Part 1Preliminary
1Name of Act and
commencement
(1)
This Act may be cited as the Landlord and Tenant (Amendment) Act
1948.
(2)
This Act shall commence upon a day to be
appointed by the Governor and notified by proclamation published in the
Gazette.
2Repeal of Act No 37,
1939
The Fair Rents Act
1939 is hereby repealed.
3
s 3: Am 1949 No 21,
sec 2 (w); 1952 No 55, secs 2 (d) (ii), 4 (2) (b); 1968 No 58, sec 2 (a). Rep
1987 No 27, Sch 2 (1).
4Savings
(1)
(2)
All applications to, and other proceedings
before, the Commonwealth Rent Controller under the Commonwealth Regulations
which are pending or purport to be pending immediately before the commencement
of this Act may be continued before, and may be determined by, the Controller
under this Act, and any application pending or purporting to be pending shall
be deemed to be an application to the Controller under this Act, and the
provisions of this Act shall apply to those applications and proceedings as if
they were applications to, or proceedings before, the Controller under this
Act.
(3)
All proceedings before a Fair Rents Board in this
State under the Commonwealth Regulations which are pending or purport to be
pending immediately before the commencement of this Act, may be continued
before and determined by a Fair Rents Board under this Act, and the provisions
of this Act shall apply to those proceedings as if they were proceedings
before a Fair Rents Board under this Act.
(4)
All proceedings under Part 3 of the Commonwealth
Regulations which are pending or purport to be pending immediately before the
commencement of this Act may be continued and determined under Part 3 of this
Act as if they had been commenced thereunder.
(5)
The generality of this section shall not be
affected by any saving in any other section of this Act nor shall this section
limit any saving in the Interpretation Act of
1897, as amended by subsequent Acts.
s 4: Am 1951 No 54,
sec 2 (1) (a); 1965 No 26, sec 2 (a).
5Crown not
bound
This Act shall not bind:
(a)
the Crown in right of the Commonwealth or of the
State, or
(b)
the New South Wales Land and Housing
Corporation.
s 5: Am 2006 No 120,
Sch 1.16 [1].
5AANo new protected tenancies to
be created from 1 January 1986
On and from 1 January 1986, the provisions of
Parts 2, 3, 4 and 5:
(a)
do not apply in respect of prescribed premises
unless the premises were the subject of a lease immediately before 1 January
1986, and
(b)
cease to apply, and shall not thereafter apply,
to any such premises upon vacant possession of the premises being obtained or
upon those provisions ceasing to apply to the premises by reason of the
operation of section 5A or any other provision of this
Act.
s 5AA: Ins 1985 No
121, Sch 1 (1).
5ABEvidence of vacant
possession
(1)
A statement signed by the lessee of premises and
stating that the lessee did not enter into possession of the premises until on
or after 1 January 1986 is admissible in any proceedings arising out of or
taken under this Act and, unless evidence is given to the contrary, shall be
presumed to be correct.
(2)
A statement under this section is not admissible
in proceedings unless the lessor of the premises became the lessor after the
statement was signed by the lessee.
s 5AB: Ins 1985 No
121, Sch 1 (1). Am 2016 No 55, Sch 1.14 [1].
5AParts 2, 3, 4 and 5 not to
apply to certain premises
(1)
The provisions of Parts 2, 3, 4 and 5 do not
apply in respect of the following prescribed premises, that is to say:
(a)
a dwelling-house that was in the course of
erection at, or the erection of which commenced after, the sixteenth day of
December, one thousand nine hundred and fifty-four,
(b)
a residential unit that came into existence on or
after the first day of January, one thousand nine hundred and
sixty-nine,
(c)
a dwelling-house or a residential unit that was,
at the first day of January, one thousand nine hundred and sixty-nine, the
subject of a lease that is registered under the section that this section
replaces as in force at the time when the registration was
effected,
(d)
a dwelling-house or a residential unit:
(i)
of which:
(a)
vacant possession was obtained on or after the
first day of January, one thousand nine hundred and sixty-nine, or that was
occupied personally by the lessor or his or her predecessor in title on or
after that day, or
(b)
vacant possession was obtained before that day
and that has remained vacant from the time when vacant possession was obtained
until that day,
(ii)
that is the subject of a lease, being a lease,
except where the lessee is a company or other body corporate:
(a)
the execution of which by the lessee was
witnessed by a solicitor instructed and employed independently of the lessor
or by a registrar of the Local Court, and
(b)
that bears a certificate by that solicitor or
registrar of the Local Court that he or she explained the lease to the lessee
before it was executed by him or her, and
(c)
(iii)
the lease of which is after that day registered
in the Department,
(e)
a dwelling-house or a residential unit:
(i)
of which vacant possession was obtained before
the first day of January, one thousand nine hundred and
sixty-nine,
(ii)
that is the subject of a lease:
(a)
that was executed by the lessee before that
day,
(b)
being a lease, except where the lessee is a
company or other body corporate and the lease was executed by the company or
other body corporate on or after the tenth day of April, one thousand nine
hundred and fifty-eight:
(i)
the execution of which by the lessee was
witnessed by a solicitor instructed and employed independently of the lessor
or by a registrar of the Local Court, and
(ii)
that bears a certificate by that solicitor or
registrar of the Local Court that he or she explained the lease to the lessee
before it was executed by him or her, and
(c)
that after that first day of January is
registered in the Department, and
(iii)
that, had this section not been substituted by
the Landlord and Tenant (Amendment) Act
1968 would, upon registration of that lease in the
Department immediately after its execution by the lessee, have been exempt
from the provisions of Parts 2, 3, 4 and 5 under the section that this section
replaces as in force at the time when the lease was executed by the
lessee,
(f)
a dwelling-house or a residential unit to which
the provisions of Parts 2, 3, 4 and 5 have at any time ceased to apply by
reason of paragraph (c), (d) or (e).
(2)
For the purposes of:
(a)
paragraphs (c), (d) and (e) of subsection (1),
“lease” does not include a concurrent lease,
and
(b)
paragraph (c) of subsection (1)
“lease” does not include a lease that was or is registered in the
Department on or after the twenty-sixth day of November, one thousand nine
hundred and sixty-eight, and that was executed by the lessee before the first
day of January, one thousand nine hundred and sixty-nine, unless the premises
the subject of the lease are premises that, had this section not been
substituted by the Landlord and Tenant (Amendment) Act
1968, would upon registration of the lease in the
Department have been exempt from the provisions of Parts 2, 3, 4 and 5 under
the section that this section replaces as in force at the time when the lease
was executed by the lessee.
(3)
A reference in paragraphs (c) and (e) of
subsection (1), and in paragraph (b) of subsection (2), to the section that
this section replaces as in force at a particular time shall be construed as a
reference to section 5A, as inserted by the Landlord and Tenant (Amendment) Act
1954, and includes a reference to that section as amended
up to that time.
(4)
An application for the registration under this
section of a lease shall be made to, in the form approved by and containing
particulars required by, the Secretary and shall be accompanied by:
(a)
the original lease and a copy thereof, which
copy:
(i)
shall be certified to be a true copy by the
lessor, the lessor’s solicitor or an agent of the lessor,
and
(ii)
shall be so certified in a manner approved by the
Secretary, and
(b)
a fee of two dollars or, where another fee has
been prescribed in lieu thereof, by that other fee.
(4A)
Without limiting the form of notice that may be
approved under subsection (4), the form may be an electronic form accessible
on a publicly available website.
(4B)
A person who provides the Secretary with a
statutory declaration the particulars required by the approved form is taken
to have done so in the approved form.
(5)
The registration after the first day of January,
one thousand nine hundred and sixty-nine, under this section of a lease shall
be deemed to be effected upon the making of an entry in relation to the lease,
in the manner approved by the Secretary, in a register to be kept by the
Secretary for the purposes of this section and the endorsement on the original
lease and certified copy thereof of a memorial of the
entry.
(6)
After registration under this section of a lease
the original lease shall be returned to the person by whom the application for
registration was made.
(7)
The provisions of subsection (1) and section 5AA
have effect subject to the provisions of subsection (1) of section 6, section
6A and section 81A.
(8)
Notwithstanding the provisions of subsection (1)
and section 5AA, the provisions of sections 36 (except paragraph (a),
subparagraph (i) of paragraph (b) and paragraph (c) of subsection (1)), 36A,
55, 77, 93, 95 and 98 apply in respect of premises exempted from the operation
of provisions of the Act by subsection (1) or section
5AA.
(9)
The Secretary shall not register a lease under
paragraph (d) or (e) of subsection (1) if he or she is satisfied:
(a)
where the lease is of a dwelling-house, that the
dwelling-house is a dwelling-house referred to in paragraph (a) of that
subsection,
(b)
where the lease is of a residential unit, that
the residential unit is a residential unit referred to in paragraph (b) of
that subsection, or
(c)
that the lease is in contravention of any of the
provisions of section 77.
(9A)
On and after 1 January 1986, the Secretary shall
not register a lease under this section unless:
(a)
the lease was executed by the lessee before 1
January 1986, and
(b)
the application for registration was made on or
before 30 June 1986, or a Fair Rents Board has recommended under subsection
(9C) that the application be dealt with.
(9B)
Where an application for the registration of a
lease under this section is made to the Secretary after 30 June 1986, but
before 1 January 1989, the Secretary may refer the application to a Fair Rents
Board if of the opinion that the Board could make a recommendation under
subsection (9C) that the application be dealt with.
(9C)
A Fair Rents Board may, if satisfied that in the
particular circumstances of an application for registration referred to it
under subsection (9B) there is a reasonable excuse for the delay in the making
of the application, recommend to the Secretary that the application be dealt
with.
(10)
A certificate:
(a)
purporting to be signed by a solicitor or a
registrar of the Local Court, being a certificate referred to in paragraph (b)
of subparagraph (ii) of paragraph (d), or subparagraph (ii) of paragraph (b)
of subparagraph (ii) of paragraph (e), of subsection (1), shall be admissible
in any proceedings and shall, in all courts and upon all occasions whatsoever,
be prima facie evidence of the particulars certified in and by the
certificate, or
(b)
purporting to be signed by the Secretary or his
or her delegate and certifying:
(i)
that a lease specified or referred to in the
certificate was registered in the Department on a day specified in the
certificate, or
(ii)
the particulars referred to in subparagraph (i),
that the lease bears a certificate referred to in paragraph (b) of
subparagraph (ii) of paragraph (d), or subparagraph (ii) of paragraph (b) of
subparagraph (ii) of paragraph (e), of subsection (1) purporting to be signed
by a solicitor or a registrar of the Local Court, and the particulars
certified in and by the certificate that the lease
bears,
shall be admissible in any proceedings and shall, in all
courts and upon all occasions whatsoever, be prima facie evidence of the
particulars referred to in subparagraph (i) and, where the certificate
certifies that the lease bears a certificate as referred to in subparagraph
(ii), of the particulars certified in and by the certificate that the lease
bears, as certified in and by the certificate under this
paragraph.
(11)
An application for a certificate under paragraph
(b) of subsection (10):
(a)
may be made by any person,
(b)
shall be made in writing to the Secretary,
and
(c)
shall be accompanied by a fee of five dollars or,
where another fee has been prescribed in lieu thereof, by that other
fee.
(12)
In this section:
dwelling-house includes:
(a)
the premises of any lodging-house or
boarding-house, and
(b)
any part of premises that is used or has been
designed for use for the purposes of residence independently of any other part
of the premises,
but does not include a residential unit or premises
licensed for the sale of spirituous or fermented liquors.
residential unit means a part of a
dwelling-house that is used or has been designed for use for the purposes of
residence independently of any other part of the dwelling-house and that came
into existence by reason of the conversion of the dwelling-house into those
parts.
s 5A: Ins 1954 No 46,
sec 5. Am 1958 No 7, sec 2 (a); 1964 No 62, sec 2 (1) (a); 1965 No 26, sec 2
(b); 1966 No 42, sec 2. Subst 1968 No 58, sec 2 (b). Am 1969 No 76, sec 2 (a)
(am 1984 No 153, Sch 16); 1985 No 121, Sch 1 (2); 1999 No 31, Sch 4.49 [1];
2001 No 121, Sch 2.134 [1]; 2017 No 25, Sch 2.7 [1] [2].
6Declarations as to application
of Act
(1)
The Governor may, by order published in the
Gazette, declare that the application of this Act shall extend to premises, or
the premises included in any class of premises, specified in the order, and
thereupon the application of this Act shall, notwithstanding anything
contained in paragraph (b) of subsection (1) of section 12 or section 78,
extend to those premises (including goods leased with those premises) or to
the premises included in that class of premises (including goods leased with
those premises).
(2)
The Governor may, by order published in the
Gazette, declare that any premises, or the premises included in any class of
premises, shall be excluded from the operation of this Act or of such of the
provisions of this Act as are specified in the order, and thereupon those
premises, or premises of that class, shall be excluded
accordingly.
(3)
Any declaration made or purporting to have been
made before the commencement of this Act under sub-regulation four or
sub-regulation five of Regulation seven of the Commonwealth Regulations and
having force or effect or purporting to have force or effect in this State
immediately before such commencement shall continue to have force and effect
in all respects as if this section had been in force at the time when such
declaration was made or purported to have been made, and the declaration had
been made thereunder by the Governor.
s 6: Am 1951 No 54,
sec 2 (1) (b); 1968 No 58, sec 2 (c).
6ASpecial
premises
(1)
The Governor may, by order published in the
Gazette, declare that any premises shall be “special premises” for
the purposes of this Act and may also by that order declare that each and
every part of those premises which is at any time while the order has force or
effect the subject of a separate agreement or arrangement whether oral or in
writing of leave and licence for the use of that part shall be “special
premises” for the purposes of this Act.
(1A)
(a)
Any order made under subsection (1) before the
commencement of the Landlord and Tenant (Amendment) Act
1954 and having force or effect immediately before such
commencement declaring that any premises shall be “special
premises” for the purposes of this Act shall have effect and shall be
deemed always to have had effect as though that order had also declared that
each and every part of those premises which is at any time while the order has
force or effect the subject of a separate agreement or arrangement whether
oral or in writing of leave and licence for the use of that part shall be
“special premises” for the purposes of this
Act.
