Recommendation 1: The proposed Residential Tenancies Act should apply in every case where people enter into an agreement for the rental of residential premises. A tenancy agreement may exist whether or not the agreement entitles the tenant to exclusive possession of the premises. However the proposed Act should not apply to the following types of accommodation pending further report by the Committee:
* ACT Housing Trust;
* boarders and lodgers;
* hotels and motels;
* community housing;
* student accommodation provided by educational institutions;
* clubs;
* caravan parks;
* retirement villages.
The proposed Act should not apply to:
* crisis accommodation;
* holiday accommodation;
* accommodation for aged and disabled persons which is regulated by Commonwealth legislation.
The Committee further recommends that the Minister have a discretion to exclude particular premises from the operation of the proposed Act by disallowable instrument.
Recommendation 5: The proposed Act should contain a presumption that where two or more people share a tenancy, they do so as joint tenants .
Recommendation 13: the committee should consult further on the necessity for and nature of legislation to provide appropriate protection for residents of facilities which provide personal care services for the aged or disabled and which are not covered by commonwealth legislation.
ecommendation 15: The proposed Act should apply to cooperative housing, however, certain special exemptions as provided for in the Residential Tenancies Act (SA), may be appropriate. The question of exemptions should be determined after further consultation with cooperative associations and their members/ residents.
.c.'Recommendation 16: The terms of the draft Standard Tenancy Agreement should apply in every tenancy agreement, whether agreed to by the parties, or not.
Recommendation 20: the proposed Act should provide that a tenancy agreement shall commence on the earliest of the following dates:
- date of commencement nominated in the tenancy agreement;
- date on which both parties sign the tenancy agreement and obtain a copy of the signed agreement;
- date on which the tenant occupies the premises;
- date on which the lessor first receives rent from the tenant.
* oblige the lessor to nominate an address or addresses for service in the tenancy agreement.
* deem delivery of documents at the nominated address to be actual communication with the lessor
* provide for the lessor to change the nominated address as required during the tenancy.
Recommendation 29: The proposed Act should require the lessor to provide the tenant with a copy of the fully executed tenancy agreement within three weeks of the time that the tenant signs and forwards the unexecuted agreement to the lessor for signature, or as soon as reasonably practicable thereafter.
Recommendation 34: the proposed Act should require the lessor to provide the tenant with a copy of the body corporate rules or bylaws at or before commencement of a tenancy which is managed by a corporation under the Unit Titles Act 1970.
* the granting, extension, transfer or renewal of a tenancy or subtenancy;
* vacating of premises;
* obtaining a key to the premises;
* information on the availability of tenancies.
The proposed Residential Tenancies Act should also prohibit any requirements in association with the above that the applicant or tenant make any improvements, alterations or repairs of the premises.
* the deposit is no greater than the equivalent of one weeks rent under the proposed tenancy agreement;
* the lessor may only receive and hold one single deposit for the one property at any one time.
* the lessor promises on the basis of the deposit, to take the premises off the rental market, for a specified period; the lessor may let the premises to the deposit provider during or at the end of the specified period if agreement is reached;
* if the lessor does not decide to rent the premises to the applicant within the specified holding period, the lessor shall return the holding deposit in full to the applicant;
* if the applicant decides to not proceed with the tenancy agreement, the lessor may retain from the deposit any actual loss of rent incurred by the lessor as a result of the agreement requiring withdrawal of the premises from the rental market (the maximum amount that the lessor may retain shall therefore be the equivalent of the amount of rent that the lessor would have received during the period in which the premises were withdrawn from the market; if it is the case that the lessor would not have been able to rent the premises in any event, then the lessor shall not be able to retain any money from the deposit); the lessor shall refund the remainder (if any) of the holding deposit;
* if the parties do enter a tenancy agreement, the holding deposit shall become part of the rent or bond;
* the lessor provides the applicant with a written receipt which states the following:
* the identity of the holder of the deposit (lessor or agent);
* the identity of the provider of the deposit;
* the address of the premises for which the deposit is paid;
* the date on which payment of the holding deposit is made, the amount of payment, the duration of the holding period;
* the legal effect of the deposit and the potential outcomes and liabilities.
* for consumption of water, electricity, gas, telephone services, fuel and other such supplies as made use of;
* the establishment cost of a new account for the supply of such services in the name of the tenant and the fee for reconnection of these services should they be disconnected as a result of failure of the tenant to pay for the services or other fault of the tenant.
The lessor should pay for all fixed costs and government charges including land tax and property rates. If the lessor arranges for the physical installation of a supply or service such as electricity, gas or telephone (whether required under the proposed Act or for other reasons), the lessor should pay for such installation.
Recommendation 39: the proposed Act should require the tenant to pay for the cost of water consumed by the tenant; the lessor should pay for the annual administrative fee for the supply of water which is not related to the amount of water consumed.
Recommendation 40: the proposed Act should require the lessor to read or arrange for the reading of the meter at the commencement of the tenancy and on termination. The lessor shall give the tenant opportunity to verify the reading of the meter.
If the lessor fails to read the meter at the commencement of the tenancy, the tenant shall not be liable for consumption of water until after the meter is first read after commencement. If the lessor fails to read the meter on the termination of the tenancy, subject to the following, the tenant shall not be liable for consumption of water after the last reading of the meter prior to termination.
If the tenant does not inform the lessor of the date on which the tenant is to vacate the premises, then the lessor shall read the meter on becoming aware that the tenant has vacated the premises. The tenant shall then be liable for consumption of water up to the time of this reading. In case of dispute ,the proposed Act shall deem the lessor to become aware of the date of vacating the premises at the time that a reasonable person would have become aware of the date in the circumstances.
The proposed Act should also provide that any agreement for a third party to act as surety for the tenant shall have the following effect. The surety shall be liable to pay compensation to the lessor for any loss suffered by the lessor due to breach of the tenancy by the tenant whether the breach occurred during the fixed term or periodic tenancy, subject to the following. The liability of the surety to pay compensation shall not extend beyond
* the maximum amount of money that the lessor could have required as a bond; and
* liability to pay for those losses for which the lessor could have sought deductions from a bond at the end of the tenancy had a bond been paid.
