Tasmania: Residential Tenancy Act 1997 (Tas)

Residential Tenancy Act 1997 An Act to regulate tenancies of residential premises [Royal Assent 14 January 1998] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Residential Tenancy Act 1997 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation (1) In this Act – abandoned means abandoned as referred to in section 47 ; agent means – (a) in relation to an owner, a person authorised by the owner to act on behalf of the owner in any matter to which this Act relates and who is not, in relation to the premises of the owner, a residential manager of the premises; or (b) in relation to a tenant, a person authorised by the tenant to act on behalf of the tenant in any matter to which this Act relates; Authority means the Rental Deposit Authority established under section 48K ; boarding premises means a room and any other facilities provided with the room where – (a) the room is occupied as a principal place of residence; and (b) any of the bathroom, toilet or kitchen facilities are shared with other persons – but does not include premises located in a building occupied predominately by – (c) tertiary students; or (d) TasTAFE students within the meaning of the TasTAFE (Skills and Training Business) Act 2021 ; claim form means the form specified in section 27(b) ; commencement day means the day on which this Act commences; Commissioner means the Residential Tenancy Commissioner appointed under section 7 ; condition report means a report referred to in section 26 ; Court means the Magistrates Court exercising its civil jurisdiction in the civil division of that Court established under the Magistrates Court (Civil Division) Act 1992 ; COVID-19 Emergency Act means the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 ; COVID-19 emergency day means the day on which the COVID-19 Emergency Act commences; deposit contributor means a person or organisation, whether public or private, that – (a) is prescribed by the regulations for the purposes of this definition; and (b) has paid to the Authority the whole or any part of a security deposit; Director of Consumer Affairs and Fair Trading means the person appointed as such under the Consumer Affairs Act 1988 ; dispute means a dispute referred to in section 29F ; domestic partner, in relation to an owner, means – (a) the spouse of the owner; or (b) a person who is in a significant relationship, within the meaning of the Relationships Act 2003 , with the owner; dwelling-house has the same meaning as residential premises has in the Homes Tasmania Act 2022 ; early vacation means early vacation as referred to in section 46 ; eligible person has the same meaning as in the Homes Tasmania Act 2022 ; emergency period means the period – (a) beginning on the COVID-19 emergency day; and (b) ending on whichever is the last occurring of the following: (i) the day 120 days after the COVID-19 emergency day; (ii) a day to which the emergency period is extended by one or more orders under section 3A(1) ; (iii) the day on which an order is made under section 3A(4) declaring that the emergency period has ended; essential service means any of the following services: (a) water, sewerage, electricity, or heating, supplied to or within the premises; (b) a cooking stove, or hot-water service, installed within the premises; (c) removal of grey water from premises, including ensuring the effective functioning of any on-site water-treatment facility, but not including pipes, plumbing or other water-disposal or sewage-disposal facilities owned by a council – and includes any tap washers, any light globes or light tubes that are inaccessible light globes or light tubes, and any fuses other than those that are within a meter box and relate to the supply of electricity to the premises; grey water means grey water or sullage as defined in Australia New Zealand Standard AS/NZS 1547:2000 On-site domestic wastewater management; holding agreement means an agreement referred to in section 31(1) ; holding fee means a fee referred to in section 31(2) ; Homes Tasmania means Homes Tasmania established under section 9(1) of the Homes Tasmania Act 2022 ; housing support provider has the same meaning as in the Homes Tasmania Act 2022 ; inaccessible light globes or light tubes means light globes or light tubes that, when in place – (a) are above the height prescribed for the purposes of this definition; or (b) are not reasonably accessible; NDIS participant means a participant within the meaning of the National Disability Insurance Scheme Act 2013 of the Commonwealth; nominated repairer means a person nominated by the owner to carry out repairs to essential services; notice of termination means a notice referred to in section 38 ; notice to vacate means a notice referred to in section 42 ; owner means – (a) a person who holds a legal estate in residential premises; and (b) that person's successors and assigns; and (c) an agent of that person; and (d) a mortgagee who made an application under section 85 of the Land Titles Act 1980 ; and (e) a mortgagee or encumbrancee who gave or left a notice under section 77 of the Land Titles Act 1980 ; payment date means the date on which rent is due under a residential tenancy agreement; payment period means – (a) in respect of the first period of a new residential tenancy agreement, the period starting on the day on which occupancy is first granted under that residential tenancy agreement and ending on the day before the payment date; or (b) in any other case, the period starting on the payment date and ending on the day before the next payment date; registered community housing provider has the meaning it has in the Community Housing Providers National Law (Tasmania) Act 2013 ; rent means a payment payable under a residential tenancy agreement in respect of a period of tenancy; rent assistance means the provision by the Homes Tasmania under section 50 of the Homes Tasmania Act 2022 , or the provision by another social housing provider or a housing support provider, of an amount or amounts – (a) to an eligible person who, under a residential tenancy agreement, is leasing or sub-leasing a dwelling-house; or (b) to a social housing provider or other person who is leasing, or sub-leasing, a dwelling-house to an eligible person under a residential tenancy agreement – for the purpose of paying all, or part of, the eligible person's rent under that agreement; residential manager means a person who enters into a residential management agreement with the owner of residential premises under section 16A ; residential premises means premises, or part of premises, and land provided with the premises used or intended to be used as a place of residence and includes boarding premises; residential tenancy agreement means an agreement referred to in Part 3 ; SDA has the same meaning as in – (a) the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2016 of the Commonwealth, as amended from time to time; or (b) any rules of the Commonwealth, as amended from time to time, which are made in substitution for those rules; security deposit means the payment referred to in section 25(1) ; socially-dislocating disease means the disease, known as coronavirus disease 2019 (COVID-19); social housing