"The first thing we do, let's kill all the lawyers." 1

Property Law Table of 
Contents

In this chapter

Generally
Residential Tenancy Agreements
Boarders and Lodgers
Contracting Out of the Legislation
Entering Into Residential Tenancy Agreements

(a)	Reservation Fees
(b)	Standard Form of Residential Tenancy Agreement
(c)	Consideration for a Residential Tenancy Agreement
(d)	Rental Bond
(e)	Costs of Preparation of Residential Tenancy Agreement
(f)	Condition Report
(g)	Steps in Entering into a Residential Tenancy Agreement
(h)	Agreement Binding the Parties
(i)	Nature of Tenant's Interest Under a Residential Tenancy Agreement
(j)	Nature of the Term Under a Residential Tenancy Agreement

Rent

(a)	Generally
(b)	Variation of Rent
(c)	Written Notice of Rent Increase
(d)	Excessive Rent

The Parties Rights and Obligations

(a)	Availability of Premises
(b)	Quiet Enjoyment and Use of Premises
(c)	Access by Landlord
(d)	Cleanliness and Repair
(e)	Urgent Repairs
(f)	Alterations and Additions
(g)	Locks and Security Devices
(h)	Changes of Landlord or Tenant
(i)	Abandonment

Termination of Residential Tenancy Agreements

(a)	Generally
(b)	Circumstances in which Residential Tenancy Agreements Terminate
(c)	Termination by Notice

The Tribunal

(a)	Generally
(b)	Jurisdiction of the Tribunal
(c)	Obligations on Tribunal
(d)	Powers of the Tribunal

Applications to the Tribunal

(a)	Parties to Applications
(b)	Form of Application
(c)	Obligations on Tribunal
(d)	Retaliatory Eviction, Remedying Breach and Sale Fallen Through
(e)	Appeal
(f)	Enforcement




1.	Generally.

The Residential Tenancies Tribunal Act, 1986 was proclaimed to commence 
on the 1st October, 1986. Provisions contained in that legislation set up the 
Residential Tenancies Tribunal to deal with such matters as the form rent 
should take, the variation of rent, excessive rent and retaliatory eviction.

The Residential Tenancies Act, 1987 and Retirement Villages Act, 1989 
became operative on the 30th October, 1989. The Residential Tenancies Act 
replaced the Residential Tenancies Tribunal Act, 1986. The new 1987 Act 
repealed the 1986 Act although re-enacting most of its provisions, with 
some changes. It implemented the second stage of the reform of residential 
tenancy laws. Even though the Tribunal had existed since October, 1986, its 
jurisdiction, confined to excessive rent, did not allow it to resolve the major 
problems existing amongst the parties who appeared before it.

Professor Andrew Lang2 suggests that the Tribunal offers considerable 
advantages:-

"*	the ability of the Tribunal to resolve the entire range of disputes 
relating to residential tenancies;

*	the ability to develop specialised expertise and techniques in dealing 
with a variety of recurring residential tenancy problems;

*	that residential tenancies constitute the Tribunal's major 
responsibility, enabling it to handle that workload more 
expeditiously and efficiently than the civil courts and the Local 
Court, in which tenancy matters always had relatively low priority;

*	the availability of some new rights and remedies;

*	the implementation of procedures conducive to relatively 
expeditious and cost-efficient resolution of disputes, with some 
emphasis on conciliation."

In addition to the premises commonly understood to be residential premised 
the legislation includes movable dwellings eg. at caravan parks. The 
Tribunal will also perform important functions with regard to the residents 
of retirement villages under the Retirement Villages Act, 1989.

Two regulations cover the Tribunal's powers and procedures with reference 
to residential tenancies, the Residential Tenancies Regulation, 1989 and the 
Residential Tenancies Tribunal Regulation, 1989. Because each is a 
regulation (and not regulations) their provisions are clauses of the particular 
regulation. That is not the usage generally adopted by the Tribunal or the 
public and each clause is referred to as a regulation.


2.	Residential Tenancy Agreements.

To determine whether the parties to a tenancy dispute are governed by the 
Residential Tenancies Act it must be determined whether the agreement 
between them is an agreement for the tenancy of residential premises, 
having regard to the definitions in the Act. Once it is determined that the 
agreement is a residential tenancy agreement the exemptions contained in the 
Act must be considered because not all residential tenancy agreements are 
covered by the Act.

Section 3(1) of the Act sets out the definitions:-

"residential premises"-

(a)	means any premises or part of premises (including any land 
occupied with the premises) used or intended to be used as a place 
of residence; and

(b)	includes a movable dwelling or the site on which a movable 
dwelling is situated or intended to be situated (or both the movable 
dwelling and the site), if the movable dwelling is used or intended 
to be used as a place of residence;

"residential tenancy agreement" means any agreement under which a 
person grants to another person for value a right of occupation of residential 
premises for the purpose of use as a residence-

(a)	whether or not the right is a right of exclusive occupation;

(b)	whether the agreement is express or implied;

(c)	whether the agreement is oral or in writing , or partly oral and 
partly in writing,

and includes such an agreement granting the right to occupy residential 
premises together with the letting of goods;

"tenancy" means the right to occupy residential premises under a residential 
tenancy agreement."

The Act applies to most residential tenancy agreements including:-

(a)	(i)	Cottages, home units, flats, leased for residence;

(ii)	Movable dwellings such as caravans and mobile homes, 
but only as specified in the regulations3 

(iii)	Part of premises, such as a single room, leased for 
residence, may also qualify

(iv)	It probably also applies when the premises are leased for 
residence and a room is used for professional or trade use.

(b)	Agreements made before or after the commencement of the 
legislation.

(c)	When the agreement is written or oral, express or implied.

(d)	But only where the right to occupy is granted "for value". That 
excludes rent-free occupancy where the occupant does not provide 
"any value", whether in terms of money, goods or services, in 
return for the right to occupy the residential premises. If the tenant 
provides "value" its adequacy is not relevant and the agreement 
qualifies as a residential tenancy agreement, unless the value is 
illusory, such as a rent of $ 1.00 per week. This may be 
particularly relevant in the case of rent-free occupancy by relatives 
or friends or by employees4.

(e)	When the "landlord" is the owner of the property or is a lessee.

(f)	When the premises are leased with or without goods ie. furnished 
or unfurnished.

(g)	The legislation applies where the lessor is the Commonwealth or 
the State of New South Wales, including their instrumentalities, 
such as public housing authorities.

(h)	The legislation applies to a lessor which is a corporation and 
probably also when the tenant is a corporation.

(i)	Tenancies involving family or friends may be subject to the Act but 
will not be if the parties did not intend to enter into a legal 
relationship and merely entered into a social, moral or domestic 
arrangement which was not intended to be binding; when the right 
of occupancy is not granted "for value"; and when the occupant is a 
boarder or lodger.

(j)	Tenancies involving employees may be subject to the Act but will 
not be if the parties have not become parties to a residential tenancy 
agreement; the right of occupancy is not granted "for value"; and 
when the occupant is a boarder or lodger.

The Act does not apply to the following premises5:-

(a)	When the premises are leased wholly or partly for commercial, 
industrial or agricultural purposes, including as a shop and 
dwelling. It would appear that the Act does not apply to lettings 
even in respect of the farm house or rural dwelling which is 
intended to be used for residence. However a separate tenancy of 
residential premises situated on a rural property eg. for occupation 
as the residence of the local school teacher, is within the Act.

(b)	Any part of a hotel.

(c)	Any part of a motel.

(d)	Premises ordinarily used for holiday purposes.

(e)	Any part of an educational institution.

(f)	Any part of a hospital or nursing home.

(g)	Any part of a club.

(h)	Certain premises used as a home for an aged or a disabled person.

(i)	Controlled premises under Parts II, III, IV and V of the Landlord & 
Tenant (Amendment) Act, 1948.

(j)	Premises exempted by regulation.

The Act does not apply to the following residential tenancy agreements6:-

(a)	Where the tenant is a party to an agreement for the sale and 
purchase of the residential premises. This certainly covers the 
tenancy of the purchaser but it is unclear whether it covers the 
tenancy of the vendor who remains in occupation after settlement. 
With leases to the vendor it is prudent for the parties to enter into 
the prescribed form of residential tenancy agreement.

(b)	An agreement arising under a mortgage.

(c)	An agreement arising under a company title scheme.

(d)	Where the tenant is a boarder or lodger.

(e)	Where the right to occupy is for a period of not more than two 
months for the purpose of a holiday. For the purposes of this 
exemption it is not the purpose of the premises but their use which 
is determinative. The agreement should also be made in good faith 
and not a sham or merely to avoid the legislation.

(f)	Those exempted by regulation.


3.	Boarders and Lodgers.

The legislation does not apply to a residential tenancy agreement "if the 
tenant is a boarder or a lodger"7. A suggested summary of the position of 
boarders and lodgers under the Act is as follows8:-

1.	Tenancies of residential premises are subject to this legislation, 
when the parties have entered into a residential tenancy agreement. 
That applies to entire self-contained residential premises, such as 
cottages or flats, as well as to parts of those premises, including 
single rooms. The criteria for the grant of a tenancy is that the 
occupant has been granted the legal right to exclusive possession of 
the premises.

2.	Although under the general law licensees do not have an interest in 
land, under this legislation licensees are protected when the 
landlord and the licensee have entered into a residential tenancy 
agreement. That is partly because in the definition of "residential 
tenancy agreement" in s. 4(1) the right to occupy the premises can 
be "exclusively or otherwise".

3.	That is particularly important with reference to occupants who are 
employees of the landlord or are his family or friends. Under the 
general law those persons are often licensees and not tenants. 
However, the Act will apply to them, and to other licensees, unless:

(i)	the parties have not entered into a residential tenancy 
agreement;

(ii)	the right of occupation is not granted "for value"; or

(iii)	the occupation is a boarder or lodger.

4.	It appears that licences who have a shared right to occupy 
residential premises are also subject to this legislation, unless they 
are boarders or lodgers.

5.	The important distinction for the purposes of this legislation is not 
between tenants and licensees, but between those licensees who are 
boarders or lodgers (and are excluded from the benefit of the 
legislation) and other licensees who may be subject to the 
legislation.

6.	To determine whether an occupant is a boarder or lodger is a 
difficult question of fact for the Tribunal, depending on a detailed 
analysis of the parties' agreement, conduct, the entitlements 
conferred on the occupant, and the services performed and rights 
reserved by the landlord. It is suggested that the criteria should be 
applied similarly to those under the general law. Particularly 
relevant to an ultimate finding that the occupant is a boarder or 
lodger is whether the landlord (or the landlord's resident manager 
of the premises) occupies part of the same premises.

