South Australia Residential Tenancies Act 1995

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Version: 1.2.2010
[12.2.2010] This version is not published under the Legislation Revision and Publication Act 2002 1
South Australia
Residential Tenancies Act 1995
An Act to regulate the relationship of landlord and tenant under residential tenancy
agreements; and for other purposes.
Contents
Part 1—Preliminary
1 Short title
3 Interpretation
4 Presumption of periodicity in case of short fixed terms
5 Application of Act
Part 2—Administration
6 Administration of this Act
7 Ministerial control of administration
8 The Commissioner's functions
10 Annual report
Part 3—Residential Tenancies Tribunal
Division 1—The Tribunal and its membership
11 Continuation of Tribunal
12 Membership of the Tribunal
13 Presiding and Deputy Presiding Members
14 Remuneration
15 Registrars
16 Registrar may exercise jurisdiction in certain cases
17 Magistrates may exercise jurisdiction in certain cases
18 Immunities
Division 2—Proceedings before the Tribunal
19 Constitution
20 Times and places of sittings
21 Duty to act expeditiously
22 Sittings generally to be in public
23 Offices of the Tribunal
Division 3—The Tribunal's jurisdiction
24 Jurisdiction of Tribunal
25 Application to Tribunal
Residential Tenancies Act 1995—1.2.2010
Contents
2 This version is not published under the Legislation Revision and Publication Act 2002 [12.2.2010]
Division 4—Conferences
26 Conferences
27 Presiding officer
28 Registrar to notify parties
29 Procedure
30 Restriction on evidence
Division 5—Evidentiary and procedural powers
31 Tribunal's powers to gather evidence
32 Procedural powers of the Tribunal
33 General powers of the Tribunal to cure irregularities
Division 6—Mediation
34 Mediation
Division 7—Judgments and orders
35 Special powers to make orders and give relief
36 Enforcement of orders
37 Application to vary or set aside order
38 Costs
Division 8—Obligation to give reasons for decisions
39 Reasons for decisions
Division 9—Reservation of questions of law and appeals
40 Reservation of questions of law
41 Appeals
42 Stay of proceedings
Division 10—Miscellaneous
43 Entry and inspection of property
44 Contempt of the Tribunal
45 Punishment of contempts
46 Fees
47 Procedural rules
Part 4—Mutual rights and obligations of landlord and tenant
Division 1—Entering into residential tenancy agreement
48 Tenant to be notified of landlord's name etc
49 Written residential tenancy agreements
50 Cost of preparing agreement
51 False information from tenant
Division 2—Discrimination against tenants with children
52 Discrimination against tenants with children
Division 3—Rent
53 Permissible consideration for residential tenancy
54 Rent in advance
55 Variation of rent
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Contents
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56 Excessive rent
57 Landlord's duty to keep proper records of rent
58 Duty to give receipt for rent
59 Accrual and apportionment of rent
60 Abolition of distress for rent
Division 4—Security bonds
61 Security bond
62 Receipt of security and transmission to the Commissioner
63 Repayment of security bond
Division 5—Tenant's entitlement to possession and quiet enjoyment
64 Vacant possession etc
65 Quiet enjoyment
Division 6—Security of premises
66 Security of premises
Division 7—Landlord's obligation in regard to condition of the premises
67 Cleanliness
68 Landlord's obligation to repair
Division 8—Tenant's obligations in relation to the premises and ancillary property
69 Tenant's responsibility for cleanliness and damage
70 Alteration of premises
Division 9—Tenant's conduct on the premises
71 Tenant's conduct
Division 10—Landlord's right of entry
72 Right of entry
Division 11—Rates, taxes and charges
73 Rates, taxes and charges
Division 12—Assignment
74 Assignment of tenant's rights under residential tenancy agreement
Division 13—Tenant's vicarious liability
75 Vicarious liability
Division 14—Harsh or unconscionable terms
76 Harsh or unconscionable terms
Division 15—Miscellaneous
77 Accelerated rent and liquidated damages
78 Duty of mitigation
Residential Tenancies Act 1995—1.2.2010
Contents
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Part 5—Termination of residential tenancy agreements
Division 1—Termination generally
79 Termination of residential tenancy
Division 2—Termination by the landlord
80 Notice of termination by landlord on ground of breach of the agreement
81 Termination because possession is required by the landlord for certain purposes
82 Termination of residential tenancy by housing co-operative
83 Termination by landlord without specifying a ground of termination
84 Limitation of right to terminate
Division 3—Termination by tenant
85 Notice of termination by tenant on ground of breach of the agreement
86 Termination by tenant without specifying a ground of termination
Division 4—Termination by the Tribunal
87 Termination on application by landlord
88 Termination on application by tenant
89 Termination based on hardship
90 Tribunal may terminate tenancy where tenant's conduct unacceptable
Division 5—Notices of termination
91 Form of notice of termination
92 Termination of periodic tenancy
Division 6—Repossession of premises
93 Order for possession
94 Abandoned premises
95 Repossession of premises
96 Forfeiture of head tenancy not to result automatically in destruction of right to possession
under residential tenancy agreement
Division 7—Abandoned goods
97 Abandoned goods
Division 8—Miscellaneous
98 Bailiffs
99 Enforcement of orders for possession
Part 6—Residential Tenancies Fund
100 Residential Tenancies Fund
101 Application of income
102 Accounts and audit
Part 7—Rooming houses
103 Codes of conduct
104 Obligation to comply with codes of conduct
105 Jurisdiction of the Tribunal
105A Implied terms
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Part 8—Dispute resolution
Division 1—Mediation
106 Responsibility of the Commissioner to arrange for mediation of disputes
107 Mediation of dispute
108 Statements made in the course of mediation proceedings
Division 2—Intervention
109 Power to intervene
Division 3—Powers of the Tribunal
110 Powers of the Tribunal
111 Conditional and alternative orders
112 Restraining orders
Division 4—Representation
113 Representation in proceedings before the Tribunal
114 Remuneration of representative
Part 9—Miscellaneous
115 Contract to avoid Act
116 Overpayment of rent
117 Notice by landlord not waived by acceptance of rent
118 Exemptions
119 Tribunal may exempt agreement or premises from provision of Act
120 Service
121 Regulations
Schedule—Transitional provisions
2 Definitions
3 Retrospective operation
4 Proceedings
5 Interest on money lodged in Fund under former Act
Legislative history
The Parliament of South Australia enacts as follows:
Part 1—Preliminary
1—Short title
This Act may be cited as the Residential Tenancies Act 1995.