Any terms of a contract of guarantee or contract of indemnity which conflict with the above requirements shall be void to the extent of the conflict. The contract of guarantee or indemnity shall continue to operate if possible.
* The cost of repairs necessary as a result of damage to the premises caused by the tenant (other than fair wear and tear);
* Loss of rent up to and including the date of termination of the tenancy or abandonment of the premises;
* Loss of wood, gas or other fuel supplied by the lessor at the commencement of the tenancy which the tenant has used and not replaced;
* Costs incurred for consumption by the tenant of a commodity such as water, if
* the lessor is liable to the supply authority for payment;
* the tenant has not paid the lessor for the consumption costs.
The Committee also recommends that where a claim for compensation for any breach of the tenancy agreement is upheld by the Tribunal, the Tribunal should have the power to authorise that money be taken from the bond and paid to the lessor as compensation whatever the subject matter of the claim.
* the lessor is not required to agree to lodgement by the tenant
* where the tenant is to lodge the bond, the tenant shall not be entitled to possession of the premises until the lessor receives evidence of lodgement of the bond with the proposed Tenancy Office (Bond Office) unless the lessor otherwise agrees;
* an original receipt from the Tenancy office shall constitute evidence of lodgement by the tenant
* where the lessor receives the bond money from the tenant, the current rules and procedures shall apply to the lessor.
Recommendation 55: The proposed Residential Tenancies Act should provide for payment of rent at a nominated address, by deposit into a nominated bank account or in person as agreed.
Recommendation 56: The proposed Residential Tenancies Act should continue to require the lessor to:
* keep records of rent and bond payments; and
* require the lessor to make these records available for inspection by the tenant within 14 days of the request.
* require the lessor or agent to provide a receipt for payment of rent or bond to the tenant except where the rent is paid by direct deposit into a bank account nominated by the lessor or agent;
* require the lessor or agent to issue a receipt immediately in cases where the rent or bond is paid in person;
* otherwise require the lessor or agent to issue and dispatch a receipt to the tenant within seven working days of receiving the payment of rent or bond ; and
* require the receipt to specify:
* the date of payment;
* the amount paid;
* the period in respect of which the payment is made;
* the premises in respect of which payment is made; and
* whether payment is of bond money or rent.
`Recommendation 61: The 12 month restriction should continue to apply to particular rented premises provided that the identity of one or more of the tenants of the premises remains the same as at the time of the last rent increase.
* the proposed Act should presume a rent increase is excessive if it is 20% greater than, the increase for the corresponding period in the ABS Consumer Price Index for rents in Canberra; and
* the ACT Government should make this ABS data available to the Residential Tenancies Tribunal and all tenancy organisations
* the rate of rent paid immediately before the rent increase;
* the amount of the last rent increase immediately prior to the increase complained of;
* the time which has elapsed since the previous rent increase;
* outgoings or costs of the lessor and services which the lessor provides;
* the value of fixtures and goods supplied by the lessor as part of the tenancy;
* the state of repair of the premises;
* rents paid for comparable premises;
* the value of any work performed or improvements carried out by the tenant with the lessor's agreement or consent; and
* such other matters as the tribunal considers relevant.
* reject the application and allow the rent increase
* allow the rent increase;
* disallow the increase and order a new increase which the tribunal considers is not excessive;
* disallow the rent increase and reaffirm the original rent; or
* where appropriate order repayment by the lessor to the tenant of rent paid as a result of a disallowed rent increase.
If the tribunal allows the rent increase or substitutes a new rent increase for the one sought by the lessor the rent increase must be backdated to the date at which the increase was to have taken effect in accordance with the notice of the lessor. The 12 month restriction should then apply from this date. If the tribunal disallows the rent increase the 12 month restriction should also apply from the date at which the increase was to have taken effect in accordance with the notice of the lessor.
* a tenant who wishes to apply to the tribunal to dispute the increase to give the lessor written notice of application to the tribunal and make that application at least 14 days before the rent increase was to have taken effect according to the lessor's notice; and
* a tenant who wishes to vacate the premises as a result of the rent increase to give written notice of intention to vacate at least 14 days before the rent increase was to have taken effect.
If the tenant does not give either of the above notices to the lessor within the required period then the proposed Act should deem the tenant to have accepted the rent increase. The tenant should be able to apply to the tribunal for an extension of the above notice periods in special circumstances such as the tenant being on holidays at the time of the notice of the rent increase.
The Committee also recommends that the government amend the Discrimination Act so that the Act specifically states that discrimination on the ground that a person has or intends to have a child or children reside on the premises is unlawful.
* the action or omission would if performed by the tenant have constituted a breach of the Standard Agreement;
* the third party is on the premises with the permission of the tenant;
* the third party is not the lessor or agent of the lessor;
* the third party is not on the premises at the request of the lessor;
* the third party is not on the premises to assist the lessor (whether at the request of the lessor or the tenant) perform any of the duties of the lessor under the Standard Agreement; and
* the third party does not have a right to enter the premises without the consent of the tenant.
Recommendation 78: The proposed Act should provide that the lessor shall not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises. The Standard Agreement should specifically provide that the lessor shall not have access to the premises except in accordance with the tenancy agreement and the proposed Act.
Recommendation 79: the proposed Act should give the Tribunal power to order a reduction in the rent for interference by the lessor in the tenant's use and enjoyment of the premises. The Tribunal should be able to order a retrospective reduction in rent to continue until the cessation of interference. The Tribunal should be able to deem separate acts of interference as continuing interference by the lessor as it considers appropriate and order a reduction in rent accordingly.
* make an initial inspection of the premises within four weeks of the commencement of the tenancy; and
* inspect the premises upon vacation of the premises by the tenant
and that such access be in addition to access for routine inspections.
* the tenant has at least 24 hours notice on each occasion;
* there is a bona fide intention to sell
* the lessor has notified the tenant of intention to sell in writing.
The Committee also recommends that the proposed Act require the lessor to give notice of access appropriate to the circumstances in cases of urgent repairs
* require the lessor to provide and maintain such locks or other security devices as are necessary to ensure that the residential premises are reasonably secure;
* prohibit the lessor or the tenant from changing the locks except with the consent of the other party which consent must not be unreasonably withheld. This prohibition should not apply in cases of emergency or if waived by the tribunal on application; and
* if the locks are changed a copy of the key to the changed locks must be given to the other party concerned unless the tribunal approves otherwise.
