Part 5 Termination of residential tenancy agreements
Division 1 Termination generally
53 Termination of residential tenancy agreements
A residential tenancy agreement terminates only in one or more of the following circumstances:(a) if the landlord or the tenant gives notice of termination under this Part and:(i) the tenant delivers up vacant possession of the residential premises on or after the day specified in the notice, or(ii) the Tribunal makes an order under section 64 (which relates to applications to the Tribunal by the landlord for termination) terminating the agreement,(b) if the Tribunal makes an order terminating the agreement,(c) if a person having superior title (for example, a head landlord) to that of the landlord becomes entitled to possession of the residential premises,(d) if a person succeeding to the title of the landlord (for example, a purchaser) becomes entitled to possession of the residential premises to the exclusion of the tenant,(e) if a mortgagee in respect of the residential premises becomes entitled to possession of the premises to the exclusion of the tenant,(f) if the tenant abandons the residential premises,(g) if the tenant delivers up vacant possession of the residential premises with the prior consent of the landlord, whether or not that consent is subsequently withdrawn,(h) by merger (that is, where the interests of the landlord and the tenant become vested in the one person),(i) by disclaimer (for example, on repudiation by the tenant accepted by the landlord).
54 Apportionment and recovery of rent on termination
The rent payable under a residential tenancy agreement accrues from day to day and on termination the appropriate amount is payable.
55 Breach or notice of termination not waived by acceptance of rent
A demand for, any proceedings for the recovery of, or acceptance of, rent payable under a residential tenancy agreement by a landlord:(a) does not operate as a waiver of:(i) any breach of the agreement, or(ii) any notice of termination on the ground of breach of the agreement given by the landlord, and(b) is not evidence of the creation of a new tenancy.
Division 2 Notices of termination
56 Notice of termination on ground that premises are being sold
(1) A landlord may give notice of termination of a residential tenancy agreement to the tenant on the ground that the landlord has (after entering into the agreement) entered into a contract for the sale of the residential premises under which the landlord is required to give vacant possession of the premises.(2) A notice of termination given under this section shall not specify a day earlier than 30 days after the day on which the notice is given as the day on which vacant possession of the residential premises is to be delivered up to the landlord.(3) This section does not apply to a residential tenancy agreement that creates a tenancy for a fixed term during the currency of the term.
57 Notice of termination on ground of breach of agreement
(1) A landlord or a tenant may give notice of termination of a residential tenancy agreement to the other party on the ground that the other party has breached a term of the agreement.(2) A notice of termination given under this section shall not specify a day earlier than 14 days after the day on which the notice is given as the day on which vacant possession of the residential premises is to be or will be delivered up to the landlord.(3) A notice of termination given by a landlord on the ground of a breach of the agreement to pay rent has no effect unless the rent has remained unpaid in breach of the agreement for not less than 14 days before the notice is given.(4) A notice of termination given by a landlord on the ground of a breach of the agreement to pay rent is not ineffective because of any failure of the landlord or the landlord’s agent to make a prior formal demand for payment of the rent.(5) A notice of termination of a residential tenancy agreement that creates a tenancy for a fixed term given under this section is not ineffective because the day specified as the day on which vacant possession of the residential premises is to be or will be delivered up to the landlord is earlier than the day the term ends.
58 Notice of termination by landlord without any ground
(1) A landlord may give notice of termination of a residential tenancy agreement without specifying any ground for the termination.(2) A notice of termination given under this section shall not specify a day earlier than 60 days after the day on which the notice is given as the day on which vacant possession of the residential premises is to be delivered up to the landlord.(2A) (Repealed)(3) This section does not apply to a residential tenancy agreement that creates a tenancy for a fixed term during the currency of the term.
59 Notice of termination by tenant without any ground
(1) A tenant may give notice of termination of a residential tenancy agreement without specifying any ground for the termination.(2) A notice of termination given under this section shall not specify a day earlier than 21 days after the day on which notice is given as the day on which vacant possession of the residential premises will be delivered up to the landlord, unless it specifies an earlier day to which the landlord has consented.(2A) (Repealed)(3) This section does not apply to a residential tenancy agreement that creates a tenancy for a fixed term during the currency of the term.
