New South Wales: Residential Tenancies Act 2010 (NSW)

Residential Tenancies Act 2010 No 42 An Act with respect to the rights and obligations of landlords and tenants, rents, rental bonds and other matters relating to residential tenancy agreements; and for other purposes. Part 1 Preliminary Division 1 General 1 Name of Act This Act is the Residential Tenancies Act 2010. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— acceptable behaviour agreement—see section 138. apprehended violence order has the same meaning as it has in the Crimes (Domestic and Personal Violence) Act 2007 and includes a provisional, interim and final apprehended violence order. approved form means the form approved from time to time by the Secretary. Board means the Rental Bond Board constituted under this Act. break fee—see section 107. business day means a day that is not— (a) a Saturday or Sunday, or (b) a public holiday or bank holiday throughout the State. co-tenant means a tenant who is one of 2 or more tenants under a residential tenancy agreement. Department means the Department of Customer Service. domestic violence offence has the same meaning as it has in the Crimes (Domestic and Personal Violence) Act 2007. exercise a function includes perform a duty. fixed term agreement means a residential tenancy agreement for a tenancy for a fixed term. function includes a power, authority or duty. give includes cause to give. holding fee means an amount paid or required to be paid to a person for not letting premises pending the making of a residential tenancy agreement. investigator means an investigator appointed under section 18 of the Fair Trading Act 1987. landlord means— (a) the person who grants the right to occupy residential premises under a residential tenancy agreement, or (b) a successor in title to the residential premises whose interest is subject to the interest of the tenant, or (c) a tenant who has granted the right to occupy residential premises to a sub-tenant, and includes a prospective landlord. landlord's agent means a person who acts as the agent of a landlord and who (whether or not the person carries on any other business) carries on business as an agent for— (a) the letting of residential premises, or (b) the collection of rents payable for any tenancy of residential premises. Note. A person who acts as such an agent is required to be licensed under the Property and Stock Agents Act 2002. periodic agreement means a residential tenancy agreement that is not a fixed term agreement. premises includes a moveable dwelling within the meaning of the Local Government Act 1993. public holiday means a day appointed under the Public Holidays Act 2010 or another Act as a public holiday. rent means an amount payable by a tenant under a residential tenancy agreement for the right to occupy premises for a period of the agreement. rental bond—see section 157. residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence. Note. Land on which there is no residence cannot be subject to a tenancy or other provisions under this Act. residential tenancy agreement—see section 13. residential tenancy database—see section 209. Secretary means— (a) the Commissioner for Fair Trading, Department of Customer Service, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department. separately metered means that there is, in respect of residential premises, a meter— (a) that satisfies an Australian Standard prescribed by the regulations (if any) dealing with electrical, gas, oil or water metering equipment, and (b) that has been installed in accordance with the manufacturer's instructions for installation or industry practice, and (c) that measures the quantity of electricity, gas, oil or water that is supplied to, or used at, only those residential premises, and (d) that enables a separate bill to be issued by the supplier for all charges for the supply and use of the electricity, gas, oil or water at those residential premises, and (e) if the meter is to measure the supply of electricity—in respect of which an NMI, within the meaning of the National Energy Retail Law (NSW), has been assigned, and (f) if the meter is to measure the supply of gas—in respect of which an MIRN or a delivery point identifier, within the meaning of the National Energy Retail Law (NSW), has been assigned. sign includes execution by a corporation in any manner permitted by law. social housing premises—see section 136. social housing provider—see section 136. social housing tenancy agreement—see section 136. tenancy means the right to occupy residential premises under a residential tenancy agreement. tenant means— (a) the person who has the right to occupy residential premises under a residential tenancy agreement, or (b) the person to whom such a right passes by transfer or operation of the law, or (c) a sub-tenant of a tenant, and includes a prospective tenant. termination notice—see section 80. termination order—see section 80. Tribunal means the Civil and Administrative Tribunal. water usage charge for residential premises means that part of a water charge that is based on the volume of water supplied to the premises. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 4 Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. 5 (Repealed) Division 2 Application of Act 6 Act applies to existing and future residential tenancy agreements This Act applies to residential tenancy agreements in respect of residential premises whether made before or after the commencement of this section. 7 Premises to which Act does not apply This Act does not apply in respect of the following premises— (a) premises to which the Landlord and Tenant (Amendment) Act 1948 applies, (b) premises used to provide residential care or respite care within the meaning of the Aged Care Act 1997 of the Commonwealth, (c) serviced apartments, that is, buildings or parts of buildings used to provide self-contained tourist and visitor accommodation that are regularly cleaned by or on behalf of the owner or manager, (d) premises used as a hotel or motel, (e) premises used as a backpackers' hostel, (f) a hospital or nursing home, (g) any part of a club used for the provision of temporary accommodation, (h) premises used for residential purposes, if the predominant use of the premises is for the purposes of a trade, profession, business or agriculture. 