(b)
A person shall not, by reason of the enactment of
paragraph (a), be guilty of an offence against this Act in respect of anything
done or omitted to be done by him or her before the commencement of the
Landlord and Tenant (Amendment) Act
1954, if he or she would not have been so guilty had that
paragraph not been enacted.
(2)
In the application of this Act to or in respect
of “special premises”:
(a)
“lease” includes any leave and
licence for the use of the “special premises” whether such leave
and licence is granted orally or in writing; and “lessor”,
“lessee”, “to lease”, and “to let”, and
expressions derived therefrom shall have a corresponding
meaning,
(b)
“rent” includes any payment or
consideration in respect of any leave and licence for the use of the
“special premises” and for any services provided for or supplied
to any person using the “special premises” under leave and
licence,
(c)
(i)
subsection (3) of section 62 shall be read and
construed as if the words “for a period determined in accordance with
section 63” were omitted therefrom and the words “for a period of
at least seven days or, where a period shorter than seven days is reasonable
in the circumstances, for that shorter period” were inserted in lieu
thereof,
(ii)
subsection (5) of section 62 shall be read and
construed as if paragraph (d) thereof were omitted and the following paragraph
inserted in lieu thereof:
(d)
(i)
that the conduct of the lessee is obnoxious to
any other occupant or occupants of the premises or of the building in which
the premises are situated, or tends to bring the premises or building as
aforesaid into disrepute, or
(d)
where recovery of possession of the special
premises is sought on the ground referred to in subparagraph (i) of paragraph
(d) of subsection (5) of section 62, as substituted by subparagraph (ii) of
paragraph (c), sections 63 and 72 shall be deemed to be omitted
therefrom.
(3)
(a)
Where any premises (not being premises that are
declared to be “special premises” under subsection (1) or
subsection (1A)) are after the commencement of the Landlord and Tenant
(Amendment) Act 1958 occupied by any person for the
purposes of residence under an agreement or arrangement whether oral or in
writing of leave and licence for the use thereof (whether that agreement or
arrangement was entered into before or after that commencement, whether or not
that agreement or arrangement was entered into in substitution for a lease of
such premises or of any part of such premises or of the premises of which such
premises form a part, and whether the occupancy by that person for the
purposes of residence under that agreement or arrangement commenced before or
after that commencement), and such premises or any part of such premises or
the premises of which such premises form a part have, after the thirtieth day
of June, one thousand nine hundred and forty-nine, and before that agreement
or arrangement was entered into, been the subject of a lease (whether the
lease was entered into before or after that date and whether or not the lease
is still subsisting), the premises shall, subject to paragraphs (b), (c) and
(d), be deemed to be “special premises” for the purposes of this
Act.
(b)
The Governor may, by order published in the
Gazette, exempt any class of premises specified in the order from the
operation of paragraph (a) and thereupon that paragraph shall not apply to the
class of premises so specified.
(c)
The Secretary, in his or her discretion, may,
either unconditionally or subject to such conditions as he or she thinks fit,
issue a certificate excluding any premises from the operation of paragraph
(a), for such period as is specified in the certificate and the premises
shall, so long as the certificate remains in force, be excluded
accordingly.
The Secretary may at any time revoke or vary any
certificate issued under this paragraph.
(d)
In this subsection the expression
“agreement or arrangement whether oral or in writing of leave and
licence for the use thereof” in relation to premises does not include
such an agreement or arrangement under which the licensee of the prescribed
premises is a bona-fide boarder.
In this paragraph bona-fide
boarder means a licensee who is supplied by the licensor
with:
(i)
one meal before midday consisting of at least two
courses, one of which comprises cereal or porridge and the other of which
comprises cooked meat, eggs or a like dish, together with bread (or toast),
butter, jam and tea or coffee, and
(ii)
one meal after midday consisting of at least two
courses, one of which comprises fish or meat (other than in sandwich form) and
cooked vegetables,
if the value of the meals so supplied forms a
substantial portion of the whole charge paid by the licensee under the
agreement or arrangement.
(e)
Nothing in this subsection affects the operation
of subsection (1).
s 6A: Ins 1949 No 21,
sec 3 (a). Am 1952 No 55, sec 2 (a); 1954 No 46, sec 2 (a); 1958 No 7, sec 2
(b); 1965 No 26, sec 2 (c); 1968 No 58, sec 2 (d).
7Holiday
premises
(1)
Where any prescribed premises are not holiday
premises by reason only of the fact that they have at some time subsequent to
the first day of March, one thousand nine hundred and forty-five, and before
the commencement of the Landlord and Tenant (Amendment) Act
1952, been leased to or occupied by a lessee for a
continuous period exceeding three months or that they have at some time after
the commencement of the Landlord and Tenant (Amendment) Act
1952 been leased to or occupied by a lessee for a
continuous period exceeding eight weeks, the owner or lessor of those
prescribed premises may make application in writing to the Secretary to
exclude the premises from the operation of this Act.
(2)
The applicant shall furnish such information in
relation to the application as the Secretary requires.
(3)
The Secretary, in his or her discretion, may,
either unconditionally or subject to such conditions as he or she thinks fit,
issue a certificate excluding the premises from the operation of this Act or
of such of the provisions of this Act as are specified in the certificate, for
such period as is so specified and the premises shall, so long as the
certificate remains in force, but subject to any variation thereof, be
excluded accordingly.
(4)
Any certificate issued or purporting to have been
issued before the commencement of this Act under sub-regulation three of
Regulation 7A of the Commonwealth Regulations and having force or effect or
purporting to have force or effect in this State immediately before such
commencement shall continue to have force and effect in all respects as if
this section had been in force at the time when such certificate was issued or
purported to have been issued and the certificate had been issued under this
section.
(5)
The Secretary may at any time revoke or vary any
certificate issued under subsection (3) or continued in force under subsection
(4).
s 7: Am 1949 No 21,
sec 3 (b); 1951 No 54, sec 2 (1) (c); 1954 No 46, sec 2 (b).
8Definitions
(1)
In this Act, unless the contrary intention
appears:
appeal means appeal to a Fair Rents
Board from a determination of the Secretary.
authorised officer means:
(a)
a person appointed by the Secretary in writing to
be an authorised officer for the purposes of this Act, or
(b)
an investigator appointed under section 18 of the
Fair Trading Act
1987.
clerk of a Fair Rents Board
means:
(a)
the person employed in the Public Service as the
clerk of the Board, or
(b)
if there is no person employed as the clerk of
the Board—the registrar of the Local Court for the place at which the
Board is constituted.
Commonwealth Regulations means the
Regulations having the title of the National Security (Landlord and
Tenant) Regulations as in force or as purporting to be in
force immediately before the commencement of this Act under the Defence
(Transitional Provisions) Act 1946–1947 of the
Parliament of the Commonwealth.
Department means the Department of
Finance, Services and Innovation.
determination means determination of
the fair rent of any premises, or of any premises together with goods leased
therewith, made or continued in force under this Act, but does not include a
fixing of the rent of any premises under section 17A.
Fair
Rents Board or Board means a Fair Rents Board
constituted or deemed to have been constituted under this Act.
holiday
premises means any premises which:
(a)
during the period commencing on the first day of
March, one thousand nine hundred and forty-five, and ending on the sixteenth
day of December, one thousand nine hundred and forty-six, have ordinarily been
leased for holiday purposes only,
(b)
have not at any time during that period been
leased to or occupied by any lessee for a continuous period exceeding three
months, and
(c)
were not, on the sixteenth day of December, one
thousand nine hundred and forty-six, leased for purposes other than holiday
purposes,
but does not include any such premises which:
(d)
at any time after that date are or were leased
for purposes other than holiday purposes, or
(e)
at any time after that date but before the
commencement of the Landlord and Tenant (Amendment) Act
1952 were leased to or occupied by any lessee for a
continuous period exceeding three months, or
(f)
at any time after the commencement of the Landlord and
Tenant (Amendment) Act 1952 are leased to or occupied by
any lessee for a continuous period exceeding eight
weeks.
lease includes every contract for
the letting of any prescribed premises, whether the contract is express or
implied or is made orally, in writing or by deed, and includes a contract for
the letting of prescribed premises together with goods, and also includes any
tenancy the existence of which is presumed by operation of section 22A of the
Landlord and Tenant Act of 1899 as
amended by subsequent Acts, but does not include any lease arising under an
attornment clause in a mortgage or in an agreement for the sale and purchase
of land or any lease arising under a clause in a mortgage or in an agreement
for the sale and purchase of land (however expressed and whenever executed)
whereby in case of default the mortgagee or the vendor (as the case may be) is
given the powers of a lessor with respect to the recovery of possession or
ejectment, or any tenancy at will implied at law in any mortgage or agreement
for the sale or purchase of land.
lessor and lessee mean the parties to a lease,
or their respective successors in title, and include respectively:
(a)
a mesne lessor and a mesne
lessee,
(b)
a sub-lessor and sub-lessee,
(c)
in respect of premises which are subject to a
mortgage, a mortgagee who enters or has entered into possession of the
premises under the mortgage and a person who was the lessee of the premises
under the mortgagor immediately prior to the mortgagee entering into
possession, and
(d)
the persons who, by operation of section 22A of
the Landlord and Tenant Act of 1899 as
amended by subsequent Acts are presumed to be the landlord and tenant
respectively.
Metropolitan Area means such part or
parts of the County of Cumberland as may be prescribed as the Metropolitan
Area and until any such part or parts are so prescribed means the County of
Cumberland.
Part means Part of this
Act.
prescribed means prescribed by this
Act or the regulations.
prescribed premises means:
(a)
where a dwelling-house does not form part of
other premises—that dwelling-house,
(b)
where premises consist only of a number of
dwelling-houses—those premises and each of those dwelling-houses,
and
(c)
where premises consist partly of dwelling-houses
and partly of other premises—such part of the premises as consists of
dwelling-houses and each dwelling-house of which that part consists, and
includes any land or appurtenances leased with any prescribed premises as
defined in paragraph (a), (b) or (c) of this
definition.
rates includes any rates or charges
made or levied by any local authority or other local governing body, including
any municipal, shire or county council and water or sewerage
authority.
regulations means regulations made
under this Act.
rent means the actual rent payable
under a lease, and includes:
(a)
the value to the lessor of any covenants,
conditions or other provisions of, or relating to, the lease to be performed
by the lessee, other than covenants, conditions and provisions usually entered
into by a lessee, and
(b)
any rates or taxes payable by a lessee in respect
of any prescribed premises, other than excess water
rates,
and where, in any lease:
(c)
it is provided that a reduced amount, as rent,
shall be accepted by the lessor upon any condition to be performed by the
lessee, that reduced amount shall be deemed to be the rent payable under the
lease, and
(d)
any rebate, discount, allowance or other
reduction is provided for, the amount payable after each such reduction is
made shall be deemed to be the rent payable under the
lease.
Secretary means:
(a)
the Commissioner for Fair Trading, Department of
Finance, Services and Innovation, or
(b)
if there is no person employed as Commissioner
for Fair Trading—the Secretary of the Department of Finance, Services
and Innovation.
shared
accommodation means any prescribed premises leased, or
intended to be leased, for the purpose of residence and forming part of other
prescribed premises, but does not include any prescribed premises forming a
complete residence in themselves.
spouse of a person includes a person
with whom the person has a de facto relationship.
Note—
“De facto relationship” is defined in
section 21C of the Interpretation Act
1987.
tax includes any tax, whether on
land or on income derived from land, imposed by any law of the Commonwealth or
of the State.
the
prescribed date, in relation to any prescribed premises,
means the thirty-first day of August, one thousand nine hundred and
thirty-nine.
(1A)
In this Act (other than in section 112) unless
the contrary intention appears, dwelling-house means any prescribed
premises (including shared accommodation) leased for the purposes of
residence, and includes:
(a)
the premises of any lodging-house or
boarding-house,
(b)
any part of premises which is leased separately
for the purposes of residence,
but does not include premises licensed for the sale of
spirituous or fermented liquors.
(1B)
For the purposes only of the definition of
prescribed premises in subsection
(1), dwelling-house:
(a)
includes:
(i)
any premises, or the premises included in any
class of premises, to which the application of this Act has been extended
under subsection (1) of section 6, and
(ii)
any premises that are “special
premises” for the purposes of this Act, and
(b)
does not include any of the following premises
that are not premises referred to in paragraph (a), that is to say:
(i)
premises that are, by the same lease, leased
partly as a dwelling-house and partly as a shop within the meaning of the
Retail Trading Act 2008 or that are the
subject of a lease part of the demised premises being a dwelling-house and the
other part being such a shop,
(ii)
premises that are at any time, on or after the
first day of January, one thousand nine hundred and sixty-nine, used partly as
a dwelling-house and partly for business or commercial purposes where the use
of the premises for business or commercial purposes constitutes the principal
or a substantial use of the premises and where the use for business or
commercial purposes does not arise by reason that the premises are sub-let for
residential purposes,
(iii)
holiday premises, or
(iv)
any premises, or the premises included in any
class of premises, excluded from the operation of Parts 2, 3, 4 and 5 under
subsection (2) of section 6.
(2)
For the purposes of this Act, lessee includes a person who remains
in possession of premises after the termination of his or her lease of the
premises, and lessor has a corresponding
meaning.
(2A)
No prescribed premises forming part of other
prescribed premises shall be regarded as not forming a complete residence in
themselves by reason only of the fact that a laundry or laundry facilities are
used by the lessee of that part in common with any one or more of the
following persons, namely, the lessor or other persons occupying other parts
of the prescribed premises of which the firstmentioned prescribed premises
form a part.
(3)
Where the lessor of prescribed premises supplies
or provides any service in connection with the premises and a separate charge
is made for those services, the amount charged shall, for the purposes of this
Act, be deemed to form part of the rent payable under the
lease.
(4)
Any declarations made or purporting to have been
made before the commencement of this Act under paragraph (b) of the definition
of prescribed premises in
sub-regulation one of Regulation eight of the Commonwealth Regulations and in
force or purporting to be in force in this State immediately before such
commencement shall, in so far as they relate to dwelling-houses that would,
but for this subsection, be prescribed premises, have effect in respect of the
premises referred to in the declarations as if they were premises referred to
in subparagraph (iv) of paragraph (b) of subsection
(1B).