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Part 1—Preliminary
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3—Interpretation
(1) In this Act, unless the contrary intention appears—
ancillary property means property (not forming part of premises subject to a
residential tenancy agreement) that is provided by the landlord, either under the
residential tenancy agreement or independently of the agreement, for use by the
tenant;
Commissioner means the Commissioner for Consumer Affairs;
Fund means the Residential Tenancies Fund;
housing improvement notice means a notice of intention to declare premises
substandard, a notice declaring premises to be substandard, or a notice fixing the
maximum rent payable for premises, under Part 7 of the Housing Improvement
Act 1940;
landlord means—
(a) the person who grants the right of occupancy under a residential tenancy
agreement; or
(b) a successor in title to the tenanted premises whose title is subject to the
tenant's interest,
and includes a prospective landlord and a former landlord;
lawyer means a person entitled to practise the profession of the law under the Legal
Practitioners Act 1981;
mediation of a dispute includes preliminary assistance in dispute resolution such as
the giving of advice to ensure that—
(a) the parties to the dispute are fully aware of their rights and obligations; and
(b) there is full and open communication between the parties about the dispute;
premises includes a part of premises;
registered agent means a person registered as an agent under the Land Agents
Act 1994;
registered housing co-operative means a housing co-operative registered under the
Housing Co-operatives Act 1991;
rent means an amount payable under a residential tenancy agreement for the right to
occupy premises for a period of the tenancy;
residential premises means premises for occupation as a place of residence;
residential tenancy agreement means an agreement (other than a rooming house
agreement) under which a person grants another person, for valuable consideration, a
right (which may, but need not, be an exclusive right1) to occupy premises for the
purpose of residence;
rooming house means residential premises in which—
(a) rooms are available, on a commercial basis, for residential occupation; and
(b) accommodation is available for at least three persons on a commercial basis;
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Preliminary—Part 1
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rooming house agreement means an agreement under which accommodation is
provided (with or without meals, or other facilities or services) in a rooming house;
rooming house proprietor means a person who carries on a business involving the
provision of accommodation under rooming house agreements;
rooming house resident means a person who boards or lodges in a rooming house;
Rules means the rules of the Tribunal;
security means an amount a tenant is required to pay under a residential tenancy
agreement, or an agreement collateral to a residential tenancy agreement, as security
for the performance of obligations under a residential tenancy agreement;
security bond means a provision of a residential tenancy agreement or a collateral
agreement under which a tenant is required to give security for the performance of
obligations under a residential tenancy agreement;
statutory rates, taxes and charges means—
(a) rates or charges imposed under the Local Government Act 1934; and
(b) rates or charges imposed under the Waterworks Act 1932 or the Sewerage
Act 1929; and
(c) land tax under the Land Tax Act 1936;
tenancy dispute means—
(a) a claim under a residential tenancy agreement, a rooming house agreement, or
an agreement collateral to a residential tenancy agreement or a rooming house
agreement; or
(b) a dispute between parties or former parties to a residential tenancy agreement,
a rooming house agreement, or an agreement collateral to a residential
tenancy agreement or a rooming house agreement, about matters arising
under the agreement or this Act;
tenant means the person who is granted a right of occupancy under a residential
tenancy agreement or a person to whom the right passes by assignment or operation of
law and includes a prospective tenant or a former tenant;
Tribunal means the Residential Tenancies Tribunal.
(2) If this Act provides for something to be done within a specified period from a
particular day, the period will be taken not to include the particular day.
(3) If this Act provides that action may be taken after the expiration of a specified period
of days, the period will be taken to be a period of clear days.
(4) For the purposes of this Act, a residential tenancy agreement includes an agreement
granting a corporation the right to occupy premises that are occupied, or that are
intended to be occupied, as a place of residence by a natural person.
Note—
1 However, it should be noted that the Act confers certain protections against intrusion on
the premises by the landlord. Hence, even if the agreement does not, in its terms, confer
an exclusive right to occupation, the Act will (at least in some respects) assimilate the
right of occupation to the exclusive right conferred by a lease.
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Part 1—Preliminary
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4—Presumption of periodicity in case of short fixed terms
(1) If a residential tenancy agreement is entered into for a short fixed term, the agreement
is taken to be an agreement for a periodic tenancy with a period equivalent to the
length of the fixed term unless the landlord establishes that—
(a) the tenant genuinely wanted a tenancy ending at the end of the short fixed
term and the term was fixed at the tenant's request; or
(b) before the residential tenancy agreement was entered into—
(i) the landlord gave the tenant a notice containing a warning in the
form required by regulation; and
(ii) the tenant signed a statement in the form required by regulation
acknowledging that the tenant did not expect to continue in
possession of the premises after the end of the term stated in the
agreement.
(2) A short fixed term is a term of 90 days or less.