* burst water service;
* blocked or broken lavatory system;
* serious roof leak;
* gas leak;
* dangerous electrical fault;
* flooding or serious flood damage;
* serious storm or fire damage;
* failure of gas, electricity or water supply to the premises;
* failure of refrigerator where supplied with the premises;
* failure or breakdown of any essential service on the premises for hot water, cooking, heating or laundering;
* any fault or damage that causes the residential premises to be unsafe or insecure;
* any fault or damage likely to cause injury to person or property or undue inconvenience to the tenant;
* a serious fault in any staircase, lift or other common area which inhibits or unduly inconveniences the tenant in gaining access and for use of the premises.
* to compel the lessor to make repairs; or
* that the rent be paid into the tribunal and be held by the tribunal until the lessor makes the repairs;
* to authorise repairs to be made and to be paid for out of rent paid to the tribunal; and/or
* that the rent be reduced until the repairs are made);
* that the tenancy be terminated, with appropriate compensation to the tenant.
* the tenant should make a reasonable attempt to contact the lessor orally or in writing of any damage requiring repair;
* if the lessor cannot be contacted or if the lessor fails to make repairs within a reasonable time, the tenant should arrange for repairs to a maximum value of $1 000
* the repairs arranged by the tenant must be made by a qualified trades person nominated by the lessor or agent;
* if the lessor or agent has not nominated a tradesperson or the nominated tradesperson can not be contacted or is otherwise unavailable, then the repairs must be performed by a qualified tradesperson of the tenants choosing;
* the tenant should be able to recover the cost of repairs from the lessor where the repairs are arranged by the tenant;
* the tradesperson may bill the lessor direct or if the invoice is issued to the tenant, the tenant may either give the invoice to the lessor requiring the lessor to pay or pay the bill and send the receipt to the lessor seeking reimbursement;
* the lessor must reimburse the tenant for the cost of the urgent repairs within seven days unless the lessor disputes the payment;
* if the lessor disputes the payment the lessor must apply to the tribunal for a decision as to whether the lessor should pay for the repairs.
* failure to make repairs as required by the proposed Act;
* withdrawal of facilities or services;
The reduction in rent should cease on the day that adequate repairs are made , facilities are restored, or such earlier date as the Tribunal considers appropriate. The Tribunal should be able to order a retrospective or prospective reduction in rent.
Recommendation 105: The proposed Act should provide as follows in relation to residential premises subject to the Unit Titles Act 1970. The lessor shall take all possible steps to require the body corporate to make repairs to common areas as soon as possible in accordance with its responsibilities under the Unit Titles Act, where the repairs are necessary to ensure that the tenant has full use and enjoyment of the premises.
The Government should amend the Unit Titles Act as necessary, to provide the tenant with a right to have the body corporate make repairs to common areas necessary to ensure that the tenant has full use and enjoyment of the premises. The Act should provide for the tenant to apply to the Tribunal for an order to require the body corporate to make such repairs in accordance with its responsibilities under the Act and to pay compensation for failure to do so.
* not intentionally or negligently cause or permit any damage to the premises;
* as soon as practicable, notify the lessor of any damage to the premises;
* maintain the premises in a reasonable state of cleanliness having regard to the condition of the premises at the commencement of the tenancy and the normal incidence of living;
* at the termination of the tenancy to leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy agreement as evidenced in the condition report.
* using or permitting the premises to be used for an illegal purpose to the detriment of the lessor's interest in the premises;
causing or permitting a nuisance;
. interfering, or permitting interference, with the use and enjoyment of the occupiers of nearby premises.
Recommendation 111: as a matter of principle, the tenant should comply with the bylaws of the body corporate in so far as they are applicable to the tenant and do not conflict with the division of duties between lessor and tenant as recommended in this report.
* grant any application which may be made to the Tribunal under the proposed Residential Tenancies Act;
* restrain any action in breach of the residential tenancy agreement;
* require performance of the tenancy agreement;
* require the payment of an amount of money;
* require work to be done or such other steps necessary to remedy a breach of the agreement;
* require payment of compensation, including:
* compensation for loss of rent; and
* compensation for any other breach of the tenancy agreement;
* require payment of part or all of the rent under the residential tenancy agreement into the Tribunal until the lessor has complied with the tenancy agreement or any application for compensation has been determined;
* require payment (out of rent paid into the Tribunal) towards the cost of remedying a breach of the residential tenancy agreement by the lessor or towards compensation;
* terminate the tenancy and grant possession of the premises to the lessor in accordance with the Act;
* grant interim injunctions;
* vary, set aside, stay or suspend the operation of, any order made
The Tribunal should not have the power to make an order for
* the payment of an amount that exceeds $20 000; or
* the performance of work or the taking of steps the cost of which may or will exceed $20 000.
* there should be only one application form for all tenancy matters which should be clear and easy to use;
* there should be a designated reception area for tenancy applications;
* Tribunal staff should give detailed assistance with the completion of tenancy application forms;
* on receiving the application, the Registrar should list the matter for hearing and give notice to both parties of the hearing date and of the reasons for the claim; if the application form contains insufficient information, the Registrar should contact the parties to obtain further information;
* the Tribunal should prepare a short, easy to read brochure on how it works and what people should expect to take place at a hearing;
* the brochure should identify what people should bring to the Tribunal, the role of witnesses, the nature, structure and sequence of the hearing, what happens if the parties do not appear or would like a different date for hearing, and affirm that the hearing is to allow people to present their case in full.
If this recommendation is rejected by Government, there should be an automatic waiver of fees for specified categories of low-income-earners and the Registrar should have a discretion to waive the application fee in whole or in part on the grounds of hardship. The application fee should be fully refundable if the application is substantially successful at the preliminary conference or at the full hearing.
Recommendation 118: The Registrar and the Tribunal should have a discretion to:
* postpone hearing dates in circumstances of real need such as ill health, unavoidable absence from Canberra, pressing work commitments.