8 Agreements to which Act does not apply (1) This Act does not apply to the following agreements— (a) occupation agreements to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies, (b) residence contracts within the meaning of the Retirement Villages Act 1999, (ba) site agreements within the meaning of the Residential (Land Lease) Communities Act 2013, (bb) short-term rental accommodation arrangements, within the meaning of section 54A of the Fair Trading Act 1987, under which the person given the right to occupy the residential premises to which the arrangement relates does not occupy the premises as the person's principal place of residence, (c) an agreement under which a person boards or lodges with another person, (d) an agreement under which a person resides in refuge or crisis accommodation of a kind prescribed by the regulations, (e) leases and licences under the Crown Land Management Act 2016, (f) an agreement for the sale of land that confers a right to occupy residential premises on a party to the agreement, (g) an agreement that arises under a term of a mortgage and confers a right to occupy residential premises on a party to the mortgage, (h) (Repealed) (i) an agreement that arises under a company title scheme under which a group of adjoining or adjacent premises is owned or leased by a corporation each of whose shareholders has, by virtue of his or her shares, an exclusive right to occupy one or more of the residential premises, (j) an agreement having a term, together with the term of any further agreement that may be granted under an option in respect of it, that is equal to or exceeds 99 years. (2) (Repealed) 8A Application of Act to premises This Act applies to any agreement to rent premises anywhere, including in a caravan park regulated under the Local Government Act 1993 or a community within the meaning of the Residential (Land Lease) Communities Act 2013. 9 Employee and caretaker arrangements (1) An agreement or arrangement under which a person is given the right to occupy premises for the purpose of a residence in return for, or as part of remuneration for, carrying out work in connection with the premises or the person's employment is taken to be a residential tenancy agreement. (2) This section applies even if the premises are part of premises referred to in section 7 or other premises exempted from this Act by the regulations, (3) However, this section does not apply to a person employed as a manager or another full-time employee in a community within the meaning of the Residential (Land Lease) Communities Act 2013. 10 Application of Act to occupants in shared households A person who occupies residential premises that are subject to a written residential tenancy agreement, is not named as a tenant in the agreement and who occupies the premises together with a named tenant is a tenant for the purposes of this Act only if— (a) a tenant under that agreement transfers the tenancy to the person or the person is recognised as a tenant (see Part 4), or (b) the person is a sub-tenant of a tenant under a written residential tenancy agreement with that tenant. Note. Boarders and lodgers are not covered by this Act (see section 8(1)(c)). An occupier may be recognised as a tenant (see sections 77 and 79). 11 Declaration by Tribunal The Tribunal may, on application by the Secretary or another person, make an order declaring that a specified agreement is, or is not, a residential tenancy agreement to which this Act applies or that specified premises are, or are not, premises to which this Act applies. Note. Under section 195, the Secretary may intervene in proceedings before the Tribunal that are brought by another person. 12 Exemptions from operation of Act (1) The regulations may exempt from the operation of this Act or the regulations or any specified provision of this Act or the regulations any specified person, agreement or premises or any specified class of persons, agreements or premises. (2) An exemption may be unconditional or subject to conditions. Part 2 Residential tenancy agreements Division 1 General provisions relating to agreements 13 Agreements that are residential tenancy agreements (1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence. (2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing. (3) An agreement may be a residential tenancy agreement for the purposes of this Act even though— (a) it does not grant a right of exclusive occupation, or (b) it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities. Note. See section 8 for agreements that are not covered by this Act. Section 7 sets out premises not covered by this Act. (4) For the purpose of determining whether an agreement is a residential tenancy agreement, it does not matter that the person granted the right of occupation is a corporation if the premises are used (or intended for use) as a residence by a natural person. 14 Landlord's obligation to ensure written residential tenancy agreement (1) The landlord under a residential tenancy agreement must ensure that the agreement is in writing at the commencement of the agreement. (2) This section does not— (a) impose any obligation on a tenant to prepare a written residential tenancy agreement, or (b) affect the enforceability of a residential tenancy agreement that is not in writing or is only partly in writing. (3) If a landlord fails to comply with this section— (a) the rent under the residential tenancy agreement must not be increased during the first 6 months of the tenancy, and (b) the landlord is not entitled to terminate the residential tenancy agreement under section 85 during the first 6 months of the tenancy. Note. The Tribunal may order a landlord to enter into a written residential tenancy agreement (see section 16). 15 Standard residential tenancy agreements (1) Standard form may be prescribed The regulations may prescribe a standard form of residential tenancy agreement. (2) The regulations may provide for the following— (a) the terms of the agreement, (b) more than one standard form of residential tenancy agreement for use for different classes of residential premises, agreements or parties, (c) the addition of clauses to, or the omission or variation of terms contained in, a standard form of residential tenancy agreement in specified circumstances, (d) the application of terms of standard forms of residential tenancy agreement to agreements entered into before the regulations prescribing those standard forms took effect. (3) Terms to be consistent with Act A standard form of residential tenancy agreement must be consistent with this Act and the regulations. (4) Variation of standard form A residential tenancy agreement for which a standard form is prescribed may include additional terms, but only if— (a) the terms do not contravene this Act or the regulations or any other Act, and (b) the terms are not inconsistent with the terms set out in the standard form. (5) Residential tenancy agreement taken to include standard terms A residential tenancy agreement of a kind for which a standard form is prescribed is taken to include the terms of the standard form. (6) This section is subject to this Act. Note. Section 20 allows terms otherwise included by this Act to be excluded or modified in residential tenancy agreements having a fixed term of 20 years or more. 16 Written residential tenancy agreements—Tribunal orders (1) The Tribunal may, on application by a tenant, order the landlord to prepare and enter into a written residential tenancy agreement. (2) The order may— (a) specify the terms of the agreement, and (b) specify a commencement date for the agreement that occurred before the order was made. (3) The Tribunal may make an order under this section only if it is satisfied that the landlord and tenant are subject to an existing residential tenancy agreement that is not in writing or is only partly in writing and that the tenant is not holding over under a previous written fixed term agreement. 