60 Notice of termination of fixed term agreement without any ground
(1) A landlord or a tenant may give notice of termination of a residential tenancy agreement that creates a tenancy for a fixed term during the currency of the term without specifying any ground for the termination.(2) A notice of termination given under this section shall not specify a day earlier than 14 days after the day on which the notice is given or the day the term of the residential tenancy agreement ends, whichever is the later, as the day on which vacant possession of the residential premises is to be or will be delivered up.(3) (Repealed)
61 Notice of termination where agreement frustrated
(1) If residential premises under a residential tenancy agreement are, otherwise than as a result of a breach of the agreement, destroyed or rendered wholly or partly uninhabitable or cease to be lawfully usable for the purpose of a residence or are appropriated or acquired by any authority by compulsory process:(a) the rent abates accordingly, and(b) the landlord or the tenant may give immediate notice of termination to the other party.(1A) For so long as a residential tenancy agreement is not terminated under subsection (1) (b), then, for the purposes of subsection (1) (a):(a) the landlord and tenant may agree in writing as to the amount of rent payable, or(b) failing such agreement, either the landlord or tenant may apply to the Tribunal for an order determining the amount of rent payable.(1B) The Tribunal may, on application made under subsection (1A) (b):(a) by order, determine the amount of rent payable, from a day specified by the Tribunal, for the purposes of subsection (1) (a), and(b) order the landlord to repay to the tenant any rent paid by the tenant since the specified day that is in excess of the amount determined by the Tribunal, and(c) make such other orders with respect to the application as the Tribunal thinks fit.(2) A notice of termination of a residential tenancy agreement that creates a tenancy for a fixed term given under this section is not ineffective because the notice is given before the day the term ends.
62 Effect of notice of termination of periodic tenancy
A notice of termination of a residential tenancy agreement that creates a periodic tenancy given under this Act is not ineffective because the day for delivering up vacant possession of the residential premises is not:(a) the last day of a period of the tenancy, or(b) any other day on which the tenancy would (for breach or any other reason) have ended if this Act had not been enacted.
63 Form of notice of termination
(1) A notice of termination of a residential tenancy agreement given to a tenant by a landlord shall:(a) be in writing,(b) be signed by the landlord or the landlord’s agent,(c) identify the residential premises the subject of the agreement,(d) specify the day on which vacant possession of the residential premises is to be delivered up to the landlord,(e) specify and give particulars of the ground (where applicable) on which the notice is given, and(f) include a statement which indicates that information regarding tenancy rights and obligations is contained in the residential tenancy agreement.(2) A notice of termination of a residential tenancy agreement given to a landlord by a tenant shall:(a) be in writing,(b) be signed by the tenant or the agent of the tenant (if any) appointed under section 31,(c) identify the residential premises the subject of the agreement,(d) specify the day on which vacant possession of the residential premises will be delivered up to the landlord, and(e) specify and give particulars of the ground (where applicable) on which the notice is given.
Division 2A Special provisions relating to social housing tenancy agreements
This Division does not limit the operation of the other provisions of this Part in relation to social housing tenancy agreements.
63B Notice of termination may be given on ground that tenant not eligible for social housing
A landlord under a social housing tenancy agreement may give notice of termination of the agreement to the tenant on the ground that the landlord has determined, as the result of an assessment carried out under section 63C, that the tenant is not eligible to reside in the class of social housing premises to which the agreement applies.
63C Eligibility assessments of social housing tenants
(1) In carrying out an assessment of the eligibility of a tenant under a social housing tenancy agreement to reside in the class of social housing premises concerned, the landlord is to apply the criteria approved by the Minister for the purposes of this section.(2) Any such criteria may differ from the criteria used to assess a person’s eligibility to commence residing in that class of social housing premises.(3) The criteria used for the purposes of an assessment under this section must not relate to any of the following:(a) whether or not the tenant has complied with any term of the agreement,(b) whether or not the tenant has entered into, or complied with any term of, an acceptable behaviour agreement.(4) The landlord may request the tenant to provide any information that is reasonably required to enable the landlord to determine whether the tenant meets the criteria for the purposes of an assessment under this section.(5) If the tenant refuses to provide any such information to the landlord, the landlord may determine, without further inquiry, that the tenant is not eligible to reside in the class of social housing premises concerned.(6) In the case of a tenancy agreement that creates a tenancy for a fixed term, an assessment under this section may not be carried out prior to 6 months before the end of the term.(7) The criteria referred to in this section are to be made publicly available.(8) A copy of the criteria is to be provided, on request, to any tenant under a social housing tenancy agreement free of charge and to other persons either free of charge or on payment of reasonable copying charges.