* list matters after hours subject to the listing and other requirements of the Tribunal, in circumstances of real need such as pressing work commitments, or child care duties;
The Tribunal should have a discretion to:
* arrange for evidence to be given by telephone in appropriate cases;
* adjourn proceedings where in the opinion of the Tribunal one of the parties is at a significant disadvantage because of lack of notice of an element of the claim or for other reasons such as language difficulty, physical or mental incapacity.
* list matters for an immediate interim hearing in appropriate circumstances;
* conduct interim hearings on an ex-parte basis if necessary in the special circumstances of the case.
* The Registrar of the Tribunal should have the authority to arrange and convene a preliminary conference if the Registrar considers that there is a significant chance of resolving the dispute by agreement without the need for a full Tribunal hearing.
* If the parties have already attended a mediation session prior to application to the Tribunal, the Registrar should take this into account when deciding whether to refer the parties to a preliminary conference.
* The Registrar should convene the conference as soon as practicable after the application is made. Attendance at a preliminary conference should be compulsory.
* If the applicant fails to attend the preliminary conference without reasonable excuse, the registrar or Tribunal should have a discretion to strike the application out.
* The Tribunal should have a discretion to require a respondent who fails to attend a conference without reasonable excuse to pay the applicant the reasonable costs of the applicant's attendance at the preliminary conference.`
* At the conference, the Registrar should actively assist the parties to resolve their dispute. This assistance should include informing the parties of their rights and the possible outcomes of a tribunal hearing. All proceedings at the preliminary conference should be confidential and should have no bearing on the Tribunal hearing if the parties fail to reach agreement.
* If the parties reach an agreement at the preliminary conference, the agreement should be registered and become enforceable within 2 days unless, in the interim, one of the parties notifies the Registrar that he or she wishes to withdraw from the agreement.
* If the parties fail to reach an agreement at the preliminary conference, the Registrar should list the matter for a full Tribunal hearing, or, if the matter requires urgent resolution, should list the matter for hearing as a matter of priority.
The Registrar or Deputy Registrar who convenes the preliminary conference should be a qualified legal practitioner and have extensive training in tenancy matters and mediation.
* dismiss the proceedings; and
* order the person who brought the proceedings to pay to the defendant the costs the defendant incurred in relation to the proceedings.
The Supreme Court should continue to have the ability to award costs in relation to appeals to the Court.
Recommendation 123: The physical environment of the hearing room of the Tribunal should be relatively informal so that it is not intimidating to those present.
The Committee recommends also that the Tribunal not be bound by formal rules of evidence and that the proposed Act require the adjudicator to actively assist the parties who appear at the hearing and, in particular, require the adjudicator to:
* explain the role of the Tribunal;
* explain the process of the hearing;
* inform the parties of the law and of the effect of the case for and against the application;
* explain to the parties the effect of evidence given and evidence required to prove a claim;
* ensure that the parties are aware of the Tribunal hearing process and are able to present their arguments in full;
* identified all the parties and witnesses present, and require witnesses to be outside the hearing room until they are called to give evidence.
The Committee also recommends that child care services be available at the Tribunal, or provision be made for reimbursement of child care costs in appropriate circumstances.
* written reasons for a decision when requested to do so by one of the parties within 14 days of the making of the decision;
* an indexed register of written reasons which may be made available on request;
* a quarterly newsletter which summarises in a clear and readable manner significant decisions of the Tribunal and other useful information; this newsletter should be available free of charge; and
* an annual report, tabled in the ACT Legislative Assembly, which summarises the work of the Tribunal in the period under review and includes detailed statistical information on the parties to disputes, the nature of disputes and their outcomes.
* the establishment of a Tenancy Office which combines the residential tenancy tribunal with the function of bonds administration and possibly also enforcement of the proposed new residential proposed Act and tenancy education services; and
* the establishment of a specialist residential tenancy tribunal within the administration of the ACT Magistrates Court.
Recommendation 129: The Residential Tenancies Tribunal should be funded in part by equal contributions from the interest earned from agent's trust funds and the interest earned from rental bonds.
The proposed Act should provide that when the agreed term of a fixed term tenancy expires, the tenancy shall continue as a periodic tenancy.
Recommendation 131: Lessor and tenant should be able to agree to terminate the tenancy at any time. If the lessor and tenant do so agree, then the tenancy shall terminate on the agreed date. The agreement shall be valid whether in writing or not. The Information Booklet should advise the lessor and tenant to express such an agreement in writing to minimise potential disputes.
An agreement to terminate the tenancy shall bind both the tenant and lessor unless they both agree to its withdrawal before the agreed date of termination.
If the lessor and tenant agree to terminate the tenancy and the tenant fails to vacate the premises as agreed, the lessor should be able to apply to the tribunal for termination and possession orders. The proposed Residential Tenancies Act should require a lessor who wishes to make such an application, to do so within four weeks of the agreed termination date. If the Tribunal decides that the lessor and tenant did agree to terminate the tenancy, the Tribunal shall terminate the tenancy and order that the lessor have possession of the premises.
Recommendation 132: the proposed Residential Tenancies Act should provide for the lessor and tenant to agree to merger of their interests in the premises and the tenancy shall terminate on the date the merger becomes effective.
Recommendation 133: The Government should amend the Real Property Act 1925 as necessary to ensure that a person who acquires a registered interest in a property does so subject to any existing unregistered periodic or fixed term tenancy provided that the term of the tenancy does not exceed three years. The term of a periodic tenancy is the duration of the period which renews itself until termination in accordance with the proposed Act.
Recommendation 136: The proposed Act should require the lessor to guarantee to the tenant that there is no legal impediment, of which the lessor had or ought reasonably to have had knowledge at the time of entering into the tenancy agreement, to the tenant occupying the premises as a resident for the duration of the tenancy.
The proposed Act should also provide that the tenant shall have quiet enjoyment of the premises without interruption by the lessor or any person claiming by, through or under the lessor or having superior title to that of the lessor.
Where a mortgagee or other person acquires possession of the premises and the Real Property Act does not require the person to be bound by the tenancy, then if the mortgagee or other person wishes to have vacant possession of the premises, the proposed Act should require the person to give the tenant 8 weeks notice to vacate.
