Rooming Houses Act 1990 · rooming house owner and a resident under which the resident is entitled...

Rooming Houses Act 1990

No. 33 of 1990

TABLE OF PROVISIONS

Section

1. Purpose 2. Commencement 3. Definitions 4. Application of Act

PART 1—PRELIMINARY

PART 2—RESIDENTS' RIGHTS

Division 1—Security of Tenure

5. Residency right • 6. Offences relating to interfering with rights

Division 2—Rent and Bonds

7. Limit on rent in advance 8. Rent reviews 9. Notice of rent increase

10. Reference to Director 11. Application for order that rent is excessive 12. Powers of Tribunal 13. Payment of increased rent 14. Bonds 15. Entitlement to bond 16. Receipts 17. Separately metered rooms

PART 3—DUTIES

Division 1—General Duties

18. Duties of residents 19. Duties of rooming house owner 20. Urgent repairs

Division 2—Duty in relation to Goods

21. Duty in relation to goods left behind by a resident 22. Sale of goods left behind by a resident 23. Effect of sale of goods 24. Tribunal orders in relation to goods

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PART 4—POSSESSION RIGHTS

25. Notice of intention to vacate room 26. Termination notice because of damage or danger 27. Termination notice because of non-payment of rent 28. Termination notice because of failure to comply with Tribunal order 29. Termination notice following sale notice 30. Termination notice because of repairs or demolition 31. Prohibition on renting after notice 32. Termination notice for no cause 33. Termination notice given by a rooming house mortgagee 34. Form of termination notice 35. Application for possession order by a rooming house owner 36. Application for possession order by a rooming house mortgagee 37. Contents of possession order 38. Warrants of possession.

PART 5—GENERAL PROVISIONS

Division 1—Other Rights and Duties 39. Assignment ofrights and agreements 40. Breach of duty notice 41. Application for compensation or compUance order 42. Resident's goods not to be taken 43. Access to room 44. Rooming house rules 45. Certain payments prohibited

Division 2—Provisions relating to the Tribunal and Enforcement

46. Jurisdiction of the Tribunal 47. Determination must be complied with 48. Application and amendment of Residential Tenancies Act 1980

Division 3—Miscellaneous

49. Service 50. Investigations by the Director 51. Inspectors 52. Power of delegation 53. The Residential Tenancies Fund 54. Regulations

NOTES

INDEX

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Victoria

No. 33 of 1990

Rooming Houses Act 1990

[Assented to 13 June 1990]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

Purpose

1. The purpose of this Act is to— (a) define the rights and duties of owners and residents of

rooming houses; and (b) provide for the fair and quick resolution of disputes between

owners and residents of rooming houses.

Commencement 2. This Act comes into operation on a day to be proclaimed.

Definitions

3. In this Act— "Bond" means an amount paid by a resident to secure his or her

performance and observance of the conditions of occupancy.

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Rooming Houses Act 1990 S.3 Act No. 33/1990

"Director" means the Director of Consumer Affairs appointed for the purposes of the Ministry of Consumer Affairs Act 1973.

"Facilities" means any kitchen, lounge, bathroom, laundry, garden, toilet, car parking area, storage area or any other room or area designed or set aside for common use by residents.

"Registrar" means the Registrar of the Tribunal under the Residential Tenancies Act 1980.

"Rent" means the fee paid to a rooming house owner by a resident to live in a room and use facilities, electricity, gas and fuel and includes all charges levied by the rooming house owner for services.

"Resident" means a person who takes up occupancy of a room with the consent of a rooming house owner and lives there as his or her only or main residence.

"Room" means any room or rooms (whether free-standing or not) in any building, which room or rooms is or are used or intended to be used for the purpose of residence by any occupier or occupiers other than members of the family or employees of the owner having a right to the use thereof, together with a right to use in common with others any facilities in the building, but does not include— (a) any part of or any room or rooms in a motel or any

premises licensed under the Liquor Control Act 1987; or

{b) any suite of rooms being a portion or portions of a building and forming a self-contained residence, including kitchen and bathroom and sanitary conveniences, under the exclusive control of the occupier; or

(c) any part of or any room or rooms forming part of any premises used as a school or for education and training purposes or ancillary to those premises used to accommodate students or staff using those premises; or

(d) any part of or any room or rooms in any premises to which the Health Services Act 1988, the Mental Health Act 1986 or the Intellectually Disabled Persons'Services Act 1986 applies or any other premises providing temporary refiige accommodation; or

{e) any room in any premises referred to in paragraph (d) or ancillary to those premises used as accommodation for medical, nursing and other staff or any member of the family of a person using those premises.

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Rooming Houses Act 1990 Act No. 33/1990 s.4

"Rooming house" means any building— (a) in which there is or are any room or rooms available

for occupancy upon payment of rent; and (b) in which the total number of people who in any way

may use the room or rooms is not less than 4. "Rooming house owner" includes—

(a) where the owner conducts the business of operating the rooming house, his or her agent; and

(b) where the rooming house is leased to a person who conducts the business of operating the rooming house, the lessee and his or her agent.

"Services" includes the provision to a resident by a rooming house owner of meals, linen and room cleaning services.

"Tribunal" means the Residential Tenancies Tribunal. "Urgent repairs" means any work necessary to repair or

remedy— (a) a burst water service; or (b) a blocked or broken lavatory system; or (c) a serious roof leak; or (d) a gas leak; or (e) a dangerous electrical fault; or (J) flooding or serious flood damage; or (g) serious storm or fire damage; or (h) a failure or breakdown of the gas, electricity or water

supply to the rooming house; or (/) a failure or breakdown of any essential service or

appUance provided by the rooming house owner in the rooming house for water, cooking, heating or laundering; or

(J) any fault or damage that makes the rooming house or a resident's room unsafe or insecure; or

{k) a serious fault in a lift or staircase in the rooming house; or

(/) any damage of a prescribed class.

Application of Act 4. (1) This Act does not apply ifan agreement in writing is entered

into (whether before or after the commencement of this Act) between a rooming house owner and a resident under which the resident is entitled to occupy a room in the rooming house for a fixed term.

(2) An agreement under sub-section (1), is a tenancy agreement for the purposes of the Residential Tenancies Act 1980.

(3) The Residential Tenancies Act 1980 applies in respect of that agreement and the tenancy created by that agreement.

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(4) This Act does not apply if— (a) before the commencement of this Act, the Tribunal has

made a determination that a residential tenancy agreement exists between a rooming house owner and a resident; and

(b) section 6 (4) (g) of the Residential Tenancies Act 1980 does not apply.

(5) The Residential Tenancies Act 1980 applies to an agreement under sub-section (4).

PART 2—RESIDENTS' RIGHTS Division 1—Security of Tenure

Residency right 5. (1) Except as otherwise provided in this Act, a resident has a

right to reside in the room which he or she occupies and a right to use facilities.

(2) A residency right ends— (a) if the resident vacates the room after giving the rooming

house owner notice of intention to vacate; or (b) if the Tribunal makes a possession order, on the date fixed

in the possession order; or (c) if the resident vacates the room after being given a

termination notice; or (d) if a room is abandoned by a resident and at least 14 days

have elapsed since the last rent payment was due; or {e) if the room occupied by the resident or the rooming house

has been destroyed totally or to such an extent as to be rendered unsafe or unfit for human habitation.

Offences relating to interfering with rights 6. (1) Except in accordance with this Act, a person must not—

(a) require or force or attempt to require or force a resident to vacate a room; or

(b) take or attempt to take possession of the room in which a resident resides.

Penalty: 20 penalty units. (2) Except in accordance with this Act, a person must not—

(a) interfere with the peace and comfort of a resident; or (ft) withdraw services or facilities reasonably required to enable

the resident to reside in a room; or (c) prevent a resident from using facilities; or (d) do any other act or thing designed or intended—

for the purpose of causing the resident to abandon the room. Penalty: 20 penalty units.

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(3) Sub-sections (1) and (2) do not apply in respect of any reasonable action taken by a rooming house owner or a police officer to prevent or following a serious act of violence by a resident which injures or creates a danger to any person in the rooming house.

(4) A rooming house owner, who takes action of the kind referred to in sub-section (3) or a rooming house owner on whose behalf a police officer has taken action of the kind referred to in sub-section (3) which results in the resident vacating the rooming house must give the Registrar written notice by personal delivery, certified post or facsimile machine of the action no later than the end of the next business day after the day on which the action was taken.

Penalty: 20 penalty units.

