12   Reservation fees: sec 36

(1)  For the purposes of section 36 of the Act, the circumstances in which a person may require or receive a reservation fee from a prospective tenant (but not from a tenant) are circumstances in which the following conditions are satisfied:

(a)  the fee does not exceed one week’s rent of the residential premises concerned (based on the proposed rent under the proposed residential tenancy agreement),

(b)  no other reservation fee has been received for the residential premises,

(c)  a receipt containing the following particulars is given to the person who pays the reservation fee by the person who receives it:

(i)  the name of the person who receives the payment or on whose behalf the payment is received,

(ii)  the name of the person making the payment or on whose behalf the payment is made,

(iii)  the address of the residential premises in respect of which the payment is made,

(iv)  the date on which the payment is received,

(v)  the amount of the payment,

(d)  the person who requires or receives the reservation fee gives the person paying the fee a written acknowledgment that:

(i)  the premises will not be let during a specified period, pending the making of a residential tenancy agreement, and

(ii)  if the landlord has not decided to enter into a residential tenancy agreement in the agreed terms for the residential premises concerned during that period, the whole of the fee will be refunded, and

(iii)  if the entering into of the residential tenancy agreement is conditional on the landlord carrying out repairs or other work and the landlord does not carry out the repairs or other work during the specified period, the whole of the fee will be refunded, and

(iv)  if the prospective tenant decides not to enter into such an agreement, and the premises were not let or otherwise occupied during the period they were reserved, the landlord may retain so much of the fee as is equal to the amount of rent that would have been paid during the period the premises were reserved (based on the proposed rent) but is required to refund the remainder (if any) of the fee, and

(v)  if a residential tenancy agreement is entered into, the fee is to be paid towards rent for the residential premises concerned.

(2)  A reservation fee must not be required of a person who is a tenant in respect of the residential premises and must not be received from such a person.

(3)  In this clause:

reservation fee means an amount paid or required to be paid by a prospective tenant, or any person on behalf of a prospective tenant, in consideration for not letting residential premises pending the making of a residential tenancy agreement.