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Contents (2010 - 42)
Residential Tenancies Act 2010 No 42
Current version for 7 July 2017 to date (accessed 15 December 2017 at 19:22)
Part 8
Part 8 Rental bonds
Division 1 Preliminary
157   Definitions
In this Part:
claim notice means a notice given under section 164.
claim notice period means the period specified in a claim notice within which any proceedings affecting the rental bond must be notified to the Secretary.
deposit period means the period within which a rental bond must be deposited with the Secretary.
landlord includes a former landlord.
rental bond means an amount of money paid or payable by the tenant or another person as security against any failure by a tenant to comply with the terms of a residential tenancy agreement.
Rental Bond Account means the Rental Bond Account established under section 185.
Rental Bond Interest Account means the Rental Bond Interest Account established under section 186.
tenant includes a former tenant.
157A   Online rental bond service
(1)  The Secretary may establish an online rental bond service.
(2)  An online rental bond service is an online facility or system that may be used for any of the following purposes:
(a)  to deposit a rental bond with the Secretary,
(b)  to make a claim for the payment of a rental bond,
(c)  to make a payment of an amount of a rental bond,
(d)  to give any notice authorised or required under this Part,
(e)  to do or facilitate the doing of any other thing authorised or required under this Part.
(3)  Use of the online rental bond service is subject to any terms and conditions imposed by the Secretary.
(4)  A landlord, landlord’s agent or any other person must not require a tenant or another person to use the online rental bond service.
Maximum penalty: 20 penalty units.
(5)  A notice or other document that is authorised or required by this Part, or under a provision of a residential tenancy agreement that relates to the requirements of this Part, may be given or served by a user of the online rental bond service to or on any other user of the online rental bond service by delivering it electronically to an address nominated by the user as an address for service of the notice or other document.
(6)  In this section:
user of the online rental bond service means:
(a)  the Secretary, or
(b)  any tenant, landlord or landlord’s agent, or person acting on behalf of a tenant or landlord, who has agreed to use the online rental bond service.
158   Mortgagee in possession may exercise functions
A mortgagee who becomes entitled to possession of residential premises may exercise any functions of a landlord under this Part in respect of the release of a rental bond.
Division 2 Payment and deposit of rental bonds
159   Payment of bonds
(1)  A landlord, landlord’s agent or any other person must not require or receive from a tenant or another person a rental bond of an amount exceeding 4 weeks rent under the residential tenancy agreement for which the bond was paid (as in force when the agreement was entered into).
(1A)  A landlord, landlord’s agent or any other person must not require or receive from a tenant a rental bond unless:
(a)  the landlord or landlord’s agent is registered as a user of the online rental bond service established under section 157A, and
(b)  the tenant has been invited by the landlord or the landlord’s agent to provide an address that can be used to invite the tenant (using the online service) to use the online service to deposit the rental bond with the Secretary, and
(c)  if the tenant has provided such an address:
(i)  the landlord or landlord’s agent has invited the tenant (using the online service) to use the online service to deposit the rental bond with the Secretary, and
(ii)  the tenant has been given a reasonable opportunity to use the online service to deposit the rental bond with the Secretary or has declined the invitation.
(2)  A landlord, landlord’s agent or any other person must not require from a tenant or another person an amount of rental bond before the tenant signs the residential tenancy agreement.
(2A)  Subsection (2) does not prevent a landlord, landlord’s agent or other person from requiring a tenant or other person who has agreed to deposit a rental bond for a residential tenancy agreement with the Secretary to provide evidence that the rental bond has been so deposited before the residential tenancy agreement is entered into.
(3)  A person who receives payment of a rental bond must provide the tenant, or person paying the bond, with a receipt for the bond but is not required to do so if details of the payment are recorded in the residential tenancy agreement.
(4)  A person who contravenes this section is guilty of an offence.
Maximum penalty: 20 penalty units.
160   Other security may not be required
(1)  A landlord, landlord’s agent or any other person must not require or receive from a tenant or another person anything other than a rental bond as security for any failure by a tenant to comply with the terms of a residential tenancy agreement.