5—Application of Act
(1) This Act does not apply to—
(a) an agreement giving a right of occupancy in—
(i) a hotel or motel; or
(ii) an educational institution, college, hospital or nursing home; or
(iii) club premises; or
(iv) a home for aged or disabled persons administered by an eligible
organisation under the Aged or Disabled Persons Care Act 1954 of
the Commonwealth; or
(v) a retirement village within the meaning of the Retirement Villages
Act 1987; or
(vi) a supported residential facility within the meaning of the Supported
Residential Facilities Act 1992; or
(vii) prescribed premises, or premises of a prescribed class; or
(ab) an agreement to which the Residential Parks Act 2007 applies; or
(b) an agreement (other than a rooming house agreement) under which a person
boards or lodges with another; or
(c) an agreement genuinely entered into for the purpose of conferring on a person
a right to occupy premises for a holiday; or
An agreement conferring a right to occupy premises for a fixed term of
60 days or longer will be taken, in the absence of proof to the contrary, not to
have been genuinely entered into for the purpose of conferring a right to
occupy premises for a holiday.
(d) an agreement conferring a right to occupy premises for the purpose of
residence but under which no rent is payable; or
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Preliminary—Part 1
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Example—
An agreement under which families exchange houses for an agreed period
would not be a residential tenancy agreement if no rent were payable under the
agreement.
(e) an agreement for the sale of land that confers a right to occupy premises on a
party to the agreement; or
(f) a mortgage; or
(g) an agreement arising under a scheme in which—
(i) a complex of adjacent premises is owned by a company; and
(ii) the premises are let by the company to persons who jointly have a
controlling interest in the company; or
(h) a prescribed agreement or an agreement of a prescribed class.
(1a) The regulations may exclude prescribed classes of agreements that relate to land
owned (wholly or in part) by the South Australian Housing Trust, or by a subsidiary of
the South Australian Housing Trust, from the operation of subsection (1)(e).
(2) The following provisions of this Act (and only those provisions) apply to residential
tenancy agreements under which the South Australian Housing Trust or a subsidiary
of the South Australian Housing Trust is the landlord, to residential tenancies arising
under those agreements and to related disputes—
(a) Part 3 (Residential Tenancies Tribunal);
(ab) Section 65 (Quiet enjoyment);
(b) Section 66 (Security of premises);
(c) Section 71 (Tenant's conduct);
(ca) Section 87 (Termination on application by landlord);
(d) Section 90 (Tribunal may terminate tenancy where tenant's conduct
unacceptable);
(e) Section 93 (Order for possession);
(f) Section 99 (Enforcement orders for possession);
(g) Division 3 of Part 8 (Powers of the tribunal);
(h) Division 4 of Part 8 (Representation).
Part 2—Administration
6—Administration of this Act
The Commissioner is responsible for the administration of this Act.
7—Ministerial control of administration
The Commissioner is, in the administration of this Act, subject to control and direction
by the Minister.
Residential Tenancies Act 1995—1.2.2010
Part 2—Administration
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8—The Commissioner's functions
The Commissioner has the following functions:
(a) investigating and researching matters affecting the interests of parties to
residential tenancy agreements and rooming house agreements; and
(b) publishing reports and information on subjects of interest to the parties to
residential tenancy agreements and rooming house agreements; and
(c) giving advice (to an appropriate extent) on the provisions of this Act and
other subjects of interest to the parties to residential tenancy agreements and
rooming house agreements; and
(d) investigating suspected infringements of this Act and taking appropriate
action to enforce the Act; and
(e) making reports to the Minister on questions referred to the Commissioner by
the Minister and other questions of importance affecting the administration of
this Act; and
(f) administering the Fund.
10—Annual report
(1) The Commissioner must, on or before 31 October in each year, prepare and forward to
the Minister a report on the administration of this Act for the year ending on the
preceding 30 June.
(2) The report must include a report on the administration of the Fund.
(3) The Minister must, within six sitting days after receiving a report under this section,
have copies of the report laid before both Houses of Parliament.
Part 3—Residential Tenancies Tribunal
Division 1—The Tribunal and its membership
11—Continuation of Tribunal
The Residential Tenancies Tribunal continues in existence.
12—Membership of the Tribunal
(1) Members of the Tribunal are appointed by the Governor.
(2) A member of the Tribunal is appointed for a term (not exceeding five years) specified
in the instrument of appointment and, at the end of a term of appointment, is eligible
for reappointment.
(3) A member of the Tribunal is appointed on conditions specified in the instrument of
appointment.
(4) The office of member of the Tribunal may be held in conjunction with an office or
position in the public service of the State.
(5) The Governor may remove a member of the Tribunal from office for—
(a) breach of, or non-compliance with, a condition of appointment; or
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Residential Tenancies Tribunal—Part 3
The Tribunal and its membership—Division 1
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(b) misconduct; or
(c) failure or incapacity to carry out official duties satisfactorily.
(6) The office of a member of the Tribunal becomes vacant if the member—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) is convicted of an offence punishable by imprisonment; or
(e) is removed from office under subsection (5).
13—Presiding and Deputy Presiding Members
(1) The Governor may appoint a member of the Tribunal to be the Presiding Member or a
Deputy Presiding Member of the Tribunal.
(2) A person may only be appointed as the Presiding Member or a Deputy Presiding
Member of the Tribunal if the person is legally qualified.
(3) A Deputy Presiding Member may exercise powers and functions of the Presiding
Member by delegation from the Presiding Member.
(4) If the Presiding Member is absent, or there is a temporary vacancy in the office of the
Presiding Member, the powers, functions and duties of the Presiding Member devolve
on a Deputy Presiding Member appointed by the Governor to act in the absence of the
Presiding Member or, if no such appointment has been made, on the most senior
Deputy Presiding Member of the Tribunal.
