Division 6—Miscellaneous
72—Contract to avoid
(1) An agreement or arrangement that is inconsistent with a provision of this Part or purports to exclude, modify or restrict the operation of this Part is to that extent void and of no effect.
(2) Any purported waiver of a right conferred by or under this Part is void and of no effect.
(3) Any person who enters into any agreement or arrangement with intent either directly or indirectly to defeat, evade or prevent the operation of this Part is guilty of an offence.
Penalty: Division 7 fine.
73—Tribunal may exempt tenancy agreement, class of agreement or premises from provisions of Part
(1) The Tribunal may, upon application by any interested person, grant an exemption from all or any of the provisions of this Part—
(a) in relation to a particular commercial tenancy agreement or proposed commercial tenancy agreement; or
(b) in relation to a particular class of commercial tenancy agreements; or
(c) in relation to particular premises.
(2) An exemption under this section may be granted on such conditions as the Tribunal thinks fit.
73A—Annual reports
(1) The Commissioner for Consumer Affairs must, on or before 30 September in each year, deliver to the Minister an annual report—
(a) containing a report on the application during the financial year ending on 30 June in that year of any income derived from the investment of the Commercial Tenancies Fund; and
(b) containing a copy of the accounts of the Commercial Tenancies Fund last audited by the Auditor-General.
(2) The Registrar of the Tribunal must, on or before 30 September in each year, deliver to the Minister an annual report containing a report on—
(a) the work of the Tribunal and the Registrar under this Part during the financial year ending on 30 June in that year;
(b) the administration and enforcement of this Part during the financial year ending on 30 June in that year;
(c) any matters of general significance to landlords and tenants that, in the opinion of the Registrar, should be reported.
(3) The Minister must, within 12 sitting days after the receipt of a report under this section, cause a copy of the report to be laid before each House of Parliament.
74—Summary proceedings
(1) Offences against this Act are summary offences.
(2) A prosecution for an offence against this Act must be commenced within two years after the date on which the offence is alleged to have been committed, or within such further period as the Minister may in a particular case, allow.
(3) A document apparently signed by the Minister and stating that the Minister allows an extension of the period for commencing a particular prosecution will be accepted, in the absence of proof to the contrary, as proof of the fact so stated.
75—Regulations
(1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Part.
(2) Without limiting the generality of the foregoing, those regulations may—
(a) prescribe codes of practice to be complied with by landlords and tenants;
(b) impose penalties (not exceeding a division 10 fine) for breach of, or failure to comply with, the regulations.
Schedule 1—Warrant to distrain
Schedule 2—Inventory
Schedule 3—Declaration to be made by or on behalf of owner of agisted cattle or under-tenant or lodger
Schedule 4—Declaration under section 22
Schedule 5—Summons in case of adverse claim to goods distrained
Schedule 6—Order in case of adverse claim to agisted cattle or goods distrained
Legislative history
Notes
• Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.
• Earlier versions of this Act (historical versions) are listed at the end of the legislative history.
• For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au.
Legislation repealed by principal Act
The Landlord and Tenant Act 1936 repealed the following:
An Act to amend the Law of Landlord and Tenant (No. 580 of 1893)
The Distress for Rent Amendment Act 1907
Legislation amended by principal Act
The Landlord and Tenant Act 1936 amended the following:
An Act to amend the law of Real Property (No. 25 of 1852)
Supreme Court Procedure Amendment Act (No. 5 of 1853)
The Property Act of 1860
The Common Law Procedure Act 1862
The Distress for Rent Act 1888
Principal Act and amendments
New entries appear in bold.
