Residential Tenancy Regulations 2015

Residential Tenancy Regulations 2015

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 .

13 April 2015

C. WARNER

Governor

By Her Excellency's Command,

DR. VANESSA GOODWIN

Minister for Justice

1.   Short title

These regulations may be cited as the Residential Tenancy Regulations 2015 .

2.   Commencement

These regulations take effect on 4 May 2015.

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 that, or person who, 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 family 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 family 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.

4.   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..

5.   Sale of abandoned goods

(1)  For the purpose of section 48(1)(b) of the Act, an owner may sell abandoned goods if their apparent value is less than $300.

(2)  For the purpose of section 48(1)(c) of the Act, an owner is to apply for an order permitting the sale of abandoned goods if their apparent value is $300 or more.

6.   Infringement notice offences and penalties

(1)  In this regulation –

infringement offence means an offence under the Act that is specified in this regulation to be an offence for which an infringement notice may be issued.

(2)  The Commissioner may issue and serve an infringement notice on a person if he or she reasonably believes that the person has committed an infringement offence.

(3)  An infringement notice may not be served on an individual who has not attained the age of 16 years.

(4)  An infringement notice –

(a) is to be in accordance with section 14 of the Monetary Penalties Enforcement Act 2005 ; and

(b) is not to relate to more than 3 offences.

(5)  An offence under a provision of the Act specified in column 2 of Schedule 1 is an offence in respect of which an infringement notice may be issued.

(6)  The penalty specified in column 3 of Schedule 1 in respect of an offence in column 2 of that Schedule is the penalty payable under an infringement notice issued in respect of that offence.

7.   Non-application of Act to certain residential tenancy agreements and persons

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 family violence.

8.   Non-application of Act to parts of educational institution

(1)  Each provision of the Act does not apply to any premises that are part of an educational institution except where the premises are the subject of –

(a) an application for an allocation under the National Rental Affordability Scheme Regulations 2008 of the Commonwealth and that application has not been refused or withdrawn; or

(b) an allocation, or the reservation of an allocation, under those regulations.

(2)  In subregulation (1)  –

allocation has the same meaning as in the National Rental Affordability Scheme Act 2008 of the Commonwealth;

reservation of an allocation means a reservation of an allocation within the meaning of the National Rental Affordability Scheme Regulations 2008 of the Commonwealth.

9.   Non-application of certain sections 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.

10.   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) .

(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.

(10)  Section 29G of the Act applies to a dispute lodged under this regulation as if the dispute lodged under this regulation were a dispute lodged under section 29F of the Act.

11.   Non-application of certain sections 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.

12.   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) .

(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.

(10)  Section 29G of the Act applies to a dispute lodged under this regulation as if the dispute lodged under this regulation were a dispute lodged under section 29F of the Act.

SCHEDULE 1 - Infringement Notice Offences and Penalties

Regulation 6

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

Notified in the Gazette on 22 April 2015

These regulations are administered in the Department of Justice.

EXPLANATORY NOTE

(This note is not part of the regulation)

These regulations make provision in respect of –

(a) deposit contributors for the purposes of the Residential Tenancy Act 1997 ; and

(b) the sale of abandoned goods; and

(c) infringement notices; and

(d) the exclusion of certain agreements and premises from the application of the Residential Tenancy Act 1997 ; and

(e) the procedure that applies on the termination of a not-for-profit residential tenancy agreement and a TUU residential tenancy agreement; and

(f) are made consequentially on the repeal of the Residential Tenancy Regulations 2005 under section 11 of the Subordinate Legislation Act 1992 .