(5)
Notes included in this Act do not form part of
this Act.
s 8: Am 1949 No 21,
secs 2 (a), 3 (c); 1951 No 54, sec 2 (1) (d); 1952 No 55, secs 2 (b), 4 (2)
(c); 1954 No 46, sec 2 (c); 1964 No 62, sec 2 (1) (b); 1968 No 58, sec 2 (e);
1998 No 120, Sch 1.25 [1]; 2002 No 53, Sch 1.12 [4] [5]; 2002 No 73, Sch 1.14
[1]; 2006 No 120, Sch 1.16 [2] [3]; 2008 No 49, Sch 3.4; 2010 No 19, Sch 3.55
[1]–[3]; 2015 No 15, Sch 2.28 [1]; 2016 No 27, Sch 2.25
[2].
Part 3Recovery of possession of
prescribed premises
62Restriction on
eviction
(1)
Except as provided by this Part, the lessor of
any prescribed premises shall not give any notice to terminate the tenancy or
take or continue any proceedings to recover possession of the premises from
the lessee or for the ejectment of the lessee therefrom.
(1A)
Where any premises consist partly of prescribed
premises and partly of other premises, the provisions of this Part apply to
such part of the premises as consists of prescribed
premises.
(1B)
Subject to subsection (1C), where there are two
or more lessees of any prescribed premises and they are not lessees under the
same lease:
(a)
a notice, given before or after the date upon
which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act
1968 was signified, to terminate the tenancy of any one of
the lessees shall not have any force or operation against the other lessee or
any of the other lessees, whether or not the other lessee or any of the other
lessees has attorned tenant to the lessee to whom the notice was given,
and
(b)
an order, made under this Part after that day,
for the recovery of possession of the premises shall not have any force or
operation against any such lessee unless such a notice had been validly given
to him or her, whether or not he or she has attorned tenant to another of the
lessees against whom such an order has been made.
(1C)
Nothing in subsection (1B) prevents a notice to
terminate the tenancy of, or an order for the recovery of possession of
premises from, or for the ejectment from premises of, a sub-lessor having
force or operation against a sub-lessee to whom that sub-lessor has sub-let
the premises.
(1D)
Where before the date upon which the assent of
Her Majesty to the Landlord and Tenant (Amendment) Act
1968 was signified an order for the recovery of possession
of any prescribed premises had been made on the application of a person who
became the lessor by virtue of a concurrent lease and the order had not,
before that day, been executed, the order shall not be executed against any
lessee of the premises other than that person.
(2)
A notice to quit given in contravention of this
section shall not operate so as to terminate the tenancy in respect of which
the notice was given.
(3)
Subject to this Part, a lessor may take
proceedings in any court of competent jurisdiction for an order for the
recovery by him or her of any prescribed premises (or of any goods leased
therewith) if the lessor, before taking the proceedings, has given to the
lessee, upon one or more of the prescribed grounds but upon no other ground,
notice to quit in writing for a period determined in accordance with section
63, and that period of notice has expired.
(4)
Service of the notice to quit may, without
prejudice to any other mode of service, be effected:
(i)
by delivering the notice to:
(a)
some person apparently over the age of sixteen
years and apparently residing in or in occupation of the premises,
or
(b)
the person by whom the rent of the premises is
customarily paid,
(ii)
with the leave of the court, by affixing the same
to the premises and by sending copies thereof by prepaid post addressed to the
lessee at the premises and at his or her address last known to the
lessor.
(4A)
(a)
Where a lessee of prescribed premises has died
and probate or letters of administration of his or her estate have not been
granted, any notice to quit which might have been given to the legal personal
representative of the deceased lessee had probate or letters of administration
of his or her estate been granted may be given by affixing the same to the
premises and:
(i)
where any person or persons are apparently
residing in or in occupation of the premises—by delivering the notice to
any of such persons apparently over the age of sixteen
years,
(ii)
in any other case—by publishing the notice
twice in a daily newspaper circulating in the district in which the premises
are situated or by publishing the notice in a manner approved in writing by
the Secretary for notices of that kind.
(b)
Where any proceedings for an order for the
recovery of possession of any prescribed premises are taken in reliance on any
notice to quit given in the manner provided in paragraph (a), any occupant of
the premises or other person claiming an interest therein shall be entitled to
be heard in the proceedings. The contesting of any such proceedings shall not
of itself be regarded as an act of administration or as intermeddling in the
estate of the deceased lessee or as constituting the person so contesting any
such proceedings executor de son tort of the deceased
lessee.
(c)
Nothing in this subsection shall affect the right
of a lessor to give notice to quit otherwise than as provided in this
subsection.
(5)
The prescribed grounds shall be:
(a)
that the lessee has failed to pay the rent in
respect of a period:
(i)
where the lessee’s period of occupation
does not exceed twelve months—of not less than fourteen days,
and
(ii)
in any other case—of not less than
twenty-eight days,
(b)
(i)
that the lessee has failed to perform or observe
some other term or condition of the lease and the performance or observance of
that other term or condition has not been waived or excused by the
lessor,
(ii)
that the lessee has become the lessee by reason
of an assignment or transfer made after the fourteenth day of March, one
thousand nine hundred and forty-seven, in breach of a term or condition of the
lease and the transfer or assignment has not been consented to or approved by
the lessor,
(c)
that the lessee has failed to take reasonable
care of the premises, or of any goods leased therewith, or has committed
waste,
(d)
that the lessee has been guilty of conduct which
is a nuisance or annoyance to adjoining or neighbouring
occupiers,
(d1)
that the premises are being used for the purpose
of prostitution or of soliciting for prostitution,
(e)
that the lessee or any other person has been
convicted, during the currency of the lease, of any offence arising out of the
use of the premises for any illegal purpose or that a court has found or
declared that the premises have, during the currency of the lease, been used
for some illegal purpose,
(f)
that the lessee has given notice in writing of
his or her intention to vacate the premises and, in consequence of that
notice, the lessor has agreed to sell or let the premises or has taken any
other steps as a result of which he or she would be seriously prejudiced if he
or she could not obtain possession,
(g)
that the premises:
(i)
being a dwelling-house—are reasonably
required by the lessor for personal occupation as a residence by himself or
herself or by some person who ordinarily resides with, and is wholly or partly
dependent upon, him or her, or
(ii)
not being a dwelling-house—are reasonably
required for occupation by the lessor or by a person associated or connected
with the lessor in his or her trade, profession, calling or
occupation,
(h)
that the premises are used as, or have been
acquired for use as, a parsonage, vicarage, presbytery or other like premises
and are reasonably required for the personal occupation as a residence of a
minister of religion (including a person who, although not ordained, is
performing all the duties of a minister of religion),
(i)
that the lessor is a trustee and the premises are
reasonably required by a beneficiary under the trust for his or her personal
occupation as a residence or for the occupation as a residence of some person
who ordinarily resides with, and is wholly or partly dependent upon, him or
her,
(j)
that the lessor is a person, body or authority
carrying on a hospital or nursing service, or a trustee for such a person,
body or authority, and the use of the premises is reasonably required for the
purposes of the hospital or nursing service (including the accommodation of
the staff of the hospital or nursing service),
(k)
that the premises have been occupied, or are
occupied, in consequence of his or her employment by some person in the employ
of the lessor and are reasonably required for the personal occupation as a
residence in consequence of that employment of some other person employed by,
or about to become employed by, the lessor,
(l)
that the lessor has agreed to sell the premises
by an agreement which requires the purchaser to pay not less than one-fourth
of the whole purchase money within twelve months from the date thereof and by
which the purchaser is entitled to vacant possession of the premises and the
premises:
(i)
being a dwelling-house—are reasonably
required by the purchaser for personal occupation as a residence by himself or
herself or by some person who ordinarily resides with, and is wholly or partly
dependent upon, him or her, or
(ii)
not being a dwelling-house—are reasonably
required for occupation by the purchaser or by a person associated or
connected with the purchaser in his or her trade, profession, calling or
occupation,
(m)
that the premises are reasonably required by the
lessor for reconstruction or demolition,
(n)
that the lessee has become the lessee of the
premises being a dwelling-house by virtue of an assignment or transfer which
the lessor has not consented to or approved,
(o)
that the lessee has sub-let the premises being a
dwelling-house or some part of the dwelling-house by a sub-lease which has not
been consented to or approved by the lessor, or
(p)
(i)
that the lessee has parted with the possession of
premises being a dwelling-house without the consent or approval of the lessor,
or
(ii)
that the lessee, not having parted with
possession of the premises being a dwelling-house, has, without the consent or
approval of the lessor, ceased for a period exceeding six months to be a bona
fide occupant of the premises,
(q)
that the lessee by sub-letting or parting with
possession of the premises or any part thereof or by permitting use of the
premises or any part thereof by any other person for reward is receiving rents
or profits equal to or in excess of an amount equivalent to one hundred and
twenty per centum of the rent paid by him or her,
(r)
that the premises being a garage (not ordinarily
used as a dwelling) situated within the curtilage of a dwelling-house are
reasonably required for letting to a lessee of that dwelling-house or part
thereof, and that the lessee of the garage is not a lessee of the
dwelling-house or any part thereof (other than the
garage),
(s)
that the lessor is a person, body or authority
carrying on a school or educational establishment, or a trustee for such a
person, body or authority, and the use of the premises is reasonably required
for the purposes of the school or educational establishment (including the
accommodation of the staff or students of the school or educational
establishment),
(t)
that the premises, being a dwelling-house, are
owned by the lessor who, being a male, is of or over the age of sixty-five
years or, being a female, is of or over the age of sixty years, that not more
than two other dwelling-houses (exclusive of the dwelling-house in which he or
she resides) are owned by the lessor if he or she is living alone or, if the
lessor is living with his or her spouse, not more than two other
dwelling-houses (exclusive of the dwelling-house in which they reside) are
owned by them, that the income of the lessor if he or she is living alone, or,
if the lessor is living with his or her spouse, his or her income together
with that of his or her spouse, does not exceed the Sydney basic wage, and
that the premises are required for sale with vacant
possession,
(u)
that, where the premises are a dwelling-house,
the lessee has reasonably suitable alternative accommodation available for his
or her occupation for residential purposes and has an estate in the land on
which that accommodation is situated,
(v)
that the premises, being shared accommodation,
are required by the lessor, being a person of or over the age of sixty-five
years, and that at the date on which the notice to quit was given and during
the three years immediately preceding that date only one lease of shared
accommodation in the dwelling-house of which the shared accommodation forms
part was in force at any one time,
(w)
that, where the premises are a dwelling-house,
the means of the lessee (together with the means of any person ordinarily
residing in the premises other than a child under the age of sixteen years, a
sub-lessee or a boarder who is not a relative, as defined in subsection (1) of
section 31MAA, of the lessee or a lodger who is not such a relative) are such
that it is reasonable that the lessee or the lessee and any such person should
acquire or lease other premises,
(x)
that the lessor is a personal representative or
trustee of the estate of a deceased person, that the value of the premises
determined for the purposes of the Stamp Duties Act
1920, as subsequently amended, constitutes not less than
one-half the dutiable estate under that Act of which they form or formed part
and that the lessor, as such personal representative or trustee, holds the
premises subject to a trust for sale, or
(y)
that, where the premises are a dwelling-house,
the lessor has available for the lessee’s occupation as a residence
reasonably suitable alternative accommodation which has been erected with
assistance provided under the Aged Persons Homes Act
1954 (as amended by subsequent Acts) of the Parliament of
the Commonwealth at a rental which does not exceed the rental being paid by
the lessee of the prescribed premises and which accommodation is available
without payment of any premium or other money by the
lessee.
(6)
(a)
In subsection (5), unless the contrary intention
appears, lessor includes, where there is more
than one lessor, any one or more of the lessors, and lessee includes, where there is more
than one lessee, any one or more of the lessees.
(b)
In paragraphs (g) and (l) of subsection (5),
dwelling-house does not include any
premises referred to in subparagraph (i) or (ii) of paragraph (b) of
subsection (1B) of section 8 that is a dwelling-house for the purposes of the
definition of prescribed premises in subsection
(1) of that section, by reason of paragraph (a) of the said subsection
(1B).
(b1)
A notice to terminate the tenancy of a lessee of
a lodging-house or boarding-house shall not be given on a ground specified in
paragraph (n) or (o), or subparagraph (i) of paragraph (p), of subsection (5)
where the assignment, transfer, sub-letting or parting with possession of the
premises took place before the date on which the assent of Her Majesty to the
Landlord and Tenant (Amendment) Act
1968 was signified, or on the ground specified in
subparagraph (ii) of paragraph (p) of that subsection unless the lessee has,
since that date, ceased for a period exceeding six months to be a bona fide
occupant of the premises.
(c)
In paragraph (t) of subsection (5), Sydney
basic wage means the basic wage for adult males in force
within the meaning of Part 5 of the Industrial Arbitration Act
1940, as amended by subsequent Acts, immediately before
the notice to quit concerned was given.
(d)
For the purposes of paragraph (t) of subsection
(5) if the lessor resides with his or her spouse a dwelling-house owned by
them jointly or by either of them severally shall be taken to be owned by
them.
(7)
Notice to quit on a ground specified in paragraph
(n) or paragraph (o) of subsection (5):
(a)
shall not be given:
(i)
where the lessee became the lessee by virtue of
an assignment or transfer made before the fourteenth day of March, one
thousand nine hundred and forty-seven, or the sub-lease was granted before
that date,
(ii)
where the lease is for a fixed term—unless
that term has expired, or
(iii)
in the case of a periodic lease—unless the
period which was current at the date on which the assignment, transfer or
sub-lease took effect has expired, and
(b)
may be given only where the lease contains no
covenant, whether absolute or conditional, against assigning, transferring or
sub-letting by the lessee.
(8)
Notice to quit on the ground specified in
subparagraph (i) of paragraph (p) of subsection (5) shall not be given:
(a)
where the lessee parted with the possession of
the premises before the twenty-first day of July, one thousand nine hundred
and forty-eight,
(b)
where the lease is for a fixed term—unless
that term has expired,
(c)
in the case of a periodic lease—unless the
period which was current at the date on which the parting with possession took
place has expired, or
(d)
Any such notice may be given only where the lease
contains no covenant, whether absolute or conditional, against parting with
possession by the lessee.
