Residential Tenancies (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (15:42): Obtained leave and introduced a bill for an act to amend the Residential Tenancies Act 1995. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (15:42): I move:

That this bill be now read a second time.

The Residential Tenancies (Miscellaneous) Amendment Bill 2016 amends the Residential Tenancies Act 1995 to clarify or provide solutions to several administrative issues that have been brought to my attention. The bill aims to support an informed tenancy sector where parties understand their rights and obligations. I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Parliament considered a comprehensive range of reforms to the Act with the Residential Tenancies (Miscellaneous) Amendment Act 2013, whichwas assented to on 9 May 2013. These reforms (referred to as the 2013 Reforms) were the result of extensive public consultation to reflect changes that had occurred over the previous 15 years. The majority of the reforms commenced on 1 March 2014, with all remaining provisions commencing on 9 May 2015.

The 2013 Reforms increased protection for both tenants and landlords, whilst achieving a fair balance of rights and responsibilities for all parties to tenancy agreements. The amendments do not propose to overturn the underlying policy of the 2013 Reforms, but rather tidy-up and clarify a few provisions that industry have said could be clearer.

The Bill proposes a few minor changes to the landlord's right to entry. The 2013 Reforms recast these provisions to remove what was commonly referred to as the 'tenant consent provisions'. These provisions meant that the landlord could attend the premises without any notice and that the tenant could consent to access at or immediately before the time of entry. This raised concerns that when unexpectedly confronted with the landlord at their premises, the tenant could be intimidated to provide access to the landlord.

Presently, the landlord must provide a minimum period of notice to the tenant to attend the premises. This is 48 hours' notice for non-urgent maintenance and repairs, and a minimum of 7 days' notice for garden maintenance. However, with the removal of the 'tenant consent provisions', the landlord is currently prohibited from attending the premises in these circumstances prior to the notice period – even with the tenant's consent. The Bill proposes that at the request of the tenant, the landlord may attend the premises for these purposes prior to giving the required notice.

A landlord is also prohibited from showing the property to prospective tenants prior to 28 days preceding the termination of the tenancy. Within 28 days preceding termination, the landlord may only enter the premises for this purpose on a reasonable number of occasions and within normal hours where the tenant has been given reasonable notice. The difficulty is that if the tenant intends to break the lease, the termination date may be contingent on the finding of another tenant to reduce reletting fees.

The Bill proposes that at the request of the tenant, the landlord may attend the premises for this purpose prior to 28 days preceding the termination of the tenancy. Unless otherwise requested by the tenant, the landlord may only enter the premises for this purpose on a reasonable number of occasions within normal hours where the tenant has been given reasonable notice.

It is not proposed to revert back to the 'tenant consent provisions'. The Bill seeks to empower the tenant to permit the landlord (or their agent, including a contractor) to attend the premises at their request. Requiring the tenant to make such a request, rather than provide consent, continues to provide the tenant a level of protection from being intimidated by the landlord to provide access to the premises.

The Bill proposes to specify a period of time that a tenant may terminate a tenancy in certain circumstances where the landlord fails to disclose information relating to the sale of the property.

Presently, if a landlord enters into a contract for sale of the property within two months of a tenancy commencing and failed to disclose to the tenant (prior to entering into the tenancy) the property had been (or was intended to be) advertised or there was an existing sales agency agreement, the tenant has the right to terminate the tenancy. The period of time the tenant has to terminate the tenancy is unspecified and therefore applies for the life of the tenancy. Pursuant to s71A(2) of the Act, the landlord must advise the tenant in writing of the sale of the premises at least 14 days before settlement or as soon as possible after the contract is entered into.

The Bill specifies that the tenant has the right to terminate the tenancy on these grounds within two months of receiving written notice of the sale of the premises. If the tenant does not receive written notice, whether at the time of sale or later, the period of time the tenant may terminate the tenancy on these grounds remains unspecified.

The Bill seeks to address an imbalance of power between the tenant and landlord. At present, the failure of a former landlord to disclose the sale or intended sale of the property disadvantages the new landlord, as there is no certainty as to the length of the tenancy. Specifying a period of time the tenant has to terminate the tenancy only after receiving written notice of the sale of the premises ensures the tenant is informed and may exercise their right to terminate the tenancy if they wish. This amendment would only apply to new tenancy agreements entered into after the commencement of this provision.

Lastly, the Bill will clarify an existing practice and interpretation of the South Australian Civil and Administrative Tribunal with respect to abandoned property. Presently, the landlord must not remove a tenant's possessions until at least two days have passed since recovering possession of the premises. However, the tenant may never be given the opportunity to recover these items, as the landlord may not provide access to the tenant during this period. The Bill makes it clear that the landlord must allow the tenant access to the premises to reclaim any abandoned property during this time.

The Bill has the support of both industry and tenant advocacy groups as it seeks to provide common sense approaches to these issues while maintaining a fair balance of rights and responsibilities for all parties to tenancy agreements.

I commend this Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Residential Tenancies Act 1995

4—Amendment of section 72—Right of entry

The clause amends section 72 to make it a term of a residential tenancy agreement that the landlord (or an agent of the landlord) may, at the request of the tenant, enter the residential premises to carry out maintenance (including gardening maintenance) and to show the premises to prospective tenants.

5—Amendment of section 85A—Termination by tenant if residential premises for sale

The clause inserts a new subsection (2) into section 85A providing that a notice of termination referred to in subsection (1) must, if the landlord has given written notice advising the tenant of the contract for the sale of the residential premises (whether in accordance with section 71A(2) or otherwise), be given to the landlord within 2 months after the day on which that notice of advice is given to the tenant.

6—Amendment of section 97B—Action to deal with abandoned property other than personal documents

The clause amends section 97B inserting a new subsection (2a) to provide that a landlord must, within the period of 2 days after recovering possession of the premises, allow a tenant access to the premises to reclaim abandoned property.

7—Insertion of Schedule 2

This clause inserts a new Schedule as follows:

Schedule 2—Transitional provisions—Residential Tenancies (Miscellaneous) Amendment Act 2016

Debate adjourned on motion of Ms Chapman.