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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to provide for measures to address housing that is unsafe or
unsuitable for human habitation; to control the rent of unsafe or unsuitable
housing; to amend the
Residential
Parks Act 2007
and the
Residential
Tenancies Act 1995
; to repeal the
Housing
Improvement Act 1940
; and for other purposes.
Contents
5Prescribed minimum housing
standards
Division 2—Authorised
officers
9Appointment of
authorised officers
11Powers of authorised
officers
Part 3—Orders,
notices and other action to deal with unsafe or unsuitable housing
conditions
Division 1—Housing
assessment orders, housing improvement orders and housing demolition
orders
15Registration of housing
assessment order, housing improvement order or housing demolition
order
17Recovery of costs and
expenses incurred by Minister
18Action, and recovery of
costs and expenses, by registered mortgagee or encumbrancee or by
tenant
19Owner of residential premises may seek
reimbursement of costs and expenses from other owners
20Interaction of this Division with Real
Property Act 1886
22Power of Tribunal to make
order for ejectment or compensation
23Enforcement of
ejectment order
Division 3—Rent
control notices
25Offence to charge more than maximum rent under
rent control notice
Division 4—Special provisions
relating to prescribed residential tenancy agreements
27Landlord must keep and provide record of rent
if rent control notice applies
28Termination of prescribed residential tenancy
agreement by tenant
29Termination or
variation of prescribed residential tenancy agreement by landlord
Division 5—Obligation to publicise
orders and notices
30Orders and notices under this Part to be
displayed on premises
Part 5—South Australian Civil and
Administrative Tribunal
37General powers of
Tribunal to resolve housing improvement tenancy disputes
39Special powers to make orders
40Application to vary or set aside
order
42Time for application for review or instituting
appeal
43Representation in
proceedings before Tribunal
44Remuneration of
representative
48Offences by bodies corporate
49Tribunal may exempt agreement or premises from
provision of Act
51False or misleading information
53Commencement of proceedings for summary
offences
54Orders in respect of
contraventions
55Recovery from related bodies
corporate
Schedule 1—Related amendments,
repeal and transitional provisions
Part 2—Amendment of Residential
Parks Act 2007
2Amendment of section
3—Interpretation
3Amendment of section 21—Variation of
rent
4Amendment of section 35—Park
owner's obligation to repair
5Amendment of section 40—Residential
park tenancy agreement—right of entry
6Amendment of section 52—Termination of
residential park agreement
7Amendment of section 55—Limitation of
right to terminate
8Amendment of section 60—Termination
where periodic tenancy and no specified ground of termination
9Amendment of section 85—Repossession of
rented property
Part 3—Amendment of Residential
Tenancies Act 1995
10Amendment of section
3—Interpretation
11Amendment of section 55—Variation of
rent
12Amendment of section
68—Landlord's obligation to repair
13Amendment of section 70—Alteration of
premises
14Amendment of section 72—Right of
entry
15Amendment of section 79—Termination of
residential tenancy
16Amendment of section 83—Termination by
landlord without specifying a ground of termination
17Amendment of section 84—Limitation of
right to terminate
18Amendment of section 95—Repossession of
premises
19Amendment of section 105I—Rent
increases
20Amendment of section 105P—Obligation to
repair and keep room and premises clean
21Amendment of section 105U—Termination
of rooming house agreement
Part 4—Repeal of Housing
Improvement Act 1940
Part 5—Transitional
provisions
24Declarations by councils that houses unfit
for habitation
25Notice of intention to
declare house sub-standard
26Notice declaring house to
be sub-standard
27Notice fixing maximum rental
28Notice fixing maximum rental for partial
letting or subletting
29Notice fixing maximum rental for
furniture
30Continuation of action in progress
immediately before commencement of this Part
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Housing Improvement
Act 2015.
This Act will come into operation on a day to be fixed by
proclamation.
The objects of this Act are—
(a) to ensure that housing meets the prescribed minimum housing standards;
and
(b) to regulate unsafe or unsuitable housing and the rent payable in
respect of such housing; and
(c) to raise community awareness of the prescribed minimum housing
standards.
(1) In this Act, unless the contrary intention appears—
authorised officer means a person appointed to be an
authorised officer under
Part 2
Division 2
;
council has the same meaning as in the
Local
Government Act 1999
;
decision, of the Tribunal, has the same meaning as in the
South
Australian Civil and Administrative Tribunal Act 2013
;
Deputy President means a Deputy President of the Tribunal
appointed under the
South
Australian Civil and Administrative Tribunal Act 2013
;
Deputy Registrar means a Deputy Registrar of the Tribunal
appointed under the
South
Australian Civil and Administrative Tribunal Act 2013
;
director of a body corporate includes a person occupying or
acting in the position of director of the governing body of the body corporate
and includes any person in accordance with whose directions or instructions the
directors of the governing body are accustomed to act;
Fund means the Residential Tenancies Fund under the
Residential
Tenancies Act 1995
;
housing assessment order—see
section 12
;
housing demolition order—see
section 14
;
housing improvement order—see
section 13
;
housing improvement tenancy dispute means—
(a) a dispute between parties or former parties to a residential tenancy
agreement about matters arising under this Act; or
(b) any matter that may be the subject of an application under this Act to
the Tribunal;
land includes any legal estate or interest in, or right in
respect of, land;
landlord means—
(a) the person who grants the right of occupancy under a residential
tenancy agreement; or
(b) a successor in title to the tenanted premises whose title is subject
to the tenant's interest,
and includes a prospective landlord and a former landlord;
lawyer means a person entitled to practise the profession of
the law under the
Legal
Practitioners Act 1981
;
notice to vacate—see
section 21
;
owner of land means—
(a) if the land is unalienated from the Crown—the Crown;
or
(b) if the land is alienated from the Crown by grant in fee
simple—the owner (at law or in equity) of the estate in fee simple;
or
(c) if the land is held from the Crown by lease or licence—the
lessee or licensee; or
(d) if the land is held by a Minister or any other agency or
instrumentality of the Crown in prescribed circumstances—the Minister or
agency or instrumentality of the Crown; or
(e) if the land is under the care, control and management of a council in
prescribed circumstances—the council,
and includes any other person of a prescribed class included within the
ambit of this definition by the regulations;
preliminary rent control notice—see
section 24(2)
;
premises includes a part of premises;
prescribed minimum housing standards—see
section 5
;
prescribed residential tenancy agreement means a residential
tenancy agreement other than—
(a) a residential park agreement within the meaning of the
Residential
Parks Act 2007
; or
(b) a residential tenancy agreement within the meaning of the
Residential
Tenancies Act 1995
to which that Act applies; or
(c) a rooming house agreement within the meaning of the
Residential
Tenancies Act 1995
;
President means the President of the Tribunal appointed under
the
South
Australian Civil and Administrative Tribunal Act 2013
;
Registrar means the Registrar of the Tribunal appointed under
the
South
Australian Civil and Administrative Tribunal Act 2013
;
related body corporate has the same meaning as in the
Corporations Act 2001 of the Commonwealth;
rent means an amount payable under a residential tenancy
agreement for the right to occupy premises for a period of the
tenancy;
rent control notice—see
section 24(1)
;
residential premises means premises used, intended to be
used, or reasonably capable of being used, as a place of residence and includes
any yard, garden, outbuildings, appurtenances or area belonging to, or usually
used in connection with, such premises, but does not include premises of a kind
excluded from the ambit of this definition by the regulations;
residential tenancy agreement means an agreement under which
a person grants another person, for valuable consideration, a right (which may,
but need not, be an exclusive right) to occupy residential premises, but does
not include a residential tenancy agreement of a kind excluded from the ambit of
this definition by the regulations;
tenant means—
(a) the person who is granted a right of occupancy under a residential
tenancy agreement; or
(b) the person to whom the right passes by assignment or operation of
law,
and includes a prospective tenant and a former tenant;
Tribunal means the South Australian Civil and Administrative
Tribunal established under the
South
Australian Civil and Administrative Tribunal Act 2013
.
(2) For the
purposes of this Act, a person is an associate of another
if—
(a) they are partners; or
(b) 1 is a spouse, domestic partner, parent or child of another;
or
(c) they are both
trustees or beneficiaries of the same trust, or 1 is a trustee and the
other is a beneficiary of the same trust; or
(d) 1 is a body corporate or other entity (whether inside or outside
Australia) and the other is a director or member of the governing body of the
body corporate or other entity; or
(e) 1 is a body corporate or other entity (whether inside or outside
Australia) and the other is a person who has a legal or equitable interest in
5% or more of the share capital of the body corporate or other entity;
or
(f) they are related bodies corporate within the meaning of the
Corporations Act 2001 of the Commonwealth; or
(g) a relationship of a prescribed kind exists between them; or
(h) a chain of relationships can be traced between them under any
1 or more of the above paragraphs.
(3) For the purposes of
subsection (2)
, a beneficiary of a trust includes an object of a
discretionary trust.
5—Prescribed
minimum housing standards
(1) The Governor may
make regulations establishing the standards that must be met for residential
premises to be considered safe and suitable for human habitation (the
prescribed minimum housing standards).
