Residential Tenancy Act 1997

Residential Tenancy Act 1997

An Act to regulate tenancies of residential premises

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

1.   Short title

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

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

(1)  In this Act –

abandoned means abandoned as specified in section 46(2) ;

agent means a person authorised by an owner to act on behalf of the owner in any matter to which this Act relates;

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 ;

Director of Consumer Affairs means the person appointed as such under the Consumer Affairs Act 1988 ;

dispute means a dispute referred to in section 28 ;

essential service means any of the following services:

(a) water, sewerage, electricity or heating supplied to or within the premises, excluding electrical fuses, light globes, tubes or tap washers;

(b) a cooking stove or hot-water service installed within the premises, excluding any electrical fuses or tap washers;

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

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

magistrate means a magistrate sitting in the small claims division of the Magistrates Court established under the Magistrates Court (Small Claims Division) Act 1989 ;

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 ;

owner means –

(a) a person who holds the legal title to residential premises; and

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

(c) an agent of that person;

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;

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;

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

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

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;

tenant means a person who has the right to occupy residential premises under a residential tenancy agreement.

(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.

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) if the agreement is renewed or extended within that 12 months, 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

(c) any prescribed agreement or part of any prescribed agreement; or

(d) any agreement or part of any agreement of a prescribed class; 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) any part of a hotel or motel;

(b) any premises ordinarily used for holiday purposes;

(c) any premises or part of premises used or occupied by a lodger or boarder;

(d) any part of an educational institution, hospital or nursing home;

(e) any part of a club;

(f) any premises used as an approved home within the meaning of the Aged or Disabled Persons Care Act 1954 of the Commonwealth;

(g) any premises used as an approved hostel within the meaning of the Aged or Disabled Persons Hostels Act 1972 of the Commonwealth;

(h) any prescribed premises or part of prescribed premises;

(i) any premises or part of premises of a prescribed class.

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

(1)  The function of the Commissioner is to determine disputes arising in relation to the disbursement of security deposits.

(2)  The Commissioner may do anything that is necessary or incidental to carry out his or her functions.

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

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

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

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

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

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

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

11.   Expiry

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

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

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

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

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

12.   Extension and renewal

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

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

13.   Written agreement

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

(a) easily legible; and

(b) clearly expressed; and

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

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

14.   Oral agreement

If a residential tenancy agreement is wholly or partly oral, the owner of the residential premises to which it relates 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 may provide.

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)  Either party to a residential tenancy agreement may apply to a magistrate for an order determining whether or not a provision of the agreement is inconsistent with this Act.

(2)  The magistrate may –

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

(b) declare that the provision has no effect.

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

Division 2 - Rent

17.   Money other than rent

An owner must not require or receive from a tenant or prospective tenant any money or other consideration for entering into, renewing, extending or continuing a residential tenancy agreement other than –

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

(b) a security deposit; and

(c) a holding fee.

Penalty:  Fine not exceeding 50 penalty units.

18.   Rent payable in advance

Rent is payable in advance for a payment period.

19.   Payment period

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

(2)  A payment period must not exceed 4 weeks.

20.   Increase in rent

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

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

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

(2)  A notice is to specify –

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

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

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

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

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

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

(d) if a magistrate makes an order under section 23(3) , more than 6 months after the date of that order.

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

21.   Receipt for rent paid

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

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

(b) the name of the tenant; and

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

(d) the amount of rent paid.

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)  A tenant may apply to a magistrate for an order declaring that an increase in the rent payable under a residential tenancy agreement is unreasonable.

(2)  In determining whether an increase in the rent is unreasonable, the magistrate 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)  If satisfied that the increase in the rent is unreasonable, the magistrate may order that the increase in the rent be changed to an amount that does not exceed a specified amount.

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

24.   Distress for rent prohibited

A person must not levy or make distress for any rent that has not been paid.

Penalty:  Fine not exceeding 50 penalty units.

Division 3 - Security deposits and holding fees

25.   Security deposits

(1)  An owner may require a prospective tenant to pay an amount as security for the performance of obligations under a residential tenancy agreement.

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

(a) the name of the tenant; and

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

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

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

(e) the name and address of the owner.

Penalty:  Fine not exceeding 10 penalty units.

(3)  An owner must not –

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

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

Penalty:  Fine not exceeding 50 penalty units.

26.   Condition report

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

(2)  A condition report is to –

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

(b) be signed by the owner.

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

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

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

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

27.   Return of security deposit

On termination of a residential tenancy agreement, the owner is to return the security deposit to the tenant together with the prescribed rate of interest less any amount due to the owner arising from the non-performance of the tenancy agreement by the tenant.

