Residential Tenancies Amendment Act 2010

49 New Part 2A inserted

• The following Part is inserted after section 66:

  “Part 2A
  “Boarding house tenancies

  “Application

  “66A Application of Part

  • “(1) This Part sets out special provisions that apply only to boarding house tenancies.

    “(2) The following provisions do not apply to boarding house tenancies unless otherwise specifically applied:

    • “(a) section 7 (relating to short fixed-term tenancies):

    • “(b) section 9(1) and (2) (relating to transitional provisions):

    • “(c) sections 36 to 42 and 44 to 49 (relating to the rights and obligations of landlords and tenants):

    • “(d) sections 50A, 51, and 55 to 57 (relating to the termination of tenancies):

    • “(e) section 61 (relating to the abandonment of premises):

    • “(f) section 64 (relating to possession orders).

    “(3) When applying other provisions to boarding house tenancies, terms that are defined in section 66B have the meaning given by that section.

  “66B Interpretation for this Part

  • In this Part, unless the context otherwise requires,—

    “boarding house means residential premises—

    • “(a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and

    • “(b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time

    “boarding house tenancy means a residential tenancy in a boarding house—

    • “(a) that is intended to, or that does in fact, last for 28 days or more; and

    • “(b) under which the tenant is granted exclusive rights to occupy particular sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house

    “boarding house tenancy agreement means a tenancy agreement (as defined in section 2(1)) relating to a boarding house tenancy

    “boarding room means a room in a boarding house that is used as sleeping quarters by 1 or more tenants of the boarding house, and that is for use only by a tenant whose tenancy agreement relates to that room

    “contact person means a natural person or an organisation

    “facilities means the facilities provided by the landlord of a boarding house for the shared use by tenants of the boarding house, such as—

    • “(a) toilet and bathroom facilities:

    • “(b) cooking facilities:

    • “(c) general living, dining, or recreational areas:

    • “(d) laundry facilities:

    • “(e) lifts and stairways:

    • “(f) rubbish storage and rubbish disposal facilities:

    • “(g) appliances for heating or cooling premises:

    • “(h) communication facilities:

    • “(i) lawns, gardens, and outhouses:

    • “(j) any land or buildings intended for use for storage space or for the parking of motor vehicles

    “premises means the boarding house, comprising the boarding rooms and all the facilities of the boarding house; and includes any part of any premises.

  “Boarding house tenancy agreements

  “66C Content of boarding house tenancy agreements

  • “(1) A boarding house tenancy agreement must comply with the requirements in section 13A and must, in addition, contain the following:

    • “(a) a statement of whether the tenancy is intended to last for 28 days or more:

    • “(b) 1 or more telephone numbers at which the landlord may be contacted by the tenant at any reasonable time:

    • “(c) the room number of the boarding room to which the tenancy agreement relates:

    • “(d) a statement as to whether the boarding room that the tenant is renting is shared by other tenants and, if so, the maximum number of other tenants who may occupy the room:

    • “(e) a statement of whether the tenancy is a joint tenancy and, if so, the names of the other people who will occupy the boarding room under the tenancy agreement:

    • “(f) a statement of the services (if any) to be provided by the landlord:

    • “(g) if the premises are managed by a person other than the landlord, the name and contact address (which must include a telephone number) of that person:

    • “(h) a description of the fire evacuation procedures that apply to the premises.

    “(2) A boarding house tenancy agreement may, in addition, provide for the tenant to supply, for the purposes of sections 62 to 62B and 66X, the name and contact details of a contact person.

    “Compare: Residential Tenancies Act 1997 s 125 (Vic)

  “66D Bond of 1 week’s rent or less

  • “(1) If 1 week’s rent or less is received as bond under a boarding house tenancy,—

    • “(a) the bond need not be lodged with the chief executive, and sections 19 to 22D do not apply; and

    • “(b) the landlord must immediately give the tenant a receipt for the bond, and the receipt must comply with section 19(1)(a); and

    • “(c) the landlord must refund the bond to the tenant when the tenancy terminates.

    “(2) Despite subsection (1)(c), the landlord may retain out of a bond—

    • “(a) any unpaid rent owing under the tenancy; and

    • “(b) any other amount owing by the tenant to the landlord, such as (without limitation) costs associated with repairing damage attributable to the tenant, replacing lost keys, reimbursement for services provided by the landlord, or unpaid gas, electricity, water, or telephone charges.

    “(3) If the landlord does not refund the bond, or withholds more of the bond than the tenant considers is justified, the tenant may apply to the Tribunal for an order.