7.	Likely persons to be held boarders or lodgers within this legislation 
are the occupants of single rooms in licensed boarding houses, 
where the proprietor (or manager) resides on the premises, the 
occupants share the facilities such as bathroom, toilet, laundry, 
kitchen, and some regular services are provided such as cleaning 
and linen. However, the Tribunal may hold the occupant of a single 
room or part of a cottage or flat, not used as a boarding house, also 
to be a boarder or lodger within this legislation.


4.	Contracting Out of the Legislation.

The provisions of the Residential Tenancies Act apply notwithstanding any 
contrary stipulation and the Acts provisions cannot be varied or excluded9. 
That does not preclude the parties from reaching a genuine agreement which 
in fact renders the particular tenancy or licence agreement outside the 
provisions of the Act. However sham agreements, including blatant and 
transparent attempts to avoid the operation of the legislation will fail10.


5.	Entering Into Residential Tenancy Agreements.

(a)	Reservation Fees.

There is a general prohibition against receiving a reservation fee11, 
rendering it an offence12, except in the circumstances prescribed by the 
regulation. Regulation 25 permits the receipt of a reservation fee in the 
following circumstances:-

(i)	the fee should not exceed an amount equal to the amount proposed 
to be paid for one week's rent;

(ii)	only one reservation fee can be held at the one time, i.e. the 
landlord cannot collect reservation fees simultaneously from more 
than one intending tenant;

(iii)	a receipt should be given for the reservation fee, as specified in the 
reg. 25(c);

(iv)	a written acknowledgment must be given by the person who 
receives the reservation fee, as specified in reg. 25(d).13

Although the maximum reservation fee which may be collected equals one 
week's rent, a lesser sum may be collected. Also the period for which the 
intending tenant receives the benefit of the reservation of the premises is not 
prescribed, it can range from a minimum of one day to any number of days. 
In practice the reservation period should be relatively brief, it is suggested 
that it should be between two to seven days.14



(b)	Standard Form of Residential Tenancy Agreement.

There are two prescribed standard forms of residential tenancy agreement, 
one for residential premises (which are not movable dwellings) and the 
other for residential premises consisting of movable dwellings (ie. a site on 
which a movable dwelling is situated or intended to be situated or a movable 
dwelling and site). The prescribed form includes a condition report relating 
to the premises which needs to be completed as is specified by the 
regulations. Any residential tenancy agreement should "be in or to the effect 
of the form"15 but may contain additional terms which should not 
contravene the legislation or be inconsistent with terms prescribed in the 
standard form.


(c)	Consideration for a Residential Tenancy Agreement.

A person, including the landlord and managing agent, is prohibited from 
receiving any monetary consideration for or in relation to entering into, 
renewing, extending or continuing a residential tenancy agreement other 
than:-

(i)	rent;

(ii)	rental bond;

(iii)	such other fees or amounts as may be prescribed.16

This provision renders it illegal to seek or accept a premium (or "key 
money") for the grant of a residential tenancy agreement. It also renders 
illegal a charge on the tenant by way of an inspection fee or letting fee when 
entering into a residential tenancy agreement. It is suggested that charges for 
goods or services provided by the landlord, such as laundry, washing 
machine, dryer, lock-up garage or parking space, television set, 
refrigerator, should be included in the rent and not as separate charges.

There would not appear to be any objection to a lease provision permitting 
the landlord to withdraw (or discontinue the provision of) any goods or 
services and to indicate in the residential tenancy agreement the amount by 
which the rent will then be reduced  Section 27 does not apply to goods or 
services supplied by third parties eg. electricity, telephone, gas whose 
suppliers may continue to charge tenants directly.

Section 19 expressly requires that the landlord shall pay rates, taxes and 
charges in connection with the residential premises, other than charges for 
electricity, gas, excess water and other prescribed charges. The prescribed 
charges which may be required to be paid by tenants under residential 
tenancy agreements, are listed in reg. 24.


(d)	Rental Bond.

The permissible amount of rental bond which may be required for 
residential premises is governed by the Landlord and Tenant (Rental Bonds) 
Act, 1977. This legislation limits the amount of the rental bond for 
residential premises to four weeks' rent for unfurnished premises and six 
weeks' rent for furnished premises.17 There is no limit on the amount of the 
rental bond in respect of furnished premises whose weekly rental is 
$ 250.00 or in excess of $ 250.00.18


(e)	Costs of Preparation of Residential Tenancy Agreement.

The costs of preparation of a residential tenancy agreement are payable in 
equal shares by the landlord and the tenant19. However the tenant is only 
required to pay the maximum amount that is prescribed for these costs ie. 
$ 15.00.20 Estate agents acting with reference to parties entering into 
residential tenancy agreements are restricted to a maximum total fee of 
$ 30.00, $ 15.00 payable by the landlord and $ 15.00 payable by the 
tenant21.

When solicitors act for landlords in the preparation of residential tenancy 
agreements, the tenant can only be required to pay $ 15.00 toward these 
fees. However solicitors can charge the appropriate scale fee, $ 62.0022, or 
on a time basis, for the work, the balance exceeding $ 15.00 being payable 
by the landlord 23

When a written tenancy agreement is prepared, the tenant is primarily liable 
for stamp duty, which can be legally demanded and collected from the 
tenant, in order that the agreement may be lodged for stamping  However 
currently residential leases are exempt from liability for stamp duty unless 
the term of the residential tenancy agreement and the duration of any option 
for renewal exceed five years.24

Before the tenant enters into a residential tenancy agreement the landlord is 
required to give to the tenant a written statement of the costs of preparation 
of the agreement and any other charges payable by the tenant25. It is 
suggested that this should occur when the residential tenancy agreement is 
given to the tenant for signature.


(f)	Condition Report.

The prescribed forms of residential tenancy agreement include a condition 
report which must be completed by the parties in accordance with the 
regulations26. The sequence specified in reg. 22 and the instructions for 
completion of the condition report contained at the front of the form, is as 
follows:-

*	Three copies of the condition report should be prepared and 
completed by or on behalf of the landlord on which the condition of 
the premises must be recorded. As the condition report must be 
completed by or on behalf of the landlord at or before the time 
when the agreement is given to the landlord for signing that may 
occur after the tenant has entered into the residential tenancy 
agreement.

*	Two copies of the condition report completed on behalf of the 
landlord and signed by the landlord or by the agent should be given 
tot he tenant at or before the time when the landlord executes the 
residential tenancy agreement.

*	The tenant should complete and sign both companies of the 
condition report, retain one copy and return one copy tot he 
landlord or the landlord's agent within seven days after having 
received it.

Unfortunately the legislation fails to refer to the situation when the 
landlord and the tenant disagree in any respects regarding the condition 
report. There is no requirement to resolve that disagreement or for the 
landlord to rectify any matter relating to cleanliness or state of repair, 
beyond the obligations contained in s. 25 and 26 which may be enforced by 
an order of the Tribunal.


(g)	Steps in Entering into a Residential Tenancy Agreement.

The following are the steps that need to be taken when parties enter into a 
residential tenancy agreement:-

(i)	If an estate agent is involved the landlord should have entered into a 
prescribed form of management agency agreement or a leasing 
agency agreement.27

(ii)	Advertising availability of premises, inspections, negotiations with 
prospective tenants.

(iii)	If it is intended to require a reservation fee to be paid by the tenant, 
that should be collected and a receipt and acknowledgment be given 
to the tenant.

(iv)	Preparation of residential tenancy agreement in at least three copies, 
but four copies are required if the landlord and the estate agent (or 
the landlord's solicitor) each require a copy of the agreement.

(v)	Preparation of a written statement of costs of preparation of the 
residential tenancy agreement and of any other charges payable by 
the tenant.

(vi)	Preparation of notice of name or address of landlord etc. as 
specified in s. 32(1), (2A).

(vii)	Giving to the tenant:

	*	an unsigned copy of the residential tenancy agreement for 
signature;

	*	written statement of costs, etc;

	*	notice of name or address of landlord.

(viii)	Tenant returns two signed copies of residential tenancy agreement 
and pays rental bond , rent in advance, costs, signs rental bond 
forms.

(ix)	Preparation of condition report, two copies to be signed by landlord 
or agent.

(x)	Giving the signed copies of the condition report to the tenant.

(xi)	Landlord to sign residential tenancy agreement (at least in 
duplicate).

(xii)	One fully executed copy of residential tenancy agreement, ie. 
signed by both parties to be given to the tenant "as soon as 
reasonably practicable".28

(xiii)	Tenant to return to landlord (or agent) a copy of the condition report 
completed and signed by the tenant, within seven days after having 
received it.

(xiv)	Payment of rental bond to Rental Bond Board.

In appropriate circumstances some of the above steps could be carried out at 
the same time eg. the condition report could be completed and the residential 
tenancy agreement signed by both parties at a single meeting each party 
receiving a fully executed copy at that time.


(h)	Agreement Binding the Parties.

A residential tenancy agreement is enforceable against both parties before it 
has been executed by the landlord at step (viii) outlined above. Section 
13(1) provides that both the landlord and the tenant are bound by the 
residential tenancy agreement when it has been signed by the tenant and 
given to the landlord or a person on the landlord's behalf (eg. the estate 
agent or the landlord's solicitor) together with rent which was accepted 
without reservation by or on behalf of the landlord.

The legislation fails to resolve expressly whether the managing agent or 
some other agent for the landlord (eg. acting under a power of attorney) is 
entitled to sign the residential tenancy agreement on behalf of the landlord. It 
is suggested that agents, including managing agents, if duly authorised, can 
enter into and execute residential tenancy agreement on behalf of landlords. 
The prescribed form of management agency agreement published by the 
Real Estate Institute of New South Wales authorises the agent to "enter into 
and sign leases"29 which should cover and may be expressly extended to 
include residential tenancy agreements.


(i)	Nature of Tenant's Interest Under a Residential Tenancy 
Agreement.

Under the general law the principal question which must be answered when 
considering the entitlements of property owners and occupants is whether 
the relationship is that of landlord and tenant. Under the Residential 
Tenancies Act the principal question is whether the parties have entered into 
a residential tenancy agreement governed by the Act. The vast majority of 
tenancies governed by the Act will be tenancies under the general law. 
However the legal right to exclusive possession is not an essential 
requirement of a residential tenancy agreement which may in appropriate 
circumstances only constitute a licence under the general law. This raises the 
question of what statutory formalities apply to residential tenancy 
agreements?

It will be recalled from the earlier discussion of the general position:-

(i)	That the provisions of the Conveyancing Act, 1919 and Real 
Property Act, 1900 apply to any lease including a lease over 
residential premises.

(ii)	The Conveyancing Act provisions apply to lease over land which is 
not held under Torrens title but also to unregistered leases of land 
held under Torrens title.