17 Certain unexecuted residential tenancy agreements enforceable (1) If a residential tenancy agreement has been signed by a tenant and given to the landlord or a person on the landlord's behalf and has not been signed by the landlord— (a) acceptance of rent by or on behalf of the landlord without reservation, or (b) any other act of part performance of the agreement by or on behalf of the landlord, gives to the document the same effect it would have if it had been signed by the landlord on the first day in respect of which rent was accepted or on the day on which such an act was first performed. (2) This section applies despite section 54A of the Conveyancing Act 1919. 18 Fixed term agreements to continue as periodic agreements after end of fixed term A fixed term agreement that continues after the day on which the fixed term ends continues to apply— (a) as if the term of the agreement were replaced by a periodic agreement, and (b) on the same terms as immediately before the end of the fixed term. Note. A landlord and tenant may also enter a further agreement for a further fixed term tenancy. Division 2 Terms of residential tenancy agreements 19 Prohibited terms (1) A residential tenancy agreement must not contain a term of a kind set out in this section or prescribed by the regulations for the purposes of this section. (2) Terms having the following effects must not be included in a residential tenancy agreement— (a) that the tenant must have the carpet professionally cleaned, or pay the cost of such cleaning, at the end of the tenancy, (b) that the tenant must take out a specified, or any, form of insurance, (c) exempting the landlord from liability for any act or omission by the landlord, the landlord's agent or any person acting on behalf of the landlord or landlord's agent, (d) that, if the tenant breaches the agreement, the tenant is liable to pay all or any part of the remaining rent under the agreement, increased rent, a penalty or liquidated damages, (e) that, if the tenant does not breach the agreement, the rent is or may be reduced or the tenant is to be or may be paid a rebate of rent or other benefit. Note. Section 15 also prohibits certain additional terms from being included in a residential tenancy agreement for which a standard form is prescribed. (3) However, a residential tenancy agreement may include a term that requires the carpet to be professionally cleaned or requires the tenant to pay the cost of such cleaning, at the end of the tenancy, if the landlord permits the tenant to keep an animal on the residential premises. 20 Mandatory terms may be varied for long term leases (1) A fixed term agreement for a fixed term of 20 years or more may— (a) provide that terms that would otherwise be included in the agreement by this Act or the regulations (mandatory terms) do not apply, or are varied as provided by the agreement, and (b) include terms that would otherwise be prohibited by this Act or the regulations. (2) However, any such agreement must not exclude or modify any of the following— (a) any term included by this Act relating to the payment of rates, taxes and charges by the landlord, (b) the prohibition against more than one rent increase a year under a fixed term agreement for a fixed term of more than 2 years, (c) any right under this Act to make an application to the Tribunal, (d) the grounds on which a residential tenancy agreement may be terminated under this Act, (e) any other term prescribed by the regulations for the purposes of this section. (3) The Tribunal may, on application by a tenant under a fixed term agreement for a fixed term of 20 years or more, make an order declaring that— (a) a mandatory term does form part of the agreement, or (b) a prohibited term is not included in an agreement, or (c) a mandatory or prohibited term included in the agreement is varied as specified by the declaration. (4) The Tribunal may make an order if it is of the opinion that the inclusion or variation of a term, or failure to include a term, is unconscionable, unjust, harsh or oppressive. (5) This section has effect despite any other provision of this Act. 21 Inconsistent and prohibited terms void (1) A term of a residential tenancy agreement is void to the extent to which it— (a) is inconsistent with any term included in the agreement by this Act or the regulations, or (b) is prohibited by this Act or the regulations. (2) The Tribunal may, on application by a landlord or a tenant, make an order declaring that a term of a residential tenancy agreement is void or partly void if satisfied that the term is inconsistent with any term included in the agreement by this Act or the regulations or is prohibited by this Act or the regulations. 22 Offence relating to terms of residential tenancy agreements A landlord, or landlord's agent, must ensure that a written residential tenancy agreement— (a) is in the standard form (if any) prescribed by the regulations for the agreement and contains any other terms required to be included by this Act or the regulations, and (b) does not contain any terms prohibited by this Act or the regulations. Maximum penalty—20 penalty units. Part 3 Rights and obligations of landlords and tenants Division 1 Pre-agreement matters 22A Prohibition on certain matters relating to advertising or soliciting amounts of rent (1) A landlord or landlord's agent must not advertise or otherwise offer residential premises for rent unless a fixed amount of rent for the premises is stated in the advertisement or offer. Maximum penalty— (a) for an individual—50 penalty units, or (b) otherwise—100 penalty units. (2) A person does not contravene subsection (1) merely by placing a sign on or near the residential premises for rent without stating the amount of rent for the premises on the sign. (3) A person must not solicit or otherwise invite an offer of an amount of rent for residential premises, whether directly or indirectly, that is higher than the advertised amount of rent for the premises. Maximum penalty— (a) for an individual—50 penalty units, or (b) otherwise—100 penalty units. (4) The regulations may provide for matters relating to the provision of information by a person, at the times and in the way and form approved by the Secretary, for the purposes of monitoring the operation of this section. 23 Limit on amounts payable by tenant before agreement (1) A person must not require or receive from a tenant, before or when the tenant enters into the residential tenancy agreement, a payment other than the following— (a) a holding fee, (b) rent, (c) a rental bond, (d) an amount for the fee, if any, payable for registration of a residential tenancy agreement under the Real Property Act 1900. Maximum penalty—20 penalty units. (2) Without limiting this section, a person must not require or receive from a tenant an amount for— (a) the preparation of a written residential tenancy agreement, or (b) the conduct of a background check. Maximum penalty—20 penalty units. (3) To avoid doubt, this section applies in relation to a tenant whether or not the tenant— (a) applies for tenancy of the residential premises, or (b) enters into a residential tenancy agreement for the residential premises. Note— A tenant is defined in this Act as including a prospective tenant. 