63D Review of decision to give notice on ground that tenant not eligible for social housing
(1) Notice to be given before notice of termination
Before giving notice of termination of a social housing tenancy agreement to the tenant on the ground referred to in section 63B, the landlord is to advise the tenant of the decision to do so by notice in writing.(2) Right to review
A notice given under this section must:(a) contain particulars of the reasons why the tenant is no longer considered eligible to reside in the premises, and(b) state that the tenant may apply to the landlord for a review of the decision within 30 days after the notice is given and give particulars of how such an application may be made, and(c) state that the tenant is entitled to make representations to the landlord in writing, or (if the tenant wishes) orally, as to why the agreement should not be terminated.(3) The tenant may, in accordance with the notice:(a) apply to the landlord for a review of the decision, and(b) make representations in writing, or (if the tenant wishes) orally, to the landlord as to why the agreement should not be terminated.(4) If the tenant applies to the landlord for a review under this section, the landlord is to review the decision, in accordance with any procedures approved by the Minister for the purposes of this section, and consider any representations made by the tenant.(5) Decision of landlord following review
After the review is carried out, the landlord may:(a) give notice of termination of the agreement on the ground referred to in section 63B, or(b) advise the tenant, by notice in writing, that the landlord has decided not to give notice of termination of the agreement.(6) Procedural fairness taken to have been observed
If the landlord complies with this section, the landlord is taken to have complied with any rules of procedural fairness required to be observed by the landlord before giving notice of termination to the tenant on the ground referred to in section 63B.
63E Time periods to be observed in giving notice of termination on ground that tenant not eligible for social housing
(1) A notice of termination of a social housing tenancy agreement is not to be given to the tenant on the ground referred to in section 63B before the later of the following:(a) the end of the 30-day period within which the tenant may apply for a review under section 63D of the decision to give the notice of termination,(b) the end of any such review carried out in respect of that decision.(2) The notice of termination is not to specify as the day on which vacant possession of the premises is to be delivered up to the landlord a day that is earlier than:(a) in the case of a tenancy agreement that creates a tenancy for a fixed term—60 days after the day on which the notice is given or the day the term of the agreement ends, whichever is the later, or(b) in any other case—60 days after the day on which the notice of termination is given.
63F Notice of termination may be given on ground that tenant offered alternative social housing premises
A landlord under a social housing tenancy agreement may give notice of termination of the agreement (the existing agreement) to the tenant on the ground that the landlord has offered to enter into a new social housing tenancy agreement with the tenant in respect of alternative premises to the premises the subject of the existing agreement.
63G Review of decision to give notice on ground that tenant offered alternative social housing premises
(1) Notice to be given before notice of termination
Before giving notice of termination of an existing agreement to the tenant on the ground referred to in section 63F, the landlord is to advise the tenant of the decision to do so by notice in writing.(2) The landlord may make the offer to enter into a new social housing tenancy agreement and give notice of the decision at the same time.(3) Right to review
A notice given under this section must:(a) contain particulars of the reasons why the landlord wishes the tenant to move to alternative premises, and(b) state that the tenant may apply to the landlord for a review of the decision within 14 days after the notice is given and give particulars of how such an application may be made, and(c) state that the tenant is entitled to make representations to the landlord in writing, or (if the tenant wishes) orally, as to why the existing agreement should not be terminated.(4) The tenant may, in accordance with the notice:(a) apply to the landlord for a review of the decision, and(b) make representations in writing, or (if the tenant wishes) orally, to the landlord as to why the existing agreement should not be terminated.(5) If the tenant applies to the landlord for a review under this section, the landlord is to review the decision, in accordance with any procedures approved by the Minister for the purposes of this section, and consider any representations made by the tenant.(6) Decision of landlord following review
After the review is carried out, the landlord may:(a) give notice of termination of the existing agreement on the ground referred to in section 63F, or(b) advise the tenant, by notice in writing, that the landlord has decided not to give notice of termination of the existing agreement, or(c) make a new offer to the tenant to enter into a new social housing tenancy agreement in respect of alternative premises that differ from those the subject of the offer in respect of which the review was carried out.(7) Right to second review if new offer made
If a new offer is made under subsection (6) (c), subsections (1)–(6) apply in relation to giving notice of termination in connection with the new offer. Accordingly, the landlord is required to give a second notice, and the tenant is entitled to a second review, under this section. However, the landlord is not required to give any further notice, and the tenant is not entitled to any further review, under this section in relation to giving notice of termination following a second review.(8) Procedural fairness taken to have been observed
If the landlord complies with this section, the landlord is taken to have complied with any rules of procedural fairness required to be observed by the landlord before giving notice of termination to the tenant on the ground referred to in section 63F.