28.   Disputes

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

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

(a) in writing and lodged with the Commissioner; and

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

(c) accompanied by the prescribed fee.

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

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

(b) a copy of the condition report.

(4)  The owner must comply with the notice.

Penalty:  Fine not exceeding 50 penalty units.

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

29.   Determination of dispute

(1)  The Commissioner is to determine a dispute by disbursing the security deposit together with the prescribed rate of interest as the Commissioner considers appropriate in the circumstances.

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

30.   Appeal against determination

(1)  A person may appeal to a magistrate against the determination of the Commissioner under section 29 .

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

(3)  The magistrate is to hold a new hearing in deciding the appeal.

(4)  In deciding the appeal, the magistrate may –

(a) confirm the determination of the Commissioner; or

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

31.   Holding agreement and fees

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

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

Division 4 - Repairs

32.   General repairs and maintenance

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

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

(3)  The owner is to carry out any repairs specified in the notice that do not arise from any fault of the tenant within 28 days after being notified under subsection (2) .

(4)  The tenant may apply to a magistrate for an order that the owner carry out any reasonable repairs that do not arise from any fault of the tenant.

33.   Urgent repairs

(1)  If an essential service ceases to function, the tenant is to notify the owner as soon as practicable of the need for urgent repair.

(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.

34.   Emergency repairs

(1)  If damage occurs to residential premises, the tenant is to notify the owner as soon as practicable of the need to repair the damage.

(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.

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)  If the owner disputes the liability to reimburse the tenant for repairs carried out under section 33 or 34 the owner may apply to a magistrate 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)  The magistrate may order that the owner –

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

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

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

(d) the delivery of vacant possession of the premises by order of a magistrate or the Court to the owner; or

(e) the recovery of vacant possession of the premises by the owner following abandonment 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) .

Penalty:  Fine not exceeding 50 penalty units.

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.

39.   Effect of notice of termination

(1)  A notice of termination takes effect on a date specified in the notice that is a date at least 14 days after the notice is served.

(2)  A notice of termination on the ground that the owner has failed to comply with a provision of the residential tenancy agreement is of no effect if the owner complies with that provision before the period of 14 days referred to in subsection (1) expires.

40.   Form of notice of termination

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.

41.   Order of termination

(1)  A party to a residential tenancy agreement may apply to a magistrate or the Court for an order that the agreement be terminated on any of the following grounds:

(a) that the other party has intentionally or recklessly caused or permitted, or is likely to intentionally or recklessly cause or permit, serious damage to the residential premises or contents;

(b) that the other party has caused physical injury, or is likely to cause physical injury, to that party or any other person occupying the residential premises.

(2)  If the magistrate or Court is satisfied as to any of the grounds referred to in subsection (1) , the magistrate or 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)  An owner of residential premises 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) that the tenant has failed to comply with any provision of the residential tenancy agreement;

(b) that a residential tenancy agreement expired less than 28 days before the service of the notice;

(c) that the residential tenancy agreement is not for a fixed period and the premises are to be sold, renovated or used for another purpose.

(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.

43.   Effect of notice to vacate

(1)  A notice to vacate takes effect on a date specified in the notice that is a date –

(a) at least 14 days after the notice is served, if the notice is for the reason referred to in section 42(1)(a) or (b) ; or

(b) at least 28 days after the notice is served, if the notice is for the reason referred to in section 42(1)(c) .

(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.

(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.

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)  An owner may apply to a magistrate or 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)  An owner is to serve on the tenant a copy of an application under subsection (1) on the same day as the application is made.

(3)  The magistrate or 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

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

(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) the notice states the information required under section 44 ; and

(b) the tenant was served with the notice; and

(c) the date specified in the notice complies with section 43 .

Division 3 - Abandonment of premises and goods

46.   Order declaring abandonment

(1)  An owner of residential premises may apply to a magistrate for an order declaring that the premises have been abandoned by a tenant.

(2)  Residential premises are abandoned if –

(a) the tenant has ceased to occupy those premises; and

(b) a notice of termination has not been served in respect of those premises; and

(c) a notice to vacate has not been served in respect of those premises.

(3)  If satisfied that residential premises have been abandoned, the magistrate may make an order to that effect.

47.   Effect of order

(1)  If a magistrate makes an order under section 46 relating to the abandonment by a tenant of residential premises –

(a) vacant possession of the premises is delivered to the owner as at the date of the order; and

(b) the tenant is liable to the owner for –

(i) any loss arising from the abandonment; and

(ii) any reasonable rent payable from the date of the abandonment until the date at which the residential tenancy agreement for those premises could have been lawfully terminated.

