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CLAUSE NOTES
RESIDENTIAL TENANCY AMENDMENT BILL 2013
Part 1 - Preliminary
Clause 1: Short title
The Act is to be referred to as the Residential
Tenancy Amendment Act 2013.
Clause 2: Commencement
Provides that provisions of the Act commence
on a day or days to be proclaimed. This gives
flexibility if Government needs to commence
different sections of the Act on different days.
Part 2 Residential Tenancy Act 1997 Amended
Clause 3: Principal Act
Provides that the Residential Tenancy Act 1997
is to be referred to as the Principal Act.
Clause 4: Section 3 amended (Interpretation)
`Director of Housing' is inserted as it forms
a key part of the definition of social housing.
`Domestic partner' is inserted to assist in
the interpretation of `member of the family'
that is inserted into section 42 of the Act by
clause 20 of this Bill.
The definition of `Essential service' is
amended to make it clear that tap washers and
fuses fall within this definition and are the
responsibility of the owner but the definition
does not include fuses when contained in a
meter box and not light globes that are
inaccessible.
`inaccessible light globes or light tubes'
are defined.
`social housing' is defined to include a range
of housing forms that was originally the
preserve of public housing.
Clause 5: Section 8 amended (General functions
and powers of Commissioner)
Amendments to this section expand and clarify
the existing functions and scope of the
Residential Tenancy Commissioner to include:
applications under sections 23 or
36A(unreasonable rent increases and
orders for repairs); or
other functions conferred under this Act.
Clause 6: Section 11 amended (Expiry)
Clause 7: Section 12 amended (Extension and
renewal)
The amendments to sections and 11 and 12
need to be read together to have meaning.
At present, sections 11 and 12 together
provide that:
An agreement expires on the date fixed
in the agreement or on a date agreed to
between the parties);
However, where an agreement for a
fixed term expires and the tenants
continue to occupy the premises, the
agreement becomes an agreement of no-
fixed term, 28 days after the day of
expiry.
There is some ambiguity that arises
because of the current drafting of these
sections and the revised sections both
make a policy change and clarify the
meaning of these sections.
The amended sections 11 and 12 provide that:
An agreement expires on the date fixed
in the agreement or on a date agreed
between the parties;
However, where an agreement for a
fixed term expires and the tenants
continue to occupy the premises, the
agreement becomes an agreement of no-
fixed term, on the day after the day of
expiry.
The automatic conversion of a fixed term
agreement to an agreement of no fixed
term does not apply where:
o a notice to vacate has been served
by the owner under section 38; or
o a notice to terminate has been
served by the tenant under section
42.
Clause 8: Section 16B inserted
This provision deals with rent bidding and
requires that when property is advertised for
rent it is advertised at a fixed price. This
means that bracket pricing is prohibited and an
owner or agent must not invite a prospective
tenant to make bids for the rental on the
property.
This amendment does not intend to prohibit
advertising that a property is for rent by
placing a billboard on the property.
Clause 9: Section 17 amended (Money other than
rent)
The amendment to this section will prohibit a
rent collection agency from charging fee for
the collection of rent. The provision will not
apply to deposit taking institutions that charge
fees for banking transactions but will mean that
where an owner appoints another party to
collect the rent, that party cannot charge a fee
directly to the tenant for that service. The
owner is also prohibited under this section for
charging such a fee.
Clause 10: Section 20 amended (Increase in rent)
This section as amended will prevent a rent
increase from occurring more frequently than
at 12 month interval and only following 60
days' notice of the intention to increase the
rent.
Rent for social housing can be increased at any
time after 60 days' notice. Social housing rent
is only increased every 12 months as a matter
of public policy.
Clause 11: Section 23 amended (Unreasonable
increase)
This amendment transfers the existing power
for a Magistrate to review an increase in rent
because it is unreasonable from the
Magistrates Court to the Residential Tenancy
Commissioner. An application can be made to
the Commissioner within 60 days after the
tenant receives notice from the owner of the
increase. A decision made by the
Commissioner can be reviewed on appeal to
the Magistrates Court.
Clause 12: Section 31A inserted
This provision makes clear that where an
object is required to be repaired under the Act
and is subsequently not able to be repaired,
then it must be replaced. The reason for this
inclusion is to prevent avoidance of
maintenance obligations where it is not
possible to repair an object.
The section also gives guidance as to the
standard that must be met by a replacement
item to satisfy the obligation to repair under
the Act.
Clause 13: Section 32 amended (General repairs
and maintenance)
This amended section provides that the
obligation to maintain the property needs to
read in the context of Part 3B. This means
that certain standards must be met and
maintained which are more than just
maintaining what existed on commencement of
the tenancy.