  “66E Outgoings

  • “(1) The landlord is responsible for all outgoings in respect of the boarding house that are incurred—

    • “(a) whether or not the boarding house is occupied; or

    • “(b) for common facilities; or

    • “(c) in respect of rooms that are occupied by more than 1 tenant.

    “(2) Without limiting the generality of subsection (1), the landlord is responsible for the cost of—

    • “(a) the general rate (within the meaning of section 13 of the Local Government (Rating) Act 2002) payable in respect of the boarding house; and

    • “(b) insurance premiums payable in respect of the boarding house.

    “(3) A tenant is responsible for all outgoings that are exclusively attributable to the tenant’s occupation of a room that is exclusively occupied by the tenant.

    “(4) Without limiting the generality of subsection (3), the tenant is responsible for the following charges, incurred during the tenancy, in respect of the premises:

    • “(a) electricity and gas supplied to the tenant’s boarding room, if the supply is separately metered for that room:

    • “(b) telephone and Internet connected to the tenant’s boarding room.

    “(5) If the landlord provides services to a tenant, and payment for those services is not included in the rent, the landlord must provide the tenant each week with an itemised account of the services provided and the amount payable by the tenant.

    “Compare: Residential Tenancies Act 1997 ss 108, 109 (Vic)

  “66F Tenancy not assignable by tenant

  • A boarding house tenancy is not assignable by a tenant.

    “Compare: Residential Tenancies Act 1997 s 93 (Vic)

  “Rights and obligations of landlords and tenants

  “66G Quiet enjoyment

  • “(1) Every tenant of a boarding house is entitled to the quiet enjoyment of the premises, without interruption by the landlord or another tenant of the boarding house.

    “(2) The landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.

    “(3) The tenant must not cause or permit any interference with the reasonable peace, comfort, or privacy of any other tenant on the premises.

    “(4) Contravention of subsection (2) or (3) in circumstances that amount to harassment of a tenant is declared to be an unlawful act.

    “Compare: Residential Tenancies Act 1997 ss 113, 122 (Vic)

  “66H Landlord’s obligations at start of tenancy

  • “(1) When a tenant enters into a boarding house tenancy agreement, the landlord must give the tenant—

    • “(a) a copy of the current house rules; and

    • “(b) if services are or may be provided by the landlord that are not covered by the rent, a list of the services and their cost.

    “(2) When a tenant first takes occupation of a boarding room under a boarding house tenancy, the landlord must ensure that—

    • “(a) the tenant has vacant possession of the room or, if the room is shared, of the tenant’s sleeping quarters in the room; and

    • “(b) the room is in a reasonable state of cleanliness; and

    • “(c) there is no legal impediment to the tenant’s occupation of the room.

    “Compare: Residential Tenancies Act 1997 s 109 (Vic)

  “66I Landlord’s ongoing obligations

  • “(1) The landlord of a boarding house must, at all times,—

    • “(a) ensure that the facilities of the premises are in a reasonable state of cleanliness; and

    • “(b) ensure that the premises are in a reasonable state of repair, having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes; and

    • “(c) comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises; and

    • “(d) ensure that there are sufficient locks or similar devices to ensure that the premises are reasonably secure; and

    • “(e) ensure that the tenant has access at all times to his or her room and to toilet and bathroom facilities in the premises; and

    • “(f) ensure that the tenant has access at all reasonable hours to the other facilities in the premises; and

    • “(g) ensure that copies of the house rules and fire evacuation procedures are on display in the premises at all times; and

    • “(h) take all reasonable steps to ensure that the house rules are observed, and to enforce them in a fair and consistent manner.

    “(2) Subsection (1) applies even if the tenant has notice, at the time when the tenancy agreement is entered into, of the state of the premises.

    “(3) The obligations in subsection (1) are in addition to the obligation in section 66G(2).

    “(4) Failure by the landlord to comply with any of paragraphs (a) to (c) of subsection (1) is declared to be an unlawful act.

    “Compare: Residential Tenancies Act 1997 ss 120–124, 127(2) (Vic)

  “66J Other obligations of landlord

  • “(1) The landlord must not interfere with the supply of gas, electricity, water, telephone services, or other services to the premises, unless the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out.

    “(2) The landlord must immediately tell the tenant if he or she puts the premises on the market and, if the premises are on the market, the landlord must advise any prospective tenant of that fact.

    “(3) Before changing any lock or similar device, the landlord must tell every tenant of the boarding house who will be affected about the change.