* the premises are destroyed;
* rendered uninhabitable;
* cease to be lawfully useable as a residence;
* are compulsorily appropriated; or
* acquired by any proper authority.
then the following should apply:
* the rent shall abate accordingly;
* the tenant may give notice of termination of the agreement which notice must be not less than two days
* the lessor may give notice of termination of the agreement which notice must be not less than seven days
* if neither the tenant nor the lessor gives notice then the rent shall abate as above and only resume if and when the premises become habitable again.
Recommendation 138: If a co-tenant dies then the tenancy shall continue with the surviving co-tenant(s) as the sole tenants. This shall apply whether the co-tenants were joint tenants or tenants in common before the death. The surviving co-tenant(s) shall be able to apply to the court/tribunal for early termination of the tenancy agreement for reasons of significant hardship. These reasons could include the extra rent the surviving co-tenant(s) must pay or other personal reasons.
In the situation where a tenant dies leaving the premises occupied by people who are not tenants, those occupants should be able to apply to the court/tribunal to be accorded the status of tenants under a new tenancy agreement. The occupants should make this application within a reasonable time of the death. The court/tribunal shall grant the application as it considers appropriate in the circumstances; the court/tribunal shall also decide the terms of the new tenancy agreement having regard to the terms of the original agreement. In exercising its discretion to declare the occupants to be tenants under a new tenancy agreement, the court/tribunal shall have regard to the expectation of the lessor that the tenancy continue with reliable tenants at the same rent as under the original agreement.
Application of occupants to be declared tenants, or application of surviving co-tenant(s) for early termination of the tenancy, shall have priority over any claim of the estate of the deceased tenant. Subject to this requirement, the estate of the deceased shall acquire the tenancy of the deceased in accordance with the general law. If the estate does acquire the tenancy, the estate shall have the option of terminating the tenancy without liability to the lessor for doing so. The estate may terminate the tenancy by written notice to the lessor within a reasonable time of the death.
Any claim or right of action under the proposed Act by or against the deceased which developed before the time of death shall survive the death of the tenant and apply to the estate of the deceased in accordance with the general law.
Recommendation 139: The proposed Act should require the notice to vacate and notice of intention to vacate to be in writing and require the tenant to sign the notice of intention to vacate and require the lessor or the real estate agent of the lessor nominated in the tenancy agreement to sign the notice to vacate.
The proposed Act should contain as a schedule to the Act, a standard form for a notice to vacate and notice of intention to vacate; the standard form should be developed by the Consumer Affairs Bureau in consultation with tenancy agencies; the Act should require the lessor or tenant to use the standard form or use a written notice which closely resembles the standard form in content and appearance.
Recommendation 140: The proposed Act should require the notice to vacate and the notice of intention to vacate to contain the following written information:
- if a ground is required under the proposed Act, the ground(s) on which the notice is served and the circumstances giving rise to the ground(s);
- the address of the premises subject to the notice;
- in the case of a notice to vacate:
the lessor requires the tenant to vacate the premises by date [x] which date falls after the expiry of the required notice period and that the tenancy shall terminate on the day that the tenant vacates the premises;
- in the case of a notice of intention to vacate:
the tenant intends to vacate the premises on date [x] which date falls after the expiry of the required notice period and the tenancy shall terminate on that day.
Recommendation 141: The proposed Act should provide that a tenant who intends to vacate the premises in response to a notice to vacate from the lessor, may
vacate the premises on the day nominated in the notice to vacate as the day on which the lessor requires vacant possession of the premises (hereafter the nominated date); or
vacate the premises on any day during the two week period prior to the nominated date provided the tenant first gives the lessor four days notice (verbal notice shall be sufficient) of the day on which the tenant intends to vacate the premises.
In either of the above two cases, the tenancy shall end on the day that the tenant vacates the premises. If the tenant does not give the lessor four days notice of intention to vacate the premises on a date prior to the nominated date, then the proposed Act shall deem the tenancy to continue until the nominated date irrespective of the day on which the tenant vacates the premises.
In the case of a notice of intention to vacate, the tenancy shall terminate on the date nominated in the notice as the date on which the tenant intends to vacate the premises.
Recommendation 143: The proposed Act should provide that notices or other documents required under the Act may be delivered:
- in person by hand;
- by Australia Post;
- by fax; or
- by registered courier
Recommendation 144: The proposed Act should provide that it is not possible to withdraw a notice to vacate or notice of intention to vacate once the notice is served except with the agreement of the person who is the subject of the notice.
If the tenant serves a notice of intention to vacate on the lessor and the tenant fails to vacate the premises in accordance with the notice, the lessor should be able to apply to the tribunal for termination and possession orders. The proposed Residential Tenancies Act should require a lessor who wishes to make such an application, to do so within four weeks of the termination date nominated in the notice of intention to vacate. If the Tribunal decides that the lessor and tenant did agree to terminate the tenancy, the Tribunal shall terminate the tenancy and order that the lessor have possession of the premises.
Recommendation 145: The proposed Act should require the tenant to provide the lessor with a contact address at or before vacating the premises which the lessor can use to contact the tenant after termination of the tenancy.
If the notice is defective and the defect is not remedied by tribunal order, the notice to vacate, notice of intention to vacate shall have no effect and the lessor or tenant should be able to claim compensation for abandonment of premises or wrongful eviction respectively. The tenant should be able to seek orders to allow the tenant to resume occupation of the premises.
Recommendation 147: The proposed Act should provide as follows:
If the lessor seeks and obtains termination of the tenancy through deliberate use of false or misleading information in a notice to vacate or through presentation of false or misleading evidence at a Tribunal hearing, the tenant may apply for compensation for wrongful eviction and orders to allow the tenant to resume occupation of the premises.
If the tenant seeks and obtains termination of the tenancy through deliberate use of false or misleading information in a notice of intention to vacate or through presentation of false or misleading evidence at a Tribunal hearing, the lessor may apply for compensation on the basis that the tenant has abandoned the premises.
* the lessor may terminate the tenancy by giving eight weeks notice to vacate to the tenant on the grounds that the lessor is required to move in to the premises due to a work transfer from outside the Canberra/Queanbeyan region; and
* the tenant may terminate the tenancy by giving eight weeks notice of intention to vacate to the lessor on the grounds that the tenant is required to vacate the premises due to a work transfer outside the Canberra/Queanbeyan region.