Year
No
Title
Assent
Commencement
Landlord and Tenant Act 1936
5.11.1936
1.5.1937 (Gazette 25.3.1937 p645)
Statute Law Revision Act (No. 2) 1974
21.11.1974
21.11.1974
Landlord and Tenant Act Amendment Act 1978
30.3.1978
1.12.1978: s 2
Statutes Amendment (Commercial Tenancies) Act 1985
14.3.1985
1.1.1986 (Gazette 12.12.1985 p1802)
Landlord and Tenant Act Amendment Act 1987
17.12.1987
1.1.1988 (Gazette 23.12.1987 p1916)
Landlord and Tenant Act Amendment Act 1990
Statutes Amendment (Shop Trading Hours and Landlord and Tenant) Act 1990 as amended by 81/1993—s 11 impliedly repealed by 14/1995 s 81—the section amended was subsequently deleted
22.11.1990
s 10—22.11.1990 (Gazette 22.11.1990 p1581)
Landlord and Tenant Act Amendment Act (No. 2) 1990
29.11.1990
11.3.1991 (Gazette 28.2.1991 p693) except ss 7, 10 & 11—1.9.1991 (Gazette 29.8.1991 p690)
Statutes Amendment (Landlord and Tenant) Act 1993
Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994
27.10.1994
1.1.1995 (Gazette 8.12.1994 p1942)
Retail Shop Leases Act 1995
6.4.1995
s 81—30.6.1995 (Gazette 29.6.1995 p2976)
Financial Sector Reform (South Australia) Act 1999
17.6.1999
Sch (item 32)—1.7.1999 being the date specified under s 3(16) of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 of the Commonwealth as the transfer date for the purposes of that Act: s 2(2)
Residential Tenancies (Miscellaneous) Amendment Act 1999
12.8.1999
3.10.1999 (Gazette 30.9.1999 p1341)
Statute Law Revision Act 2003
23.10.2003
Sch 1—24.11.2003 (Gazette 13.11.2003 p4048)
Justices of the Peace Act 2005
17.11.2005
Sch 2 (cll 29—32)—1.7.2006 (Gazette 22.6.2006 p2012)
Statutes Amendment (New Rules of Civil Procedure) Act 2006
6.7.2006
Pt 43 (ss 147—151)—4.9.2006 (Gazette 17.8.2006 p2831)
Statutes Amendment (Justice Portfolio) Act 2006
14.12.2006
Pt 17 (s 29)—18.1.2007 (Gazette 18.1.2007 p234)
Landlord and Tenant (Distress for Rent—Health Records Exemption) Amendment Act 2008
Health Practitioner Regulation National Law (South Australia) Act 2010
Sch 1 (cl 21)—1.7.2010 (Gazette 1.7.2010 p3338)
Statutes Amendment (Gender Identity and Equity) Act 2016
4.8.2016
Pt 10 (s 35)—8.9.2016 (Gazette 8.9.2016 p3676)
Retail and Commercial Leases (Miscellaneous) Amendment Act 2019
19.12.2019
Pt 3 (ss 30 & 31)—1.7.2020 (Gazette 14.5.2020 p962
Provisions amended since 3 February 1976
• Legislative history prior to 3 February 1976 appears in marginal notes and footnotes included in the consolidation of this Act contained in Volume 5 of The Public General Acts of South Australia 1837-1975 at page 538.
New entries appear in bold.
Entries that relate to provisions that have been deleted appear in italics.