24 Holding fees (1) A person must not require or receive from a tenant a holding fee unless— (a) the tenant's application for tenancy of the residential premises has been approved by the landlord, and (b) the fee does not exceed 1 week's rent of the residential premises (based on the rent under the proposed residential tenancy agreement). Note. A tenant is defined in this Act as including a prospective tenant. (2) A person who receives a holding fee must give the tenant a written receipt setting out the following— (a) the amount paid and the date on which it was paid, (b) the address of the residential premises, (c) the names of the landlord and the tenant. (3) If a tenant has paid a holding fee, the landlord must not enter into a residential tenancy agreement for the residential premises with any other person within 7 days of payment of the fee (or within such further period as may be agreed with the tenant) unless the tenant notifies the landlord that the tenant no longer wishes to enter into the residential tenancy agreement. (4) A holding fee may be retained by the landlord only if the tenant enters into the residential tenancy agreement or refuses to enter into the residential tenancy agreement. (5) Despite subsection (4), a holding fee must not be retained by the landlord if the tenant refuses to enter into the residential tenancy agreement because of a misrepresentation or failure to disclose a material fact by the landlord or landlord's agent. (6) If a residential tenancy agreement is entered into after payment of a holding fee, the fee must be paid towards rent. Maximum penalty—20 penalty units. 25 Disputes about holding fees (1) The Tribunal may, on application by a person who has paid, or required or received payment of, a holding fee, make an order in relation to the payment or repayment of the fee. (2) A person may make an application under this section whether or not the prospective residential tenancy agreement was executed. 26 Disclosure of information to tenants generally (1) False representations A landlord or landlord's agent must not induce a tenant to enter into a residential tenancy agreement by any statement, representation or promise that the landlord or agent knows to be false, misleading or deceptive or by knowingly concealing a material fact of a kind prescribed by the regulations. (2) Disclosure of sale, mortgagee actions A landlord or landlord's agent must disclose the following to the tenant before the tenant enters into the residential tenancy agreement— (a) any proposal to sell the residential premises, if the landlord has prepared a contract for sale of the residential premises, (b) that a mortgagee is taking action for possession of the residential premises, if the mortgagee has commenced proceedings in a court to enforce a mortgage over the premises. (2A) Disclosure or provision of strata scheme information If the residential tenancy agreement relates to residential premises that comprise or include a lot in a strata scheme (within the meaning of the Strata Schemes Management Act 2015)—a landlord or landlord's agent must, before the tenant enters into the residential tenancy agreement— (a) give the tenant a copy of the by-laws for the strata scheme, and (b) if a strata renewal committee is currently established in relation to the strata scheme under the Strata Schemes Development Act 2015, disclose that fact to the tenant. (3) Subsections (2) and (2A)(b) do not apply to a landlord's agent unless the agent is aware of the matters required to be disclosed. (4) Information statement to be given A landlord or landlord's agent must give a tenant an information statement in the approved form before the tenant enters into the residential tenancy agreement. Maximum penalty—20 penalty units. 27 Names and addresses to be provided (1) A landlord must give the tenant written notice of the following matters before or when the tenant enters into the residential tenancy agreement or include the following matters in the agreement— (a) the name and telephone number or other contact details of the landlord, (a1) if the landlord does not ordinarily reside in New South Wales, the State, Territory or, if not in Australia, country in which the landlord ordinarily resides, (a2) if there is a landlord's agent, the name, telephone number and business address of the landlord's agent, (b) if there is no landlord's agent, the business address, or residential address, and telephone number, of the landlord, (c) if the landlord is a corporation, the name and the business address of the corporation. (2) A landlord must notify the tenant in writing within 14 days of any change during the residential tenancy agreement in the information provided under this section. (3) This section is a term of every residential tenancy agreement. 28 Tenant entitled to copy of residential tenancy agreement (1) The landlord or landlord's agent must give the tenant a copy of the residential tenancy agreement before or when the tenant gives the signed copy of the agreement to the landlord or landlord's agent. (2) If that copy is not signed by the landlord, the landlord or landlord's agent must give the tenant a copy of the residential tenancy agreement signed by both the landlord and tenant, as soon as practicable after it is so signed. Maximum penalty—20 penalty units. 29 Condition reports (1) A condition report relating to the condition of residential premises on a day specified in the report must be completed by or on behalf of a landlord before or when the residential tenancy agreement is given to the tenant for signing. (2) The landlord or landlord's agent must, before or at the time the tenant signs the residential tenancy agreement, give to the tenant 2 copies, or one electronic copy, of the completed condition report. Maximum penalty—20 penalty units. (3) The tenant must complete and give one copy of the condition report to the landlord or landlord's agent not later than 7 days after taking possession of the residential premises and both the landlord and the tenant must retain a copy of the report. (3A) Subsection (3) does not apply to the tenant if the landlord or landlord's agent has failed to give to the tenant copies of the condition report in accordance with this section. (4) At, or as soon as reasonably practicable after, the termination of a residential tenancy agreement, the landlord or landlord's agent and the tenant must complete the copy of the condition report retained by the landlord or the tenant under this section, in the presence of the other party. (5) It is not a breach of subsection (4) for the condition report to be completed in the absence of the other party if the party completing the report has given the other party a reasonable opportunity to be present when it is completed. (6) A condition report is to be in the form prescribed by the regulations and may be included in a prescribed standard form of residential tenancy agreement. 