Maximum penalty: 20 penalty units.
(2)  This section does not apply to an undertaking:
(a)  given to a landlord by the Secretary of the Department of Family and Community Services (or the New South Wales Land and Housing Corporation on behalf of that Secretary), or a person authorised in writing for the purposes of this section by that Secretary, and
(b)  that provides that, subject to specified conditions, the landlord will be indemnified up to a specified amount against loss or damage arising from any breach of a residential tenancy agreement by a specified tenant.
161   One rental bond for each agreement
(1)  A landlord, landlord’s agent or any other person must not require or receive more than one rental bond for a residential tenancy agreement.
(2)  A landlord, landlord’s agent or any other person must not require or receive from a tenant or another person a rental bond or additional amounts of rental bond if:
(a)  a rental bond was paid (and not claimed) for residential premises under a residential tenancy agreement, and
(b)  one or more of the tenants under that agreement continue to occupy the residential premises under one or more successive residential tenancy agreements.
Maximum penalty: 20 penalty units.
162   Deposit of rental bonds
(1)  A landlord, landlord’s agent or other person who receives an amount of rental bond must deposit that amount with the Secretary within the deposit period together with a notice in the approved form.
(2)  A rental bond may, if the landlord and tenant agree, be paid by instalments commencing on the signing of the residential tenancy agreement.
(3)  The deposit periods for a rental bond (other than a bond paid by instalments) are as follows:
(a)  for a bond paid to a landlord or person other than a landlord’s agent—10 working days after the bond is paid or such other period as may be prescribed by the regulations,
(b)  for a bond paid to a landlord’s agent—10 working days after the end of the month in which the bond is paid or such other period as may be prescribed by the regulations.
(4)  The deposit periods for a rental bond paid by instalments are as follows:
(a)  if the total amount of the bond is paid within 3 months of the first instalment being paid—10 working days after the total bond is paid,
(b)  if the total amount is not paid within 3 months of the first instalment being paid, for any instalments paid within that period—3 months after the first instalment is paid or 10 working days after each instalment is paid (whichever occurs later),
(c)  if one or more instalments are paid after 3 months of the first instalment being paid—every 3 months until the bond is fully paid.
(5)  A person who contravenes this section is guilty of an offence.
Maximum penalty: 20 penalty units.
(6)  This section does not apply if:
(a)  the rental bond is refunded or becomes refundable, or
(b)  the rental bond becomes the subject of proceedings before the Tribunal or a court in relation to a residential tenancy agreement.
Division 3 Release of rental bonds
163   Claims for rental bonds
(1)  A claim may be made to the Secretary for the payment of a rental bond by:
(a)  the tenant or an agent of the tenant, or
(b)  the landlord or an agent of the landlord, or
(c)  jointly by the landlord and the tenant or agents for them.
(2)  A claim is to be made in the approved form.
(3)  A claim must not be made before the termination of a residential tenancy agreement unless:
(a)  it is made jointly by or on behalf of the landlord and all the tenants, or
(b)  it is made by or on behalf of the landlord and directs that the rental bond be paid to all the tenants, or
(c)  it is made by or on behalf of all the tenants and directs that the rental bond be paid to the landlord.
164   Claim notice to be given to other party
(1)  This section applies if a claim for the whole or part of a rental bond is made by a landlord or a tenant without the consent of all the other parties to a residential tenancy agreement.
(2)  The Secretary must give written notice of the claim to all of the other parties to the residential tenancy agreement as known to the Secretary.
(3)  A notice under this section may be addressed to one or more parties to the residential tenancy agreement.
(4)  The notice must also be given to the Secretary of the Department of Family and Community Services if the whole or part of the rental bond was paid by or on behalf of that Department.
(5)  The notice must state that the Secretary will pay the claim unless notified in writing by a party within 14 days that the claim is the subject of proceedings before the Tribunal or a court.
165   Notice to tenants of claims against tenants
(1)  A landlord, landlord’s agent or a person on behalf of a landlord who makes a claim for payment of a rental bond without the consent of the tenant must give the tenant:
(a)  a copy of a completed condition report about the residential premises at the end of the residential tenancy agreement, and
(b)  copies of any estimates, quotes, invoices or receipts for work for which the rental bond is claimed.