Provision
How varied
Commencement
Long title
amended by 19/1985 s 4
substituted by 44/2003 s 3(1) (Sch 1)
Pt A1
heading inserted by 44/2003 s 3(1) (Sch 1)
s 1
substituted by 19/1985 s 5
s 2
deleted by 19/1985 s 5
s 3
amended by 19/1985 s 6
omitted under Legislation Revision and Publication Act 2002
s 3A
inserted by 24/1978 s 3
1.12.1978
s 3B
inserted by 19/1985 s 7
Pt 1
Pt 1 Div 1
heading preceding s 4 deleted and Div 1 heading inserted by 44/2003 s 3(1) (Sch 1)
s 6
s 6(1)
s 6 amended and redesignated as s 6(1) by 44/2004 s 3(1) (Sch 1)
s 6(2)
s 6 amended and redesignated as s 6(2) by 44/2004 s 3(1) (Sch 1)
Pt 1 Div 2
heading preceding s 9 deleted and Div 2 heading inserted by 44/2003 s 3(1) (Sch 1)
s 9
s 9(1)
amended by 17/2006 s 147
Pt 2
s 13
health practitioner
inserted by 37/2008 s 3
substituted by 5/2010 Sch 1 cl 21
record
inserted by 37/2008 s 3
s 13A
inserted by 47/2019 s 30
1.7.2020
s 14
s 14(2)
s 17
s 17(2)
s 19
s 19(1)
s 21
amended by 17/2006 s 148
s 22
s 24
s 24(1)
s 24(2)
substituted by 56/2005 Sch 2 cl 29
substituted by 47/2019 s 31
1.7.2020
s 25
amended by 56/2005 Sch 2 cl 30
s 26
amended by 56/2005 Sch 2 cl 31
s 28
amended by 59/1994 Sch 2
1.1.1995
amended by 44/2006 s 29
18.1.2007
s 32
s 32(3)
amended by 17/2006 s 149
s 37
amended by 17/2006 s 150
s 39
amended by 17/2006 s 151
s 41
heading preceding s 43
deleted by 44/2003 s 3(1) (Sch 1)
s 43A
inserted by 37/2008 s 4
s 44
deleted by 35/2016 s 35
8.9.2016
Pt 4
inserted by 19/1985 s 8
amended by 104/1987 ss 3—11
1.1.1988
amended by 49/1990 s 2
amended by 50/1990 s 10
22.11.1990
amended by 58/1990 ss 3—6, 8, 9, 12—16 (Sch)
11.3.1991
amended by 58/1990 ss 7, 10, 11
1.9.1991
amended by 81/1993 ss 3—6
deleted by 14/1995 s 81(1)
30.6.1995
amended by 33/1999 Sch (item 32)
1.7.1999
amended by 55/1999 s 8
3.10.1999
Schs 1—6
Schs A—F redesignated as Schs 1—6 by 44/2003 s 3(1) (Sch 1)
Sch J
deleted by 44/2003 s 3(1) (Sch 1)
Transitional etc provisions associated with Act or amendments
Landlord and Tenant Act Amendment Act 1987
12—Savings provision
A provision of a commercial tenancy agreement entered into before the commencement of this Act is not invalidated or affected in any other way by any inconsistency with, or failure to comply with, section 62(1)(a)(iii) of the principal Act as in force before the commencement of this Act.
Landlord and Tenant Act Amendment Act (No. 2) 1990
18—Transitional provisions
The amendments effected by sections 4, 6, 7, 9 and 10 apply only in relation to commercial tenancy agreements entered into on or after the commencement of this Act.
Retail Shop Leases Act 1995 as amended by section 17 of the Retail Shop Leases Amendment Act 1997
81—Amendment of the Landlord and Tenant Act
(1) Part 4 of the Landlord and Tenant Act 1936 (the former legislation) is repealed.
(2) However—
(a) the former legislation continues to apply, subject to modifications prescribed by regulation,1 to retail shop leases entered into before the commencement of this Act (including such a lease that is renewed after the commencement of this Act under a right or option of renewal conferred before the commencement of this Act); but
(b) if the retail shop lease creates a periodic tenancy, this Act applies to the lease as from the beginning of the first period after the first anniversary of the commencement of this Act as if there were a novation of the lease on that date.
(3) The regulations made for the purposes of subsection (2)(a) may provide that specified provisions of this Act apply to a retail shop lease entered into before the commencement of this Act.
(4) The Fund established under the former legislation is dissolved and the money constituting that Fund at the commencement of this Act is incorporated in the Fund established under this Act.
(5) References in the former legislation to the Fund established under that legislation are to be construed (so far as the relevant provisions give rights or impose obligations on parties to leases) as references to the Fund under this Act.
