Residential Tenancy Amendment Regulations 2009

Residential Tenancy Amendment Regulations 2009

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Residential Tenancy Act 1997 .

26 June 2009

PETER G. UNDERWOOD

Governor

By His Excellency's Command,

LISA M. SINGH

Minister for Corrections and Consumer Protection

1.   Short title

These regulations may be cited as the Residential Tenancy Amendment Regulations 2009 .

2.   Commencement

These regulations take effect on 1 July 2009.

3.   Principal Regulations

In these regulations, the Residential Tenancy Regulations 2005 are referred to as the Principal Regulations.

4.    Regulation 3 substituted

Regulation 3 of the Principal Regulations is rescinded and the following regulation is substituted:

3.   Interpretation

In these regulations –

Act means the Residential Tenancy Act 1997 ;

Anglicare Tasmania means Anglicare Tasmania Inc., incorporated under the Associations Incorporation Act 1964 (Incorporation Number 00753C);

Colony 47 means Colony 47 Inc., incorporated under the Associations Incorporation Act 1964 (Incorporation Number 00185C);

not-for-profit housing provider means an institution or person that enters into residential tenancy agreements –

(a) for the purposes of providing residential premises to accommodate homeless persons or persons who are seeking an escape from situations of domestic violence; and

(b) in respect of which security deposits are paid to the institution or person –

(i) as owner of the relevant residential premises; or

(ii) as the person or institution that manages the relevant residential premises on behalf of its owner;

not-for-profit residential tenancy agreement means a residential tenancy agreement –

(a) that is entered into by a not-for-profit housing provider for a term exceeding 3 months but less than 4 months; and

(b) that relates to residential premises provided to accommodate homeless persons or persons who are seeking an escape from situations of domestic violence; and

(c) in respect of which a security deposit is paid to the not-for-profit housing provider –

(i) as owner of the relevant residential premises; or

(ii) as the person who manages the relevant residential premises on behalf of its owner;

TUU means the Tasmanian University Union Inc., incorporated under the Associations Incorporation Act 1964 (Incorporation Number IA09855);

TUU residential tenancy agreement means a residential tenancy agreement that is entered into by the TUU and in respect of which a security deposit is paid to the TUU –

(a) as owner of the relevant residential premises; or

(b) as the person who manages the relevant residential premises on behalf of its owner.

5.    Regulation 3A inserted

After regulation 3 of the Principal Regulations , the following regulation is inserted:

3A.   Definition of deposit contributor

For the purposes of paragraph (a) of the definition of "deposit contributor" in section 3 of the Act, the following persons and institutions are prescribed:

(a) Colony 47 Inc.;

(b) Anglicare Tasmania Inc..

6.    Regulation 5 rescinded

Regulation 5 of the Principal Regulations is rescinded.

7.    Regulation 7 substituted

Regulation 7 of the Principal Regulations is rescinded and the following regulations are substituted:

7.   Non-application of Act to certain residential tenancy agreements relating to homeless persons and persons seeking escape from domestic violence

Each provision of the Act does not apply to a residential tenancy agreement that is for a period of 3 months or less and that relates to residential premises providing accommodation for –

(a) homeless persons; or

(b) persons who are seeking an escape from situations of domestic violence.

8.   Non-application of section 25(2), (3) and (4)(a) and sections 27-29F of Act to not-for-profit residential tenancy agreements

Section 25(2), (3) and (4)(a), and sections 27, 28, 29, 29A, 29B, 29C, 29D, 29E and 29F, of the Act do not apply to a not-for-profit residential tenancy agreement.

9.   Procedure on termination of not-for-profit residential tenancy agreements

(1)  On the termination of a not-for-profit residential tenancy agreement, the not-for-profit housing provider is to –

(a) return the security deposit to the tenant within 3 working days, together with any interest that is to be paid under the agreement, but less any amount due to the owner arising from the non-performance of the not-for-profit residential tenancy agreement by the tenant; or

(b) give to the tenant a notice, in duplicate, that –

(i) states the reasons why the security deposit, or part of the security deposit, is being retained; and

(ii) includes either a statement of the loss incurred by the owner or an estimate of the date on which it is expected that the loss will be determined; and

(iii) states that, if the tenant is dissatisfied with the matters contained in the notice, he or she may lodge a dispute with the Commissioner within 10 days after being provided with the notice.

(2)  A dispute is to be –

(a) in writing; and

(b) accompanied by a copy of the notice provided under subregulation (1)(b) ; and

(c) accompanied by the fee prescribed under section 29F of the Act for the purposes of lodging a dispute under that section.

(3)  Within one working day after receiving a dispute, the Commissioner is to, in writing –

(a) require the not-for-profit housing provider to pay to the Authority, within the period of not less than 3 working days specified in the requirement –

(i) an amount equal to that portion of the security deposit in dispute that has not been paid to the tenant; and

(ii) any amount equal to any interest payable to the tenant under the not-for-profit residential tenancy agreement that has not been so paid to the tenant; and

(b) notify the Authority of the dispute.

(4)  On receiving a dispute, the Commissioner may require the Authority, the tenant, the not-for-profit housing provider and the owner of the relevant residential property to provide the Commissioner with information and documentation relevant to the dispute.

(5)  The not-for-profit housing provider must lodge with the Authority a claim form under section 29C of the Act when paying the amounts referred to in a requirement made under subregulation (3)(a) to the Authority, and for that purpose the not-for-profit housing provider is taken to have provided a claim form to the tenant and the tenant is taken not to have lodged that claim form with the Authority.

