is also a power or duty conferred or imposed on the agent of the owner.

(3) [Section 3 Subsection (3) inserted by No. 45 of 2013, s. 4, Applied:01 Oct 2014] [Section 3 Subsection (3) substituted by No. 38 of 2018, s. 4, Applied:31 Mar 2019] The Minister from time to time responsible for social housing, by notice, may do any one or more of the following: (a) declare residential premises specified in the notice to be social housing;

(b) declare residential premises of a kind specified in the notice to be social housing;

(c) declare residential premises used, or proposed to be used, for a purpose specified in the notice to be social housing;

(d) declare a person, or a person of a class of persons, specified in the notice to be a social housing provider or the social housing provider in relation to premises referred to in paragraph (a), (b) or (c).

3A. Extension of emergency period for COVID-19 emergency

[Section 3A Inserted by No. 11 of 2020, Sched. 2, Applied:27 Mar 2020] (1) The Minister may, by order, extend the emergency period to a day specified in the order.

(2) The Minister may, in an order under subsection (1) , only extend the emergency period for a period of 90 days.

(3) The Minister may make as many orders under subsection (1) as the Minister thinks are necessary to reasonably mitigate any significant, widespread, hardship caused, or likely to be caused, to a significant number of tenants by the effect of the presence in the State of the socially-dislocating disease and the risk of its spread amongst persons in the State.

(4) The Minister must, by order, declare that the emergency period has ended, if the Minister is satisfied that the amendments to the operation of this Act made by the COVID-19 Emergency Act are no longer required to reasonably mitigate any significant, widespread, hardship caused, or likely to be caused, to a significant number of tenants by the effect of the presence in the State of the socially-dislocating disease and the risk of its spread in the State.

3B. Declaration of subsequent COVID-19 emergency periods

[Section 3B Inserted by No. 30 of 2020, s. 5, Applied:17 Nov 2020] (1) The Minister may, by order, declare a period specified in the order to be a subsequent COVID-19 emergency period.

(2) The Minister may only declare a period to be a subsequent COVID-19 emergency period if the Minister is of the opinion that it is necessary to declare the period so as to reasonably mitigate any significant, widespread hardship that is caused, or is likely to be caused, to a significant number of tenants by the effect of – (a) the presence in the State of the socially-dislocating disease; and

(b) the risk of its spread amongst persons in the State.

(3) A period specified in an order under subsection (1) to be a subsequent COVID-19 emergency period may not be a period of more than 90 days.

(4) The Minister may make as many orders under subsection (1) as the Minister thinks fit.

4. Act binds Crown

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

5. Application of Act

(1) This Act applies to – (a) any residential tenancy agreement entered into on or after the commencement day; and

(b) any residential tenancy agreement entered into before the commencement day – (i) with effect from the first payment date that occurs 12 months after that day; or

(ii) [Section 5 Subsection (1) amended by No. 49 of 2003, s. 5, Applied:25 Aug 2004] if the agreement is renewed or extended within that 12 months, with effect from the day on which it is renewed or extended; and

(c) [Section 5 Subsection (1) amended by No. 49 of 2003, s. 5, Applied:25 Aug 2004] any residential tenancy agreement for boarding premises entered into before the commencement of the Residential Tenancy Amendment (Boarding Premises) Act 2003 – (i) with effect from the first payment date that occurs 12 months after that commencement; or

(ii) if the agreement is renewed or extended within that 12-month period, with effect from the day on which it is renewed or extended.

(2) This Act applies to part of any residential premises used solely as a place of residence by a person employed as a caretaker, or in a similar capacity, for the premises.

6. Non-application of Act

(1) This Act does not apply to – (a) any agreement under a mortgage in respect of residential premises; or

(b) any agreement relating to residential premises under a scheme under which – (i) a group of adjacent or adjoining premises is owned by a company; and

(ii) the premises comprising the group are let by the company to persons who jointly have a controlling interest in the company; or

(db) [Section 6 Subsection (1) amended by No. 38 of 2018, s. 5, Applied:31 Mar 2019] any lease to a person of residential premises which are intended to be sub-leased to an eligible person; or

(e) any agreement giving a person a right of occupancy to residential premises not ordinarily used for holiday purposes for the purpose of a holiday for a period not exceeding 3 months.

(2) This Act does not apply to any of the following: (a) [Section 6 Subsection (2) amended by No. 49 of 2003, s. 6, Applied:25 Aug 2004] any part of a hotel or motel that is not boarding premises;

(b) any premises ordinarily used for holiday purposes;

(c) [Section 6 Subsection (2) amended by No. 49 of 2003, s. 6, Applied:25 Aug 2004] any boarding premises located in a building containing less than 3 boarding premises where – (i) the owner occupies the same building as a principal place of residence; or

(ii) the tenant occupies the building as a principal place of residence and sub-lets the boarding premises;

(e) any part of a club;

PART 2 - Residential Tenancy Commissioner

7. Residential Tenancy Commissioner

(1) The Minister may appoint a person as the Residential Tenancy Commissioner for the period, not exceeding 5 years, specified in the instrument of appointment.

(2) An appointment under subsection (1) is subject to any terms and conditions the Minister determines.

(3) The Commissioner may vacate, or be removed from, office in accordance with Schedule 1.

8. General functions and powers of Commissioner

(b) to determine disputes in relation to any residential tenancy database;

(c) to act in the mediation or conciliation of any disputes between the parties to residential agreements in relation to boarding premises;

(d) to determine applications made to the Commissioner under section 23 or section 36A ;

(e) other functions conferred on the Commissioner by or under this Act.

9. Delegation by Commissioner

The Commissioner may delegate to any person any of his or her powers or functions, other than this power of delegation.

PART 3 - Residential tenancy agreements

Division 1 - Form of agreements

10. Residential tenancy agreement

(1) [Section 10 Subsection (1) amended by No. 6 of 2016, s. 58, Applied:13 May 2016] 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

(1A) [Section 10 Subsection (1A) inserted by No. 6 of 2016, s. 58, Applied:13 May 2016] For the purposes of subsection (1) , a relevant social housing sub-lease is a sub-lease by a social housing provider that is a lessee in relation to the premises by virtue of – (a) a memorandum of lease registered under the Land Titles Act 1980 ; or

(b) [Section 10 Subsection (1A) amended by No. 26 of 2022, s. 36, Applied:01 Dec 2022] a lease, by Homes Tasmania, of residential premises under the Homes Tasmania Act 2022 , for the purposes of enabling the social housing provider to provide residential accommodation to other persons.

(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.

(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) [Section 11 Subsection (2) substituted by No. 45 of 2013, s. 8, Applied:01 Oct 2014] If a residential tenancy agreement for a fixed period in relation to premises expires on a date and before that date – (a) no notice to vacate in relation to the premises is served under section 42 on the grounds specified in section 42(1)(d) ; and

(b) the residential tenancy agreement is not extended or renewed –

a new residential tenancy agreement for no fixed period is established on that date in relation to the premises.

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

(4) [Section 11 Subsection (4) inserted by No. 45 of 2013, s. 8, Applied:01 Oct 2014] Despite subsection (1) , if – (a) but for this subsection, a residential tenancy agreement for a fixed period in relation to premises would, under subsection (1) , expire on a date; and

(b) a notice to vacate in relation to the premises is served under section 42 on the grounds specified in section 42(1)(d) –

(5) [Section 11 Subsection (5) inserted by No. 38 of 2018, s. 6, Applied:31 Mar 2019] If – (a) a notice to vacate in relation to premises, in respect of which there is a residential tenancy agreement for a fixed period, has been served under section 42 on the grounds specified in section 42(1)(d) ; and

(b) that agreement, but for subsection (4) , would have expired; and

(c) the notice is withdrawn before it takes effect –

the residential tenancy agreement expires on the day on which the notice is withdrawn and a new residential tenancy agreement is established on that day.

(6) [Section 11 Subsection (6) inserted by No. 38 of 2018, s. 6, Applied:31 Mar 2019] A residential tenancy agreement established under subsection (5) – (a) is for a fixed period of 28 days commencing on the day on which the agreement is so established; and

(b) is otherwise subject to the same terms and conditions of the residential tenancy agreement that existed before the notice to vacate was served.

12. Extension and renewal

(1) [Section 12 Subsection (1) amended by No. 45 of 2013, s. 9, Applied:01 Oct 2014] A residential tenancy agreement may only be extended or renewed before 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.

[Section 12A Inserted by No. 11 of 2020, Sched. 2, Applied:27 Mar 2020] A residential tenancy agreement may be varied by agreement of the owner and each 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.

(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 1A - Residential management agreements

16A. Residential management agreement

[Section 16A of Part 3 Inserted by No. 33 of 2010, s. 7, Applied:03 Dec 2010] (1) A residential management agreement exists where the owner of residential premises agrees in writing with a person that the person will perform the functions of that owner under this Act.