This amendment also provides that where
maintenance is required to a cooking stove,
the repair must be made in 14 days, not 28
days.
Clause 14: Section 33 amended (Urgent repairs)
This amended section gives clarity to the
meaning of `functional' under the Act in
relation to water and sewerage services,
electricity services, heating services, cooking
stoves, and hot-water services. Where
essential services are not `functional' then it
becomes an `urgent repair' which requires
immediate attention by the property owner.
Clause 15: Section 36A substituted
This provision provides that a tenant may apply
to the Commissioner for an order for repairs
to be carried out by the owner. The section
provides that a fee can be charged and details
the procedure that can be followed by the
Commissioner in determining an application
and making an order.
Clause 16: Part 3B inserted
This part inserts provisions that relate to
minimum standards for premises. The new
sections are as follows:
36I Premises to be weatherproof and
structurally sound
This provision requires that a property is
weatherproof and in a proper state of
structural repair at the beginning of a tenancy
and continues to be so during the term of any
agreement.
A penalty applies for renting a property that does
not comply with this section.
36J Cleanliness and good repair
This provision requires premises to be clean at
the beginning of a property and must be in
good repair.
Where a property ceases to be in good repair,
the owner must take action to rectify any
issues. The owners obligations do not apply
where the problem arises because an action of
the tenant.
A penalty applies for renting a property that does
not comply with this section.
36K Bathrooms, toilets and laundries
to be provided
This provision requires that each premise has a
flushable toilet that is connected to an
appropriate waste management system. The
toilet must be contained in a room that used
solely for the purpose of toilet use or is
contained in a bathroom. The provision also
specifies requirements for ventilation.
The provision requires each property to
contain a separate bathroom which is private
and contains either a bath or shower and a
washbasin that is connected to hot and cold
water.
A penalty applies for renting a property that does
not contain these facilities.
36L Cooking facilities
This provision requires that each rental
property contains a kitchen sink connected to
a hot and cold water supply. Each property
must also contain a stovetop and a functioning
oven.
A penalty applies for renting a property that does
not contain these facilities.
36M Electricity and heating
Electricity
This provision requires that an electricity
supply is available at the premises. An
alternate functioning device may also be
provided to supply electricity such as a
generator.
All of the wires and power points at the
property must function unless specifically listed
as not functioning on the condition report.
Every room, other than a room specifically
designated as a storage room or a garage, must
have adequate natural or artificial light.
Heating
This provision requires an owner to provide
fixed heating in the main living area of
residential premises. Compliant heating can be
provided by electricity, gas, a heat pump, a
wood heater or another devise that is
prescribed. A property can have an open
fireplace but this does qualify as complying with
this section.
36N Window covering for privacy
This provision requires that a residential
premise must be fitted with window covering
in each room that is likely to be used as a
bedroom or a living area. The section does
not apply to social housing.
36O Ventilation
This provision outlines the requirement of an
owner to ensure adequate ventilation of
premises, taking into consideration the
requirements and function of each room.
36P Exemption from requirements of
provision of this part
The Director may specify by notice to an
owner that premises or a class of premises are
exempt from Part 3B of the Act.
Clause 17: Section 37 amended (Termination of
agreement)
This provision clarifies existing law by making it
clear that a residential tenancy agreement is
terminated on the making a closure order
under the Public Health Act 1997 or on the
death of the sole tenant of premises.
Clause 18: Section 38 amended (Notice of
termination by tenant)
This provision allows a tenant of a fixed term
agreement to give notice of their intention to
terminate an agreement on the expiry of the
agreement. This notice can be served on the
owner no more than 60 days before the expiry
date.
Clause 19: Section 39 amended (Effect of notice of
termination)
Where a tenant gives notice under section 38
to terminate a fixed term agreement on expiry,
the notice takes effect 14 days after the notice
is served but not before the expiry of the
agreement.
Under the current Act, the tenant can leave on
the expiry date without notifying the owner.
This amendment means that a tenant must give
14 days notice before ending a fixed term
agreement.
Clause 20: Section 42 amended (Notice to vacate
by owner)
The amended sections achieve a number of
changes including:
removing the 28 day buffer period after
the expiry of a fixed term agreement;
allowing notice to be given where
premises of a non-fixed term are to be
used by members of the owners family;
clarifying when a notice can be given
where premises of a non-fixed term are
to be sold or renovated;
allowing notice to be given where a
tenant of social housing exceeds the
income or asset threshold;
allowing notice to be given where a
tenant of social housing no longer
qualifies because of under occupancy; and
allowing notice to be given where a
tenant of social housing no longer needs
services provided for a person with a
disability.