(8A)
Notice to quit on the ground specified in
subparagraph (ii) of paragraph (p) of subsection (5) shall not be
given:
(a)
where the lessee ceased to be a bona fide
occupant of the premises before the commencement of the Landlord and Tenant
(Amendment) Act 1952,
(b)
where the lease is for a fixed term—unless
that term has expired, or
(c)
in the case of a periodic lease—unless the
period which was current at the date on which the lessee ceased to be a bona
fide occupant of the premises has expired.
Any such notice may be given only where the lease
contains no covenant, whether absolute or conditional, requiring the lessee to
be a bona fide occupant of the premises.
(9)
Notice to quit on the ground specified in
paragraph (q) of subsection (5):
(a)
may be given whether or not the sub-letting,
parting with possession or permission to use was in breach of any covenant,
and
(b)
shall not be given:
(i)
where the lease is for a fixed term—unless
that term has expired,
(ii)
in the case of a periodic lease—unless the
period which was current at the date on which the sub-letting took effect or
the parting with possession took place or the permission to use was given has
expired.
(iii)
(9A)
(10)
Nothing in subsection (7), (8) (8A) or (9) shall
prejudice the right of a lessor to give notice to quit on the ground specified
in paragraph (b) of subsection (5).
(11)
Where notice to quit is given on the ground
specified in paragraph (m) of subsection (5), the court shall not be precluded
from making an order on the ground that the lessor intends to occupy the whole
or part of the premises as reconstructed or the whole or part of any premises
proposed to be erected in the place of the premises after their
demolition.
(12)
For the purposes of paragraph (u) of subsection
(5) reasonably suitable alternative accommodation shall be deemed to be
available for the lessee’s occupation for residential purposes where he
or she is the lessor of reasonably suitable alternative accommodation that is
not subject to Parts 2, 3, 4 and 5 and he or she could, within a reasonable
time, obtain vacant possession thereof.
s 62: Am 1949 No 21,
sec 5 (a); 1951 No 54, sec 4 (a); 1952 No 55, sec 3 (a); 1954 No 46, sec 3 (1)
(a); 1958 No 7, sec 4 (a); 1960 No 55, sec 3 (a); 1961 No 29, First Sch; 1964
No 37, First Sch; 1964 No 62, sec 4 (1) (a); 1967 No 86, First Sch; 1968 No
58, sec 4 (a); 1979 No 77, sec 3 (a); 2018 No 25, Sch 2.17
[2].
62ACourt may bar lessor’s
right to take proceedings where refusal of consent to assignment etc
unreasonable
(1)
The Local Court may, in relation to prescribed
premises (not being premises used solely as a dwelling-house):
(a)
on application in that behalf made by the lessee
who has become the lessee of the premises by virtue of a transfer or
assignment, order that a notice to quit upon the ground specified in paragraph
(b), or paragraph (n) of subsection (5) of section 62 shall not be given in
relation to the transfer or assignment and also, if any such notice to quit
has been given in relation to the transfer or assignment before the making of
the order, that the notice to quit so given shall be void and of no
effect,
(b)
on application in that behalf made by the lessee
of the premises, who has sub-let the premises, order that a notice to quit on
the ground specified in paragraph (b) or paragraph (o) of the said subsection
shall not be given in relation to the sub-lease and also, if any such notice
to quit has been given in relation to the sub-lease before the making of the
order, that the notice to quit so given shall be void and of no
effect,
(c)
on application in that behalf made by the lessee
of the premises who proposes to sub-let the premises or to transfer or assign
the lease of the premises, order that a notice to quit on the ground specified
in paragraph (b), paragraph (n) or paragraph (o) of the said subsection shall
not, if the proposed sub-lease, transfer or assignment is subsequently made or
effected, be given in relation to the sub-lease, transfer or
assignment,
if the court is satisfied:
(i)
that the lessor, having been requested to consent
to or approve that transfer or assignment or sub-lease or proposed sub-lease
or proposed transfer or assignment of the lease, unreasonably refused or
unreasonably withheld that consent or approval, and
(ii)
that the lessor has not offered to pay to the
lessee making the application a fair and reasonable price for the lease
(including the goodwill of any business carried on by the lessee upon the
premises).
(1A)
In any proceedings by a lessee before the Local
Court pursuant to paragraph (c) of subsection (1), the Court may, in addition
to granting the order referred to in that paragraph, order that any notice to
quit given before the making of the order to the lessee in relation to the
premises concerned in the proceedings shall be void and of no effect, if the
Court is not satisfied that the ground specified in the notice is true in
fact.
(1B)
Where an order has been granted under paragraph
(c) of subsection (1) the lessor of the premises the subject of the order
shall not give to the lessee any notice to quit within one month after the
making of the order.
Nothing in this subsection affects the operation
of paragraph (a) of subsection (3).
(2)
(a)
Any party to any proceedings in the Local Court
under subsection (1) may appeal to the District Court against the decision of
the Local Court given in those proceedings granting or refusing an order of
the nature referred to in that subsection.
(b)
The appeal shall be by way of rehearing and shall
be made in accordance with rules of court.
(3)
(a)
A notice to quit given in contravention of an
order made under this section and subsisting at the date upon which the notice
to quit is given shall be void and of no effect.
(b)
An order under this section that any notice to
quit shall be void and of no effect shall have effect according to its
tenor.
(4)
In this section the expression “premises
used solely as a dwelling-house” does not include premises which are
sub-let in whole or in part by the lessee, with the express or implied consent
of the lessor, in the course of the lessee’s business of sub-letting for
residential purposes.
s 62A: Ins 1952 No
55, sec 3 (b). Am 1954 No 46, sec 3 (1) (b); 1958 No 7, sec 4 (b); 1964 No 62,
sec 4 (1) (b); 1982 No 168, Sch 1; 2007 No 94, Schs 1.56 [2],
2.
62BPower to assign certain
tenancies at will
(1)
(a)
The Local Court may, in relation to prescribed
premises (not being premises used solely as a dwelling-house), on application
in that behalf made by a person who is, and has been since the commencement of
the Landlord and Tenant (Amendment) Act
1952, a lessee at will of the premises, authorise the
applicant to transfer his or her lease at will to a person named in the
application, if the court is satisfied:
(i)
that the lessee has offered to surrender his or
her lease at will on the condition that the lessor grant a lease of the
premises on reasonable terms and conditions to the person named in the
application and that the lessor has unreasonably refused to grant such a
lease, and
(ii)
that the lessor has not offered to pay to the
lessee a fair and reasonable price for his or her lease (including the
goodwill of any business carried on by the lessee upon the
premises).
(b)
The transferee under any transfer of a lease at
will of prescribed premises made pursuant to an authority granted under
paragraph (a) shall, as from the date upon which the transfer takes effect, be
deemed to have become the lessee at will of the premises from the person who
immediately before that date was the lessor under the lease at will so
transferred upon the same terms and conditions as the terms and conditions (as
in force immediately before the transfer took effect) of the lease at will so
transferred.
(2)
(a)
Any party to any proceedings in the Local Court
under subsection (1) may appeal to the District Court against the decision of
the Local Court given in those proceedings granting or refusing an authority
of the nature referred to in that subsection.
(b)
The appeal shall be by way of rehearing and shall
be made in accordance with rules of court.
(3)
In this section the expression “premises
used solely as a dwelling-house” does not include premises which are
sub-let in whole or in part by the lessee, with the express or implied consent
of the lessor, in the course of the lessee’s business of sub-letting for
residential purposes.
s 62B: Ins 1952 No
55, sec 3 (b). Am 1958 No 7, sec 4 (c); 1964 No 62. sec 4 (1) (c); 1982 No
168, Sch 1; 2007 No 94, Schs 1.56 [2], 2.
63Period of notice to
quit
(1)
The period for which notice to quit shall be
given shall be not less than a period of seven days, together with an
additional seven days for each completed period of six months of
occupation.
(2)
Nothing in subsection (1) shall:
(a)
require the giving of notice to quit for:
(i)
a period exceeding fourteen days if the notice is
given on any ground specified in paragraph (c), (d), (e) or (f) of subsection
(5) of section 62 and not on any other ground,
(ii)
a period exceeding thirty days if the notice is
given on any other ground,
(iii)
in the case of shared accommodation—a
period exceeding fourteen days, or
(iv)
a period exceeding seven days if the notice is
given on the ground specified in section 62 (5) (d1),
or
(b)
allow the giving of notice to quit for a period
shorter than the period which, but for this section, would be
required.
s 63: Am 1979 No 77,
sec 3 (b).
64Notice to quit not to be given
within six months after determination
A lessor shall not, after the lessee has made an
application to a Board or to the Secretary for a determination and notice of
that application has been served on the lessor or the lessor has become aware
that the application has been made, or after he or she has received notice of
the intention of a Board or the Secretary to determine the fair rent of the
premises of its or his or her own motion, except with the consent of the Board
or the Secretary, as the case may be, give a notice to quit on any ground
specified in paragraph (f), (g), (h), (i), (j), (k), (l), (s) or (w) of
subsection (5) of section 62 until after the expiration of six months after
the making of a determination on the application or in pursuance of the
notice, but if a determination has not been made within a period of six months
after the date of the application, or (if no application has been made) within
a period of six months after receipt of the notice of intention, as the case
may be, such a notice to quit may be given after the expiration of that
period.
s 64: Am 1949 No 21,
sec 5 (b); 1954 No 46, sec 3 (1) (c); 1968 No 58, sec 4 (b).
65Notice to quit where
dwelling-house sold
(1)
A person who has, either before or after the
commencement of this Act, become the lessor of prescribed premises being a
dwelling-house or part of a dwelling-house, by purchase thereof or any person
claiming under or through such lessor otherwise than by virtue of a concurrent
lease granted after the commencement of the Landlord and Tenant (Amendment) Act
1958 by such lessor to the person so claiming (whether
such claim arises before or after the commencement of the Landlord and Tenant
(Amendment) Act 1951), shall not, within a period of
twelve months after the date of the agreement for the purchase, give a notice
to quit on the ground specified in paragraph (g) or (m) of subsection (5) of
section 62 to any person who was a lessee of the prescribed premises at the
date of the agreement for the purchase unless in the case of a notice to quit
given on the ground specified in the said paragraph (m) he or she has first
obtained the leave of a court having jurisdiction under this Part so to
do.
(1A)
A person who has become the lessor of prescribed
premises, being a dwelling-house or part of a dwelling-house, by virtue of the
assignment or transfer to him or her, after the commencement of the Landlord and
Tenant (Amendment) Act 1958, of a lease of the prescribed
premises or the granting to him or her, after that commencement, of a
concurrent lease of the prescribed premises or any person claiming under or
through such lessor shall not, within a period of twelve months after the date
of the assignment or transfer of the lease or the grant of the concurrent
lease, as the case may be, give a notice to quit on the ground specified in
paragraph (g) or (m) of subsection (5) of section 62 to any person who was a
lessee of the prescribed premises at the date of the assignment or transfer of
the lease or the grant of the concurrent lease, as the case may be, unless in
the case of a notice to quit given on the ground specified in the said
paragraph (m) he or she has first obtained the leave of a court having
jurisdiction under this Part so to do.
(2)
A lessor of prescribed premises, being a
dwelling-house or part thereof, shall not give a notice to quit on the ground
specified in paragraph (l) of subsection (5) of section 62 to any person who
was a lessee of the prescribed premises at the date of the agreement referred
to in that paragraph within a period of six months after the date of the
agreement.
s 65: Am 1949 No 21,
sec 5 (c); 1951 No 54, sec 4 (b); 1954 No 46, sec 3 (1) (d); 1957 No 53, sec 2
(a); 1958 No 7, sec 4 (d); 1960 No 55, sec 3 (b); 1961 No 24, sec 2 (b); 1964
No 62, sec 4 (1) (d).
66Notice to specify
grounds
A notice to quit shall specify the ground relied
upon and shall give the particulars thereof and, in the proceedings, the
lessor shall not except by leave of court be entitled to rely upon any ground
not so specified or upon any matter particulars of which have not been
given.
67Notice to quit to terminate
lease
A notice to quit given in accordance with the
provisions of section 62 shall, if the tenancy in respect of which the notice
was given has not otherwise terminated, operate so as to terminate the tenancy
of the premises at the expiration of the period specified in the notice, but
nothing in this section shall operate so as to determine any tenancy before
the date on which it would have terminated if this section had not been
enacted.
68Notice to quit after failure
of eviction proceedings
(1)
Where a lessor has taken proceedings in any court
to recover possession of any prescribed premises from the lessee and the court
has (whether before or after the commencement of this Act) refused to make an
order in favour of the lessor, the lessor shall not give to the lessee any
notice to quit (whether on the same ground as a previous notice to quit or on
some other ground) within twelve months after the decision of the court unless
he or she has first obtained the leave of a court having jurisdiction under
this Part so to do.
(2)
Where a court refuses to make an order in favour
of a lessor it may, at the same time, grant leave for the purposes of this
section.
s 68: Am 1964 No 62,
sec 4 (1) (e).
69Competent
courts
(1)
For the purposes of section 62, only the Local
Court is a court of competent jurisdiction.
(2)
(3)
The provisions of sections 26 and 27 of the
Landlord and Tenant Act of 1899 shall
not apply in any case where an order for the recovery of possession of any
prescribed premises has been made under this Part.
s 69: Am 1982 No 168,
Sch 1; 2007 No 94, Sch 1.56 [3].
69A
s 69A: Ins 1954 No
46, sec 3 (1) (e). Am 1982 No 168, Sch 1. Rep 1987 No 27, Sch 2
(8).
70Court to consider
hardship
(1)
On the hearing of any proceedings by a lessor for
an order for the recovery of possession of any prescribed premises, the court
shall take into consideration, in addition to all other relevant
matters:
(a)
any hardship which would be caused to the lessee
or any other person by the making of the order,
(b)
any hardship which would be caused to the lessor
or any other person by the refusal of the court to make the order,
and
(c)
where the application is made on any one or more
of the grounds specified in paragraphs (g), (h), (i), (j), (l), (m), (s), (t)
and (v) of subsection (5) of section 62—whether reasonably suitable
alternative accommodation in lieu of the prescribed premises is, or has been
since the date upon which notice to quit was given, available for the
occupation of the person occupying the prescribed premises or for the
occupation of the lessor or other person by whom the prescribed premises would
be occupied if the order were made,
and may, in its discretion, make the order or may, on
such conditions (if any) as it thinks fit, refuse to make the order
notwithstanding that one or more of the prescribed grounds has been
established.