(2) Without limiting the generality of
subsection (1)
, regulations made under this section may make provision for or in relation
to any of the following:
(a) the construction, condition, utility, amenity and situation of
premises and any fixtures, fittings or facilities provided with
premises;
(b) the cleanliness and sanitation of premises and any fixtures, fittings
or facilities provided with premises;
(c) the alteration, relocation, repair and maintenance of premises and any
fixtures, fittings or facilities provided with premises;
(d) the dimensions of rooms of premises;
(e) access to and within premises, and egress from premises;
(f) toilet, bathroom, laundry and kitchen areas and facilities in
premises;
(g) drainage, ventilation and lighting of premises;
(h) the supply of water, gas and electricity to premises;
(i) the protection of premises from flooding, damp, dust and other
external pollutants and infestation by vermin;
(j) the fire safety of premises.
(1) Subject to this section, this Act is in addition to, and does not
limit or derogate from the provisions of any other Act.
(2) If residential
premises consist of a site, or a dwelling installed or located on a site, to
which a residential park agreement within the meaning of the
Residential
Parks Act 2007
applies, this Act applies as if—
(a) a reference to
residential premises were a reference to the site or dwelling; and
(b) a reference to a residential tenancy agreement were a reference to the
residential park agreement; and
(c) a reference to a landlord were a reference to the person (whether or
not the park owner within the meaning of the
Residential
Parks Act 2007
) who grants another person, for valuable consideration, a right of
occupancy of the site or dwelling for residential purposes; and
(d) a reference to a tenant were a reference to the resident or any other
person who is granted, for valuable consideration, a right of occupancy of the
site or dwelling for residential purposes.
(3) If residential
premises consist of premises to which a rooming house agreement within the
meaning of the
Residential
Tenancies Act 1995
applies, this Act applies as if—
(a) a reference to a residential tenancy agreement were a reference to the
rooming house agreement; and
(b) a reference to a landlord were a reference to the rooming house
proprietor; and
(c) a reference to a tenant were a reference to the rooming house
resident.
(1) The Minister's functions in connection with the administration of this
Act include the following (to be performed to such extent as the Minister
considers appropriate):
(a) to further the objects of this Act;
(b) to promote safe and suitable standards of housing within the State by
ensuring that adequate measures are taken to give effect to the provisions of
this Act and to ensure compliance with this Act;
(c) to develop or adopt codes of practice or guidelines that are relevant
to—
(i) the scope of the general duty under
Part 4
; or
(ii) setting standards in connection with any activity, material,
substance or equipment associated with safe or suitable standards of housing;
or
(iii) providing for other matters relevant to the operation or
administration of this Act, for matters that may be subject to regulations under
this Act, or for such other matters as the Minister thinks fit;
(d) to be a primary source of advice to the Government about preserving,
protecting and promoting safe and suitable standards of housing;
(e) any other functions assigned to the Minister by this Act.
(2) In addition, the Minister has the power to do anything necessary,
expedient or incidental to—
(a) performing the functions of the Minister under this Act; or
(b) administering this Act; or
(c) furthering the objects of this Act.
(1) The Minister may delegate a function or power conferred on the
Minister under this Act—
(a) to a specified person or body; or
(b) to a person occupying or acting in a specified office or
position.
(2) A delegation—
(a) may be made subject to conditions or limitations specified in the
instrument of delegation; and
(b) if the instrument of delegation so provides, may be further delegated
by the delegate; and
(c) is revocable at will and does not prevent the delegator from acting
personally in a matter.
Division 2—Authorised
officers
9—Appointment
of authorised officers
(1) The Minister may appoint a suitably qualified person to be an
authorised officer for the purposes of this Act.
(2) An appointment
under this section may be made subject to such conditions or limitations as the
Minister thinks fit.
(3) An authorised officer is subject to direction by the
Minister.
(4) The Minister may vary or revoke an appointment at any time.
(1) An authorised officer must be issued with an identity card in a form
approved by the Minister—
(a) containing the person's name and a photograph of the person;
and
(b) stating that the person is an authorised officer for the purposes of
this Act.
(2) The identity card must be issued as soon as is reasonably practicable
after the appointment is made.
(3) An authorised officer must, at the request of a person in relation to
whom the officer intends to exercise any powers under this Act, produce for the
inspection of the person his or her identity card.
(4) An authorised officer appointed under this Act must, on ceasing to be
an authorised officer for any reason, surrender his or her identity card to the
Minister.
Maximum penalty: $250.
11—Powers
of authorised officers
(1) An authorised
officer may, for any reasonable purpose connected with the administration or
enforcement of this Act—
(a) at any reasonable time, enter or inspect any residential premises;
and
(b) during the course of the inspection—
(i) ask questions of any person found in the premises; and
(ii) inspect any article or substance found in the premises; and
(iii) take and remove samples of any substance or other thing found in the
premises; and
(iv) require any person to produce any plans, specifications, books,
papers or documents; and
(v) examine, copy and take extracts from any plans, specifications, books,
papers or documents; and
(vi) take photographs, films or video recordings; and
(vii) take measurements, make notes and carry out tests; and
(viii) remove any article that may constitute evidence of the commission
of an offence against this Act; and
(c) require any person to answer any question that may be relevant to the
administration or enforcement of this Act.
(2) In the exercise of powers under this Act, an authorised officer may be
accompanied by such assistants as may be necessary or desirable in the
circumstances.
(3) An authorised
officer may use reasonable force to enter any residential
premises—
(a) on the
authority of a warrant issued by a magistrate; or
(b) if the officer believes, on reasonable grounds, that the circumstances
require immediate action to be taken.
(4) A magistrate must not issue a warrant under
subsection (3)
unless satisfied—
(a) that there are reasonable grounds to suspect that an offence against
this Act has been, is being, or is about to be, committed; or
(b) that the warrant is reasonably required in the
circumstances.
(5) If an authorised officer is inspecting residential premises under this
section, the person in charge of the premises must provide such assistance as
the authorised officer reasonably requires to facilitate the
inspection.
(6) A person who—
(a) hinders or obstructs an authorised officer, or a person assisting an
authorised officer, in the exercise of a power under this section; or
(b) having been asked a question under this section, does not answer the
question to the best of his or her knowledge, information and belief;
or
(c) being the person in charge of premises subject to an inspection and
having been required to provide reasonable assistance to facilitate the
inspection, refuses or fails to provide such assistance,
is guilty of an offence.
Maximum penalty: $10 000.
(7) It is not an excuse for a person to refuse or fail to furnish
information under this section on the ground that to do so might tend to
incriminate the person or make the person liable to a penalty.
(8) However, if compliance with a requirement to furnish information might
tend to incriminate a person or make a person liable to a penalty,
then—
(a) in the case of a person who is required to produce, or provide a copy
of, a document or information—the fact of production, or provision of, the
document or the information (as distinct from the contents of the documents or
the information); or
(b) in any other case—any answer given in compliance with the
requirement,
is not admissible in evidence against the person for an offence or for the
imposition of a penalty (other than proceedings in respect of the provision of
information that is false or misleading).
Part 3—Orders,
notices and other action to deal with unsafe or unsuitable housing
conditions
Division 1—Housing
assessment orders, housing improvement orders and housing demolition
orders
(1) The Minister
may issue a housing assessment order to the owner of residential
premises if the Minister has reason to believe that the premises are or may be
unsafe or unsuitable for human habitation.
(2) A housing
assessment order—
(a) must be in the form of a written order served on the person to whom it
is issued; and
(b) must specify the premises to which the order applies; and
(c) must include a requirement for assessments to be carried out of or in
relation to the nature and extent of the defects in respect of the premises;
and
(d) must include a requirement for a written report of the assessments to
be submitted to the Minister in a specified form within a specified period;
and
(e) may include a requirement that a person with specified qualifications
be appointed or engaged—
(i) to carry out the assessments; or
(ii) to prepare the written report of the assessments; and
(f) may include an authorisation for the assessments or some of the
assessments to be undertaken on behalf of the Minister by an authorised officer
or other person authorised by the Minister; and
(g) must state that the person may, within 28 days, apply to the
Tribunal for a review of the order.
(3) The Minister may, by written order served on a person to whom a
housing assessment order has been issued, vary or revoke the order.
(4) A person to whom a housing assessment order has been issued must
comply with the order.
Maximum penalty: $20 000.
(1) The Minister
may issue a housing improvement order to the owner of residential
premises if the Minister has reason to believe that the premises are unsafe or
unsuitable for human habitation and that works are required to remediate defects
in respect of the premises.
(2) A housing
improvement order—
(a) must be in the form of a written order served on the person to whom it
is issued; and
(b) must specify the premises to which the order applies; and
(c) must include particulars of the defects identified in respect of the
premises; and
(d) may include requirements for—
(i) preparing, in accordance with specified requirements and to the
satisfaction of the Minister, a plan of works for the premises; and
(ii) complying with such a plan to the satisfaction of the Minister;
and
(e) may include
requirements for the person to whom it is issued to carry out specified works
and may include a requirement that the works be completed within a specified
period; and
(f) may include an authorisation for the works or some of the works to be
undertaken on behalf of the Minister by an authorised officer or other person
authorised by the Minister; and
(g) may include a requirement for the person to whom it is issued to
ensure that the premises, if occupied, are vacated and, in any case, remain
unoccupied for a specified period or until the completion, to the satisfaction
of the Minister, of specified works; and
(h) must state that the
person may, within 28 days, apply to the Tribunal for a review of the
order.