30 Condition report evidence of condition of premises (1) A condition report that is signed by both the landlord and the tenant is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the day specified in the report. (2) This section does not apply— (a) to any matter that could not have reasonably been discovered on a reasonable inspection of the premises, or (b) to any statement in the report about which the tenant makes a written dissenting comment on the copy of the report completed by the tenant and retained by the landlord. 31 Remedies for disputes about condition reports The Tribunal may, on application by a landlord or tenant, make the following orders— (a) an order that a condition report must be amended, (b) an order that a condition report is not required to be amended. 31A Landlord's information statement (1) A landlord must not enter into a residential tenancy agreement unless the landlord or the landlord's agent has signed an acknowledgment on the residential tenancy agreement that the landlord has read and understood the contents of an information statement in the approved form that sets out the landlord's rights and obligations under this Act and any other Act or law in relation to the proposed residential tenancy (a rights and obligations information statement). Maximum penalty—20 penalty units. (2) A landlord's agent must not sign an acknowledgment on the residential tenancy agreement unless the landlord's agent has first obtained from the landlord a statement in writing that the landlord has read and understood the contents of the rights and obligations information statement. Maximum penalty—20 penalty units. Division 2 Rent and other payments 32 Kinds of payments that tenant may be required to pay for residential tenancy agreement A person must not require or receive from a tenant any payment for or in relation to renewing, extending or continuing a residential tenancy agreement, other than the following— (a) rent, (b) a rental bond, (c) any other amounts or fees prescribed by the regulations. Maximum penalty—20 penalty units. 33 Payment of rent by tenant (1) A tenant must pay the rent under a residential tenancy agreement on or before the day set out in the agreement. (2) A landlord, or landlord's agent, must not require a tenant to pay more than 2 weeks rent in advance under a residential tenancy agreement or to pay rent for a period of the tenancy before the end of the previous period for which rent has been paid. Note. A tenant may pay more than 2 weeks rent if the tenant wishes to do so. Maximum penalty—10 penalty units. (3) A landlord, or landlord's agent, must not knowingly appropriate rent paid by the tenant for the purpose of any amount payable by the tenant other than rent. Maximum penalty—10 penalty units. (4) This section is a term of every residential tenancy agreement. 34 Acceptance of rent by landlord (1) A landlord must accept payment of unpaid rent by a tenant if— (a) the landlord has given a termination notice on the ground of failure to pay rent under the residential tenancy agreement, and (b) the tenant has not vacated the residential premises. Maximum penalty—10 penalty units. Note. A residential tenancy agreement may generally not be terminated by the Tribunal, or possession of residential premises be recovered, on the ground of failure to pay rent if the tenant repays the rent or complies with an agreement to do so (see section 89). (2) This section is a term of every residential tenancy agreement. 35 Manner of payment of rent (1) A landlord, landlord's agent or other person must not require a tenant to pay rent by a cheque or other negotiable instrument that is post-dated. Maximum penalty—10 penalty units. (2) A landlord or landlord's agent must permit a tenant to pay the rent by at least one means for which the tenant does not incur a cost (other than bank fees or other account fees usually payable for the tenant's transactions) and that is reasonably available to the tenant. Maximum penalty—10 penalty units. (3) A landlord and the tenant may, by agreement, change the manner in which rent is payable under the residential tenancy agreement. (4) This section is a term of every residential tenancy agreement. 36 Rent receipts (1) If rent under a residential tenancy agreement is paid in person (other than by cheque), the person who receives the payment must, when the payment is made, give the person making the payment a rent receipt. (2) If rent under a residential tenancy agreement is paid by cheque, the person who receives the payment must make the receipt available for collection by the tenant or give the receipt to the tenant. (3) A rent receipt is a receipt that contains the following matters— (a) the name of the person who receives the rent or on whose behalf the rent is received, (b) the name of the person paying the rent or on whose behalf the rent is paid, (c) the address of the residential premises for which the rent is paid, (d) the period for which the rent is paid and the date up to which the rent is paid, (e) the date on which the rent is paid, (f) the amount of rent paid. (4) This section does not apply to the New South Wales Land and Housing Corporation or the Aboriginal Housing Office. Maximum penalty—10 penalty units. 37 Rent records (1) A landlord or landlord's agent must keep a record of rent received under a residential tenancy agreement (a rent record). (2) A rent record may be kept in any form, and must contain any particulars, prescribed by the regulations for the purposes of this section. (3) A landlord or landlord's agent must, within 7 days of a written request by the tenant, provide a written statement setting out the particulars of the rent record for a specified period. (4) This section does not require a landlord or landlord's agent to provide a written statement for a period to a person if the landlord or agent has previously provided a written statement for the same period to the person. (5) Subsections (3) and (4) are terms of every residential tenancy agreement. 38 Utility charges payable by tenant (1) A tenant must pay the following charges for the residential premises— (a) all charges for the supply of electricity, gas (except bottled gas) or oil to the tenant at the residential premises if the premises are separately metered, (b) all charges for the supply of bottled gas to the tenant at the residential premises, (c) all charges for pumping out a septic system used for the residential premises, (d) any excess garbage charges relating to the tenant's use of the residential premises, (e) any other charges prescribed by the regulations. (1A) The regulations may exempt a tenant, or class of tenants, in specified circumstances, from the requirement to pay a charge under this section. (2) This section is a term of every residential tenancy agreement. 