1 Regulations have been made for the purposes of s 81(2)(a) of the Retail Shop Leases Act 1995 (see Gazette 29.6.1995 p3101) as follows:
13—Issues associated with Landlord and Tenant Act
(1) For the purposes of section 81(2)(a) of the Act, the following modifications to the Landlord and Tenant Act 1936 (the former legislation) are prescribed:
(a) a reference to the Commercial Tribunal (including through the use of the definition the Tribunal) is to be construed as a reference to the Civil (Consumer and Business) Division of the Magistrates Court;
(b) section 56 of the former legislation will be taken to have been replaced by the following provision:
56—Substantial monetary claims
(1) An action involving a claim arising under or in respect of a commercial tenancy agreement to which this Part applies or a related guarantee should be commenced before the Magistrates Court.
(2) An action before the Magistrates Court that involves a monetary claim for $10 000 or less will be taken to be a minor statutory proceeding under the Magistrates Court Act 1991.
(3) If an action before the Magistrates Court involves a monetary claim for an amount exceeding $30 000, the Magistrates Court must on the application of a party to the proceeding refer the proceeding to the District Court.
(4) If a proceeding is referred to the District Court, the Court has, in addition to the powers that it has apart from this section, the powers that the Magistrates Court has under this Part.
(5) In this section—
Magistrates Court means the Civil (Consumer and Business) Division of the Magistrates Court.;
(c) sections 59, 60, 61 and 65 of the former legislation will be taken to have been repealed;
(d) the following sections will be taken to be inserted after section 72 of the former legislation:
72A—Unlawful threats
A landlord or an agent of a landlord must not make threats to the effect that the landlord will not renew or extend the term of tenancy if the tenant exercises a right under this Act.
Penalty: Division 5 fine.
72B—Vexatious acts
A party to a commercial tenancy agreement must not, in connection with the exercise of a right or power under this Act or the agreement, engage in conduct that is, in all the circumstances, vexatious.
Penalty: Division 6 fine.
(2) Pursuant to section 81(3) of the Act, the following provisions of the Act apply to a retail shop lease entered into before the commencement of the Act:
(a) section 12 (Lessee to be given disclosure statement);
(b) section 13 (Lessee not required to pay undisclosed contributions);
(c) section 19 (Security bond);
(d) section 20 (Repayment of security);
(e) section 52 (Statistical information to be made available to lessee);
(f) section 61 (Trading hours).
(3) Subregulations (1) and (2) do not affect any determination of core trading hours under the former legislation before the commencement of the Act and such a determination will have effect for the purposes of section 61 of the Act.
Justices of the Peace Act 2005, Sch 2
32—Transitional provision
An amendment made by Schedule 2 of the Justices of the Peace Act 2005 to the Landlord and Tenant Act 1936 does not apply in respect of proceedings commenced before the commencement of the amending provision (and those proceedings may continue as if the amending provision had not been enacted).
Historical versions
Reprint No 1—1.10.1991
Reprint No 2—27.10.1993
Reprint No 3—1.1.1995
Reprint No 4—30.6.1995
Reprint No 5—3.10.1999
Reprint No 6—24.11.2003
18.1.2007
8.9.2016
Appendix—Divisional penalties and expiation fees
At the date of publication of this version divisional penalties and expiation fees are, as provided by section 28A of the Acts Interpretation Act 1915, as follows:
Division
Maximum imprisonment
Maximum fine
Expiation fee
15 years
$60 000
—
10 years
$40 000
—
7 years
$30 000
—
4 years
$15 000
—
2 years
$8 000
—
1 year
$4 000
$300
6 months
$2 000
$200
3 months
$1 000
$150
–
$500
$100
–
$200
$75
–
$100
$50
–
$50
$25
Note: This appendix is provided for convenience of reference only.
Division Div 6 - Landlord and Tenant Act 1936 - Miscellaneous | Zoe