(3) An authorised officer may, if of the opinion that urgent action is
required to address unsafe or unsuitable conditions of residential premises,
issue an emergency housing improvement order imposing requirements
of a kind that may be imposed under
subsection (2)
as reasonably required to address the conditions.
(4) An emergency housing improvement order may be issued orally, but, in
that event, the person to whom the order is issued must be advised forthwith of
the person's right to apply to the Tribunal for a review of the order.
(5) If an emergency housing improvement order is issued to a person, the
order will cease to have effect on the expiration of 3 business days from
the time of its issuing unless confirmed by a written housing improvement order
issued by the Minister and served on the person.
(6) The Minister may, by written order served on a person to whom a
housing improvement order has been issued, vary or revoke the order.
(7) A person to whom a housing improvement order has been issued must
comply with the order.
Maximum penalty: $20 000.
(1) The Minister may issue a housing demolition order to the
owner of residential premises if the Minister has reason to believe that the
premises are so unsafe or unsuitable that it would be impracticable or
unreasonable to undertake works to remediate the defects.
(2) A housing
demolition order—
(a) must be in the form of a written order served on the person to whom it
is issued; and
(b) must specify the premises to which the order applies; and
(c) must include particulars of the defects identified in respect of the
premises; and
(d) must require
the premises to be demolished within a specified period being not less than
28 days after the service of the order; and
(e) must include requirements for the person to whom it is issued to
ensure that the premises, if occupied, are vacated and, in any case, remain
unoccupied at all times prior to demolition or until the completion, to the
satisfaction of the Minister, of specified works; and
(f) may include authorisation for the demolition works or some of those
works to be undertaken on behalf of the Minister by an authorised officer or
other person authorised by the Minister; and
(g) must state that the person may, within 28 days, apply to the
Tribunal for a review of the order.
(3) The Minister may, by written order served on a person to whom a
housing demolition order has been issued, vary or revoke the order.
(4) A person to whom a housing demolition order has been issued must
comply with the order.
Maximum penalty: $20 000.
15—Registration
of housing assessment order, housing improvement order or housing demolition
order
(1) If a housing
assessment order, housing improvement order or housing demolition order has been
issued to a person in respect of residential premises, the Minister may apply to
the Registrar-General for registration of the order in relation to land owned by
the person on which the premises are located.
(2) An application under this section must be in a form approved by the
Registrar-General and must—
(a) describe the land to which it relates; and
(b) do either or both of the following as the case may require:
(i) state that the registration of the order in relation to the land will,
by virtue of
subsection (5)
, result in the order becoming binding on each owner from time to time of
the land;
(ii) state that the registration of the order in relation to the land will
operate as a charge on the land, securing payment to the Minister of costs and
expenses incurred by the Minister or by an authorised officer or other person
acting on behalf of or under the authority of the Minister in taking action in
the event of non-compliance with requirements of the order or in taking action
in pursuance of the order.
(3) An application must be accompanied by—
(a) a copy of the housing assessment order, housing improvement order or
housing demolition order; and
(b) such information or material as the Registrar-General may
require.
(4) The Registrar-General must, on application by the Minister in
accordance with this section, register the relevant order by making such entries
in any register book, memorial or other book or record in the Lands Titles
Registration Office or in the General Registry Office as the Registrar-General
thinks fit.
(5) If a housing
assessment order, housing improvement order or housing demolition order is
registered under this section in relation to land, the order is binding on each
owner from time to time of the land, and this Division applies as if the order
had been issued to each owner.
(6) If a housing
assessment order, housing improvement order or housing demolition order is
registered under this section in relation to land, the Minister must, as soon as
reasonably practicable, notify, in writing, each owner of the land, and each
registered mortgagee or encumbrancee (if any) of the land, of the
registration.
(7) The
Registrar-General must, on application by the Minister, cancel the registration
of a housing assessment order, housing improvement order or housing demolition
order in relation to land and make such endorsements to that effect in the
appropriate register book, memorial or other book or record in respect of the
land as he or she thinks fit.
(8) The Minister must make an application under
subsection (7)
—
(a) if, to the extent that may be relevant to the grounds on which the
order was registered, the requirements of the order have been satisfied;
and
(b) if the Minister takes action under this Division to carry out the
requirements of the order—on payment to the Minister of the amount
recoverable by the Minister under this Division in relation to the action so
taken.
16—Action
by Minister on non-compliance with housing assessment order, housing improvement
order or housing demolition order
(1) If the
requirements of a housing assessment order, housing improvement order or housing
demolition order are not complied with, the Minister may take any action
required by the order.
(2) Any action to be
taken by the Minister under
subsection (1)
may be taken on the Minister's behalf by an authorised officer or another
person authorised by the Minister for the purpose.
(3) If a person other than an authorised officer is authorised to take
action under
subsection (2)
, the following provisions apply:
(a) the Minister must issue the person with an instrument of
authority;
(b) the person may exercise such powers of an authorised officer as are
reasonably required for the purpose of taking action under that
subsection;
(c) the provisions of this Act apply in relation to the exercise of such
powers by the person in the same way as in relation to an authorised
officer;
(d) the person must produce the instrument of authority for the inspection
of any person in relation to whom the person intends to exercise powers of an
authorised officer.
17—Recovery
of costs and expenses incurred by Minister
(1) If action has been
taken in relation to residential premises by the Minister either on
non-compliance with the requirements of a housing assessment order, housing
improvement order or housing demolition order or in pursuance of such an order,
the Minister may recover, in accordance with this section, the reasonable costs
and expenses incurred by the Minister in taking that action as a debt from the
person to whom the order was issued.
(a) a housing assessment order, housing improvement order or housing
demolition order has been registered in relation to land under
section 15
; or
(b) the registration of a housing assessment order, housing improvement
order or housing demolition order in relation to land has been cancelled under
that section,
the Minister may recover, in accordance with this section, an amount
prescribed by regulation in respect of the registration or cancellation (as the
case may be) as a debt from the owner of the residential premises at the time of
registration or cancellation.
(3) If an amount is
recoverable from an owner by the Minister under this section, the following
provisions apply:
(a) the Minister may,
by notice in writing to the owner, fix a period, being not less than
28 days from the date of the notice, within which the amount must be paid
by the owner, and, if the amount is not paid by the owner within that period,
the owner is liable to pay interest charged at the prescribed rate per annum on
the amount unpaid;
(b) if the relevant
order is registered under
section 15
, the unpaid amount together with any interest charge payable under
paragraph (a)
is, until paid, a charge in favour of the Minister on the land owned in
relation to which the order is registered;
(c) if the premises to
which the relevant order applies are occupied under a residential tenancy
agreement, the unpaid amount together with any interest charge payable under
paragraph (a)
may be recovered in the form of rent as follows:
(i) the Minister
may recover the amount by giving notice in the prescribed form to the tenant
requiring the tenant to pay rent to the Minister, for a specified period or
until the debt has been satisfied;
(ii) if the tenant fails to pay rent to the Minister in accordance with
the requirements of the notice, the Minister may, in respect of any amount in
arrears, exercise all remedies that would otherwise be enforceable by a landlord
against a tenant for recovery of rent in arrears;
(iii) the Minister may, by further notice in writing to the tenant vary or
revoke a notice given under
subparagraph (i)
;
(iv) the Minister
must give notice in writing to the landlord of any action taken by the Minister
under this subsection.
(4) A landlord who is given notice under
subsection (3)(c)(iv)
must ensure that any rent received by or on behalf of the landlord in
respect of the premises is forwarded to the Minister within
14 days.
Maximum penalty: $5 000.
Expiation fee: $315.
(5) Any amount recovered under
subsection (3)(c)
will be set-off against the debt applying under
subsection (1)
.
(6) A charge imposed on
land by this section has priority over—
(a) any prior charge imposed on the land (whether or not registered) that
operates in favour of a person who is an associate of the owner of the land;
and
(b) any other charge on the land other than a charge registered prior to
the registration of the housing assessment order, housing improvement order or
housing demolition order in relation to the land.
(7) If any default is made in payment of an amount that is, by virtue of
this section, a charge on land in favour of the Minister, the Minister has the
same powers in respect of the land charged as are given by the
Real
Property Act 1886
to a mortgagee under a mortgage in respect of which default has been made
in payment of money secured by the mortgage.
18—Action,
and recovery of costs and expenses, by registered mortgagee or encumbrancee or
by tenant
(1) If the
requirements of a housing assessment order, housing improvement order or housing
demolition order are not complied with—
(a) a registered mortgagee or encumbrancee of the premises to which the
order applies; or
(b) in the case of premises that are occupied under a residential tenancy
agreement—the tenant,
may take such action required by the order as may be authorised by the
Minister.
(2) An authorisation of the Minister under
subsection (1)
—
(a) must be in writing; and
(b) may be subject to conditions; and
(c) may be varied or revoked by the Minister at any time.
(3) If action has
been taken by a tenant under
subsection (1)
, the reasonable costs and expenses incurred by the tenant in taking that
action—
(a) are recoverable by the tenant as a debt from the person to whom the
housing assessment order, housing improvement order or housing demolition order
was issued; and
(b) may be deducted by the tenant from any rent payable in respect of the
premises,
despite any covenant or agreement to the contrary.