means – (a) residential premises owned in whole or in part by Homes Tasmania; or (b) residential premises declared to be social housing under subsection (3) ; or (c) residential premises of a kind declared to be social housing under subsection (3) ; or (d) residential premises used, or proposed to be used, for a purpose declared under subsection (3) ; social housing provider, in relation to residential premises, means – (a) Homes Tasmania unless there is, in relation to those premises, a person referred to in paragraph (b), (c) or (d); or (b) a registered community housing provider in relation to those premises; or (c) if those premises are social housing by reason of paragraph (b), (c) or (d) of the definition of social housing and a person, or a person of a class of persons, is declared in the notice under subsection (3) to be the social housing provider in respect of those premises, that person or the person of that class who leases or sub-leases, or proposes to lease or sub-lease, those premises to an eligible person; or (d) if those premises are social housing by reason of paragraph (b), (c) or (d) of the definition of social housing and a person, or a person of a class of persons, is not declared in the notice under subsection (3) to be the social housing provider in respect of those premises, the person who leases or sub-leases, or proposes to lease or sub-lease, those premises to an eligible person; subsequent COVID-19 emergency period means a period specified in an order under section 3B ; suitable repairer means a person who – (a) holds a licence if required to do so under any Act to perform repairs to residential premises or essential services; and (b) ordinarily performs those repairs in the course of a business or as an employee of a business; tenancy means the right of occupancy of residential premises under a residential tenancy agreement; tenant means a person who has the right to occupy residential premises under a residential tenancy agreement; tertiary student means a person undertaking a course at an institution as defined by section 4 of the Higher Education Funding Act 1988 of the Commonwealth; working day means a weekday that is not a statutory holiday, within the meaning of the Statutory Holidays Act 2000 , in the area in which the residential premises to which the residential tenancy agreement relates are situated. (2) A power or duty conferred or imposed on an owner under this Act is also a power or duty conferred or imposed on the agent of the owner. (3) The Minister from time to time responsible for social housing, by notice, may do any one or more of the following: (a) declare residential premises specified in the notice to be social housing; (b) declare residential premises of a kind specified in the notice to be social housing; (c) declare residential premises used, or proposed to be used, for a purpose specified in the notice to be social housing; (d) declare a person, or a person of a class of persons, specified in the notice to be a social housing provider or the social housing provider in relation to premises referred to in paragraph (a), (b) or (c). 3A. Extension of emergency period for COVID-19 emergency (1) The Minister may, by order, extend the emergency period to a day specified in the order. (2) The Minister may, in an order under subsection (1) , only extend the emergency period for a period of 90 days. (3) The Minister may make as many orders under subsection (1) as the Minister thinks are necessary to reasonably mitigate any significant, widespread, hardship caused, or likely to be caused, to a significant number of tenants by the effect of the presence in the State of the socially-dislocating disease and the risk of its spread amongst persons in the State. (4) The Minister must, by order, declare that the emergency period has ended, if the Minister is satisfied that the amendments to the operation of this Act made by the COVID-19 Emergency Act are no longer required to reasonably mitigate any significant, widespread, hardship caused, or likely to be caused, to a significant number of tenants by the effect of the presence in the State of the socially-dislocating disease and the risk of its spread in the State. 3B. Declaration of subsequent COVID-19 emergency periods (1) The Minister may, by order, declare a period specified in the order to be a subsequent COVID-19 emergency period. (2) The Minister may only declare a period to be a subsequent COVID-19 emergency period if the Minister is of the opinion that it is necessary to declare the period so as to reasonably mitigate any significant, widespread hardship that is caused, or is likely to be caused, to a significant number of tenants by the effect of – (a) the presence in the State of the socially-dislocating disease; and (b) the risk of its spread amongst persons in the State. (3) A period specified in an order under subsection (1) to be a subsequent COVID-19 emergency period may not be a period of more than 90 days. (4) The Minister may make as many orders under subsection (1) as the Minister thinks fit. 4. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. 5. Application of Act (1) This Act applies to – (a) any residential tenancy agreement entered into on or after the commencement day; and (ab) any residential tenancy agreement for boarding premises entered into on or after the commencement of the Residential Tenancy Amendment (Boarding Premises) Act 2003 ; and (b) any residential tenancy agreement entered into before the commencement day – (i) with effect from the first payment date that occurs 12 months after that day; or (ii) if the agreement is renewed or extended within that 12 months, with effect from the day on which it is renewed or extended; and (c) any residential tenancy agreement for boarding premises entered into before the commencement of the Residential Tenancy Amendment (Boarding Premises) Act 2003 – (i) with effect from the first payment date that occurs 12 months after that commencement; or (ii) if the agreement is renewed or extended within that 12-month period, with effect from the day on which it is renewed or extended. (2) This Act applies to part of any residential premises used solely as a place of residence by a person employed as a caretaker, or in a similar capacity, for the premises. (3) This Act applies to an approved rental dwelling within the meaning of the National Rental Affordability Scheme Regulations 2008 of the Commonwealth. 