(2) Subject to subsection (4) , where a residential management agreement is in force – (a) [Section 16A Subsection (2) amended by No. 45 of 2013, s. 10, Applied:01 Oct 2014] the residential manager is taken to be the owner of the premises for the purposes of this Act and is taken for the purposes of this Act to have the capacity to grant a right of occupancy of those premises to a person for value; and

(b) this Act does not apply to the owner of the premises in his or her capacity as owner.

(3) Where a residential manager grants a right of occupancy of residential premises to a person, the person is a tenant for the purposes of this Act.

(4) Where a residential manager dies, becomes insolvent or is unable to be located or, in the case of a company, is wound up, whilst a residential management agreement is in force, the residential manager is no longer taken to be the owner of the premises for the purposes of this Act.

Division 2 - Rent

16B. Rental properties to be advertised and offered at fixed rental price

[Section 16B Inserted by No. 45 of 2013, s. 11, Applied:01 Oct 2014] (1) The owner of residential premises – (a) must not advertise the premises for rent, or offer the premises for rent, at a price that is not a fixed price; and

(b) must not invite a prospective tenant to make an offer to become a tenant of the premises at a price higher than a fixed price advertised or offered by the owner.

(2) For the purposes of this section – (a) rent specified in an advertisement, or offer, is not a fixed price for rent unless it is a definite single amount specified for the rent in the advertisement or offer; and

(b) rent specified in an advertisement, or offer, is not a fixed price for rent if the advertisement or offer is to the effect that the rent is to be determined in the future between the parties as – (i) any amount within a range of prices for the rent mentioned in the advertisement or offer; or

(ii) an amount that is to be above a minimum amount specified in the advertisement or offer.

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.

(1A) [Section 17 Subsection (1A) inserted by No. 38 of 2018, s. 7, Applied:31 Mar 2019] Subsection (1) does not apply to a requirement to provide, or a receipt of, money or other consideration for the provision of any service, that is not the provision of accommodation, to an NDIS participant at accommodation which is SDA.

(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.

(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.

(3A) [Section 17 Subsection (3A) inserted by No. 45 of 2013, s. 12, Applied:01 Oct 2014] A rent-collection agency must not require a person, who pays, or is to pay, to the agency rent in relation to residential premises, to pay a fee or charge in relation to the rent or receiving the rent.

(4) In this section, [Section 17 Subsection (4) amended by No. 45 of 2013, s. 12, Applied:01 Oct 2014] rent-collection agency means a person or body, other than an authorised deposit-taking institution, that receives, on behalf of an owner of residential premises to which a residential tenancy agreement relates, rent paid or payable in relation to the premises by or on behalf of a tenant;

[Section 17 Subsection (4) amended by No. 76 of 2009, s. 29, Applied:01 Jul 2009] water consumption charge means an amount levied on an owner by a regulated entity, within the meaning of the Water and Sewerage Industry Act 2008 , 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.

(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) [Section 20 Subsection (3) amended by No. 45 of 2013, s. 13, Applied:01 Oct 2014] Except in the case of a residential tenancy agreement that relates to social housing, an increase in rent may only take effect from a day that is more than 60 days after the day on which the notice is given and is a day that is – (a) [Section 20 Subsection (3) amended by No. 45 of 2013, s. 13, Applied:01 Oct 2014] not less than 12 months after the residential tenancy agreement commenced or was extended or renewed; or

(c) [Section 20 Subsection (3) amended by No. 45 of 2013, s. 13, Applied:01 Oct 2014] if rent has been previously increased, more than 12 months after the last increase; or

(3A) [Section 20 Subsection (3A) inserted by No. 45 of 2013, s. 13, Applied:01 Oct 2014] If a residential tenancy agreement relates to social housing, an increase in rent may only take effect from a day that is more than 60 days after the day on which the notice is given.

(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.

(5) [Section 20 Subsection (5) inserted by No. 38 of 2018, s. 8, Applied:31 Mar 2019] For the avoidance of doubt, it is stated that if – (a) a social housing provider or housing support provider is providing rent assistance to, or in relation to, an eligible person; and

(b) the social housing provider or housing support provider reduces the amount or amounts he or she is paying so as to cause the eligible person to pay a higher contribution towards the rent in respect of which he or she is or was receiving rent assistance –

the reduction of the amount or amounts that the social housing provider or housing support provider is paying does not constitute an increase in rent.

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

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. 45 of 2013, s. 14, Applied:01 Oct 2014] [Section 23 Subsection (1) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] A tenant may apply to the Commissioner for an order declaring that an increase in the rent payable under a residential tenancy agreement is unreasonable.

(1B) [Section 23 Subsection (1B) inserted by No. 45 of 2013, s. 14, Applied:01 Oct 2014] An application may only be made under subsection (1) by a tenant within the period of 60 days after the tenant is notified of the increase under section 20 .

(1C) [Section 23 Subsection (1C) inserted by No. 45 of 2013, s. 14, Applied:01 Oct 2014] The Commissioner may, if he or she thinks fit, conduct a hearing in relation to an application for an order under this section.

(2) [Section 23 Subsection (2) amended by No. 45 of 2013, s. 14, Applied:01 Oct 2014] [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 Commissioner 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. 45 of 2013, s. 14, Applied:01 Oct 2014] [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 Commissioner may order that the increase in the rent be changed to an amount that does not exceed a specified amount.

(4) [Section 23 Subsection (4) amended by No. 45 of 2013, s. 14, Applied:01 Oct 2014] Subject to subsection (7)(a) and any contrary order of a court, an order of the Commissioner under this section remains in force until the day on which rent may be increased under section 20 .

(5) [Section 23 Subsection (5) inserted by No. 45 of 2013, s. 14, Applied:01 Oct 2014] If the Commissioner has determined an application made under subsection (1) in respect of premises, a tenant or an owner in respect of the premises may apply to the Court to determine whether the increase in the rent, payable under the residential tenancy agreement in respect of the premises before the Commissioner determined the application, is unreasonable.

(6) [Section 23 Subsection (6) inserted by No. 45 of 2013, s. 14, Applied:01 Oct 2014] An application may only be made under subsection (5) by a tenant or owner in respect of premises within the period of 60 days after the tenant or owner is notified that the Commissioner has determined an application made under subsection (1) in respect of the premises.

(7) [Section 23 Subsection (7) inserted by No. 45 of 2013, s. 14, Applied:01 Oct 2014] If an application is made under subsection (5) in respect of premises – (a) any order made by the Commissioner under this section in relation to the premises is of no effect, unless the application is withdrawn; and

(b) the Court is to determine the application as if – (i) the Commissioner had not determined an application made under subsection (1) in respect of the premises; and

(ii) a reference in subsection (2) , (3) or (4) to the Commissioner were a reference to the Court.

24. Distress for rent prohibited

(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.

24A. Repayment of rent arrears accrued during period relating to COVID-19

[Section 24A Inserted by No. 30 of 2020, s. 6, Applied:17 Nov 2020] (1) A tenant who is in arrears of rent payable in respect of residential premises during the emergency period or a subsequent COVID-19 emergency period may apply to the Commissioner for a rent arrears payment order in relation to the arrears of rent.

(2) An application under subsection (1) is to be in the approved form.

(3) The Commissioner, as soon as practicable after receiving an application under subsection (1) in relation to premises, is to notify the owner of the premises.

(4) The Commissioner may make an order (a rent arrears payment order ) in relation to a tenant from whom the Commissioner has received an application under subsection (1) , if the Commissioner is satisfied that the tenant – (a) is in arrears of rent that was payable during the emergency period or a subsequent COVID-19 emergency period; and

(b) has experienced financial hardship as a result of the economic effects of the socially-dislocating disease; and

(c) has the financial capacity to comply with the order.

(5) A rent arrears payment order is to specify – (a) the total amount, of rent that is in arrears, to which the order relates; and

(b) a schedule setting out parts of the total amount and the periods within which each such part of the total amount is to be paid; and

(c) any conditions to which the order is subject; and

(d) that, unless an appeal is made under this section, the order takes effect on the day after the end of the 7-day period beginning on the day after the day on which notice of the order was given under subsection (6) .

(6) The Commissioner, within 3 days of making a rent arrears payment order under subsection (4) in relation to a tenant, is to notify the tenant, and the owner of the premises to which the order relates, of the making of the order.

24B. Appeal against order under section 24A

[Section 24B Inserted by No. 30 of 2020, s. 6, Applied:17 Nov 2020] (1) An owner or tenant in relation to residential premises who is aggrieved by an order made by the Commissioner under section 24A(4) may appeal to the Court within the 7-day period beginning on the day after the day on which notice of the order was given under section 24A(6) .

(2) An appeal is to be heard as a minor civil claim under the Magistrates Court (Civil Division) Act 1992 and, subject to this section, is to be instituted, heard and determined as prescribed.

(3) An appeal is to be by way of rehearing.

(4) On the hearing of an appeal, the Court may – (a) confirm the order of the Commissioner under section 24A(4) with the amendments, if any, that the Court thinks fit, and direct that the order of the Commissioner is to take effect from a specified date; or

(b) set aside the order of the Commissioner.