(2)
(2A)
Notwithstanding anything contained in this
section, an order for the recovery of possession of any prescribed premises,
being a dwelling-house, on the ground specified in paragraph (m) of subsection
(5) of section 62 shall not be made unless the court is satisfied:
(a)
(b)
that, where it is necessary to obtain the
approval under any Act of any body to the carrying out of the work referred to
in the notice to quit, that approval has been obtained,
and
(c)
that the work referred to in the notice to quit
cannot reasonably be carried out without unduly interfering with the
lessee’s use and occupation of the premises:
Provided that this subsection shall not apply in
any case where:
(d)
the court is satisfied that the lessor is
required by law to reconstruct or demolish the dwelling-house and possession
thereof is sought by him or her for that purpose, or
(e)
the court is satisfied that the lessee has
sub-let or has parted with the possession of the dwelling-house and that he or
she was not, at the date of the service of the notice to quit, a bona fide
occupant of the dwelling-house or any part thereof.
(2B)–(3)
(4)
On the hearing of an application made on a ground
specified in subparagraph (ii) of paragraph (b), or paragraph (n), (o), (p) or
(q), of subsection (5) of section 62 any assignee, sub-lessee or person in
occupation of the prescribed premises or any part thereof shall be entitled to
be heard.
(4A)
Notwithstanding anything contained in this
section, an order for the recovery of possession of any prescribed premises
from any person on the ground specified in paragraph (t) or (x) of subsection
(5) of section 62 shall not be made unless the court is satisfied that the
premises have been offered for sale to the tenant upon terms and conditions
which, having regard to all relevant circumstances, are fair and
reasonable.
(5)
(6)
In determining for the purposes of this Act
whether alternative accommodation which is available for the occupation of
persons who are occupying the prescribed premises for the recovery of
possession of which the proceedings have been taken is reasonably suitable,
the court shall have regard to the terms and conditions of any proposed lease
of the alternative accommodation and to the ability of the lessee of the
prescribed premises to pay the rent reserved by that proposed
lease.
s 70: Am 1949 No 21,
sec 5 (d); 1949 No 22, sec 17 (1); 1951 No 54, sec 4 (c); 1952 No, 55, secs 3
(c), 4 (2) (d); 1954 No 46, sec 3 (1) (f); 1957 No 53, sec 2 (b); 1958 No 7,
sec 4 (e); 1960 No 55, sec 3 (c); 1961 No 24, sec 2 (c): 1964 No 62, sec 4 (1)
(f); 1966 No 42, sec 4 (a); 1968 No 58, sec 4 (c); 2001 No 56, Sch 2.27
[2].
70A
s 70A: Ins 1958 No 7,
sec 4 (f). Am 1966 No 42, sec 4 (b). Rep 1968 No 58, sec 4
(d).
71Power to stay proceedings or
orders
(1)
In respect of any proceedings referred to in
section 70, the court may:
(a)
from time to time, subject to such conditions (if
any), and for such period as it thinks fit:
(i)
adjourn the proceedings,
(ii)
stay or suspend the execution of any order which
has been made or given in the proceedings, or
(iii)
postpone the date for recovery of possession
specified in any such order, or
(b)
subject to such conditions (if any) as it thinks
fit, vary, discharge or rescind any such order, or
(c)
where a warrant of execution has been issued, and
whether the warrant has expired or not, from time to time extend the period
stated in the warrant for the execution thereof:
(i)
if the court is satisfied that, because of the
illness of the lessee or for other sufficient cause, it is or has been
impracticable for the officer to whom the warrant is directed to execute the
warrant within the period stated therein—for such period as it thinks
fit, or
(ii)
if the court is not so satisfied—for a
period not exceeding seven days from the date on which the extension is
granted.
(2)
In this section:
(a)
a reference to an order shall include a reference
to an order made or purporting to have been made before the commencement of
this Act under Regulation sixty-three of the Commonwealth
Regulations,
(b)
a reference to a warrant shall include a
reference to a warrant issued or purporting to have been issued before the
commencement of this Act under the Commonwealth Regulations for the execution
of an order made or purporting to have been made under Regulation sixty-three
of those Regulations.
s 71: Am 1951 No 54,
sec 2 (1) (i).
72Certain applications to
operate as stay of execution
(1)
An application to stay or suspend the execution
of, or to vary, discharge or rescind, any order referred to in section 71, or
to postpone the date for recovery of possession specified in any such order,
shall, when filed with the proper officer of the court, stay the execution of
any warrant and operate to postpone the date for recovery of possession of the
prescribed premises until the court has heard the
application.
(2)
Notwithstanding anything contained in paragraph
(c) of section 71, the court may, on the hearing of any such application,
extend for such period as it thinks fit the period stated in any warrant for
the execution thereof (whether the warrant has expired or
not).
(3)
Where, in respect of any proceedings referred to
in section 70, the court has refused to grant an application of any of the
kinds referred to in subsection (1), no further application of any of those
kinds shall be made in respect of those proceedings except with the leave of
the court.
73Hearing in
chambers
Proceedings for the recovery of possession of
prescribed premises may, with the consent of all parties, be disposed of in
chambers but nothing in this section shall affect the power of any court to
dispose of any such proceedings in chambers otherwise than under this
section.
74Appeals
(1)
Except as provided in this section, there shall
be no appeal in proceedings under this Part, from an order of a court of
competent jurisdiction referred to in section 69.
(2)
There shall be an appeal, as to questions of law
only, to the Supreme Court from any order of such a court in proceedings under
this Part.
s 74: Am 1952 No 55,
sec 3 (d).
75Ejectment orders not
enforceable unless made under this Act
No order (other than an order made under this
Part or made or purporting to be made under the Commonwealth Regulations) made
or purporting to have been made by any court for the recovery by the lessor of
possession of any prescribed premises (or of any prescribed premises together
with goods leased therewith) or for the ejectment of the lessee shall be
enforceable.
s 75: Am 1949 No 21,
sec 5 (e); 1951 No 54, sec 2 (1) (j).
76Court may order compensation
for misrepresentation
(1)
Where a lessor has obtained an order for the
recovery of possession of any prescribed premises and it is subsequently
proved that the order was obtained by a fraudulent representation or the
concealment of material facts, the court which made the order may order the
lessor to pay to the former lessee such sum as appears to the court to be
sufficient as compensation for damage or loss sustained by the lessee as the
result of the order, and the provisions of subsection (3) of section 61, shall
apply, mutatis mutandis, to and in respect of any order for the payment of any
sum under this section.
(2)
The costs of any proceedings under this section
shall be in the discretion of the court.
(3)
The court, when allowing any costs to any party
in proceedings under this section, may assess the amount thereof, and the
provisions of subsection (3) of section 61 shall apply, mutatis mutandis, to
and in respect of any order allowing costs under this
section.
s 76: Am 1954 No 46,
sec 3 (1) (g).
77Premises not to be sold or
re-let in certain cases
(1)
(a)
If a notice to quit has been given on the ground
specified in paragraph (h), (i), (j), (k) or (s) of subsection (5) of section
62 and the premises in respect of which the notice was given have been vacated
in accordance with the notice or if an order for the recovery of possession of
the premises has been made on any such ground, the premises shall not, without
the consent of the court, be again leased or made the subject of an agreement
or arrangement whether oral or in writing of leave and licence for the use
thereof or sold or otherwise disposed of (except by will or on intestacy) or
agreed to be leased or made the subject of an agreement or arrangement whether
oral or in writing of leave and licence for the use thereof or sold or
otherwise disposed of (except by will or on intestacy), until after the
expiration of the period of twelve months immediately succeeding the date on
which the premises were vacated or possession of the premises was
recovered.
(a1)
If a notice to quit has been given on the ground
specified in paragraph (t) or (x) of subsection (5) of section 62, and the
premises in respect of which the notice to quit was given have been vacated in
accordance with the notice, or if an order for the recovery of possession of
the premises has been made on either such ground, the premises shall not
without the consent of the court be again leased, or made the subject of an
agreement or arrangement whether oral or in writing of leave and licence for
the use thereof, or agreed to be leased or made the subject of an agreement or
arrangement whether oral or in writing of leave and licence for the use
thereof, by the lessor who obtained vacant possession in accordance with the
notice or order for the recovery of possession of the
premises.
(b)
If a notice to quit has been given on the ground
specified in paragraph (g) of subsection (5) of section 62, and the premises
in respect of which the notice was given have been vacated in accordance with
the notice, or if an order for the recovery of possession of the premises has
been made on such ground, the premises shall not, without the consent of the
court, be again leased or made the subject of an agreement or arrangement
whether oral or in writing of leave and licence for the use thereof or sold or
otherwise disposed of (except by will or on intestacy) or agreed to be leased
or made the subject of an agreement or arrangement whether oral or in writing
of leave and licence for the use thereof or sold or otherwise disposed of
(except by will or on intestacy), until after the expiration of the period of
three years immediately succeeding the date on which the premises were vacated
or possession of the premises was recovered.
(c)
If a notice to quit has been given on the ground
specified in paragraph (m) of subsection (5) of section 62, and the premises
in respect of which the notice was given have been vacated in accordance with
the notice, or if an order for recovery of possession of the premises has been
made on such ground, the premises shall not, without the consent of the court,
be again leased or made the subject of an agreement or arrangement whether
oral or in writing of leave and licence for the use thereof or sold or
otherwise disposed of (except by will or on intestacy) or agreed to be leased
or made the subject of an agreement or arrangement whether oral or in writing
of leave and licence for the use thereof or sold or otherwise disposed of
(except by will or on intestacy), until the reconstruction or demolition
referred to in the said paragraph (m) has been carried
out.
(c1)
Where a notice to quit has been given and the
premises in respect of which the notice was given have been vacated within a
period of six months after the giving of the notice, the premises shall,
unless the contrary is proved or an order for the recovery of possession of
the premises has been made within that period, be deemed for the purposes of
this section to have been vacated in accordance with the
notice.
(d)
In this subsection, except paragraph (a1):
(i)
a reference to a notice to quit shall include a
reference to a notice to quit given before the commencement of this
Act,
(ii)
a reference to a vacation of premises shall
include a reference to a vacation of premises before the commencement of this
Act, and
(iii)
a reference to an order for the recovery of
possession of premises shall include a reference to any such order made under
the Commonwealth Regulations before the commencement of this
Act.
(e)
In paragraph (a1):
(i)
a reference to a notice to quit given on the
ground specified in paragraph (t) of subsection (5) of section 62 shall
include a reference to a notice to quit given on that ground before the date
on which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act
1968 was signified,
(ii)
a reference to a vacation of premises in
accordance with such a notice shall include a reference to a vacation of
premises in accordance with such a notice before that date,
and
(iii)
a reference to an order for the recovery of
possession of premises made on such a ground shall include a reference to any
such order made before that date.
(2)
Nothing in subsection (1) shall prevent, where
notice to quit has been given on the ground specified in paragraph (h), (i),
(j), (k) or (s) of subsection (5) of section 62, the letting of the
premises:
(a)
to a minister of religion,
(b)
to a beneficiary under the
trust,
(c)
to a person for whom the use of the premises was
reasonably required for the purposes of the hospital or nursing service
(including the accommodation of the staff of the hospital or nursing
service),
(d)
to some person in the employ of, or about to
become an employee of, the lessor, in consequence of his or her employment by
the lessor, or
(e)
to a person for whom the use of the premises was
reasonably required for the purposes of the school or educational
establishment (including the accommodation of the staff or students of the
school or educational establishment),
respectively.
(3)
A transaction entered into in contravention of
subsection (1) shall not thereby be invalidated, but nothing in this
subsection shall affect the liability of any person to any penalty in respect
of any contravention of that subsection.
(4)
If subsection (1) is contravened the lessor,
licensor or vendor or the person who, where the premises are agreed to be
leased or made the subject of an agreement or arrangement whether oral or in
writing of leave and licence for the use thereof or sold or otherwise disposed
of, would if the agreement were carried into effect, be the lessor, licensor
or vendor shall be guilty of an offence against this
Act.
(5)
The fact that a person has been convicted of an
offence against this Act arising under this section in respect of any premises
does not prevent the Governor from exercising his or her powers under
subsection (1) of section 6, or under section 6A, in respect of those premises
or a class of premises that includes those premises.
(6)
The fact that the Governor has exercised his or
her powers under subsection (1) of section 6, or under section 6A, in respect
of any premises or a class of premises that includes those premises shall not
be taken into account by any court in imposing a penalty on any person who has
been convicted of an offence against this Act arising under this section in
respect of those premises.
s 77: Am 1949 No 21,
sec 5 (f); 1954 No 46, sec 3 (1) (h); 1958 No 7, sec 4 (g); 1968 No 58, sec 4
(e).
78Application to limited class
of premises
Where an order is in force declaring that it is
desirable that the powers and functions of the Secretary and of Fair Rents
Boards shall be exercisable with respect to certain prescribed premises only,
or with respect to a limited class of prescribed premises only, the provisions
of this Part shall apply only with respect to the prescribed premises, or
limited class of prescribed premises, referred to in the
order.
79Enforcement of
orders
An order for the recovery of possession of any
prescribed premises (or of any prescribed premises together with goods leased
therewith) made by a court under this Act may be enforced in the same manner
as a like order if made by that court otherwise than under this Act, might be
enforced.
80Acceptance of rent not to
waive notice to quit
Where notice to quit any prescribed premises has
been given, whether before or after the commencement of this Act:
(a)
any demand by the lessor for payment of rent, or
of any sum of money as rent, in respect of any period within six months after
the giving of the notice,
(b)
the commencement of proceedings by the lessor to
recover rent, or any sum of money as rent, in respect of any such period,
or
(c)
the acceptance of rent, or of any sum of money as
rent, by the lessor in respect of any such period,
shall not of itself constitute evidence of a new tenancy
or operate as a waiver of the notice.
81Persons not to interfere with
use or enjoyment of premises
(1)
A person shall not, whether as principal or agent
or in any other capacity, without the consent of the lessee of prescribed
premises, or without reasonable cause (proof whereof shall lie upon the
defendant), do, or cause to be done, any act, or omit, or cause to be omitted,
any act whereby the ordinary use or enjoyment by the lessee of the premises or
of any goods leased therewith, or of any conveniences usually available to the
lessee, or of any service supplied to, or provided in connection with, the
premises is interfered with or restricted.