6. Non-application of Act (1) This Act does not apply to – (a) any agreement under a mortgage in respect of residential premises; or (b) any agreement relating to residential premises under a scheme under which – (i) a group of adjacent or adjoining premises is owned by a company; and (ii) the premises comprising the group are let by the company to persons who jointly have a controlling interest in the company; or (c) any agreement that is a residential management agreement under section 16A(1) ; or (d) any memorandum of lease, registered under the Land Titles Act 1980 , in respect of which the lessee is a social housing provider; or (da) any lease to a social housing provider, by Homes Tasmania, of residential premises; or (db) any lease to a person of residential premises which are intended to be sub-leased to an eligible person; or (e) any agreement giving a person a right of occupancy to residential premises not ordinarily used for holiday purposes for the purpose of a holiday for a period not exceeding 3 months. (2) This Act does not apply to any of the following: (a) any part of a hotel or motel that is not boarding premises; (b) any premises ordinarily used for holiday purposes; (c) any boarding premises located in a building containing less than 3 boarding premises where – (i) the owner occupies the same building as a principal place of residence; or (ii) the tenant occupies the building as a principal place of residence and sub-lets the boarding premises; (d) any part of a hospital or nursing home; (e) any part of a club; (f) any premises used to provide residential care, within the meaning of the Aged Care Act 1997 of the Commonwealth; (g) any premises in respect of which a memorandum of lease is registered under the Land Titles Act 1980 , if the lessee of the premises is not a social housing provider. (ga) a residential tenancy agreement that is a residence contract within the meaning of the Retirement Villages Act 2004 ; (h) . . . . . . . . (i) . . . . . . . . PART 2 - Residential Tenancy Commissioner 7. Residential Tenancy Commissioner (1) The Minister may appoint a person as the Residential Tenancy Commissioner for the period, not exceeding 5 years, specified in the instrument of appointment. (2) An appointment under subsection (1) is subject to any terms and conditions the Minister determines. (3) The Commissioner may vacate, or be removed from, office in accordance with Schedule 1. 8. General functions and powers of Commissioner (1) The following are the functions of the Commissioner: (a) to determine disputes arising in relation to the disbursement of security deposits; (b) to determine disputes in relation to any residential tenancy database; (c) to act in the mediation or conciliation of any disputes between the parties to residential agreements in relation to boarding premises; (d) to determine applications made to the Commissioner under section 23 or section 36A ; (e) other functions conferred on the Commissioner by or under this Act. (2) The Commissioner may do anything that is necessary or incidental to carry out his or her functions under this Act and, in particular, his or her powers under section 23 , section 36A , section 48I and section 48ZF . 9. Delegation by Commissioner The Commissioner may delegate to any person any of his or her powers or functions, other than this power of delegation. PART 3 - Residential tenancy agreements Division 1 - Form of agreements 10. Residential tenancy agreement (1) A residential tenancy agreement exists where a right of occupancy of residential premises is granted by the owner of the premises to a person for value – (a) whether or not the right is a right of exclusive occupation; or (b) whether the agreement is express or implied; or (c) whether the agreement is oral or in writing, or partly oral and partly in writing; or (d) whether or not the agreement is for a fixed period – and includes a relevant social housing sub-lease. (1A) For the purposes of subsection (1) , a relevant social housing sub-lease is a sub-lease by a social housing provider that is a lessee in relation to the premises by virtue of – (a) a memorandum of lease registered under the Land Titles Act 1980 ; or (b) a lease, by Homes Tasmania, of residential premises under the Homes Tasmania Act 2022 , for the purposes of enabling the social housing provider to provide residential accommodation to other persons. (2) A residential tenancy agreement is for a fixed period if it is for a period of at least 4 weeks. (3) The provisions of this Act form part of a residential tenancy agreement. 11. Expiry (1) A residential tenancy agreement for a fixed period, unless earlier terminated under Part 4 , expires – (a) on a date specified in the agreement; or (b) if a date is not specified in the agreement, on a date agreed on by both parties. (2) If a residential tenancy agreement for a fixed period in relation to premises expires on a date and before that date – (a) no notice to vacate in relation to the premises is served under section 42 on the grounds specified in section 42(1)(d) ; and (b) the residential tenancy agreement is not extended or renewed – a new residential tenancy agreement for no fixed period is established on that date in relation to the premises. (3) A residential tenancy agreement established under subsection (2) is subject to the same terms and conditions that existed before that establishment. (4) Despite subsection (1) , if – (a) but for this subsection, a residential tenancy agreement for a fixed period in relation to premises would, under subsection (1) , expire on a date; and (b) a notice to vacate in relation to the premises is served under section 42 on the grounds specified in section 42(1)(d) – the agreement expires on the day on which the notice takes effect under section 43 . (5) If – (a) a notice to vacate in relation to premises, in respect of which there is a residential tenancy agreement for a fixed period, has been served under section 42 on the grounds specified in section 42(1)(d) ; and (b) that agreement, but for subsection (4) , would have expired; and (c) the notice is withdrawn before it takes effect – the residential tenancy agreement expires on the day on which the notice is withdrawn and a new residential tenancy agreement is established on that day. (6) A residential tenancy agreement established under subsection (5) – (a) is for a fixed period of 28 days commencing on the day on which the agreement is so established; and (b) is otherwise subject to the same terms and conditions of the residential tenancy agreement that existed before the notice to vacate was served. 12. Extension and renewal (1) A residential tenancy agreement may only be extended or renewed before it has expired. (2) A residential tenancy agreement for a fixed period may only be extended or renewed by agreement in writing of the owner and the tenant. 12A. Variation A residential tenancy agreement may be varied by agreement of the owner and each tenant. 13. Written agreement (1) A written residential tenancy agreement is to be – (a) easily legible; and (b) clearly expressed; and (c) if printed, in 10 points or more. (2) The owner is to provide the tenant of residential premises to which a residential tenancy agreement relates with a copy of the agreement within 14 days after the agreement takes effect. 14. Information as to rights and obligations An owner of residential premises is to give the tenant of the premises a copy of any information relating to rights and obligations under residential tenancy agreements as the Director of Consumer Affairs and Fair Trading may direct. 15. Inconsistent provisions A provision of a residential tenancy agreement that is inconsistent with a provision of this Act has no effect. 