(4) If action has
been taken by a registered mortgagee or encumbrancee under
subsection (1)
, the reasonable costs and expenses incurred by the registered mortgagee or
encumbrancee in taking that action, are—
(a) recoverable as a debt from the person to whom the housing assessment
order, housing improvement order or housing demolition order was issued;
and
(b) in the case of action taken by a registered mortgagee on notice in
writing given to the mortgagor—taken, on notice in writing given to the
mortgagor, to be added to the principal sum owing under the mortgage, and until
repaid, subject to interest at the same rate and payable at the same times as
the balance of the amount owing under the mortgage,
despite any covenant or agreement to the contrary or the provisions of the
Real
Property Act 1886
.
19—Owner
of residential premises may seek reimbursement of costs and expenses from other
owners
The Tribunal may, on application by an owner of residential premises who
has been issued with a housing assessment order, housing improvement order or
housing demolition order and who has incurred costs and expenses in carrying out
the requirements of the order or reimbursing the Minister for action taken in
pursuance of the order, make an order for payment of the whole or a portion of
the costs and expenses, as the Tribunal considers appropriate,
against one or more other owners of the premises.
20—Interaction
of this Division with Real Property
Act 1886
(1) The provisions of
this Division relating to registration by the Registrar-General and the priority
of charges apply despite the provisions of the
Real
Property Act 1886
.
(2) Without limiting
subsection (1)
, despite the provisions of the
Real
Property Act 1886
, a charge imposed on land under this Division is not discharged by the
exercise of a power of sale or foreclosure under that Act and is not discharged
by the exercise of a power of sale under any other Act.
(1) If a housing
improvement order or housing demolition order issued in respect of residential
premises imposes a requirement for the premises to be vacated, the Minister must
issue a notice to the occupiers of the premises to vacate the premises (a
notice to vacate).
(2) A notice to vacate must—
(a) be in the form of a written notice served on the occupiers of the
premises; and
(b) specify the premises; and
(c) state the reasons for issuing the notice; and
(d) require the occupiers to vacate the premises by a specified date
(allowing as much time as the circumstances will safely permit); and
(e) if the premises are occupied under a residential tenancy agreement,
state that, by force of the notice—
(i) the tenancy will be terminated on the specified date; and
(ii) the tenant must give up possession of the premises on or before that
date; and
(iii) the landlord is authorised to take possession of the premises on
that date; and
(f) state that the persons to whom the notice is issued may, within
28 days, apply to the Tribunal for a review of the notice.
(3) The Minister may vary or revoke a notice under this section by
subsequent written notice.
(4) A person to whom a notice to vacate has been issued—
(a) must comply with the notice; and
(b) must not let or sublet the premises to which it applies, or cause the
premises to be let or sublet.
Maximum penalty: $5 000.
22—Power
of Tribunal to make order for ejectment or compensation
(1) If 1 or more
occupiers of premises in respect of which a notice to vacate has been issued
have not given up possession of the premises by the date specified in the
notice, the Tribunal may, on application by the owner of the premises or the
Minister, make an order for the ejectment of the occupier or
occupiers.
(2) If premises in respect of which a notice to vacate has been issued
have been occupied under a residential tenancy agreement, the Tribunal may, on
application by the tenant, if the Tribunal considers it appropriate to do so in
the circumstances, make an order requiring the landlord to compensate the tenant
for loss and inconvenience resulting, or likely to result, from the early
termination of the tenancy under this Division (including, but not limited to,
the reasonable costs incurred by the tenant in relocating to other
premises).
23—Enforcement
of ejectment order
(1) If an order for ejectment is made by the Tribunal under
section 22(1)
and the person in whose favour the order was made advises the Tribunal,
within 14 days of the day on which the order takes effect or such longer
period as the Tribunal may allow, that the order has not been complied
with—
(a) the order is enforceable by a bailiff (and, subject to
subsection (3)
, only by such a bailiff); and
(b) the bailiff must enforce the order as soon as is practicable after the
Tribunal is advised that it has not been complied with.
(2) A bailiff enforcing an order for ejectment in relation to premises may
enter the premises, ask questions and take all steps as are reasonably necessary
for the purpose of enforcing the order.
(3) A police
officer must, if requested by a bailiff, assist the bailiff in enforcing an
order for possession.
(4) In the exercise of the powers conferred by this section, a bailiff may
use the force that is reasonable and necessary in the circumstances.
(5) A person must not hinder or obstruct a bailiff in the exercise of the
powers conferred by this section.
Maximum penalty: $2 500.
(6) A person questioned pursuant to this section must not refuse or fail
to answer the question to the best of his or her knowledge, information and
belief.
Maximum penalty: $2 500.
(7) However, a person is not obliged to answer a question under this
section if to do so might tend to incriminate the person or to make the person
liable to a penalty, or would require the disclosure of information that is
privileged under the principles of legal professional privilege.
(8) In this section—
bailiff means a bailiff appointed under the
South
Australian Civil and Administrative Tribunal Act 2013
.
Division 3—Rent
control notices
(1) The Minister
may, if a housing improvement order has been issued in respect of residential
premises, by notice in the Gazette, declare the premises to be subject to rent
control (a rent control notice).
(2) Before making a
notice under
subsection (1)
, the Minister must give the owner of the residential premises a
preliminary notice (a preliminary rent control
notice)—
(a) stating the intention of the Minister to make the rent control notice;
and
(b) specifying the premises to which the rent control notice is intended
to apply; and
(c) stating the maximum rent proposed for the premises as fixed by the
Minister after taking into account—
(i) the condition of the premises; and
(ii) the capital value of the premises as determined under the
Valuation
of Land Act 1971
; and
(iii) to the extent that the Minister may reasonably be able to determine,
the market rent for residential premises of that kind in the same or similar
localities; and
(iv) any other factors prescribed by regulation or considered relevant by
the Minister; and
(d) inviting the person
to show, within a specified time not exceeding 14 days why a rent control
notice should not be made (by making representations to the Minister).
(3) A notice under
subsection (2)
may state varying amounts as the proposed maximum rent for the premises
according to—
(a) whether the rent applies in relation to the premises as a whole or in
part; or
(b) whether the premises are furnished or unfurnished.
(4) After
considering any representations made within the time specified under
subsection (2)(d)
, the Minister may—
(a) proceed with making the rent control notice—
(i) in accordance with the terms of the preliminary rent control notice;
or
(ii) with modifications from the terms of the preliminary rent control
notice; or
(b) determine not to proceed with the rent control notice.
(5) The Minister may,
on application by the owner of premises to which a rent control notice applies
or on the Minister's own initiative, by subsequent notice in the Gazette, vary
or revoke the rent control notice if satisfied that it is just or reasonable to
do so.
(6) A rent control notice—
(a) comes into operation on the day on which it is made or such later date
as may be specified in the notice; and
(b) remains in force according to the terms of the notice—
(i) for a period specified in the notice; or
(ii) until revoked by the Minister,
(despite any change in ownership or occupancy of the residential
premises).
25—Offence
to charge more than maximum rent under rent control notice
If a rent control notice applies to residential premises, a person must not
charge, demand or receive rent in respect of the premises that is more than the
maximum rent fixed under the notice.
Maximum penalty: $5 000.
Expiation fee: $315.
Division 4—Special
provisions relating to prescribed residential tenancy
agreements
26—Landlord
must give notice of intention to carry out inspections or works under housing
assessment order or housing improvement order
(1) A landlord under a
prescribed residential tenancy agreement in respect of residential premises to
which a housing assessment order or housing improvement order applies must
comply with the following requirements:
(a) the landlord may enter the premises to inspect the premises in
connection with the order, but only in accordance with a written notice given to
the tenant no less than 7 and no more than 14 days before the day of
entry—
(i) stating the purpose of the proposed entry and the date of the proposed
entry; and
(ii) specifying a period of up to 2 hours (which must be between
8 am and 8 pm on any day other than a Sunday or public holiday) within
which the proposed entry will occur,
(however, if the premises are in a remote location or it is necessary for
the landlord to be accompanied by a person for the purposes of the inspection,
the notice need not specify a 2 hour period within which the proposed entry
is to occur, but the entry must occur between 8 am and 8 pm on any day
other than a Sunday or public holiday);
(b) the landlord may enter the premises to carry out works required by the
order but only at a time between 8 am and 8 pm on any day other than a
Sunday or public holiday of which the tenant has been given at least
48 hours notice.
(2)
Subsection (1)
does not apply if the inspection or works are required to be carried out
in an emergency.
27—Landlord
must keep and provide record of rent if rent control notice
applies
A landlord who receives rent under a prescribed residential tenancy
agreement in respect of residential premises to which a rent control notice
applies must comply with the following requirements:
(a) the landlord must
keep a record of the following details for the rent:
(i) the date on which the rent was received;
(ii) the name of the person paying the rent;
(iii) the amount paid;
(iv) the period of the tenancy to which the rent relates;
(v) the address of the premises to which the rent relates;
(b) the landlord must keep the record for a period of 2 years from
the date of the receipt of the rent;
(c) if the rent was paid other than into an ADI account, the landlord
must, within 48 hours after receiving the rent, give the tenant a copy of
the details referred to in
paragraph (a)
in respect of the rent;
(d) if the rent was paid into an ADI account, the landlord is only
required to provide the tenant with a copy of the details referred to in
paragraph (a)
in respect of the rent if the tenant makes a written request for it, in
which case the landlord must give the tenant such a copy in respect of the
period specified in the request within 7 days of the making of the
request.
Maximum penalty: $2 500.