Division 2—Rent and Bonds

Limit on rent in advance

7. A rooming house owner must not require a resident to pay rent more than 1 week in advance.


Rent reviews

8. (1) Except as provided in sub-section (2) or (3), a rooming house owner must not increase the rent payable by a resident more than once every 6 months.

(2) A rooming house owner may increase the rent for the first time before the expiry of 6 months from the day on which the resident commenced residing in the room if the rooming house owner—

(a) notified the resident of the rent increase dates for the rooming house before the resident commenced residing in the room; and

(b) increases the rents payable by all residents of the rooming house on the same dates each year.

(3) If at the request of a resident a rooming house owner provides additional services to the resident, the rooming house owner may increase the rent by the amount agreed between the rooming house owner and the resident from the time that the additional services are provided.

(4) Any rent increase in contravention of this section is invahd.

(5) If a rooming house owner ceases to provide services to a resident, the rooming house owner must from the time that the services cease to be provided reduce the rent by—

(a) the amount agreed between the rooming house owner and the resident; or

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Rooming Houses Act 1990 Act No. 33/1990

(b) in the absence of agreement, the amount determined by the Tribunal on an application by the rooming house owner or the resident.

Notice of rent increase

9. (1) A rooming house owner must give a resident at least 30 days written notice of a proposed rent increase.

(2) Any rent increase in contravention of this section is invalid.

Reference to Director 10. (1) Within 14 days of receiving a notice under section 9 a

resident who considers that the proposed rent increase is excessive may -in writing request the Director to investigate and report on the proposed increase.

(2) As soon as practicable after receiving a request the Director must—

(a) carry out an investigation; and (b) give a written report to the resident and a copy of the report

to the rooming house owner.

(3) The report must consider the factors specified in section 12 (2).

Application for order that rent is excessive

11. Within 21 days of receiving a report under section 10 a resident may apply in writing to the Tribunal for an order declaring that the rent which will be payable after the proposed increase is excessive.

Powers of Tribunal 12. (1) The Tribunal may—

(a) dismiss an application under section 11; or (b) if sub-section (2) applies, make an order declaring the

proposed rent excessive and directing that for the period specified in the order the rent must not exceed the amount specified in the order.

(2) The Tribunal must make an order declaring the proposed rent excessive if satisfied that the proposed rent is more than that which should reasonably be paid by a resident having regard to all of the following factors and in particular those specified in paragraphs (a) and (b):

(a) The rent payable for a similar room in the rooming house; (b) The rent payable for a similar room in a similar rooming

house in a similar location; (c) The state of repair and general condition of the room and

the rooming house;

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Rooming Houses Act 1990 Act No. 33/1990 s. 13

{d) The variation in the cost of providing facilities and services in the rooming house;

(e) The changes in the rent and the condition of the room or facilities in the rooming house since the resident first occupied the room and since the last rent increase;

if) The improvements made to the room which should not result in an increase in the rent because the improvements were made by the resident, i

(3) The amount specified in an order under sub-section (1) (fc) must not be less than the amount payable by the resident imrhediately before the notice was given under section 9.

(4) If an order is made under sub-section (1) {b), a resident cannot be required by the rooming house owner to pay an amount of rent greater than that specified in the.order for a period of six months from the day on which the proposed increase was to apply.

Payment of increased rent 13. (1) Pending the Tribunal's decision under section 12, a resident

must pay, fi^om the time when the proposed increase is to apply, either— (a) the increased rent specified in the notice under section 9; or (by 110 per cent of the rent immediately before the notice was

given— whichever is less.

(2) If the Tribunal subsequently makes an order under section 12 (1) {b), the Tribunal may order that any excess rent paid by the resident from the time the increase took effect until the date of the order be refunded by the rooming house owner. ,, ,

Bonds 14. (1) A bond may be required by the rooming house owner to be

paid by a resident before he or she takes up occupancy the amount of which must not exceed the equivalent of the rent payable by the resident for a period of 14 days.

(2) Before the resident gives a bond, the rooming house owner must give the resident 2 copies of a condition report signed by or on behalf of the rooming house owner specifying the state of repair and general condition of the room on the day specified in the condition report.

Penalty for an offence against this sub-section: 2 penalty units. (3) Within 3 days of receiving the copies of the condition report

the resident must return a copy to the rooming house owner signed by or on behalf of the resident or with an endorsement so signed to the effect that the resident agrees, or disagrees, with the. condition report as a whole or with specified parts of the condition report.

Penalty for an offence against this sub-section: 2 penalty units.

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(4) A statement in a condition report (other than a statement with which, under the endorsement, the resident does not agree) as to the state of repair or general condition of a room is conclusive evidence for the purposes of this Act of that state of repair or general condition, subject only to any state of repair or general condition that could not reasonably have been discovered upon a reasonable inspection of the premises.

(5) Sections 65,66,67,68,69,78 and 79 of the Residential Tenancies Act 1980 apply as if incorporated in this Part, except where provision is made to the contrary in this Part, and with such modifications as are necessary, including the modifications that—

(a) a reference to a "security deposit" is a reference to a "bond"; and

(b) a reference to a "landlord" is a reference to a "rooming house owner"; and

(c) a reference to a "tenant" is a reference to a "resident".

Entitlement to bond 15. (1) If a resident breaches a condition for which a bond was

given, the rooming house owner is entitled to the bond or part of the bond, as coinpensation for loss.pr damage suffered by the owner because of the breach.

(2) A rooming house owner is entitled to the whole or part of the bond paid by a resident if the resident agrees that the rooming house owner is so entitled.

(3) The agreement must be in writing dated not earlier than 30 days before the. resident's term of occupancy is to end.

(4) If when a room is vacated rent is accrued and unpaid, the rooming house owner is entitled t o ^

(a) so much of the bond paid by the resident as equals the outstanding sum; or

(b) the whole of the bond if the outstanding sum is greater than or equal to the amount of bond.

(5) Subject to sub-sections (1) to (4), if a resident ceases to occupy a room, the rooming house owner must pay the bond back to the resident within 7 days.


(6) A claim under sub-section (1) must be determined by the Tribunal and a rooming house owner must apply in writing to the Tribunal within 7 days after the resident has ceased to occupy the room.

(7) The application must be accompanied by a copy of the condition report under section 14, and notice of the application must be served on the resident.

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(8) The resident may file a notice of objection within 14 days after service of the notice of application.

(9) The Tribunal must consider the claim and any objection and determine the relative entitlements of the rooming house owner and the resident.

Receipts 16. (1) A person who receives rent or a bond from a resident must

give a written receipt— (a) immediately, if payment is made in person and in cash; or (b) immediately, if payment is made in person, otherwise than

in cash, and a receipt is requested; and (c) within 5 days of receiving the payment, if the payment is

not made in person and a receipt is requested. Penalty: 1 penalty unit. (2) A written receipt must state—

(a) the name of the resident and the rooming house; and (b) the date of receipt; and (c) the period in respect of which payment is made; and (d) the amount paid; and (e) the fact that payment was received by way of rent or bond

as the case may be. Penalty: 1 penalty unit.

Separately metered rooms 17. (1) A rooming house owner can charge a resident for electricity

and gas consumed in the room occupied by the resident a charge for which is not otherwise included in the rent if—

(a) the rooming house owner is responsible for the payment of the electricity and gas; and

{b) the room is metered by recording apparatus approved by the relevant supplying authority.

(2) A charge under sub-section (1) must not be more than the charge made by the relevant supplying authority.

PART 3—DUTIES

Division 1—General Duties

Duties of residents 18. A resident must—

(a) keep the room clean and in a condition which will not create a fire or health hazard; and

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(b) use the room for residential purposes only; and (c) not use the room for any illegal activity; and

(d) observe all house rules made under section 44; and (e) not install fixtures in a room or to the rooming house without

the prior written consent of the rooming house owner; and (/) not do anything in or near the rooming house or allow any

visitors into the rooming house to do anything which interferes with the privacy and peace and quiet of other residents or with their proper use and enjoyment of the rooming house; and

(g) if any damage other than fair wear and tear is caused by the resident or his or her visitors, notify the rooming house owner of the damage and pay compensation for the damage to the rooming house owner; and

(h) pay the rent agreed with the rooming house owner on the due dates and in the agreed manner; and

(0 not keep any animal on the premises without the rooming house owner's consent; and

(J) give the rooming house owner the key to the door to his or her room to allow access under section 43; and

{k) report to the rooming house owner any damage to or breakdown of any facilities, fixtures, furniture or equipment provided by the rooming house owner of which the resident has knowledge.