Division 3 - Security deposits and holding fees

25. Security deposits

[Section 25 Subsection (1) amended by No. 49 of 2003, s. 11, Applied:25 Aug 2004] [Section 25 Substituted by No. 59 of 2005, s. 5, Applied:01 Jul 2009] (1) Except in the case of boarding premises, an owner may require that an amount be paid by or on behalf of the prospective tenant as security for the performance of obligations under a residential tenancy agreement.

(1A) [Section 25 Subsection (1A) inserted by No. 38 of 2018, s. 9, Applied:31 Mar 2019] If a residential tenancy agreement relates to SDA and the prospective tenant is an NDIS participant, a security for the performance of obligations under the agreement may relate only to that part of the residential premises in respect of which the prospective tenant has the right of exclusive occupation.

(c) [Section 25 Subsection (2) amended by No. 38 of 2018, s. 9, Applied:31 Mar 2019] if the residential premises are social housing, to the Authority or the social housing provider; or

(d) [Section 25 Subsection (2) amended by No. 38 of 2018, s. 9, Applied:31 Mar 2019] if a council is the owner of the residential premises, to the Authority or the council.

(2A) [Section 25 Subsection (2A) inserted by No. 38 of 2018, s. 9, Applied:31 Mar 2019] If the owner of residential premises under a residential tenancy agreement is a social housing provider or a council and agrees to it, a security deposit may be paid in instalments as agreed between the owner and prospective tenant.

(3) [Section 25 Subsection (3) amended by No. 29 of 2017, Sched. 1, Applied:05 Sep 2017] A property agent who receives a security deposit from a tenant under subsection (2)(b) must deposit that money with the Authority within 10 working days after receiving it.

(3A) [Section 25 Subsection (3A) inserted by No. 35 of 2011, s. 6, Applied:01 Jan 2012] [Section 25 Subsection (3A) substituted by No. 38 of 2018, s. 9, Applied:31 Mar 2019] A social housing provider or council who receives a security deposit in full from or on behalf of a tenant must deposit that money with the Authority within 10 working days after receiving it.

(3B) [Section 25 Subsection (3B) inserted by No. 38 of 2018, s. 9, Applied:31 Mar 2019] A social housing provider or council who receives a security deposit in instalments from or on behalf of a tenant – (a) may keep all instalments received until the final instalment is paid; and

(b) must deposit all money so received with the Authority within 10 working days after receiving the final instalment.

(3C) [Section 25 Subsection (3C) inserted by No. 38 of 2018, s. 9, Applied:31 Mar 2019] Despite subsection (3B)(a) , if the social housing provider or council makes a claim, or is notified that a claim has been made, to the Authority for the disbursement of the security deposit, the social housing provider or council is to deposit with the Authority, as soon as reasonably practicable, all money paid to the social housing provider or council in instalments towards payment of the security deposit.

(3D) [Section 25 Subsection (3D) inserted by No. 38 of 2018, s. 9, Applied:31 Mar 2019] A person who pays or deposits a security deposit, or deposits an instalment towards a security deposit, with the Authority is to include with the payment or deposit the form specified in section 27(a) .

(4) An owner must not – (a) receive a security deposit from or on behalf of a tenant in relation to a residential tenancy agreement; or

(b) require more than one security deposit to be paid in relation to the same residential tenancy agreement; or

(c) require an amount to be paid as a security deposit that exceeds 4 weeks' rent payable under the residential tenancy agreement.

(5) If a court finds a property agent or an owner guilty of contravening subsection (3) or (4)(a) , the court, instead of or in addition to any penalty it may impose in respect of that contravention, may order the property agent or owner to pay an amount received as a security deposit to the Authority within 3 working days.

26. Condition report

(1) [Section 26 Subsection (1) amended by No. 59 of 2005, s. 6, Applied:01 Jul 2009] If an owner requires an amount as a security deposit in respect of any residential premises to be paid by or on behalf of a prospective tenant, 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. Forms relating to security deposit

(b) a form to claim the disbursement of a security deposit.

28. Provision of claim form, &c., on termination of tenancy

[Section 28 Subsection (2) amended by No. 67 of 2003, s. 10, Applied:05 Mar 2004] [Section 28 Substituted by No. 59 of 2005, s. 7, Applied:01 Jul 2009] On termination of a residential tenancy agreement, the owner must – (a) give to the tenant, not more than 3 working days after the termination of the residential tenancy agreement, a claim form signed by the owner; and

(b) if the claim form specifies that it is considered that the owner is entitled to a disbursement, give to the tenant a notice that states the reasons why.

29. Claims for disbursement of security deposit generally

[Section 29 Subsection (1) amended by No. 67 of 2003, s. 11, Applied:05 Mar 2004] [Section 29 Substituted by No. 59 of 2005, s. 7, Applied:01 Jul 2009] Following the termination of a residential tenancy agreement, the following persons are entitled to make a claim to the Authority for the disbursement of a security deposit in accordance with this Act: (a) the tenant under section 29A or 29B ;

(b) the owner under section 29A or 29C ;

(c) the deposit contributor under section 29A or 29D .

29A. Claim where all parties agree

[Section 29A Inserted by No. 59 of 2005, s. 7, Applied:01 Jul 2009] (1) If the owner, all tenants and all deposit contributors agree with the claim form and endorse the claim form to that effect, any of those persons may lodge the claim form with the Authority.

(2) On receipt of a claim form lodged under subsection (1) , the Authority is to – (a) disburse to the owner from the security deposit the amount specified in the claim form or later determined; and

(b) disburse the remainder of the security deposit, if any, to the tenants and the deposit contributors in accordance with section 29E .

29B. Claim by tenant

[Section 29B Inserted by No. 59 of 2005, s. 7, Applied:01 Jul 2009] (1) The tenant may lodge with the Authority a claim form following the end of a residential tenancy agreement if – (a) the tenant has received the claim form from the owner under section 28 and has endorsed it with his or her agreement; or

(b) the owner has failed to so provide a claim form.

(2) [Section 29B Subsection (2) amended by No. 33 of 2010, s. 9, Applied:03 Dec 2010] On receipt of a claim form under subsection (1) , the Authority is to take all reasonable steps to provide notice of receipt of the claim form to each owner, tenant and deposit contributor who has not endorsed the claim form with his or her agreement to it.

(3) If no dispute is lodged under section 29F , the Authority is to – (a) disburse to the owner from the security deposit any amount specified in the claim form or later determined; and

(b) disburse the remainder of the security deposit, if any, to the tenants and the deposit contributors in accordance with section 29E .

29C. Claim by owner

[Section 29C Inserted by No. 59 of 2005, s. 7, Applied:01 Jul 2009] (1) The owner may lodge a claim form with the Authority – (a) if – (i) the owner has given a claim form to a tenant under section 28 ; and

(ii) the tenant has not lodged that form with the Authority within 10 days after it was so given or a longer prescribed period; and

(iii) the deposit contributor has not lodged a claim form with the Authority; or

(b) if – (i) the owner has been unable to give the claim form to any tenant under section 28 after taking all reasonable steps to do so; and

(ii) the deposit contributor has not lodged a claim form with the Authority.

(2) On receipt of a claim form under subsection (1) – (a) the Authority is to refer the matter to the Commissioner; and

(b) the referral is taken to be a dispute lodged under section 29F and this Act applies to the referral with such modifications as are necessary for that purpose.

29D. Claim by deposit contributor

[Section 29D Inserted by No. 59 of 2005, s. 7, Applied:01 Jul 2009] (1) A deposit contributor may lodge a claim form with the Authority if – (a) the contributor is aware that the residential tenancy agreement has been terminated; and

(b) the tenant has not lodged a claim form with the Authority within 10 days after it was given to him or her by the owner or a longer prescribed period; and

(c) the owner has not lodged a claim form with the Authority.

(2) [Section 29D Subsection (2) amended by No. 33 of 2010, s. 10, Applied:03 Dec 2010] On receipt of a claim form under subsection (1) , the Authority is to take all reasonable steps to provide notice of receipt of the claim form to each owner, tenant and other deposit contributor.

(3) If no dispute is lodged under section 29F , the Authority is to – (a) disburse to the owner from the security deposit the amount specified in the claim form or later determined; and

(b) disburse the remainder of the security deposit, if any, to the tenants and the deposit contributors in accordance with section 29E .

29DA. Referral by Authority to Commissioner

29E. Disbursements of security deposits

[Section 29E Inserted by No. 59 of 2005, s. 7, Applied:01 Jul 2009] (1) In this section – deposit contributor's portion means the amount that would be paid to a deposit contributor under subsection (2)(b) if no disbursement were to be made to the owner;

tenant's portion means the amount that would be paid to a tenant under subsection (2)(a) if no disbursement were to be made to the owner.

(2) If no part of a security deposit is to be disbursed to the owner – (a) that part of the security deposit paid to the Authority by the tenant is to be disbursed to the tenant; and

(b) that part of the security deposit paid to the Authority by a deposit contributor is to be disbursed to the deposit contributor.