39 Water usage charges payable by tenant (1) A tenant must pay the water usage charges for the residential premises, but only if— (a) the premises are separately metered or the premises are not connected to a water supply service and water is delivered to the premises by vehicle, and (b) the premises contain water efficiency measures prescribed by the regulations for the purposes of this section, and (c) the charges do not exceed the amount payable by the landlord for water used by the tenant. (2) A tenant is not required to pay the water usage charges unless the landlord gives the tenant a copy of the part of the water supply authority's bill setting out the charges, or other evidence of the cost of water used by the tenant. (3) A landlord must give the tenant not less than 21 days to pay the water usage charges. (4) A tenant is not required to pay the water usage charges if the landlord fails to request payment from the tenant within 3 months of the issue of the bill for those charges by the water supply authority. (5) Subsection (4) does not prevent a landlord from taking action to recover an amount of water usage charges later than 3 months after the issue of a bill for those charges, if the landlord first sought payment of the amount within 3 months after the issue of the bill. (6) A landlord must ensure that the tenant receives the benefit of, or an amount equivalent to, any rebate received by the landlord in respect of any water usage charges payable or paid by the tenant. Note. Tenants under social housing tenancy agreements may be subject to different provisions in relation to the payment of charges for water usage (see Division 3 of Part 7). (7) This section is a term of every residential tenancy agreement. 40 Payment of rates, taxes and certain utility charges by landlord (1) A landlord must pay the following charges for the residential premises— (a) rates, taxes or charges payable under any Act (other than charges payable by the tenant under this Division), (b) the installation costs and charges for initial connection to the residential premises of an electricity, water, gas, bottled gas or oil supply service, (c) all charges for the supply of electricity, gas (except bottled gas) or oil to the tenant at the residential premises that are not separately metered, (d) the costs and charges for the supply or hire of gas bottles for the supply of bottled gas at the commencement of the tenancy, (e) all charges (other than water usage charges) in connection with a water supply service to separately metered residential premises, (f) all charges in connection with a water supply service to residential premises that are not separately metered, (g) all charges for the supply of sewerage services (other than for pump out septic services) or the supply or use of drainage services to the residential premises, (h) any other charges prescribed by the regulations. (1A) The regulations may exempt a landlord, or class of landlords, in specified circumstances, from the requirement to pay a charge under this section. (2) This section is a term of every residential tenancy agreement. 41 Rent increases (1) The rent payable under a residential tenancy agreement may be increased only if— (a) the tenant is given a written notice by the landlord or the landlord's agent specifying the increased rent and the day from which it is payable, and (b) the notice is given at least 60 days before the increased rent is payable. (1A) The rent payable under a residential tenancy agreement— (a) may not be increased within 12 months after the start of the tenancy, and (b) may not be increased more than once in any period of 12 months. (1B) (Repealed) (2) A residential tenancy agreement and a subsequent residential tenancy agreement for the same residential premises are to be treated as a single agreement for the purposes of this section if— (a) the subsequent agreement is— (i) a renewal of the first agreement, or (ii) a replacement of the first agreement, even if it is a different type of residential tenancy agreement, and (b) the landlord is the same for each agreement, and (c) at least 1 tenant is the same for each agreement, and (d) the tenant occupies the residential premises immediately before and immediately after the renewal or replacement. (3) A rent increase is not payable by a tenant unless the rent is increased in accordance with this section or the rent is increased by the Tribunal. (4) The residential tenancy agreement is varied to specify the increased rent from the date the rent is increased in accordance with this section. (5) Notice of a rent increase must be given by a landlord or landlord's agent in accordance with this section even if details of the rent increase are set out in the residential tenancy agreement. (6) Notice of a rent increase may be cancelled or varied (so as to reduce the increase) by a subsequent written notice given to the tenant by or on behalf of the landlord. Any such later notice takes effect from the date on which the earlier notice was to take effect. (7) Notice of a rent increase is not required to be given by a landlord or landlord's agent if the increase arises because of the end of, or a reduction in, a rent reduction. (8) Subsections (1)–(7) are terms of every residential tenancy agreement. (9) A landlord or landlord's agent must not contravene this section. Maximum penalty—20 penalty units. (10) The Tribunal must not make an order that a rent increase is not payable because this section has not been complied with unless the application for the order is made not later than 12 months after the rent is increased. If an application has not been made within that 12-month period, the rent increase is taken to comply with this section. 42 (Repealed) 43 Rent reductions (1) Reduction in goods, services or facilities The tenant may make a written request to the landlord at any time for a reduction in rent if the landlord reduces or withdraws any goods, services or facilities provided with the residential premises, even if those goods, services or facilities are provided under a separate or a previous contract, agreement or arrangement. (2) Premises unusable The rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are— (a) otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or (b) cease to be lawfully usable as a residence, or (c) appropriated or acquired by any authority by compulsory process. (3) Access to purchasers The landlord and tenant may agree to reduce the rent payable for premises during periods when access to the residential premises is required to be given to prospective purchasers of the premises. (4) Effect of section This section does not limit the rights of landlords and tenants to agree to reduce the rent payable under a residential tenancy agreement. (5) This section is a term of every residential tenancy agreement. 