Div 4ATribunal may make orders in relation to retaliatory behaviour and circumstances of domestic abuse

Division 4A—Tribunal may make orders in relation to retaliatory behaviour and circumstances of domestic abuse 90A—Tribunal may make orders in relation to retaliatory behaviour (1) The Tribunal may, on application by a tenant or in proceedings relating to the termination or proposed termination of a residential tenancy agreement— (a) declare that a notice of termination under this Act has no effect; or (b) refuse to make an order terminating a residential tenancy agreement, if it is satisfied that a notice of termination given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) In addition, the Tribunal may (on its own initiative), if it is satisfied that a notice of termination given or application made by the landlord was a retaliatory notice or a retaliatory application, order the landlord to make a payment of an amount not exceeding $5 000 into the Fund. (3) The Tribunal may find that a notice of termination is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons: (a) the tenant had applied or proposed to apply to the Tribunal for an order; (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law; (c) an order of the Tribunal was in force in relation to the landlord and tenant. (4) A tenant may only make an application to the Tribunal for a declaration under this section if the application complies with the requirements prescribed by the regulations (if any). 90B—Tribunal may make orders in relation to circumstances of domestic abuse (1) The Tribunal may, on application by a tenant under a residential tenancy agreement given a notice of termination on a ground prescribed by the regulations for the purposes of this subsection (a relevant ground), make an order that the notice of termination is invalid if satisfied that— (a) the tenant or a domestic associate of the tenant who normally or regularly resides at the premises has been, or is being, subjected to domestic abuse; and (b) the relevant ground was caused by an act of a person who has subjected the tenant or a domestic associate of the tenant who normally or regularly resides at the premises to domestic abuse. (2) An application under this section must be made within 30 days after the notice of termination is given. Division 5—Notices of termination 91—Form of notice of termination (1) A notice of termination given by a landlord to a tenant must— (a) be in writing and in the form prescribed by regulation1; and (b) be signed by the landlord or the landlord's agent; and (c) state the address of the premises subject to the tenancy; and (d) state the day on which the tenant is required to give up vacant possession of the premises to the landlord; and (e) specify and give reasonable particulars of the ground of termination; and (ea) in the case of a notice given on a ground prescribed by the regulations for the purposes of this paragraph, be accompanied by written evidence, as approved by the Commissioner from time to time, which supports the ground for giving the notice; and (f) include any further information required by regulation. (2) A notice of termination given by a tenant to a landlord must— (a) be in writing and in the form required by regulation1; and (b) be signed by the tenant or an agent of the tenant; and (c) state the address of the premises subject to the tenancy; and (d) state the day on which the tenant is to give up vacant possession of the premises to the landlord; and (e) if the tenancy is to be terminated on a particular ground—specify and give reasonable particulars of the ground of termination; and (f) include any further information required by regulation. 1 The Acts Interpretation Act 1915 allows some divergence from the prescribed form providing that the form actually used is to the same effect. 91A—Prohibition on letting premises after notice of termination (1) A landlord or a person acting on behalf of a landlord who obtains possession of premises in respect of which a notice of termination has been given on a ground of a kind prescribed by the regulations must not let the premises to a person for use primarily as a residence before the end of 6 months after the date on which the notice was given. (2) Subsection (1) does not apply if the Tribunal determines that the premises may be let before the end of the period referred to in subsection (1). 92—Termination of periodic tenancy A notice terminating a periodic tenancy under this Act is not ineffectual because— (a) the period of notice is less than would, apart from this Act, have been required at law; or (b) the day on which the tenancy is to end is not the last day of a period of the tenancy. 