Duties of rooming house owner 19. (1) A rooming house owner must—

(a) ensure that the rooming house and its rooms and any facilities, fixtures, furniture and equipment provided by the rooming house owner are maintained in good repair; and

{b) provide a resident with 24 hour access to his or her room and to toilet and bathroom facilities; and

(c) provide access during all reasonable hours to other residents' facilities; and

(d) when repairing or renovating residents' facilities, minimise any inconvenience and disruption to residents and, if necessary, provide temporary substitute facilities; and

(e) not unreasonably restrict or interfere with a resident's privacy, peace and quiet or proper use and enjoyment of the room and residents' facilities in the rooming house; and

(/) take all reasonable steps to ensure that house rules made under section 44 are observed by all residents; and

(g) display prominently in each resident's room and not later than the day on which a resident agrees to take up occupation give the resident a written statement in a form approved by

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the Director setting out in a summary form the resident's rights and duties under the Act and a copy of the house rules; and

(h) take all reasonable steps to ensure security for the property of a resident in his or her room; and

(i) take all reasonable steps to ensure peaceftil and quiet enjoyment of the rooming house by residents; and

0) if the rooming house owner does not reside at the rooming house, give each resident written notice of his or her business address and telephone number.

(2) A rooming house owner must ensure that all house rules made under section 44 are reasonable and are enforced and interpreted consistently and fairly.

Urgent repairs 20. (1) If a resident of a rooming house is unable, after taking

reasonable steps to arrange for the immediate carrying out of urgent repairs to the rooming house or his or her room by the rooming house owner—

(a) the resident may arrange for the repairs to be carried out; and

(b) subject to sub-section (2), the rooming house owner is liable to reimburse the resident for the reasonable cost of the repairs or $500, whichever is less.

(2) A rooming house owner is not liable under sub-section (1) until the expiration of 14 days after the resident gives the rooming house owner written notice of the repairs carried out and the cost.

(3) This section does not apply— (a) to any fixtures, ftimiture or equipment supplied by the

resident; or (b) if there is no immediate danger to health or safety and the

resident is able to use other facilities in the rooming house.

Division 2—Duty in relation to Goods

Duty in relation to goods left behind by a resident

21. (1) A rooming house owner who takes possession of a room vacated by a resident must take reasonable care of any goods left by the resident.

(2) The rooming house owner may dispose of goods which are— (a) perishable foodstuffs; or (b) of no monetary value or worth less than the estimated cost

of removal, storage and sale.

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(3) The rooming house owner must take reasonable steps to notify the former resident as to when and from where the goods can be collected.

(4) At the request of a rooming house owner, the Director may state in writing whether or not in his or her opinion there are reasonable grounds for believing that sub-section (2) appUes in respect of particular goods.

(5) Where a rooming house owner has been found liable to the owner of goods that he or she has disposed of, being goods that were left in the rooming house, and it is proved that he or she disposed of the goods in reliance upon a statement of the Director under sub-section (4), the rooming house owner is entitled to be paid from the Residential Tenancies Fund an amount equal to the amount in respect of which he or she has been found Uable together with reasonable costs incurred in relation to the action.

Sale of goods left behind by a resident 22. (1) The rooming house owner may sell the goods stored under

section 21 if— (a) after 28 days of taking possession of the room he or she has

been unable to notify the former resident after taking reasonable steps to do so; or

(b) the former resident has failed to collect the goods within 28 days of being notified to do so.

(2) The sale of the goods must be by public auction and advertised in a newspaper generally circulating in Victoria at least 14 days before the public auction.

(3) The former resident may collect the goods at any time before the goods are sold if he or she pays the rooming house owner the reasonable costs incurred in—

{a) storing or paying for the storage of the goods; and (b) trying to notify the former resident; and (c) organising the sale of the goods.

(4) If the former resident pays the costs specified in sub-section (3) the rooming house owner must not refuse to give the goods to the former resident.


Effect of sale of goods 23. (1) A rooming house owner who sells goods in accordance with

section 22 may take from the proceeds of the sale— (a) the reasonable costs incurred in—

(i) storing or paying for the storage of the goods; and (ii) trying to notify the former resident; and

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(iii) selling the goods; and (b) any money owed to him or her under an order of the

Tribunal.

(2) Any proceeds remaining after deducting the amounts specified in sub-section (1) are to be dealt with as unclaimed moneys in accordance with Part II of the Unclaimed Moneys Act 1962 as if the rooming house owner were a company or firm to which that Part applies.

Penalty for an offence against this sub-section: 10 penalty units and in the case of a continuing offence a penalty of not more than 1 penalty unit for each subsequent period of 7 days during which the offence continues after conviction.

(3) A rooming house owner is not liable to any person for any loss or damage caused as a result of the sale of any goods in accordance with section 22.

(4) A person who purchases any goods sold in accordance with section 22 acquires a good title to the goods unless he or she has notice of—

(a) any defect or want of title in the former resident; or {b) any failure by the rooming house owner to comply with

section 22.

(5) If a person not being a former resident is the owner of any goods sold under section 22 that person is not entitled to the return of the goods but has the same right as a former resident has under section 24.

Tribunal orders in relation to goods 24. (1) If a former resident's goods are wrongfully disposed.of or

sold by a rooming house owner, the former resident may apply to the Tribunal for an order for compensation.

(2) If a former resident's goods are wrongfully retained by a rooming house owner who refuses to give up the goods, the former resident may apply to the Tribunal for an order for the return of the goods or for compensation or for both.

(3) If a former resident's goods are sold under section 22, the former resident may apply to the Tribunal for an order that money dealt with under section 23 (2) be paid to the former resident.

(4) If the proceeds of the sale of the goods are not sufficient to cover the reasonable costs incurred by a rooming house owner in—

(a) storing or paying for the storage of the goods; and (b) trying to notify the former resident; and (c) selling the goods—

the rooming house owner may apply to the Tribunal for an order for compensation.

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(5) An order under sub-section (3) or (4) must be satisfied by a payment out of the Residential Tenancies Fund.

(6) A rooming house owner must comply with an order under sub-section (2). '


PART 4—POSSESSION RIGHTS

Notice of intention to vacate room

25. (1) A resident must give to the rooming house owner at least 2 days notice of intention to vacate the room occupied by the resident.

(2) The notice may be ^ven orally or in writing if so required by the rooming house owner.

(3) Unless the rooming house or room has become unsafe or unfit for human habitation, a resident who vacates a room without giving notice must pay the rooming house owner the rent for the period of 2 days after vacating the room.


(4) A resident who vacates a room before the day specified in the notice must pay to the rooming house owner the rent for the period from the day the resident vacated the room until the day specified in the notice.

Termination notice because of damage or danger

26. If a resident or a person who enters the resident's room or the rooming house with the resident's permission—

(a) intentionally or recklessly causes or allows serious damage to any part of the rooming house; or

(h) by act or omission creates or causes a danger to any person or property in the rooming house; or

(c) seriously interrupts the quiet and peaceful enjoyment of the rooming house by other residents—

the rooming house owner may give the resident a termination notice requiring him or her to vacate the room immediately.

Termination notice because of non-payment of rent

27. If a resident owes at least 7 days' rent to the rooming house owner the rooming house owner may give the resident a termination notice requiring him or her to vacate the room on the day specified in the termination notice being a day not less than 2 days aftier the termination notice is given.

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•Rooming Houses Act 1990 Act No. 33/1990 s. 28

Termination notice because of failure to comply with Tribunal order

28. If a resident fails to comply with an order of the Tribunal under section 41, the rooming house owner may give the resident a termination notice requiring him or her to vacate the room on the day specified in the termination notice being a day not less than 2 days after the termination notice is given.

Termination notice following sale notice

29. (i) If the rooming house owner has sold the rooming house with vacant possession after having given the resident at least 60 days written notice of intention to sell the rooming house, the rooming house owner may give the resident a termination notice requiring him or her to vacate the room on the day specified in the termination notice being a day not less than 30 days after the termination notice is given.

(2) A termination notice must not be given until after 60 days after the notice of intention to sell was given.

Termination notice because of repairs or demolition

30. If the rooming house owner intends to repair, renovate or demohsh the rooming house and has obtained all necessary permits and consents to carry but the work but the work cannot be properly carried out unless the resident vacates the rooming house, the rooming house owner may give the resident a termination notice requiring him or her to vacate the room on the day specified in the termination notice being a day not less than 60 days after the termination notice is given.

Prohibition on renting after notice

31. (1) Unless sub-section (2) applies or the Tribunal otherwise determines, a rooming house owner must not rent a room vacated under section 30 for 6 months after the vacation.