(5) A member who holds office as the Presiding Member or a Deputy Presiding Member
of the Tribunal continues in that office until the term of office as member falls due for
renewal and, if the member's term of office is renewed, the appointment as Presiding
Member or Deputy Presiding Member may (but need not be) renewed also.
14—Remuneration
A member of the Tribunal is entitled to remuneration, allowances and expenses
determined by the Governor.
15—Registrars
(1) The Governor may appoint a person to be the registrar or a deputy registrar of the
Tribunal.
(2) The office of registrar or deputy registrar may be held in conjunction with another
office in the public service of the State.
16—Registrar may exercise jurisdiction in certain cases
The registrar or a deputy registrar may—
(a) exercise the jurisdiction of the Tribunal if specifically authorised to do so by
or under this Act; and
(b) subject to direction by the Presiding Member of the Tribunal—exercise the
jurisdiction of the Tribunal in respect of classes of matters, or in
circumstances, specified by the regulations.
Residential Tenancies Act 1995—1.2.2010
Part 3—Residential Tenancies Tribunal
Division 1—The Tribunal and its membership
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17—Magistrates may exercise jurisdiction in certain cases
(1) A magistrate may exercise the jurisdiction of the Tribunal.
(2) The regulations may prescribe a scheme for the listing of matters before magistrates.
(3) A regulation cannot be made for the purposes of subsection (2) except after the
Minister has consulted with the Presiding Member of the Tribunal and the Chief
Magistrate.
(4) A magistrate exercising the jurisdiction of the Tribunal is taken to be a member of the
Tribunal.
18—Immunities
A member or officer of the Tribunal incurs no civil or criminal liability for an honest
act or omission in carrying out or purportedly carrying out official functions.
Division 2—Proceedings before the Tribunal
19—Constitution
(1) The Tribunal is constituted for the purpose of hearing proceedings of a single member
of the Tribunal.
(2) The Tribunal may, at any one time, be separately constituted for the hearing and
determination of a number of separate matters.
20—Times and places of sittings
(1) The Tribunal may sit at any time (including a Sunday).
(2) The Tribunal may sit at any place.
21—Duty to act expeditiously
The Tribunal must, where practicable, hear and determine proceedings within 14 days
after the proceedings are commenced and, if that is not practicable, as expeditiously as
possible.
22—Sittings generally to be in public
(1) Subject to any contrary provision of an Act or regulation, the Tribunal's proceedings
must be open to the public.
(2) However, the Tribunal may, in an appropriate case, order that proceedings be held in
private.
23—Offices of the Tribunal
Offices of the Tribunal will be maintained at such places as the Minister may
determine.
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Residential Tenancies Tribunal—Part 3
The Tribunal's jurisdiction—Division 3
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Division 3—The Tribunal's jurisdiction
24—Jurisdiction of Tribunal
(1) The Tribunal has—
(a) exclusive jurisdiction to hear and determine a matter that may be the subject
of an application under this Act;
(b) subject to the regulations—jurisdiction to hear and determine claims or
disputes arising from tenancies granted for residential purposes by the South
Australian Housing Trust or a subsidiary of the South Australian Housing
Trust, or arising under agreements collateral to such tenancies (including such
agreements that may involve a third party);
(c) the other jurisdictions conferred on the Tribunal by statute.
(2) However, the Tribunal does not have jurisdiction to hear and determine a monetary
claim if the amount claimed exceeds $10 000 unless the parties to the proceedings
consent in writing to the claim being heard and determined by the Tribunal (and if
consent is given, it is irrevocable).
(3) If a monetary claim is above the Tribunal's jurisdictional limit, the claim and any other
claims related to the same tenancy may be brought in a court competent to hear and
determine a claim founded on contract for the amount of the claim.
(4) A court in which proceedings are brought under subsection (3) may exercise the
powers of the Tribunal under this Act.
(5) If the plaintiff in proceedings brought in a court under this section recovers less than
$10 000, the plaintiff is not entitled to costs unless the court is satisfied that there were
reasonable grounds for the plaintiff to believe that the plaintiff was entitled to $10 000
or more.
25—Application to Tribunal
(1) An application under this Act to the Tribunal must—
(a) be made in writing; and
(b) contain the prescribed particulars.
(2) Before the Tribunal proceeds to hear an application it must—
(a) give the applicant notice in writing setting out the time and place at which it
will hear the application; and
(b) give to any other party—
(i) notice in writing setting out the time and place at which it will hear
the application; and
(ii) notice of the nature of the application as it thinks fit.
Residential Tenancies Act 1995—1.2.2010
Part 3—Residential Tenancies Tribunal
Division 4—Conferences
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Division 4—Conferences
26—Conferences
(1) The Tribunal may refer contested proceedings to a conference of the parties to explore
the possibilities of resolving the matters at issue by agreement and must (subject to
subsection (2)) refer contested proceedings to such a conference if the proceedings are
of a class prescribed by regulation for the purposes of this section.
(2) However, even though proceedings are of a class prescribed by regulation for the
purposes of this section, a conference need not be held if a member or officer of the
Tribunal dispenses with the conference on the ground that the conference would serve
no useful purpose or there is some other proper reason to dispense with the
conference.
27—Presiding officer
A member of the Tribunal, the registrar, or another officer of the Tribunal authorised
by the Presiding Member of the Tribunal, will preside at a conference.
28—Registrar to notify parties
The registrar must notify the parties of the time and place fixed for a conference in a
manner prescribed by the Rules.
29—Procedure
(1) A conference may, at the discretion of the presiding officer, be adjourned from time to
time.