    “(4) Failure by the landlord to comply with subsection (1) or (2) is declared to be an unlawful act.

  “66K Obligations of tenant

  • “(1) The tenant of a boarding house must—

    • “(a) pay the rent when it is payable under the tenancy agreement; and

    • “(b) ensure that the tenant’s boarding room is occupied principally for residential purposes; and

    • “(c) keep the tenant’s room reasonably clean and reasonably tidy, and in a condition that does not create a health or safety hazard; and

    • “(d) notify the landlord, as soon as possible after discovery, of any damage to the premises or of the need for any repairs; and

    • “(e) observe the house rules; and

    • “(f) compensate the landlord for any damage done by the tenant, or by any of his or her visitors to the premises, other than damage caused by general wear and tear.

    “(2) The tenant of a boarding house must not—

    • “(a) intentionally or carelessly damage, or permit any other person to damage, the premises; or

    • “(b) cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004; or

    • “(c) use the tenant’s boarding room, or permit the room to be used, for an unlawful purpose; or

    • “(d) cause or permit any interference with the reasonable peace, comfort, or privacy of any person residing in the neighbourhood; or

    • “(e) affix any fixture to the premises, or make any renovation, alteration, or addition of or to the premises, without the prior written consent of the landlord; or

    • “(f) alter, add to, or remove from the premises any lock or similar device; or

    • “(g) keep a pet on the premises without the permission of the landlord.

    “(3) The obligations in this section are in addition to the obligation in section 66G(3).

    “(4) The following are declared to be unlawful acts:

    • “(a) a contravention of subsection (2)(b):

    • “(b) a contravention of subsection (2)(c):

    • “(c) a contravention of subsection (2)(d) in circumstances that amount to harassment of a neighbour of the tenant.

  “66L Tenant’s liability for damage caused by others

  • “(1) The tenant of a boarding house is responsible for anything done or omitted to be done by any person who is on the premises with the tenant’s permission if the act or omission would have constituted a breach of the tenancy agreement had it been the act or omission of the tenant.

    “(2) Any damage done to a tenant’s boarding room is presumed to have been caused by the tenant, unless the tenant proves otherwise or is not the only tenant of that room.

    “(3) For the purposes of subsection (2), a person who enters the tenant’s boarding room is presumed to be on the premises with the tenant’s permission, unless the tenant proves otherwise or is not the only tenant of that room.

  “66M Tenant’s obligations at end of tenancy

  • On the termination of a tenancy, the tenant of a boarding house must—

    • “(a) quit the premises; and

    • “(b) remove all his or her goods from the premises; and

    • “(c) leave the tenant’s boarding room in a reasonably clean and reasonably tidy condition, and remove all rubbish from the room; and

    • “(d) return to the landlord all keys, security or pass cards, and other such devices provided by the landlord for the use of the tenant; and

    • “(e) leave in or at the premises all other chattels provided by the landlord for the use of tenants of the boarding house.

  “66N Mitigation of damage or loss

  • If a landlord or tenant breaches any provision of the tenancy agreement, the other party must take all reasonable steps to limit the damage or loss arising from the breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.

  “House rules

  “66O Landlord may make house rules

  • “(1) The landlord of a boarding house may make house rules relating to—

    • “(a) the use and enjoyment of the premises; and

    • “(b) the provision of services.

    “(2) No house rule may—

    • “(a) be inconsistent with this Act; or

    • “(b) require or purport to permit anything that is or would be illegal and, in particular, must not—

      • “(i) require or permit any form of discrimination in contravention of the Human Rights Act 1993; or

      • “(ii) purport to permit anything that would breach the Privacy Act 1993.

    “(3) The landlord may at any time change the house rules, but a new house rule does not come into effect until the landlord has given each tenant of the boarding house at least 7 days’ written notice of the new house rule.

    “Compare: Residential Tenancies Act 1997 ss 126, 127 (Vic)

  “66P What tenant may do if he or she objects to house rules

  • “(1) A tenant may apply to the Tribunal for an order declaring a house rule to be unlawful on the grounds that it breaches section 66O(2).

    “(2) Subsection (1) applies even if, when the tenancy was entered into, the tenant had notice of the relevant house rule.

    “(3) The Tribunal may, on the application of a tenant, make any of the following determinations in relation to a house rule:

    • “(a) require the landlord to apply a house rule in a particular manner:

    • “(b) vary the rule:

    • “(c) set the rule aside.