Clause 21: Section 43 amended (Effect of notice to
vacate)
The amended section updates the relevant
time periods in which a notice to vacate must
prescribe.
Clause 22: Section 45 amended (Order for vacant
possession)
This amended section allows a Magistrate to
decline to make an order for vacant possession
where the making of the order would result in
hardship for the tenant, where the premises
falls within the definition of social housing.
The amended section also allows a Magistrate
to proceed with an order for vacant
possession even where the date specified in
the notice is incorrect. This means that where
a mistake is made in a notice, the notice is not
disqualified simply because of this error.
Clause 23: Section 49B amended
This provision makes it clear that the rights of
a tenant under an agreement do not transfer
to any heirs or successors on the death of a
tenant.
Clause 24: Section 55A inserted
This provision requires an owner to get
written consent to display to the public a
photograph of the premises. This will prevent
photographs of tenant's possessions from being
identified in advertisements in print or on the
internet. Photos of personal possessions have
the potential to create a security risk by
identifying goods or the identity of the tenant.
Clause 25: Section 57 amended (Locks and security
devices)
This provision inserts penalty provisions after
subsection (1), subsection (1A) subsection
(2)(b) and subsection (5).
The provision makes the requirement for
locks in boarding premises clearer by stepping
out different requirements for the tenant's
room, the bathroom and toilet facilities and
the entrance to the premises.
The provision also provides that a tenant may
add, alter or remove a lock or security device
without permission where there is a relevant
Family Violence Order.
Clause 26: Section 62 amended (Notification of
name and address)
This provision inserts penalties after
subsections (1), (2), (3) and (4). As the
requirements under these sections are
mandatory requirements, a penalty is
appropriate for a failure to comply.
Clause 27: Sections 68B and 68C inserted
General transitional provisions
These provisions make arrangement for a
transitional implementation of changes to the
Principal Act that are to be made by this Bill.
The intent of the transitional arrangements are
that where new contracts are made before the
commencement of changes to section 11 or
section 12, these changes should not take
effect until after 12 months. A cut off of 12
months is provided as an open ended
arrangement this would mean that the new
provisions would not apply at all to some
agreements.
Where the new provisions relate to changes
to sections about expiry, a 14 month cut off is
provided. Although the new provisions
require longer notice of 42 days, notice cannot
be given until 12 months after commencement
of section 11 and section 12. The 14 month
period after commencement allows notice to
be given under the new provision.
New section 16B will apply only to
advertisements placed after the
commencement of that section.
New section 3A will not apply to agreements
entered into before the commencement of
that section until after 12 months.
New section 20 and 23 will not apply to
agreements entered into before the
commencement of that section until after 12
months.
New section 38 and 39 will not apply to
agreements entered into before the
commencement of that section until after 12
months.
New section 38 and 39 will not apply to the
expiry in relation to agreements entered into
before the commencement of that section
until after 14 months.
New sections 42, 43, and 45 will not apply to
agreements or a notice to vacate in relation to
agreements entered into before the
commencement of those sections until after
12 months.
Section 49B will not apply before the
commencement of that section.
The amendments made to section 57 do not
apply until 12 months after commencement of
those sections where the agreements are
entered into before the commencement of
these amendments.
Transitional provisions relating to new
standards
In relation to minimum standards, the
following transitional arrangement applies:
Where an agreement is made before
commencement of section 36I the
provision does not apply to that
agreement for 3 years.
Where an agreement is made after the
commencement of section 36I the
section does not apply to that agreement
for 12 months after commencement.
Section 36J(1) does not apply to
agreement entered into within 30 days
after commencement but applies to all
agreements after that date.
Where a new agreement is made after
the commencement of section 36J(2) the
section does not apply to that agreement
for 12 months after commencement.
Where a new agreement is made after
the commencement of section 36J(3) the
section does not apply to that agreement
for 3 years after commencement.
Where a new agreement is made before
commencement of sections 36K, 36L,
36M, 36N 0r 36O, the provision do not
apply to that agreement for 3 years.
Where a new agreement is made before
commencement of sections 36K, 36L,
36M, 36N 0r 36O within 12 months the
provisions do not apply to those
agreements for 3 years.
Part 3 Land Titles Act 1980 Amended
Clause 28: Principal Act
Defines the Principal Act as the Land Titles Act
1980.
Clause 29: Section 164 amended (Mortgagee,
encumbrance or lessor may obtain
possession in certain case)
Section 146(6A) of the Land Titles Act is
amended to be consistent with amendments to
section 43 of the Residential Tenancy Act 1997.
Part 4 Concluding Provisions
Clause 30: Repeal of Act
Provides that this amendment Act is repealed
365 days from the day on which all of the
provisions of this Act commence.