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Contents (2010 - 42)
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Residential Tenancies Act 2010 No 42
Current version for 7 July 2017 to date (accessed 18 August 2017 at 19:01)
Part 3 Division 2
Division 2 Rent and other payments
32   Kinds of payments that tenant may be required to pay for residential tenancy agreement
A person must not require or receive from a tenant any payment for or in relation to renewing, extending or continuing a residential tenancy agreement, other than the following:
(a)  rent,
(b)  a rental bond,
(c)  any other amounts or fees prescribed by the regulations.
Maximum penalty: 20 penalty units.
33   Payment of rent by tenant
(1)  A tenant must pay the rent under a residential tenancy agreement on or before the day set out in the agreement.
(2)  A landlord, or landlord’s agent, must not require a tenant to pay more than 2 weeks rent in advance under a residential tenancy agreement or to pay rent for a period of the tenancy before the end of the previous period for which rent has been paid.
Note.
 A tenant may pay more than 2 weeks rent if the tenant wishes to do so.
Maximum penalty: 10 penalty units.
(3)  A landlord, or landlord’s agent, must not knowingly appropriate rent paid by the tenant for the purpose of any amount payable by the tenant other than rent.
Maximum penalty: 10 penalty units.
(4)  This section is a term of every residential tenancy agreement.
34   Acceptance of rent by landlord
(1)  A landlord must accept payment of unpaid rent by a tenant if:
(a)  the landlord has given a termination notice on the ground of failure to pay rent under the residential tenancy agreement, and
(b)  the tenant has not vacated the residential premises.
Maximum penalty: 10 penalty units.
Note.
 A residential tenancy agreement may generally not be terminated by the Tribunal, or possession of residential premises be recovered, on the ground of failure to pay rent if the tenant repays the rent or complies with an agreement to do so (see section 89).
(2)  This section is a term of every residential tenancy agreement.
35   Manner of payment of rent
(1)  A landlord, landlord’s agent or other person must not require a tenant to pay rent by a cheque or other negotiable instrument that is post-dated.
Maximum penalty: 10 penalty units.
(2)  A landlord or landlord’s agent must permit a tenant to pay the rent by at least one means for which the tenant does not incur a cost (other than bank fees or other account fees usually payable for the tenant’s transactions) and that is reasonably available to the tenant.
Maximum penalty: 10 penalty units.
(3)  A landlord and the tenant may, by agreement, change the manner in which rent is payable under the residential tenancy agreement.
(4)  This section is a term of every residential tenancy agreement.
36   Rent receipts
(1)  If rent under a residential tenancy agreement is paid in person (other than by cheque), the person who receives the payment must, when the payment is made, give the person making the payment a rent receipt.
(2)  If rent under a residential tenancy agreement is paid by cheque, the person who receives the payment must make the receipt available for collection by the tenant or post it to the residential premises.
(3)  A rent receipt is a receipt that contains the following matters:
(a)  the name of the person who receives the rent or on whose behalf the rent is received,
(b)  the name of the person paying the rent or on whose behalf the rent is paid,
(c)  the address of the residential premises for which the rent is paid,
(d)  the period for which the rent is paid and the date up to which the rent is paid,
(e)  the date on which the rent is paid,
(f)  the amount of rent paid.
(4)  This section does not apply to the New South Wales Land and Housing Corporation or the Aboriginal Housing Office.
Maximum penalty: 10 penalty units.
38   Utility charges payable by tenant
(1)  A tenant must pay the following charges for the residential premises:
(a)  all charges for the supply of electricity, gas (except bottled gas) or oil to the tenant at the residential premises if the premises are separately metered,
(b)  all charges for the supply of bottled gas to the tenant at the residential premises,
(c)  all charges for pumping out a septic system used for the residential premises,
(d)  any excess garbage charges relating to the tenant’s use of the residential premises,
(e)  any other charges prescribed by the regulations.
(2)  This section is a term of every residential tenancy agreement.
39   Water usage charges payable by tenant
(1)  A tenant must pay the water usage charges for the residential premises, but only if:
(a)  the premises are separately metered or the premises are not connected to a water supply service and water is delivered to the premises by vehicle, and
(b)  the premises contain water efficiency measures prescribed by the regulations for the purposes of this section, and
(c)  the charges do not exceed the amount payable by the landlord for water used by the tenant.
(2)  A tenant is not required to pay the water usage charges unless the landlord gives the tenant a copy of the part of the water supply authority’s bill setting out the charges, or other evidence of the cost of water used by the tenant.
(3)  A landlord must give the tenant not less than 21 days to pay the water usage charges.
(4)  A tenant is not required to pay the water usage charges if the landlord fails to request payment from the tenant within 3 months of the issue of the bill for those charges by the water supply authority.
(5)  Subsection (4) does not prevent a landlord from taking action to recover an amount of water usage charges later than 3 months after the issue of a bill for those charges, if the landlord first sought payment of the amount within 3 months after the issue of the bill.
(6)  A landlord must ensure that the tenant receives the benefit of, or an amount equivalent to, any rebate received by the landlord in respect of any water usage charges payable or paid by the tenant.
Note.
 Tenants under social housing tenancy agreements may be subject to different provisions in relation to the payment of charges for water usage (see Division 3 of Part 7).
(7)  This section is a term of every residential tenancy agreement.