92A—Notice of termination void if no action taken If— (a) a notice of termination is given to a landlord or tenant; and (b) the tenant has not given up vacant possession of the residential premises to the landlord within 1 month after the day on which he or she is to do so in accordance with the notice; and (c) the landlord has not, within that period, applied to the Tribunal for an order for possession of the premises, the notice of termination is ineffectual and the residential tenancy will be taken not to have been terminated. Division 6—Repossession of premises 93—Order for possession (1) If a residential tenancy is terminated by notice of termination under this Act or, in the case of a tenancy under which the South Australian Housing Trust is landlord, under the residential tenancy agreement, the landlord may apply to the Tribunal for an order for possession of the premises. The landlord may not make the application if the notice of termination is ineffectual under section 92A. (2) If the Tribunal is satisfied that the tenancy has been terminated, the Tribunal may make an order for possession of the premises. (3) The order for possession will take effect on a date specified by the Tribunal in the order, being a date not more than seven days after the date of the order unless the operation of the order for possession is suspended1. (4) However, if the Tribunal, although satisfied that the landlord is entitled to an order for possession of the premises, is satisfied by the tenant that the grant of an order for immediate possession of the premises would cause severe hardship to the tenant, the Tribunal may— (a) suspend the operation of the order for possession for up to 90 days; and (b) extend the operation of the residential tenancy agreement until the landlord obtains vacant possession of the premises from the tenant. (4a) In extending the operation of the residential tenancy agreement, the Tribunal may make modifications to the agreement that it considers appropriate (but the modifications cannot reduce the tenant's financial obligations under the agreement). (5) If the tenant fails to comply with an order for possession, the landlord is entitled to compensation for any loss caused by that failure. (6) The Tribunal may, on application by the landlord, order the tenant to pay to the landlord compensation to which the landlord is entitled under subsection (5). 1 See subsection (4). 94—Abandoned premises (1) The Tribunal may, on application by a landlord— (a) declare that a tenant abandoned premises on a day stated in the declaration; and (b) make an order for immediate possession of the premises. (1a) In determining whether a tenant has abandoned premises, the Tribunal may have regard to— (a) any failure by the tenant to pay rent or to carry out obligations under the residential tenancy agreement; and (b) any evidence suggesting that the tenant no longer occupies the premises as a place of residence; and (c) any other matter the Tribunal thinks fit. (2) A tenant is taken to have abandoned the premises on the day stated in a declaration under this section. (3) If a tenant has abandoned premises, the landlord is entitled to compensation for any loss (including loss of rent) caused by the abandonment. (4) However, the landlord must take reasonable steps to mitigate any loss and is not entitled to compensation for loss that could have been avoided by those steps. (5) The Tribunal may, on application by the landlord, order the tenant to pay to the landlord compensation to which the landlord is entitled under this section. 95—Repossession of premises A person must not enter premises for the purpose of taking possession of the premises before, or after, the end of a residential tenancy unless— (a) the tenant abandons, or voluntarily gives up possession of, the premises; or (ab) the person is authorised to take possession of the premises by force of a notice to vacate issued in respect of the premises; or (b) the person is authorised to take possession of the premises under the order of a court or the Tribunal. 96—Forfeiture of head tenancy not to result automatically in destruction of right to possession under residential tenancy agreement (1) A person cannot take possession of residential premises subject to a residential tenancy agreement so as to defeat the tenant's right to possession under the residential tenancy agreement unless an order for possession of the premises is made by a court or the Tribunal. (1a) An order under subsection (1) must be served on the tenant and takes effect— (a) in the case of an order made in favour of a mortgagee—30 days after the day on which it is served or at such later time as is specified by the court or the Tribunal; and (b) in any other case—at such time as is specified by the court or the Tribunal. (1b) If an order of a kind referred to in subsection (1a)(a) is made, the tenant— (a) is not required to pay any rent, fee or other charge in respect of his or her occupation of the residential premises in the period following service of the order; and (b) is entitled to compensation for any rent paid in respect of that period. (1c) The Tribunal may, on application by the tenant, order a person to whom rent has been paid to pay to the tenant compensation to which the tenant is entitled under subsection (1b). (2) If a person is entitled to possession of residential premises as against a person who granted a residential tenancy, a court before which proceedings for possession of the premises are brought, or the Tribunal, may, on application by an interested person, vest the residential tenancy agreement in the person who would, but for the agreement, be entitled to possession of the premises so that the tenant holds the premises directly from that person as landlord. (3) An order may be made under subsection (2) on terms and conditions the court or Tribunal considers just. Division 7—Abandoned property 97—Abandoned property (1) This Division applies to property (abandoned property) that is left on residential premises by a tenant after termination of a residential tenancy agreement. (2) Nothing in this Division affects any obligation a landlord may have in relation to property left on the premises under another Act or law. 97A—Offence to deal with abandoned property in unauthorised way A landlord must not deal with abandoned property otherwise than in accordance with this Division. Maximum penalty: $10 000. 