Residential Tenancies Act 2010 No 42
Current version for 4 July 2014 to date (accessed 24 November 2014 at 13:38)
Part 6Division 1

Division 1 Recovery of possession

119   Prohibition on certain recovery proceedings in courts

A landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord 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.

120   Repossession of residential premises—offences

(1)  A person must not enter residential premises for the purposes of taking possession of those premises before or after the end of a residential tenancy agreement unless:
(a)  the person is acting in accordance with a warrant arising out of an order for possession of the Tribunal or a writ or warrant arising out of a judgment or order of a court, or
(b)  the tenant has abandoned the premises or given vacant possession of the premises.

Maximum penalty: 200 penalty units.

Note. Under section 106 a landlord may apply to the Tribunal for an order declaring that a tenant has abandoned the residential premises.
(2)  A court that finds an offence under this section proven may, in addition to any other penalty it may impose, order that compensation be paid to the person against whom the offence was committed by the person who committed the offence or on whose behalf the offence was committed.
(3)  This section applies to a person who enters residential premises on his or her own behalf or on behalf of another person.

121   Enforcement of orders for possession

(1)  The principal registrar of the Tribunal may, on the application of a person in whose favour an order for possession was made, issue a warrant for possession of the residential premises concerned if the principal registrar is satisfied that the order or a condition of suspension of the order has not been complied with.
(2)  An application for a warrant for possession may be made immediately, if the order for possession so provides, or not more than 30 days after the date by which vacant possession was required or within such further period as the Tribunal may permit.
(3)  Without limiting subsection (2), the Tribunal may permit an application to be made within a further period if the delay in making the application is attributable to genuine attempts by the applicant to reach agreement with the tenant for reinstatement of the tenancy.
(4)  A warrant for possession is to be in the approved form and must authorise a sheriff’s officer to enter specified residential premises and to give possession to the person specified in the warrant.
Note. See section 7A of the Sheriff Act 2005 for provisions relating to the enforcement of warrants.

122   Mortgagee repossessions of rented properties

(1) Application
This section applies if a residential tenancy agreement is terminated because the mortgagee in respect of the residential premises becomes entitled to possession of the premises and the former tenant under that agreement is given notice to vacate the premises by the Sheriff.
Note. The Sheriff must give the former tenant not less than 30 days to vacate the residential premises (see section 7A of the Sheriff Act 2005).
(2) 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.
(3) 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 amount referred to in subsection (2).
(4) 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.
(5) Mortgagee not prevented from doing certain things
This section does not prevent the mortgagee from:
(a)  taking possession of the residential premises before the date specified in the notice to vacate if the former tenant voluntarily vacates the premises before that date, or
(b)  changing (by written notice given to the Sheriff and the former tenant) the date specified in the notice to vacate to a later date, or
(c)  entering into a new residential tenancy agreement with the former tenant in respect of the residential premises.
(6) Relationship with other laws
This section has effect despite the terms of any court order, contract or other agreement.

123   Liability of tenant remaining in possession after termination

(1)  A tenant who fails to comply with an order for possession of the Tribunal is liable to pay an occupation fee to the landlord for the period the tenant remains in possession of the residential premises after the date the tenant is required to vacate the premises.
(2)  The occupation fee payable is an amount equal to the rent that would have been payable for that period if the residential tenancy agreement had not been terminated.
(3)  The amount of the occupation fee may be deducted from the rental bond paid by the tenant for the residential premises.
(4)  The Tribunal may, on application by the landlord, order the tenant to pay to the landlord an amount of occupation fee.

124   Notice of proposed recovery of premises by person with superior title

(1)  This section applies if proceedings for the recovery of possession of residential premises are 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)  The court or Tribunal must 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 a tenant under a residential tenancy agreement or a former tenant holding over after termination of a residential tenancy agreement, and
(b)  that any such 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.

125   Order for tenancy against person with superior title

(1)  This section applies if proceedings for the recovery of possession of residential premises are 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)  An application may be made under this section by a person who is or was, when the proceedings were commenced, in possession of the 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.
(3)  The application may be made to:
(a)  the court or Tribunal before which the proceedings are pending, or
(b)  if the proceedings have been completed—the Tribunal,
and must be made within the period prescribed by the regulations after the applicant was given notice of the proceedings or (if no notice was given) within a reasonable time after the completion of the proceedings and before possession of the premises is recovered.
(4)  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.
(5)  The plaintiff is to be the landlord under the tenancy and the tenancy is to be on such terms and conditions as the court or Tribunal thinks fit, having regard to the circumstances of the case.
(6)  Such an application or order may be made before possession of the premises is recovered, 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.
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