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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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RESIDENTIAL TENANCIES (MISCELLANEOUS) AMENDMENT BILL

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No 1. Clause 4, page 7, lines 15 and 16 [clause 4(8), inserted definition of statutory charges, (b)]—Delete 'the Waterworks Act 1932 or the Sewerage Act 1929' and substitute 'the Water Industry Act 2012'

No. 2. New clause, page 8, after line 9—After clause 5 insert:

5A—Amendment of section 12—Membership of Tribunal

Section 12—after subsection (3) insert:

(3a) Before a person is appointed (or reappointed) as a member of the Tribunal, the Minister must consult confidentially about the proposed appointment with a panel consisting of—

(a) a nominee of the Law Society of South Australia who has expertise in tenancy law; and

(b) a nominee of the Attorney-General; and

(c) a nominee of the House of Assembly appointed by resolution of that House; and

(d) a nominee of the Legislative Council appointed by resolution of the Council; and

(e) the Commissioner for Public Sector Employment,

(and for the purposes of the consultation must inform the members of the panel of all persons short-listed for appointment).

No. 3. Clause 22, page 11, lines 36 and 37—Leave out all words in these lines.

No. 4. Clause 23, page 12, lines 24 to 37 and page 13, lines 1 to 9 [inserted section 49]—Delete inserted section 49 and substitute:

49—Residential tenancy agreements

(1) A written residential tenancy agreement entered into after the commencement of this section must—

(a) state clearly in a prominent position at the beginning of the agreement that—

(i) the agreement is a residential tenancy agreement; and

(ii) the parties to the agreement should consider obtaining legal advice about their rights and obligations under the agreement; and

(b) set out—

(i) if an agent is acting for the landlord—the agent's name, address and telephone number, and, if the agent is registered as an agent under the Land Agents Act 1994, his or her registration number under that Act; and

(ii) the landlord's full name and address for service of documents (which must not be the agent's address for service); and

(iii) if no agent is acting for the landlord—the landlord's telephone number; and

(iv) the tenant's name; and

(v) the address of the residential premises; and

(vi) the terms of the agreement, including—

(A) the amount of rent payable; and

(B) the interval between rental payment times; and

(C) the method by which rent is to be paid; and

(D) the amount of the bond; and

(E) any agreement reached as to responsibility for rates and charges for water supply; and

(F) responsibility for insurance of the premises and the contents of the premises; and

(G) any other terms of the agreement (including, for example, terms in relation to pets or responsibility for repairs); and

(c) be dated and signed by the parties to the agreement; and

(d) comply with any other requirements prescribed by the regulations.

(2) A provision of a residential tenancy agreement that does not comply with subsection (1) that requires the tenant to pay a bond is unenforceable.

(3) A landlord must not enter into a residential tenancy agreement unless the landlord or an agent acting for the landlord has first given the tenant a written guide that explains the tenant's rights and obligations under such an agreement and is in the form approved by the Commissioner for the purposes of this section.

Maximum penalty: $2,500.

Expiation fee: $210.

(4) The matters specified or agreed in a written residential tenancy agreement entered into after the commencement of this section may not be varied unless the variation is in writing and dated and signed by the landlord and tenant.

(5) A landlord under a written residential tenancy agreement must keep a copy of the agreement, and any variation of the agreement, whether in paper or electronic form, for at least 2 years following termination of the agreement.

Maximum penalty: $2,500.

Expiation fee: $210.

(6) If a landlord (or an agent acting for a landlord) invites or requires a tenant or prospective tenant to sign a written residential tenancy agreement, the landlord must ensure that—

(a) the tenant receives a copy of the residential tenancy agreement when the tenant signs it; and

(b) if the agreement has not then been signed by the landlord, a copy of the agreement, as executed by all parties, is delivered to the tenant within 21 days after the tenant gives the agreement back to the landlord or the landlord's agent to complete its execution.

Maximum penalty: $5,000.

Expiation fee: $315.

(7) Subject to subsection (2), a failure to comply with this section does not make the residential tenancy agreement illegal, invalid or unenforceable.

No. 5. Clause 26, page 13, after line 19—After subclause (2) insert:

(3) Section 52(3)—delete 'or in premises adjacent to those premises'

No. 6. Clause 29, page 14, after line 10—After subclause (3) insert:

(3a) Section 55—after subsection (2) insert:

(2a) Despite subsections (1) and (2), the rent payable under a residential tenancy agreement may be increased at any time by mutual agreement between the landlord and the tenant.