97B—Action to deal with abandoned property other than personal documents (1) This section applies to abandoned property other than personal documents. (2) The landlord may, at any time after recovering possession of the premises, remove from the premises and destroy or dispose of abandoned property consisting of perishable goods. (2a) The landlord must, within the period of 2 days after recovering possession of the premises, allow the tenant access to the premises to reclaim abandoned property. (3) The landlord may, when at least 2 days have passed after recovering possession of the premises, remove from the premises and destroy or dispose of abandoned property, other than perishable goods, if the value of the property is less than a fair estimate of the cost of removal, storage and sale of the property. (4) If there is abandoned property (other than personal documents) on the premises that may not be dealt with under subsection (2) or (3) (valuable abandoned property), the landlord must— (a) as soon as practicable, make reasonable attempts to notify the tenant that such property has been found on the premises; and (b) take reasonable steps to keep the property safe for the prescribed period after possession of the premises is recovered. (5) A person who is entitled to possession of valuable abandoned property may reclaim the property by paying to the landlord the reasonable costs incurred by the landlord in dealing with the property in accordance with this Division and any other reasonable costs incurred by the landlord as a result of the property being left on the premises. (6) If valuable abandoned property is not reclaimed within the prescribed period, the landlord may, subject to the regulations, sell or otherwise lawfully dispose of the property (as if the landlord were the owner of the property). (7) If valuable abandoned property is sold in accordance with this section, or if any other abandoned property is sold by the landlord, the landlord— (a) may retain out of the proceeds of sale— (i) the reasonable costs incurred by the landlord in dealing with the property in accordance with this Division and any other reasonable costs incurred by the landlord as a result of the property being left on the premises; and (ii) any amounts owed to the landlord under the residential tenancy agreement; and (b) must pay the balance (if any) to the owner of the property, or if the identity and address of the owner are not known to, or reasonably ascertainable by, the landlord, to the Commissioner for the credit of the Fund. (8) If a dispute arises between a landlord and tenant about the exercise of powers conferred by this section, the Tribunal may, on application by either party to the dispute, make orders resolving the matters in dispute. 97C—Action to deal with abandoned personal documents (1) This section applies to abandoned property consisting of personal documents. (2) The landlord must— (a) as soon as practicable, make reasonable attempts to notify the tenant that the documents have been found on the premises; and (b) take reasonable steps to keep the documents safe for the prescribed period after possession of the premises is recovered. (3) If the personal documents are not reclaimed by the tenant within the prescribed period, the landlord may destroy or dispose of the documents. (4) Subsection (3) applies subject to any Act relating to the preservation of records. Division 8—Enforcement of orders for possession 99—Enforcement of orders for possession (1) If an order for possession of premises is made by the Tribunal and the person in whose favour the order was made advises the Tribunal, within 14 days of the day on which the order takes effect or such longer period as the Tribunal may allow, that the order has not been complied with— (a) the order is enforceable by a bailiff (and, subject to subsection (3), only by a bailiff); and (b) the bailiff must enforce the order as soon as is practicable after the Tribunal is advised that it has not been complied with. (2) A bailiff enforcing an order for possession of premises may enter the premises, ask questions and take all steps as are reasonably necessary for the purpose of enforcing the order. (3) A police officer must, if requested by a bailiff, assist the bailiff in enforcing an order for possession. (4) In the exercise of the powers conferred by this section a bailiff may use the force that is reasonable and necessary in the circumstances. (5) A person must not hinder or obstruct a bailiff in the exercise of the powers conferred by this section. (6) A person questioned pursuant to this section must not refuse or fail to answer the question to the best of his or her knowledge, information and belief. (7) However, a person is not obliged to answer a question under this section if to do so might tend to incriminate the person or to make the person liable to a penalty, or would require the disclosure of information that is privileged under the principles of legal professional privilege.