    “(4) A landlord commits an unlawful act if he or she, in breach of an order of the Tribunal made under this section,—

    • “(a) adopts or maintains a house rule that has been declared unlawful; or

    • “(b) refuses to apply a house rule in the manner ordered by the Tribunal; or

    • “(c) does not give effect to a house rule as varied by the Tribunal; or

    • “(d) purports to give effect to a house rule that has been set aside by the Tribunal.

    “Compare: Residential Tenancies Act 1997 s 128 (Vic)

  “Landlord’s right of entry

  “66Q Landlord has right to enter premises at any time

  • “(1) The landlord of a boarding house may enter the boarding house at any time.

    “(2) The landlord must not use the facilities of the boarding house for his or her own domestic purposes unless the landlord resides at the boarding house.

  “66R Landlord’s right to enter boarding room is limited

  • “(1) The landlord of a boarding house may enter a boarding room that is currently let to a tenant only in the following circumstances:

    • “(a) with the consent of the tenant (or, if the room is let to more than 1 tenant, with the consent of any tenant of the room) freely given at, or immediately before, the time of entry:

    • “(b) the landlord believes on reasonable grounds that there is an emergency and that immediate entry is necessary to save life or property:

    • “(c) the landlord believes on reasonable grounds that there is a serious risk to life or property and that immediate entry is necessary to reduce or eliminate the risk:

    • “(d) services are provided under the tenancy agreement and it is necessary to enter the room in order to provide them, but, in this case, the entry must be in accordance with any conditions specified in the tenancy agreement or the house rules:

    • “(e) the Tribunal has ordered that the landlord may enter the room.

    “(2) The landlord may also enter the room of a tenant if the landlord—

    • “(a) gives the tenant (or, if the room is let to more than 1 tenant, any tenant of the room), at least 24 hours before the entry, a notice of entry that complies with section 66S; and

    • “(b) enters the room only for the purpose set out in the notice of entry (which must be one of the purposes set out in section 66S(1)); and

    • “(c) enters the room between 8 am and 6 pm.

    “(3) A landlord entering a room under this section—

    • “(a) must do so in a reasonable manner; and

    • “(b) must not stay in the room longer than is necessary to achieve the purpose of the entry; and

    • “(c) must not interfere with the tenant’s property unless it is necessary for the purpose of the entry.

    “Compare: Residential Tenancies Act 1997 ss 136, 138 (Vic)

  “66S Notice of entry

  • “(1) The purposes for which a landlord may enter a boarding room under a notice of entry are—

    • “(a) to show the room to a prospective tenant:

    • “(b) to show the room to a prospective buyer or lender, or to a registered valuer, real estate agent, or an expert engaged in appraising or evaluating the boarding house, if the boarding house is to be sold or used as security:

    • “(c) where entry to the room is necessary to enable the landlord to fulfil his or her obligations under this Act:

    • “(d) where the landlord has reasonable grounds to believe that a tenant of the room has failed to comply with his or her obligations as a tenant under this Act:

    • “(e) the landlord wishes to confirm whether or not a tenant of the room has abandoned the tenancy:

    • “(f) the landlord wishes to inspect the room and no entry for that purpose has been made within the last 4 weeks:

    • “(g) to inspect work that the landlord has required the tenant to carry out or that the tenant has agreed to carry out.

    “(2) The tenant may be notified of the proposed entry orally or in writing.

    “(3) The notice must—

    • “(a) state the purpose of the entry, which must be one of the purposes listed in subsection (1); and

    • “(b) identify the person or persons who will enter the room; and

    • “(c) state the date on which entry will be made and the approximate time of entry.

    “(4) If the notice is in writing, it must be served on the tenant by—

    • “(a) giving it to the tenant in person; or

    • “(b) putting it on the door of the tenant’s room; or

    • “(c) putting it inside the tenant’s room (for example, by sliding it under the door).

    “Compare: Residential Tenancies Act 1997 ss 137, 139 (Vic)

  “66T Consequence of abuse, or refusal, of right of entry

  • “(1) The following are unlawful acts:

    • “(a) entry into a tenant’s room by a landlord otherwise than in accordance with section 66R:

    • “(b) the use or threat of force by the landlord to enter or attempt to enter a tenant’s room (other than as provided for in section 66R(1)(b) or (c)):

    • “(c) failure by a tenant of a boarding room (or any person occupying the tenant’s room with the tenant’s permission) to permit the entry by the landlord into the tenant’s room when the person entering is exercising a right of entry in accordance with section 66R.