(3) In a case where any part of the security deposit is to be disbursed to the owner – (a) the Authority – (i) is to subtract the amount to be disbursed to the owner firstly from the tenant's portion; and

(ii) if there is insufficient money in the tenant's portion to fully meet that disbursement, is to then subtract from the deposit contributor's portion any part of that disbursement that has not been met from the tenant's portion; and

(b) if there is money remaining in either the tenant's portion or deposit contributor's portion after meeting the disbursement to the owner as specified in paragraph (a) , the Authority is to pay that remainder to the tenant or contributor, as appropriate.

(4) The Authority must not disburse the security deposit after a dispute is lodged under section 29F until – (a) if an appeal is instituted under section 30 , that appeal is decided; or

(b) if no appeal is instituted under that section, the period allowed for instituting the appeal has elapsed.

(5) Interest earned with respect to any security deposit held by the Authority is the property of the Authority and is not payable as a disbursement to any tenant, deposit contributor or owner.

29F. Lodging disputes

[Section 29F Inserted by No. 59 of 2005, s. 7, Applied:01 Jul 2009] (1) A tenant may dispute a claim form by lodging with the Commissioner a dispute – (a) if the tenant has received a claim form from the owner, at any time before a relevant claim form is lodged with the Authority; or

(b) in all other cases, within 10 days after the lodgment of a relevant claim form with the Authority.

(2) A deposit contributor or owner may dispute a claim form by lodging with the Commissioner a dispute within 10 days after the lodgment of a relevant claim form with the Authority.

(3) A dispute is to – (a) be in writing; and

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

(c) be accompanied by the prescribed fee.

(4) The Commissioner may accept the lodgment of a dispute after the period specified in subsection (1) or (2) has expired at his or her discretion but only if – (a) the Authority has not already made a disbursement of the security deposit; or

(b) the security deposit has not been forfeited to the Authority.

(5) If a matter in respect of a claim form is referred to the Commissioner by the Authority under section 29C(2) , the owner who lodged the claim form is required to pay the fee prescribed under subsection (3)(c) as if he or she had lodged the dispute.

(6) On receipt of a dispute, the Commissioner – (a) is to notify, in writing, the Authority of the dispute within 24 hours after it is lodged; and

(b) is to take all reasonable steps to notify, in writing, each tenant, deposit contributor and owner who is known to the Commissioner of the lodging of the dispute and their right to make written submissions in respect of the dispute within the time specified in the notice; and

(c) may require the Authority and any such tenant, deposit contributor and owner to provide the Commissioner with information and documentation relevant to the dispute.

(7) The Authority, a tenant, a deposit contributor or an owner must comply with a requirement made under subsection (6)(c) .

(8) If a tenant, deposit contributor or owner fails to comply with a requirement made under subsection (6)(c) , he, she or it is guilty of an offence and is liable on conviction to a fine not exceeding 10 penalty units.

(9) Each owner, tenant and deposit contributor in respect of a residential tenancy agreement is a party to a dispute relating to the claim form in respect of the termination of that agreement.

(10) A party other than the person who lodged the dispute may provide written submissions and other documents to the Commissioner in respect of the dispute on payment of the prescribed fee.

(11) The Commissioner may waive the whole or any part of a fee payable under this section.

29G. Determining disputes

[Section 29G Inserted by No. 59 of 2005, s. 7, Applied:01 Jul 2009] (1) The Commissioner may not determine a dispute until at least 7 days have passed since the last of the notices that he or she is required to provide under section 29F(6)(a) and (b) has been so provided.

(2) The Commissioner is to determine a dispute by determining the amount, if any, of the security deposit that is to be disbursed to the owner.

(3) On determining a dispute, the Commissioner is to give to the Authority and each party known to the Commissioner written notice of the determination.

(4) The Commissioner may refund to any person the whole or any part of any fee paid under section 29F if the Commissioner considers that another party to the dispute has acted vexatiously in lodging the dispute, submissions or other information under that section.

30. Appeal against determination

(2) [Section 30 Subsection (2) amended by No. 59 of 2005, s. 8, Applied:01 Jul 2009] An appeal is to be instituted within 7 days after the last of the parties to the dispute has been given notice of the Commissioner's determination under section 29G .

(b) [Section 30 Subsection (4) amended by No. 59 of 2005, s. 8, Applied:01 Jul 2009] vary the determination and order the security deposit to be disbursed in accordance with the determination as varied and section 29E .

(5) [Section 30 Subsection (5) inserted by No. 59 of 2005, s. 8, Applied:01 Jul 2009] On deciding an appeal, the Court is to notify the Authority, in writing, of its decision.

30A. Unclaimed security deposit forfeited

forfeit determination means a determination made under subsection (3) .

(2) The Authority may determine in relation to a security deposit or part of a security deposit held by it that at least 6 years have elapsed since the end of the residential tenancy agreement.

(3) In accordance with this section and after making an expired period determination, the Authority may further determine that the security deposit or the part of a security deposit held by it is forfeited to the Authority.

(4) If no claim form has been lodged with the Authority, it may make a forfeit determination in respect of a security deposit held by it any time after the expired period determination is made.

(5) If a claim form has been lodged with the Authority – (a) in a case where a disbursement has been made from the security deposit before the expired period determination is made, the Authority may make a forfeit determination in respect of that part of the security deposit held by it any time after the expired period determination is made; or

(b) in any other case, the Authority may make a forfeit determination in respect of that part of the security deposit held by it after all disbursements resulting from that claim are made in accordance with this Act.

(6) On the making of a forfeit determination, the security deposit, or that part of a security deposit, in respect of which that determination is made is forfeited to and becomes the property of the Authority.

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

31A. Reference in this Division to repair may include reference to replacement

[Section 31A Inserted by No. 45 of 2013, s. 15, Applied:01 Oct 2014] (1) If an object that is an essential service and that is required to be repaired under this Division is unable to be repaired, the object is required under this Division to be replaced with an object that – (a) serves the same primary function as the object required to be replaced; and

(b) serves that function to a reasonably similar degree or standard as the degree or standard of the object before it was required to be repaired –

and, accordingly, a reference in this Division to repair is to be taken in such circumstances to be a reference to replacement.

(2) If an object that is an essential service and that is required to be repaired under this Division is able to be repaired, but it would be cheaper, easier or quicker to replace the object instead, the object may be replaced with an object that – (a) serves the same primary function as the object required to be replaced; and

(b) serves that function to a reasonably similar degree or standard as the degree or standard of the object before it was required to be repaired –

and, accordingly, a reference in this Division to repair is to be taken in such circumstances to include a reference to replacement.

32. General repairs and maintenance

(1) [Section 32 Subsection (1) amended by No. 45 of 2013, s. 16, Applied:01 Oct 2014] Without limiting the application of Part 3B , 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 –

(b) does not apply during a subsequent COVID-19 emergency period, unless a period is determined under subsection (5)(b) during the subsequent COVID-19 emergency period, in which case this section does not apply during the period so determined.

(5) [Section 32 Subsection (5) inserted by No. 30 of 2020, s. 7, Applied:17 Nov 2020] The Commissioner, by notice in the Gazette, may, for the purposes of subsection (4) , determine – (a) a period, specified in the notice, that ends before the end of the emergency period; or

(b) a period, specified in the notice, that ends before the end of a subsequent COVID-19 emergency period.

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.

(6) [Section 33 Subsection (6) inserted by No. 45 of 2013, s. 17, Applied:01 Oct 2014] In this section, an essential service is to be taken to be functional – (a) where the service is a water service or a sewerage service, if at least the amount of water or sewage that would be supplied or removed, respectively, from the premises, if the service were fully functional, is capable of being safely so supplied or removed; and

(b) where the service is an electricity service, if – (i) all power points, or wires between the walls of the premises or in the ceiling of the premises are safe and, except in relation to those power points or wires indicated in the condition report prepared at the beginning of the tenancy as not being functioning power points or functioning wires, supply electricity to the premises; and

(ii) where the service consists of an electricity-generating device – the device safely produces and supplies electricity to at least the level that such a device of the same capacity ought reasonably be expected to produce and supply; and

(c) where the service is a heating service, if the service safely provides heat to the level that it was reasonably capable of providing when it was manufactured; and

(d) where the service is a cooking stove, if at least half of the heating elements of the stove, and the oven, function safely; and

(e) where the service is a hot-water service, if the service safely provides at least the same amount of hot water, and water at the same temperature, as the service provided when it was manufactured; and

(f) where the service is a service that is within the meaning of paragraph (c) of the definition of essential service in section 3 , if all water on the premises required to be removed or treated is able to be safely removed, or safely treated, within the period that such a service would be able to remove or treat the water if the service were fully functioning.

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.

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.

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.

36A. Order for repairs

[Section 36A Inserted by No. 67 of 2003, s. 15, Applied:05 Mar 2004] [Section 36A Substituted by No. 45 of 2013, s. 18, Applied:01 Oct 2014] (1) A tenant may apply to the Commissioner for an order that repairs under this Division that the owner is required under this Division to carry out, or to arrange for the carrying out of, are carried out.