16. Orders relating to inconsistency (1) Either party to a residential tenancy agreement may apply to the Court for an order determining whether or not a provision of the agreement is inconsistent with this Act. (2) The Court may – (a) order that the provision be modified in a specified manner; or (b) declare that the provision has no effect. (3) The fact that a provision of a residential tenancy agreement is declared to have no effect does not affect the right of occupancy conferred generally or specifically by the agreement. Division 1A - Residential management agreements 16A. Residential management agreement (1) A residential management agreement exists where the owner of residential premises agrees in writing with a person that the person will perform the functions of that owner under this Act. (2) Subject to subsection (4) , where a residential management agreement is in force – (a) the residential manager is taken to be the owner of the premises for the purposes of this Act and is taken for the purposes of this Act to have the capacity to grant a right of occupancy of those premises to a person for value; and (b) this Act does not apply to the owner of the premises in his or her capacity as owner. (3) Where a residential manager grants a right of occupancy of residential premises to a person, the person is a tenant for the purposes of this Act. (4) Where a residential manager dies, becomes insolvent or is unable to be located or, in the case of a company, is wound up, whilst a residential management agreement is in force, the residential manager is no longer taken to be the owner of the premises for the purposes of this Act. Division 2 - Rent 16B. Rental properties to be advertised and offered at fixed rental price (1) The owner of residential premises – (a) must not advertise the premises for rent, or offer the premises for rent, at a price that is not a fixed price; and (b) must not invite a prospective tenant to make an offer to become a tenant of the premises at a price higher than a fixed price advertised or offered by the owner. Penalty: Fine not exceeding 50 penalty units. (2) For the purposes of this section – (a) rent specified in an advertisement, or offer, is not a fixed price for rent unless it is a definite single amount specified for the rent in the advertisement or offer; and (b) rent specified in an advertisement, or offer, is not a fixed price for rent if the advertisement or offer is to the effect that the rent is to be determined in the future between the parties as – (i) any amount within a range of prices for the rent mentioned in the advertisement or offer; or (ii) an amount that is to be above a minimum amount specified in the advertisement or offer. 17. Money other than rent (1) A person must not require or receive from a tenant or prospective tenant any money or other consideration for entering into, renewing, extending or continuing a residential tenancy agreement other than – (a) rent in advance for the relevant payment period; and (b) a security deposit; and (c) a holding fee. Penalty: Fine not exceeding 50 penalty units. (1A) Subsection (1) does not apply to a requirement to provide, or a receipt of, money or other consideration for the provision of any service, that is not the provision of accommodation, to an NDIS participant at accommodation which is SDA. (2) Except as provided otherwise in the regulations made under this Act, a person must not require or receive from another person any money or other consideration for or in relation to any of the following: (a) making an application to rent residential premises; (b) providing keys for the inspection of residential premises; (c) giving permission to examine or inspect residential premises; (d) supplying details of residential premises available for rental; (e) placing the name of that other person on any waiting list for vacant residential premises; (f) any other prescribed activity. Penalty: Fine not exceeding 50 penalty units. (3) An owner must not require or receive from a tenant during the term of a residential tenancy agreement any money or other consideration other than – (a) rent in advance for the relevant payment period; and (b) a water consumption charge if the residential premises are equipped with a device that calculates the amount of water used at those premises; and (c) reasonable compensation for damage to the residential premises arising from the actions of the tenant or any loss incurred by the owner arising from the actions of the tenant. Penalty: Fine not exceeding 50 penalty units. (3A) A rent-collection agency must not require a person, who pays, or is to pay, to the agency rent in relation to residential premises, to pay a fee or charge in relation to the rent or receiving the rent. Penalty: Fine not exceeding 50 penalty units. (4) In this section, rent-collection agency means a person or body, other than an authorised deposit-taking institution, that receives, on behalf of an owner of residential premises to which a residential tenancy agreement relates, rent paid or payable in relation to the premises by or on behalf of a tenant; water consumption charge means an amount levied on an owner by a regulated entity, within the meaning of the Water and Sewerage Industry Act 2008 , for water consumed by an occupant of residential premises that is calculated as a fee for each unit of water consumed. 18. Rent payable in advance Rent is payable in advance for a payment period. 19. Payment period (1) The payment period must not be varied during the period of the residential tenancy agreement unless the owner and tenant agree. (2) A payment period must not exceed – (a) 2 weeks in the case of boarding premises; or (b) 4 weeks in any other case. 20. Increase in rent (1) An owner, by written notice to the tenant, may increase the amount of the rent payable by the tenant in respect of residential premises if – (a) the written residential tenancy agreement for those premises allows for an increase; or (b) there is no written residential tenancy agreement for those premises. (2) A notice is to specify – (a) the amount of the rent as increased; and (b) the day from which the increase in the rent takes effect. (3) Except in the case of a residential tenancy agreement that relates to social housing, an increase in rent may only take effect from a day that is more than 60 days after the day on which the notice is given and is a day that is – (a) not less than 12 months after the residential tenancy agreement commenced or was extended or renewed; or (b) . . . . . . . . (c) if rent has been previously increased, more than 12 months after the last increase; or (d) if the Commissioner makes an order under section 23(3) , more than 12 months after the date of that order. (3A) If a residential tenancy agreement relates to social housing, an increase in rent may only take effect from a day that is more than 60 days after the day on which the notice is given. (4) A notice operates to vary the residential tenancy agreement to the effect that the increased rent as specified in the notice is payable under the agreement from the day specified in the notice. (5) For the avoidance of doubt, it is stated that if – (a) a social housing provider or housing support provider is providing rent assistance to, or in relation to, an eligible person; and (b) the social housing provider or housing support provider reduces the amount or amounts he or she is paying so as to cause the eligible person to pay a higher contribution towards the rent in respect of which he or she is or was receiving rent assistance – the reduction of the amount or amounts that the social housing provider or housing support provider is paying does not constitute an increase in rent. 21. Receipt for rent paid On receiving rent in cash or by cheque from a tenant, an owner is to give the tenant a receipt stating – (a) the date on which it was received; and (b) the name of the tenant; and (c) the residential premises in respect of which the rent is paid; and (d) the amount of rent paid; and (e) the period to which the payment relates. 