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Contents (2010 - 42)
Residential Tenancies Act 2010 No 42
Current version for 7 July 2017 to date (accessed 22 October 2017 at 21:15)
Part 6
Part 6 Recovery of possession of premises
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 form approved by the principal registrar of the Tribunal 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.
Division 2 Goods left on residential premises
126   Application and interpretation
(1)  This Division (other than section 134 (2A)) applies to goods or rubbish left behind on residential premises by a tenant or an occupant of the premises after vacant possession of the premises is obtained or the premises are abandoned.
(2)  In this Division:
disposal notice means a notice given under section 127.
perishable goods means perishable goods or rubbish to which this Division applies.
personal document means:
(a)  a birth certificate, passport or other identity document, or
(b)  bank books or other financial statements or documents, or
(c)  photographs and other personal memorabilia, or
(d)  licences or other documents conferring authorities, rights or qualifications, or
(e)  any other record, or class of record, prescribed by the regulations for the purposes of this definition.
127   Disposal notices
(1)  The landlord or landlord’s agent must give the former tenant notice that the goods will be disposed of after 14 days (in the case of goods other than personal documents) or 90 days (in the case of personal documents) after the day on which the notice is given unless they are first claimed.
(2)  Notice may be given in any of the following ways:
(a)  in writing in any manner permitted under this Act,
(b)  by post to the former tenant or the former tenant’s legal personal representative at the last forwarding address known to the landlord,
(c)  orally in person or by telephoning the former tenant.
(3)  Notice may be given by posting a notice in a prominent position on the residential premises if the landlord is unable (for a period of more than 2 days) to give notice to the former tenant in a manner set out in subsection (2).
(4)  This section does not apply to perishable goods.
128   Perishable goods
A landlord or landlord’s agent may remove or otherwise dispose of goods that the landlord or landlord’s agent reasonably believes are perishable goods at any time after vacant possession of the residential premises is given or the residential premises are abandoned.
129   Storage of goods
The landlord or landlord’s agent may remove goods from residential premises and store them in a safe place pending disposal or collection of the goods in accordance with this Division.
130   Disposal of non-perishable goods (other than personal documents)
(1)  The landlord or landlord’s agent may dispose of goods (other than personal documents) in accordance with this section if the former tenant or other person entitled to possession of the goods fails to collect or make arrangements to collect the goods within 14 days of a disposal notice being given in accordance with this Division or within such further period as may be agreed.
(2)  The landlord or landlord’s agent may dispose of any such goods by selling them or in any other lawful manner.
(3)  The landlord or landlord’s agent must keep a record of goods disposed of under this section.
(4)  A landlord or landlord’s agent who sells goods under this section must, if requested to do so by the former tenant or other person entitled to possession of the goods, pay the sale proceeds to the former tenant or other person. The landlord or landlord’s agent may deduct from the proceeds an occupation fee calculated in accordance with section 132 and the reasonable costs of the sale.
(5)  This section does not apply to perishable goods.
131   Disposal of personal documents
(1)  The landlord or landlord’s agent may dispose of goods that are personal documents in accordance with this section if the former tenant or other person entitled to possession of the documents fails to collect or make arrangements to collect the documents within 90 days of a disposal notice being given in accordance with this Division or within such further period as may be agreed.
(2)  The landlord or landlord’s agent may dispose of personal documents as follows:
(a)  by returning them to the authority that issued the documents,
(b)  if it is not reasonably practicable to return them to that authority, in any other lawful manner that the landlord or landlord’s agent thinks fit.
(3)  The landlord or landlord’s agent must not dispose of personal documents in any manner that results in personal information about a tenant or other person becoming publicly available.
132   Collection of goods by former tenants or persons entitled to goods
(1)  A person who is entitled to possession of goods may claim the goods at any time before they are disposed of.
(2)  The landlord or landlord’s agent must deliver up the goods to a person who claims them if the landlord or landlord’s agent is satisfied that the person is entitled to the goods.
(3)  The landlord or landlord’s agent must not require a person who claims goods to pay any amount to obtain them, other than an occupation fee in accordance with this section.
(4)  The landlord or landlord’s agent may require a former tenant or person who claims goods to pay an occupation fee for each day the goods are left on the residential premises or stored by or on behalf of the landlord, if the quantity of goods left on the premises by a former tenant or occupant is sufficient to prevent the landlord from renting the premises.
(5)  The occupation fee payable under this section:
(a)  must not exceed an amount that is equal to the rent that would have been payable under the residential tenancy agreement for each day the goods are left on the premises or stored, and
(b)  must not exceed, in total, the amount of rent for 14 days.
(6)  The Tribunal may, on application by a landlord or landlord’s agent, order that a former tenant or person who claims goods pay to the landlord or landlord’s agent an occupation fee of an amount that does not exceed the maximum amount payable under this section.
133   Landlord may seek Tribunal direction
(1)  This section applies if the tenant abandons the residential premises or dies.
(2)  The Tribunal may, on application by a landlord, make any one or more of the following orders:
(a)  an order authorising the removal or other disposal of goods,
(b)  an order directing that notice of any action or proposed action in relation to goods be given to the former tenant, the legal personal representative of a former tenant or any other person,
(c)  an order authorising the sale of goods,
(d)  an order as to the manner of sale of goods,
(e)  an order as to the payment of the proceeds of sale of goods,
(f)  any ancillary order that the Tribunal, in the circumstances, thinks appropriate.
(3)  A landlord or landlord’s agent must deal with goods in accordance with an order of the Tribunal under this section and not in accordance with the other provisions of this Division relating to disposal of goods.
(4)  This section does not apply to perishable goods.
134   Orders by Tribunal relating to goods
(1)  The Tribunal may, on application by the former tenant or a person who has an interest in goods, make any of the following orders:
(a)  an order requiring the landlord to pay compensation for goods disposed of by the landlord or landlord’s agent otherwise than in accordance with this Division,
(b)  an order requiring the landlord to pay compensation for goods damaged after being left on the residential premises and before being claimed by the person entitled to them,
(c)  an order that the landlord or landlord’s agent deliver goods into the former tenant’s or other person’s possession,
(d)  an order requiring the landlord or landlord’s agent to pay the proceeds of sale, or an amount equivalent to the value of the goods, to the former tenant or person,
(e)  any ancillary order that the Tribunal, in the circumstances, thinks appropriate.
(2)  The Tribunal may also, on an application under this section or by a landlord, order the tenant or other person to pay an occupation fee of not more than 14 days rent.
(2A)  The Tribunal may, on application by a former co-tenant, make an order requiring a tenant or co-tenant, or a tenant or co-tenant’s agent, to deliver goods left behind on residential premises by the former co-tenant after the co-tenant vacated the premises (in circumstances where one or more other tenants or co-tenants continue to occupy the premises) into the former co-tenant’s possession.
(3)  An application for an order under this section must be made within the period prescribed by the regulations.
135   Effect of disposal of goods
(1)  A purchaser of goods sold by a landlord or landlord’s agent in accordance with this Division acquires a good title to the goods freed and discharged of any interest of the former tenant or any other person who would otherwise have an interest in the goods.
(2)  A person does not incur any liability in respect of the removal or sale or other disposal of goods in accordance with this Division or in accordance with an order of the Tribunal.