63H Time periods to be observed in giving notice of termination on ground that tenant offered alternative social housing premises
(1) A notice of termination of a social housing tenancy agreement is not to be given to the tenant on the ground referred to in section 63F before the later of the following:(a) the end of the 14-day period within which the tenant may apply for any review under section 63G of the decision to give the notice of termination,(b) the end of any such review carried out in respect of that decision.(2) However, if the landlord and tenant enter into a new social housing tenancy agreement before the end of that 14-day period or any such review, the notice of termination may be given on or after the day on which they enter into the new agreement.(3) The notice of termination is not to specify a day earlier than 30 days after the day on which the notice is given as the day on which vacant possession of the premises the subject of the existing agreement is to be delivered up to the landlord, unless it specifies an earlier day to which the tenant has consented.(4) The notice of termination is ineffective unless the alternative premises in connection with which the notice of termination is given are available for occupation no later than 7 days before the date specified in the notice as the day on which vacant possession is to be delivered up to the landlord.(5) In the case of a social housing tenancy agreement that creates a tenancy for a fixed term—the notice of termination is not ineffective merely because a day earlier than the day on which the term ends is specified as the day on which vacant possession is to be delivered up to the landlord.
63I Notice of termination of public housing tenancy agreement—acceptable behaviour agreements
(1) The New South Wales Land and Housing Corporation may give notice of the termination of a public housing tenancy agreement to the tenant on either of the following grounds:(a) the tenant has failed or refused to enter into an acceptable behaviour agreement as requested by the Corporation,(b) the tenant has seriously or persistently breached the terms of an acceptable behaviour agreement.(2) A notice of termination given under this section is not to specify a day earlier than 14 days after the day on which the notice is given as the day on which vacant possession of the premises to which the tenancy agreement relates is to be delivered up to the Corporation.(3) A notice of termination given under this section of a tenancy agreement that creates a tenancy for a fixed term is not ineffective because the day specified as the day on which vacant possession of the premises to which the tenancy agreement relates is to be delivered up to the Corporation is earlier than the day the term ends.
Division 3 Termination of residential tenancy agreements by Tribunal
64 Application to Tribunal by landlord for termination and order for possession
(1) If:(a) a landlord or a tenant gives notice of termination of a residential tenancy agreement under this Part, and(b) the tenant fails to deliver up vacant possession of the residential premises on the day specified,the landlord may, not later than 30 days after that day, apply to the Tribunal for an order terminating the agreement and an order for possession of the premises.(2) The Tribunal, on application by a landlord under this section, is to make an order terminating the agreement if it is satisfied:(a) in the case of a notice given by a landlord on a ground referred to in section 56 or 61—that the landlord has established the ground, or(b) in the case of a notice given by a landlord on the ground referred to in section 57, relating to a breach of the agreement:(i) that the landlord has established the ground, and(ii) that the breach, in the circumstances of the case, is such as to justify termination of the agreement, or(c) in any other case (except in the case of a notice given by a landlord on a ground referred to in section 63B, 63F or 63I):(i) that the tenant has seriously or persistently breached the agreement, or(ii) that, having considered the circumstances of the case, it is appropriate to do so.(2A) The Tribunal, on application under this section by a landlord under a social housing tenancy agreement, is to make an order terminating the agreement (the existing agreement) if it is satisfied:(a) in the case of a notice given on a ground referred to in section 63B—that the landlord has determined, as the result of an assessment carried out under section 63C, that the tenant is not eligible to reside in the class of social housing premises to which the agreement applies, or(b) in the case of a notice given on a ground referred to in section 63F:(i) that the landlord has offered to enter into a new social housing tenancy agreement with the tenant in respect of alternative premises to the premises the subject of the existing agreement, and(ii) that alternative premises (which may or may not be the same as the alternative premises in connection with which the notice was given) are available for occupation by the tenant.(2B) In deciding whether or not to make an order under subsection (2A) (a), the Tribunal is not to review the eligibility of the tenant to reside in the class of social housing premises to which the agreement applies.(2C) In deciding whether or not to make an order under subsection (2A) (b), the Tribunal is not to review the landlord’s reasons for making the offer concerned.(2D) The Tribunal is, on application by the New South Wales Land and Housing Corporation on a ground referred to in section 63I, to make an order terminating the agreement if:(a) in the case of the ground referred to in section 63I (1) (a):(i) the Corporation has requested, in accordance with section 35A, that the tenant enter into an acceptable behaviour agreement, and(ii) the Tribunal is satisfied that the tenant has failed or refused to do so, or(b) in the case of the ground referred to in section 63I (1) (b):(i) the Tribunal is satisfied that the tenant has entered into an acceptable behaviour agreement, and(ii) the tenant has failed to satisfy the Tribunal that the tenant has not seriously or persistently breached the terms of that agreement.