(2) An application is to be accompanied by the prescribed fee.

(3) The Commissioner may, if he or she thinks fit, conduct a hearing in relation to an application for an order under this section.

(4) The Commissioner may order an owner to ensure that reasonable repairs in relation to premises (including repairs of essential services) are carried out, if satisfied that – (a) the owner is required under this Division to carry out, or to arrange for the carrying out of, the repairs; and

(b) the repairs are reasonable; and

(c) the repairs are not required because of any fault of the tenant.

(5) If the Commissioner has determined an application made under subsection (1) in respect of premises, the owner or a tenant in respect of the premises may apply to the Court for a determination as to whether the owner is required under this Division to carry out, or to arrange for the carrying out of, repairs under this Division.

(6) An application may only be made under subsection (5) by a tenant or owner within the period of 60 days after the tenant or owner is notified of the determination of the Commissioner in respect of the matter to which the application relates.

(7) If an application is made under subsection (5) in respect of premises – (a) any order made by the Commissioner under this section in relation to the premises is of no effect, unless the application is withdrawn; and

(b) the Court is to determine the application as if the Commissioner had not made a determination under this section in relation to the matter to which the application relates and as if a reference in subsection (4) to the Commissioner were a reference to the Court.

PART 3A - Smoke Alarms

36B. Interpretation of Part 3A

[Section 36B Inserted by No. 28 of 2012, s. 4, Applied:01 May 2013] In this Part – smoke alarm means a device that is designed to emit a loud warning sound when it detects the presence of smoke;

tenanted premises means premises to which a residential tenancy agreement relates.

36C. Smoke alarms

[Section 36C Inserted by No. 28 of 2012, s. 4, Applied:01 May 2013] (1) In this section – relevant period , in relation to tenanted premises, means the period – (a) beginning on the day on which a tenant first takes possession of the premises under the residential tenancy agreement in relation to the premises; and

(b) ending on the day on which all tenants under that agreement cease to be in possession of the premises under the agreement.

(2) An owner of tenanted premises must ensure that smoke alarms are, during the relevant period, in place on the premises in accordance with the requirements, if any, prescribed in regulations for the purposes of this section in relation to such premises.

(3) The requirements that may be prescribed in regulations for the purposes of this section include, but are not limited to including, requirements of the following kind: (a) the class or classes of tenanted premises in relation to which smoke alarms are required to be in place;

(b) the type or types of smoke alarms that are required to be in place in relation to such a class or classes of premises;

(c) any standards or codes with which such smoke alarms are to comply;

(d) where on such premises such smoke alarms are required to be in place.

36D. Maintenance, &c., of smoke alarms

[Section 36D Inserted by No. 28 of 2012, s. 4, Applied:01 May 2013] (1) An owner of tenanted premises must not, without reasonable excuse, fail to comply, in relation to a smoke alarm that – (a) is required under section 36C to be in place on such premises; and

(b) is installed in the premises –

with the requirements prescribed, in regulations for the purposes of this subsection, in relation to owners of tenanted premises.

(2) A tenant of tenanted premises must not, without reasonable excuse, fail to comply, in relation to a smoke alarm that – (a) is required under section 36C to be in place on such premises; and

(b) is installed in the premises –

with the requirements prescribed, in regulations for the purposes of this subsection, in relation to tenants of tenanted premises.

(3) The regulations may prescribe for the purposes of subsections (1) and (2) requirements, in respect of owners and tenants, respectively, of tenanted premises, in relation to the following: (a) the maintenance, cleaning and testing of smoke alarms required under section 36C to be in place on tenanted premises and installed on such premises;

(b) the replacement or repair of such smoke alarms;

(c) the replacement of batteries used to power such smoke alarms;

(d) the giving of notice to an owner of premises to which section 36C relates that a smoke alarm on the premises has ceased to function properly or at all.

36E. Defences in relation to sections 36C and 36D

[Section 36E Inserted by No. 28 of 2012, s. 4, Applied:01 May 2013] (1) It is a defence to a charge of committing an offence against a provision of section 36C or section 36D that another person to whom that provision applied had satisfied the requirements of that provision.

(2) It is not a defence to a charge of committing an offence against a provision of section 36C or section 36D that another person to whom that provision applied had failed to satisfy the requirements of that provision.

36F. Removal of, or interference with, smoke alarms

[Section 36F Inserted by No. 28 of 2012, s. 4, Applied:01 May 2013] (1) A person must not remove, or interfere with the operation of, a smoke alarm that is in place on premises as required under section 36C .

(2) It is a defence to a charge of committing an offence against subsection (1) if the person charged proves that – (a) the smoke alarm was removed so as to enable the repair or maintenance of the smoke alarm; and

(b) the smoke alarm was removed for no longer than was reasonably necessary to enable the repair or maintenance.

(3) It is a defence to a charge of committing an offence against subsection (1) in relation to premises if the person charged proves that – (a) the smoke alarm was removed so as to enable the replacement of the smoke alarm; and

(b) the smoke alarm was, as soon as practicable after being removed, replaced by another smoke alarm that complies with the requirements, prescribed for the purposes of section 36C , that apply in relation to the premises.

(4) A person must not wilfully cause to malfunction, or to cease to operate effectively, a smoke alarm that is in place on premises as required under section 36C .

36G. Right to install smoke alarms in strata title units

lot has the same meaning as it has in the Strata Titles Act 1998 .

(2) Nothing in the Strata Titles Act 1998 , any regulations made under that Act, or any rules made by a body corporate under that Act, is to be taken to prevent any of the following occurring, or to require the permission of the body corporate in relation to a lot to be given before any of the following may occur: (a) the installation, repair or maintenance of any smoke alarms that are required under section 36C to be in place on premises;

(b) any works, including but not limited to works consisting of or associated with the installation, repair or maintenance of electrical wiring, that are necessary to enable the installation or operation of any smoke alarms that are required under section 36C to be in place on premises;

(c) the installation, repair or maintenance of any object, including but not limited to electrical wiring, that is necessary to enable the installation or operation of any smoke alarms that are required under section 36C to be in place on premises.

36H. Power of Commissioner to order compliance with this Part

[Section 36H Inserted by No. 28 of 2012, s. 4, Applied:01 May 2013] (1) The Commissioner may make an order requiring a party to a residential tenancy agreement to comply with a provision of this Part.

(2) An order made under subsection (1) may be enforced in the same manner as an order made by a magistrate under the Magistrates Court (Civil Division) Act 1992 .

PART 3B - Minimum Standards for Premises

36I. Premises to be weatherproof and structurally sound

[Section 36I Inserted by No. 45 of 2013, s. 19, Applied:01 Aug 2015] (1) An owner must ensure that premises to which a residential tenancy agreement relates – (a) are weatherproof; and

(b) are in a proper state of structural repair.

(2) For the purpose of subsection (1) , premises are in a proper state of structural repair only if the roof, floors, ceilings, walls and stairs – (a) are in good repair; and

(b) are not subject to significant dampness; and

(c) are not liable to collapse because they are rotted or otherwise defective.

36J. Cleanliness and good repair

[Section 36J Inserted by No. 45 of 2013, s. 19, Applied:01 Aug 2015] (1) An owner must not enter into a residential tenancy agreement in relation to premises unless the premises are clean.

(2) An owner must not enter into, extend, or renew, a residential tenancy agreement in relation to premises unless the premises are in good repair.

(3) An owner of premises to which a residential tenancy agreement relates must, as soon as practicable after he or she becomes aware that the premises have ceased to be in good repair, take all reasonable steps to return the premises to good repair, except if the premises have ceased to be in good repair through the fault of a tenant.

36K. Bathrooms and toilets to be provided

[Section 36K Inserted by No. 45 of 2013, s. 19, Applied:01 Aug 2015] (1) An owner must not enter into, extend, or renew, a residential tenancy agreement in relation to premises unless – (a) there is, in or on the premises, a flushable toilet that is – (i) connected to a sewer, an on-site wastewater management system (including a septic system), or any other system, approved by the council for the municipal area in which the premises are situated, for treatment or disposal of waste; and

(ii) contained in a room that is intended to be used solely for the purposes of toilet use or as a bathroom; and

(b) the room that contains the toilet contains – (i) a vent or opening window; or

(ii) a functioning device that enables the room to be mechanically ventilated.

(2) An owner must not enter into, extend, or renew, a residential tenancy agreement in relation to premises unless – (a) there is situated on the premises a bathroom (which may contain a toilet) that is in a separate room; and

(b) the bathroom is designed to permit a person to use it in private; and

(c) the bathroom contains a bath or a shower (and may contain both); and

(d) the bathroom contains a washbasin; and

(e) any washbasin, bath or shower in the bathroom is connected to a water system enabling a continuous supply of a reasonable amount of hot and cold water to be provided to the washbasin, bath or shower.