(2)  The documents must be provided within 7 days of the claim being made.
(3)  The documents must also be provided to the Secretary of the Department of Family and Community Services if the whole or part of the rental bond was paid by or on behalf of that Department.
(4)  A person who, without reasonable excuse, contravenes this section is guilty of an offence.
Maximum penalty: 20 penalty units.
166   Matters that may be subject of rental bond claim
(1)  A landlord is entitled to claim from the rental bond for the residential tenancy agreement any of the following:
(a)  the reasonable cost of repairs to, or the restoration of, the residential premises or goods leased with the premises, as a result of damage (other than fair wear and tear) caused by the tenant, an occupant or an invitee of the tenant,
(b)  any rent or other charges owing and payable under the residential tenancy agreement or this Act,
(c)  the reasonable cost of cleaning any part of the premises not left reasonably clean by the tenant, having regard to the condition of the premises at the commencement of the tenancy,
(d)  the reasonable cost of replacing locks or other security devices altered, removed or added by the tenant without the consent of the landlord,
(e)  any other amounts prescribed by the regulations.
(2)  This section does not limit the matters for which the landlord may claim from the rental bond for a residential tenancy agreement.
167   Payment where no dispute
The Secretary must pay the amount of a claim for rental bond if:
(a)  the claim is made jointly by or on behalf of the landlord and tenant, or
(b)  the claim is made by or on behalf of the landlord and directs the payment of an amount to the tenant, or
(c)  the claim is made by or on behalf of a tenant and directs the payment of an amount to the landlord, or
(d)  the claim is made by or on behalf of the landlord or the tenant for payment to the party by or on whose behalf the claim is made and the Tribunal or another party to the agreement fails to notify the Secretary of a dispute within the claim notice period.
168   Disputed rental bond claims
(1)  This section applies if the Secretary is notified in writing within the claim notice period or before payment of a claim for a rental bond that a claim for the payment of an amount of rental bond is the subject of proceedings before the Tribunal or a court.
(2)  The Secretary may pay the claim only in the following circumstances:
(a)  if the party who disputes the claim gives the Secretary written notice of the party’s consent to payment of the claim,
(b)  in accordance with an order of the Tribunal or court,
(c)  if any applicable order of the Tribunal or court has been satisfied,
(d)  if the proceedings are withdrawn.
(3)  If any applicable order of the Tribunal or a court has been wholly or partly satisfied before a claim for an amount of rental bond is paid, any amount of rental bond no longer required to satisfy the order must be paid to the party who would, but for the claim, be entitled to the amount.
(4)  The Secretary must not pay an amount of a claim until proceedings affecting the claim are finally determined if, before any amount is paid, the Secretary is given written notice of an appeal against a relevant decision of the Tribunal or a court.
(5)  A payment by the Secretary of an amount under this section in accordance with an order of the Tribunal or a court is for all purposes taken to be a payment by the person subject to the order.
169   Appeals may be made despite payment
A person may appeal against a decision of the Tribunal or a court affecting the payment of an amount of rental bond even though the Secretary has paid an amount of rental bond under this Division.
170   Payment to other persons
The Secretary may, if directed to do so by a person to whom a rental bond is payable, pay the whole or part of an amount of the rental bond to another person.
171   Payment to Secretary of the Department of Family and Community Services
Any amount of rental bond payable to a tenant under this Division is payable instead to the Secretary of the Department of Family and Community Services, to the extent that the amount of the bond was paid on behalf of the tenant by that Secretary or the New South Wales Land and Housing Corporation.
172   Secretary not required to pay excess amount
The Secretary is not required to pay an amount of rental bond under this Division to the extent that the amount claimed exceeds the amount of rental bond held by the Secretary for the particular residential tenancy agreement.
173   Payment of interest by Secretary on rental bond amounts
(1)  The Secretary must pay interest on an amount of rental bond paid if the regulations provide for the payment of interest.
(2)  The regulations may prescribe the rate and manner of payment of any such interest.