    “(2) A landlord who uses or threatens to use force to gain entry into a tenant’s room in breach of subsection (1)(b) commits an offence and is liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding $2,000.

    “(3) If a landlord enters a tenant’s room under section 66R(2), but does not comply with sections 66R(3) and 66S, the tenant may apply to the Tribunal for an order prohibiting the landlord from exercising the right to enter under section 66R(2) for a period specified in the order.

    “(4) If a landlord damages any property of a tenant while in the tenant’s room, the tenant may apply to the Tribunal for compensation for the damage.

    “Compare: Residential Tenancies Act 1997 ss 140, 141 (Vic)

  “Termination

  “66U Termination of tenancy by landlord

  • “(1) The landlord of a boarding house may terminate a boarding house tenancy—

    • “(a) immediately, if the tenant has—

      • “(i) caused, or threatened to cause, serious damage to the premises; or

      • “(ii) endangered, or threatened to endanger, people or property; or

      • “(iii) caused, or threatened to cause, serious disruption to other tenants; or

    • “(b) on 48 hours’ notice, if—

      • “(i) the landlord has, by written notice to the tenant, required the tenant to pay any rent in arrears within a stated period of not less than 10 days, commencing on the day the notice is given, and the tenant fails to pay the rent in arrears within the stated period; or

      • “(ii) the tenant is using the premises for an illegal purpose; or

      • “(iii) the landlord believes, having complied with section 66X, that the tenant has abandoned the room; or

    • “(c) on 14 days’ notice, if the tenancy is also a service tenancy, in which case section 53 applies; or

    • “(d) on 28 days’ notice, if no reason is given.

    “(2) A notice of termination given by a landlord to a tenant of a boarding house must—

    • “(a) be in writing; and

    • “(b) state the date on which the notice is given; and

    • “(c) state the date on which the termination takes effect; and

    • “(d) state the reason for the termination (unless 28 days’ notice is given, in which case no reason need be given); and

    • “(e) state the name of the tenant; and

    • “(f) state the name, contact address, and telephone number of the landlord or his or her agent.

    “(3) Subsections (4) to (9) of section 51 apply, with all necessary modifications, to a notice of termination given by the landlord of a boarding house.

    “(4) To avoid doubt, section 54 (which provides that the Tribunal may order that notice by a landlord is of no effect in certain circumstances) applies to boarding house tenancies.

  “66V When tenant may terminate tenancy

  • “(1) A tenant under a boarding house tenancy may terminate the tenancy by giving at least 48 hours’ notice to the landlord.

    “(2) A tenant need not give notice in writing.

    “(3) If a boarding house tenancy is also a service tenancy, the requirement in section 53(1) that a tenant give not less than 14 days’ notice does not apply.

  “66W Termination of tenancy on death of sole tenant

  • A boarding house tenancy terminates 48 hours after the death of a sole tenant under the tenancy.

  “Abandonment

  “66X Abandonment by tenant

  • “(1) If the tenant of a boarding house is in arrear with the rent, and if the landlord has reason to believe that the tenant has abandoned the premises, the landlord—

    • “(a) may put a notice on the door of the tenant’s boarding room advising the tenant that the landlord will enter the room 24 hours later to confirm whether or not the tenant has abandoned the tenancy; and

    • “(b) must make all reasonable efforts to contact the contact person (if any) identified in the tenant’s tenancy agreement.

    “(2) The landlord must not enter the room until at least 24 hours after putting the notice on the door.

    “(3) If, after inspecting the room and making contact (if possible) with the tenant’s contact person, the landlord considers, on reasonable grounds, that the tenant has abandoned the room, the landlord may terminate the tenancy by putting a notice of termination that complies with subsection (4) and section 66S(1) on the door of the tenant’s room.

    “(4) The notice of termination must specify the date and time on which the tenancy terminates, which must be a time no sooner than 48 hours after the notice is put on the door.

    “(5) It is declared that a tenant commits an unlawful act if, without reasonable excuse, he or she abandons the premises when the rent is in arrear.

  “66Y Possession orders

  • “(1) A landlord may apply to the Tribunal for a possession order if—

    • “(a) the landlord has given the tenant notice under section 66U and the tenant has not quit the premises within the period specified in the notice; or

    • “(b) the tenant has given the landlord notice under section 66V and the tenant has not quit the premises within the period specified by the tenant.

    “(2) If the Tribunal is satisfied that the notice of termination was properly given and has not been withdrawn, it must make an order granting possession of the premises to the landlord.”