36L. Cooking facilities

[Section 36L Inserted by No. 45 of 2013, s. 19, Applied:01 Aug 2015] An owner must not enter into, extend, or renew, a residential tenancy agreement in relation to premises unless there is situated in the premises an area, intended to be used for cooking, that includes – (a) a functioning kitchen sink that is connected to a water system enabling a continuous supply of hot and cold water to be provided to the sink; and

(b) a stovetop with – (i) at least 2 functioning heating elements, if the premises has 2 or fewer bedrooms; or

(ii) at least 3 functioning heating elements, if the premises has 3 or more bedrooms; and

(c) a functioning oven, which may be a conventional oven, convection oven or microwave oven or a combination of any such ovens; and

(d) any other object, for the purposes of use in a kitchen, that is prescribed.

36M. Electricity and heating

[Section 36M Inserted by No. 45 of 2013, s. 19, Applied:01 Aug 2015] (1) An owner must not enter into, extend, or renew, a residential tenancy agreement in relation to premises unless the premises are connected to – (a) a mains electricity supply (whether or not an electricity provider is supplying electricity to the premises on the day the agreement is entered into, extended or renewed); or

(b) a functioning device that is – (i) capable of producing and supplying to the premises a supply of electricity that is sufficient to provide for the electricity needs of the number of persons that the premises is designed to accommodate; and

(ii) connected to the electrical wiring system in the premises.

(2) An owner must not enter into, extend, or renew, a residential tenancy agreement in relation to premises unless – (a) all power points, or wires between the walls of the premises or in the ceiling of the premises are safe and, except for the power points or wires indicated in the condition report prepared at the beginning of the tenancy as not being functioning power points or functioning wires, supply electricity to the premises; and

(b) every room used, or intended for use, by a tenant, other than a room that is intended only for storage or for use as a garage, has adequate natural or artificial lighting.

(3) An owner must not enter into, extend, or renew, a residential tenancy agreement in relation to premises unless there is, in a room that may be used as the main living area in the premises, a heating device consisting of – (a) an electric heater, or a gas heater, that is a fixture; or

(b) a heat pump; or

(c) a wood heater (not being an open fire place); or

(d) an open fire place, if there is in force in relation to the open fire place an approval under subsection (4) ; or

(e) another heating device that is prescribed.

(4) The Commissioner, by notice to an owner of one or more premises, may approve, on the conditions specified in the notice, an open fire place for the purposes of subsection (3)(d) for use in such of the premises as are specified in the notice.

(5) The Commissioner, by notice in the Gazette, may approve, on the conditions specified in the notice, an open fire place for the purposes of subsection (3)(d) for use in the premises, or a class of premises, specified in the notice.

(6) A notice under this section is not a statutory rule for the purposes of the Rules Publication Act 1953 .

36N. Window covering for privacy

[Section 36N Inserted by No. 45 of 2013, s. 19, Applied:01 Aug 2015] (1) [Section 36N Subsection (1) amended by No. 26 of 2023, s. 4, Applied:07 May 2024] An owner who is not a social housing provider must not enter into, extend, or renew, a residential tenancy agreement in relation to premises unless curtains or blinds cover each window in any room, in the premises, that the owner knows is likely to be used as a bedroom or a living area.

(2) [Section 36N Subsection (2) substituted by No. 26 of 2023, s. 4, Applied:07 May 2024] A social housing provider must not enter into a new residential tenancy agreement relating to a premises unless curtains or blinds cover each window in any room, in the premises, that the social housing provider knows is likely to be used as a bedroom or a living area.

(3) [Section 36N Subsection (3) inserted by No. 26 of 2023, s. 4, Applied:07 May 2024] Subsection (2) does not apply to a social housing provider in respect of premises if – (a) at the time the social housing provider enters into a new residential tenancy agreement in relation to the premises, the social housing provider agrees to furnish the premises with such window coverings at the provider’s own expense; and

(b) such window coverings are provided, and installed, as soon as practicable, but not later than 30 days, after the social housing provider enters into the agreement.

(4) [Section 36N Subsection (4) inserted by No. 26 of 2023, s. 4, Applied:07 May 2024] For the avoidance of doubt, a reference in subsection (2) or (3) to a new residential tenancy agreement does not include the extension or renewal of a residential tenancy agreement.

[Section 36O Inserted by No. 45 of 2013, s. 19, Applied:01 Aug 2015] (1) An owner must not enter into, extend, or renew, a residential tenancy agreement in relation to premises unless adequate ventilation is provided to each room in the premises in accordance with this section.

(2) For the purposes of subsection (1) , adequate ventilation is provided to a room if – (a) there are one or more openings, in the room, that open to an area of the premises that is not both covered by a ceiling and surrounded by walls (including any walls with doors or windows); and

(b) the total area of all such openings constitutes not less than 5 per cent of the floor area of the room.

(3) For the purposes of subsection (1) , adequate ventilation is provided to a room (the first room ) if – (a) one or more openings, in the room, open to an adjoining room; and

(b) the first room or the adjoining room to which the openings open is not a sanitary compartment; and

(c) the total area, of all the openings in the first room that open to an adjoining room, constitutes not less than 5 per cent of the floor area of the first room; and

(d) there are one or more openings in the adjoining room (not being the same openings as the openings in the first room); and

(e) the total area, of all the openings in the adjoining room (not being the same openings as the openings in the first room), constitutes not less than 5 per cent of the floor area of the adjoining room.

(4) For the purposes of subsection (1) , adequate ventilation is provided to a room that is a sanitary compartment, bathroom or laundry if the room is ventilated by a functioning mechanism (including but not limited to an exhaust fan) that – (a) takes air from the room directly to an area of the premises that is not both covered by a ceiling and surrounded by walls (including any walls with doors or windows); or

(b) takes air from the room directly to a roof space that – (i) is adequately ventilated by open eaves or roof vents, or both; or

(ii) is covered by roof tiles to which sarking, or another material that would prevent air escaping between gaps in the tiles, has not been applied.

(5) An owner must not enter into, extend, or renew, a residential tenancy agreement in relation to premises that contain a window that provides adequate ventilation for the purposes of subsection (1) , unless the window is able to be securely fastened into a position that creates a gap, between an edge of the window and an edge of the window frame, that – (a) is not less than 15 cms wide; and

(b) does not enable a person to enter the room in which the window is situated.

(6) In this section – opening means – (a) an open space in a door, wall or ceiling; or

(b) a space that is created, or may be created, by the opening of a window or a door or other structure in a door, wall or ceiling;

sanitary compartment means a room designed to contain a toilet and not designed to contain a bath or shower.

36P. Exemption from requirements of provision of this Part

[Section 36P Inserted by No. 45 of 2013, s. 19, Applied:01 Aug 2015] (1) The Commissioner, by notice to an owner of premises, may specify that, for the period specified in the notice, the premises are exempted from the application of a provision of this Part that is specified in the notice.

(2) The Commissioner, by notice in the Gazette, may specify that, for the period specified in the notice, premises, or a class of premises, specified in the notice are exempted from the application of a provision of this Part that is specified in the notice.

(3) If premises are specified, or are within a class of premises specified, in a notice under subsection (1) or (2) , to be exempted from the application of a provision of this Part, the provision does not apply in relation to the premises for the period specified in the notice.

(4) A notice under this section is not a statutory rule for the purposes of the Rules Publication Act 1953 .

PART 4 - Termination of agreements

Division 1 - Termination

37. Termination of agreement

(1) A residential tenancy agreement in respect of residential premises is terminated only by – (a) the delivery of vacant possession of the premises by the tenant to the owner as a result of their agreement to terminate the agreement; or

(b) the delivery of vacant possession of the premises by the tenant to the owner following a notice to vacate by the owner; or

(c) the delivery of vacant possession of the premises by the tenant to the owner following a notice to terminate by the tenant; or

(dc) [Section 37 Subsection (1) amended by No. 45 of 2013, s. 20, Applied:01 Oct 2014] the death of the tenant, if there is no other surviving tenant in relation to the premises; or

(e) [Section 37 Subsection (1) amended by No. 67 of 2003, s. 16, Applied:05 Mar 2004] the recovery of vacant possession of the premises by the owner following abandonment or early vacation of the premises.

(2) An owner must not regain, or attempt to regain, possession of the premises by any means other than those specified in subsection (1) .

38. Notice of termination by tenant

(1) A tenant of residential premises may serve on the owner of the premises a notice to terminate a residential tenancy agreement and deliver vacant possession of the premises to the owner on any of the following grounds: (a) the owner has failed to carry out any repairs that do not arise from the fault of the tenant within 28 days after receiving notification under section 32(2) ;

(b) the owner has failed to comply with any provision of the residential tenancy agreement;

(c) if the residential tenancy agreement is not for a fixed period, the tenant wishes to terminate it.

(2) Any payment of rent after a notice of termination takes effect does not constitute the existence of a new residential tenancy agreement.

(3) Any payment of arrears of rent after a notice of termination takes effect does not revoke the notice unless the payment was made and accepted on that basis.