No. 7. Clause 30, page 14, after line 21 [clause 30(1)]—After inserted paragraph (fa) insert:

(fb) if the rent was purportedly increased under section 55(2a)—whether the tenant was put under undue pressure to agree to the increase; and

No. 8. Clause 35, page 16, lines 31 to 39 and page 17, lines 1 to 10 [clause 35(9)]—Delete subclause (9) and substitute:

(9) Section 61(3)(a)—delete '$150' and substitute '$250'

No. 9. Clause 42, page 20, after line 39—Delete subclause (1) and insert subclause as follows:

(1) Section 70—after subsection (1) insert:

(1a) It is a term of a residential tenancy agreement that a landlord will not unreasonably withhold his or her consent to an alteration or addition to the premises that is necessary to ensure the provision of infrastructure or a service of a prescribed kind.

No. 10. Clause 46, page 24, line 1 [clause 46(2)]—Delete 'Section 73(2)—delete subsection (2)' and substitute:

Section 73(2) and (3)—delete subsections (2) and (3)

No. 11. Clause 46, page 24, line 2 [clause 46(2), inserted subsection (2)]—Delete 'subsection (3)' and substitute :

subsections (3) and (4)

No. 12. Clause 46, page 24, line 18 [clause 46(2), inserted subsection (3)(b)]—Delete '14' and substitute '30'

No. 13. Clause 46, page 24, after line 19—After subsection (2) insert:

(3) Section 73(4)—delete 'must, as soon as is reasonably practicable after obtaining the benefit of the water security rebate amount, ensure that an amount borne by a tenant under an agreement under subsection (2) or under subsection (3)(b)' and substitute:

must ensure that an amount borne by a tenant under an agreement under subsection (2)(a) or under subsection (2)(b)(i)

(4) Section 73(6), definition of water security rebate amount—after 'those rates and charges' insert:

(whether before or after the commencement of this definition)

No. 14. New clause, page 25, after line 38—After clause 51 insert:

51A—Amendment of section 80—Notice of termination by landlord on ground of breach of agreement

Section 80(2)—after paragraph (c) insert:

and

(d) if the tenant gives up possession of the premises—

(i) the landlord is entitled to compensation for any loss (including loss of rent) caused by the termination of the tenancy (but the landlord must take reasonable steps to mitigate any loss and is not entitled to compensation for loss that could have been avoided by those steps); and

(ii) the Tribunal may, on application by the landlord, order the tenant to pay to the landlord compensation to which the landlord is entitled under this paragraph.

No. 15. New clause, page 30, after line 23—After clause 63 insert:

63A—Amendment of section 96—Forfeiture of head tenancy not to result automatically in destruction of right to possession under residential tenancy agreement

Section 96—after subsection (1) insert:

(1a) An order under subsection (1) must be served on the tenant and takes effect—

(a) in the case of an order made in favour of a mortgagee—30 days after the day on which it is served or at such later time as is specified by the court or the Tribunal; and

(b) in any other case—at such time as is specified by the court or the Tribunal.

(1b) If an order of a kind referred to in subsection (1a)(a) is made, the tenant—

(a) is not required to pay any rent, fee or other charge in respect of his or her occupation of the residential premises in the period following service of the order; and

(b) is entitled to compensation for any rent paid in respect of that period.

(1c) The Tribunal may, on application by the tenant, order a person to whom rent has been paid to pay to the tenant compensation to which the tenant is entitled under subsection (1b).

No. 16. Clause 66, page 34, after line 25 [clause 66, inserted Part 5A]—After inserted section 99B insert:

99BA—Extra-territorial operation of Part

(1) This section applies if—

(a) a person does an act, or makes an omission, outside the State in relation to personal information—

(i) about a person who resides in the State; or

(ii) relating to, or arising from, the occupation of residential premises in the State; or

(iii) entered into a residential tenancy database for reasons relating to, or arising from, the occupation of residential premises in the State; and

(b) the act or omission would constitute an offence against a provision of this Part if it were done or made by the person within the State.

(2) The person commits an offence of the same kind as that mentioned in subsection (1)(b) and may be charged with and convicted of the offence.

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