22. Postdated cheques An owner is not to require a cheque or other negotiable instrument that is postdated in payment for rent. 23. Unreasonable increase (1) A tenant may apply to the Commissioner for an order declaring that an increase in the rent payable under a residential tenancy agreement is unreasonable. (1A) An application made under subsection (1) is to be accompanied by the prescribed fee. (1B) An application may only be made under subsection (1) by a tenant within the period of 60 days after the tenant is notified of the increase under section 20 . (1C) The Commissioner may, if he or she thinks fit, conduct a hearing in relation to an application for an order under this section. (2) In determining whether an increase in the rent is unreasonable, the Commissioner is to have regard to – (a) the general level of rents for comparable residential premises in the locality or a similar locality; and (b) any other relevant matter. (3) If satisfied that the increase in the rent is unreasonable, the Commissioner may order that the increase in the rent be changed to an amount that does not exceed a specified amount. (4) Subject to subsection (7)(a) and any contrary order of a court, an order of the Commissioner under this section remains in force until the day on which rent may be increased under section 20 . (5) If the Commissioner has determined an application made under subsection (1) in respect of premises, a tenant or an owner in respect of the premises may apply to the Court to determine whether the increase in the rent, payable under the residential tenancy agreement in respect of the premises before the Commissioner determined the application, is unreasonable. (6) An application may only be made under subsection (5) by a tenant or owner in respect of premises within the period of 60 days after the tenant or owner is notified that the Commissioner has determined an application made under subsection (1) in respect of the premises. (7) If an application is made under subsection (5) in respect of premises – (a) any order made by the Commissioner under this section in relation to the premises is of no effect, unless the application is withdrawn; and (b) the Court is to determine the application as if – (i) the Commissioner had not determined an application made under subsection (1) in respect of the premises; and (ii) a reference in subsection (2) , (3) or (4) to the Commissioner were a reference to the Court. 24. Distress for rent prohibited (1) A person must not levy or make distress for any amount due that is unpaid. Penalty: Fine not exceeding 50 penalty units. (2) In addition to any penalty imposed on a person for an offence under subsection (1) , the person – (a) is liable to pay any costs incurred by any other person as a result of that offence; and (b) must return any goods seized to the owner of the goods or, if the goods cannot be returned, pay the owner the value of the goods. 24A. Repayment of rent arrears accrued during period relating to COVID-19 (1) A tenant who is in arrears of rent payable in respect of residential premises during the emergency period or a subsequent COVID-19 emergency period may apply to the Commissioner for a rent arrears payment order in relation to the arrears of rent. (2) An application under subsection (1) is to be in the approved form. (3) The Commissioner, as soon as practicable after receiving an application under subsection (1) in relation to premises, is to notify the owner of the premises. (4) The Commissioner may make an order (a rent arrears payment order) in relation to a tenant from whom the Commissioner has received an application under subsection (1) , if the Commissioner is satisfied that the tenant – (a) is in arrears of rent that was payable during the emergency period or a subsequent COVID-19 emergency period; and (b) has experienced financial hardship as a result of the economic effects of the socially-dislocating disease; and (c) has the financial capacity to comply with the order. (5) A rent arrears payment order is to specify – (a) the total amount, of rent that is in arrears, to which the order relates; and (b) a schedule setting out parts of the total amount and the periods within which each such part of the total amount is to be paid; and (c) any conditions to which the order is subject; and (d) that, unless an appeal is made under this section, the order takes effect on the day after the end of the 7-day period beginning on the day after the day on which notice of the order was given under subsection (6) . (6) The Commissioner, within 3 days of making a rent arrears payment order under subsection (4) in relation to a tenant, is to notify the tenant, and the owner of the premises to which the order relates, of the making of the order. 24B. Appeal against order under section 24A (1) An owner or tenant in relation to residential premises who is aggrieved by an order made by the Commissioner under section 24A(4) may appeal to the Court within the 7-day period beginning on the day after the day on which notice of the order was given under section 24A(6) . (2) An appeal is to be heard as a minor civil claim under the Magistrates Court (Civil Division) Act 1992 and, subject to this section, is to be instituted, heard and determined as prescribed. (3) An appeal is to be by way of rehearing. (4) On the hearing of an appeal, the Court may – (a) confirm the order of the Commissioner under section 24A(4) with the amendments, if any, that the Court thinks fit, and direct that the order of the Commissioner is to take effect from a specified date; or (b) set aside the order of the Commissioner. Division 3 - Security deposits and holding fees 25. Security deposits (1) Except in the case of boarding premises, an owner may require that an amount be paid by or on behalf of the prospective tenant as security for the performance of obligations under a residential tenancy agreement. (1A) If a residential tenancy agreement relates to SDA and the prospective tenant is an NDIS participant, a security for the performance of obligations under the agreement may relate only to that part of the residential premises in respect of which the prospective tenant has the right of exclusive occupation. (2) A person paying a security deposit under subsection (1) must pay the deposit – (a) to the Authority; or (b) if the residential premises are managed on the owner's behalf by a property agent, within the meaning of the Property Agents and Land Transactions Act 2016 , to the Authority or that property agent; or (c) if the residential premises are social housing, to the Authority or the social housing provider; or (d) if a council is the owner of the residential premises, to the