(2) Unless the presiding officer decides otherwise, the conference will be held in private
and the presiding officer may exclude from the conference any person apart from the
parties and their representatives.
(3) A party must, if required by the presiding officer, disclose to the conference details of
the party's case and of the evidence available to the party in support of that case.
(4) A settlement to which counsel or other representative of a party agrees at a conference
is binding on the party.
(5) The presiding officer (if not legally qualified) may refer a question of law arising at
the conference to a member of the Tribunal who is legally qualified for determination.
(6) The presiding officer may record a settlement reached at the conference and make a
determination or order to give effect to the settlement.
(7) A determination or order under subsection (6) is a determination or order of the
Tribunal.
30—Restriction on evidence
Evidence of anything said or done in the course of a conference under this Division is
inadmissible in proceedings before the Tribunal except by consent of all parties to the
proceedings.
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Residential Tenancies Tribunal—Part 3
Evidentiary and procedural powers—Division 5
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Division 5—Evidentiary and procedural powers
31—Tribunal's powers to gather evidence
(1) For the purpose of proceedings, the Tribunal may—
(a) by summons signed by a member, registrar or deputy registrar of the
Tribunal, require a person to attend before the Tribunal;
(b) by summons signed by a member, registrar or deputy registrar of the
Tribunal, require the production of books, papers or documents;
(c) inspect books, papers or documents produced before it, retain them for a
reasonable period, and make copies of them, or of their contents;
(d) require a person appearing before the Tribunal to make an oath or affirmation
that the person will truly answer relevant questions put by the Tribunal or a
person appearing before the Tribunal;
(e) require a person appearing before the Tribunal (whether summoned to appear
or not) to answer any relevant questions put by the Tribunal or a person
appearing before the Tribunal.
(2) If a person—
(a) fails without reasonable excuse to comply with a summons under
subsection (1); or
(b) refuses or fails to comply with a requirement of the Tribunal under
subsection (1); or
(c) misbehaves before the Tribunal, wilfully insults the Tribunal or interrupts the
proceedings of the Tribunal,
the person is guilty of an offence and liable to a penalty not exceeding $2 000.
32—Procedural powers of the Tribunal
(1) In proceedings the Tribunal may—
(a) hear an application in the way the Tribunal considers most appropriate;
(b) decline to entertain an application, or adjourn a hearing, until the fulfilment of
conditions fixed by the Tribunal with a view to promoting the settlement of
matters in dispute between the parties;
(c) decline to entertain an application if it considers the application frivolous;
(d) proceed to hear and determine an application in the absence of a party;
(e) extend a period prescribed by or under this Act within which an application or
other step in respect of proceedings must be made or taken (even if the period
had expired);
(f) vary or set aside an order if the Tribunal considers there are proper grounds
for doing so;
(g) adjourn a hearing to a time or place or to a time and place to be fixed;
(h) allow the amendment of an application;
Residential Tenancies Act 1995—1.2.2010
Part 3—Residential Tenancies Tribunal
Division 5—Evidentiary and procedural powers
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(i) hear an application jointly with another application;
(j) receive in evidence a transcript of evidence in proceedings before a court and
draw conclusions of fact from that evidence;
(k) adopt, as in its discretion it considers proper, the findings, decision or
judgment of a court that may be relevant to the proceedings;
(l) generally give directions and do all things that it thinks necessary or
expedient in the proceedings.
(2) The Tribunal's proceedings must be conducted with the minimum of formality and in
the exercise of its jurisdiction the Tribunal is not bound by evidentiary rules but may
inform itself as it thinks appropriate.
(3) The Tribunal may, on the application of the South Australian Co-operative Housing
Authority, allow the Authority to intervene in proceedings before the Tribunal.
(4) The Authority may only be allowed to intervene if the Tribunal is satisfied that it is
fair and reasonable that the Authority participate in the proceedings.
(5) If the Authority is allowed to intervene in proceedings, it may intervene in the manner
and to the extent directed by the Tribunal, and on other conditions determined by the
Tribunal.
33—General powers of the Tribunal to cure irregularities
(1) The Tribunal may, if satisfied that it would be just and equitable to do so, excuse a
failure to comply with a provision of this Act on terms and conditions the Tribunal
considers appropriate.
(2) The Tribunal may amend proceedings if satisfied that the amendment will contribute
to the expeditious and just resolution of the questions in issue between the parties.
Division 6—Mediation
34—Mediation
(1) If before or during the hearing of proceedings it appears to the Tribunal either from
the nature of the case or from the attitude of the parties that there is a reasonable
possibility of settling the matters in dispute between the parties, the person
constituting the Tribunal may—
(a) appoint, with the consent of the parties, a mediator to achieve a negotiated
settlement; or
(b) personally endeavour to bring about a settlement of the proceedings.
(2) A mediator appointed under this section has the privileges and immunities of a
member of the Tribunal and may exercise any powers of the Tribunal that the Tribunal
may delegate to the mediator.
(3) Nothing said or done in the course of an attempt to settle proceedings under this
section may subsequently be given in evidence in proceedings before the Tribunal
except by consent of all parties to the proceedings.
(4) A member of the Tribunal who attempts to settle proceedings under this section is not
disqualified from hearing or continuing to hear further proceedings in the matter.
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Mediation—Division 6
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(5) If proceedings are settled under this section, the Tribunal may embody the terms of the
settlement in an order.
Division 7—Judgments and orders
35—Special powers to make orders and give relief
(1) The Tribunal may make an order in the nature of an injunction (including an interim
injunction) or an order for specific performance.
(2) However, a member of the Tribunal who is not legally qualified cannot make an order
under subsection (1) without the approval of the Presiding Member of the Tribunal.