(2)  The owner is to take all reasonable steps to mitigate any loss or damage to the premises and is not entitled to be paid for any loss that could have been avoided by taking those steps.

48.   Disposal or sale of abandoned goods

(1)  If a residential tenancy agreement is terminated and goods on the premises to which the agreement relates appear to be abandoned by the tenant, the owner may –

(a) dispose of the goods if they appear to the owner to have no value; or

(b) sell the goods if they appear to have a value less than the prescribed amount; or

(c) apply to a magistrate for an order permitting the sale of the goods for the best price reasonably obtainable if they appear to have a value equal to or more than the prescribed amount.

(2)  The owner is to verify by a statutory declaration the means of disposal of any goods under subsection (1)(a) .

(3)  The proceeds of the sale of goods are to be dealt with as follows:

(a) firstly, in the payment of any debt owed by the tenant to the owner;

(b) secondly, in the payment of the reasonable costs of the sale;

(c) thirdly, any balance to be kept in an interest bearing account for the tenant for a period of 6 months.

(4)  If the tenant does not claim any proceeds of the sale of goods kept under subsection (3)(c) within 6 months, the proceeds become the property of the Commissioner.

PART 5 - Miscellaneous

49.   Subletting

(1)  The tenant is not to sublet residential premises without the consent of the owner of the premises.

(2)  If a tenant sublets residential premises –

(a) the residential tenancy agreement relating to the premises continues in force as if the tenant had not sublet the premises; and

(b) the tenant is liable for any act done or omitted to be done by the sublessee in relation to that agreement.

50.   Consent

An owner is not to –

(a) unreasonably refuse to give consent under section 49 ; or

(b) charge for giving consent under those sections, other than for expenses reasonably incurred in relation to giving that consent.

51.   Impediment to occupancy

There is an implied warranty in a residential tenancy agreement on the part of the owner of the premises to which the agreement relates that at the time of entering the agreement there was no legal impediment of which the owner knew or ought to have known in respect of the occupation of the premises for the period of the tenancy.

52.   Use of premises

A tenant is not to –

(a) use, or cause to be used, the residential premises for –

(i) any unlawful purpose; or

(ii) any purpose other than residential purposes; or

(b) cause or permit a nuisance to be made on or from the premises.

53.   Responsibility of tenant for cleanliness and damage

A tenant of residential premises –

(a) is to keep the premises in a reasonable state of cleanliness having regard to the condition of the premises at the beginning of the tenancy; and

(b) at the end of the tenancy, is to leave the premises as nearly as possible in the same condition, apart from reasonable wear and tear –

(i) as set out in the condition report; or

(ii) if there is no condition report, as the premises were at the start of the tenancy.

54.   Alterations, additions and fixtures

(1)  Unless a residential tenancy agreement provides otherwise, a tenant, without the written consent of the owner of the premises to which the agreement relates, is not to –

(a) affix any fixture to the premises; or

(b) make any alteration or addition to the premises.

(2)  A tenant may remove any fixture that the tenant has affixed to the premises unless the removal is likely to cause damage to the premises.

(3)  If the tenant causes any damage to the premises by removing any fixture, the tenant is to –

(a) notify the owner as soon as practicable; and

(b) at the owner's option –

(i) repair the damage; or

(ii) compensate the owner for any reasonable expenses incurred by the owner in repairing the damage.

55.   Quiet enjoyment

(1)  A tenant has the right of quiet enjoyment of residential premises without interference by the owner of the premises.

(2)  An owner of residential premises must not interfere with the reasonable peace, comfort and privacy of the tenant in using those premises.

Penalty:  Fine not exceeding 50 penalty units.

56.   Right of entry

(1)  Subject to this section, an owner of residential premises must not enter the premises without the tenant's permission.

Penalty:  Fine not exceeding 50 penalty units.

(2)  An owner of residential premises may enter the premises at any time without the tenant's permission for any of the following reasons:

(a) it is reasonably believed that –

(i) the tenant is ill or injured and is unable to give permission; or

(ii) a denial of immediate access is likely to result in damage to all or part of the premises; or

(iii) there is a risk to the tenant or another person present on the premises; or

(iv) damage has occurred to the premises;

(b) it is reasonably believed that the premises have been abandoned.