(3) Except as provided by section 66, the Tribunal shall not make an order terminating a residential tenancy agreement under this section unless it is satisfied that notice of termination was given and that it was given in accordance with this Part.(3A) The Tribunal is not to make an order terminating a social housing tenancy agreement on the ground referred to in section 63B or 63F unless it is satisfied that:(a) except as provided by section 66, any notice required to be given under section 63D or 63G before giving notice of termination was given and that it was given in accordance with that section, and(b) any review required to be carried out under section 63D or 63G was carried out and that it was carried out in accordance with that section.(4) Without limiting the obligations of the Tribunal under subsection (2) (b) or (c), in considering the circumstances of a case concerning social housing premises under that provision, the Tribunal, in addition to having regard to the circumstances of the tenant and other circumstances of the case, is to have regard to such of the following matters as may be relevant:(a) any serious adverse effects the tenancy has had on neighbouring residents or other persons,(b) whether any breach of the residential tenancy agreement was a serious one (and, in particular, whether it was one to which subsection (6) applies), and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk,(c) the landlord’s responsibility to its other tenants,(d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal,(e) the history of the tenancy concerned, including, if the tenant is a tenant under a public housing tenancy agreement, any prior tenancy of the tenant arising under any such agreement.(5) If the Tribunal makes an order terminating a residential tenancy agreement under this section, it must make a further order for possession of the residential premises, specifying the day on which the order takes effect.(6) If the residential premises concerned are social housing premises, an order for possession made under this section is to be expressed to take effect immediately if, in the case of a breach of the agreement, the breach:(a) involves the use of the premises, or any property adjoining or adjacent to the premises (including any property available for use by the tenant in common with others), for the purposes of the manufacture or sale of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or(b) subjects persons or property to unreasonable risk,unless the Tribunal considers that it would be unjust to do so.(7) Nothing in this section affects the operation of section 68 or 68A.
65 Suspension or refusal of orders for termination
(1) The Tribunal may suspend the operation of an order for possession of residential premises (other than premises which are part of the landlord’s principal place of residence) for a specified period if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the landlord and the tenant by the suspension.(1A) The Tribunal may, as a condition of the suspension of the operation of an order for possession, require the tenant to pay to the landlord an occupation fee specified by the Tribunal for the period for which the order for possession is suspended.(2) Notwithstanding section 64, the Tribunal may refuse to make an order terminating an agreement and an order for possession under that section if it is satisfied:(a) that the landlord was wholly or partly motivated to give notice of termination by the fact that:(i) the tenant had applied or proposed to apply to the Tribunal for an order,(ii) the tenant had complained to a governmental authority or had taken some other action to secure or enforce his or her rights as a tenant, or(iii) an order of the Tribunal was in force in relation to the landlord and the tenant,(b) that in the case of a notice given by the landlord on the ground of a breach of the residential tenancy agreement by the tenant—the tenant has remedied the breach, or(c) that in the case of a notice given by the landlord on the ground that the landlord has entered into a contract for the sale of the residential premises—the sale is not proceeding.(3) In this section, a reference to a tenant includes a reference to a person who has applied to the Tribunal for an order under section 35 (which relates to the recognition of certain persons as tenants).
66 Tribunal may waive defect in notices
The Tribunal may, if it thinks it appropriate to do so in the special circumstances of the case, make an order terminating a residential tenancy agreement and an order for possession of residential premises even though there is a defect in any notice of termination of the agreement or any notice required to be given under section 63D or 63G.
67 Notice of termination not required in certain cases
An application under section 68, 69, 69A or 70 may be made whether or not notice of termination has been given.
68 Tribunal may terminate residential tenancy agreement where tenant causes serious damage or injury
(1) The Tribunal may, on application by a landlord under a residential tenancy agreement, make an order terminating the agreement if it is satisfied that the tenant has intentionally or recklessly caused or permitted, or is likely intentionally or recklessly to cause or permit:(a) serious damage to the residential premises, or(b) injury to the landlord, the landlord’s agent or any person in occupation of or permitted on adjoining or adjacent premises.(2) If the Tribunal makes an order terminating a residential tenancy agreement under this section, the Tribunal shall also make an order for possession of the residential premises taking effect immediately.(3) In the case of a tenancy of social housing premises, a reference in subsection (1) (a) to the residential premises is taken to include a reference to any property adjoining or adjacent to the premises (including any property available for use by the tenant in common with others).