(3) Although a particular form of relief is sought by a party to proceedings before the
Tribunal, the Tribunal may grant any other form of relief that it considers more
appropriate to the circumstances of the case.
(4) The Tribunal may make interlocutory orders on matters within its jurisdiction.
(5) The Tribunal may, on matters within its jurisdiction, make binding declarations of
right whether or not any consequential relief is or could be claimed.
(6) The Tribunal may, in the exercise of its jurisdiction, make ancillary or incidental
orders.
36—Enforcement of orders
(1) An order of the Tribunal may be registered in the appropriate court and enforced as an
order of that court.
(2) A person who contravenes an order of the Tribunal (other than an order for the
payment of money) is guilty of an offence.
Maximum penalty: $10 000.
(3) In this section—
appropriate court means—
(a) if the order of the Tribunal is for a monetary amount above the jurisdictional
limit of the Magistrates Court for a monetary claim founded on contract—the
District Court;
(b) in any other case—the Magistrates Court.
37—Application to vary or set aside order
(1) A party to proceedings before the Tribunal may apply to the Tribunal for an order
varying or setting aside an order made in the proceedings.
(2) An application to vary or set aside an order must be made within three months of the
making of the order (unless the Tribunal allows an extension of time).
38—Costs
The Governor may, by regulation, provide that in proceedings of a prescribed class the
Tribunal will not award costs unless—
(a) all parties to the proceedings were represented by legal practitioners; or
Residential Tenancies Act 1995—1.2.2010
Part 3—Residential Tenancies Tribunal
Division 7—Judgments and orders
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(b) the Tribunal is of the opinion that there are special circumstances justifying
an award of costs.
Division 8—Obligation to give reasons for decisions
39—Reasons for decisions
The Tribunal must, if asked by a person affected by a decision or order, state in
writing the reasons for its decision or order.
Division 9—Reservation of questions of law and appeals
40—Reservation of questions of law
(1) The Tribunal may reserve a question of law for determination by the Supreme Court.
(2) If a question of law is reserved, the Supreme Court may decide the question and make
consequential orders and directions appropriate to the circumstances of the case.
41—Appeals
(1) An appeal lies to the District Court from a decision or order of the Tribunal made in
the exercise (or purported exercise) of its powers under this Act.
(2) On an appeal, the District Court may (according to the nature of the case)—
(a) re-hear evidence taken before the Tribunal, or take further evidence;
(b) confirm, vary or quash the Tribunal's decision;
(c) make any order that should have been made in the first instance;
(d) make incidental and ancillary orders.
(3) The appeal must be commenced within one month of the decision or order appealed
against unless the District Court allows an extension of time.
(4) If the reasons of the Tribunal are not given in writing at the time of making a decision
or order and the appellant then requests the Tribunal to state its reasons in writing, the
time for commencing the appeal runs from the time when the appellant receives the
written statement of the reasons.
42—Stay of proceedings
(1) If an order has been made by the Tribunal and the Tribunal or the District Court is
satisfied that an appeal against the order has been commenced, or is intended, it may
suspend the operation of the order until the determination of the appeal.
(2) If the Tribunal suspends the operation of an order, the Tribunal may terminate the
suspension, and if the District Court has done so, the District Court may terminate the
suspension.
Division 10—Miscellaneous
43—Entry and inspection of property
(1) The Tribunal may enter land or a building and carry out an inspection the Tribunal
considers relevant to a proceeding before the Tribunal.
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Miscellaneous—Division 10
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(2) The Tribunal may authorise a person to enter land or a building and carry out an
inspection the Tribunal considers relevant to a proceeding before the Tribunal.
(3) A person who obstructs the Tribunal, or a person authorised by the Tribunal, in
exercising a power of entry or inspection under this section commits a contempt of the
Tribunal.
44—Contempt of the Tribunal
A person who—
(a) interrupts the proceedings of the Tribunal or misbehaves before the Tribunal;
or
(b) insults the Tribunal or an officer of the Tribunal acting in the exercise of
official functions; or
(c) refuses, in the face of the Tribunal, to obey a lawful direction of the Tribunal,
is guilty of a contempt of the Tribunal.
45—Punishment of contempts
(1) The Tribunal may punish a contempt as follows:
(a) it may impose a fine not exceeding $2 000; or
(b) it may commit to prison until the contempt is purged subject to a limit (not
exceeding six months) to be fixed by the Tribunal at the time of making the
order for commitment.
(2) The powers conferred by this section may only be exercised by a member of the
Tribunal who is legally qualified.
46—Fees
(1) The Governor may, by regulation, prescribe and provide for the payment of fees in
relation to proceedings in the Tribunal.
(2) The registrar may remit or reduce a fee if the party by whom the fee is payable is
suffering financial hardship, or for any other proper reason.
47—Procedural rules
(1) The Governor may, by regulation—
(a) prescribe matters relevant to the practice and procedures of the Tribunal; and
(b) provide for the service of any process, notice or other document relevant to
proceedings before the Tribunal (including circumstances where substituted
service in accordance with the regulations or an order of the Tribunal will
constitute due service); and
(c) deal with other matters necessary for the effective and efficient operation of
the Tribunal.
(2) The Presiding Member of the Tribunal may make Rules of the Tribunal relevant to the
practice and procedure of the Tribunal, or to assist in the effective and efficient
operation of the Tribunal, insofar as those matters are not dealt with by the
regulations.
Residential Tenancies Act 1995—1.2.2010
Part 3—Residential Tenancies Tribunal
Division 10—Miscellaneous
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(3) The Rules take effect as from the date of publication in the Gazette or a later date
specified in the rules.