44 Tenant's remedies for excessive rent (1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders— (a) an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount, (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount. (2) Time limit for excessive rent increase applications An application for an order that a rent increase is excessive must be made within the period prescribed by the regulations after notice of the increase is given. (3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement. (4) Determination of excessive rent For the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent. (5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive— (a) the general market level of rents for comparable premises in the locality or a similar locality, (b) the landlord's outgoings under the residential tenancy agreement or proposed agreement, (c) any fittings, appliances or other goods, services or facilities provided with the residential premises, (d) the state of repair of the residential premises, (e) the accommodation and amenities provided in the residential premises, (f) any work done to the residential premises by or on behalf of the tenant, (g) when the last increase occurred, (h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent). (6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent— (a) has effect for the period (of not more than 12 months) specified by the Tribunal, and (b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable. Note. A tenant under a social housing tenancy agreement may also apply for an order that rent is excessive if a rent rebate is cancelled (see section 141(1)). 45 Remedies for reduction of rent on frustration of residential tenancy agreement (1) The Tribunal may, on application by the landlord or tenant, make an order determining the amount of rent payable if the rent is abated under section 43(2). (2) The Tribunal may order that— (a) from a specified day, the rent for the residential premises must not exceed a specified amount, and (b) the landlord must repay to the tenant any rent paid by the tenant since the specified day that is in excess of the specified amount. Note. The residential tenancy agreement may also be terminated in these circumstances (see section 109). 46 Contraventions of rent order (1) A person must not demand, require or receive any rent from a tenant exceeding an amount specified by the Tribunal. Maximum penalty—20 penalty units. (2) A court before which proceedings for an offence under this section have been brought, or the Tribunal, on application by a tenant, may (in addition to any other penalty) order the person who committed the offence or any person on whose behalf that person acted to pay to the tenant against whom the offence was committed an amount equal to the amount of any rent unlawfully received from the tenant. 47 Tenant's remedies for repayment of rent and excess charges (1) Requests to landlord A tenant may make a written request to the landlord that the landlord repay to the tenant any rent, or other amounts, paid by the tenant that are not required to be paid under this Act or the residential tenancy agreement. (2) A request may be made during or after the termination of a residential tenancy agreement. (3) A landlord must, within 14 days of a written request by a tenant, repay to the tenant the amount of any rent or other amount paid in excess of the amount payable by the tenant under this Act or the residential tenancy agreement. (4) Tribunal orders A tenant may apply to the Tribunal for an order for the repayment of rent or any other amount paid by the tenant if a written request by the tenant for payment is not complied with by the landlord within 14 days. (5) The Tribunal may order that rent or any other amount be repaid to the tenant if it finds that the rent or amount was not required to be paid by the tenant under this Act or the residential tenancy agreement. 48 Landlord may recover certain rent expenses (1) A tenant must, at the written request of the landlord, pay to the landlord the following amounts— (a) the cost of replacing rent deposit books or rent cards lost by the tenant, (b) the amount of any fees paid to an authorised deposit-taking institution by the landlord as a result of funds of the tenant not being available for rent payment on the due date (such as fees for dishonoured cheques or other account fees). (2) This section has effect despite any other provision of this Division. (3) This section is a term of every residential tenancy agreement. Division 3 Occupation and use of residential premises 49 Occupation of residential premises as residence (1) A landlord must take all reasonable steps to ensure that, at the time of entering into the residential tenancy agreement, there is no legal impediment to the occupation of the residential premises as a residence for the period of the tenancy. (2) A landlord must ensure that the tenant has vacant possession of any part of the residential premises to which the tenant has a right of exclusive possession on the day on which the tenant is entitled to occupy those premises under the residential tenancy agreement. (3) This section is a term of every residential tenancy agreement. 50 Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. Maximum penalty—10 penalty units. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement. 51 Use of premises by tenant (1) A tenant must not do any of the following— (a) use the residential premises, or cause or permit the premises to be used, for any illegal purpose, (b) cause or permit a nuisance, (c) interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant, (d) intentionally or negligently cause or permit any damage to the residential premises, (e) cause or permit a number of persons to reside in the residential premises that exceeds any number specified in the residential tenancy agreement. (2) A tenant must do the following— (a) keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy, (b) notify the landlord of any damage to the residential premises as soon as practicable after becoming aware of the damage. (3) On giving vacant possession of the residential premises, the tenant must do the following— (a) remove all the tenant's goods from the residential premises, (b) leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into, (c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy, (d) remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy, (e) return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant. (4) In this section— residential premises includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant. (5) This section is a term of every residential tenancy agreement. 