Recommendation 150: The Committee recommends that the proposed Act and standard tenancy agreement provide for the lessor to terminate the tenancy on any of the following grounds in addition to breach of the tenancy agreement;
* the lessor or the lessor's immediate relative intends to reside in the premises; the lessor must give the tenant four weeks notice in writing to vacate the premises;
* a person (other than immediate relative) who:
* has a close family or personal relationship with the lessor and therefore a reasonable expectation that the lessor will assist the person to find accommodation
* intends to reside in the premises and the lessor has obtained the approval of the tribunal for termination on this ground at a hearing of which the tenant had adequate notice; four weeks notice required;
* the lessor has a bona fide intention to sell the premises; eight weeks notice required; and
* the lessor has a bona fide intention to reconstruct, make major repairs or renovations which cannot reasonably be carried out while the tenant is in occupation of the premises; twelve weeks notice required.;
* the lessor granted the tenancy as part of a contract of employment between the lessor and tenant, the tenant ceases to be an employee of the lessor and the lessor requires the premises for the accommodation of another employee; four weeks notice required.
The proposed Act and standard tenancy agreement should also provide for the lessor to terminate the tenancy after expiry of the fixed term in the absence of any of the above grounds provided the lessor gives the tenant 26 weeks notice to vacate.
* if the tenant then fails to remedy the breach the lessor can serve a notice to vacate in writing on the tenant requiring the tenant to vacate within fourteen days; and
* if the tenant then fails to vacate then the lessor can apply to the tribunal for an order for termination of the tenancy and eviction of the tenant.
* If the tenant breaches the same term of the tenancy agreement on three occasions then on the third occasion, the lessor should not be required to give the tenant an opportunity to remedy the breach.
* In this case after the third breach the lessor should be able to serve the written notice requiring the tenant to vacate within fourteen days; and if the tenant does not vacate, apply to the tribunal for termination of the tenancy.
* serious damage to the residential premises; or
* injury to the lessor, the lessor's agent or any person in occupation of or permitted on adjoining or adjacent premises
* the lessor gives the tenant two weeks written opportunity to remedy the breach; and at the same time gives each of the new residents a copy of the notice for information;
* if the two week period of opportunity to remedy expires, and there is no agreement for the new residents to vacate then the lessor can give the tenant and each of the new residents a separate written notice to vacate within 2 weeks;
* the tenant and the new residents can then vacate or continue to reside in the premises until the matter is decided by the tribunal; if the tenant and/or the new residents do not vacate the premises then the lessor can apply to the tribunal for termination of the tenancy;
* at the termination hearing the tribunal should have the discretion to:
u grant the termination application and require all residents to vacate the premises
u refuse termination on the grounds that the lessor did consent to the assignment or subletting and confirm all residents as tenants or subtenants;
u refuse termination on the grounds that the new residents agree to vacate the premises
u order that the tenancy be terminated but postpone the time of termination for a limited period on the grounds of hardship to the tenant; and allow the new residents to remain in occupation of the premises until the time of termination.
* the lessor can seek termination of a tenancy for non payment of rent only on the basis that an amount of rent is owing and has not been paid for seven clear calendar days ; in this calculation the first day expires at midnight on the day on which the rent was due and not paid;
* the lessor may then serve a notice to remedy the failure to pay rent on the eighth day the rent has been unpaid; the notice to remedy must clearly state that the tenant may negate the effect of the notice by paying the rent arrears at any time during the notice period; the remedy period shall be a further seven days
* once the notice to remedy has been served the tenant may negate the effect of the notice by paying the full amount of the rent owing. The tenant must do this within seven days of receiving the notice; if the tenant does pay the rent in arrears within this seven day period, the tenancy continues and the lessor can no longer use the failure as a ground to terminate the tenancy agreement;
* if the tenant fails to pay the rent as required by the notice to remedy, the lessor may then serve a notice to vacate on the tenant requiring the tenant to vacate the premises within fourteen days, the lessor may apply, at the same time, to the Tribunal for a termination hearing;
* the Tribunal may list the matter for hearing at any time after the expiry of the above 14 day notice to vacate period; the registrar of the tribunal must give the tenant one weeks notice in writing of the tribunal hearing; and
* if the tenant does not vacate the premises, the hearing takes place as scheduled;
* the proposed Act should require the tribunal to hear applications for termination for non payment of rent as soon as practicable after the expiry of the two week notice to vacate period.
If the tenant fails to pay rent for more than seven days on a third occasion, the lessor may serve a notice to vacate on the tenant after the rent has been unpaid and owing for seven clear days; there should be no requirement to serve a notice to remedy; in all other respects the procedures should be as recommended above.
Recommendation 156: The Tribunal shall have a discretion to postpone the operation of orders for termination and possession in favour of the lessor, for up to 21 days on the basis of relative hardship, that is, on the basis that the tenant would suffer greater hardship if the tribunal refused to postpone termination, than the lessor would suffer if the tribunal did postpone termination.
Recommendation 157: The proposed Act should provide that the Tribunal shall make termination and possession orders on the application of the lessor if it is satisfied that:
* the tenant did breach a term of the tenancy;
* the owner served a notice of termination on the grounds of the breach in accordance with the Standard Agreement;
* the tenant did not vacate the premises as required by the notice;
* the breach is in the circumstances such as to justify termination of the tenancy;
unless the tenant satisfies the tribunal that it should make one of the following alternative orders. The Tribunal may:
* refuse to terminate the tenancy on the basis that the tenant has remedied the breach, if it considers it appropriate and just to do so in the circumstances;
* refuse to terminate the tenancy on the basis that the tenant is reasonably likely to be able to and undertakes to remedy the breach within a reasonable period, if the tribunal considers it appropriate and just to do so in the circumstances;
* order that the tenancy terminate and the owner have possession of the premises but postpone the operation of these orders, for up to 21 days on the basis of relative hardship, that is, on the basis on the basis that the tenant would suffer greater hardship if the tribunal refused to postpone termination, than the lessor would suffer if the tribunal did postpone termination.
If the tenant can establish to the satisfaction of the tribunal that he or she is reasonably likely to be able to repay the rent owing and the ongoing rent and undertakes to do so, then the tribunal may refuse termination but only on the condition that the tenant pay the rent owing within a fixed period and in a manner to be determined by the tribunal.