(2)
Where the lessor, or any agent or servant of the
lessor, has been convicted of an offence arising under subsection (1), the
court may order the lessor to do such things as are necessary to enable the
lessee to resume the ordinary use or enjoyment of the premises, goods,
conveniences or service, and the lessor shall comply with the provisions of
the order.
Where the lessor fails to comply with the
provisions of the order he or she shall be guilty of an offence against this
Act and in addition to any other penalty prescribed by this Act he or she
shall be liable to a penalty not exceeding 0.1 penalty unit for each day
during which such non-compliance continues.
(3)
For the purposes of this section, conveniences
shall be deemed to be usually available to the lessee where prior to the use
of the conveniences having been interfered with or restricted without his or
her consent, he or she has been allowed, at all times during the tenancy to
use those conveniences as he or she desired or he or she has been allowed to
use those conveniences at times agreed to by the lessor and lessee or at times
equivalent to those times.
(3A)
Where the lessor of any prescribed premises,
being a dwelling-house, or any agent or servant of the lessor, has been
convicted of an offence arising under subsection (1), the court before which
the lessor, agent or servant, as the case may be, was convicted, if it is of
opinion that the acts or omissions constituting the offence were done or
omitted with intent that the person who was lessee at the time when those acts
or omissions were done or omitted to be done vacate the premises and that
person has vacated the premises, may, in addition to the penalty prescribed by
this Act for the offence, order the lessor to pay to that person such sum as
appears to the court to be sufficient as compensation for damage or loss
sustained by that person as the result of his or her vacating the premises,
and the provisions of subsection (3) of section 61 shall apply, mutatis
mutandis, to and in respect of any order for the payment of any sum under this
subsection.
(4)
(a)
Where any service in connection with prescribed
premises charged for and supplied or provided by some person other than the
lessor of such premises has before the commencement of the Landlord and
Tenant (Amendment) Act 1949 ceased to be supplied or
provided or after such commencement ceases to be supplied or provided, then
unless that service or a service corresponding thereto and no less beneficial
to the lessee is supplied or provided within fourteen days after the lessee
has served upon the lessor a written requisition therefor, the fair rent of
the premises or of the premises together with goods leased therewith may be
reduced on the lessee’s application made in accordance with the
provisions of Part 2, notwithstanding the provisions of sections 20, 21 and
32, by such amount not exceeding one-half thereof as a Fair Rents Board or the
Secretary in its or his or her discretion, as the case may be, thinks
fit.
(b)
A reduction of the fair rent of prescribed
premises, or of prescribed premises together with goods leased therewith,
shall not be made pursuant to the provisions of paragraph (a) in any case
where the Fair Rents Board or the Secretary, as the case may be, is satisfied
that the lessor or any person or body of persons corporate or unincorporate
under the control or influence of the lessor is not in any way responsible for
the cessation of the service and that it is not within the power of the lessor
to restore the service or to have the service restored or to supply or
provide, or to have supplied or provided, a corresponding and no less
beneficial service.
s 81: Am 1949 No 21,
sec 5 (g); 1958 No 7, sec 4 (h); 1964 No 62, sec 4 (1) (g); 1966 No 42, sec 4
(c); 1993 No 47, Sch 1.
81ACourt may order that certain
dwelling-houses remain subject to this Act
(1)
A court for the district in which prescribed
premises, being a dwelling-house that is not exempt by section 5AA or 5A from
the provisions of Parts 2, 3, 4 and 5 to the extent provided by that section,
are situated, shall, on application in that behalf made by the lessee of the
premises, order that the premises, if vacated by the lessee, shall remain
subject to the provisions of this Act in all respects as though section 5AA or
5A, as the case may be, had not been enacted, if the court is satisfied
that:
(a)
the lessor has done, or caused to be done, any
act, or omitted, or caused to be omitted, any act whereby the ordinary use or
enjoyment by the lessee of the premises or of any goods leased therewith, or
of any conveniences usually available to the lessee, or of any service
supplied to, or provided in connection with, the premises is interfered with
or restricted,
(b)
that the lessor has by his or her conduct
endeavoured to improperly induce the lessee to vacate the
premises,
(c)
that the lessor has unreasonably caused expense
and inconvenience to the lessee by requiring him or her to defend proceedings
under this Act for the recovery of the premises from the lessee and that those
proceedings were vexatious,
(d)
the lessor has allowed the premises to fall into
a dilapidated or dangerous condition.
(2)
Notwithstanding anything contained in subsection
(1), the court, although satisfied of any one or more of the matters specified
in paragraphs (a), (c) and (d) of subsection (1), may refuse to make the order
if the lessor satisfies the court that his or her conduct in relation to that
matter or those matters was not intended to induce the lessee to vacate the
premises.
(3)
An order under this section:
(a)
shall remain in force for such period as is
specified in the order or until the court otherwise orders,
and
(b)
shall have effect according to its
tenor.
(4)
Where an order is made under this section, the
registrar of the court shall forthwith forward a copy of the order to the
Secretary who shall enter particulars of the order in a register kept for the
purpose.
(5)
For the purposes of this section, conveniences
shall be deemed to be usually available to the lessee where prior to the use
of the conveniences having been interfered with or restricted without his or
her consent, he or she has been allowed, at all times during the tenancy, to
use those conveniences as he or she desired or he or she has been allowed to
use those conveniences at times agreed to by the lessor and lessee or at times
equivalent to those times.
(6)
In this section court means the Local
Court.
s 81A: Ins 1958 No 7,
sec 4 (i). Am 1982 No 168, Sch 1 (am 1984 No 153, Sch 16); 1985 No 121, Sch 1
(3); 2001 No 121, Sch 2.134 [5] [6]; 2007 No 94, Sch 2.
82Protection of
sub-lessees
(1)
Where:
(a)
a lessor has either before or after the
commencement of this Act consented to or approved a sub-lease of any
prescribed premises or any part thereof by the lessee, or a lessee has either
before or after such commencement sub-let any prescribed premises or any part
thereof in the course of a business of sub-letting carried on by the lessee,
and
(b)
the lessee has ceased, either before or after
such commencement, to be in possession of the premises, following upon:
(i)
the obtaining of an order by the lessor for the
recovery of possession of the premises from the lessee on any of the grounds
specified in paragraphs (a) to (f) of subsection (5) of section 62,
or
(ii)
the surrender of his or her lease by the
lessee,
the sub-lessee shall (if he or she is in possession of
the whole or portion of the prescribed premises sub-let to him or her) be
deemed to have become the lessee thereof from the lessor upon the same terms
and conditions as the terms and conditions of the sub-lease, as in force
immediately prior to:
(c)
the date on which the lessor gave notice to quit
to the lessee, or
(d)
the date on which the lessee notified the lessor
of his or her intention to surrender the lease (or, if he or she did not so
notify the lessor, the date on which the lessee surrendered the
lease),
as the case may be.
(2)
In a case to which subparagraph (i) of paragraph
(b) of subsection (1) applies, the order shall not be enforced against the
sub-lessee.
(3)
Where, prior to the lessor of any prescribed
premises giving notice to quit to the lessee upon any of the grounds specified
in subsection (5) of section 62, the lessee of the prescribed premises has
sub-let the whole or any part thereof:
(a)
the lessee shall, upon service of the notice to
quit, forthwith notify the lessor in writing of the name and address of each
person to whom he or she has so sub-let and who is a sub-lessee of the
prescribed premises or any part thereof at the date of service of the notice
to quit,
(b)
the lessor shall, upon taking proceedings for the
recovery of possession of the prescribed premises, file the notice given to
him or her under this section with the Local Court, and
(c)
the relevant registrar of the Local Court is to
give notice by registered post to each person specified in the notice, at the
address so specified, of the date of hearing of the proceedings by the
Court.
(4)
On the hearing of any proceedings by a lessor for
an order for the recovery of possession of any prescribed premises, every
person who is a sub-lessee of such premises or any part thereof shall be
entitled to be heard.
(5)
Where a lessor obtains an order for the recovery
of possession of any prescribed premises from a lessee on the ground specified
in paragraph (n), (o), (p) or (q) of subsection (5) of section 62:
(a)
the order shall not be enforced against
(i)
any sub-lessee, or
(ii)
(b)
any sub-lessee actually in possession and
occupation of the whole or portion of the premises shall, as from the date of
the order, be deemed to have become the lessee thereof from the lessor upon
the same terms and conditions as the terms and conditions of the sub-lease as
in force immediately prior to the date on which the lessor gave notice to quit
to the lessee,
(c)
s 82: Am 1949 No 21,
sec 5 (h); 1968 No 58, sec 4 (f); 1999 No 31, Sch 4.49 [4]–[6]; 2001 No
121, Sch 2.134 [3]; 2007 No 94, Sch 1.56 [4] [5].
83Protection of certain persons
in possession of premises
(1)
Where:
(a)
the tenancy of any prescribed premises is
terminated by virtue of the provisions of this Act or of the Commonwealth
Regulations,
(b)
the person who was the lessee immediately prior
to the termination of the tenancy (in this section referred to as the
former lessee) dies after the termination of the tenancy,
and
(c)
immediately before the death of the
lessee:
(i)
the spouse of the lessee resided with the lessee
and is actually in possession of the premises immediately after the death of
the lessee,
(ii)
where the spouse of the lessee was not so
residing or is not so in possession or the lessee did not have a spouse at the
date of his or her death, a child of the lessee (being a child of or over the
age of twenty-one years who, at the date of the lessee’s death, was a
protected person or was in receipt of a pension under the Social Services
Consolidation Act 1947 (as amended by subsequent Acts) of
the Parliament of the Commonwealth) so resided and is so in possession,
or
(iii)
where no person referred to in subparagraph (i)
or (ii) was so residing or is so in possession, the father or mother of the
lessee so resided and is so in possession,
(iv)
the spouse, or such child, or the father or mother, as
the case may be, shall have the like right to continue in possession of the
premises as the former lessee would have if he or she had not died, but
proceedings may be taken against the person having the right under this
subsection to continue in possession of the premises for the recovery of
possession of the premises from that person in accordance with the provisions
of this Act as if he or she were a lessee of the
premises.
(2)
Where but for this subsection more than one
person would, under subparagraph (ii) or (iii) of paragraph (c) of subsection
(1), have had a right to continue in possession of any premises, the elder or
eldest of the persons so entitled under such subparagraph shall have that
right to the exclusion of any other of those persons.
s 83: Am 1964 No 62,
sec 4 (1) (h); 1968 No 58, sec 4 (g); 2002 No 73, Sch 1.14 [2]
[3].
83AProtection of member of the
family of deceased lessee
(1)
Where a lessee of prescribed premises dies,
and:
(a)
the spouse of the lessee resided with the lessee
immediately before the death of the lessee and is actually in possession of
the premises immediately after the death of the lessee,
(b)
where the spouse of the lessee was not so
residing or is not so in possession or the lessee did not have a spouse at the
date of his or her death, a child of the lessee (being a child of or over the
age of twenty-one years who, at the date of the lessee’s death, was a
protected person or was in receipt of a pension under the Social Services
Consolidation Act 1947 (as amended by subsequent Acts) of
the Parliament of the Commonwealth) so resided and is so in possession,
or
(c)
where no person referred to in paragraph (a) or
(b) was so residing or is so in possession, the father or mother of the lessee
so resided and is so in possession,
(d)
the spouse, or such child, or the father or mother as
the case may be, shall, subject to subsection (2) and until probate or letters
of administration of the estate of the deceased lessee are granted, have the
like right to continue in possession of the premises as the deceased lessee
would have had if he or she had not died.
(1A)
Where but for this subsection more than one
person would, under paragraph (b) or (c), of subsection (1), have had a right
to continue in possession of any premises, the elder or eldest of the persons
so entitled under such paragraph shall have that right to the exclusion of any
other of those persons.
(2)
Proceedings may be taken against the person
having the right under subsection (1) to continue in possession of the
premises for the recovery of possession of the premises from him or her in
accordance with the provisions of this Act as if he or she were a lessee of
the premises.
(3)
Nothing in this section affects any right which
the person having the right under subsection (1) to continue in possession of
the premises may have upon the grant of probate or letters of administration
to continue in possession of the premises.
s 83A: Ins 1952 No
55, sec 3 (e). Am 1964 No 62, sec 4 (1) (i); 1968 No 58, sec 4 (h); 2002 No
73, Sch 1.14 [4] [5].
83BNSW Trustee and
Guardian’s title not a defence to recovery of possession of prescribed
premises after death of lessee in certain cases
Where a lessee of prescribed premises dies and
during the period after his or her death and before probate or letters of
administration of the estate of the deceased lessee are granted, a person is
actually in possession of the premises, and an action of ejectment is during
that period brought against such person in the Supreme Court or a District
Court, or proceedings are during that period commenced under section 17 or 23
of the Landlord and Tenant Act of
1899, as amended by subsequent Acts, for the recovery of
the premises, such person shall not be entitled to raise as a defence to that
action or those proceedings the fact that the deceased lessee’s interest
in the premises is deemed by section 61 of the Probate and
Administration Act 1898, as amended by subsequent Acts, to
be vested in the NSW Trustee and Guardian.
s 83B: Ins 1964 No
62, sec 4 (1) (j). Am 2006 No 80, Sch 3.9 [1]; 2009 No 49, Sch
2.34.
83CPeriodic leases may not be
disposed of by will or pass on intestacy
Where a lessee under a periodic lease of
prescribed premises dies on or after the date on which the assent of Her
Majesty to the Landlord and Tenant (Amendment) Act
1968 was signified, the lease shall not be capable of
being disposed of by the will, or of passing on the intestacy, of the lessee,
except as to the balance of the periodic term current at the date of death,
but nothing in this section affects the operation of section 83A of this Act
or of section 61 of the Probate and Administration Act
1898, as subsequently amended.
s 83C: Ins 1968 No
58, sec 4 (i). Am 2006 No 80, Sch 3.9 [2].
84Costs to be
allowed
In any proceedings in relation to which this Part
applies, not being proceedings in respect of an offence arising under this
Part, the court may in its discretion order payment by the lessor to the
lessee of such sum as it deems proper to meet his or her reasonable costs and
the provisions of subsection (3) of section 61 shall apply mutatis mutandis to
and in respect of any order allowing costs under this section.
s 84: Am 1954 No 46,
sec 3 (1) (i). Subst 1964 No 62, sec 4 (1) (k).
