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Contents (2012 - 74)
Boarding Houses Act 2012 No 74
Current version for 7 July 2017 to date (accessed 18 November 2017 at 13:59)
Part 3
Part 3 Occupancy agreements and principles for registrable boarding houses
Division 1 Introductory
27   Interpretation
(1)  In this Part and Schedule 1:
authorised representative, in relation to a resident or former resident of a registrable boarding house, means a person who is an authorised representative (within the meaning of the Health Records and Information Privacy Act 2002) of the resident or former resident.
occupancy agreement, in relation to a registrable boarding house, means a written or unwritten agreement:
(a)  that is between a proprietor of the boarding house (or a person acting on behalf of the proprietor) and a resident of the house (or a person acting as an authorised representative of the resident), and
(b)  under which the resident is granted the right to occupy, for a fee or reward, one or more rooms in the boarding house as a resident of the house,
but does not include a rental agreement between a proprietor and resident of a registrable boarding house (or any persons acting on their behalf).
occupancy fee means an amount payable by or for a resident of a registrable boarding house for the right to occupy one or more rooms in the boarding house as a resident of the house during the term of an occupancy agreement.
occupancy principles—see section 30.
rental agreement means:
(a)  a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010, or
(b)  a lease to which the Landlord and Tenant (Amendment) Act 1948 applies.
(2)  Any matter approved (or any revocation or amendment of an approved matter) by the Commissioner for the purposes of a provision of this Part that authorises the Commissioner to approve the matter does not have effect until it is published on the website of the Department of Finance, Services and Innovation.
(3)  The provisions of this Part are in addition to, and do not derogate from, the provisions of Part 4 in their application to authorised boarding houses within the meaning of that Part.
Note.
 Part 4 provides for the authorisation (including licensing) of assisted boarding houses. There are additional requirements (including by way of licence conditions) concerning service and accommodation standards for residents of such boarding houses that must be complied with.
(4)  Nothing in this Part prevents a contravention of an occupancy principle, to the extent that is included (or taken to be included) in an occupancy agreement, from being enforced as a breach of that agreement.
Division 2 Occupancy agreements
28   Proprietor’s obligation to ensure written occupancy agreement
(1)  The proprietor under an occupancy agreement must ensure that the agreement is in writing:
(a)  in relation to agreements entered into after the commencement of this section—at the commencement of the agreement, and
(b)  in relation to agreements entered into before the commencement of this section—within the period of 3 months after the commencement of this section.
(2)  Nothing in this section:
(a)  imposes any obligation on a resident of a registrable boarding house to prepare a written occupancy agreement, or
(b)  affects the enforceability of an occupancy agreement that is not in writing or is only partly in writing.
Note.
 The Civil and Administrative Tribunal may, however, order a proprietor to enter into a written occupancy agreement on the application of a resident. See section 33.
29   Standard forms of occupancy agreement
(1)  The Commissioner may, by order published in the Gazette, approve a standard form of occupancy agreement.
(2)  Without limiting subsection (1), an order under that subsection may provide for the following:
(a)  the terms of the agreement,
(b)  more than one standard form of occupancy agreement for use for different classes of registrable boarding houses, agreements or parties,
(c)  the addition of clauses to, or the omission or variation of terms contained in, a standard form of occupancy agreement in specified circumstances,
(d)  the application of terms of standard forms of occupancy agreement to agreements entered into before the order approving those standard forms took effect.
(3)  In approving a standard form of occupancy agreement, the Commissioner is to be satisfied that the form of agreement gives effect to the occupancy principles.
(4)  Unless the regulations provide otherwise, the use of a standard form of occupancy agreement is not mandatory and, accordingly, a failure to use the standard form of agreement does not of itself affect the validity or enforceability of an occupancy agreement.
(5)  An occupancy agreement that is in or to the effect of the applicable standard form of occupancy agreement for the class of registrable boarding house, parties or agreement concerned is taken to give effect to the occupancy principles in the manner required by or under this Part.
(6)  The regulations may make provision for or with respect to requiring the use of a standard form of occupancy agreement and the enforceability of agreements that are not in the standard form.