(iii)	The basic requirement is that leases should be created by an 
instrument constituting a deed.30

(iv)	One exception to that requirement is that when the periods of the 
lease and any option for renewal added together do not exceed three 
years. In that case the lease can be oral or in writing and legally 
effective provided that the conditions specified in s. 23D(2) have 
been satisfied.

(v)	The other exception is that leases of Torrens title land for periods 
exceeding three years must be registered pursuant to s. 53 of the 
Real Property Act. An unregistered lease for such a term is void 
and at law constitutes only a monthly tenancy 31

(vi)	Under s. 42(1)(d) of the Real Property Act on the purchase of 
Torrens title land the purchaser may acquire a title free from all 
unregistered interest except those listed in s. 42, (which includes 
an unregistered lease whose term together with any option for 
renewal does not exceed three years).

It is suggested32 that as between the landlord and the tenant who enter into a 
residential tenancy agreement an effective and legally enforceable agreement 
has been entered into when the prescribed form is signed. The tenant's 
interest, which may or may not be an interest in land under the general law, 
is protected by the residential tenancies legislation. As between the parties 
the statutory requirements under the Conveyancing Act do not apply 
because they are substantially different from the requirements under the 
Residential Tenancies Act . The provisions of the Real Property Act may 
apply but need not be observed between the parties to a residential tenancy 
agreement because their rights are fully protected by legislation.

There appears to be no difficulty enforcing a residential tenancy agreement 
of whatever duration between the parties who entered into that agreement. 
However the position between the landlord and a successor of the tenant 
and the tenant and a successor of the landlord is not covered by the 
residential tenancies legislation. Professor Lang suggests33:-

(i)	When the tenant is merely a licensee under the general law, not 
having been granted the legal right to exclusive possession, such 
tenant obtains no protection under the residential tenancies 
legislation against a purchaser of the property or other future 
owner, unless the person becomes bound by attornment under s. 
34 of the Residential Tenancies Act. Registration under the Real 
Property Act of a licence under the general law is not possible and 
would not alter the occupant's position under the residential 
agreement.

(ii)	When the tenant under the residential tenancy agreement is also a 
tenant under the general law the position of the tenant turns on the 
duration of the term and any option for renewal. In the vast 
majority of cases the  term and option for renewal total three years 
or less the residential tenancy agreement will be effective against 
future owner so the property because such term falls within the 
exception contained in s. 42(1)(d) of the Real Property Act.

(iii)	When the tenant in (ii) above has a term and the duration of any 
option that exceeds three years the tenant is in need of protection 
against a purchaser of a property held under Torrens title, which 
includes strata title. It is submitted that the tenant under a long term 
residential tenancy agreement, ie. when the duration of the fixed 
term tenancy and any option for renewal exceeds three years, over 
Torrens title land, for adequate protection against future owner of 
the property should have a lease registered under the Real Property 
Act. This would be in addition to entering to the prescribed form of 
residential tenancy agreement. The prescribed form is not a form 
registerable under the Real Property Act as such although a 
memorandum in registerable form could be created incorporating 
the terms of the prescribed form. The alternative for the tenant is to 
lodge a caveat, claiming an interest as a tenant under an 
unregistered lease. Although this may offer some protection there is 
no substitute for registration.


(j)	Nature of the Term Under a Residential Tenancy Agreement.

Under the general law a lease for a fixed term automatically expires 
without notice on the last day of the term. Under the residential tenancies 
legislation the position is different. A fixed term residential tenancy 
agreement does not come to an end unless and until a notice of termination 
has been given34 and if terminated by notice the Tribunal has made an order 
terminating the residential tenancy agreement35. If the residential tenancy 
agreement continues after the day on which its term ends and notice of 
termination has not been given the agreement continues as a periodical 
tenancy36. In that event the Tribunal has the power to modify the terms of 
the residential tenancy agreement as the Tribunal considers appropriate for 
the continuation of the agreement.37

The position regarding periodic residential tenancies also differs under this 
legislation from the general law. The agreement may be terminated by a 
notice of at least 60 days' duration by the landlord38 and of at least 21 days' 
duration by the tenant39 whatever the duration of the periodic tenancy might 
be. The notice of termination does not have the legal effect of terminating 
the periodic tenancy until the Tribunal makes an order terminating the 
residential tenancy agreement or until the tenant delivers up vacant 
possession (ie. voluntarily) on or after the day specified in the notice.40

The legislation has failed to make any express provision for the variation 
or extension of an existing residential tenancy agreement. It is suggested41 
that the extension of an existing fixed term tenancy constitutes the creation 
of a further (and new) fixed term tenancy. If that is correct, as the legislation 
only provides one mode of creating a residential tenancy agreement for a 
fixed term, that can only effected in accordance with the Act by entering into 
another form of agreement for that new term. A subsequent variation of 
such an agreement which is not contained within the agreement itself is 
prohibited42.This applies to the variation of any term of the agreement 
except a variation of the rent which is expressly covered by the legislation.

A practical question is whether a new condition report should be completed 
when the second or later fixed term residential tenancy agreement is entered 
into? If a new condition report is not prepared each time a new fixed term 
agreement is entered into with the same tenant, that might infringe the strict 
terms of the legislation, but not is spirit and intent, as the extension of a 
residential tenancy agreement is not covered in the legislation.


5.	Rent.

(a)	Generally.

Some principles under the general law relating to rent apply to tenancies of 
all types of premises and some of these principles continue to apply to 
residential tenancy agreements:-

(i)	The liability to pay rent, in terms of money or other 
consideration, is not an essential characteristic of a lease. The 
parties may agree to grant and to accept a lease of premises rent 
free, or at a nominal or very low rental. However a residential 
tenancy agreement in order to be covered by the legislation needs to 
involve the grant of the right to occupy residential premises "for 
value".

(ii)	When rent is specified in terms of money it should be clearly 
expressed as a sum of money or it should be capable of being 
calculated with certainty for the entire lease term.

(iii)	The rent cannot be varied during the entire term of a lease, unless 
either the lease provides for variation of rent or the parties 
renegotiate the lease terms and reach agreement on a new rent.

(iv)	When the lease term expires the lease may continue on holding 
over as a periodic tenancy, either at the same rent as during the 
lease term or at some other specified rent.

(v)	An increase of rent at the end of a fixed term lease unless 
expressly authorised by the lease, usually results in the creation of a 
new tenancy, even if no new written agreement is executed. The 
situation is different under this legislation.

(vi)	Under the general law there is no legal objection to a provision in a 
lease that the tenant will be liable to pay a specified reasonable rate 
of interest on overdue rent, from the due date to the actual date of 
payment. It is important that such an extra liability should be an 
estimate of the lessor's actual loss by reason of the default in 
payment, and should not be extortionate in amount or penal in 
nature. Another method which is occasionally used is to provide for 
a specified rent eg. $ 80.00 per week and that on punctual payment 
on or before the due date for payment a lesser amount eg. $ 75.00 
per week will be accepted in full satisfaction of the tenant's 
obligation for rent. Premium rent terms ie. reduction of rent or 
grant of a rebate or refund of rent on punctual payment of rent is 
covered by s. 43. That provision has the effect that when a lower 
rent is specified the rent becomes that lower rent. Accordingly such 
provisions should not be used in residential tenancy agreements. 
Penalty rent terms are covered by s. 42 and are void. Professor 
Lang suggests43 however that there is no serious legal objection to 
a provision in a residential tenancy agreement such as:-

	"The tenant agrees to pay to the landlord compensation for loss of 
rent on any overdue rent payment at the rate of 	per cent 
calculated from the due date for payment to the date when the rent is 
actually paid."

	That term might not infringe s. 42 and if it does it will indicate the 
parties consensus which will have some persuasive effect on the 
Tribunal in making its order for compensation.

(vii)	Under the general law there has been no objection to the payment of 
a premium such as a lump sum for the grant of a lease. A 
premium is prohibited in respect of a residential tenancy agreement 
under s. 37 of the Residential Tenancies Act. When a residential 
tenancy agreement is entered into a person is prohibited from 
requiring or receiving from the tenant any amount of money other 
than the rent, rental bond or such other fees or other amounts as 
may be prescribed.

(viii)	The time and manner of payment depend on the lease provisions. 
Those may provide at what intervals rent is payable and whether 
rent should be paid in advance or in arrears. Section 18 of the Act 
provides that rent is payable on or before the day specified in the 
residential tenancy agreement. Under the prescribed forms of 
residential tenancy agreement rent is payable in advance at regular 
weekly or month periods. Section 38 limits the amount of rent 
which may be required to be paid in advance to:-

*	two weeks' rent in advance if the weekly rent does not 
	exceed $ 300.00.

*	one months' rent in advance if the weekly rent exceeds 
	$ 300.00.

(ix)	Generally rent is payable in cash, which is legal tender, unless the 
parties agree on some other method of payment eg. by cheque or 
bank transfer. When payment by cheque is permitted it is subject to 
clearance of the cheque on presentation. Section 39 provides that a 
person shall not require a post-dated cheque or other negotiable 
instrument in payment of rent under a residential tenancy 
agreement. That does not prohibit payment of rent by cheque or the 
tenant offering to pay by post-dated cheques provided the the 
landlord does not require that form of payment.

(x)	When the lease contains an express obligation to pay rent but the 
place of payment is not specified the lessee is obliged to seek out 
the lessor and tender the payment of rent. That is subject to any 
contrary agreement or course of dealing between the parties. When 
there is a managing agent the lease usually requires payment to be 
made to the agent at its office. When rent is sent by post it is 
usually sent a the tenant's risk that it reaches the lessor or the 
managing agent at the required time or at all.

(xi)	Under the general law the landlord is not required to provide the 
tenant with a receipt for rent paid. A licensed real estate agent on 
the other hand is required to issue a receipt form the trust receipt 
book "immediately" upon receipt by him of money from and on 
behalf of any person44. The particulars required to be kept by real 
estate agents probably satisfies the requirements of s. 40(3) of the 
Act which specifies the particulars required on receipts given by 
any person including by estate agents. The Act45 also requires the 
landlord or his agent to keep a record showing the rent received 
under a residential tenancy agreement. That record showing the rent 
received and companies of all rent receipts should be kept for a 
period of not less than 12 months following the receipt of the rent. 
Estate agents must comply with both the Residential Tenancies Act 
and Auctioneers and Agents Act whose requirements as to records 
are not identical.


(b)	Variation of Rent.

The rent payable under a residential tenancy agreement that creates a tenancy 
for a fixed term (eg. for six months or 12 months) cannot be increased 
during the currency of that lease term, unless the tenancy agreement itself 
provides that rent may be increased during the term, and the amount of the 
increase or method of calculating the increase is set out in the agreement46. 
It appears that for fixed term tenancy agreements increase of rent may be 
provided in several ways:-

(i)	There may be a fixed term tenancy for 12 months the rent being 
specified as $ 100.00 per week for the first six months and 
$ 110.00 per week for the second six months.