Authority or the council. Penalty: Fine not exceeding 50 penalty units. (2A) If the owner of residential premises under a residential tenancy agreement is a social housing provider or a council and agrees to it, a security deposit may be paid in instalments as agreed between the owner and prospective tenant. (3) A property agent who receives a security deposit from a tenant under subsection (2)(b) must deposit that money with the Authority within 10 working days after receiving it. Penalty: Fine not exceeding 50 penalty units. (3A) A social housing provider or council who receives a security deposit in full from or on behalf of a tenant must deposit that money with the Authority within 10 working days after receiving it. (3B) A social housing provider or council who receives a security deposit in instalments from or on behalf of a tenant – (a) may keep all instalments received until the final instalment is paid; and (b) must deposit all money so received with the Authority within 10 working days after receiving the final instalment. (3C) Despite subsection (3B)(a) , if the social housing provider or council makes a claim, or is notified that a claim has been made, to the Authority for the disbursement of the security deposit, the social housing provider or council is to deposit with the Authority, as soon as reasonably practicable, all money paid to the social housing provider or council in instalments towards payment of the security deposit. (3D) A person who pays or deposits a security deposit, or deposits an instalment towards a security deposit, with the Authority is to include with the payment or deposit the form specified in section 27(a) . (4) An owner must not – (a) receive a security deposit from or on behalf of a tenant in relation to a residential tenancy agreement; or (b) require more than one security deposit to be paid in relation to the same residential tenancy agreement; or (c) require an amount to be paid as a security deposit that exceeds 4 weeks' rent payable under the residential tenancy agreement. Penalty: Fine not exceeding 50 penalty units. (5) If a court finds a property agent or an owner guilty of contravening subsection (3) or (4)(a) , the court, instead of or in addition to any penalty it may impose in respect of that contravention, may order the property agent or owner to pay an amount received as a security deposit to the Authority within 3 working days. 26. Condition report (1) If an owner requires an amount as a security deposit in respect of any residential premises to be paid by or on behalf of a prospective tenant, the owner is to give the tenant 2 copies of a report stating the condition of the premises on or before the day on which the tenant occupies the premises. (2) A condition report is to – (a) specify the general state of repair and condition of the premises to which it relates; and (b) be signed by the owner. (3) On receipt of the copies of the condition report the tenant is to – (a) sign one of the copies of the report endorsed with a statement that the tenant agrees or disagrees with the report as a whole or any part of it; and (b) return that signed and endorsed copy to the owner within 2 days. (4) A condition report that is given under this section is evidence of the state of repair and condition of the residential premises to which it relates. 27. Forms relating to security deposit The following forms are to be in a form approved by the Director of Consumer Affairs and Fair Trading: (a) a form to lodge a security deposit with the Authority; (b) a form to claim the disbursement of a security deposit. 28. Provision of claim form, &c., on termination of tenancy On termination of a residential tenancy agreement, the owner must – (a) give to the tenant, not more than 3 working days after the termination of the residential tenancy agreement, a claim form signed by the owner; and (b) if the claim form specifies that it is considered that the owner is entitled to a disbursement, give to the tenant a notice that states the reasons why. 29. Claims for disbursement of security deposit generally Following the termination of a residential tenancy agreement, the following persons are entitled to make a claim to the Authority for the disbursement of a security deposit in accordance with this Act: (a) the tenant under section 29A or 29B ; (b) the owner under section 29A or 29C ; (c) the deposit contributor under section 29A or 29D . 29A. Claim where all parties agree (1) If the owner, all tenants and all deposit contributors agree with the claim form and endorse the claim form to that effect, any of those persons may lodge the claim form with the Authority. (2) On receipt of a claim form lodged under subsection (1) , the Authority is to – (a) disburse to the owner from the security deposit the amount specified in the claim form or later determined; and (b) disburse the remainder of the security deposit, if any, to the tenants and the deposit contributors in accordance with section 29E . 29B. Claim by tenant (1) The tenant may lodge with the Authority a claim form following the end of a residential tenancy agreement if – (a) the tenant has received the claim form from the owner under section 28 and has endorsed it with his or her agreement; or (b) the owner has failed to so provide a claim form. (2) On receipt of a claim form under subsection (1) , the Authority is to take all reasonable steps to provide notice of receipt of the claim form to each owner, tenant and deposit contributor who has not endorsed the claim form with his or her agreement to it. (3) If no dispute is lodged under section 29F , the Authority is to – (a) disburse to the owner from the security deposit any amount specified in the claim form or later determined; and (b) disburse the remainder of the security deposit, if any, to the tenants and the deposit contributors in accordance with section 29E . 29C. Claim by owner (1) The owner may lodge a claim form with the Authority – (a) if – (i) the owner has given a claim form to a tenant under section 28 ; and (ii) the tenant has not lodged that form with the Authority within 10 days after it was so given or a longer prescribed period; and (iii) the deposit contributor has not lodged a claim form with the Authority; or (b) if – (i) the owner has been unable to give the claim form to any tenant under section 28 after taking all reasonable steps to do so; and (ii) the deposit contributor has not lodged a claim form with the Authority. (2) On receipt of a claim form under subsection (1) – (a) the Authority is to refer the matter to the Commissioner; and (b) the referral is taken to be a dispute lodged under section 29F and this Act applies to the referral with such modifications as are necessary for that purpose. 29D. Claim by deposit contributor (1) A deposit contributor may lodge a claim form with the Authority if – (a) the contributor is aware that the residential tenancy agreement has been terminated; and (b) the tenant has not lodged a claim form with the Authority within 10 days after it was given to him or her by the owner or a longer prescribed period; and (c) the owner has not lodged a claim form with the Authority. (2) On receipt of a claim form under subsection (1) , the Authority is to take all reasonable steps to provide notice of receipt of the claim form to each owner, tenant and other deposit contributor. (3) If no dispute is lodged under section 29F , the Authority is to – (a) disburse to the owner from the security deposit the amount specified in the claim form or later determined; and (b) disburse the remainder of the security deposit, if any, to the tenants and the deposit contributors in accordance with section 29E . 