(3)  No other interest is payable on an amount of rental bond.
174   Repayment of bond to former co-tenant
(1)  This section applies if the tenancy of a co-tenant is terminated and the residential tenancy agreement continues in force in relation to one or more other co-tenants.
(2)  The remaining co-tenant or co-tenants must, within 14 days of a request by a former co-tenant, pay to the former co-tenant an amount equal to the rental bond (if any) paid by the former co-tenant for the residential tenancy agreement.
(3)  The remaining co-tenant or co-tenants may deduct from that amount any amount owed to them by the former co-tenant for rent or other reasonable costs associated with the residential premises.
(4)  If a final apprehended violence order is in force prohibiting a former co-tenant from having access to the residential premises, the remaining tenant or tenants are not required to pay the amount referred to in subsection (2) within the period required by that subsection.
(5)  A former co-tenant who is paid an amount in accordance with this section is not entitled to payment of any other amount of rental bond for the residential tenancy agreement.
(6)  This section does not apply if the liabilities of the former co-tenant under the residential tenancy agreement exceed the amount of rental bond paid by the former co-tenant.
175   Powers of Tribunal
(1)  The Tribunal may, on application by a landlord or tenant or any other person (including a former co-tenant) who has an interest in the payment of a rental bond, make an order as to the payment of the amount of the rental bond.
(2)  The Tribunal may make an order whether or not the amount of a rental bond has been paid by the Secretary.
(3)  An application for an order must be made within the period prescribed by the regulations.
176   Proof of deposit of bond
A certificate purporting to be a certificate given by the Secretary stating that no rental bond has been deposited with, or that no rental bond was or is held on deposit by, the Secretary in relation to a tenancy of specified residential premises during a specified period is admissible in any proceedings and is evidence of the matters stated, in the absence of evidence to the contrary.
Division 4 Rental Bond Board
177   Constitution of Rental Bond Board
(1)  There is constituted by this Act a corporation with the name Rental Bond Board.
(2)  The Board is subject to the direction and control of the Minister in the exercise of its functions.
(3)  The Board has the functions conferred or imposed on it by or under this or any other Act.
(4)  The Board is, for the purposes of any Act, a NSW Government agency.
(5)  Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Board to exercise its functions.
Note.
 Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Board makes use of) may be referred to as officers or employees, or members of staff, of the Board. Section 47A of the Constitution Act 1902 precludes the Board from employing staff.
178   Members of Rental Bond Board
(1)  The Board is to consist of the following 5 members:
(a)  the Secretary of the Department of Finance, Services and Innovation,
(b)  the Secretary of the Department of Family and Community Services,
(c)  the Secretary of the Treasury,
(d)  2 members appointed by the Minister who have, in the opinion of the Minister, experience in real estate or tenancy matters.
(2)  The Secretary of the Department of Finance, Services and Innovation is to be the Chairperson of the Board.
(3)  Schedule 1 contains provisions about the membership and procedures of the Board.
179   Delegation
(1)  The Board may delegate to an authorised person any of its functions, other than this power of delegation.
(2)  A delegate may sub-delegate to an authorised person any function delegated by the Board if the delegate is authorised to do so by the Board.
(3)  In this section:
authorised person means:
(a)  a person employed in the Department, or
(b)  a person, or a person of a class, prescribed by the regulations.
Division 5 Functions of Board relating to residential accommodation
180   Joint ventures for residential accommodation
(1)  The Board may, with the approval of the Minister and the concurrence of the Treasurer, enter into a joint venture (including a partnership and any other association) with other persons or bodies, whether or not incorporated.
(2)  The joint venture is to be for the purpose of the development (including the acquisition, management, leasing and disposal) of land for or in connection with the provision of residential accommodation.
181   Joint venture powers
(1)  The Board may, for the purposes of such a joint venture, with the approval of the Minister:
(a)  form, or participate in the formation of, a private corporation, and
(b)  purchase, hold, dispose of or deal with shares in, or subscribe to the issue of shares by, any private corporation, and
(c)  make advances of money or provide other financial accommodation to any person or body (whether or not incorporated) participating in the joint venture or acting for or on behalf of the joint venture, and
(d)  do any other things that are necessary or convenient for, or incidental to, the joint venture.