(ii)	The residential tenancy agreement may provide that the rent 
specified in the agreement shall be adjusted at specified dates in 
accordance with the increase in the Consumer Price Index (All 
Groups) for Sydney since the commencement of the residential 
tenancy agreement.

However it appears that even such increases which are expressly agreed 
upon in the residential tenancy agreement and are specified in that agreement 
are subject to the requirement that before an increase becomes effective the 
landlord must give a prior notice of increase in accordance with s. 45(1) ie. 
60 days notice. This renders rent increases according to the CPI increases 
during a fixed term tenancy impracticable because of the delay in the 
publication of the new index number each quarter and the need to give the 
tenant at least 60 days' notice prior to the increase.

Under s. 46 the tenant would also be entitled to apply to the Tribunal for an 
order that the rent increase is excessive notwithstanding that it is an agreed 
increase which is expressly specified in the residential tenancy agreement.

For residential tenancy agreements otherwise than for fixed terms the rent 
cannot be increased except by not less than 60 days notice in writing given 
to the tenant specifying the amount of the increased rent and the day from 
which the rent is payable47. This applies to residential tenancy agreements 
such as short term periodical weekly or monthly tenancies which are not for 
a fixed term  It also applies to residential tenancy agreements after the fixed 
term has come to an end ie. during the holding over period. 

With regard to increases of rent during a holding over period, there appears 
to be no prohibition on a landlord from serving on the tenant a notice in 
accordance with s. 45(2), more than 60 days before the end of the fixed 
term, indicating the increased rent commencing from the time of holding 
over.

There is no statutory limitation on the frequency of rent variations. The 
practical limitations however are that no increases can occur during a fixed 
term lease unless authorised by an express lease provision, at least 60 days' 
notice must be given of any increase and the excessive rent provisions.


(c)	Written Notice of Rent Increase.

The requirement is for "notice in writing" given to the tenant, specifying the 
amount of the increased rent and the day from which the increase is 
payable48. The notice can be given by the landlord or his duly authorised 
agent. As there is no prescribed form of notice Professor Lang49 suggests 
that the following simple notice would suffice:-

"Mr John Brown,
2/25 Smith Street,
Parramatta.

Dear Sir,

I wish to advise you that on and from Monday, 15 July 1990, the 
rent of the residential premises occupied by at Flat 2, 25 Smith 
Street, Parramatta , will be increased to $ 130.00 per week.

Yours faithfully,
[Landlord or landlord's agent]."

It has been held50 that a notice purporting to give 60 days notice of increase 
"from the first week in April" to $ 230.00 per week was held to be 
ineffective because it failed to specify "the day from which the increased 
rent is payable".

The giving of notice to a tenant is covered in s. 130. Although sending 
the notice by post will suffice, including to the tenants' usual place of 
business or employment51 it is prudent to deliver it in accordance with s. 
130(1)(a) or (b). It is important to allow for the time it takes to effect service 
to ensure that at least 60 days' notice is given. Also to be noted is that 60 
days does not equate to two calendar months. It seems that if an invalid 
notice is given requiring a second notice the second notice must allow a full 
60 days and no part of the period elapsed under the previous notice can 
count for the second notice.52

After an effective notice has been given the parties have several 
alternatives:-

(i)	Within 30 days after being given the notice the tenant may apply to 
the Tribunal for an order declaring that the rent increase is 
excessive;53

(ii)	The tenant may apply to the Tribunal for an interim order 
suspending the increase until such time as the application under s. 
46 is finally determined;54

(iii)	The tenant may challenge the validity of the notice in the course of 
the hearing of an application under s. 46;

(iv)	The parties may negotiate and reach agreement as to some other 
amount as to the rent. The legislation does not preclude a 
consensual arrangement relating to rent being implemented either by 
an order of the Tribunal when disposing of the application under s. 
46 or by the parities entering into a new residential tenancy 
agreement;

(v)	Withdrawal of the notice by the landlord or the landlord's agent55. 
The following would suffice as a notice withdrawing a notice of 
increase addressed to the tenant: "Please note that the notice dated 
	informing you of an increase of rent to $	 is hereby 
withdrawn" signed by the landlord or the landlord's agent.


(d)	Excessive Rent.

The legislation enables tenants to apply to the Tribunal for an order 
declaring that a rent increase is excessive, within 30 days after being given 
notice of the rent increase56. There is no provision entitling tenants to object 
to the rent agreed on at the commencement of the tenancy being excessive.

If the landlord reduces or withdraws any goods, services or facilities 
provided with the premises, the tenant may at any time after such reduction 
or withdrawal, without there being any express time limit, apply to the 
Tribunal for an order declaring that the rent payable under the residential 
tenancy agreement is excessive.57

The Act58 sets out the criteria to be applied including:-

*	Market level of rents for comparable premises.

*	Value of the premises.

*	Amount of outgoings borne by the landlord.

*	Cost of services provided by the landlord.

*	Value and nature of any fittings, appliances, or other goods, 
	services or facilities provided by the landlord.

*	The accommodation, amenities and state of repair and general 
	condition of the premises.

*	Any work done to the premises by or on behalf of the tenant to 
	which the landlord has consented.

*	Any other relevant matters.

The Tribunal cannot determine that a rent increase is excessive and then 
order that the rent shall not exceed an amount specified by the Tribunal 
unless it determines what the rent should be on the basis of the criteria 
specified in s. 48. It is also suggested59 that the Tribunal cannot actually 
reduce the rent and can only disallow the whole or any part of the proposed 
increase.

It would appear that particularly relevant would be the evidence of experts 
ie. real estate agents and valuers, to give evidence relating to the market 
level of rents. A practical deficiency of the excessive rent provisions is that 
the cost of an application to the tenant may outweigh the potential 
advantages, except in the case of a sizable rent increase.


6.	The Parties Rights and Obligations.

(a)	Availability of Premises.

The landlord should ensure that the premises are available for occupation by 
the tenant with vacant possession on the day on which the tenant is entitled 
to occupation under the residential tenancy agreement60. There should be no 
legal impediment to the tenant's occupation of the premises as a residence 
throughout the tenancy.61


(b)	Quiet Enjoyment and Use of Premises.

The tenant is entitled to quiet enjoyment of residential premises without 
interruption by or on behalf of the landlord or by any person with a superior 
title to the landlord62.However tenants should use the premises for 
legitimate residential occupation and not for illegal purposes.63


(c)	Access by Landlord.

A tenant is entitled under the general law to exclusive possession of the 
residential premises uninterrupted by the landlord. The landlord has no right 
of access to the premises unless authorised under the lease or by legislation. 
Under this legislation the landlord is not entitled to have access to the 
premises, for inspection, repair, or to show it to prospective purchasers, 
mortgagees, or tenants, otherwise outlined in s. 24.


(d)	Cleanliness and Repair.

At the commencement of a residential tenancy agreement the landlord is 
obliged to provide the premises in a reasonable state of cleanliness, fit for 
habitation by the tenant and in a reasonable state of repair. That would 
enable tenants to seek relief when there is some disagreement between the 
landlord and the tenant in the condition report relating to the condition and 
state of repair of the premises which bears on fitness for habitation or 
reasonable state of repair at the commencement of the tenant's occupation of 
the premises64.

Throughout the duration of the residential tenancy agreement the landlord is 
required to maintain the premises in a reasonable state of repair, having 
regard to the age of the premises, the rent payable for and the prospective 
life of the premises.

During the continuance of a residential tenancy agreement the tenant should 
keep the premises in a reasonable state of cleanliness. The tenant is 
responsible for intentional or negligent damage to property by the tenant and 
by persons for whose conduct the tenant is responsible65.


(e)	Urgent Repairs.

Section 28(2) lists a number of "urgent repairs":-

(a)	a burst water service;

(b)	a blocked or broken lavatory system;

(c)	a serious roof leak;

(d)	a gas leak;

(e)	a dangerous electrical fault;

(f)	flooding or serious flood damage;

(g)	serious storm or fire damage;

(h)	a failure or breakdown of the gas, electricity or water supply to the 
residential premises;

(i)	a failure or breakdown of any essential service on the residential 
premises for hot water, cooking, heating or laundering;

(j)	any fault or damage that causes the residential premises to be unsafe 
or insecure;

(k)	any other prescribed damage.

The provisions relating to urgent repairs apply when the landlord is required 
to maintain the premises in a reasonable state of repair and not when the 
disrepair arose as a result of a breach of the tenancy agreement66 or when 
the the tenant is responsible for the damage67.

The tenant should give the landlord (or make a reasonable attempt to give) 
notice of the state of disrepair and a reasonable opportunity to repair. As to 
what is reasonable is not specified by the Act but it would depend on 
matters such as the nature, magnitude and urgency of the repair. If the 
landlord has failed to repair in accordance with that "reasonable 
opportunity" the tenant can have the repairs carried out, where appropriate 
by licensed or otherwise properly qualified person. If the landlord has 
nominated in the residential tenancy agreement certain persons to carry out 
particular kinds of repair, the tenant should make a reasonable attempt to 
arrange that the repairs be carried out by that person.68The tenant is then 
required to give (or make a reasonable attempt to give) to the landlord, as 
soon as practicable after completion of the repairs, a written notice 
specifying details of the repairs, their cost, and receipts or copies of receipts 
for the costs paid by the tenant. If that is observed by the tenant, the 
landlord is obliged, within 14 days after receiving the written notice from 
the tenant, to reimburse the tenant "for any reasonable costs (up to but not 
exceeding ... $ 500.00 ...)" incurred by the tenant.69That requires the 
tenant, in addition to the other matters outlined, to establish that the costs of 
repair were reasonable, as the landlord's liability is limited to what is 
reasonable even if the tenant has paid more.

Section 28 is very useful for tenants when there is an unco-operative 
landlord or managing agent. When the property is managed by an efficient 
agent, s. 28 should not cause difficulties, as the agent should urgently 
inspect the premises after the problem has been reported by the tenant. In 
most situations, where the cause of the disrepair is not the tenant's fault, the 
urgent repair should be carried out rapidly by tradesmen instructed by the 
agent, not only for the convenience of the tenant, but in the interests of the 
landlord and to prevent further damage to the premises or to other property 
or persons.

If there is any dispute about the cause of the state of disrepair, the matter can 
be determined by the Tribunal on the application of either party, with 
consequential orders.70


(f)	Alterations and Additions.

A tenant should not affix any fixture or make any renovation, alteration or 
addition to the residential premises, unless the residential tenancy agreement 
permits it or with the landlord's consent. The tenant is prohibited from 
removing any fixture that he or she affixed to the premises (presumably 
with or without the landlord's consent), unless the residential tenancy 
agreement permits it or the landlord consents in writing.71


(g)	Locks and Security Devices.