68A Tribunal may terminate public housing tenancy agreement for threat, abuse, intimidation or harassment
(1) The Tribunal may, on application by the New South Wales Land and Housing Corporation under a public housing tenancy agreement, make an order terminating the agreement if it is satisfied that the tenant has:(a) seriously or persistently threatened or abused any member of staff of the Department of Housing, or(b) intentionally engaged in conduct in relation to any such member of staff that would be reasonably likely to cause the member of staff to be intimidated or harassed (whether or not any abusive language or threat has been directed towards the member of staff).(2) If the Tribunal makes an order terminating an agreement under this section, the Tribunal is to also make an order for possession of the premises to which the agreement relates taking effect immediately.
69 Tribunal may terminate residential tenancy agreement where landlord would otherwise suffer undue hardship
(1) The Tribunal may, on application by a landlord under a residential tenancy agreement, make an order terminating the agreement if it is satisfied that the landlord would, in the special circumstances of the case, suffer undue hardship if the agreement were not terminated.(2) If the Tribunal makes an order terminating a residential tenancy agreement under this section, the Tribunal:(a) shall also make an order for possession of the residential premises specifying the day on which the order takes effect, and(b) may make such other orders (including an order that the landlord pay to the tenant compensation for the tenant’s loss of the tenancy) as it thinks fit.(3) The tenant must take all reasonable steps to mitigate the loss and is not entitled to compensation for any loss that could have been avoided by taking those steps.
69A Tribunal may terminate residential tenancy agreement where tenant would otherwise suffer undue hardship
(1) The Tribunal may, on application by a tenant under a residential tenancy agreement, make an order terminating the agreement if it is satisfied that the tenant would, in the special circumstances of the case, suffer undue hardship if the agreement were not terminated.(2) If the Tribunal makes an order terminating a residential tenancy agreement under this section, the Tribunal:(a) is also to make an order for the repossession by the landlord of the residential premises specifying the day on which the order takes effect, and(b) may make such other orders as it thinks fit (including an order that the tenant pay to the landlord compensation for the landlord’s loss of the tenancy).(3) The landlord must take all reasonable steps to mitigate the loss and is not entitled to compensation for any loss that could have been avoided by taking those steps.
70 Tribunal may terminate residential tenancy agreement for breach
(1) The Tribunal may, on application by a tenant under a residential tenancy agreement, make an order terminating the agreement if it is satisfied:(a) that the landlord has breached the agreement, and(b) that the breach, in the special circumstances of the case, is such as to justify termination of the agreement under this section.(2) If the Tribunal makes an order terminating a residential tenancy agreement under this section, the Tribunal shall also make an order for possession of the residential premises specifying the day on which the order takes effect.
Division 4 Recovery of possession of residential premises
71 Prohibition on certain recovery proceedings in courts
No proceedings in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement shall be commenced by a landlord against a tenant or former tenant of the landlord.
71A Mortgagee repossessions of rented properties
(1) Notice to vacate
If a residential tenancy agreement is terminated because of the operation of section 53 (e), the mortgagee is not to take possession of the residential premises from the former tenant who is holding over after termination of the agreement unless the mortgagee, after becoming entitled to take possession, gives the former tenant a written notice, in accordance with this section, to vacate the premises (notice to vacate).(2) Minimum period of 30 days to vacate premises
The notice to vacate must specify the date by which the former tenant is to vacate the residential premises (the specified date). The specified date must be not less than 30 days after the date on which the notice is given to the former tenant.(3) Former tenant may withhold or recoup rent etc
The former tenant who is holding over after termination of the residential tenancy agreement:(a) is not, during the period of 30 days following the date on which the tenant is given the notice to vacate, required to pay any rent, fee or other charge to occupy the residential premises, and(b) is, if the former tenant has paid any rent in advance for any part of that period, entitled to be repaid the amount of that rent.(4) Tribunal may order repayment to former tenant
The Tribunal may, on application by the former tenant, order the repayment to the former tenant of any such amount referred to in subsection (3) (a) or (b).(5) Inspection of residential premises by prospective purchasers
The mortgagee (or any person acting on behalf of the mortgagee) is, during the period in which the former tenant is holding over after termination of the residential tenancy agreement, entitled to enter the residential premises to show the premises to prospective purchasers on a reasonable number of occasions, but only if the former tenant:(a) is given reasonable notice of each such occasion, and(b) agrees to the date and time of the inspection.(6) Mortgagee not prevented from doing certain things
This section does not prevent the mortgagee from:(a) taking possession of the residential premises before the specified date if the former tenant voluntarily vacates the premises before that date, or(b) changing the specified date to a later date by further notice in writing given to the former tenant, or(c) entering into a new residential tenancy agreement with the former tenant in respect of the residential premises.(7) Section applies to existing agreements
This section extends to a residential tenancy agreement in force immediately before the commencement of this section.(8) Relationship with other laws
This section has effect despite the terms of any court order, contract or other agreement.