Expiation fee: $210.
28—Termination
of prescribed residential tenancy agreement by tenant
(1) The tenant under a prescribed residential tenancy agreement in respect
of residential premises to which an order or notice under this Part applies,
may, by notice of termination given to the landlord, terminate the tenancy
without specifying a ground of termination.
(2) The minimum period of notice under this section is
7 days.
29—Termination
or variation of prescribed residential tenancy agreement by
landlord
(1) If a landlord
gives a tenant a notice of termination, or a notice of variation of a prescribed
kind, of a prescribed residential tenancy agreement in respect of residential
premises—
(a) that have, within the preceding 6 months, been the subject of an
inspection by an authorised officer under
section 11
; or
(b) to which an order or notice under this Part applies (other than a
notice to vacate),
the notice will be ineffectual unless it is given in the prescribed manner
and form on 1 or more grounds prescribed by regulation for the purposes of
this subsection and the Tribunal has confirmed the notice in accordance with
subsection (2)
.
(2) The Tribunal
may, on application by a landlord who gives, or a tenant who receives, a notice
referred to in
subsection (1)
—
(a) if the Tribunal
is satisfied of the genuineness of the landlord's grounds for the giving of the
notice, do 1 or both of the following:
(ii) make an order—
(A) in the case of a notice of termination—for termination of the
residential tenancy agreement and for possession of the residential premises;
or
(B) in the case of a notice of variation—for variation of the
residential tenancy agreement; and
(b) if the Tribunal
is not satisfied of the genuineness of the landlord's grounds for the giving of
the notice, do 1 or both of the following:
(i) set aside the notice;
(ii) make an order reinstating the residential tenancy on such conditions
(if any) as the Tribunal considers appropriate.
(3) The Tribunal may, if it considers it appropriate to do so in the
circumstances of the case, make an order compensating the tenant for loss or
inconvenience resulting, or likely to result, from the termination or variation
of the tenancy under this section (including, but not limited to, the reasonable
costs incurred by the tenant in relocating to other premises).
(4) A landlord who recovers possession of premises under this section must
not, without the consent of the Tribunal, grant a fresh tenancy over the
premises within 6 months after recovering possession.
Maximum penalty: $2 500.
(5) In this section—
variation of a prescribed kind, in relation to a prescribed
residential tenancy agreement, means a variation that has the effect
of—
(a) removing property or rights ordinarily enjoyed by the tenant in
connection with the premises; or
(b) making such property or rights subject to a new or additional charge
or other consideration.
Division 5—Obligation
to publicise orders and notices
30—Orders
and notices under this Part to be displayed on premises
The owner of residential premises to which an order or notice under this
Part (other than a preliminary rent control notice) applies must ensure that a
copy of the order or notice showing the terms of each order or notice is
displayed in legible form in a prominent position at the premises as directed by
the Minister.
Maximum penalty: $5 000.
Expiation fee: $315.
31—Orders
and notices under this Part to be declared in advertisements for sale or lease
of land and in lease agreement
(1) If residential
premises to which an order or notice under this Part (other than a preliminary
rent control notice) applies are offered for sale, the vendor must ensure that
each advertisement published or caused to be published by the vendor in relation
to the sale includes a statement that such order or notice applies to the
premises.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) If residential
premises to which an order or notice under this Part (other than a preliminary
rent control notice) applies are offered for lease, the lessor must ensure
that—
(a) each advertisement
published or caused to be published by the lessor for the lease, and the lease
agreement, includes a statement that such order or notice applies to the
premises; and
(b) if a rent control
notice applies to the premises—any oral or written representation made to
a lessee about the amount of rent payable for the premises includes a statement
that the rent payable is the amount fixed under the rent control
notice.
Maximum penalty: $5 000.
Expiation fee: $315.
(3) A statement required to be made under
subsection (1)
or
(2)
in an advertisement or document must be in legible form and appear in a
reasonably prominent position in the advertisement or document.
Maximum penalty: $5 000.
Expiation fee: $315.
(4) If a person fails to comply with
subsection (2)
, the lessee may rescind the lease by giving notice to the person in the
prescribed manner and form of the lessee's intention not to be bound by the
lease.
(5) In this section—
lessee, in relation to premises, includes a prospective
lessee and a person authorised to act on behalf of a lessee or prospective
lessee in the lease of the premises;
lessor, in relation to premises, includes a prospective
lessor and a person authorised to act on behalf of a lessor or prospective
lessor in the lease of the premises;
vendor, in relation to premises, includes a prospective
vendor and a person authorised to act on behalf of a vendor or prospective
vendor in the sale of the premises.
(1) Application for review may be made to the Tribunal as
follows:
(a) a person who has been issued with a housing assessment order, a
housing improvement order, a housing demolition order or a notice to vacate may
apply for a review by the Tribunal of the order or notice, or a variation of the
order or notice, under section 34 of the
South
Australian Civil and Administrative Tribunal Act 2013
;
(b) the owner of premises in respect of which a rent control notice has
been made may apply for a review by the Tribunal of the notice, or a variation
of the notice, under section 34 of the
South
Australian Civil and Administrative Tribunal Act 2013
.
(2) The application must be made within 28 days after the order or
notice is issued or made or any variation of the order or notice is made (unless
the Tribunal allows an extension of time).
(1) The owner of
residential premises must take reasonable steps to ensure that the premises are
safe and suitable for human habitation.
(2) Without limiting
subsection (1)
, in the case of residential premises that are occupied under a residential
tenancy agreement—
(a) the landlord must
take reasonable steps to ensure that the premises are, and remain, safe and
suitable for human habitation; and
(b) the tenant must
take reasonable steps—
(i) to comply with any action taken by the landlord to ensure that the
premises are safe and suitable for human habitation; and
(ii) to ensure that the premises are maintained in a reasonable state for
the purposes of human habitation.
(3) In determining what is reasonable for the purposes of
subsections (1)
and
(2)(a)
, regard must be had, amongst other things, to—
(a) the prescribed minimum housing standards; and
(b) a relevant code of practice prescribed or approved under the
regulations; and
(c) the potential impact on occupiers of the premises of a failure to
comply with the duty; and
(d) any matter prescribed by regulation.
(4) A person will be taken not to be in breach of this section if the
person is acting in circumstances prescribed by regulation.
(5) Subject to
subsections (6)
and
(7)
, a person who breaches this section is not, on account of the breach
alone, liable to any civil or criminal action.
(6) If an owner
breaches
subsection (1)
, compliance with the provision may be enforced by the issuing of a housing
assessment order, housing improvement order or housing demolition
order.
(7)
Subsection (5)
does not limit or derogate from any other provision of this Act.
Part 5—South
Australian Civil and Administrative Tribunal
(1) The Tribunal has jurisdiction to deal with a housing improvement
tenancy dispute.
(2) However, the Tribunal does not have jurisdiction to deal with a
monetary claim under this Act if the amount claimed exceeds $40 000
unless the parties to the proceedings consent in writing to the claim being
dealt with by the Tribunal (and if consent is given, it is
irrevocable).
(3) If a monetary
claim under this Act is above the Tribunal's jurisdictional limit, the claim and
any other claims related to the same residential tenancy agreement may be
brought in a court competent to hear and determine a claim founded on contract
for the amount of the claim.
(4) A court in which proceedings are brought under
subsection (3)
may exercise the powers of the Tribunal under this Act and, to such extent
as may be necessary and appropriate, the powers of the Tribunal under the
South
Australian Civil and Administrative Tribunal Act 2013
.
(1) The Minister may intervene in proceedings before the Tribunal or a
court concerning a housing improvement tenancy dispute.
(2) If the Minister intervenes in proceedings, he or she becomes a party
to the proceedings and has all the rights (including rights of appeal) of a
party to the proceedings.
The Tribunal may amend proceedings if satisfied that the amendment will
contribute to the expeditious and just resolution of the questions in issue
between the parties.
37—General
powers of Tribunal to resolve housing improvement tenancy
disputes
(1) The Tribunal
may, on application by a party to a housing improvement tenancy
dispute—
(a) restrain an action in breach of this Act; or
(b) require a person to comply with an obligation under this Act;
or
(c) order a person to make a payment (which may include compensation)
under this Act for a breach of this Act; or
(d) modify a residential tenancy agreement to enable the tenant to recover
compensation payable to the tenant by way of a reduction in the rent otherwise
payable under the agreement; or
(e) relieve a party to a residential tenancy agreement from the obligation
to comply with a provision of the agreement; or
(f) terminate a residential tenancy agreement or declare that a
residential tenancy agreement has, or has not, terminated; or
(g) reinstate rights under a residential tenancy agreement that have been
forfeited or have otherwise terminated; or
(h) require payment of rent into the Fund until conditions stipulated by
the Tribunal have been complied with; or
(i) require that rent so paid into the Fund be paid out and applied as
directed by the Tribunal; or
(j) require a tenant to give up possession of residential premises to the
landlord; or
(k) make orders to give effect to rights and liabilities arising from the
assignment of a residential tenancy agreement; or
(l) exercise any other power conferred on the Tribunal under this Act;
or
(m) do anything else necessary or desirable to resolve a housing
improvement tenancy dispute.
(2) The Tribunal does not have jurisdiction to award compensation for
damages arising from personal injury.