85Intervention of
Minister
The Minister may, at any stage of any proceedings
in relation to which this Part applies, intervene by counsel, solicitor or
agent and may examine witnesses and address the court.
85AApplication of certain
sections in Part 2
The provisions of sections 44 to 49, both
inclusive, and section 51 shall apply to and in respect of any matter coming
before a Fair Rents Board or the Secretary under this Part.
s 85A: Ins 1954 No
46, sec 3 (1) (j).
85BApplication by solicitor or
agent
Any application to the Secretary under section
86, 86A, 87 or 87B may be made by the lessor, proposed lessor, owner or
lessee, as the case may be, or by his or her solicitor, or by his or her agent
thereunto authorised in writing.
s 85B: Ins 1954 No
46, sec 3 (1) (j). Am 1958 No 7, sec 4 (j).
86Exclusion of premises from
operation of Part 3 and Part 5
(1)
The lessor under a lease, or the proposed lessor
under a proposed lease, of any prescribed premises for a fixed term may, at
any time during the currency of the lease while the lessee is in occupation of
the premises, or prior to the commencement of the term of the proposed lease,
make application in writing to the Secretary to exclude the premises from the
operation of this Part and Part 5.
(2)
The applicant shall furnish such information in
relation to the application as the Secretary requires.
(3)
The Secretary may, in his or her discretion,
issue a certificate excluding the premises, for such period as is specified in
the certificate, from the operation of the provisions of this Part and Part 5
and the premises shall be excluded accordingly.
The period specified in the certificate shall not
exceed seven years unless the lessor and lessee or proposed lessor and
proposed lessee under the lease or proposed lease are employer and
employee.
(4)
(a)
The Secretary may at any time revoke or vary any
certificate issued under subsection (3).
(b)
The Secretary may grant one or more extensions of
any certificate issued under subsection (3) excluding the premises from the
operation of the provisions of this Part and Part 5 for a further period or
periods but the aggregate of:
(a)
the period of the original exemption,
and
(b)
the period of any extension so granted or, where
more than one extension is granted, the total of the periods of extension so
granted
shall not exceed seven years, unless the lessor and
lessee are employer and employee.
(5)
Where any certificate:
(a)
is issued under this section for a period in
excess of seven years, or
(b)
is extended so that the aggregate of:
(i)
the period of the original exemption,
and
(ii)
the period of any extension granted or, where
more than one extension is granted, the total of the periods of extension so
granted,
is in excess of seven years,
the certificate shall become void and of no effect if
the premises the subject thereof are leased to any person other than an
employee of the lessor.
(6)
Where the fair rent of any prescribed premises is
fixed or determined by or under Part 2 in respect of those premises without
goods and no determination has been made either before or after the
commencement of the Landlord and Tenant (Amendment) Act
1954 in respect of those premises together with goods, the
Secretary may in any certificate issued under this section excluding those
premises from the operation of this Part and Part 5 specify the rent to be
paid for those premises together with goods.
The rent so specified shall:
(a)
be deemed to have been determined by a
determination made under and in accordance with Part 2,
and
(b)
as on and from a date to be specified in the
certificate (which date shall be not earlier than the date upon which the
application for the exclusion of the premises from this Part and Part 5 was
received in the office of the Secretary) and notwithstanding anything
contained in Part 2, be the fair rent of those premises together with goods
until it is varied under and in accordance with that Part.
Application to vary the rent so specified
may,
notwithstanding the provisions of subsection (2) of
section 32, be made at any time after the issue of the
certificate:
Provided that where no determination of the fair
rent of those premises is made during the currency of the certificate either
increasing, decreasing or confirming the rent so specified, the fair rent of
those premises shall, after the certificate ceases to have force or effect, be
the same as if this subsection had not been enacted.
s 86: Am 1949 No 21,
sec 5 (i); 1952 No 55, secs 3 (f), 4 (2) (e); 1954 No 46, sec 3 (1) (k); 1964
No 62, sec 4 (1) (l); 1966 No 42, sec 4 (d).
86AExclusion of premises from
operation of Part 3 and Part 5 where lessor and lessee are employer and
employee
(1)
The owner of any prescribed premises who wishes
to make the premises available for leasing to his or her employees (whether or
not the premises are then let to one of his or her employees) may make
application in writing to the Secretary to exclude the premises from the
operation of this Part and Part 5.
(2)
The applicant shall furnish such information in
relation to the application as the Secretary requires.
(3)
(a)
The Secretary may, in his or her discretion,
issue a certificate under this section excluding the premises from the
operation of this Part and Part 5 during:
(i)
any period during which the premises are let to
any person who is an employee of the applicant, and
(ii)
where any such person ceases to be an employee of
the applicant while the premises are let to that person, the period of two
months immediately succeeding the date on which that person so ceases to be an
employee,
and the premises shall be excluded
accordingly.
(b)
Nothing in subparagraph (ii) of paragraph (a)
shall be construed as affecting or limiting the operation of subparagraph (i)
of that paragraph.
(4)
The Secretary may at any time revoke or vary any
certificate issued under subsection (3).
s 86A: Ins 1958 No 7,
sec 4 (k).
87Exclusion of certain
subdivided premises etc from operation of Part 3 and Part
5
(1)
(a)
The provisions of this Part and Part 5 shall not
apply to or in relation to any prescribed premises in respect of which a
certificate under this section is in force.
(b)
(2)
Where the owner of any prescribed premises is
desirous of making the whole or any part of those premises available for
accommodation, he or she may apply to the Secretary for a certificate that the
premises are premises to which this Part and Part 5 do not
apply.
(3)
The Secretary may:
(a)
grant the application and issue the certificate,
either unconditionally or subject to such conditions as he or she thinks fit
and for such period as he or she thinks fit, or
(b)
refuse the
application.
(3A)
(4)
A certificate issued under this section in
respect of prescribed premises being any part of a dwelling-house or of a
residential unit in any building shall not have any force or effect in respect
of any person who immediately prior to the date of receipt in the office of
the Secretary of the application for the certificate was the lessee of the
dwelling-house or of any part of the dwelling-house or of the residential unit
or of any other residential unit in the building unless immediately prior to
that date a prior certificate issued under this section had force or effect in
respect of that person as such lessee.
(5)
A certificate shall not issue under this section
in respect of any prescribed premises comprising the whole of any
building.
(6)
This section shall apply only in relation to
prescribed premises being:
(a)
a dwelling-house which is not in whole or in part
leased to any person,
(b)
a dwelling-house which the owner or lessee has
converted, or intends to convert, into two or three, but not more, residential
units,
(c)
a dwelling-house or part of a dwelling-house
which is leased to any person and which is about to become
vacant,
(d)
a part of a dwelling-house which has been leased
by the owner but is not for the time being leased to any person,
or
(e)
a residential unit in a building which the owner
of the building proposes to lease or to permit to be leased for residential
purposes separately from the remainder of the building and which has not
previously been so separately leased,
but shall not apply in relation to any building
containing more than three residential units or in relation to any residential
unit in any such building.
(7)
In this section, residential unit means any part of a
building which is or has been designed, whether originally or otherwise, for
occupation as a residence independently of any other part of the
building.
s 87: Am 1949 No 21,
sec 5 (j); 1951 No 54, sec 2 (1) (k); 1952 No 55, sec 4 (2) (f); 1954 No 46,
sec 3 (1) (l); 1958 No 7, sec 4 (l).
87APart 3 not to apply to a
dwelling-house let on behalf of an insane patient
Where the Master in Lunacy has, before or after
the commencement of the Landlord and Tenant (Amendment) Act
1952, leased a dwelling-house:
(a)
forming part of the estate of a person who at the
time when the lease was granted was an insane patient within the meaning of
the Lunacy Act 1898–1949,
and
(b)
which was the residence of such person before he
or she became an insane patient within the meaning of that
Act,
the provisions of this Part and Part 5 shall not, in
respect of that lease, apply to the dwelling-house.
s 87A: Ins 1952 No
55, sec 3 (g). Am 1958 No 7, sec 4 (m).
87BExclusion of certain premises
from operation of Part 3 and Part 5
(1)
While a certificate under this section is in
force in relation to part of any prescribed premises, the provisions of this
Part and Part 5 shall not, as between the person upon whose application the
certificate was granted and any sub-lessee of that part under a sub-lease
granted by that person after the date of receipt in the office of the
Secretary of the application for the certificate, apply to or in relation to
that part.
(2)
Where the lessee of any prescribed premises being
a dwelling-house is desirous of sub-letting part of those premises to one
sub-lessee only and he or she has not sub-let any other part of those premises
he or she may, with the consent in writing of the lessor of those premises,
apply to the Secretary for a certificate that the part of the premises to be
so sub-let is premises to which this Part and Part 5 do not
apply.
(3)
The Secretary may:
(a)
grant the application and issue the certificate,
either unconditionally or subject to such conditions as he or she thinks fit
and for such period not exceeding seven years as he or she thinks fit,
or
(b)
refuse the
application.
(4)
The Secretary may grant one or more extensions of
any certificate issued under subsection (3) excluding the premises so sub-let
or to be so sub-let from the operation of the provisions of this Part and Part
5 for a further period or periods but the aggregate of:
(a)
the period of the original exemption,
and
(b)
the period of any extension so granted or, where
more than one extension is granted, the total of the periods of extension so
granted,
shall not exceed seven years.
(5)
A certificate issued under this section in
respect of part of any prescribed premises shall become void and of no effect
if more than one sub-lease granted by the person to whom the certificate was
issued is in force in respect of those premises at any one
time.
(6)
Notice to quit on the ground specified in
paragraph (q) of subsection (5) of section 62 shall not be given to the person
to whom a certificate is issued under this section in respect of rents
received by him or her from the sub-lessee of that part of any prescribed
premises which is the subject of that certificate.
(7)
Where a certificate has been issued under this
section excluding part of prescribed premises from the operation of this Part
and Part 5, any person who after the date of receipt in the office of the
Secretary of the application for the certificate became a sub-lessee of that
part from the person (hereinafter in this sub-section referred to as the
lessee) upon whose application the
certificate was issued shall not have, as against the lessor of the lessee,
any right under this Act or otherwise to possession or to remain in possession
of that part after the lease of the prescribed premises to the lessee has been
terminated whether by surrender or otherwise and, in such circumstances,
proceedings to recover possession of that part from the sub-lessee or for the
ejectment of the sub-lessee therefrom may be taken by the lessor as if this
Part and Part 5 had not been enacted.
s 87B: Ins 1954 No
46, sec 3 (1) (m). Am 1964 No 62, sec 4 (1) (m).
Part 4Miscellaneous
88Threats and boycotts
prohibited
(1)
A person shall not, by any threat, or in any
other manner, endeavour to dissuade or prevent a lessor or lessee from making
or prosecuting any application under this Act, or taking or continuing any
proceedings in relation to which this Act applies.
(2)
The owner of any prescribed premises, and the
agent of any such owner, shall not refuse, or procure any person to refuse, to
lease the premises to any other person who desires to lease the same if the
reason for that refusal was the fact that that other person had made an
application to a Board or the Secretary under this Act or the Commonwealth
Regulations.
(3)
In any prosecution for an offence arising under
subsection (2), where all the facts and circumstances constituting the
contravention, other than the reason for the refusal, are proved, it shall lie
upon the defendant to prove that the reason for the refusal was not the reason
alleged in the charge.
(4)
A person shall not do, or procure to be done, any
act or thing for the purpose of imposing any detriment or disadvantage upon a
lessor or lessee because the lessor or lessee has made an application under
this Act or the Commonwealth Regulations or has taken any proceedings in
relation to which this Act applies or the Commonwealth Regulations
applied.
88ADwelling-house not to be sold
unless tenant given opportunity to purchase
(1)
A person shall not sell or agree to sell any
prescribed premises, being a dwelling-house which is occupied by a lessee and
being the only premises comprised in the sale or agreement for sale, to any
person other than the lessee unless:
(a)
(b)
the vendor has first offered in writing to sell
the premises to the lessee at a price not greater than the price at which the
premises are actually sold or agreed to be sold and upon terms as to payment
and otherwise not less favourable to the lessee than the terms upon which the
premises are actually sold or agreed to be sold and the lessee has not
accepted that offer within fourteen days after the receipt thereof by him or
her and, in addition, where the premises are sold at an auction sale, the
vendor has given to the lessee not less than twenty-one days’ notice in
writing of the proposed auction sale:
Provided that nothing in this subsection shall be
construed as prohibiting the vendor from entering into and giving effect to a
contract to sell the premises to any person conditionally upon the
lessee’s rejection of an offer of sale of the premises made in
accordance with paragraph (b).
(2)
Any person who contravenes or fails to comply
with any provision of this section shall be guilty of an offence against this
Act and a prosecution for the offence may be commenced at any time within six
months after the completion of the sale.
(3)
Any contravention of or failure to comply with
any provision of this section shall not invalidate any contract or
agreement.
This subsection shall have effect notwithstanding
anything contained in section 89.
s 88A: Ins 1958 No 7,
sec 5. Am 1964 No 62, sec 5 (a); 1968 No 58, sec 5 (a).
88BPremises not to be sold in
certain circumstances
Where:
(a)
a lessee of prescribed premises who is in receipt
of a pension under the Social Services Consolidation Act 1947
(as amended by subsequent Acts) of the Parliament of the Commonwealth vacates
those premises, otherwise than by reason of an order made under Part
3,
(b)
that lessee is, by reason of his or her vacating
the prescribed premises, granted a lease by the Housing Commission of New
South Wales of premises provided by that Commission, and
(c)
that Commission notifies, in writing, the lessor
of the prescribed premises that it has so granted such a
lease,
the lessor of the prescribed premises shall not, within
a period of three years after the lessee vacates the prescribed premises, sell
those premises unless, on an application made to the Local Court, the Court
has consented to the sale.
s 88B: Ins 1965 No
26, sec 4. Am 1999 No 31, Sch 4.49 [7] [8]; 2007 No 94, Sch 1.56
[6].