Division 3 Occupancy principles
30   Occupancy principles
(1)  The occupancy principles in relation to registrable boarding houses are the principles set out in Schedule 1.
(2)  The occupancy principles apply for the purposes of this Division only in relation to residents of registrable boarding houses under occupancy agreements.
Note.
 The definition of occupancy agreement in section 27 (1) excludes any rental agreement between a proprietor and resident of a registrable boarding house (or any persons acting on their behalf). Accordingly, the occupancy principles do not apply in relation to a person who is entitled to reside in a registrable boarding house under a rental agreement.
(3)  The regulations may make provision for or with respect to:
(a)  what constitutes, or what does not constitute, compliance with the occupancy principles for the purposes of this Part, and
(b)  the issuing of guidelines for that purpose.
31   Application of occupancy principles
(1)  The occupancy principles apply as follows in relation to a registrable boarding house:
(a)  a resident must be provided with accommodation in compliance with the occupancy principles,
(b)  a resident must be given the notices, receipts or other information required by the occupancy principles,
(c)  any notice, receipt or other information to be given to a resident under the occupancy principles must also be given to the authorised representative of the resident if the resident is a person with additional needs who has an authorised representative,
(d)  the proprietor must exercise the proprietor’s rights or powers under the occupancy agreement (including in relation to the collection, payment, retention and repayment of money) subject to any requirements of the occupancy principles.
(2)  If the application of a provision of the occupancy principles is altered by reason of regulations made for the purposes of the provision, the provision as altered has effect for the purposes of this section only on and from the time that the regulations commence.
(3)  This section is taken to be a term of every occupancy agreement (whether entered into before or after the commencement of this section), but only on and from the day that is 3 months after the commencement of this section.
(4)  Any term of an occupancy agreement or another agreement is void to the extent to which it is inconsistent with the provisions of this section.
Division 4 Enforcement
32   Applications to Civil and Administrative Tribunal for dispute resolution
(1)  A relevant party may apply to the Civil and Administrative Tribunal for the resolution of an occupancy principles dispute.
(2)  A relevant party is:
(a)  a resident or former resident of a registrable boarding house (or an authorised representative of the resident or former resident), or
(b)  a proprietor or former proprietor of a registrable boarding house.
(3)  An occupancy principles dispute is a dispute between relevant parties about the application of the occupancy principles in relation to a resident or former resident of a registrable boarding house.
(4)  The Tribunal may, on application under this section, make one or more of the following orders:
(a)  an order that restrains any action in contravention of the occupancy principles,
(b)  an order that requires an action in performance of the occupancy principles,
(c)  an order for the payment of an amount of money (including an order for the refund or repayment of some or all of an amount paid as an occupancy fee or security deposit),
(d)  an order as to compensation,
(e)  an order that a party to the occupancy agreement perform such work or take such other steps as the order specifies to remedy a contravention of the occupancy principles,
(f)  an order that requires payment of part or all of an occupancy fee to the Tribunal until the whole or part of the occupancy agreement has been performed or any application for compensation has been determined,
(g)  an order that requires an occupancy fee paid to the Tribunal to be paid towards the cost of remedying a contravention of the occupancy principles or towards the amount of any compensation,
(h)  an order directing a proprietor, proprietor’s agent or resident to comply with a requirement of this Part,
(i)  an order directing a proprietor or proprietor’s agent to give a former resident or person authorised by a former resident access to a registrable boarding house for the purpose of recovering goods of the former resident or fixtures that the former resident is entitled to remove.
(5)  The Tribunal must not make an order for:
(a)  the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or
(b)  the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section.
(6)  A reference in this section to the occupancy principles is a reference to those principles as they apply under this Part in relation to residents of registrable boarding houses under occupancy agreements.
33   Order for written occupancy agreement
(1)  A resident of a registrable boarding house may apply to the Civil and Administrative Tribunal for an order that the proprietor of the boarding house prepare and enter into a written occupancy agreement with the resident.
(2)  The order may:
(a)  specify the terms of the agreement, and
(b)  specify a commencement date for the agreement that occurred before the order was made.
(3)  The Tribunal may make an order under this section only if it is satisfied that the proprietor and resident are subject to an existing occupancy agreement that is not in writing or is only partly in writing.