(2) A room vacated under section 30 may be rented within 6 months of the vacation if the repairs or renovations have been completed.

Termination notice for no cause

32. (1) A rooming house owner may give a resident a termination notice requiring him or her to vacate the room on the day specified in the notice being a day not less than 6 months after the notice is given.

(2) A termination notice is of no effect if given in response to the exercise, or proposed exercise, by the resident of a right under this Act.

(3) A person is not entitled to apply to the Tribunal challenging the validity of a termination notice under this section after the expiration of 56 days after the termination notice was given.

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Termination notice given by a rooming house mortgagee 33. (1) If a rooming house mortgagee becomes entitled to sell or

take possession of a rooming house under a mortgage, the rooming house mortgagee is entitled to give the resident a termination notice requiring him or her to vacate the room on the day specified in the termination notice, being a day not less than 30 days after the termination notice is given.

(2) A termination notice under this section must not be given unless the rooming house mortgagee has given not less than 60 days written notice to the resident of his or her intention to sell or take possession of the rooming house.

Form of termination notice 34. A termination notice must—

(a) be in writing addressed to the resident; and (b) be signed by the rooming house owner or rooming house

mortgagee or his or her agent; and (c) specify the reason for the giving of the notice and the date

by which compliance is required.

Application for possession order by a rooming house owner 35. (1) A rooming house owner who has given a resident a

termination notice may apply to the Tribunal for a possession order before the expiration of 30 days after the termination date specified in the notice.

(2) Unless sub-section (3) or (4) appUes, the Tribunal must make a possession order requiring the resident to vacate the room and the rooming house on the date specified in the order if the Tribunal is satisfied that—

(a) the rooming house owner was entitled to give the termination notice; and

(b) the termination notice has not been withdrawn by the rooming house owner by notice in writing given to the resident; and

(c) the resident is still in possession of the room after the date specified in the termination notice.

(3) If an application for a possession order is supported with a termination notice given under section 28, the Tribunal must not make a possession order ifit is satisfied that—

(a) the failure to comply with an order of the Tribunal under section 41 is trivial or has been remedied as far as possible; and

(b) there will not be any further breach of a duty under section 18; and

318


(c) that the breach of duty is not a recurrence of a previous breach of duty.

(4) If an application for a possession order is supported with a termination notice given under section 26 (c), the Tribunal must not make a possession order if it is satisfied that the interruption to quiet and peaceful enjoyment of the rooming house has ceased, that the disturbance is not a recurrence and will not be repeated.

(5) A rooming house owner who has been given a notice of intention to vacate may apply to the Tribunal for a possession order after the expiration of 7 days from the date on which the notice was given.

(6) On the application under sub-section (5), the Tribunal must within 14 days make a possession order requiring the resident to vacate the room and the rooming house on the date specified in the order if the Tribunal is satisfied that the rooming house owner acted reasonably by relying on the notice of intention to vacate given by the resident.

Application for possession order by a rooming house mortgagee 36. (1) If a resident fails to vacate a room by the date specified in

a termination notice given by the rooming house mortgagee, the rooming house mortgagee may apply to the Tribunal for a possession order within 30 days after that date.

(2) The Tribunal must make a possession order requiring the resident to vacate the room on the date specified in the order if the Tribunal is satisfied that—

(a) the rooming house mortgagee was entitled to give the termination notice; and

{b) the termination notice has not been withdrawn by the rooming house mortgagee by notice in writing given to the resident; and

(c) the resident is still in possession of the room after the date specified in the termination notice.

Contents of possession order 37. A possession order must include—

(a) the day by which the resident must vacate the room and rooming house, being a day not more than 30 days after the day on which the possession order is made; and

(b) a direction to the resident to vacate the room and rooming house by the day specified in the possession order; and

(c) a direction to the Registrar to issue a warrant of possession in accordance with section 38 on the request of the rooming house owner or rooming house mortgagee; and

(d) a warning that if the resident fails to comply with the direction referred to in paragraph (b), he or she may be

319


forcibly vacated from the room and the rooming house by an authorised officer carrying out a warrant of possession.

Warrants of possession

38. (1) The person who obtained the possession order may apply to the Registrar for a warrant of possession—

(a) immediately if the possession order so provides; or

(b) within 6 months of the date of the possession order if the resident fails to comply with the possession order—

after payment of the fee, if any, prescribed under section 132 of the Residential Tenancies Act 1980.

(2) A warrant of possession must—

(a) be in the prescribed form; and

(b) be addressed to a person authorised in writing by the Minister for the purposes of this section; and

(c) direct and authorise the person to whom it is addressed or a police officer to enter, by force if necessary, the room and rooming house to be vacated between 8 a.m. and 6 p.m. on any day other than a Sunday or public holiday and compel the person occupying the room to vacate and give up possession of the room and leave the rooming house; and

(d) give brief details of the possession order; and (e) be signed by the Registrar.

(3) As soon as practicable but not later than 60 days after the warrant of possession is issued, the person to whom it is addressed must return the warrant of possession to the Registrar and specify in writing whether the warrant of possession has or has not been carried out.

(4) A person who is removed from a rooming house under a warrant of possession must not re-enter and take up possession of a room in the rooming house.


(5) On the application of the person who obtained a warrant of possession the Tribunal may from time to time make an order extending the time in which a warrant of possession may be executed.

(6) An order made under sub-section (5) must not extend the time in which a warrant of possession may be executed by more than 30 days at any one time from the day on which the time for execution of the warrant would otherwise expire.

(7) An order may be made under sub-section (5) even if the time for execution of the warrant has expired.

320

Rooming Houses Act 1990, Act No. 33/1990 s. 39

PART 5—GENERAL PROVISIONS

Division 1—Other Rights and Duties

Assignment of rights and agreements 39. (1) The rights conferred on a resident by this Act are not

assignable or transferable. (2) Nothing in this Act affects the right of a resident and a rooming

house owner to enter into a tenancy agreement.

(3) A resident and a rooming house owner may enter into an agreement specifying the terms and conditions of the resident's use and enjoyment of the rooming house.

(4) Any term or condition in an agreement which— (a) is inconsistent with this Act; or (b) purports to exclude, restrict or modify the application or

exercise of a right conferred by this Act— is invalid.

Breach of duty notice 40. (1) Thissectionapphesifaresident or a rooming house owner

breaches his or her duty under Division 1 of Part 3.

(2) The person to whom the duty is owed or his or her agent may give the person in breach of his or her duty a breach of duty notice—

(a) specifying the breach; and {b) giving details of any loss or damage caused by the breach;

and (c) requiring where it is possible to do so that the person in

breach remedy the breach or compensate the person to whom the duty is owed within 3 days of receiving the notice; and

(d) stating that the person in breach must not commit a similar breach again; and

{e) stating that if the notice is not compHed with, an appUcation for a compensation order or a compliance order will be made to the Tribunal.

(3) A breach of duty notice must be— (a) in writing addressed to the person allegedly in breach of his

or her duty or his or her agent; and, (b) signed by the person to whom the duty is owed; and (c) given to the person to whom it is addressed or left with a

person who appears to be over 16, years of age and to reside or be employed at the address specified in the notice as the address of the person allegedly in breach or sent by post

66817/90—11 321


addressed to the person at his or her last known place of residence or business.

Application for compensation or compliance order

41. (1) If a breach of duty notice is not complied with the person giving the breach of duty notice may apply to the Tribunal for a compensation order or a compliance order.

(2) If the Tribunal is satisfied that the person giving the breach of duty notice was entitled to give it and that the breach of duty notice has not been complied with the Tribunal may make any or all of the orders specified in sub-section (3).

(3) The orders are as follows: (a) An order that the person in breach remedy the breach as

specified in the order;

{b) An order that the person in breach give compensation as specified in the order;

(c) An order that the person in breach refi'ain from committing a similar breach of duty.

(4) If, in hearing an application under sub-section (1), the Tribunal is asked to consider the alleged breach of a house rule, the Tribunal may, in addition to or instead of any order under sub-section (3), make an order under section 44 (4).

(5) If an order is made in respect of a breach of duty by a resident, the order must specify that if the order is not complied with the rooming house owner is entitled to give the resident a termination notice.

(6) If an order is made under sub-section (3) (Jb) in favour of a resident, the order may specify that compensation is to be in the form of a reduction in the rent payable by the resident.

(7) If a rooming house owner takes action of the kind referred to in section 6 (3) which results in the resident vacating the rooming house the resident may apply to the Tribunal for an order under sub-section (9).