(1) The Tribunal may, on application by the owner or occupier of
residential premises, if satisfied—
(a) that a person who, following—
(i) the issuing of an order or notice under
Part 3
in relation to the premises; or
(ii) the making of a decision by the Tribunal in relation to the
premises,
is causing or may cause serious damage to property; or
(b) that a person is failing to comply with the general duty under
Part 4
in relation to the premises in any material respect,
may make an order (a restraining order) restraining the
person on the premises from engaging in conduct of a kind described in the
order.
(2) An application for a restraining order may be made without notice to
the person against whom the order is sought but, if the order is made without
giving the person a reasonable opportunity to respond to the allegations against
him or her, the Tribunal must allow him or her a reasonable opportunity to
satisfy it that the order should not continue in operation.
39—Special
powers to make orders
(1) The Tribunal
may in proceedings under this Act make an order in the nature
of—
(a) an injunction (including an interim injunction); or
(b) an order for specific performance.
(2) However, a member of the Tribunal who is not legally qualified cannot
make an order under
subsection (1)
without the approval of the President or a Deputy President of the
Tribunal.
(3) The Tribunal may, in the exercise of its jurisdiction under this Act,
make ancillary or incidental orders.
40—Application
to vary or set aside order
(1) A party to proceedings before the Tribunal under this Act may apply to
the Tribunal for an order varying or setting aside an order made in the
proceedings.
(2) An application to vary or set aside an order must be made within
1 month of the making of the order (unless the Tribunal allows an extension
of time).
(3) If the reasons of the Tribunal are not given in writing at the time of
making an order and the applicant for an order varying or setting aside the
order then requests the Tribunal to state its reasons in writing, the time for
making the application runs from the time when the applicant receives the
written statement of the reasons.
(4) This section does not limit any provision of the
South
Australian Civil and Administrative Tribunal Act 2013
.
(5) Proceedings under this section do not constitute a review of a
decision for the purposes of sections 34 or 70 of the
South
Australian Civil and Administrative Tribunal Act 2013
.
The Tribunal must, if requested by a person affected by a decision of the
Tribunal, where written reasons have not been given, state in writing the
reasons for the Tribunal's decision.
42—Time
for application for review or instituting appeal
Furthermore, if the reasons for a decision of the Tribunal have not been
given in writing and—
(a) an applicant for review of the decision of the Tribunal under
section 70 of the
South
Australian Civil and Administrative Tribunal Act 2013
; or
(b) a person appealing against a decision of the Tribunal under
section 71 of the
South
Australian Civil and Administrative Tribunal Act 2013
,
requests the Tribunal within 1 month of the making of the decision to
state the reasons in writing, the time for making the application for review or
instituting the appeal (as the case may be) runs from the time when the person
receives the written statement of reasons.
43—Representation
in proceedings before Tribunal
(1) A party to a housing improvement dispute may only be represented in
proceedings before the Tribunal (including a conference or mediation under
sections 50 and 51 respectively of the
South
Australian Civil and Administrative Tribunal Act 2013
) in accordance with this section.
(2) A party may be represented by a lawyer if—
(a) all parties to the proceedings agree to the representation and the
Tribunal is satisfied that it will not unfairly disadvantage a party who does
not have a professional representative; or
(b) the Tribunal is satisfied that the party is unable to present the
party's case properly without assistance; or
(c) another party to the dispute is a lawyer, or is represented by a
professional representative; or
(d) the Minister has intervened in, or is a party to, the
proceedings.
(3) A party may be represented by a person who is not a lawyer
if—
(a) the party is a body corporate and the representative is an officer or
employee of the body corporate; or
(b) the party is a landlord and the representative is an agent, or an
officer or employee of an agent, appointed by the landlord to manage the
premises on the landlord's behalf; or
(c) all parties to the proceedings agree to the representation and the
Tribunal is satisfied that it will not unfairly disadvantage an unrepresented
party; or
(d) the Tribunal is satisfied that the party is unable to present the
party's case properly without assistance.
(4) In this section—
professional representative means a lawyer, a law clerk, or a
person who holds or has held legal qualifications under the law of the State or
another place.
44—Remuneration
of representative
A person must not ask for or receive a fee for representing a party to a
housing improvement tenancy dispute in proceedings before the Tribunal
(including a conference or mediation under sections 50 and 51
respectively of the
South
Australian Civil and Administrative Tribunal Act 2013
) unless—
(a) the representative is a lawyer or a law clerk employed by a lawyer;
or
(b) the representative is an officer or employee of a body corporate who
represented the body corporate in the proceedings; or
(c) the representative is an agent, or an officer or employee of an agent,
who represented a landlord in the proceedings whose premises the agent had been
appointed to manage on behalf of the landlord.
Maximum penalty: $15 000.
(1) The Minister must keep a register in accordance with this
section.
(2) The register is to be in a form determined by the Minister.
(3) The Minister must record in the register—
(a) the address of each residential premises to which an order or notice
under
Part 3
applies; and
(b) in the case of residential premises to which a rent control notice
applies—the maximum rent fixed for the premises; and
(c) such other information as is prescribed by regulation.
(4) The register must be kept available for inspection, without fee, by
members of the public—
(a) during ordinary office hours at a public office, or public offices,
determined by the Minister; and
(b) on a website determined by the Minister.
(5) The Minister may, in his or her absolute discretion, exclude
particular details in the register from inspection by members of the
public.
(6) A member of the public may, on payment of the fee fixed by regulation,
obtain a copy of any part of a register.
(1) An agreement or arrangement that is inconsistent with this Act or
purports to exclude, modify or restrict the operation of this Act, is (unless
the inconsistency, exclusion, modification or restriction is expressly permitted
under this Act) to that extent void.
(2) A purported waiver of a right under this Act is void.
(3) A person who enters into an agreement or arrangement to defeat, evade
or prevent the operation of this Act (directly or indirectly) is guilty of an
offence.
Maximum penalty: $10 000.
(1) No civil or
criminal liability will attach to an authorised officer or other person engaged
in the administration of this Act for an act or omission in good
faith—
(a) in the exercise or discharge, or purported exercise or discharge, of a
power, function or duty under this Act; or
(b) in the carrying out of any direction or requirement given or imposed
in accordance with this Act.
(2) A liability that would, but for
subsection (1)
, lie against a person lies instead against the Crown.
48—Offences
by bodies corporate
(1) If a body corporate is guilty of an offence against this Act, each
director and the manager of the body corporate are guilty of an offence and
liable to the same penalty as is prescribed for the principal offence unless the
director or the manager (as the case may be) proves that he or she could not by
the exercise of due diligence have prevented the commission of the
offence.
(2) A person referred to in this section may be prosecuted and convicted
of an offence against this section whether or not the body corporate has been
prosecuted or convicted of the principal offence committed by the body
corporate.
49—Tribunal
may exempt agreement or premises from provision of Act
(1) The Tribunal may, on application by an interested person, if the
Tribunal considers it necessary or desirable in the circumstances, order that a
provision of this Act will not apply in relation to a prescribed residential
tenancy agreement or prospective prescribed residential tenancy agreement or to
particular residential premises occupied under a prescribed residential tenancy
agreement, or will apply in a modified manner (and the order will have effect
accordingly).
(2) An order may be made on conditions that the Tribunal considers
appropriate.
(3) A person must not contravene a condition of an order.
Maximum penalty: $2 500.
(1) An order, notice or other document required or authorised to be given
to a person under this Act may—
(a) in the case of a tenant, subtenant or occupier of residential
premises, be given to the person—
(i) personally; or
(ii) by leaving it for the person at the premises with someone apparently
over the age of 18 years; or
(iii) by posting it to the person at the premises; or
(iv) by transmitting it to the person by fax or email to a fax number or
email address provided by the person for the purposes of service under this Act
(in which case the notice or document will be taken to have been given or served
at the time of transmission); or
(v) by fixing it on a conspicuous part of the premises; or
(vi) by giving it in some other manner permitted by the
Tribunal;
(b) in any other case, be given to the person, or an agent of the
person—
(i) personally; or
(ii) by leaving it for the person, or agent of the person, at the person's
or agent's place of residence, employment or business with someone apparently
over the age of 18 years; or
(iii) by posting it to the person, or agent of the person, at the person's
or agent's last known place of residence, employment or business; or
(iv) by transmitting it to the person, or agent of the person, by fax or
email to a fax number or email address provided by the person or agent for the
purposes of service under this Act (in which case the notice or document will be
taken to have been given or served at the time of transmission).
(2) If 2 or more persons are owners, occupiers, landlords, tenants or
subtenants of residential premises, an order, notice or other document is duly
given if given to any one of them.
(3) An order, notice or other document required or authorised to be given
to an occupier or subtenant under this Act need not address the occupier or
subtenant by name.
51—False
or misleading information
A person must not make a statement that is false or misleading in a
material particular (whether by reason of the inclusion or omission of any
particular) in any information furnished, or record kept, under this
Act.
Maximum penalty: $20 000.
(1) If an offence against a provision of this Act is committed by a person
by reason of a continuing act or omission—
(a) the person is liable, in addition to the penalty otherwise applicable
to the offence, to a penalty for each day during which the act or omission
continues of not more than an amount equal to one-fifth of the maximum penalty
prescribed for that offence; and
(b) if the act or omission continues after the person is convicted of the
offence, the person is guilty of a further offence against that provision and
liable, in addition to the penalty otherwise applicable to the further offence,
to a penalty for each day during which the act or omission continues after that
conviction of not more than an amount equal to one-fifth of the maximum penalty
prescribed for that offence.