Part 4—Mutual rights and obligations of landlord and tenant
Division 1—Entering into residential tenancy agreement
48—Tenant to be notified of landlord's name etc
(1) A landlord under a residential tenancy agreement must, at the time of entering into the
agreement, notify the tenant in writing of—
(a) the full name and address of the landlord and of any person with superior title
to the landlord; and
(b) if the landlord or the person with superior title to the landlord is a company—
the address of the registered office of the company.
Maximum penalty: $500.
Expiation fee: $75.
(2) If a person succeeds another as the landlord under a residential tenancy agreement, the
new landlord must, within 14 days, notify the tenant in writing of—
(a) the full name and address of the new landlord; and
(b) if the new landlord is a company—the address of the registered office of the
company.
Maximum penalty: $500.
Expiation fee: $75.
(3) The requirement to notify the address of a person is not satisfied by giving the address
of the person's agent.
(4) If a name or address of which the landlord is required to notify the tenant under this
section changes, the landlord must, within 14 days, notify the tenant in writing of the
change.
Maximum penalty: $500.
Expiation fee: $75.
49—Written residential tenancy agreements
If a landlord (or an agent acting for a landlord) invites or requires a tenant or
prospective tenant to sign a written residential tenancy agreement or a document
recording its terms, the landlord must ensure that—
(a) the tenant receives a copy of the document when the tenant signs it; and
(b) if the document has not then been signed by the landlord, a copy of the
document, as executed by all parties, is delivered to the tenant within 21 days
after the tenant gives the document back to the landlord or the landlord's
agent to complete its execution.
Maximum penalty: $500.
Expiation fee: $75.
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Mutual rights and obligations of landlord and tenant—Part 4
Entering into residential tenancy agreement—Division 1
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50—Cost of preparing agreement
The cost of preparing a written residential tenancy agreement, or a document
recording its terms, must be borne by the landlord.
Note—
Residential tenancy agreements are exempt from stamp duty.
51—False information from tenant
A tenant must not give a landlord false information about the tenant's identity or place
of occupation.
Maximum penalty: $500.
Division 2—Discrimination against tenants with children
52—Discrimination against tenants with children
(1) A person must not refuse to grant a tenancy to another on the ground that it is intended
that a child should live on the premises.
Maximum penalty: $1 000.
(2) A person must not—
(a) instruct a person not to grant; or
(b) state an intention (by advertisement or in any other way) not to grant,
a tenancy on the ground that it is intended that a child should live on the premises.
Maximum penalty: $1 000.
(3) However, this section does not apply if the landlord, or an agent appointed by the
landlord to manage the premises, resides in the premises to which the tenancy relates
or in premises adjacent to those premises.
Division 3—Rent
53—Permissible consideration for residential tenancy
(1) A person must not require or receive from a tenant or prospective tenant a payment,
other than rent or security (or both), for a residential tenancy or the renewal or
extension of a residential tenancy.
Maximum penalty: $500.
(2) However—
(a) the landlord may lawfully require or receive consideration for an option to
enter into a residential tenancy agreement but, in that case, the following
condition applies:
(i) if the prospective tenant enters into the residential tenancy
agreement, the landlord must apply the consideration towards rent
payable under the agreement;
(ii) if the prospective tenant does not exercise the option to enter into the
residential tenancy agreement, the landlord may retain the
consideration; and
Residential Tenancies Act 1995—1.2.2010
Part 4—Mutual rights and obligations of landlord and tenant
Division 3—Rent
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(b) the landlord may require the tenant to reimburse the landlord for rates and
charges for water supply that are to be borne by the tenant under the
residential tenancy agreement or a collateral agreement; and
(c) the landlord may lawfully require or receive a payment of a class the landlord
is authorised to require or receive by another provision of this Act or under
the regulations.
54—Rent in advance
(1) A person must not require1 the payment of more than two weeks' rent under a
residential tenancy agreement before the end of the first two weeks of the tenancy.
Maximum penalty: $500.
(2) If rent has been paid under a residential tenancy agreement, a person must not require1
a further payment of rent until the end of the last period for which rent has been paid.
Maximum penalty: $500.
(3) A person must not require another to give a post-dated cheque or other post-dated
negotiable instrument in payment of rent under a residential tenancy agreement.
Maximum penalty: $500.
Note—
1 The prohibition is against requiring payment of rent for more than two weeks in advance.
Hence, if a tenant voluntarily elects to pay rent for more than two weeks in advance, the
landlord (or the landlord's agent) may lawfully accept the payment.
55—Variation of rent
(1) The landlord may increase the rent payable under a residential tenancy agreement by
giving written notice to the tenant specifying the date as from which the increase takes
effect.
A series of residential tenancy agreements between the same parties and relating
to the same premises is treated as a single residential tenancy agreement for the
purposes of this section unless at least six months have elapsed since rent for the
premises was fixed or last increased.
(2) However—
(a) the right to increase the rent may be excluded or limited by the terms of the
residential tenancy agreement; and
(b) if the tenancy is for a fixed term, the residential tenancy agreement is taken to
exclude an increase in rent during the term unless it specifically allows for an
increase in rent; and
(c) the date fixed for an increase of rent must be at least six months after the date
of the agreement or, if there has been a previous increase of rent under this
section, the last increase and at least 60 days after the notice is given but—
(i) if the maximum rent for the premises has been fixed by a housing
improvement notice, and the notice is revoked, the landlord may, by
notice given under this section within 60 days after revocation of the
housing improvement notice, increase the rent for the premises from
a date falling at least 14 days after the notice is given; and
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Rent—Division 3
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(ii) if the landlord is a registered housing co-operative, and the
residential tenancy agreement provides for variation of rent in
accordance with the tenant's income, the landlord may increase the
rent on the ground of a variation in the tenant's income from a date
falling at least 14 days after the notice of the increased rent is given;
and
(iii) if the landlord is a registered housing co-operative under a residential
tenancy agreement that allows the landlord to change the basis of
calculating the rent payable under the agreement, and the landlord
gives the tenant written notice that there is to be a change in the basis
of calculating rent as from a specified date (which must be at least 60
days after the notice is given and at least six months from the date of
the agreement, or if there has been a previous change in the basis of
rent calculation, at least six months from the date of the last such
change), the rent may be increased to accord with the new basis of
rent calculation as from the specified date without further notice
under this section.