(8) An application under sub-section (7) may only be made before the end of the business day following the day on which the action by the rooming house owner was taken and must be made by personal delivery, certified post or facsimile machine.

(9) If the Tribunal is satisfied that the rooming house owner was not entitled to take the action which resulted in the resident vacating the rooming house, the Tribunal may make an order either—

(a) requiring the rooming house owner to permit the resident to resume residency in the room which he or she previously occupied; or

322


{b) requiring the rooming house owner to pay to the resident compensation of an amount specified in the order—

or both.

(10) A rooming house owner must not allow any person to reside in a room vacated by a resident following action of the kind referred to in section 6 (3) until after the time Umited for making an application under sub-section (7) has expired, or, where an application is made under that sub-section and an order is not made under sub-section (9), until the Tribunal has heard the application.


(11) The Registrar must notify a rooming house owner immediately an appUcation is made under sub-section (7).

(12) If the Tribunal does not make an order under sub-section (9) when hearing an appUcation under sub-section (7), the Tribunal may order that a rooming house owner who has complied with sub-section (10) must be paid from the Residential Tenancies Fund established under the Residential Tenancies Act 1980 an amount of money equal to the rent which would have been derived by the rooming house owner during the period for which he or she complied with sub-section (10).

Resident's goods not to be taken

42. A person must not take or dispose of a resident's goods on account of any rent owing by the resident.


Access to room

43. (1) A rooming house owner or a person appointed in writing as his or her agent for the purpose may enter a room occupied by a resident if—

(a) the resident agrees at the time the entry is sought; or {b) there is an emergency and immediate entry is necessary to

save Ufe or valuable property; or (c) services are provided and it is necessary to enter to provide

those services but only during the hours specified in the house rules; or

(d) the resident has been given written notice at least 24 hours before the time at which entry is sought, once every 4 weeks to inspect the room on a day (not being a Saturday, Sunday or public holiday) between 9 a.m. and 5 p.m.

(2) A person exercising a right of entry under subrsection (1) — (a) must do so in a reasonable manner; and (b) must not, without the resident's consent, stay in a room

longer than is necessary to achieye the purposes of the entry.

323


(3) A person to whom sub-section (1) applies must comply with this section before entering a room occupied by a resident.


Rooming house rules 44. (1) A rooming house owner may make house rules relating to

the use and enjoyment of facilities and rooms.

(2) An application may be made to the Tribunal for an order declaring a house rule to be unreasonable.

(3) The application must— (a) be signed by at least half of the residents of the rooming

house at the date of the appUcation; and (b) be accompanied by a copy of the house rules; and (c) specify which house rules are considered to be unreasonable;

and (d) specify the reason why the house rules are considered to be

unreasonable.

(4) If the Tribunal considers a house rule to be unreasonable the Tribunal may declare the house rule to be invalid.

(5) A person must not attempt to enforce a house rule afler it is declared invalid.


Certain payments prohibited 45. A rooming house owner must not because of the failure of a

resident to comply with this Act demand or accept from the resident a payment other than—

(a) rent in accordance with this Act; or

(b) any other payment provided for in this Act.

Division 2—Provisions relating to the Tribunal and Enforcement

Jurisdiction of the Tribunal 46. (1) Subject to this Act the Tribunal has jurisdiction to hear and

determine applications made to the Tribunal uiider this Act. (2) The Tribunal must not—

(a) unless the parties to the application authorise in writing the Tribunal to do so, hear or determine an application for a compensation order which involves a monetary claim exceeding $3000; or

(b) unless the parties to the application authorise in writing the Tribunal to do so, make a determination requiring or authorising the payment of an amount exceeding $3000 or

324


requiring or authorising the carrying out of works the estimated cost of which exceeds $3000; or

(c) make a compensation or compliance order requiring the payment of money as a consequence of death, physical injury or pain and suffering.

Determination must be complied with 47. A person to whom a determination of the Tribunal applies

must comply with the determination.


Application and amendment of Residential Tenancies Act 1980 48. (1) The following sections of the Residential Tenancies Act

1980 apply with such modifications as are necessary as if incorporated in this Part except where provision is made in this Part to the contrary: Sections 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 39A, 41, 42, 43, 44, 45, 46, 138, 139, 140, 141, 143, 144, 145, 148,149 and 150.3*

(2) Subject to the general approval of the Minister given for any class of application, an application to the Tribunal under this Act must be in the form approved by the Registrar and accomjpanied by the relevant fee determined by the Registrar.

(3) The Residential Tenancies Act 1980 is amended as follows: (a) In section 13, after "1988" (where twice occurring) insert

"OT the Rooming Houses Act 1990"; (b) In section 50, after "1988" (wherever occurring) insert "or

the Rooming Houses Act 1990"; (c) In section 51, after "1988" (where twice occurring) insert

"or the Rooming Houses Act 1990".

Divisions—Miscellaneous Service

49. A notice or other document to be served on or given to a person must be served or given—

(a) by delivering it personally to the person; or (b) by leaving it at the person's usual or last-known place of

residence or business with a person apparently over the age of 16 years and apparently residing or employed at that place; or

(c) by sending it to the person by certified post, or by post in the case only of a copy of a determination made by the Tribunal or a notice of hearing before the Tribunal; or

(flf) in the manner ordered by the Tribunal.

* See notes beginning at p. 25 for incorporated provisions

325


Investigations by the Director 50. (1) Without limiting section 10, a resident or a rooming house

owner may at any time request the Director to investigate any matter arising under this Act;

(2) The request must be in writing. (3) After investigating any matter, the Director must report to the

person who made the request and send a copy of the report to the other party to the residency.

(4) If after investigating any matter the Director is of the opinion that the matter is frivolous, vexatious or unimportant and does not justify the making of a report, the Director must advise the person making the request to investigate the matter of his or her opinion.

Inspectors 51. For the purposes of the Consumer Affairs Act 1972, this Act is

deemed to be a "Consumer Act" within the meaning of section 62 (5) of that Act.

Power of delegation 52. The Director may, by instrument, delegate to an officer or

employee, or the holder of an office, in the Ministry of Consumer Affairs any power, duty or function of the Director under this Act, other than this power of delegation.

The Residential Tenancies Fund ' 53. The Director may provide funds fi:om the Residential Tenancies

Fund under the Residential Tenancies Act 1980 for the purpose of making payments required for the purposes of this Act.

Regulations 54. ( i) The Governor in Council may make regulations for or with

respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) The regulations may prescribe a penalty not exceeding 10 penalty units for a contravention of any regulatioii.

(3) Regulations made under this Act may be disallowed in whole or in part by a resolution of either House of Parliament in accordance with the requirements of section 6 (2) of the Subordinate legislation Act 1962. - .

(4) Disallowance of a regulatiori under sub-section (3) is deemed to be disallowance by Parliament for the purposes of the Subordinate Legislation Act 1962.

326

Rooming Houses Act 1990 Act No. 33/1990 Notes

NOTES

1. Minister's second reading speech—

Legislative Council: 24 October 1989

Legislative Assembly: 29 May 1990

2. The long title for the Bill for this Act was "A Bill to define the rights and duties of owners and residents of rooming houses and for other purposes.".

3. Sections of the Residential Tenancies Act 1980 incorporated by section 48 (1) as at the date of Royal Assent provide as follows:

Constitution of Tribunal

19. An application to or proceedings before the Tribunal shall be heard and determined by one member of the Tribunal.

Defect in appointment of Tribunal

20. An act or determination of the Tribunal is not invalid by reason only of a defect or irregularity in the appointment of a member of the Tribunal.

Sittings of Tribunal

21. Except as otherwise provided by the regulations, the Tribunal shall sit at such places in the State and at such times as are determined by the Registrar.

Notice of hearings 22. The Registrar shall give notice to each applicant and to each party to

proceedings before the Tribunal of the time and place for the hearing of the application or proceedings.

General applications to Tribunal

23. (1) Subject to this Act, a landlord or a tenant under a tenancy agreement may make application to the Tribunal where he claims that—

{a) a dispute has arisen under the tenancy agreement; or (b) a breach has occurred under the tenancy agreement or under the provisions

of this Act relating to the tenancy agreement.

(1A) A person who is not a landlord or a tenant under a tenancy agreement ss.(i A) inserted may, with the leave of the Tribunal, make an application to the Tribunal relating ''v ̂ °- 63/1987 to that tenancy agreement. -̂ ® '"*'

(1B) The Tribunal must not grant leave under sub-section (1A) unless it is ss. (i B) inserted satisfied that the person has an interest and personal involvement in the tenancy *'V^°- 63/1987 agreement that is sufficient to justify the granting of leave. '̂ •''''

(2) The provisions of this section are in addition to all other rights and powers under this Act.