(2) For the purposes of this section, an obligation to do something is to
be regarded as continuing until the act is done regardless of whether any period
within which, or time before which, the act is required to be done has expired
or passed.
53—Commencement
of proceedings for summary offences
(1) Proceedings for an offence against this Act may only be commenced
by—
(a) the Minister; or
(b) an authorised officer.
(2) Proceedings for an offence against this Act may be commenced at any
time within 3 years after the date of the alleged commission of the offence
or, with the authorisation of the Attorney-General, at any later time after the
date of the alleged commission of the offence.
(3) An apparently genuine document purporting to be signed by the
Attorney-General authorising the commencement of proceedings under this Act must
be accepted in legal proceedings, in the absence of proof to the contrary, as
proof of the authorisation.
54—Orders
in respect of contraventions
(1) If, in proceedings for an offence under this Act, the court finds that
the defendant contravened this Act and the contravention has resulted in injury
or loss to a person, or damage to property of the person, the court may, in
addition to any penalty it may impose, do one or more of the
following:
(a) order the defendant to take specified action to prevent further injury
or loss to the person, or damage to property of the person;
(b) order the defendant to pay—
(i) to any public authority that has incurred costs or expenses in taking
action to prevent the injury, loss or damage; and
(ii) to any person who has suffered injury or loss, or damage to property,
as a result of the contravention, or incurred costs or expenses in taking action
to prevent such injury, loss or damage,
the reasonable costs and expenses so incurred, or compensation for the
injury, loss or damage suffered, as the case may be, in such amount as is
determined by the court.
(2) If a person is
found by a court to have contravened this Act, the court may, in addition to any
penalty it may impose, order the person to pay to the Minister an amount not
exceeding the court's estimation of the amount of the economic benefit acquired
by the person, or accrued or accruing to the person, as a result of the
contravention.
(3) For the purposes of
subsection (2)
, an economic benefit obtained by delaying or avoiding costs will be taken
to be an economic benefit acquired as a result of a contravention if the
contravention can be attributed (in whole or in part) to that delay or
avoidance.
(4) The court may, by an order under this section, fix a period for
compliance and impose any other requirements the court considers necessary or
expedient for enforcement of the order.
(5) An amount paid to the Minister in accordance with an order under
subsection (2)
must be paid into the consolidated account.
(6) In this section—
public authority includes a Minister, statutory authority or
council.
55—Recovery
from related bodies corporate
If—
(a) an amount is payable by a body corporate pursuant to this Act or an
order of a court made under this Act; and
(b) at the time of the contravention giving rise to that liability, that
body and another body were related bodies corporate,
the related bodies corporate are jointly and severally liable to make the
payment.
56—Joint
and several liability
Where an amount is recoverable by the Minister from 2 or more persons
under a provision of this Act, the provision is to be construed as if those
persons were jointly and severally liable to pay the amount to the
Minister.
(1) In any proceedings, a certificate executed by the Minister certifying
as to a matter relating to—
(a) the appointment or non-appointment of a person as an authorised
officer under this Act; or
(b) a delegation or authority under this Act; or
(c) an order, notice, requirement or direction of the Minister under this
Act; or
(d) any other decision of the Minister; or
(e) the receipt or non-receipt by the Minister of a notification or
information required to be given or furnished to the Minister under this
Act,
constitutes proof, in the absence of proof to the contrary, of the matters
so certified.
(2) In any proceedings for the recovery of reasonable costs and expenses
incurred by the Minister or a person or body authorised by the Minister to take
action under this Act, a certificate executed by the Minister detailing the
costs and expenses and the purpose for which they were incurred constitutes
proof, in the absence of proof to the contrary, of the matters so
certified.
(3) An apparently genuine document purporting to be an order, notice,
authorisation, certificate or other document, or a copy of an order, notice,
authorisation, certificate or other document, issued or
executed—
(a) by the Minister or an authorised officer under this Act; or
(b) a person or body authorised by the Minister for the purpose of
recovering costs and expenses incurred by the person or body under this
Act,
will be accepted as such in the absence of proof to the contrary.
(1) The Governor may
make such regulations as are contemplated by this Act or as are necessary or
expedient for the purposes of this Act.
(2) Without limiting
the generality of
subsection (1)
, those regulations may—
(a) prescribe fees and expenses in connection with any matter arising
under this Act, which may be of varying amounts according to factors prescribed
by regulation; and
(b) provide for the payment and recovery of prescribed fees and expenses;
and
(c) empower or require the Minister to refund, reduce or remit any fee
payable under this Act; and
(d) exempt, either
unconditionally or subject to conditions—
(i) a class of persons; or
(ii) an entity; or
(iii) circumstances; or
(iv) a part of the State,
from this Act or specified provisions of this Act; and
(e) prescribe penalties, not exceeding $10 000, for breach of
any regulation; and
(f) fix expiation fees, not exceeding $500, for alleged offences
against the regulations.
(3) The regulations may—
(a) be of general application or limited application (including so as to
apply only to a specified part of the State); and
(b) make different provision according to the persons, things or
circumstances to which they are expressed to apply; and
(c) refer to or incorporate, wholly or partially and with or without
modification, a code, standard or other document prepared or published by a
prescribed person or body, as in force from time to time or as in force at a
specified time; and
(d) provide that any matter or thing is to be determined, dispensed with,
regulated or prohibited according to the discretion of the Minister or another
prescribed person or body.
(4) If the regulations refer to a code, standard or other
document—
(a) a copy of the code, standard or document must be kept available for
inspection by members of the public, without charge and during normal office
hours, at an office or offices specified in the regulations; and
(b) in any legal proceedings, evidence of the contents of the code,
standard or other document may be given by production of a document purporting
to be certified by or on behalf of the Minister as a true copy of the code,
standard or other document; and
(c) the code, standard or other document has effect as if it were a
regulation made under this Act.
Schedule 1—Related
amendments, repeal and transitional provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Residential Parks
Act 2007
2—Amendment
of section 3—Interpretation
(1) Section 3(1), definition of housing improvement
notice—delete the definition and substitute:
housing assessment order has the same meaning as in the
Housing
Improvement Act 2015
;
housing demolition order has the same meaning as in the
Housing
Improvement Act 2015
;
housing improvement order has the same meaning as in the
Housing
Improvement Act 2015
;
(2) Section 3(1), after the definition of motor vehicle
insert:
notice to vacate has the same meaning as in the
Housing
Improvement Act 2015
;
(3) Section 3(1), after the definition of personal
documents insert:
preliminary rent control notice has the same meaning as in
the
Housing
Improvement Act 2015
;
(4) Section 3(1), after the definition of rent
insert:
rent control notice has the same meaning as in the
Housing
Improvement Act 2015
;
3—Amendment
of section 21—Variation of rent
(1) Section 21(3)—delete "the maximum rent for the rented
property has been fixed by a housing improvement notice, and the notice is
revoked" and substitute:
a rent control notice that has applied in respect of the rented property
ceases to be in force
(2) Section 21(3)—delete "revocation of the housing improvement
notice" and substitute:
the rent control notice ceases to be in force
4—Amendment
of section 35—Park owner's obligation to repair
(1) Section 35(3)—delete subsection (3) and
substitute:
(3) However, the park owner will not be regarded as being in breach of the
obligation to repair unless the park owner—
(a) has notice of the defect requiring repair; and
(b) fails to act with reasonable diligence to have the defect
repaired.
(2) Section 35(5)—delete subsection (5)
5—Amendment
of section 40—Residential park tenancy agreement—right of
entry
Section 40—after paragraph (e) insert:
(ea) the entry is made for the purpose of carrying out the requirements of
a housing assessment order or housing improvement order at a reasonable time of
which the resident has been given at least 48 hours notice; or
6—Amendment
of section 52—Termination of residential park
agreement
Section 52—after paragraph (d) insert:
(da) the tenancy terminates by force of a notice to vacate issued in
respect of the property; or
7—Amendment
of section 55—Limitation of right to terminate
(1) Section 55(1)(a)—delete paragraph (a) and
substitute:
(a) rented property—
(i) has, within the preceding 6 months, been the subject of an
inspection by an authorised officer within the meaning of the
Housing
Improvement Act 2015
in connection with the administration or enforcement of that Act;
or
(ii) is subject to a housing assessment order, housing improvement order,
housing demolition order, preliminary rent control notice or rent control
notice; or
(2) Section 55—after subsection (2) insert:
(2a) This section does not apply if a notice to vacate applies in respect
of the rented property.