(3)  An owner of residential premises may enter the premises without the tenant's permission between 8 a.m. and 6 p.m. by giving at least 24 hours' notice to the tenant if entry is for one of the following reasons:

(a) to show the property to prospective purchasers;

(b) to show the property to prospective tenants;

(c) to meet commitments under the residential tenancy agreement;

(d) if it is reasonably suspected that the tenant has failed to comply with any provision of the residential tenancy agreement;

(e) to ensure that repairs have been properly carried out;

(f) to carry out routine inspections once every 3 months.

(4)  An owner may enter the residential premises –

(a) for a reason referred to in subsection (3)(a) , only on a reasonable number of occasions; and

(b) for a reason referred to in subsection (3)(b) , only –

(i) if a notice to terminate the residential tenancy agreement has been given; or

(ii) within one month before the expiry of the written agreement.

(5)  If an owner leaves a notice in writing at residential premises requesting permission to enter the premises for any reason not specified in subsection (2) or (3) and the tenant fails to reply within 3 days, the owner may enter the premises without permission.

57.   Locks and security devices

(1)  The owner of residential premises is to ensure that during a residential tenancy agreement –

(a) the premises are fitted with locks and any other security devices that are necessary to secure the premises; and

(b) those locks and security devices are maintained during the period of the residential tenancy agreement.

(2)  Any party to a residential tenancy agreement must not add, alter or remove any lock or other security device without –

(a) the permission of the other party; or

(b) an order under subsection (4) .

(3)  A party to a residential tenancy agreement may apply to a magistrate for an order authorising that party to alter, add or remove any lock or other security device.

(4)  The magistrate may make the order if satisfied that it is reasonable to do so in the circumstances.

(5)  If a party to a residential tenancy agreement alters or adds any lock or other security device, that party is to provide the other party with a copy of the key, opening device or information required to open the lock or security device.

58.   Compliance with orders

A person must comply with any order made under this Act.

Penalty:  Fine not exceeding 50 penalty units.

59.   Liability for action of others

(1)  The tenant of residential premises is liable under this Act for any act or omission in relation to the premises by a person who is lawfully on the premises as if it had been an act or omission by the tenant.

(2)  Subsection (1) does not apply to an act or omission by a person who has a right to enter the premises without the tenant's consent.

60.   Cost of preparing agreements

The owner of residential premises is liable for the payment of any costs incurred in the preparation of the residential tenancy agreement relating to those premises.

61.   Record of rent

(1)  The owner of residential premises is to keep a record of all the rent received in respect of the premises during the period while a residential tenancy agreement is in force.

(2)  The record is to be kept by the owner for a period of 5 years after the residential tenancy agreement is terminated.

62.   Notification of name and address

(1)  At the time of entering a residential tenancy agreement, the owner is to notify the tenant in writing of –

(a) the full name and residential or business address of the owner; or

(b) the full name and residential or business address of any agent of the owner.

(2)  If the owner or agent is a corporation, the owner is to notify the tenant in writing of –

(a) the name of a responsible officer of the corporation; and

(b) the address of the registered office of the corporation.

(3)  The owner is to notify the tenant of any change in any name or address required under subsection (1) .

(4)  If a person succeeds another person as the owner of residential premises to which a residential tenancy agreement relates, the new owner is to notify the tenant of the premises of any change in the information referred to in subsection (1) or (2) .

63.   Agent of tenant

(1)  A tenant may appoint a person to act as an agent for the purposes of receiving any notice or other document on behalf of the tenant.

(2)  An appointment may be –

(a) provided for in the residential tenancy agreement or made by the tenant at any other time; and

(b) revoked by the tenant at any time.

(3)  The appointment of an agent or the revocation of the appointment has no effect until the tenant notifies the owner.

(4)  If a tenant has appointed an agent, the owner is to give any notice or any other document required under this Act to the agent.

(5)  Any notice or other document given to an agent of the tenant is taken to have been given to the tenant.

64.   Certain provisions void

(1)  A provision of a residential tenancy agreement that purports to modify any provision of this Act has no effect.

(2)  A provision of any agreement, contract or other instrument that provides for the tenant to indemnify the owner for any loss or liability arising under this Act has no effect.

65.   Regulations

(1)  The Governor may make regulations for the purpose of this Act.

(2)  Regulations may be made so as to apply differently according to any matter, condition, limitation, restriction, exception or circumstance specified in the regulations.

(3)  The regulations may –

(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and

(b) in respect of such an offence, provide for the imposition of a fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues.

(4)  The regulations may authorise any matter to be determined, applied or regulated by any person or body.

(5)  The regulations may confer a power and impose a duty on a specified person or a specified class of persons.