General power of Tribunal to make determinations

24. (1) Subject to this Act, on an application made to, or in proceedings before, the Tribunal under this Act relating to a tenancy agreement, the Tribunal—

(a) may make such determinations as it considers appropriate to restrain any action in breach of the tenancy agreement or the provisions of this Act relating to the tenancy agreement or to require any action in performance of the tenancy agreement or of obligations under those provisions;

327

Rooming Houses Act 1990 Notes Act No. 33/1990

NOTES—continued (b) without limiting the generality of paragraph (a), may make determinations

for the return of goods unlawfully taken or removed from the rented premises by a party to the tenancy agreement; and

(c) may make determinations ancillary or incidental to other determinations made by it.

(2) Where there are two or more tenancy agreements to which this Act applies in respect of the same premises and the rights under this Act of the landlord and the tenant under any of those agreements are prejudicially affected by reason of the application of this Act to two or more of those agreements, the Tribunal may make such determinations as it considers appropriate—

(a) to give effect to the rights under this Act of any tenant in possession of the premises under a tenancy agreement to which this Act applies; and

(b) subject to a determination being made under paragraph (a) or the Tribunal determining that no such determination is necessary, to give effect to the rights under this Act of each landlord and each tenant of the premises.

(3) The provisions of sub-sections (1) and (2) are in addition to all other powers of the Tribunal under this Act.

Settlements

2S. Where an application is made to the Tribunal under this Act in relation to issues arising between the parties to a tenancy agreement, the Tribunal, shall, if in its opinion it is reasonable in the circumstances to do so, take such steps as it thinks fit to achieve a settlement of the issues without proceeding to hear and determine the application.

Registrar may refer application to Director

27. (1) Where an application is made to the Tribunal, the Registrar— (a) where the application is an application of a kind that the Director has

directed the Registrar to refer to him—shall refer the application to the Director for investigation and report; and

(b) in any other case, where he considers that the Director's report would be of assistance to the Tribunal, may refer the application to the Director for investigation and report.

(2) Where an application has been made to the Tribunal, not being an application for an order for possession under section 130 or 131, and any party to the proceedings arising from the application requests at any time before the hearing of the application that the Registrar refer the application to the Director for investigation and report, the Registrar may refer the application to the Director.

Registrar may amend applications in certain cases

28. Where an application has been made to the Tribunal under this Act, the Registrar may at any time before the hearing of the application, amend the application at the request of all parties to proceedings on the application.

Withdrawal of applications

29. (I) A person who has made application to the Tribunal under this Act may, at any time before the Tribunal determines the application, withdraw the application.

(2) A withdrawal of an application under sub-section (1) shall be in writing signed by the applicant and shall be given to the Registrar.

(3) An applicant who withdraws an application under this section shall inform each other party to the proceedings (if any) of the withdrawal.

(4) Where an application is withdrawn under this Act, the applicant is not, except with the leave of the Tribunal, entitled to make application again to the Tribunal in respect of the same subject-matter.

328


NOTES—continued

Procedure of Tribunal 30. (1) Subject to this Act, the Tribunal—

(a) is bound by the rules of natural justice; and (b) may regulate its own procedure.

(2) Subject to this Act, the Tribunal may hear and determine together two or more applications where it considers that the applications concern the same or related subject-matter.

(3) Subject to this Act, where an application is made to, or proceedings are before, the Tribunal under this Act, the Tribunal—

(a) may at the request, or with the approval, of the applicant amend the application;

(ab) may direct that a person be made a party to the proceedings;

{b) may refer the application or any matter arising in the proceedings to the Director for investigation and report; and

(c) may refer to the Valuer-General for report any question arising under the application or in the proceedings in relation to the valuation of premises.

(4) The Tribunal must not under sub-section (3) {ab) direct that a person be made a party to proceedings before it unless the Tribunal is satisfied, whether on application by that person or by a person who is a party to the proceedings or without any such application, that that person has an interest in the proceedings that is sufficient to justify the making of the direction.

(5) The Tribunal may make an interim determination in any proceedings even if—

{a) the person who made the application to the Tribunal is absent and unrepresented; or

(b) a person who is a party to the proceedings, or who the Tribunal directs be made a party to the proceedings, is absent and unrepresented because that person has not been notified of the proceedings in accordance with this Act—

if the Tribunal is satisfied that the proceedings are urgent. (6) An interim determination only operates until the time specified in it or

until the making of a further determination by the Tribunal, whichever occurs first.

Para, (ab) inserted by No. 63/1987 s. 6(e) (i)

Ss. (4) inserted by No. 63/1987 s.6(e)(ii)



Reports 31. Where, under this Act, an application to the Tribunal, a matter arising in

proceedings or a question arising under an application or in proceedings is referred to the Director for investigation and report or to the Valuer-General ror report—

(a) the Director shall investigate the application or matter and report, or the Valuer-General shall report, as the case may be, to the Tribunal on the application, matter or question; and

{b) the Tribunal shall not make a determination in relation to the application, matter or question unless it has received and taken into consideration the report of the Director or the Valuer-General, as the case may be.

Evidence before Tribunal

32. (I) Evidence before the Tribunal may be given on oath or, where the law permits, on affirmation or declaration instead of oath.

(2) A member of the Tribunal may administer an oath or take an affirmation or declaration for the purposes of this Act.

(3) Evidence ̂ ven before the Tribunal shall not be used in criminal proceedings except in proceedings for an offence against this Act or for perjury.

329


NOTES—continued (4) The Tribunal is not bound by rules or practice as to evidence but may

inform itself in relation to any matter in such manner as it thinks fit.

(5) The Tribunal may at the request of a party to proceedings before it or on its own initiative direct the Registrar to serve upon any person a summons to appear before the Tribunal to give evidence or to produce such documents as are specified in the summons and may in an appropriate case make an order for the manner of service, including an order for substituted service.

Proceedings of Tribunal and publication of evidence 33. (1) Subject to this section, the hearing of proceedings before the Tribunal

shall be held in public.

(2) The Tribunal may by order exclude from proceedings or any part of proceedings before it a person who does an act referred to in section 46.

(3) Where the Tribunal, whether at the request of a party to proceedings or on its own initiative, is satisfied that it is desirable to do so, the Tribunal may direct that the hearing of the proceedings, or part of the hearing, shall take place in private and give directions as to the persons who may be present.

(4) Where the Tribunal, whether at the request of a party to proceedings, or on its own initiative, is satisfied that it is desirable to do so, the Tribunal may give directions prohibiting or restricting publication of evidence given before the Tribunal whether in public or in private, or of matters contained in documents filed or lodged with the Registrar, received in evidence by the Tribunal or placed in the records of the Tribunal.

Tribunal may dismiss certain applications 34. (1) Where an application is made to the Tribunal under this Act and the

Tribunal considers that— (a) there are no grounds upon which the application could be granted; or {b) there are grounds upon which the application could be granted but that

the application is vexatious or frivolous— the Tribunal may dismiss the application.

(2) Where the Tribunal dismisses an application that it considers to be vexatious or frivolous, being an application that refers to a dispute by the applicant with a party to a tenancy agreement or to a breach by a party to a tenancy agreement of the tenancy agreement or of a provision of this Act relating to the tenancy agreement, the Tribunal may order the applicant to pay to that party a sum, not exceeding $100, specified by the Tribunal. Proceedings in absence of party

35. {1) Where a person who has made an application to the Tribunal is absent and unrepresented at the time and place appointed for the hearing of the application, the Tribunal may dismiss the application.

(2) Where a party to proceedings arising from an application to the Tribunal (other than the applicant) is absent and unrepresented at the time and place appointed for the hearing of the proceedings, the Tribunal may, if it is satisfied—

(a) that a copy of the application was given in accordance with this Act to the party at his last-known or most usual place of residence or business; and

{b) that the applicant has taken such further action (if any) to bring the application to the notice of that party as the Tribunal may direct—

hear and determine the proceedings notwithstanding that that party is absent and unrepresented. Reservation of questions of law

36. (1) Where in an application to or proceedings before the Tribunal under this Act a question of law arises, the Tribunal shall, at the request of the applicant or a party to the proceedings, and may, on its own initiative, reserve the question in the form of a special case stated for the opinion of the Supreme Court.