72 Recovery of possession of residential premises prohibited except by order
(1) A person shall not, except in accordance with a judgment, warrant or order of a court or an order of the Tribunal, enter residential premises or any part of such premises of which another person has possession:(a) under a residential tenancy agreement, or(b) as a former tenant holding over after termination of a residential tenancy agreement,for the purpose of recovering possession of the premises or part of the premises.(1A) In the case of a residential tenancy agreement that has terminated because of the operation of section 53 (e), the mortgagee (or any person acting on behalf of the mortgagee) is not, despite subsection (1), to take possession of the residential premises before the date specified in the notice to vacate under section 71A.(2) This section applies to a person who enters residential premises or any part of such premises, whether on his or her own behalf or on behalf of another person.(3) A court before which proceedings for an offence under this section are brought may (in addition to any other penalty) order the person who committed the offence or any person on whose behalf that person acted to pay to the person against whom the offence was committed such compensation as it thinks fit.
73 Enforcement of orders for possession
(1) If an order for possession of residential premises is made by the Tribunal, then the Chairperson, any other member, the Registrar or a Deputy Registrar may:(a) on the application of the person in whose favour the order was made, and(b) if satisfied that the order for possession or a condition of suspension of the order has not been complied with,issue a warrant, in or to the effect of the prescribed form, authorising a sheriff’s officer to enter the residential premises and to give possession to the person in whose favour the order was made.(2) A sheriff’s officer enforcing an order for possession of residential premises may enter the premises and take all such steps as are reasonably necessary to enforce the order and shall produce the warrant authorising the enforcement.(3) A member of the police force may, at the request of a sheriff’s officer, assist the sheriff’s officer to enforce the order for possession.(4) A sheriff’s officer enforcing an order for possession may use such force as is reasonably necessary for that purpose.(5) A person shall not hinder or obstruct a sheriff’s officer in the exercise of the functions conferred by this section.(6) No matter or thing done by a sheriff’s officer or member of the police force, in the exercise or purported exercise of functions conferred by this section, shall, if the matter or thing was done in good faith for the purposes of enforcing an order for possession, subject a sheriff’s officer or member of the police force so doing personally to any action, liability, claim or demand.(7) A delay on the part of an applicant who is a social housing provider in making an application under this section is not to be regarded by the Tribunal as good cause to refuse to grant the application, to the extent that the delay is attributable to bona fide attempts by the applicant to reach agreement with the tenant for reinstatement of the tenancy.
74 Liability of tenant remaining in possession
(1) If a tenant fails to comply with an order for possession of residential premises made by the Tribunal, the tenant is liable:(a) to pay compensation to the landlord for any loss caused to the landlord by that failure, and(b) to pay an occupation fee to the landlord equal to the amount of rent that would have been payable by the tenant for the residential premises for the period the tenant remains in possession after termination of the residential tenancy agreement.(2) The Tribunal may, on application by a landlord under this section made not later than 30 days after the day on which the order for possession took effect, order a tenant to pay to the landlord such compensation or an amount equal to an occupation fee, or both, as it thinks fit.
75 Notice of proposed recovery of premises by person with superior title
(1) This section applies where a person (the plaintiff) brings proceedings in a court or the Tribunal (whether under this Act or otherwise) for the recovery of possession of residential premises.(2) The court or Tribunal shall not give judgment or make an order for possession, unless it is satisfied:(a) as to whether or not there is a person in possession of the residential premises as:(i) a tenant under a residential tenancy agreement, or(ii) a former tenant holding over after termination of a residential tenancy agreement, and(b) if there is such a person in possession of the residential premises and the plaintiff is not the landlord or former landlord under the residential tenancy agreement—that the person has had reasonable notice of the proceedings brought by the plaintiff.(3) Failure to comply with this section does not invalidate or otherwise affect the judgment or order.