(6)  The Authority, the tenant, the not-for-profit housing provider or the owner of the relevant residential property must comply with a requirement made under subregulation (3) or (4) .

(7)  If a tenant, a not-for-profit housing provider or an owner of the relevant residential property fails to comply with a requirement made under subregulation (3) or (4) , he, she or it is guilty of an offence and liable on conviction to a fine not exceeding 10 penalty units.

(8)  If a dispute is lodged under this regulation, the not-for-profit housing provider and each tenant and owner of the relevant residential property is a party to the dispute.

(9)  Each party to a dispute may provide written submissions and other documents to the Commissioner in respect of the dispute on payment of the fee prescribed under section 29F(10) of the Act for the purposes of providing written submissions and other documentation.

(10)  Section 29G of the Act applies to a dispute lodged under this regulation as if –

(a) the dispute lodged under this regulation were a dispute lodged under section 29F of the Act; and

(b) a fee paid under this regulation were a fee paid under section 29F of the Act.

10.   Non-application of section 25(2), (3) and (4)(a) and sections 27-29F of Act to TUU residential tenancy agreements

Section 25(2), (3) and (4)(a), and sections 27, 28, 29, 29A, 29B, 29C, 29D, 29E and 29F, of the Act do not apply to a TUU residential tenancy agreement.

11.   Procedure on termination of TUU residential tenancy agreements

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

(a) return the security deposit to the tenant within 3 working days, together with any interest that is to be paid under the agreement, but less any amount due to the owner arising from the non-performance of the TUU residential tenancy agreement by the tenant; or

(b) give to the tenant a notice that –

(i) states the reasons why the security deposit, or part of the security deposit, is being retained; and

(ii) includes either a statement of the loss incurred by the owner or an estimate of the date on which it is expected that the loss will be determined; and

(iii) states that, if the tenant is dissatisfied with the matters contained in the notice, he or she may lodge a dispute with the Commissioner within 10 days after being provided with the notice.

(2)  A dispute is to be –

(a) in writing; and

(b) accompanied by a copy of the notice provided under subregulation (1)(b) ; and

(c) accompanied by the fee prescribed under section 29F of the Act for the purposes of lodging a dispute under that section.

(3)  Within one working day after receiving a dispute, the Commissioner is to, in writing –

(a) require the TUU to pay to the Authority, within the period of not less than 3 working days specified in the requirement –

(i) an amount equal to that portion of the security deposit in dispute that has not been paid to the tenant; and

(ii) an amount equal to any interest payable to the tenant under the not-for-profit residential tenancy agreement that has not been so paid to the tenant; and

(b) notify the Authority of the dispute.

(4)  On receiving a dispute, the Commissioner may require the Authority, tenant, TUU and owner of the relevant residential property to provide the Commissioner with information and documentation relevant to the dispute.

(5)  The TUU must lodge with the Authority a claim form under section 29C of the Act when paying the amounts referred to in a requirement made under subregulation (3)(a) to the Authority, and for that purpose the TUU is taken to have provided a claim form to the tenant and the tenant is taken not to have lodged that claim form with the Authority.

(6)  The Authority, tenant, TUU or owner of the relevant residential property must comply with a requirement made under subregulation (3) or (4) .

(7)  If a tenant, the TUU or an owner of the relevant residential property fails to comply with a requirement made under subregulation (3) or (4) , he, she or it is guilty of an offence and liable on conviction to a fine not exceeding 10 penalty units.

(8)  If a dispute is lodged under this regulation, the TUU and each tenant and owner of the relevant residential property is a party to the dispute.

(9)  Each party to a dispute may provide written submissions and other documents to the Commissioner in respect of the dispute on payment of the fee prescribed under section 29F(10) of the Act for the purposes of providing written submissions and other documentation.

(10)  Section 29G of the Act applies to a dispute lodged under this regulation as if –

(a) the dispute lodged under this regulation were a dispute lodged under section 29F of the Act; and

(b) a fee paid under this regulation were a fee paid under section 29F of the Act.

8.    Schedules 1 and 2 substituted

Schedules 1 and 2 to the Principal Regulations are rescinded and the following Schedule is substituted:

SCHEDULE 1 - Fees

Regulation 6

		Fee units
1.	Lodging dispute under section 29F of Act	0
2.	Lodging submissions and other documents relating to dispute under section 29F(10) of Act	0

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 1 July 2009

These regulations are administered in the Department of Justice.

EXPLANATORY NOTE

(This note is not part of the regulation)

These regulations amend the Residential Tenancy Regulations 2005  –

(a) to prescribe Colony 47 Inc. and Anglicare Tasmania Inc. as deposit contributors for the purposes of the Residential Tenancy Act 1997 ; and

(b) to provide for exemptions from section 25(2) , (3) and (4)(a) , and sections 27 - 29F , of the Residential Tenancy Act 1997 (which relate to the payment of a security deposit, who may receive such a payment and the procedures to be followed on the termination of a residential tenancy agreement where the Rental Deposit Authority holds a security deposit) in relation to –

(i) certain residential tenancy agreements entered into by not-for-profit housing providers; and

(ii) all residential tenancy agreements entered into by the Tasmanian University Union Inc.; and

(c) to provide that no fee is payable on the lodgment of a dispute in relation to the disbursement of a security deposit held by the Rental Deposit Authority or the lodgment of information for the purposes of such a dispute; and

(d) to omit an exemption from the operation of the Residential Tenancy Act 1997 for residence contracts, within the meaning of the Retirement Villages Act 2004 , which are now exempted from such operation of that Act by reason of section 6(2)(ga) of the Residential Tenancy Act 1997 .