29DA. Referral by Authority to Commissioner The Authority may refer to the Commissioner any claim lodged under section 29B , 29C or 29D . 29E. Disbursements of security deposits (1) In this section – deposit contributor's portion means the amount that would be paid to a deposit contributor under subsection (2)(b) if no disbursement were to be made to the owner; tenant's portion means the amount that would be paid to a tenant under subsection (2)(a) if no disbursement were to be made to the owner. (2) If no part of a security deposit is to be disbursed to the owner – (a) that part of the security deposit paid to the Authority by the tenant is to be disbursed to the tenant; and (b) that part of the security deposit paid to the Authority by a deposit contributor is to be disbursed to the deposit contributor. (3) In a case where any part of the security deposit is to be disbursed to the owner – (a) the Authority – (i) is to subtract the amount to be disbursed to the owner firstly from the tenant's portion; and (ii) if there is insufficient money in the tenant's portion to fully meet that disbursement, is to then subtract from the deposit contributor's portion any part of that disbursement that has not been met from the tenant's portion; and (b) if there is money remaining in either the tenant's portion or deposit contributor's portion after meeting the disbursement to the owner as specified in paragraph (a) , the Authority is to pay that remainder to the tenant or contributor, as appropriate. (4) The Authority must not disburse the security deposit after a dispute is lodged under section 29F until – (a) if an appeal is instituted under section 30 , that appeal is decided; or (b) if no appeal is instituted under that section, the period allowed for instituting the appeal has elapsed. (5) Interest earned with respect to any security deposit held by the Authority is the property of the Authority and is not payable as a disbursement to any tenant, deposit contributor or owner. 29F. Lodging disputes (1) A tenant may dispute a claim form by lodging with the Commissioner a dispute – (a) if the tenant has received a claim form from the owner, at any time before a relevant claim form is lodged with the Authority; or (b) in all other cases, within 10 days after the lodgment of a relevant claim form with the Authority. (2) A deposit contributor or owner may dispute a claim form by lodging with the Commissioner a dispute within 10 days after the lodgment of a relevant claim form with the Authority. (3) A dispute is to – (a) be in writing; and (b) include or be accompanied by any information to support the dispute; and (c) be accompanied by the prescribed fee. (4) The Commissioner may accept the lodgment of a dispute after the period specified in subsection (1) or (2) has expired at his or her discretion but only if – (a) the Authority has not already made a disbursement of the security deposit; or (b) the security deposit has not been forfeited to the Authority. (5) If a matter in respect of a claim form is referred to the Commissioner by the Authority under section 29C(2) , the owner who lodged the claim form is required to pay the fee prescribed under subsection (3)(c) as if he or she had lodged the dispute. (6) On receipt of a dispute, the Commissioner – (a) is to notify, in writing, the Authority of the dispute within 24 hours after it is lodged; and (b) is to take all reasonable steps to notify, in writing, each tenant, deposit contributor and owner who is known to the Commissioner of the lodging of the dispute and their right to make written submissions in respect of the dispute within the time specified in the notice; and (c) may require the Authority and any such tenant, deposit contributor and owner to provide the Commissioner with information and documentation relevant to the dispute. (7) The Authority, a tenant, a deposit contributor or an owner must comply with a requirement made under subsection (6)(c) . (8) If a tenant, deposit contributor or owner fails to comply with a requirement made under subsection (6)(c) , he, she or it is guilty of an offence and is liable on conviction to a fine not exceeding 10 penalty units. (9) Each owner, tenant and deposit contributor in respect of a residential tenancy agreement is a party to a dispute relating to the claim form in respect of the termination of that agreement. (10) A party other than the person who lodged the dispute may provide written submissions and other documents to the Commissioner in respect of the dispute on payment of the prescribed fee. (11) The Commissioner may waive the whole or any part of a fee payable under this section. 29G. Determining disputes (1) The Commissioner may not determine a dispute until at least 7 days have passed since the last of the notices that he or she is required to provide under section 29F(6)(a) and (b) has been so provided. (2) The Commissioner is to determine a dispute by determining the amount, if any, of the security deposit that is to be disbursed to the owner. (3) On determining a dispute, the Commissioner is to give to the Authority and each party known to the Commissioner written notice of the determination. (4) The Commissioner may refund to any person the whole or any part of any fee paid under section 29F if the Commissioner considers that another party to the dispute has acted vexatiously in lodging the dispute, submissions or other information under that section. 30. Appeal against determination (1) A person may appeal to the Court against the determination of the Commissioner under section 29G . (2) An appeal is to be instituted within 7 days after the last of the parties to the dispute has been given notice of the Commissioner's determination under section 29G . (3) The Court is to hold a new hearing in deciding the appeal. (4) In deciding the appeal, the Court may – (a) confirm the determination of the Commissioner; or (b) vary the determination and order the security deposit to be disbursed in accordance with the determination as varied and section 29E . (5) On deciding an appeal, the Court is to notify the Authority, in writing, of its decision. 