76 Order for tenancy against person with superior title
(1) This section applies to a person who is or was in possession of residential premises as:(a) a tenant under a residential tenancy agreement, or(b) a former tenant holding over after termination of a residential tenancy agreement,at a time when proceedings for the recovery of possession of the premises had been commenced before a court or the Tribunal (whether under this Act or otherwise) by a person (the plaintiff) who is not the landlord or former landlord under the agreement.(2) A person to whom this section applies may apply for an order under this section and such an application may be made to:(a) the court or Tribunal before which the proceedings are pending, or(b) if the proceedings have been completed or possession has been recovered—the Tribunal,and must be made within a reasonable time after the applicant was given notice of the proceedings or (if no notice was given) within a reasonable time after the recovery of possession of the residential premises.(3) The court or Tribunal may, on such an application, and if it thinks it appropriate to do so in the special circumstances of the case, make an order vesting a tenancy over the residential premises in the applicant.(4) The tenancy shall be held of the plaintiff, and on such terms and conditions as the court or Tribunal thinks fit, having regard to the circumstances of the case.(5) Such an application or order may be made, even though:(a) notice was not given to the applicant of the proceedings brought by the plaintiff, or(b) the proceedings brought by the plaintiff have been completed or possession of the residential premises has been recovered by the plaintiff.
Division 5 Abandoned premises and goods
(1) The Tribunal may, on application by a landlord under a residential tenancy agreement, make an order that declares that the residential premises were abandoned by the tenant on a day specified by the Tribunal.(2) The tenant shall be deemed for the purposes of this Act to have abandoned the residential premises on that day.
78 Right of landlord to compensation where tenant abandons premises
(1) If a tenant under a residential tenancy agreement abandons the residential premises, the tenant is liable to pay compensation to the landlord for any loss (including loss of rent) caused by the abandonment.(2) The landlord shall take all reasonable steps to mitigate the loss and is not entitled to compensation for any loss that could have been avoided by taking those steps.(3) The Tribunal may, on application by the landlord, order a tenant to pay to the landlord such compensation (including compensation for loss of rent) as it thinks fit.
79 Goods abandoned by tenant after residential tenancy agreement is terminated
(1) If a residential tenancy agreement is terminated and goods are left by the tenant on the residential premises, the former landlord may:(a) apply to the Tribunal for an order under this section, or(b) dispose of the goods in accordance with any provision made by the regulations,or both.(2) The Tribunal may, on application by a former landlord under this section, make any one or more of the following orders:(a) an order authorising the removal, destruction or disposal of abandoned goods,(b) an order authorising the sale of abandoned goods,(c) an order directing that notice of any action or proposed action in relation to abandoned goods be given to the former tenant or any other person,(d) an order as to the manner of sale of abandoned goods,(e) an order as to the proceeds of sale of abandoned goods,(f) any ancillary order which the Tribunal, in the circumstances, thinks appropriate.(3) A purchaser of goods sold by a landlord in accordance with an order of the Tribunal or the regulations acquires a good title to the goods in defeasance of the interest of the former tenant or any other person who has an interest in the goods.(4) A former landlord does not incur any liability in respect of the removal, destruction, disposal or sale of goods in accordance with an order of the Tribunal or the regulations.
79A Goods left by tenant, but not abandoned, after residential tenancy agreement is terminated
(1) If a residential tenancy agreement is terminated and goods are left by the tenant on the residential premises:(a) the tenant, or(b) any other person having an interest in the goods,may apply to the Tribunal for an order for the delivery of the goods into the tenant’s or other person’s possession.(2) The Tribunal may, on application under this section, make any one or more of the following orders:(a) an order for the delivery of the goods into the tenant’s or other person’s possession,(b) an order requiring the tenant or other person to pay any reasonable costs incurred by the landlord in connection with the removal, storage or delivery of the goods,(c) any ancillary order that the Tribunal, in the circumstances, thinks appropriate.(3) A former landlord does not incur any liability in respect of the disposal of goods in accordance with an order of the Tribunal under this section.(4) To avoid doubt, an application may be made under subsection (1) even though, when the application is made, the goods are no longer on the residential premises.
79B Time within which application under section 79 or 79A to be made
An application under section 79 or 79A may not be made more than 28 days after the date on which the landlord gains possession of the residential premises concerned, whether as a result of the tenant delivering up vacant possession of the premises to the landlord, the tenant abandoning the premises, the landlord recovering possession of the premises under an order for possession or otherwise.