(6)  The regulations may impose fees and charges in relation to the determination of disputes.

(7)  The regulations may adopt or incorporate the whole or any part of any document, standard, rule, code, specification or method, with or without modification, issued, prescribed or published by any person or body before or after the regulations take effect.

66.   Regulations of savings and transitional nature

(1)  The Governor may make regulations of a savings or transitional nature consequent on the enactment of this Act.

(2)  Regulations under subsection (1) may take effect from the commencement day or a later day.

67.   Transitional provisions

Schedule 2 has effect with respect to savings and transitional matters.

68.   Consequential amendments

The Acts specified in Schedule 3 are amended as specified in that Schedule.

69.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Justice; and

(b) the Department responsible to the Minister for Justice in relation to the administration of this Act is the Department of Justice.

SCHEDULE 1 - Vacation of, and removal from, office of Commissioner

Section 7(3)

1.   Vacation of office

The Commissioner vacates office if he or she –

(a) dies; or

(b) resigns; or

(c) is removed from office under clause 2 .

2.   Removal from office

(1) The Minister may remove the Commissioner from office if the Commissioner –

(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of any remuneration or estate for their benefit; or

(b) has been convicted in Tasmania of any crime or offence punishable by imprisonment for 12 months or longer or elsewhere of any crime or offence which if committed in Tasmania would be punishable by imprisonment for 12 months or longer; or

(c) is convicted of an offence against this Act.

(2) The Minister may remove the Commissioner from office if satisfied that the Commissioner –

(a) is unable to perform adequately or competently the duties of office; or

(b) has neglected to perform those duties; or

(c) has been guilty of misconduct of such a nature that makes the Commissioner unsuitable to hold that office.

SCHEDULE 2 - Savings and transitional provisions

Section 67

1.   Interpretation

In this Schedule

earlier Act means the Landlord and Tenant Act 1935 .

2.   Proceedings

Any proceedings related to residential premises instituted under the earlier Act and not determined before the commencement day may, on or after that day, be determined under the earlier Act.

3.   Warrant

A warrant relating to residential premises under the earlier Act that is in force immediately before the commencement day and not executed before that day may be executed as if this Act had not commenced.

SCHEDULE 3 - Consequential Amendments

Section 68

1.    Section 89 is amended by omitting subsection (1) and substituting the following subsection:

(1)  Any surplus money in the Guarantee Fund above the amount agreed or determined under section 87 is to be distributed as follows:

(a) firstly, with the agreement of the Council and the Minister, in the payment of costs incurred in administering the Residential Tenancy Act 1997 ;

(b) secondly, with the agreement of the Council and the Minister, to the Council for the uses specified in subsection (2) .

1.   Section 3A is amended by inserting "or the Residential Tenancy Act 1997" after "Code".

2.    Section 16(3) is amended by omitting "or the Consumer Credit (Tasmania) Code " and substituting ", the Consumer Credit (Tasmania) Code or the Residential Tenancy Act 1997 ".

3.    Section 16(4) is amended by omitting "or the Consumer Credit (Tasmania) Code " and substituting ", the Consumer Credit (Tasmania) Code or the Residential Tenancy Act 1997 ".

1.   After section 2, the following section is inserted in Part 1:

2A.   Act not apply to residential tenancy agreements

This Act does not apply to a residential tenancy agreement within the meaning of the Residential Tenancy Act 1997 to which that Act applies.

1.   After section 7, the following section is inserted:

7A.   Matters under Residential Tenancy Act 1997

The Court may –

(a) hear and determine any matter under section 41 or 45 of the Residential Tenancy Act 1997 ; and

(b) make any order specified in those sections.

1.   Section 3(1) is amended by omitting paragraph (a) of the definition of "small claim" and substituting the following paragraph:

(a) a claim arising out of a contract;

2.   Section 3 is amended by inserting the following subsection after subsection (2):

(3)  In respect of any matter arising out of the Residential Tenancy Act 1997 , a

small claim means –

(a) a claim arising out of a residential tenancy agreement within the meaning of that Act; and

(b) an application for an order or determination under that Act.

3.    Section 29 is amended as follows:

(a) by inserting the following subsection after subsection (3) :

(3A)  A magistrate may make –

(a) any order or determination under the Residential Tenancy Act 1997 arising out of a small claim; and

(b) any other order the magistrate considers appropriate.

(b) by inserting in subsection (7) "or (3A)" after "subsection (3)".

[Second reading presentation speech made in:

House of Assembly on 28 NOVEMBER 1997

Legislative Council on 9 DECEMBER 1997]