* the lessor need not apply to the tribunal for a termination order;
* the tenancy should terminate and the lessor should be entitled to possession of the premises at 5.00 pm the day after the day on which the rent was due and not met;
* all rent owing at this time shall fall due;
* if necessary the lessor may apply to the registrar for authorisation of eviction.
* the tenant had applied to the tribunal for an order;
* the tenant had applied to a governmental authority to secure or enforce his or her rights as a tenant; or
* an order of the tribunal was in force in relation to the lessor and the tenant.
In this situation, the onus of proof should be on the lessor to show that the termination was not so motivated.
* the tenancy shall terminate on a particular day [to be determined by the tribunal] and the tenant is required to vacate the premises on or before that day;
* if the tenant does not vacate the premises as required then a warrant shall issue for the eviction of the tenant;
* the registrar shall execute this warrant upon the lessor proving to the satisfaction of the registrar that the tenant has not vacated the premises as required;
* the warrant must be executed by the registrar and the eviction must take place within a certain number of days [this number to be determined by the tribunal]; if the eviction does not take place within this period the warrant lapses and the tenancy shall be deemed to revive and continue;
* the police shall give the tenant at least two days notice of the eviction [the tribunal may vary this requirement where appropriate in unusual circumstances].
The proposed Residential Tenancies Act should require that an eviction may not take place in the absence of the Australian Federal Police.
* the lessor may apply to the registrar for execution of a warrant for the eviction of the tenant;
* if the registrar is satisfied that:
u the tenant has not paid the rent by the due date and time as required by the tribunal; and
u the tenancy has subsequently terminated pursuant to the order of the tribunal;
* the registrar may execute a warrant for the eviction of the tenant;
* the registrar must provide for the tenant to receive notice of the pending eviction at least two clear working days before the police evict the tenant;
* upon receiving notice of pending eviction, the tenant may dispute the eviction but only on the basis that the tenant has in fact paid the rent as required by the tribunal;
* if the tenant wishes to dispute the eviction then the tenant must notify the registrar of the dispute within two days of receiving the notice of pending eviction;
* if the tenant notifies the registrar of a dispute the registrar must list the matter for urgent hearing by the tribunal and the warrant is suspended until the tribunal makes its decision; and
* if there is no notification of dispute the eviction takes place in accordance with the order of the tribunal.
Recommendation 163: The proposed Act should provide for the lessor to obtain compensation for failure of the tenant to vacate the premises as required by Tribunal order. The lessor should be able to claim compensation for:
* financial loss incurred as a direct result of being unable to take vacant possession of the premises from the date on which the Tribunal required the tenant to vacate the premises, to the date on which the tenant does actually vacate the premises; and
* the cost to the lessor of application to the registrar and other procedures to evict the tenant.
Recommendation 164: The tenant should be able to apply to the tribunal for early termination on the grounds of hardship. The tribunal should be able to agree to terminate the tenancy on the grounds of hardship such that it is appropriate and just that the tenancy be terminated. If the tribunal agrees to terminate the tenancy for these grounds the lessor should have a minimum of 8 weeks notice of the termination as from the date of application by the tenant to the Tribunal for early termination. In this circumstance no compensation should be payable by the tenant to the lessor for the early termination. The tenant may seek a reduction of this 8 week period on the grounds of severe hardship. The tribunal may reduce the period after consideration of the hardship to the tenant if the period were not reduced and of the hardship to the lessor if it were reduced.
Recommendation 165: The proposed Act should provide for the tenant to terminate a:
* fixed term tenancy agreement:
on any grounds, on the day the fixed
term expires, by giving the lessor a minimum of three weeks written notice of
intention to vacate; the notice of intention to vacate should be substantially
in the standard form and state that the tenant intends to vacate the premises
on the day the fixed term expires; the tenancy agreement should then come to an
end on that day; and
* periodic tenancy:
on any grounds by giving the lessor three weeks
written notice of intention to vacate; the notice of intention to vacate should
be substantially in the standard form and state that the tenant intends to
vacate the premises on the date specified in the notice; the tenancy agreement
should then come to an end on that day; the common law rules as to the method
and timing of notice for termination of periodic tenancies should not apply.
'Recommendation 167: Where the lessor breaches the tenancy agreement the proposed Residential Tenancies Act should require the tenant to seek termination of the tenancy in the following manner.
* if the lessor breaches the tenancy agreement and the breach is capable of remedy, the tenant should give the lessor 14 days written notice of opportunity to remedy;
* if the lessor fails to remedy the breach within the 14 day notice period or the breach is incapable of remedy, then the tenant may give the lessor 14 days notice of intention to vacate;
* the tenancy agreement comes to an end on the day the tenant vacates the premises in accordance with the notice of intention to vacate; the tenant owes rent only up to and including the day that the tenant vacates the premises;
* if the lessor remedies the breach after the opportunity to remedy period but during the notice of intention to vacate period the tenant may at his or her option still bring the tenancy to an end by vacating the premises on the nominated date.
* serious damage to the tenant's property; or
* injury to the tenant or a member of the tenant's family.
* the lessor can only enter and regain possession of the premises if the lessor has a reasonable and genuine belief that the premises are abandoned;
* the standard information booklet should make it clear that a simple breach of the agreement does not amount to abandonment and that there must be clear evidence of abandonment before the lessor can repossess the premises;
* if the lessor repossesses the premises and the tenant has not in fact abandoned the premises, then, except as provided below, the lessor should be liable to pay compensation to the tenant for the costs arising directly out of the eviction; however if the tenant owes the lessor rent then in this circumstance the lessor shall not be liable to pay compensation for costs arising directly from the repossession of the property;
* the question of whether the tenant has abandoned the premises should be decided on an objective analysis of all the circumstances, with the onus of proof resting on the lessor;
* the lessor may obtain a declaration from the tribunal that the premises have been abandoned. If the tribunal does declare the premises abandoned then the tenancy agreement should come to an end on the day that the tribunal declares the premises to be abandoned and the lessor should be entitled to repossess the premises and should not be liable to pay compensation to the tenant for doing so. If in this case the tenant does claim compensation for wrongful eviction then the compensation claim, if successful, should be paid for out of Government funds.