8—Amendment
of section 60—Termination where periodic tenancy and no specified ground
of termination
Section 60(2)(a)—delete paragraph (a) and
substitute:
(a) a housing assessment order, housing improvement order, housing
demolition order, preliminary rent control notice or rent control notice applies
in respect of the rented property; or
9—Amendment
of section 85—Repossession of rented property
Section 85—after paragraph (a) insert:
(ab) the person is authorised to take possession of the rented property by
force of a notice to vacate issued in respect of the rented property;
or
Part 3—Amendment of Residential Tenancies
Act 1995
10—Amendment
of section 3—Interpretation
(1) Section 3(1), definition of housing improvement
notice—delete the definition and substitute:
housing assessment order has the same meaning as in the
Housing
Improvement Act 2015
;
housing demolition order has the same meaning as in the
Housing
Improvement Act 2015
;
housing improvement order has the same meaning as in the
Housing
Improvement Act 2015
;
(2) Section 3(1), after the definition of no premium retirement
village insert:
notice to vacate has the same meaning as in the
Housing
Improvement Act 2015
;
(3) Section 3(1), after the definition of personal
documents insert:
preliminary rent control notice has the same meaning as in
the
Housing
Improvement Act 2015
;
(4) Section 3(1), after the definition of rent
insert:
rent control notice means a notice under Part 3
Division 3 of the
Housing
Improvement Act 2015
fixing the maximum rent payable for premises;
11—Amendment
of section 55—Variation of rent
(1) Section 55(2)(c)(i)—delete "the maximum rent for the
premises has been fixed by a housing improvement notice, and the notice is
revoked" and substitute:
a rent control notice that has applied in respect of the rented property
ceases to be in force
(2) Section 55(2)(c)(i)—delete "revocation of the housing
improvement notice" and substitute:
the rent control notice ceases to be in force
12—Amendment
of section 68—Landlord's obligation to repair
(1) Section 68(2)(c)—delete paragraph (c)
(2) Section 68(4)—delete subsection (4)
13—Amendment
of section 70—Alteration of premises
Section 70—after subsection (1a) insert:
(1b) Subsection (1) does not apply in relation to an alteration or
addition required under a housing improvement order or a housing demolition
order that the tenant has been authorised to carry out under section 18 of
the
Housing
Improvement Act 2015
by the Minister responsible for the administration of that Act.
14—Amendment
of section 72—Right of entry
Section 72(1)—after paragraph (e) insert:
(ea) to carry out the requirements of a housing assessment order or
housing improvement order at a reasonable time of which the tenant has been
given at least 48 hours notice; or
15—Amendment
of section 79—Termination of residential tenancy
Section 79—after paragraph (e) insert:
(ea) the tenancy terminates by force of a notice to vacate issued in
respect of the premises; or
16—Amendment
of section 83—Termination by landlord without specifying a ground of
termination
Section 83(2)(a)(ii)—delete subparagraph (ii) and
substitute:
(ii) a housing assessment order, housing improvement order, housing
demolition order, preliminary rent control notice or rent control notice applies
in respect of the premises; or
17—Amendment
of section 84—Limitation of right to terminate
(1) Section 84(1)—delete subsection (1) and
substitute:
(1) If—
(a) premises to which a residential tenancy agreement
applies—
(i) have, within the preceding 6 months, been the subject of an
inspection by an authorised officer within the meaning of the
Housing
Improvement Act 2015
in connection with the administration or enforcement of that Act;
or
(ii) are subject to a housing assessment order, housing improvement order,
housing demolition order, preliminary rent control notice or rent control
notice; or
(b) an order is in force under section 56 (Excessive rent) in respect
of the premises or proceedings for such an order have been commenced,
the landlord may only terminate the tenancy by notice of termination under
this Part if the notice of termination is given on 1 or more grounds
prescribed by regulation for the purposes of this subsection and the Tribunal
authorises the notice of termination.
(2) Section 84(3)(b)—after "rent" insert:
lawfully owed to the landlord
(3) Section 84—after subsection (3) insert:
(4) This section does not apply if a notice to vacate applies in respect
of the premises.
18—Amendment
of section 95—Repossession of premises
Section 95—after paragraph (a) insert:
(ab) the person is authorised to take possession of the premises by force
of a notice to vacate issued in respect of the premises; or
19—Amendment
of section 105I—Rent increases
Section 105I(3)—delete subsection (3) and
substitute:
(3) If a rent control notice that has applied in respect of the rooming
house ceases to be in force, the proprietor may, by notice given under this
section within 4 weeks after the rent control notice ceases to be in force,
increase the rent for accommodation at the rooming house from a date falling at
least 14 days after the notice is given.
20—Amendment
of section 105P—Obligation to repair and keep room and premises
clean
Section 105P(3)—delete subsection (3) and substitute:
(3) However, the proprietor will not be regarded as being in breach of the
obligation to repair unless the proprietor—
(a) has notice of the defect requiring repair; and
(b) fails to act with reasonable diligence to have the defect
repaired.
21—Amendment
of section 105U—Termination of rooming house
agreement
Section 105U—after subsection (6) insert:
(6a) Despite
subsection (6), if a rooming house has, within the preceding 6 months,
been the subject of an inspection by an authorised officer within the meaning of
the
Housing
Improvement Act 2015
in connection with the administration or enforcement of that Act, the
proprietor may only terminate a rooming house agreement by notice under that
subsection if the notice is given on 1 or more grounds prescribed by
regulation for the purposes of this subsection and the Tribunal authorises the
giving of the notice.
(6b)
Subsection (6a)
does not apply if a notice to vacate applies in respect of the
premises.
Part 4—Repeal of Housing Improvement
Act 1940
The
Housing
Improvement Act 1940
is repealed.
Part 5—Transitional
provisions
In this Part—
repealed Act means the
Housing
Improvement Act 1940
.
24—Declarations
by councils that houses unfit for habitation
A declaration under section 23(1) of the repealed Act that a house is
undesirable or unfit for human habitation and in force immediately before the
commencement of this clause continues, on that commencement, as if it were a
housing improvement order issued under
section 13
of this Act in respect of residential premises.
25—Notice
of intention to declare house sub-standard
(1) A notice under section 52(1) of the repealed Act—
(a) stating that the housing authority intends to declare a house to be
sub-standard; and
(b) in force immediately before the commencement of this clause,
continues, on that commencement, as if it were a housing improvement order
issued in respect of residential premises under
section 13
of this Act.
(2) Any unexpired appeal period under the notice immediately before the
commencement of this clause will continue, on that commencement, in relation to
the housing improvement order, as if it were the period during which the person
to whom it is issued may apply for a review by the Tribunal of the order under
section 34 of the
South
Australian Civil and Administrative Tribunal Act 2013
(despite the fact that the period may exceed 28 days).
(3) In this clause—
appeal period, in relation to a notice under
section 52(1) of the repealed Act, means the period fixed in the notice
during which the person served with the notice may submit to the housing
authority (within the meaning of that Act) any matters that the person wishes
the housing authority to consider before making a declaration under
section 52(3) of that Act.
26—Notice
declaring house to be sub-standard
(1) A notice under section 52(3) of the repealed Act—
(a) declaring a house to be sub-standard for the purposes of Part 7
of that Act; and
(b) in force immediately before the commencement of this clause,
continues, on that commencement, as if it were a housing improvement order
issued in respect of residential premises to the owner of the premises under
section 13
of this Act.
(2) Any unexpired appeal period under the notice immediately before the
commencement of this clause will continue, on that commencement, in relation to
the housing improvement order, as if it were the period during which the person
to whom it is issued may apply for a review by the Tribunal of the order or
notice, or a variation of the order or notice, under section 34 of the
South
Australian Civil and Administrative Tribunal Act 2013
(despite the fact that the period may exceed 28 days).
(3) In this clause—
appeal period, in relation to a notice under
section 52(3) of the repealed Act, means the period (referred to in
section 53(1) of the repealed Act) of 1 month from the publication of
the notice in the Gazette during which the owner or registered mortgagee of the
house may appeal against the declaration in the notice to the Administrative and
Disciplinary Division of the District Court.
27—Notice
fixing maximum rental
(1) A notice under
section 54 of the repealed Act fixing the maximum rental payable in respect
of a house and in force immediately before the commencement of this clause
continues, on that commencement, as if it were a rent control notice made under
this Act in respect of residential premises.
(2) A notice that continues as a rent control notice by virtue of
subclause (1)
is subject to the same terms and conditions as applied under the notice as
in force immediately before the commencement of this clause.
28—Notice
fixing maximum rental for partial letting or subletting
(1) A notice under
section 57 of the repealed Act fixing the maximum rental payable in respect
of the letting or subletting of part of a house and in force immediately before
the commencement of this clause continues, on that commencement, as if it were a
rent control notice made under this Act in respect of residential
premises.
(2) A notice that continues as a rent control notice by virtue of
subclause (1)
is subject to the same terms and conditions as applied under the notice as
in force immediately before the commencement of this clause.
29—Notice
fixing maximum rental for furniture
(1) A notice under
section 58 of the repealed Act fixing the maximum rental payable that
includes payments for the use of furniture and in force immediately before the
commencement of this clause continues, on that commencement, as if it were a
rent control notice made under this Act in respect of residential
premises.
(2) A notice that continues as a rent control notice by virtue of
subclause (1)
is subject to the same terms and conditions as applied under the notice as
in force immediately before the commencement of this clause.
30—Continuation
of action in progress immediately before commencement of this
Part
Despite
clauses 25
and
26
—
(a) if a person has, before the commencement of this Part, submitted
matters to the housing authority that the person wishes the housing authority to
consider under section 52(2)(b) of the repealed Act, section 52 of the
repealed Act continues in operation for the purposes of enabling the housing
authority to complete the exercise of its powers under that section;
and
(b) if a person has instituted an appeal under section 53 of the
repealed Act and the appeal has not, immediately before the commencement of this
Part, been finally determined or withdrawn, sections 53 and 54 of the
repealed Act continue in operation until the appeal has been so determined or
withdrawn.