(3) The rent payable under a residential tenancy agreement may be reduced by mutual
agreement between the landlord and the tenant.
(4) A reduction of rent may be made on a temporary basis so that the rent reverts to the
level that would have been otherwise applicable at the end of a specified period.
(5) If the rent payable under a residential tenancy agreement is increased or reduced under
this section, the terms of the agreement are varied accordingly.
(6) This section does not affect the operation of a provision of a residential tenancy
agreement under which the rent payable under the agreement changes automatically at
stated intervals on a basis set out in the agreement.
56—Excessive rent
(1) The Tribunal may, on application by a tenant, declare that the rent payable under a
residential tenancy agreement is excessive.
(2) In deciding whether the rent payable under a residential tenancy agreement is
excessive, the Tribunal must have regard to—
(a) the general level of rents for comparable premises in the same or similar
localities; and
(b) the estimated capital value of the premises at the date of the application; and
(c) the outgoings for which the landlord is liable under the agreement; and
(d) the estimated cost of services provided by the landlord and the tenant under
the agreement; and
(e) the nature and value of furniture, equipment and other personal property
provided by the landlord for the tenant's use; and
(f) the state of repair and general condition of the premises; and
(g) other relevant matters.
Residential Tenancies Act 1995—1.2.2010
Part 4—Mutual rights and obligations of landlord and tenant
Division 3—Rent
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(3) If the Tribunal finds, on an application under this section, that the rent payable under a
residential tenancy agreement is excessive, the Tribunal may, by order—
(a) fix the rent payable for the premises and vary the agreement by reducing the
rent payable under the agreement accordingly; and
(b) fix a date (which cannot be before the date of the application) from which the
variation takes effect; and
(c) fix a period (which cannot exceed one year) for which the order is to remain
in force.
(4) The Tribunal may, on application by the landlord, vary or revoke an order under this
section if satisfied that it is just to do so.
(5) If, while an order remains in force under this section, a landlord asks for or receives
rent for the premises to which the order relates exceeding the amount fixed by the
order, the landlord is guilty of an offence.
Maximum penalty: $1 000.
57—Landlord's duty to keep proper records of rent
(1) A landlord under a residential tenancy agreement must ensure that a proper record is
kept of rent received under the agreement.
Maximum penalty: $500.
(2) A person must not—
(a) make a false entry in a record of the rent received under a residential tenancy
agreement; or
(b) falsify the record in any other way.
Maximum penalty: $1 000.
58—Duty to give receipt for rent
(1) A person who receives rent under a residential tenancy agreement must, within 48
hours after receiving the rent, give the person paying the rent a receipt stating—
(a) the date on which the rent was received; and
(b) the name of the person paying the rent; and
(c) the amount paid; and
(d) the period of the tenancy to which the payment relates; and
(e) the address of the premises to which the payment relates.
Maximum penalty: $500.
Expiation fee: $75.
(2) However, if the tenant pays the rent into an account kept by the landlord or the
landlord's agent at an ADI, and the landlord, or the landlord's agent keeps a written
record containing the information required by subsection (1), a receipt need not be
given.
59—Accrual and apportionment of rent
(1) The rent payable under a residential tenancy agreement accrues from day to day.
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Mutual rights and obligations of landlord and tenant—Part 4
Rent—Division 3
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(2) If rent is paid in advance, and the tenancy ends before the end of the period for which
rent has been paid, the landlord must refund the appropriate proportion of the amount
paid to the tenant or apply it towards other liabilities of the tenant to the landlord.
60—Abolition of distress for rent
A landlord is not entitled to distrain goods of a tenant for non-payment of the rent
payable under a residential tenancy agreement.
Division 4—Security bonds
61—Security bond
(1) A person must not—
(a) require more than one security bond for the same residential tenancy
agreement; or
(b) require the payment of security exceeding the relevant limit.
Maximum penalty: $1 000.
(2) If at least two years have elapsed since the security under a security bond was given or
last increased, the landlord may by written notice to the tenant require the tenant to
increase the security by a specified additional amount, within a specified period
(which must be at least 60 days from the date of the notice), but not so that the total
amount of the security exceeds the relevant limit.
The requirement has effect as if it were a term of the residential tenancy
agreement.
(3) The relevant limit is—
(a) if the rent payable under the agreement does not exceed an amount (which
must be at least $150 per week) prescribed by regulation for the purposes of
this paragraph—four weeks rent under the agreement;
(b) if the rent payable under the agreement exceeds an amount prescribed by
regulation for the purposes of this paragraph—six weeks rent under the
agreement.
(4) The relevant limit is, in the first instance, calculated by reference to the rent—or if the
rent varies, the lowest rent—payable during the first six months of the tenancy
(expressed as a weekly rent) and if there is to be an increase in the amount of the
security, the relevant limit is calculated by reference to the rent (expressed as a weekly
rent) payable when the notice of increase is given.
62—Receipt of security and transmission to the Commissioner
(1) A person must, within 48 hours after receiving an amount paid by way of security,
give the person who pays a receipt stating the date payment was received, the name of
the person from whom the payment was received, the am