Section 29 provides the guidelines in this area. The landlord has the primary 
obligation to provide and to maintain such locks or other security devices as 
are necessary to ensure that the residential premises are reasonably secure. 
As to what locks or security devices are necessary, beyond ordinary locks 
and window latches, generally or in particular areas, may be determined by 
the Tribunal if brought before it on the application of either party72. Neither 
the landlord nor the tenant may alter, remove or add any lock or other 
security device except with reasonable excuse or with the consent of the 
other party.73


(h)	Changes of Landlord or Tenant.

Tenants may assign their interest under residential tenancy agreements, but 
only with the landlord's prior consent74. Under general law an unauthorised 
assignment nevertheless vests the tenancy in the assignee. That is not likely 
to be the case under the Residential Tenancies Act as it is necessary for the 
parties to have entered into a residential tenancy agreement. Procedurally the 
assignment of a residential tenancy agreement probably requires a deed75 
although it is possible that writing may suffice.

It would seem that there is very little merit in the assignment of a residential 
tenancy agreement except when it is for a relatively long term or the 
assignment is to an existing occupant. If the tenant has died or ceased to 
occupy the residential premises a person occupying the premises is entitled 
to apply to the Tribunal to be recognised as a tenant under the residential 
tenancy agreement.76

The landlord can assign his interest in the property voluntarily ie. by sale or 
gift, or involuntarily, ie. by death or bankruptcy.77

Tenants can sublet the residential premises, but only with the landlord's 
prior consent.78

The landlord and a person who succeeds another person as the landlord is 
obliged to give written notice of certain names and addresses, as outlined in 
s. 32. That applies at or before entering into a residential tenancy agreement 
and also within 14 days after a person becomes the landlord or after the 
information relating to the current landlord changes.


(i)	Abandonment.

A residential tenancy agreement is terminated if the tenant abandons the 
residential premises79. There is no need to obtain an order from the Tribunal 
to enable the landlord to enter the premises or recover possession and the 
landlord is entitled to enter into another residential tenancy agreement in 
respect of the premises. The landlord can apply to the Tribunal where there 
is any doubt that the premises have been abandoned for an order declaring 
that the premises were abandoned and specifying the date when they were 
abandoned.80

The landlord may also apply to the Tribunal for an order authorising the 
removal, destruction, disposal or sale of abandoned goods81. The Tribunal 
can impose precautions protecting the tenant eg. requiring notice to be given 
to the former tenant, the manner of sale and dealing with the proceeds of the 
sale.


7.	Termination of Residential Tenancy Agreements.

(a)	Generally.

"Part 5 of the Residential Tenancies Act covers the termination of residential 
tenancy agreements and the recovery of possession of residential premises. 
It is the most complex part of the legislation, Its application by the Tribunal 
will give rise to difficult questions of fact, law and exercise of discretion in 
some applications for termination."82

There are several differences between the concepts and the terminology 
relating to the termination of a tenancy under the general law and under this 
legislation:-

*	Under the general law a tenancy for a fixed term can only be 
terminated during the continuance of that term only if the lease 
contains a power to do so. Termination for breach of lease 
covenants constitutes a forfeiture and attracts the statutory power of 
the Supreme Court to relieve against forfeiture. Since termination 
for breach constitutes a forfeiture notice of breach under s. 129 of 
the Conveyancing Act, 1919. The termination of the lease has the 
consequence of bringing the lease to an end without any Court 
order, on the basis that the lease term will be restored if the Court 
grants relief against forfeiture. 

	By contrast there is provision in the Residential Tenancies Act in 
certain circumstances, including for breach of a term of the 
agreement83, to terminate a residential tenancy agreement during the 
continuance of its fixed term. However, termination is effected not 
by the unilateral act of the landlord, but by the Tribunal's order. 
The landlord only activates the Tribunal by giving a notice of 
termination (except under ss. 68, 69) and then by making an 
application to the Tribunal for an order for termination. The power 
to terminate the agreement is supplied by the legislation and there is 
no need for any power to do so under the agreement. Even if the 
termination of a residential tenancy agreement for breach constitutes 
a forfeiture, it is fairly clear that there is no need to give notice of 
breach of covenant under s. 129 of the Conveyancing Act, 1919.

*	With respect to periodical tenancies, under the general law a 
periodical tenancy is terminated by notice to quit (by the landlord) 
or by notice of intention to quit (by the tenant). A notice to quit 
operates to terminate the tenancy and once it has been validly given 
it cannot be cancelled or withdrawn, even before its expiry and with 
the consent of the parties. The consequence of a tenant continuing 
to remain in occupation and paying rent after having received a 
valid notice to quit, with the landlord's consent, is to create a new 
tenancy.

	Under the Residential Tenancies Act the concept of notice to quit 
does not exist and the correct terminology is notice of termination 
of the residential tenancy agreement. As in the case of forfeiture for 
breach, this notice is merely a notice by the landlord (or by the 
tenant, s. 59(2)), which in the case of the landlord's notice has no 
conclusive legal effect until either the tenant has delivered up vacant 
possession to the landlord on or after the day specified in the notice 
or the Tribunal has made an order terminating the residential 
tenancy agreement84. The only adverse consequence for tenants is 
on failure to comply with the Tribunal's order85 for possession, but 
not non mere failure to vacate in accordance with a notice of 
termination served by the landlord. The effectiveness or 
ineffectiveness of a notice of termination is strictly not relevant to 
the legal termination of the residential tenancy agreement, but 
merely as the basis of an application for an order by the Tribunal86. 
Hence, there is no reason why a landlord should not be able to 
withdraw a notice of termination of the residential tenancy 
agreement, either during the period of the notice or subsequently, 
but before the tenant has acted on the notice by vacating the 
premises or changing her or his position by relying on the notice.

*	The critical jurisdictional question, in proceedings for possession 
under the general law, is that the parties have the relationship of 
landlord and tenant, or at least that the claimant is entitled to 
possession. In proceedings for the termination of residential 
tenancy agreements, the main jurisdictional question is whether the 
parties have entered into a residential tenancy agreement covered by 
the legislation.


(b)	Circumstances in which Residential Tenancy Agreements 
Terminate.

Section 53 specifies the various circumstances in which a residential tenancy 
agreement terminates:-

(i)	When the tenant has vacated the residential premises. The 
tenant may comply with a notice of termination given by the 
landlord or tenant and vacate. The agreement is also terminated if 
the tenant abandons the premises ie. vacates during the continuance 
of the agreement without the landlord's knowledge or consent. The 
act of abandonment itself effects a termination of the agreement 
without the need for any order of the Tribunal. If there is some 
doubt whether the premises have been abandoned, the landlord may 
apply for an order declaring that the premises were abandoned by 
the tenant on a day specified by the Tribunal. The agreement is also 
terminated if the tenant delivers up vacant possession with the prior 
consent of the landlord. This would constitute a surrender of the 
tenancy under general law. Finally the tenancy may be terminated 
by disclaimer, that includes repudiation of the agreement by the 
tenant which is accepted by the landlord.

(ii)	An order of the Tribunal terminating the agreement. Section 
53(a)(ii) and (b) involves an order of the Tribunal for termination of 
the residential tenancy agreement, whether or not that requires a 
prior notice of termination.

(iii)	When the tenant's interest in the tenancy has ceased. 
Section 53 specifies four grounds. If a person having superior title 
to that of the landlord,eg. a head landlord, becomes entitled to 
possession of the residential premises. If a person succeeding to the 
title of the landlord, eg a purchaser, becomes entitled to possession 
of the residential premises to the exclusion of the tenant. If a 
mortgagee becomes entitled to possession of the premises. The 
final ground, merger, is where the interests of landlord and tenant 
become vested in the same person eg. when the freehold title is 
vested in the tenant by sale, gift or inheritance.


(c)	Termination by Notice.

(i)	Circumstances When Notice is Required to Terminate a Residential 
Tenancy Agreement.

*	Sale of the premises.

	When the landlord has entered into a contract for sale of the 
residential premises under which the landlord is required to give 
vacant possession he is entitled to give a notice of termination87. 
However notice can only be given after the fixed term of the 
residential tenancy agreement has come to an end. The requirement 
is for a notice of termination to be given only after the landlord has 
entered into the contract for sale, specifying a day not earlier than 
30 days after the day on which the notice is given as the day on 
which vacant possession should be delivered up to the landlord. If 
the landlord intends to sell the the premises with vacant possession, 
the residential tenancy agreement may be terminated in two 
situations. Section 56 is relevant only when the agreement is a 
periodic tenancy and the sale provides the basis for a 30 day notice 
of termination, instead of the 60 day notice required under s. 58. If 
the fixed term of the residential tenancy agreement is still continuing 
notice may be given under s. 60 to terminate the agreement at the 
end of the fixed term ie. where a 14 day notice can be given 
expiring no earlier than the last day of the fixed term.

*	Breach of the residential tenancy agreement.

	Either the landlord or the tenant may give notice of termination on 
the ground that the other party has breached a term of the 
agreement88. The notice should specify a day, not being earlier than 
14 days after the day on which the notice is given, as the day on 
which vacant possession is to be or will be delivered to the 
landlord. Such a notice may be given during or after the end of the 
fixed term of the residential tenancy agreement. When the notice is 
given on the ground that the tenant has failed to pay rent, notice of 
termination should not be given unless the rent has remained unpaid 
in breach of the agreement for not less than 14 days before the 
notice is given.89

*	Notice without any ground.

	There are three situations in which notice of termination can be 
given without any ground for the termination:-

1.	The landlord after the fixed term of the agreement has 
ended may give notice of termination specifying a day not 
earlier than 60 days after the day on which the notice is 
given as the day on which vacant possession is to be 
delivered up to the landlord.90

2.	The tenant after the fixed term of the agreement has ended 
may give notice of termination specifying a day not earlier 
than 21 days after the day on which the notice is given as 
the day on which vacant possession will be delivered up to 
the landlord. The notice may specify an earlier day if the 
landlord has consented to that.91

3.	The landlord or the tenant may give notice of 
termination during the fixed term of the residential tenancy 
agreement specifying a day not being earlier than 14 days 
after the day on which the notice is given or the day when 
the fixed term ends, whichever is the later, as the day on 
which vacant possession of the premises is to be or will be 
delivered up.92 That enables the agreement to be terminated 
at (or shortly after) the end of the fixed term of the 
agreement, without requiring a 60 day notice by the 
landlord or a 21 day notice by the tenant during holding 
over as a periodic tenancy.

*	Where the residential tenancy agreement is frustrated.