38A. Order allowing for termination in case of severe COVID-19 related hardship

[Section 38A Inserted by No. 11 of 2020, Sched. 2, Applied:27 Mar 2020] (1) An owner or tenant of residential premises to which a fixed term lease applies may apply to the Commissioner for an order declaring that the lease is terminated.

(2) An owner or tenant of residential premises to which a fixed term lease applies may only apply under subsection (1) for an order on the grounds that the continuation of the lease would result in severe hardship to the owner, or tenant, respectively, related to the effect of the presence in the State of the socially-dislocating disease and the risk of its spread amongst persons in the State.

(3) If the Commissioner is satisfied that the continuation of a fixed term lease to which an application under subsection (1) relates would result in severe hardship to the owner, or tenant, respectively, related to the effect of the presence in the State of the socially-dislocating disease and the risk of its spread amongst persons in the State, the Commissioner may make an order declaring that the lease is terminated from a date specified in the order.

(4) An order under subsection (3) may specify that compensation is payable by the owner or tenant in relation to the termination of the lease.

(5) The Commissioner, within 3 days of making an order under subsection (3) in relation to residential premises, is to notify the owner and the tenant of the residential premises of the making of the order.

(6) An order made under subsection (3) in relation to residential premises is to specify that, unless an appeal is made under this section, the order takes effect on the day after the end of the 7-day period after the day on which notice of the order was given under subsection (5) .

38B. Appeal against order under section 38A

[Section 38B Inserted by No. 11 of 2020, Sched. 2, Applied:27 Mar 2020] (1) An owner or tenant in relation to residential premises who is aggrieved by an order made by the Commissioner under section 38A(3) may appeal to the Court within the 7-day period after the day on which notice of the order was given under section 38A(5) .

(2) An order made under section 38A(3) in relation to residential premises may be enforced in the same manner as an order made by a magistrate under the Magistrates Court (Civil Division) Act 1992 , if – (a) no appeal has been made under subsection (1) by a tenant in relation to the residential premises within the 7-day period after the day on which notice of the order was given under section 38A(5) ; or

(b) where an appeal has been made under subsection (1) by a tenant in relation to the residential premises – the order has been confirmed by the Court under subsection (5)(a) .

(3) An appeal is to be heard as a minor civil claim under the Magistrates Court (Civil Division) Act 1992 and, subject to this section, is to be instituted, heard and determined as prescribed.

(4) An appeal is to be by way of rehearing.

(5) On the hearing of an appeal the Court may – (a) confirm the order of the Commissioner under section 38A(3) and direct that the order of the Commissioner is to take effect from a specified date; or

(b) set aside the order of the Commissioner.

(6) If – (a) an order is made under section 38A(3) in relation to residential premises; and

(b) an appeal has not been made under subsection (1) by an owner or tenant in relation to the residential premises within the 7-day period after the day on which notice of the order is given under section 38A(5) –

39. Effect of notice of termination

(1) [Section 39 Subsection (1) amended by No. 45 of 2013, s. 21, Applied:01 Oct 2014] [Section 39 Subsection (1) substituted by No. 49 of 2003, s. 17, Applied:25 Aug 2004] Subject to subsections (3) and (4) , a notice of termination takes effect on a date specified in the notice that is a date – (a) in the case of boarding premises, at least 2 days after the notice is served; or

(b) in any other case, at least 14 days after the notice is served.

(2) [Section 39 Subsection (2) amended by No. 67 of 2003, s. 17, Applied:05 Mar 2004] A notice of termination on the ground that the owner has failed to comply with a provision of the residential tenancy agreement, other than a provision relating to repairs, is of no effect if the owner complies with that provision before the period of 14 days referred to in subsection (1) expires.

(3) [Section 39 Subsection (3) inserted by No. 45 of 2013, s. 21, Applied:01 Oct 2014] If – (a) a residential tenancy agreement in respect of premises is not for a fixed period; and

(b) the premises are not boarding premises; and

(c) a date, specified in a notice of termination in respect of the agreement, is a date that is not 14 days or more after the notice is served on the owner –

the notice of termination is not invalid but only takes effect on the day after the end of 14 days after the day on which the notice is served.

(b) the premises are not boarding premises; and

(c) [Section 39 Subsection (4) amended by No. 16 of 2015, s. 4, Applied:17 Jun 2015] a date, specified in a notice of termination in respect of the premises, is a date that is not 14 days or more after the notice is served on the owner –

the notice of termination is not invalid but only takes effect on the day after the end of 14 days after the day on which the notice is served.

40. Form of notice of termination

[Section 40 Substituted by No. 49 of 2003, s. 18, Applied:25 Aug 2004] (1) In the case of premises other than boarding premises, a notice of termination is to state the following: (a) the date of service of the notice;

(b) the name of the tenant;

(c) the name of the owner;

(d) the residential premises to which the notice applies;

(e) the details of the ground on which the notice is served;

(f) the date on which the notice takes effect.

(2) In the case of boarding premises, a notice of termination is to state – (a) that the tenant intends to vacate the premises; and

(b) the date on which the tenant intends to vacate, which is to be at least 2 days after the date of the notice.

41. Order of termination

(1) [Section 41 Subsection (1) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] A party to a residential tenancy agreement may apply to the Court for an order that the agreement be terminated on any of the following grounds: (a) [Section 41 Subsection (1) amended by No. 67 of 2003, s. 18, Applied:05 Mar 2004] that another party has intentionally or recklessly caused or permitted, or is likely to intentionally or recklessly cause or permit, serious damage to – (i) the residential premises or contents of those premises; or

(ii) any neighbouring premises;

(b) [Section 41 Subsection (1) amended by No. 67 of 2003, s. 18, Applied:05 Mar 2004] that another party has caused physical injury, or is likely to cause physical injury, to that party or a person occupying neighbouring premises.

(2) [Section 41 Subsection (2) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] If the Court is satisfied as to any of the grounds referred to in subsection (1) , the Court may order – (a) that the residential tenancy agreement is terminated on a specified date without notice; and

(b) that vacant possession of the residential premises is to be delivered to the owner on that day.

Division 2 - Notice to vacate

42. Notice to vacate by owner

(1) [Section 42 Subsection (1) amended by No. 45 of 2013, s. 22, Applied:01 Oct 2014] An owner of residential premises, including but not limited to social housing, may serve on a tenant of the premises a notice requiring the tenant to deliver vacant possession of the premises to the owner for any of the following reasons: (a) [Section 42 Subsection (1) amended by No. 11 of 2020, Sched. 2, Applied:27 Mar 2020] that the tenant has failed to comply with any provision of the residential tenancy agreement, except if subsection (4A) applies in relation to the notice in respect of the premises;

(b) [Section 42 Subsection (1) amended by No. 45 of 2013, s. 22, Applied:01 Oct 2014] where the residential tenancy agreement is not for a fixed period, that – (i) the premises are to be sold or transferred to another person; or

(ii) the premises are to be used for a purpose other than as residential premises for rental; or

(iii) significant renovations are to be performed in respect of the premises; or

(iv) the premises are to be used as a residence by a member of the family of the owner;

(da) [Section 42 Subsection (1) amended by No. 45 of 2013, s. 22, Applied:01 Oct 2014] that, where the residential tenancy agreement relates to social housing – (i) the income, from the prescribed sources, of the tenant (or, if the tenant is a member of a household, of all members of the household), for a continuous 12-month period, beginning not more than 18 months before the notice is given, is more than the prescribed amount; or

(ii) the value, in the 30 days before the notice is given, of the assets of the prescribed type, of the tenant (or, if the tenant is a member of a household, of all members of the household), is more than the prescribed amount, after there is deducted from the prescribed amount the total amount of all debts and liabilities of the tenant (or, if the tenant is a member of the household, of all the members of the household);

(db) [Section 42 Subsection (1) amended by No. 45 of 2013, s. 22, Applied:01 Oct 2014] that, where the residential tenancy agreement relates to social housing – (i) the premises contain 4 or more bedrooms, the tenants do not reasonably require all of the bedrooms in the premises and alternative premises have been offered to the tenant by the owner; or

(ii) the premises have a special facility, or modification, suitable for a person with a disability or special requirements, the tenant does not require such a facility or modification and alternative premises have been offered to the tenant by the owner;

(dc) [Section 42 Subsection (1) amended by No. 45 of 2013, s. 22, Applied:01 Oct 2014] that, where the residential tenancy agreement relates to social housing, the tenant has, without the approval of the social housing provider, for a continuous period of more than 8 weeks not occupied the premises;

(dd) [Section 42 Subsection (1) amended by No. 6 of 2016, s. 59, Applied:13 May 2016] [Section 42 Subsection (1) amended by No. 26 of 2022, s. 37, Applied:01 Dec 2022] that, where the residential tenancy agreement relates to social housing provided by a social housing provider who leases the premises from Homes Tasmania, the lease of the premises from Homes Tasmania has expired or is to expire, or has been, or is to be, terminated by Homes Tasmania;

(1A) [Section 42 Subsection (1A) inserted by No. 45 of 2013, s. 22, Applied:01 Oct 2014] For the purposes of subsection (1)(b) , significant renovations are to be performed in respect of premises if – (a) the premises would be unfit for occupation while the renovations are taking place; or

(b) were the premises to remain occupied by a tenant during the renovations, there would be a risk to the health or safety of any tenant, any visitors or any person carrying out the renovations.