The above maximum amount shall apply before any consideration of reduction of compensation in accordance with the duty to mitigate. For example, if the tribunal decides that the compensation should be reduced because of failure to mitigate, and there were 45 weeks remaining in the fixed term after the abandonment, the tribunal shall apply the reduction as though there were 16 weeks rather than 45 weeks remaining. The maximum should not affect calculations of compensation or reduction for failure to mitigate, where the tenant abandons the premises with 16 or less weeks remaining in the tenancy.
* the advertising costs and reletting costs are reasonable;
* the compensation should be reduced by reason of the timing of the abandonment given that the lessor is likely to incur these costs at the end of the fixed term in any event.
Recommendation 174: There should be legislation to establish clear and fair principles for dealing with abandoned goods. The legislation should provide for the Tribunal to have jurisdiction to decide claims concerning property abandoned by the tenant and the legislation should be generally consistent with the following requirements:
* The lessor may remove, destroy or dispose of abandoned foodstuffs or other perishable goods immediately ;
* the lessor must store goods the value of which is less than the total estimated cost of removal, storage and sale for a short period perhaps one week;
* the lessor must store personal goods including private or personal documents, official records, bankbooks, certificates, photographs and similar items for an extended period in the order of 12 weeks; if they are not claimed the lessor may dispose of them;
* In dealing with goods other than the above, the lessor must
* store the goods in a safe place for a significant period in the order of 6 weeks;
* Lessor must forward a notice to the tenant of the abandoned goods if the tenant leaves a forwarding address; the notice should state that lessor shall sell the goods unless the tenant claims them;
* The tenant may claim the goods at any time before sale. The lessor must (except as provided for below) return the goods provided that the tenant pays for the reasonable costs of removal and storage.
* The lessor may withhold the goods for reasons that the tenant has breached the tenancy and owes the lessor compensation; however, if the lessor does so he or she must apply within three days to the tribunal for an order for compensation and an order allowing the lessor to retain the goods until compensation is paid; if no application is made within three days of the tenant first claiming the goods the lessor must return them to the tenant;
* If the tenant does not claim the goods, the lessor may then sell them in accordance with the legislation and deduct from the proceeds the costs of removal, storage and sale.
* the lessor may apply to the tribunal for approval to retain some of the proceeds of sale to pay for money owing by the tenant for breach of the tenancy
* Money remaining after deductions should be deposited with the tenancy tribunal for it to retain for 12 months and refund to the tenant if claimed. If the money is not claimed then, after 12 months, the tribunal should forward the money to the Government for incorporation into general revenue.
The Committee further recommends that:
* the lessor should be able to apply to the tribunal for a declaration as to the status of the goods and the appropriate means of disposal; if the sale of the goods does not meet the cost of storage, removal and sale, as predicted by the tribunal, the lessor should bear this loss;
* the lessor should not be liable to a claim of a tenant with respect to the abandoned goods where he or she disposes of the goods according to these provisions; disposal of the goods in accordance with a decision of the tribunal should be conclusive evidence that the lessor has so disposed of the goods;
* The lessor should not be liable to a person other than the former tenant for disposal of the goods under these provisions except where the lessor had actual knowledge of the person's interest and failed to take reasonable steps to notify that person of the property and pending sale;
* A purchaser of the goods at a sale provided for above should acquire full legal title to the goods unless the purchaser had actual knowledge that a person other than the former tenant owned the property.
* non compliance of the Tribunal order or orders (other than an order for payment of money) without reasonable excuse where
u the person has failed to comply with a tribunal order on one or more previous occasion(s) in the 12 months preceding the act of non compliance; and
u the previous occasion(s) of non compliance have been the subject of a tribunal order for civil penalty;
* serious misbehaviour at or disturbance of Tribunal proceedings
* to knowingly provide information in any notice or document required under the proposed Residential Tenancies Act, that is false or misleading in any material particular.
The Tribunal should not hear prosecutions for offences under the Act and should not have the power to convict or jail people. Prosecutions for criminal offences shall take place in the Magistrates Court.
The manager of the Tenancy Office shall refer matters as appropriate to the DPP for possible prosecution; in much the same way that the director of Consumer Affairs refers matters to the DPP for prosecution. Private individuals may notify the Tenancy Office or the AFP of offences for possible referral to the DPP. The Tribunal shall not refer matters for possible prosecution.
* eviction without order of the Tribunal
* failure to lodge a bond
* non compliance with tribunal order or orders (other than orders for payment of money);
There should be three means for initiating proceedings for a civil penalty as follows:
the aggrieved party (applicant) should be able to apply to the Tribunal for a civil penalty to be imposed as well as compensation;
the manager of the Tenancy Office should be able to initiate proceedings independently of the applicant; and
the Tribunal should be able to impose a civil penalty on its own motion.
On receiving an application for civil penalty:
* the registrar of the Tribunal should give at least two weeks notice to all parties; the notice to the person who has allegedly disobeyed the initial order of the Tribunal should note the consequences of non-compliance and should provide that if the order is complied with prior to the Tribunal hearing then proceedings for a civil penalty will cease;
* if, after hearing both parties, the Tribunal decides that, on the balance of probabilities, there exist grounds to impose a civil penalty, the Tribunal should have the discretion to do one or more of the following:
u order appropriate compensation be paid to the applicant and make no further order;
u impose a civil penalty to a maximum value of $5000 and no further order;
u impose a civil penalty to a maximum value of $5000 and order the respondent to pay the applicant appropriate compensation
If the Tribunal imposes a civil penalty, the registrar or the aggrieved party should then be able to seek payment of the civil penalty through the Magistrates Court as though it were a civil judgement debt of that Court.
The proceeds of the civil penalty should be paid into the proposed trust fund of the Tenancy Office, that is, the fund developed through interest earned on bond monies currently held by the Bond Office.
Recommendation 177: The proposed Act should provide for the Tribunal to award compensation up to the value of $20 000.
Recommendation 181: The proposed Act should provide for the Tribunal to have the power to award compensation to the tenant for the direct financial cost to the tenant for wrongful eviction. The Tribunal should also have the power to require the lessor to allow the wrongfully evicted tenant to reoccupy the premises as tenant if the Tribunal considers this action is appropriate in the circumstances.