330


NOTES—continued

(2) Where a question has been reserved under this section,'the Tribunal shall not deterrhine the application or the proceedings until the opinion of the Supreme Court has been given and shall not proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question of law.

(3) Subject to the Supreme Court Act 1958, the Judges of the Supreme Court may make rules (including rules with respect to costs) for or with respect to special cases Stated for the opinion of the Supreme Court under sub-section (1).

(4) Where the Minister is'of the opinion that a question of law reserved for the Supreme Court under this section is of general public importance, the Minister may authorize the payment from the Fund of the whole or any part of the costs of reserving the question for the opinion of the Supreme Court.

Tribunal to state reasons for determination 37. (1). Where the Tribunal makes a determination, it shall state the reasons

for the determination. • .

(2) A statement of reasons by the Tribunal under sub-section (1) shall be taken to form part of the determination of the Tribunal.

(3) Where the Tribunal considers that a determination made by it ought in the public interest to be published it may request the Director to .publish the determination.

Determination to be in writing

38. (I) '• A determination of the Tribunal under this Act shall be in writing and shall be signed by the member of the Tribunal who constituted the Tribunal.

(2) The production in any proceedings of a document purporting to be a copy of a determination made by the Tribunal under this Act and signed by a memter of the Tribunal shall be conclusive evidence of the due making and existence of the determination. ' •

Copy of determination 39. Except as otherwise expressly provided in this Act, where the Tribunal

makes a determination under this Act, the Registrar shall before the expiration of seven days after the making of the determination, give a copy of the determination to each party to the proceedings who did not appear and was not represented at the proceedings, addressed to his last known place of residence or business.

Tribunal may correct determination 39A. The Tribunal may, on its own initiative at any time or on application by

a party to proceedings before the Tribunal within 14 days after the receipt by that party of a copy of a determination made by the Tribunal in those proceedings, correct the determination if it contains—

(a) a clerical mistake; or (6) an error arising from an accidental slip or omission; or (c) a material miscalculation of figures or a material mistake in the description

of any person, thing or matter referred to in the determination; or (rf) a defect of form.

Application to Tribunal for order rescinding or varying determination

41. (I) A person to whom a determination made by the Tribunal applies may, if that person did not appear and was not represented at the proceedings, make application to the Tribunal within 14 days' of being given a copy of the determination for a review of the determination.

(2) The Tribunal may, if it is satisfied that the applicant has a reasonable excuse for not appearing or being represented at the proceedings, hear and determine the application and may if it thinks fit determine that the determination be rescinded or varied.

S. 39A inserted by No. 63/1987 s.8(f)

Ss.(1) amended by No. 63/1987 s.6(g)(i)(A)(B).

Ss. (2) amended by No. 63/1987 8.6(g)(il)

331


NOTES—continued Enforcement of determinations of Tribunal

42. (1) Where the Tribunal makes a determination requiring the payment of moneys to a person, that person may file in the office of a Magistrates' Court a copy of the determination and pay to the Clerk of the Magistrates' Court such fee (if any) as is prescribed.

; (2) A copy of a determination filed in the office of a Magistrates' Court under this section shall be deemed to be an order of a Magistrates' Court and may be enforced accordingly.

Proceedings of Tribunal not justiciable 43. (1) Where an application is made to, or proceedings are before, the Tribunal

the issue concerned in the application or proceedings (whether shown in the application or emerging in the course of proceedings) shall not be justiciable at any time before a court or person acting judicially other than the Tribunal, except—

(a) in proceedings instituted before the application to the Tribunal was made or the proceedings before the Tribunal were commenced;

(b) where the application or proceedings have been withdrawn; or (c) in proceedings for an offence.

(2) Where a civil proceeding before a court or a person acting judicially was instituted before the making of an application to or bringing of proceedings before the Tribunal in respect of an issue, the issue shall not be determined by the Tribunal unless the proceedings before the court or person have been discontinued.

Party to conduct own proceedings

44. (1) Subject to this section, a party to proceedings before the Tribunal shall conduct his case in person.

(2) A duly qualified legal practitioner may conduct the case of a party to proceedings l^fore the Tribunal where—

(a) the parties to the proceedings so agree; (b) the other party to the proceedings is a body corporate or a person referred

to in sub-section (5); • (c) the proceedings relate to an order for possession under section 130 or

131;or (d) the Tribunal is satisfied that the party ought to be represented by a duly

quaUfied legal practitioner. (3) A person who is not a duly qualified legal practitioner may conduct the

case of a party to proceedings before the Tribunal (being a party who is a natural person) where the Tribunal is satisfied that the party ought to be represented by an agent.

(4) Where a party to proceedings before the Tribunal is a body corporate, an officer or agent, not being a duly qualified legal practitioner, of the body corporate, may conduct the case of that party.

(5) For the purposes of paragraph (b) of sub-section (2), the persons are— (a) a person who is or has been a duly qualified legal practitioner in a State

or Territory of the Commonwealth; (b) a person who works or has worked with a solicitor in a State or Territory

of the Commonwealth as an articled clerk or law clerk; and (c) a person who holds a degree, diploma-jOr other qualification in law

conferred or granted in a State or Territory of the Commonwealth. Costs of applications to and proceedings before Tribunal ,

45. (1) Where an application by a landlord or a tenant under a tenancy agreement made to the Tribunal under this Act is dismissed, the Tribunal may make an order for the payment by the applicant to the other party to the tenancy agreement—

(a) unless that other party was represented by a duly qualified legal practitioner, of an amount not exceeding $200 in respect of disbursements

332


NOTES—continued necessarily incurred by that other party in connexion with the application; or

{b) where that other party was represented by a duly qualified legal practitioner— (i) of an amount not exceeding $200 in respect of disbursements

necessarily incurred by that other party in connexion with the application; and

(ii) of costs, other than disbursements, at the prescribed scale.

(2) Where the Tribunal makes a determination in proceedings relating to a tenancy agreement, the Tribunal may make an order for the payment by a party to the tenancy agreement to the other party to the tenancy agreement—

(a) unless the other party was represented by a duly qualified legal practitioner, of an amount not exceeding $200 in respect of disbursements necessarily incurred by the first-mentioned party in connexion with the proceedings; or

{b) where that other party was represented by a duly qualified legal practitioner— (i) of an amount not exceeding $200 in respect of disbursements

necessarily incurred by the first-mentioned party in connexion with the proceedings; and

(ii) of costs, other than disbursements, at the prescribed scale.

Contempt of Tribunal 46. (1) If a person—

(a) insults a member of the Tribunal while the member is performing functions or exercising powers as the Tribunal; or

(b) insults a person attending a hearing before the Tribunal; or (c) misbehaves at a hearing before the Tribunal; or (rf) interrupts a hearing before the Tribunal; or (e) assaults or obstructs a person attending a hearing before the Tribunal; or

( / ) without lawful excuse disobeys a direction or summons of the Tribunal— the Tribunal may direct the apprehension of that person and, if the Tribunal thinks fit, may commit that person to prison for any time not exceeding 14 days or may impose on that person a fine of not more than $1000.

(2) In dealing with a person under sub-section (1), the Tribunal may— (a) hear the case immediately or give notice of the hearing; and (6) accept an apology instead of imposing a fine or committing the person to

prison.

(3) An order made under sub-section (1) committing a person to prison does not take effect until 48 hours after the making of the order or, if an appeal is made under sub-section (4), until the appeal is determined.

(4) A person who has been ordered to be imprisoned under this section may, within two business days after the making of the order, appeal to the Supreme Court on the ground that the punishment is too severe.

(5) If the Tribunal makes an order under sub-section (1) imposing a fine on a person and the fine is unpaid (either in whole or in part) at the end of the period specified in the order for payment of the fine, the Registrar may file a copy of the order with a Magistrates' Court and pay to the clerk of the Court the prescribed fee (if any) and the order must then be treated as an order of the Magistrates' Court and it may be enforced as if it were such an order.

(6) A member of the police force must obey and execute any direction or order of the Tribunal under sub-section (1).

S. 46 substituted t)y No. 63/1987 s. 6 (h)

333


NOTES—continued Secrecy •

' 138. (1) A person who is or has been— (a) a member of the Tribunal; (b) the Registrar; (c) an Assistant Registrar; (d) the Director; (e) an officer or employ6 in the Ministry of Consumer Affairs; or

( / ) a person to whom the Director has delegated a function or power under this Act—

shall not, except in the performance of a function or the exercise of a power under this or any other Act or with the written authority of the Minister or the person to whom the information relates, either directly or indirectly make a record of, or divulge or communicate to any person information concerning the affairs of the person, being information acquired by him by reason of his office or employment under or for the purposes of this Act.