30A. Unclaimed security deposit forfeited (1) In this section – expired period determination means a determination made under subsection (2) ; forfeit determination means a determination made under subsection (3) . (2) The Authority may determine in relation to a security deposit or part of a security deposit held by it that at least 6 years have elapsed since the end of the residential tenancy agreement. (3) In accordance with this section and after making an expired period determination, the Authority may further determine that the security deposit or the part of a security deposit held by it is forfeited to the Authority. (4) If no claim form has been lodged with the Authority, it may make a forfeit determination in respect of a security deposit held by it any time after the expired period determination is made. (5) If a claim form has been lodged with the Authority – (a) in a case where a disbursement has been made from the security deposit before the expired period determination is made, the Authority may make a forfeit determination in respect of that part of the security deposit held by it any time after the expired period determination is made; or (b) in any other case, the Authority may make a forfeit determination in respect of that part of the security deposit held by it after all disbursements resulting from that claim are made in accordance with this Act. (6) On the making of a forfeit determination, the security deposit, or that part of a security deposit, in respect of which that determination is made is forfeited to and becomes the property of the Authority. 31. Holding agreement and fees (1) The owner of residential premises that are unoccupied and a prospective tenant may enter into an agreement to hold the premises for the future occupancy of the prospective tenant for a specified period exceeding 7 days. (2) The holding agreement may impose a fee payable by the prospective tenant as a condition of the holding agreement. Division 4 - Repairs 31A. Reference in this Division to repair may include reference to replacement (1) If an object that is an essential service and that is required to be repaired under this Division is unable to be repaired, the object is required under this Division to be replaced with an object that – (a) serves the same primary function as the object required to be replaced; and (b) serves that function to a reasonably similar degree or standard as the degree or standard of the object before it was required to be repaired – and, accordingly, a reference in this Division to repair is to be taken in such circumstances to be a reference to replacement. (2) If an object that is an essential service and that is required to be repaired under this Division is able to be repaired, but it would be cheaper, easier or quicker to replace the object instead, the object may be replaced with an object that – (a) serves the same primary function as the object required to be replaced; and (b) serves that function to a reasonably similar degree or standard as the degree or standard of the object before it was required to be repaired – and, accordingly, a reference in this Division to repair is to be taken in such circumstances to include a reference to replacement. 32. General repairs and maintenance (1) Without limiting the application of Part 3B , the owner of residential premises is to maintain the premises as nearly as possible in the condition, apart from reasonable wear and tear, that existed on the day on which the residential tenancy agreement was entered into. (2) The tenant is to notify the owner of any repairs needed in respect of the premises within 7 days of the need arising. (3) The owner is to carry out any repairs specified in the notice that do not arise from any fault of the tenant – (a) in the case of boarding premises, within 7 days; or (ab) if the repair is to a heating element of a cooking stove, within 14 days; or (b) in any other case, within 28 days – after receipt of the notice. (4) This section – (a) does not apply during the emergency period, unless a period is determined under subsection (5)(a) during the emergency period, in which case this section does not apply during the period so determined; or (b) does not apply during a subsequent COVID-19 emergency period, unless a period is determined under subsection (5)(b) during the subsequent COVID-19 emergency period, in which case this section does not apply during the period so determined. (5) The Commissioner, by notice in the Gazette, may, for the purposes of subsection (4) , determine – (a) a period, specified in the notice, that ends before the end of the emergency period; or (b) a period, specified in the notice, that ends before the end of a subsequent COVID-19 emergency period. 33. Urgent repairs (1) If an essential service ceases to function – (a) the tenant is to notify the owner as soon as practicable of the need for urgent repair; and (b) the owner is to carry out the necessary repairs, or otherwise cause the essential service to be restored, as soon as practicable after that notification. (2) If the owner is unable to be contacted or fails to arrange for the carrying out of any urgent repair that does not arise from any fault of the tenant within 24 hours after being notified, the tenant may authorise one of the following to carry out the repair: (a) a nominated repairer; or (b) if there is not a nominated repairer, a suitable repairer. (3) Any repairs under subsection (2) are to be carried out only to the extent that the essential service becomes functional. (4) The costs of any repairs carried out under subsection (2) are to be paid by – (a) the owner, if carried out by a nominated repairer; or (b) the tenant, if carried out by a suitable repairer. (4A) If the owner arranges for the carrying out of any urgent repair within 24 hours after being notified, the owner is to ensure that the repair is carried out as soon as practicable. (5) Subsections (2) , (3) and (4) do not apply to boarding premises. (6) In this section, an essential service is to be taken to be functional – (a) where the service is a water service or a sewerage service, if at least the amount of water or sewage that would be supplied or removed, respectively, from the premises, if the service were fully functional, is capable of being safely so supplied or removed; and (b) where the service is an electricity service, if – (i) all power points, or wires between the walls of the premises or in the ceiling of the premises are safe and, except in relation to those power points or wires indicated in the condition report prepared at the beginning of the tenancy as not being functioning power points or functioning wires, supply electricity to the premises; and (ii) where the service consists of an electricity-generating device – the device safely produces and supplies electricity to at least the level that such a device of the same capacity ought reasonably be expected to produce and supply; and (c) where the service is a heating service, if the service safely provides heat to the level that it was reasonably capable of providing when it was manufactured; and (d) where the service is a cooking stove, if at least half of the heating elements of the stove, and the oven, function safely; and (e) where the service is a hot-water service, if the service safely provides at least the same amount of hot water, and water at the same temperature, as the service provided when it was manufactured; and (f) where the service is a service that is within the meaning of paragraph (c) of the definition of essential service in section 3 , if all water on the premises required to be removed or treated is able to be safely removed, or safely treated, within the period that such a service would be able to remove or treat the water if the service were fully functioning. (7) An essential service ceases to function if the service is not, under subsection (6) , taken to be