(1B) [Section 42 Subsection (1B) inserted by No. 45 of 2013, s. 22, Applied:01 Oct 2014] The regulations may prescribe for the purposes of subsection (1)(db)(i) the circumstances in which tenants do not reasonably require all of the bedrooms in premises.

(2) A notice to vacate is not required if – (a) the tenant has abandoned the residential premises; or

(b) an application under section 41 is made for an order of termination.

(3) Any payment of rent after a notice to vacate takes effect does not constitute the existence of a new residential tenancy agreement.

(4) [Section 42 Subsection (4) inserted by No. 45 of 2013, s. 22, Applied:01 Oct 2014] In subsection (1)(b)(iv) and subsection (5) , a reference to an owner in relation to a member of the family of the owner does not include a reference to a person who is an owner by virtue of paragraph (c) of the definition of owner in section 3(1) .

(4A) [Section 42 Subsection (4A) inserted by No. 11 of 2020, Sched. 2, Applied:27 Mar 2020] Subsection (1)(a) does not apply in relation to a notice in respect of premises if – (a) the failure to comply with a provision of the agreement in relation to the premises consists of a failure by the tenant to pay rent; and

(b) either – (i) [Section 42 Subsection (4A) amended by No. 30 of 2020, s. 8, Applied:17 Nov 2020] the notice to vacate in relation to the premises is given within the emergency period or a subsequent COVID-19 emergency period; or

(ii) [Section 42 Subsection (4A) amended by No. 30 of 2020, s. 8, Applied:17 Nov 2020] the notice to vacate in relation to the premises was given before the COVID-19 emergency day, or before the day on which a subsequent COVID-19 emergency period begins, and the tenant has not before that day delivered vacant possession of the premises.

(5) [Section 42 Subsection (5) inserted by No. 45 of 2013, s. 22, Applied:01 Oct 2014] In this section – member of the family of an owner means – (a) the owner's domestic partner, son, daughter or parent; or

(b) a parent of the owner's domestic partner; or

(c) another person who normally lives with the owner and is wholly or substantially dependent on the owner.

(6) [Section 42 Subsection (6) inserted by No. 45 of 2013, s. 22, Applied:01 Oct 2014] In this section, a tenant is a member of a household if the person is one of 2 or more persons, whether or not the person is related to any of the other persons, who – (a) occupy the same residential premises; and

(b) contribute money for the purchase of food to be consumed at the premises or for the payment of amounts (apart from rent) owed for the provision of goods or services to the premises.

43. Effect of notice to vacate

(1) [Section 43 Subsection (1) amended by No. 45 of 2013, s. 23, Applied:01 Oct 2014] Subject to this section, a notice to vacate takes effect on a date specified in the notice that is a date – (a) [Section 43 Subsection (1) amended by No. 67 of 2003, s. 20, Applied:05 Mar 2004] [Section 43 Subsection (1) amended by No. 45 of 2013, s. 23, Applied:01 Oct 2014] at least 14 days after the notice is served, if the notice is for the reason referred to in section 42(1)(a) , (dc) or (g) ; or

(ba) [Section 43 Subsection (1) amended by No. 45 of 2013, s. 23, Applied:01 Oct 2014] at least 42 days after the notice is served, if the notice is for the reason referred to in section 42(1)(b) ; or

(c) [Section 43 Subsection (1) amended by No. 6 of 2005, s. 39, Applied:06 May 2005] [Section 43 Subsection (1) amended by No. 45 of 2013, s. 23, Applied:01 Oct 2014] at least 42 days after the notice is served, if the notice is for the reason referred to in section 42(1)(d) , but not before the date of the expiry of the residential tenancy agreement; or

(d) [Section 43 Subsection (1) amended by No. 45 of 2013, s. 23, Applied:01 Oct 2014] at least 60 days after the notice is served, if the notice is for the reason referred to in section 42(1)(e) or (f) ; or

(2) A notice to vacate on the ground of failure to pay rent is of no effect if a tenant pays all arrears in rent before that notice takes effect unless 2 or more notices to vacate on that ground have been served on the tenant during the immediately preceding 12 months.

(2A) [Section 43 Subsection (2A) inserted by No. 30 of 2020, s. 9, Applied:17 Nov 2020] A notice to vacate on the grounds of failure to pay rent is of no effect if – (a) the arrears of rent to which the notice to vacate relates are arrears in rent to which a rent arrears payment order made under section 24A(4) relates; and

(b) the rent arrears payment order has not been set aside under section 24B(4)(b) ; and

(c) no condition of the rent arrears payment order has been contravened; and

(d) each part of the total amount, of rent in arrears, that is required under the rent arrears payment order to be paid within a period, specified in the order, that has expired has been paid before the end of that period.

(3) A notice to vacate on the ground that the tenant has failed to comply with a provision of the residential tenancy agreement is of no effect if the tenant complies with that provision before the period referred to in subsection (1)(a) expires.

(3A) [Section 43 Subsection (3A) inserted by No. 45 of 2013, s. 23, Applied:01 Oct 2014] A notice to vacate on the ground that the premises are to be sold or transferred is of no effect unless there is served with the notice proof of an agreement to sell the premises or to transfer the premises to another person.

(3B) [Section 43 Subsection (3B) inserted by No. 45 of 2013, s. 23, Applied:01 Oct 2014] If a notice to vacate for a reason specified in a paragraph in subsection (1) (other than subsection (1)(d) ) specifies a date on which the notice is to take effect that is a date that occurs before the last day of the period of days specified in the paragraph, the notice to vacate is not invalid but only takes effect on the day after the last day of the period.

(3C) [Section 43 Subsection (3C) inserted by No. 45 of 2013, s. 23, Applied:01 Oct 2014] If a notice to vacate for a reason specified in subsection (1)(d) specifies a date on which the notice is to take effect that is a date – (a) before the end of the period of 42 days after the notice is served; and

(b) not before the date of expiry of the residential tenancy agreement in respect of the premises –

the notice to vacate is not invalid but only takes effect on the day after the end of the period of 42 days after the notice is served.

(4) [Section 43 Subsection (4) inserted by No. 67 of 2003, s. 20, Applied:05 Mar 2004] A notice to vacate expires after the period of 28 days from the day on which it took effect.

44. Form of notice to vacate

A notice to vacate is to state the following: (a) the date of serving the notice;

(b) the name of the tenant;

(c) the name of the owner;

(d) the residential premises to which the notice relates;

(e) details of the reason for which the notice is served;

(f) the date on which the notice takes effect.

45. Order for vacant possession

(1) [Section 45 Subsection (1) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] An owner may apply to the Court for delivery of vacant possession of residential premises by the tenant if a notice to vacate in respect of the premises has taken effect and vacant possession has not been delivered to the owner.

(2) [Section 45 Subsection (2) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] An owner is to serve on the tenant a copy of an application under subsection (1) a reasonable time before the application is heard.

(3) [Section 45 Subsection (3) amended by No. 53 of 2003, Sched. 1, Applied:25 Sep 2003] The Court may order that vacant possession be delivered to the owner if satisfied that – (a) a notice to vacate the premises was properly given; and

(b) the reason for serving the notice to vacate was genuine or just; and

(c) vacant possession was not delivered to the owner; and

(ca) [Section 45 Subsection (3) amended by No. 45 of 2013, s. 24, Applied:01 Oct 2014] where the premises are social housing and the reason for serving the notice is a reason referred to in section 42(1)(da) , (db) or (dc) , vacating the premises would not result in unreasonable financial disadvantage, or unreasonable social disadvantage, to the tenant; and

(d) the tenant was served with a copy of the application.

(3A) [Section 45 Subsection (3A) inserted by No. 45 of 2013, s. 24, Applied:01 Oct 2014] The Commissioner may issue guidelines setting out the circumstances in which vacating premises is to be taken to result in unreasonable financial disadvantage, or unreasonable social disadvantage, to a tenant.

(3B) [Section 45 Subsection (3B) inserted by No. 45 of 2013, s. 24, Applied:01 Oct 2014] Guidelines, if any, issued under subsection (3A) may be taken into account in considering whether, for the purposes of this section, vacating premises would result in unreasonable financial disadvantage, or unreasonable social disadvantage, to the tenant.

(4) An order under subsection (3) is to specify the date on which it takes effect.

(5) A notice to vacate is properly given if – (a) [Section 45 Subsection (5) amended by No. 45 of 2013, s. 24, Applied:01 Oct 2014] the notice states the information required under section 44 (even if the statement of the date on which the notice takes effect is incorrect because of the operation of section 43(3B) or (3C) ); and