(2)  A corporation in which the Board has a controlling interest because of its shareholding in the capital of the company is not and does not represent the Crown.
182   Investment in residential accommodation unit trusts
(1)  The Board may invest money in units in a residential accommodation unit trust and may, with the approval of the Minister, underwrite the issue of units in such a trust.
(2)  A residential accommodation unit trust is a unit trust providing for participation by unit holders in income and profits arising from the development of property that wholly or partly comprises residential accommodation.
(3)  Development of property includes the acquisition, holding, management, leasing and disposal of property.
183   Guarantees etc by Board
(1)  The Board may, with the approval of the Minister:
(a)  guarantee the due performance of an obligation incurred by a person or body in connection with a scheme for the provision of residential accommodation, and
(b)  make good a loss incurred by a person or body in connection with a scheme for the provision of residential accommodation, and
(c)  indemnify a person or body against a liability incurred under a guarantee (provided by the person or body) of the kind which the Board could provide under this section, and
(d)  enter into and give effect to an agreement to do anything which the Board is authorised to do under this section.
(2)  The following are examples of schemes for the provision of residential accommodation:
(a)  a joint venture that the Board enters into under this Division,
(b)  a residential accommodation unit trust in which the Board is empowered to invest under this Division.
(3)  A permissible method of making good a loss involving such a residential accommodation unit trust is investment in units in the trust.
184   Finance
(1)  Amounts may be paid from the Rental Bond Interest Account to meet expenditure by the Board under this Division.
(2)  Amounts may also be paid from the Rental Bond Account to meet so much of that expenditure as is attributable to the provision of financial accommodation (including advances).
(3)  Interest and other income accruing to the Board in connection with any investment made, financial accommodation provided or joint venture entered into under this Division must be paid into the Rental Bond Interest Account.
Division 6 Financial matters
185   Rental Bond Account
(1)  There is to be established a Rental Bond Account into which is to be paid:
(a)  all rental bonds paid to the Secretary, and
(b)  any other money payable to the Account under this or any other Act.
(2)  There is to be paid from the Rental Bond Account:
(a)  the amount of any rental bonds payable under this Act, and
(b)  money for the purpose of investment of the Account, and
(c)  any other money that is payable from the Account under this or any other Act.
186   Rental Bond Interest Account
(1)  There is to be established a Rental Bond Interest Account into which is to be paid:
(a)  all income from any investment of the Rental Bond Account, and
(b)  the income from any investment of the Rental Bond Interest Account, and
(c)  any other money payable to the Rental Bond Interest Account under this or any other Act.
(2)  There is to be paid from the Rental Bond Interest Account:
(a)  money for the purpose of investment of the Rental Bond Interest Account, and
(b)  the costs of, or expenses incurred in, administering this Act, and
(c)  half the costs of, or expenses incurred in, administering residential and social housing matters in the Consumer and Commercial Division of the Tribunal, and
(d)  grants or loans for the purposes set out in subsection (3), and
(e)  any other money that is payable from the Rental Bond Interest Account or the Rental Bond Account under this or any other Act.
Note.
 Amounts may be paid out of the Rental Bond Interest Account for the purposes of expenditure under Division 5 of this Part (related to the provision of residential accommodation).
(3)  The Secretary may make a grant or loan, on the recommendation of the Board and with the approval of the Minister, from the Rental Bond Interest Account for the following purposes:
(a)  establishing and administering tenancy advisory services,
(b)  schemes for the provision of residential accommodation,
(c)  education about tenancy laws and the rights and obligations of landlords and tenants,
(d)  research into matters relevant to the relationship of landlord and tenant,
(e)  other activities for the benefit of landlords and tenants.
(4)  In this section:
residential and social housing matters in the Consumer and Commercial Division of the Tribunal means matters relating to the exercise of the functions of the Tribunal in that Division under the Residential Parks Act 1998, Residential Tenancies Act 2010 or Retirement Villages Act 1999.