Penalty: $500. (2) Nothing in sub-section (1) precludes a person from—

(a) producing a document to a Court in the course of criminal proceedings or in the course of any proceedings under this or any other Act; or

(b) divulging or communicating to a Court in the course of any proceedings referred to in paragraph (a) any matter or thing coming under his notice in the performance of a function or the exercise of a power referred to in that sub-section.

Inspection of register

139. Subject to this Act and the regulations, a person may inspect the register kept by the Registrar under this Act.

Giving of documents

140. For the purposes of this Act, where a document is properly addressed, prepaid and posted to a person as a letter, the document shall be deemed to have been given to the person at the time at which the letter would be delivered in the ordinary course of post.

Onus of proof that Act does not apply

141. Where in any proceedings a person claims that this Act, or a provision of this Act, does not apply in relation to the subject-matter of the proceedings, the onus of proving that this Act or that provision does not so apply, lies upon him.

Certain terms to be void

142. A term of a tenancy agreement (including a term that is not set out in the tenancy agreement but is incorporated in the tenancy agreement by another term of the agreement) that purports to exclude, restrict or modify or purports to have the effect of excluding, restricting or modifying—

(a) the application to that agreement of all or any of the provisions of this Act; or

(b) the exercise of a right conferred by such a provision— is void.

Proceedings for offences 143. (1) Proceedings for an offence against this Act may be brought—

(a) by the Director; or (6) by an officer or employfe in the Ministry of Consumer Affairs authorized

in writing by the Minister or the Director either generally or in a particular case to take proceedings for offences against this Act.

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NOTES—continued (2) In proceedings for an offence against this Act it shall be presumed, in the

absence of evidence to the contrary, that the person bringing the proceedings was authorized to bring the proceedings.

Magistrate to hear proceedings 144. Where proceedings for an offence against this Act are brought in a

Magistrates' Court, the Magistrates' Court shall consist of a magistrate. S. 144 amended by No. 16/1986 S.30

Liability of officers of bodies corporate 145. Where a body corporate commits an offence against this Act, a director

or officer of the body corporate who is knowingly a party to the commission of the offence is also guilty of the offence and liable to the penalty for the offence.

Penalty for making false representations

148. A person shall not in relation to a tenancy agreement or proposed tenancy agreement—

(a) make a false and fraudulent misrepresentation as to— (i) a provision of this Act;

(ii) a term included or to be included in the tenancy agreement; or (iii) a matter affecting a person's rights or duties under this Act or the

tenancy agreement or proposed tenancy agreement; (b) by threat or intimidation persuade or attempt to persuade a party to the

tenancy agreement or proposed tenancy agreement not to exercise his rights to take or continue proceedings under this Act; or

(c) aid, abet, counsel or procure the commission of an offence against this Act.

Penalty: $500.

Jurisdiction of Supreme Court

149. (1) TheSupremeCourt, or ajudge of the Supreme Court, has jurisdiction to hear and determine applications made under this section.

(2) A person may make application to the Supreme Court or a judge of the Supreme Court in relation to any matter arising in relation to a tenancy agreement of premises situated in Victoria, being an application that, if made to the Tribunal, the Tribunal would be entitled to hear and determine or would, but for section 18 or section 106 (4), be entitled to hear and determine.

(3) The Supreme Court or a judge of the Supreme Court has, in hearing and determining an application made to it or him under sub-section (2), the same powers as the Tribunal would have had if the application had been heard and determined by it.

(4) Nothing in section 18 or section 106 (4) limits the power of the Supreme Court or a judge of the Supreme Court to hear and determine an application under this section.

(5) Where a person makes an application to the Supreme Court or a judge of the Supreme Court, being an appUcation that, if made to the Tribunal, the Tribunal would have been entitled to hear and determine, the person is not entitled to any costs in the proceedings unless the Supreme Court or judge is satisfied that, at the time of making the application, there were reasonable grounds for believing that the Tribunal would not have been entitled to hear and determine the application.

(6) Subject to the Supreme Court Act 1958, the judges of the Supreme Court may make rules (including rules with respect to costs) for or with respect to applications to, the hearing of apphcations by, and determinations of, the Supreme Court or a judge of the Supreme Court under this section.

335

Notes Rooming Houses Act 1990

Act No. 33/1990

Sub-s. (1) amended by No. 19/1989 8.16. Ss. (2) amended by No. 16/1986 S.30

Sub-s. (3) amended by No. 19/1989 s. 16.

Sub-s. (4) amended by No. 19/1989 s. 16.

Sub-s. (5) amended by No. 19/1989 s. 16. Sub-s. (6) amended by No. 19/1989 8.16.

NOTES—continued Jurisdiction of County Court and Magistrates' Court

150. (1) Subject to section 37 of the County Court Act 1958, the County Court has jurisdiction to hear and determine applications made under this section.

(2) Subject to section 50 of the Magistrates'Courts Act 1971, a Magistrates' Court consisting of a magistrate has jurisdiction to hear and determine applications made under this section.

(3) A person may make application to a court under this section in relation to any matter arising in relation to a tenancy agreement of premises situated in Victoria, being an application that, if made to the Tribunal, the Tribunal would, but for section 18, have been entitled to hear and determine.

(4) The court to which application is made under this section has, in hearing and determining the application the same powers as the Tribunal would have had if the application had been heard and determined by it.

(5) Nothing in section 18 limits the power of a court to hear and determine an application under this section.

(6) Subject to the County Court Act 1958, the judges of the County Court may make rules (including rules with respect to costs) for or with respect to applications to, the hearing of applications by, and determinations of, the County Court under this section.

336

INDEX

Subject Section

Access to Room Application of Act Bond

definition entitlement to receipts requirement by rooming house owner to be paid

Condition Report .. Compensation Order

Compliance Order Definitions

bond.. Director facilities Registrar rent . . resident room.. rooming house rooming house owner services Tribunal urgent repairs

Director definition duty to investigate excessive rent investigations by power of delegation .. written report on rent increase

Duties breach of . . in relation to goods of resident of rooming house owner

Goods effect of sale of left behind by resident resident's goods not to be taken or disposed of sale of Tribunal orders

Inspectors Notice

breach of duty intention to vacate room prohibition on renting service of termination ..

Offences by rooming house owner after vacation of room by resident in certain cases ..

43

3 15 16 14

14 41 41

3 3 3 3 3 3 3 3 3 3 3 3

3 10 50 52 10

40 21 18 19

23 21 42 22 24

51

40 25 31 49 26, 27, 28, 29, 30, 32, 33, 34

41 (10)

337

INDEX—continued

Subject Section

failure to comply with warrant of possession .. failure to endorse condition report failure to give condition report interference with residents' rights non-compliance with determination of Tribunal prohibition on renting after notice receipts resident's goods sale of goods ..

Order by Tribunal . . compensation compliance .. in relation to goods of possession..

Possession Order application for by rooming house mortgagee application for by rooming house owner contents of . . warrants of possession

Prohibition of Certain Payments . .

Receipts ..

Regulations

Rent application for order that rent is excessive definition excessive in advance notice of increase payment of increased rent receipts reviews

Report on proposed rent increase

Resident definition duties rights

Residential Tenancies Act 1980 amendment .. application of bonds tenancy agreement

Residential Tenancies Fund

Rights assignment of offences of possession.. of residency . .

38 14(3) 14(2) 6 47 31 16 42 22,23

12 41 41 24 35, 36, 37

36 35 37 38

45

16

54

11 3 10 27 9 13 16 8

10

3 18 5

48 48 14 4

53

39 6 25-38 5

338

INDEX—continued

Subject Section

Rooming House Mortgagee application for possession order by .. termination notice by

Rooming House Owner access to room by .. application for possession order definition duties of duties in relation to goods

Rooming House Rules Separately Metered Rooms Service

Termination Notice by rooming house mortgagee . . damage or danger failure to comply with Tribunal order following sale notice .. for no cause .. form of non-payment of rent . . repairs or demolition..

Tribunal application to for order that rent is excessive .. compensation and compliance orders definition determination to be complied with jurisdiction of orders in relation to goods powers

Urgent Repairs Warrants of Possession

36 33

43 35 3 19 21,22,23

. . 44

17

49

33 26

. . 28 29 32 34 27 30

11 41

. . 3 47 46 24 12

. . . . 20

. . 38

NOTE: This index does not form part of the Rooming Houses Act 1990 and is provided for convenience of reference only.

339

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