	The landlord or the tenant can give immediate notice of termination 
ie. no period of notice is required, when the residential premises 
are, otherwise than as a result of a breach of the the residential 
tenancy agreement, destroyed, rendered wholly or partly 
uninhabitable, cease to be lawfully usable for the purpose of a 
residence or are appropriated or acquired by any authority by 
compulsory process. These situations are collectively referred to as 
frustration of the agreement.93


(ii)	Formal Requirements of Notice of Termination.

The formal requirements for notices of termination are specified in s. 63. 
These requirements are not identical with the rules relating to notices to quit 
under the general law. Under the Residential Tenancies Act a notice of 
termination may be informal, there being no prescribed, it is suggested94 
that prudence requires some minimum precautions to be exercised when 
preparing such a notice:-

*	The notice must be written, which includes printed, typed and 
hand written notices95.

*	It should be signed by the landlord or by the landlord's agent96, if 
given by the landlord, and note the definition of "landlord's agent" 
in s. 3(1), which includes the managing agent. If the agent is a 
corporation, signature by the licensee or other employee for and on 
its behalf should suffice. Unlike notices to quit under the general 
law, the landlord's solicitor has no authority to sign a notice of 
termination under this Act. A notice by the tenant should be signed 
by the tenant or by an agent of the tenant who has been appointed 
under s. 31.

*	The notice should identify the residential premises97. It should be 
noted that the requirement is not to describe the premises or to 
describe them accurately, although it would be prudent to refer tot 
he premises as described in the residential tenancy agreement.

*	Specify the day on which vacant possession is to be (or will be) 
delivered up to the landlord. Under the general law a notice to quit 
is effective without specifying an actual date for the expiry of the 
notice, if it indicates to the recipient, with sufficient clarity when it 
is intended to operate. That could be achieved by a formula, such 
as: "At the expiration of ... days after the date of service of this 
notice, excluding the date of service." Professor Lang98 takes the 
view that until the matter is determined by the Supreme Court, it 
should be assumed that s. 63(1)(d) and (2)(d), in requiring a notice 
of termination to specify the day on which on which vacant 
possession should be provided, diverges from the common law 
rules and that a specific date is required to be named in the notice. 
That construction is reinforced by other provisions of the 
legislation, such as ss. 56(2), 57(2), 58(2) and 64(1). The same 
point, with reference to s. 45 (ie. increasing rent) was considered 
earlier.

*	Specify the ground on which the notice is given99, ie. clearly 
indicate the basis for giving the notice and, it is suggested, the 
section of the legislation, although that is probably not strictly 
necessary. For example: "On the ground that I have entered into a 
contract for the sale of the property under which I am required to 
give vacant possession of the premises occupied by you (s. 56 
Residential Tenancies Act, 1987)."

*	Give particulars of the ground on which the notice is given, 
where applicable. Illustrations of notices of termination are given 
later. However taking the example above of a notice on the ground 
contained in s. 56(1), the particulars might be expressed as follows: 
"Contracts for the sale of property [address] of which your flat is 
part, to [name of purchaser] have been entered into on [date]." 
There is a reference in the requirement for particulars that these are 
only necessary when applicable, because particulars are 
inappropriate and unnecessary for some ground, e.g. ss. 58, 59, 
60. The specification of the period and the basis of the notice 
indicate its legal basis in those circumstances, without the need for 
repetition under the guise of particulars.

*	Include in a notice by a landlord to a tenant a statement indicating 
that information regarding tenancy rights and obligations is 
contained in the residential tenancy agreement.100

At common law one of several co-owners could give an effective notice to 
quit. The requirement under this legislation is for the landlord to give the 
notice and for the landlord or the landlord's agent to sign it. The the 
conservative and prudent approach that requires a notice to be given by or 
on behalf of all joint owners as landlords and signed by all of them. Failure 
to do so might be waived by the Tribunal under s. 66 but would be 
considered by Professor Lang101 to be a defect in the notice of termination.

A notice of termination on behalf of a landlord company can be signed by 
the company under its common seal. However, as in the case of notices to 
quit, that is not necessary and execution by the company through its agent, 
eg. a director or other officer of the company, should suffice.102

Regulation 29 prescribes various modes of service of notices of termination 
or residential tenancy agreements. However it is strongly suggested that 
personal service be relied upon rather than post. The modes of service are 
sufficiently varied to enable prompt service to be effected in most situations. 
Service by post requires extension of the period, to allow for delivery in the 
ordinary course of post, and proof of properly addressing, pre-paying and 
posting the letter.103

Regulation 29 does not make it clear whether time runs from the sending or 
the receipt of the notice when postal service is utilised. Section 76 of the 
Interpretation Act, 1987 resolves this by providing that service will "be 
taken to have been effected at the time when the letter would have been 
delivered in the ordinary course of post". The significance of this is that 
adequate time needs to be allowed in the notice for receipt of the notice, 
when it is sent by mail.

When calculating the period of the notice of termination does it include or 
exclude the day of giving the notice and the day of expiry of the notice? 
Section 36(1) of the Interpretation Act requires that the day when the notice 
is given is excluded from the computation of the period. For example, a 
notice of termination given on 1st July, 1990, which should not specify a 
day earlier than 14 days after the day on which the notice is given, must 
disregard 1st July, 1990 from the computation of the period. However, is 
the earliest day in such a notice the 15th July or 16th July, 1990? Professor 
Lang104 favours the view that the 15th July would suffice as that is 14 days 
after the 1st July, without counting the 1st July.


(iii)	Forms of Notice of Termination.

The following are suggested forms105 of notice of termination for some of 
the grounds contained in Part 5, Division 2 of the Act.

A.	Notice of Termination.

	To: A. B. [tenant]

	TAKE NOTICE THAT [name of landlord] gives you notice of 
termination of the residential tenancy agreement dated ... between 
us relating to premises [address], on the ground of a breach of the 
residential tenancy agreement by you, in accordance with s. 57 of 
the Residential Tenancies Act, 1987. You are required to deliver up 
vacant possession of the residential premises at [address] to me on 
[date, which should comply with s. 57(2)]. The breach of the 
residential tenancy agreement relied on for the purpose of this 
notice is that the rent of $ 125.00 per week has remained unpaid on 
and from [date], a period exceeding 14 days before the date of 
giving this notice [to comply with s. 57(3)].

	FURTHER TAKE NOTICE that information regarding tenancy 
rights and obligations is contained in the residential tenancy 
agreement.

	Dated ...

						
	_________________________________
							
	Landlord [or Landlord's agent]

B.	Notice of Termination (without any ground specified).

	To: A. B. [tenant]

	TAKE NOTICE THAT [name of landlord] gives you notice of 
termination of the residential tenancy agreement dated ... between 
us relating to premises [address], in accordance with section 58 of 
the Residential Tenancies Act, 1987. You are required to deliver up 
vacant possession of the residential premises [address] to me on 
[date, in accordance with s. 58(2)].

	FURTHER TAKE NOTICE that information regarding tenancy 
rights and obligations is contained in the residential tenancy 
agreement.

	Dated ...

						
	_________________________________
							
	Landlord [or Landlord's agent]


(iv)	Other Aspects of Notices of Termination.

In respect of a periodic tenancy, provided that the notice is otherwise in 
proper form, it is not rendered ineffective because the day specified for 
delivering up possession of the premises is not the last day of a period of 
the tenancy or any other day on which the tenancy would have ended.106

Although the Tribunal is required to be satisfied that an effective notice of 
termination was given before making an order terminating a residential 
tenancy agreement, the rigour of that provision is cut down by s. 66. 
Section 66 enables the Tribunal to make an order terminating a residential 
tenancy agreement even when there is a defect in the notice of termination, if 
the Tribunal thinks it appropriate to do so in the special circumstances of the 
case. Although s. 66 confers on the Tribunal liberal discretion to dispense 
with formal defects, it is not an uncontrolled discretion and its exercise 
should be justified.

Termination by landlords under ss. 68 and 69 and by tenants under s. 70 
does not require the giving of a notice of termination, although a notice is 
not precluded under these provisions107. The prospect of securing order for 
termination under these sections is considered later, where it is suggested 
that order for termination based on these provisions, instead of relying on s. 
64, should require the proof of circumstances indicating serious breaches of 
the agreement and some justified urgency in obtaining an order.


(v)	Orders for Termination of Residential Tenancy Agreements and for 
Possession.

In this regard Professor Lang comments:-

	"This author considers the terminology and drafting of Pt. 5, Div. 3 
of the Act (ss. 64-70) as the least satisfactory in what is otherwise 
reasonably meaningful legislation. Some ambiguities or difficulties 
will require careful consideration by the Tribunal and by the 
Supreme Court. The following are some observations which may 
help to elucidate these difficulties and issues."108

Section 68 provides that the Tribunal may terminate a residential tenancy 
agreement where the tenant causes serious damage or injury to the premises, 
the landlord or agent or any person in occupation of adjacent premises. It 
appears that serious should be considered in the context of the nature of the 
premises and the cost and time required for rectification. Threats and 
objectionable conduct towards property or person unconnected with the 
landlord's property are outside the ordinary scope of residential tenancy 
laws. There are criminal and civil sanctions which are available and such 
conduct need not attract remedies in the Tribunal.

The Tribunal may terminate a residential tenancy agreement where the 
landlord would otherwise suffer undue hardship by virtue of s. 69. This 
appears to be a concession to the landlord, which should only be made by 
the Tribunal in rare and deserving situations. A price the landlord may have 
to pay for this concession is compensation to the tenant for loss of the 
tenancy.109

Section 70 is the only entitlement of a tenant to obtain an order for 
termination of the residential tenancy agreement for breach of its terms by 
the landlord. It will really only be appropriate in practical terms during the 
fixed term of the agreement, as termination under s. 59 is more simple and 
appropriate when there is a periodical tenancy, even if the landlord is in 
breach. It is suggested110 that the Tribunal should not act to readily under s. 
70 when the tenant should (or could) have first drawn the landlord's 
attention to the breach and made an application under s. 16 for suitable 
orders to compel the landlord to observe the terms of the agreement, 
whether by act or omission.

The Tribunal has the power to suspend the operation of an order for 
possession of residential premises, unless they are part of the landlord's 
principal place of residence, for a specified period, if the Tribunal is 
satisfied that this is desirable, having regard to the relative hardship likely to 
be caused to the landlord and the tenant by the suspension.111


8.	The Tribunal.

(a)	Generally.

The Act requires the appointment of a Chairperson of the Residential 
Tenancies Tribunal. The Tribunal has full-time and part-time members. The 
administrative functions of the Tribunal are performed by its staff, headed 
by the Registrar and Deputy Registrars.


(b)	Jurisdiction of the Tribunal.

The Tribunal has jurisdiction throughout New South Wales in those matters 
in which jurisdiction is conferred on it by the Act. But unlike comparable 
legislation, the Tribunal's jurisdiction is not expressly specified in the 
legislation.