88CPenalty for publishing certain
statements
(1)
A person shall not, whether as principal or agent
or in any other capacity, publish or cause, permit or authorise to be
published a statement:
(a)
stating, suggesting, or implying, in any way,
that he or she or any other person is willing or able to obtain a
determination, variation or assessment of the fair rent of any prescribed
premises or is willing or able to recover possession of any prescribed
premises or that he or she or that other person is willing to act for or on
behalf of, represent or advise any other person in or in connection with any
proceedings under this Act, or
(b)
inviting other persons to consult him or her or
any other person in connection with any such determination, variation or
assessment, in connection with the recovery of possession of prescribed
premises or in connection with any such
proceedings.
(2)
A statement shall be deemed to be published
within the meaning of this section only if it is:
(a)
inserted in any newspaper (including a periodical
publication) or any other publication printed and published in New South
Wales,
(b)
contained in any document gratuitously sent or
delivered to any person or thrown on to or left at any
place,
(c)
broadcast by wireless transmission or by
television, or
(d)
published in any other prescribed
manner.
s 88C: Ins 1968 No
58, sec 5 (b).
88DImplied powers in
lessor
(1)
In every lease of prescribed premises there shall
be implied the following covenants by the lessee:
(a)
that the lessor or his or her agents may, twice
in every year at a reasonable time of the day between eight o’clock in
the morning and eight o’clock in the evening on any day other than a
Saturday, Sunday or public holiday and after at least seven days’ notice
in writing of intention to do so has been given to the lessee, enter upon the
premises and view the state of repair thereof,
(b)
that the lessor or his or her agents, servants,
workmen or contractors may enter the premises for the purpose of effecting
necessary repairs or maintenance after reasonable notice has been given to the
lessee.
(2)
The expression “reasonable time” in
paragraph (a) of subsection (1) does not include any time at which the lessee
and the other adult members of his or her household are ordinarily absent from
the prescribed premises in the course or by reason of their respective trades,
businesses, occupations or employments.
(3)
Section 85 of the Conveyancing Act
1919, as subsequently amended, does not apply to a lease
of prescribed premises, whether made before or after the date on which the
assent of Her Majesty to the Landlord and Tenant (Amendment) Act
1968 was signified.
(4)
Subsection (1) has effect subject to any
provision of the lease of the premises.
s 88D: Ins 1968 No
58, sec 5 (b).
89Contracting out
prohibited
No covenant or agreement (whether entered into
before or after the commencement of this Act) shall have any force or effect
to deprive any lessee of any right, power, privilege or benefit provided for
by this Act.
Nothing in this section shall apply to an
agreement referred to in subsection (1) of section 17A.
s 89: Am 1964 No 62,
sec 5 (b); 1968 No 58, sec 5 (c).
90Contracts to evade Act
prohibited
A person shall not enter into or make any
contract or arrangement, whether orally or in writing, for the purpose of, or
which has the effect of, in any way, and whether directly or indirectly,
defeating, evading, or preventing the operation of, this Act in any
respect.
Nothing in this section shall operate to prohibit
a person entering into or making an agreement referred to in subsection (1) of
section 17A.
s 90: Am 1964 No 62,
sec 5 (c); 1968 No 58, sec 5 (d).
90ACertain contracts to be
void
(1)
A person shall not, whether as principal or agent
or in any other capacity, enter into any contract or arrangement, whether oral
or in writing, under which it is agreed:
(a)
that in consideration of any person acting for or
on behalf of, representing or advising another person in proceedings under
Part 2 a sum of money or any other consideration, based on, dependent upon or
related to any increase in the fair rent of any prescribed premises that may
be granted pursuant to those proceedings shall be paid, taken or given,
or
(b)
that, dependent upon whether vacant possession of
any prescribed premises is obtained, a sum of money or any other consideration
will be paid, taken or given.
(2)
Any person who contravenes subsection (1) is
guilty of an offence against this Act.
(3)
Any such contract or arrangement entered into
before the date on which the assent of Her Majesty to the Landlord and Tenant
(Amendment) Act 1968 was signified shall be void, but
nothing in this subsection shall prevent either party to such a contract or
agreement enforcing it if he or she has, before that commencement, performed
all of his or her obligations under the contract or
agreement.
s 90A: Ins 1968 No
58, sec 5 (e).
91Transactions not
invalidated
(1)
Where any transaction is entered into in
contravention of this Act, the transaction shall not thereby be invalidated,
and the rights, powers and remedies of any person thereunder shall, except
where otherwise expressly provided in this Act, be the same as if this Act had
not been enacted.
(2)
Nothing in this section shall affect the
operation of section 89 or the liability of any person to any penalty in
respect of any contravention of this Act.
92Information to be furnished on
request
(1)
The Secretary or an authorised officer may
require a person:
(a)
to furnish to the person making the requirement
such information as that person requires,
(b)
to answer any question put to him or her by that
person, or
(c)
to produce any books, documents or writings in
his or her custody or control,
in relation to any matter arising under this
Act.
(2)
A person shall not, when so required:
(a)
refuse or fail to furnish the information or to
answer the question or to produce the books, documents or writings,
or
(b)
give any information or make any answer which is
false in any particular.
(3)
A person shall not be obliged to furnish any
information or to answer any question or to produce any books, documents or
writings under this section unless he or she has first been informed by the
person making the requirement that he or she is required and is obliged, by
virtue of this section, to furnish the information or to answer the question
or to produce the books, documents or writings.
(4)
A person shall be deemed to have failed to
furnish information, or to produce books, documents or writings, required of
him or her under this section if he or she does not furnish the information or
produce the books, documents or writings:
(a)
in the case of a requirement in
writing—within fourteen days after receipt by him or her of the
requirement, or
(b)
in the case of an oral requirement—within
fourteen days after the day upon which the requirement is
made.
(5)
A requirement under this section may be served on
a person:
(a)
personally, or
(b)
by post at the person’s last known place of
residence or business, or
(c)
by email to an email address specified by the
person for the service of documents of that kind, or
(d)
by any other method authorised by the regulations
for the service of documents of that kind.
s 92: Am 2017 No 25,
Sch 1.21 [2].
93Powers of entry and
inspection
(1)
The Secretary or an authorised officer may, for
the purposes of this Act, enter on and inspect any land or
premises.
(2)
Any person who:
(a)
refuses to allow the Secretary or an authorised
officer to enter or inspect at a reasonable time of the day and after
reasonable notice has been given any land or premises,
(b)
wilfully obstructs or aids in obstructing or
solicits any other person to obstruct or aid in obstructing the Secretary or
an authorised officer in the exercise of the power conferred on him or her by
subsection (1),
shall be guilty of an offence against this
Act.
s 93: Am 1952 No 55,
sec 3 (h).
94Proof of
instruments
(1)
Every document purporting to be a certificate or
other instrument made or issued by the Secretary in pursuance, or for the
purposes, of any provision of this Act and to be signed by the Secretary shall
be received in evidence and shall, until the contrary is proved, be deemed to
be a certificate or other instrument (as the case may be) made or issued by
the Secretary.
(2)
A certificate purporting to be a certificate
given by the clerk of a Fair Rents Board or by the Secretary and to be signed
by such clerk or by the Secretary certifying:
(a)
that in a period specified therein no application
has been made to the Fair Rents Board of which he or she is clerk, or to the
Secretary, as the case may be, for a determination of the fair rent of
prescribed premises described therein, or
(b)
that any such determination has been made and as
to amount and date of operation thereof,
shall be received in evidence and shall, until the
contrary is proved, be accepted as evidence of the matters therein set
out.
(3)
A document purporting to be a certificate made or
issued by the Secretary or his or her delegate appointed under subsection (2)
of section 11 and to be signed by the Secretary or any such delegate
certifying to the effect that:
(a)
the premises described in the certificate are or
are not at the date of the certificate or were or were not at any time or,
during any period specified in the certificate, premises, or premises included
in any class of premises, to which an order made under subsection (1) or (2)
of section 6 applies or applied or to which a declaration continued in force
and effect by subsection (3) of that section applies or
applied,
(b)
the premises, or part of any premises, described
in the certificate are or are not, or is or is not, at the date of the
certificate or were or were not, or was or was not, at any time or during any
period specified in the certificate premises to which an order made under
subsection (1) of section 6A applies or applied,
(c)
the premises are or are not at the date of the
certificate, or were or were not at any time or during any period specified in
the certificate, premises of a class to which an order made under paragraph
(b) of subsection (3) of section 6A applies or applied,
(d)
(e)
the premises described in the certificate are or
are not at the date of the certificate, or were or were not at any time or
during any period specified in the certificate, premises in respect of which a
certificate under section 6A, 7, 86, 86A, 87 or 87B is or was in
force,
shall be admissible in evidence in any proceedings and
shall, until the contrary is proved, be accepted as evidence of the matters
therein certified to.
(4)
An application for a certificate under this
section or under section 6A, 7, 86, 86A, 87 or 87B shall be accompanied by a
fee of two dollars or, where another fee has been prescribed in lieu thereof,
by that other fee.
s 94: Am 1952 No 55,
sec 3 (i); 1964 No 62, sec 5 (d); 1968 No 58, sec 5 (f).
95Offences and
penalties
(1)
Any person who contravenes or fails to comply
with any provision of this Act shall be guilty of an offence against this
Act.
(2)
No prosecution for an offence against this Act
shall be instituted without the written consent of the
Minister.
(3)
Any person who is guilty of an offence against
this Act shall be liable:
(a)
if a body corporate—to a penalty not
exceeding 10 penalty units,
(b)
if any other person—to a penalty not
exceeding 5 penalty units, or to imprisonment for a term not exceeding six
months, or to both such penalty and imprisonment.
(4)
(5)
Any person who is guilty of an offence against
this Act arising under section 77:
(a)
by reason that premises are or are agreed to be
leased or are or are agreed to be made the subject of an agreement or
arrangement referred to in that section shall, in addition to any other
penalty provided by this section, be liable to a penalty not exceeding 1
penalty unit for each day on which the premises are the subject of such a
lease, agreement or arrangement, or
(b)
by reason that premises are sold or otherwise
disposed of or agreed to be sold or otherwise disposed of shall, instead of
the penalty provided by subsection (3), be liable:
(i)
if a body corporate—to a penalty not
exceeding 20 penalty units, or
(ii)
if any other person—to a penalty not
exceeding 10 penalty units, or to imprisonment for a term not exceeding twelve
months, or to both such penalty and imprisonment.
s 95: Am 1949 No 21,
sec 6 (a); 1968 No 58, sec 5 (g); 1992 No 112, Sch 1; 1993 No 47, Sch 1; 2012
No 97, Sch 1.20 [1].
95ALiability of directors etc for
offences by corporation—accessory to the commission of the
offences
(1)
For the purposes of this section, a corporate offence is an offence
against this Act or the regulations that is capable of being committed by a
corporation.
(2)
A person commits an offence against this section
if:
(a)
a corporation commits a corporate offence,
and
(b)
the person is:
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the corporate offence,
and
(c)
the person:
(i)
aids, abets, counsels or procures the commission
of the corporate offence, or
(ii)
induces, whether by threats or promises or
otherwise, the commission of the corporate offence, or
(iii)
conspires with others to effect the commission of
the corporate offence, or
(iv)
is in any other way, whether by act or omission,
knowingly concerned in, or party to, the commission of the corporate
offence.
Maximum penalty: The maximum penalty for the
corporate offence if committed by an individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the corporate
offence.
(5)
This section does not affect the liability of the
corporation for the corporate offence, and applies whether or not the
corporation is prosecuted for, or convicted of, the corporate
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are concerned in, or
party to, the commission of the corporate offence.
s 95A: Ins 2012 No
97, Sch 1.20 [2].
96Regulations
(1)
The Governor may make regulations not
inconsistent with this Act prescribing all matters which are required or
permitted by this Act to be prescribed or which are necessary or convenient to
be prescribed for the purpose of carrying out or giving effect to this
Act.
(1A)
Without limiting subsection (1), the regulations
may make provision for or with respect to the waiver or refund of the whole or
part of any fee payable under this Act.
(2)
The regulations may impose a penalty not
exceeding 2 penalty units for any breach thereof.
(3)
s 96: Am 1987 No 48,
Sch 32; 1992 No 112, Sch 1; 2016 No 55, Sch 1.14 [2].
97Regulations may transfer
powers of Secretary to Fair Rents Board
(1)
In addition to the powers conferred by section
96, the Governor may from time to time by regulations, declare that on a date
specified in the regulations, the powers authorities duties and functions
conferred and imposed on the Secretary by this Act shall be transferred to and
shall thereafter be exercised and discharged by Fair Rents Boards as
prescribed in the regulations.
(2)
Regulations made under this section may:
(a)
apply generally to all powers authorities duties
and functions of the Secretary, or particularly to such powers authorities
duties and functions of the Secretary as are prescribed in the
regulations,
(b)
apply generally to all premises in respect of
which he or she is authorised by this Act to exercise and discharge any of his
or her powers authorities duties and functions, or particularly to any class
of such premises as may be specified in the regulations,
(c)
apply generally throughout the State, or
particularly within such parts of the State as are specified in the
regulations.
(3)
Regulations made under this section may include
provisions for modifying and adapting the provisions of this Act in such
manner and to such extent as may be necessary or convenient to give effect to
any transfer to Fair Rents Boards of the powers authorities duties and
functions of the Secretary effected by the regulations and to enable Fair
Rents Boards to exercise and discharge the same.
(4)
Every determination made by a Fair Rents Board in
the exercise of powers transferred to it by regulations made under this
section shall be final and without appeal, and no writ of prohibition or
certiorari shall lie in respect thereof.
(5)
s 97: Am 1987 No 48,
Sch 32.
98Proceedings for
offences
All proceedings for offences against this Act or
the regulations shall be disposed of in a summary manner before the Local
Court.
s 98: Am 1982 No 168,
Sch 1 (am 1984 No 153, Sch 16); 2001 No 121, Sch 2.134 [7]; 2007 No 94, Sch
2.
98APremises to be deemed
prescribed premises etc unless the contrary is shown
In any proceedings, civil or criminal, arising
out of or taken under, or purporting to arise out of or to be taken under, the
provisions of this Act in respect of any premises:
(a)
the premises shall be deemed to be prescribed
premises, and
(b)
the provisions of section 8 of Part 1, Part 2,
Part 3 (other than sections 85B to 87B, both inclusive) and Part 4 shall be
deemed to apply in respect of the premises,
unless the contrary is shown.
s 98A: Ins 1957 No
53, sec 2 (c).