40   Payment of rates, taxes and certain utility charges by landlord
(1)  A landlord must pay the following charges for the residential premises:
(a)  rates, taxes or charges payable under any Act (other than charges payable by the tenant under this Division),
(b)  the installation costs and charges for initial connection to the residential premises of an electricity, water, gas, bottled gas or oil supply service,
(c)  all charges for the supply of electricity, gas (except bottled gas) or oil to the tenant at the residential premises that are not separately metered,
(d)  the costs and charges for the supply or hire of gas bottles for the supply of bottled gas at the commencement of the tenancy,
(e)  all charges (other than water usage charges) in connection with a water supply service to separately metered residential premises,
(f)  all charges in connection with a water supply service to residential premises that are not separately metered,
(g)  all charges for the supply of sewerage services (other than for pump out septic services) or the supply or use of drainage services to the residential premises,
(h)  any other charges prescribed by the regulations.
(2)  This section is a term of every residential tenancy agreement.
41   Rent increases
(1)  The rent payable under a residential tenancy agreement may be increased only if:
(a)  the tenant is given a written notice by the landlord or the landlord’s agent specifying the increased rent and the day from which it is payable, and
(b)  the notice is given at least 60 days before the increased rent is payable.
(2)  This section extends to an increase in the rent payable under a residential tenancy agreement on renewal of the agreement as if the increase were an increase during the term of the agreement.
Note.
 Notice of a rent increase on renewal is required under subsection (1) before the lease is renewed.
(3)  A rent increase is not payable by a tenant unless the rent is increased in accordance with this section or the rent is increased by the Tribunal.
(4)  The residential tenancy agreement is varied to specify the increased rent from the date the rent is increased in accordance with this section.
(5)  Notice of a rent increase must be given by a landlord or landlord’s agent in accordance with this section even if details of the rent increase are set out in the residential tenancy agreement.
(6)  Notice of a rent increase may be cancelled or varied (so as to reduce the increase) by a subsequent written notice given to the tenant by or on behalf of the landlord. Any such later notice takes effect from the date on which the earlier notice was to take effect.
(7)  Notice of a rent increase is not required to be given by a landlord or landlord’s agent if the increase arises because of the end of, or a reduction in, a rent reduction.
(8)  Subsections (1)–(7) are terms of every residential tenancy agreement.
(9)  A landlord or landlord’s agent must not contravene this section.
Maximum penalty: 20 penalty units.
(10)  The Tribunal must not make an order that a rent increase is not payable because this section has not been complied with unless the application for the order is made not later than 12 months after the rent is increased. If an application has not been made within that 12-month period, the rent increase is taken to comply with this section.
42   Rent increases under fixed term agreements
(1)  The rent payable under a fixed term agreement for a fixed term of less than 2 years must not be increased during the fixed term unless the agreement specifies the increased rent or the method of calculating the increase.
(2)  The rent payable under a fixed term agreement for a fixed term of 2 years or more:
(a)  must not be increased more than once in any period of 12 months, and
(b)  may be increased whether or not the agreement specifies the increased rent or the method of calculating the increase.
(3)  A landlord or landlord’s agent must not increase the rent payable under a fixed term agreement in contravention of this section.
Maximum penalty: 20 penalty units.
44   Tenant’s remedies for excessive rent
(1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders:
(a)  an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount,
(b)  an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount.
(2) Time limit for excessive rent increase applications An application for an order that a rent increase is excessive must be made within the period prescribed by the regulations after notice of the increase is given.
(3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement.
(4) Determination of excessive rent For the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent.
(5)  The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive:
(a)  the general market level of rents for comparable premises in the locality or a similar locality,
(b)  the landlord’s outgoings under the residential tenancy agreement or proposed agreement,
(c)  any fittings, appliances or other goods, services or facilities provided with the residential premises,
(d)  the state of repair of the residential premises,
(e)  the accommodation and amenities provided in the residential premises,
(f)  any work done to the residential premises by or on behalf of the tenant,
(g)  when the last increase occurred,
(h)  any other matter it considers relevant (other than the income of the tenant or the tenant’s ability to afford the rent increase or rent).
(6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent:
(a)  has effect for the period (of not more than 12 months) specified by the Tribunal, and
(b)  binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable.
Note.
 A tenant under a social housing tenancy agreement may also apply for an order that rent is excessive if a rent rebate is cancelled (see section 141 (1)).
45   Remedies for reduction of rent on frustration of residential tenancy agreement
(1)  The Tribunal may, on application by the landlord or tenant, make an order determining the amount of rent payable if the rent is abated under section 43 (2).
(2)  The Tribunal may order that:
(a)  from a specified day, the rent for the residential premises must not exceed a specified amount, and
(b)  the landlord must repay to the tenant any rent paid by the tenant since the specified day that is in excess of the specified amount.
Note.
 The residential tenancy agreement may also be terminated in these circumstances (see section 109).
46   Contraventions of rent order
(1)  A person must not demand, require or receive any rent from a tenant exceeding an amount specified by the Tribunal.
Maximum penalty: 20 penalty units.
(2)  A court before which proceedings for an offence under this section have been brought, or the Tribunal, on application by a tenant, 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 tenant against whom the offence was committed an amount equal to the amount of any rent unlawfully received from the tenant.
48   Landlord may recover certain rent expenses
(1)  A tenant must, at the written request of the landlord, pay to the landlord the following amounts:
(a)  the cost of replacing rent deposit books or rent cards lost by the tenant,
(b)  the amount of any fees paid to an authorised deposit-taking institution by the landlord as a result of funds of the tenant not being available for rent payment on the due date (such as fees for dishonoured cheques or other account fees).
(2)  This section has effect despite any other provision of this Division.
(3)  This section is a term of every residential tenancy agreement.