The primary limitation to the jurisdiction of the Tribunal is that it has 
jurisdiction with respect to only some residential tenancy agreements and 
not all. The legislation does not apply to certain residential tenancy 
agreements which are listed in s. 6(1) and to certain premises which are 
listed in s. 6(2). In addition the Tribunal may only make orders for the 
payment of money to $ 5,000.00 or such other amount as may be 
prescribed.112 It is not clear whether proceedings may be taken by or 
against a person who is not a party to the residential tenancy agreement, e.g. 
a sub-tenant, supplier of goods or services, or a party causing loss or 
damage to the premises.

Although the Tribunal has been conceived as a specialist Tribunal with 
particular expertise in residential tenancy matters, in order to dispose of 
matters expeditiously and cheaply, it does not possess exclusive jurisdiction 
to hear and determine all matters within its jurisdiction. The Tribunal has 
exclusive jurisdiction, most importantly, to make orders for the termination 
of residential tenancy agreements and for the recovery of possession of 
residential premises. However, remedies are available in other Courts for 
some things eg. compensation for breach or loss, including for loss of rent. 
Consideration would have to be given as to whether the default procedure 
available in civil Courts will be of a major benefit and whether costs will be 
recoverable by the successful party113.

The legal and factual questions dealing with the Tribunal's jurisdiction 
should be raised and decided in the proceedings by the Tribunal. The 
Tribunal has the choice of making that decision or may refer the matter to 
the Supreme Court.114. The party desiring to invoke the jurisdiction of the 
Tribunal has the onus of proving the prerequisites to its jurisdiction, 
including the existence of a residential tenancy agreement which is subject to 
the legislation. That would be discharged on the balance of probabilities, 
which is the civil onus of proof.

The Tribunal would have to be satisfied on the evidence adduced by the 
parties that it has jurisdiction to hear and determine the matter. Conversely, 
the defendant or respondent to proceedings instituted in the Supreme Court, 
District Court or Local Court, may desire to establish that the particular 
Court has has no jurisdiction because the tenancy is subject to the 
Residential Tenancies Act. The Court in question would then have to 
determine that issue as it may not have jurisdiction to hear the matter if the 
contention is correct.

When the parties tenancy or other arrangement relating to occupancy is not 
governed by the Residential Tenancies Act their rights, obligations and 
remedies are governed by the general law and other legislation, as if this 
legislation did not exist. Lessors or licensees of such premises need to 
obtain remedies, including the recovery of possession and for the 
enforcement of lease obligations, in the Courts having jurisdiction and not 
in the Residential Tenancies Tribunal.


(c)	Obligations on Tribunal.

It is suggested that the Tribunal has the following obligations, imposed 
upon it by the general law or statute, in applying the Act:

*	Not to act without jurisdiction and to determine that it has 
jurisdiction.

*	To observe the rules of natural justice.

*	To determine matter according to law.

*	To give reasons for its decisions.

*	To give assistance to unrepresented parties.


(d)	Powers of the Tribunal.

The Tribunal has wide ranging powers to make orders. The general powers 
of the Tribunal to make orders in proceedings are115:-

1.	Orders to restrain action in breach of the residential tenancy 
agreement, even if the remedy is in the nature of an injunction in the 
circumstances in which that remedy would not be available under 
the general law.

2.	Order that require an action in performance of the agreement, even 
if the remedy is in the nature of an order for specific performance in 
the circumstances in which that remedy would not be available 
under the general law.

3.	Orders for the payment of an amount of money, which includes 
claims for rent and liquidated claims for money owing as a debt but 
not exceeding $ 5,000.00 (or such other amount as may be 
prescribed).

4.	Orders to perform work or to take steps to remedy a breach of the 
residential tenancy agreement but not where the performance of that 
work or the taking of those steps may or will exceed $ 5,000.00 (or 
such other amount as may be prescribed).

5.	Orders in respect of disputes under the residential tenancy 
agreement but only after the dispute has been referred to the 
Tenancy Commissioner and on the basis specified in s. 
16(1A)(1B).

6.	Orders for compensation, including for loss of rent, for 
withholding or refusal of consent to the removal of tenant's 
fixtures, and for breach of the residential tenancy agreement but not 
in excess of $ 5,000.00 (or such other amount as may be 
prescribed).

7.	Certain orders relating to rent: see s. 16(2)(e), (f).

8.	Orders for payment of the whole or part of the rental bond to the 
landlord or to the tenant.

9.	Orders for which an application may be made to the Tribunal by 
any person under this legislation or under any other Act: see s. 
85(1).

10.	Interim orders, ie. temporary orders or orders operating for 
temporary periods, until final order are made at the conclusion of 
the proceedings.

11.	Ancillary orders, ie auxillary or subordinate to other orders made 
by the Tribunal, in order to prescribe the mode of or to assist in the 
performance or observance of those orders.

12.	Orders that vary, set aside, stay or suspend the operation of orders 
made by the Tribunal.

In addition to the general powers above the Tribunal has the following 
specific powers to make orders:-

1.	To order that an additional term of the residential tenancy agreement 
is void: s. 10(2).

2.	To modify the terms of a residential tenancy agreement during the 
period of holing over a periodic tenancy: s. 14(2).

3.	To authorise the landlord or any other person to enter the residential 
premises: S. 24(4).

4.	Orders relating to locks, security devices, opening devices or for 
information: s. 29(5).

5.	To be recognised as a tenant and vesting a tenancy in that person: 
ss. 35 (3)(4), 76(3).

6.	That a rent increase or the rent is excessive: ss. 46, 47; and related 
orders: ss. 49-52; including for repayment of an amount equal to 
any rent received unlawfully; s. 52(3).

7.	For termination of a residential tenancy agreement and for 
possession of the residential premises: ss. 64, 65, 68, 69 & 70.

8.	For compensation and occupation fee, if a tenant fails to comply 
with an order for possession: s. 74(2).

9.	That residential premises were abandoned by the tenant: s. 77(1).

10.	Compensation for loss caused to the landlord by the abandonment 
of the premises by the tenant: s. 78(3).

11.	Orders relating to abandoned goods: s. 79(2).

The following are also various procedural orders that the Tribunal may 
make:-

1.	To join persons as parties to the proceedings: ss. 35(3), 88(4).

2.	To amend applications: s. 89.

3.	To consent to the withdrawal of an application: s. 90.

4.	To adjourn the proceedings: s. 91(1).

5.	To stay the proceedings: s. 92(1).

6.	To extend time: s. 99(1).

7.	To give directions relating to the manner or form of the procedure: 
s. 100(1).

8.	To direct the issue of a summons requiring a person to attend as a 
witness to give evidence or to produce documents: s. 101(1).

9.	To set aside a summon issued to a person to attend as a witness to 
give evidence or to produce documents: s. 102.

10.	To refer matter of law to the Supreme Court for decision: s. 106(2).

11.	To dismiss proceedings, including frivolous proceedings: s. 108.

12.	To make orders giving effect to the terms of a settlement acceptable 
to the parties: s. 109(2).

13.	To vary or set aside an order of the Tribunal: s. 110(1).

14.	To make orders or costs: ss. 90(2), 108, 110(4), 113.

15.	To stay or suspend the operation of orders: s. 85(1)(c).

16.	To make ancillary order: s. 85(2)(d).

17.	To make interim orders: s. 85(2)(b).

18.	To direct a person to leave, ie. the premises of the Tribunal when 
that person insults, misbehaves, interrupts or disobeys a direction 
of the Tribunal: s. 116(1).


9.	Applications to the Tribunal.

(a)	Parties to Applications.

The landlord and tenant are obvious parties to any proceedings under the 
Act however the Tribunal may recognise other persons as tenants, perhaps a 
boarder, lodger or subtenant116.

The Tenancy Commissioner for Consumer Affairs may also be involved in 
proceedings before the Tribunal by taking part in proceedings on behalf of a 
tenant (not the landlord?) or intervene in the public interest.

The basic rule is that each party to proceedings before the Tribunal should 
conduct his or her own case and a party can only be represented by another 
person if the Tribunal approves the representation or if the other party is 
represented by the Tenancy Commissioner or by a barrister, solicitor or 
agent for the Commissioner117. An officer of a corporation may represent 
the corporation when it is a party to proceedings and there is no exclusion of 
legally qualified directors or other employees of the corporation (including 
in-house lawyers). The landlord's agent, such as an estate agent having 
management of the property, has an entitlement to represent the landlord in 
proceedings, when that is in the course of carrying out the agent's usual 
functions as such agent.

The Tribunal may allow representation by lawyers, tenancy advocates or 
other persons such as lay persons seeking to act as agents eg. relatives. 
However evidence may have to be given such as the absence of a party 
overseas or dealing with the physical, mental, emotional, language or 
educational disability of a party. It would also be prudent to obtain an 
authority such as:-

To Registrar,
Residential Tenancies Tribunal.

Re: Proceedings between [name] and [name].
Premises: [address].

I, [name] [address] the tenant [or landlord] of the above premises 
have authorised [name] [address] to represent me in proceedings 
before your Tribunal set down for hearing on [date]. I request that 
he [she] be permitted to represent me [because (the basis of the 
application could be set out eg.) due to my lack of formal education 
and comprehension of the law and procedure of the Tribunal, I 
would be unfairly disadvantaged unless permitted to be represented 
at the proceedings].

Dated ...

						
	__________________________
							
	[Signature]

(b)	Form of Application.

The first step before most proceedings will be the seeking of assistance or 
advice by a party to a residential tenancy agreement. This may be from the 
Department of Consumer Affairs, from lawyers, tenant's advisory services, 
legal referral centres, etc. The Department will investigate and attempt to 
resolve complaints. Only if the matter cannot be resolved will an application 
to the Tribunal be required. The application must be in writing, contain 
prescribed particulars and be lodged with the Registrar of the Tribunal. The 
Tribunal is then prohibited from making an order until "it has brought, or 
used its best endeavours to bring, the parties to a settlement acceptable to all 
of them".118

The making of an application to the Tribunal requires the lodgment of a 
written application, containing prescribed particulars, with the Registrar or a 
Deputy Registrar of the Tribunal119. A single form of application is 
published, catering for the various types of matters and orders which the 
Tribunal has jurisdiction and power to make. An application should be 
signed by the landlord or by the landlord's agent in the course of carrying 
out the usual functions as managing agent or by the tenant or by a person 
authorised to act as the tenant's agent under s. 31 or authorised in writing to 
make application on behalf of the tenant120. An application should be 
lodged at or posted to the Tribunals registry or sent to the Tribunal by 
facsimile transmission121 accompanied by the prescribed fee.122

When an application is made for termination of a residential tenancy 
agreement, by the landlord or by the tenant, as far as possible all other order 
which the applicant might properly seek should be included in the 
application. In addition to an order terminating the residential tenancy 
agreement the applicant can seek orders for the payment of money, such as 
rent and arrears of rent,for the rental bond to be paid to a party, for 
occupation fee and for some compensation. If the applicant has failed to 
seek some order which should have been sought there is liberal power to 
amend the application, including during the hearing. However, the 
respondent is entitled to know in advance and to be able to prepare to 
oppose the application, including all the relief sought in it. A late application 
to add orders to an application may enable the the other party to obtain an 
adjournment of the proceedings.