52 Landlord's general obligations for residential premises (1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. (1A) Without limiting the circumstances in which residential premises are not fit for habitation, residential premises are not fit for habitation unless the residential premises— (a) are structurally sound, and (b) have adequate natural light or artificial lighting in each room of the premises other than a room that is intended to be used only for the purposes of storage or a garage, and (c) have adequate ventilation, and (d) are supplied with electricity or gas and have an adequate number of electricity outlet sockets or gas outlet sockets for the supply of lighting and heating to, and use of appliances in, the premises, and (e) have adequate plumbing and drainage, and (f) are connected to a water supply service or infrastructure that supplies water (including, but not limited to, a water bore or water tank) that is able to supply to the premises hot and cold water for drinking and ablution and cleaning activities, and (g) contain bathroom facilities, including toilet and washing facilities, that allow privacy for the user. (1B) For the purposes of subsection (1A)(a), residential premises are structurally sound only if the floors, ceilings, walls, supporting structures (including foundations), doors, windows, roof, stairs, balconies, balustrades and railings— (a) are in a reasonable state of repair, and (b) with respect to the floors, ceilings, walls and supporting structures—are not subject to significant dampness, and (c) with respect to the roof, ceilings and windows—do not allow water penetration into the premises, and (d) are not liable to collapse because they are rotted or otherwise defective. (1C) The Secretary may exempt any specified premises or any specified class of premises from the operation of all or any part of this section. An exemption may be unconditional or subject to conditions. (2) A landlord must not interfere with the supply of gas, electricity, water, telecommunications services or other services to the residential premises unless the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. (3) A landlord must comply with the landlord's statutory obligations relating to the health or safety of the residential premises. Note. Such obligations include obligations relating to swimming pools under the Swimming Pools Act 1992. (4) This section is a term of every residential tenancy agreement. 53 Sale of residential premises (1) A landlord must give the tenant written notice of the landlord's intention to sell the residential premises not later than 14 days before the premises are first made available for inspection by prospective purchasers. (2) A landlord or the agent of the landlord for the sale of the residential premises must make all reasonable efforts to agree with the tenant as to the days and times when the residential premises are to be periodically available for inspection by prospective purchasers. (3) A tenant must not unreasonably refuse to agree to days and times when the residential premises are to be periodically available for inspection by prospective purchasers. (4) A tenant is not required to agree to the residential premises being available for inspection by prospective purchasers more than twice a week. (5) This section is a term of every residential tenancy agreement. 54 Liability of tenant for actions of others (1) A tenant is vicariously responsible to the landlord for any act or omission by any other person who is lawfully on the residential premises (other than a person who has a right of entry without the tenant's consent) that would have been a breach of the residential tenancy agreement if it had been an act or omission by the tenant. (1A) Subsection (1) does not apply to a tenant who is the victim of a domestic violence offence, or an exempted co-tenant, if the relevant act or omission constitutes or resulted in damage to the residential premises and occurred during the commission of the domestic violence offence. (1B) In this section, an exempted co-tenant means a tenant under the same residential tenancy agreement as the tenant referred to subsection (1A) who is not a relevant domestic violence offender (within the meaning of Division 3A of Part 5) nominated in a document referred to in section 105C(2) and annexed to a domestic violence termination notice (within the meaning of section 105A) for the residential tenancy agreement. (2) This section is a term of every residential tenancy agreement. 54A Limit on liability of tenant for actions of other tenants occurring during domestic violence offences (1) A tenant (the exempted tenant) is not responsible to the landlord for any act or omission by a co-tenant that is a breach of the residential tenancy agreement if— (a) the act or omission— (i) constitutes or resulted in damage to the residential premises, and (ii) occurred during the commission of a domestic violence offence, and (b) the exempted tenant is— (i) the victim of the domestic violence offence, or (ii) an exempted co-tenant. (2) In this section— exempted co-tenant means a person who— (a) is a tenant under the same residential tenancy agreement as the tenant who is the victim of the domestic violence offence, and (b) is not a relevant domestic violence offender (within the meaning of Division 3A of Part 5) nominated in a document referred to in section 105C(2) and annexed to a domestic violence termination notice (within the meaning of section 105A) for the residential tenancy agreement. (3) This section is a term of every residential tenancy agreement. Division 4 Landlord's rights to enter residential premises 55 Access generally by landlord to residential premises without consent (1) A landlord, the landlord's agent or any other person authorised by the landlord may enter residential premises during a residential tenancy agreement without the consent of the tenant, and without giving notice to the tenant, only in the following circumstances— (a) in an emergency, (b) to carry out urgent repairs, (c) if the landlord, landlord's agent or person has made a reasonable attempt to obtain entry with consent and has reasonable cause for serious concern about the health or safety of the tenant or any other person that the landlord, landlord's agent or person believes is on the residential premises, (d) if the landlord forms a reasonable belief that the residential premises have been abandoned, (e) in accordance with an order of the Tribunal. (2) A landlord, the landlord's agent or any other person authorised by the landlord may enter residential premises during a residential tenancy agreement without the consent of the tenant, after giving notice to the tenant, only in the following circumstances— (a) to inspect the residential premises, not more than 4 times in any period of 12 months, if the tenant has been given not less than 7 days written notice each time, (b) to carry out or assess the need for necessary repairs (other than urgent repairs) to, or maintenance of, the residential premises, if the tenant has been given not less than 2 days notice each time, (c) to carry out, inspect or assess the need for work for the purpose of compliance with the landlord's statutory obligations relating to the health or safety of the residential premises, if the tenant has been given not less than 2 days notice each time, (c1) to carry out, inspect or assess the need for repairs to, or replacement of, a smoke alarm installed at the residential premises if the tenant has been given notice in accordance with the regulat