The Chairperson or Registrar is required to fix a time and place for the 
hearing and notify each of the parties. An application is intended to be listed 
for a date within 14 days after the date of lodging the application with the 
Tribunal, for preliminary hearing. This should allow the Tribunal to be 
satisfied regarding several preliminary matter before listing for hearing eg. 
jurisdiction and service. The modes of service of a notice of hearing are set 
in s. 130.

The Registrar has the power and the obligation to issue summonses 
requiring witnesses to give evidence or to produce documents. The Tribunal 
may require witnesses to be examined and cross-examined on oath. The 
Tribunal is not bound by the rules of evidence and may inform itself on any 
matter in such manner as it thinks fit, and should act without regard to 
technicalities or legal forms.


(c)	Costs.

The general rule is that no costs can be allowed to or against any party to 
proceedings before the Tribunal.123 There are four exceptions to this: 
Firstly, if the proceedings are dismissed as being frivolous, vexatious, 
misconceived or lacking in substance124; secondly, when the applicant for a 
variation or setting aside of an order is unsuccessful125; thirdly, when one 
or more of the parties are represented by a barrister or solicitor; and 
fourthly, if the application is withdrawn126.

The Supreme Court has power to make orders for costs when hearing 
appeals against orders of the Tribunal, under its power when dealing with 
appeals.


(d)	Retaliatory Eviction, Remedying Breach and Sale Fallen Through.

Section 65(2) entitles the Tribunal in proceedings for the recovery of 
possession to refuse to make an order terminating the residential tenancy 
agreement and for possession if the Tribunal is satisfied that the person who 
commenced the proceedings was motivated by a determination of the 
Tribunal on an excessive rent.

If the tenant has remedied the breach, when the notice of termination is 
based on s. 57(1), the Tribunal may refuse to make an order terminating the 
agreement or for possession127. That should encourage tenants to remedy 
breaches, including the non-payment of rent, before the hearing of the 
proceedings.

If the notice was given under s. 56(1), the Tribunal may refuse to terminate 
the agreement and to make an order if the sale is not proceeding.128


(e)	Appeal.

There is an appeal to the Supreme Court against any decision of the Tribunal 
with respect to a matter of law decided by the Tribunal, including a matter 
relating to the Tribunal's jurisdiction129.An appeal should be instituted 
within 28 days after the decision of the Tribunal appealed against. An appeal 
should be in accordance with the rules of the Supreme Court. An appeal 
does not operate as a stay but the Tribunal or Supreme court may suspend 
operation of the order appealed against pending determination of the appeal.


(f)	Enforcement.

Orders of the Tribunal, including orders for costs, may be enforced, by 
filing a certified copy of the Tribunal's order and an affidavit in the registry 
of a court having jurisdiction to order the payment of such an amount130. In 
most cases this will be the Local Court.

Several provisions of the legislation create offences rendering a person 
contravening any of them liable to a penalty not exceeding the penalty 
specified in s. 125 and for contravention of ss. 115 or 116 (contempt) to a 
penalty or imprisonment, or both. Some provisions specify the terms of 
residential tenancy agreements and then provide that a breach of those terms 
constitutes an offence. For example, it is a term of residential tenancy 
agreements that the landlord should not interfere with the reasonable peace 
comfort or privacy of the tenant in using the residential premises131. Breach 
of that term will enable the tenant to make an application for orders, 
including to restrain conduct and for compensation132. However, in 
addition, such conduct constitutes a contravention rendering the offender 
liable to a maximum penalty of $ 500.00.133

An order for possession made by the Tribunal is enforced by the issue of a 
warrant by the Chairperson, any member of the Tribunal, the Registrar or a 
Deputy Registrar. That warrant authorises a sheriff's officer to enter the 
premises and take all steps reasonably necessary to enforce the order, by 
giving possession to the person in whose favour the order was made. The 
form of the warrant for enforcement of an order for possession is prescribed 
in Sched. 1 to the Act.






1	From the Second Part of Henry VI by William Shakespeare Act IV 
	Scene II.
2	From p.vii of Preface to Residential Tenancies Law & Practice, 2nd 
	Ed., Law Book Co., 1990.
3	Section 7(1) Residential Tenancies Act
4	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990 [303].
5	Section 6(2) Residential Tenancies Act
6	Section 6(1)(a)-(e) Residential Tenancies Act
7	Section 6(1)(d) Residential Tenancies Act
8	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990 [409].
9	Section 120 Residential Tenancies Act
10	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990 [316].
11	Section 36 Residential Tenancies Act
12	Ibid section 125(1).
13	For examples of acknowledgments see Residential Tenancies Law 
	& Practice by Lang, 2nd Ed., Law Book Co., 1990 pp. 50-51.
14	See Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990 [602].
15	Ibid section 9(1).
16	Ibid section 37.
17	Section 9(2) Landlord and Tenant (Rental Bonds) Act, 1977.
18	Clause 6 Landlord and Tenant (Rental Bonds) Regulation, 1977.
19	Section 12(1) Residential Tenancies Act
20	Ibid section 12(3); Regs. 23, 25A.
21	Item 11 of the Auctioneers and Agents (Remuneration) Regulation, 
	1981.
22	Pursuant to Conveyancing Act, 1919.
23	Section 12(4) Residential Tenancies Act
24	Section 78F Stamp Duties Act, 1920.
25	Section 12(2) Residential Tenancies Act
26	Ibid section 8(4); reg. 22.
27	Reg. 71 of the Auctioneers and Agents Regulation
28	Section 17(1)(b) Residential Tenancies Act
29	Clause 10(b).
30	Section 23B(1) Conveyancing Act
31	Ibid section 127.
32	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990 [613].
33	Ibid.
34	Under section 60 Residential Tenancies Act
35	Ibid section 14(1).
36	Ibid section 14(1)(b).
37	Ibid section 14(2).
38	Ibid section 58(2).
39	Ibid section 59.
40	Ibid section 53(a).
41	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990 [617].
42	Sections 9(3), 10(1) Residential Tenancies Act
43	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990 [702].
44	Reg. 55(i) of the Auctioneers and Agents Regulation
45	Section 41 Residential Tenancies Act
46	Ibid section 45(4).
47	Ibid section 45(1).
48	Ibid.
49	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990 [708].
50	Johnston v. Bursill (88/86)
51	Reg. 28(1) Residential Tenancies Regulation.
52	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990 [709].
53	Section 46 Residential Tenancies Act
54	Ibid section 51.
55	Ibid section 45(3).
56	Ibid section 46.
57	Ibid section 47.
58	Ibid section 48.
59	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990 [716].
60	Section 21 Residential Tenancies Act
61	Ibid section 20.
62	Ibid section 22.
63	Ibid section 23.
64	Ibid section 25.
65	Ibid section 26.
66	Ibid section 25(1)(b).
67	Ibid section 26(1)(c).
68	Ibid section 28(c1).
69	Ibid section 28(1).
70	For example ibid sections 16(2)(c), (e), (f), 85(3)(b).
71	Ibid section 27.
72	Ibid section 16(1).
73	Ibid section 29(1)(b).
74	Ibid section 33.
75	Section 23B(1) Conveyancing Act, 1919.
76	Ibid section 35.
77	See the discussion earlier under the heading "Nature of a Tenants 
	Interest Under a Residential Tenancy Agreement" regarding the 
	tenant's need for protection against a purchaser of property held 	
78	Section 33 Residential Tenancies Act.
79	Ibid section 53.
80	Ibid section 77(1).
81	Ibid section 79(2)(a).
82	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990, p. 97.
83	Sections 57, 61, 68, 69 Residential Tenancies Act.
84	Ibid section 53(a).
85	Ibid section 74(1).
86	Ibid sections 62, 63, 64(3), 66).
87	Ibid section 56(1).
88	Ibid section 57(1).
89	Ibid section 57(3).
90	Ibid section 58.
91	Ibid section 59.
92	Ibid section 60.
93	Ibid section 61.
94	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990, p. 104.
95	Sections 63(1)(a), (2)(a) Residential Tenancies Act.
96	Ibid s. 63(1)(b).
97	Ibid s. 63(1)(c), (2)(c).
98	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990, p. 104.
99	Section 63(1)(e), (2)(e) Residential Tenancies Act.
100	Ibid s. 63(1)(f).
101	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990, p. 105.
102	Section 80(7) Companies Code (N.S.W.) Code.
103	Section 76 Interpretation Act, 1987.
104	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990, p. 107. In the same text see also comments that 
	s.36(2), requiring the last day of a notice not to fall on a Saturday, 
	Sunday or Public or Bank holiday, does not apply to the 
	Residential Tenancies Act.
105	Ibid p. 108-109.
106	Section 62 Residential Tenancies Act.
107	Ibid s. 67.
108	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990, p. 110.
109	Section 69(2)(b) Residential Tenancies Act.
110	Residential Tenancies Law & Practice by Lang, 2nd Ed., Law 
	Book Co., 1990, p. 112.
111	Section 65(1) Residential Tenancies Act.
112	Ibid s. 85(3).
113	Ibid s. 120A should be noted in this regard. If the civil proceedings 
	are defended the Court must consider whether the proceedings 
	could adequately have been enforced by the Tribunal, and if so, 
	order the the plaintiff to pay the defendant's costs in such amount 
	as the Court determines.
114	Section 106(2),(5) Residential Tenancies Act.
115	Ibid ss. 16 & 85.
116	Ibid ss. 35 & 88.
117	Ibid ss. 94(2)(b) & 95.
118	Ibid s. 109(1).
119	Ibid s. 86(1).
120	Ibid regulation 8(2) &(3).
121	Ibid s. 130(3).
122	As at January, 1990 $ 20.00, and $ 10.00 in the case of 
	pensionsers or students, unless Registrar waives the fee under s. 
	86(2).
123	Ibid s. 113.
124	Ibid s. 108.
125	Ibid s. 110.
126	Ibid s. 90(2).
127	Ibid s. 65(2)(b).
128	Ibid s. 65(2)(c).
129	Ibid s. 107(2), (8).
130	Ibid s. 112.
131	Ibid s. 22(1).
132	Ibid s. 16(2).
133	Ibid s. 125(1), (3).



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