Subdiv 5Miscellaneous

Subdivision 5—Miscellaneous 105S—Accelerated rent and liquidated damages (1) If a rooming house agreement provides that, on breach by the resident of a term about rent or other term of the agreement, the resident is liable to pay— (a) all or any part of the rent remaining payable under the agreement; or (b) rent of an increased amount; or (c) an amount by way of penalty; or (d) an amount by way of liquidated damages, the provision is void. (2) If a rooming house agreement provides that, on early or punctual payment of rent, the rent will or may be decreased or the resident will or may be granted or paid a rebate, refund or other benefit, the resident is entitled to the reduction, rebate, refund or other benefit in any event. (3) If a rooming house agreement contains a provision to which this section applies, the proprietor is guilty of an offence. 105T—Goods not to be taken in lieu of amounts owing to proprietor A proprietor must not take or dispose of a resident's goods on account of any rent or other amount owing to the proprietor by the resident under the rooming house agreement. Division 5—Termination of rooming house agreement 105U—Termination of rooming house agreement (1) If a resident under a rooming house agreement has abandoned the resident's room, the rooming house agreement is terminated. (2) A resident will be taken to have abandoned the resident's room if— (a) the Tribunal has made a declaration under section 105V that the resident abandoned the room; or (b) — (i) the rent payable under the agreement has remained unpaid in breach of the agreement for not less than 7 days; and (ii) the proprietor— (A) has made reasonable efforts to contact the resident without success; or (B) has been advised by the resident that the room is abandoned. (3) If rent remains outstanding for at least 2 rental periods or 2 weeks (whichever is the lesser), the proprietor may give the resident a written notice informing the resident that if the amount owing is not paid within a specified period (which must be a period of at least 2 clear days) from the date the notice is given then— (a) the rooming house agreement is terminated at the end of the specified period by force of the notice; and (b) the resident must vacate the premises at the end of the specified period. (4) If a resident, or a person who has entered the rooming house at the resident's invitation, causes serious damage to the rooming house, creates a danger to a person or property in the rooming house, or seriously interrupts the privacy, peace, comfort or quiet enjoyment of another resident, the proprietor may give the resident a written notice informing the resident that— (a) the rooming house agreement is terminated by force of the notice immediately or on a specified day; and (b) the resident must vacate the premises immediately or on or before the specified day (as the case requires). (5) If a resident breaches a term of the rooming house agreement (otherwise than as referred to in a preceding subsection), the proprietor may give the resident a written notice informing the resident that— (a) the rooming house agreement is terminated by force of the notice on a specified day (which must be at least 7 clear days after the day the notice is given); and (b) the resident must vacate the premises on or before the specified day. (6) A proprietor may terminate a rooming house agreement on any ground prescribed by the regulations by giving the resident at least 60 days written notice of termination. (6a) Despite subsection (6), if a rooming house has, within the preceding 6 months, been the subject of an inspection by an authorised officer within the meaning of the Housing Improvement Act 2016 in connection with the administration or enforcement of that Act, the proprietor may only terminate a rooming house agreement by notice under that subsection if the notice is given on 1 or more grounds prescribed by regulation for the purposes of this subsection and the Tribunal authorises the giving of the notice. (6b) Subsection (6a) does not apply if a notice to vacate applies in respect of the premises. (7) A resident under a rooming house agreement providing for accommodation on a periodic basis may terminate the agreement without specifying a ground for termination by giving the proprietor at least 1 days notice of termination. (8) A notice under this section must be in the form approved by the Commissioner. 105UA—Termination based on abuse of rooming house resident (1) The Tribunal may, on application by a resident, terminate a rooming house agreement from a date specified in the Tribunal's order if satisfied— (a) that an intervention order is in force against a person who resides in the same rooming house as the applicant (whether or not under the same rooming house agreement as the applicant) for the protection of— (ii) a domestic associate of the applicant who normally or regularly resides in the rooming house; or (b) that a person who resides in the same rooming house as the applicant (whether or not under the same rooming house agreement as the applicant) has committed domestic abuse against— (ii) a domestic associate of the applicant who normally or regularly resides in the rooming house. (2) For the purposes of an application under this section, the applicant, the proprietor and any other resident under the rooming house agreement are parties to proceedings concerning the tenancy dispute. (3) If the Tribunal makes an order under subsection (1)— (a) the Tribunal may, subject to this section, also make an order requiring the proprietor to enter into a new rooming house agreement with the applicant or another resident under the terminated rooming house agreement (or both) for the remainder of the term of the agreement; and (b) the new rooming house agreement must be on the same terms and conditions as the terminated rooming house agreement, subject to any changes determined by the Tribunal. (4) The Tribunal must not make an order under subsection (3) requiring the proprietor to enter into a new rooming house agreement with a resident under the terminated rooming house agreement who is— (a) the person referred to in subsection (1)(a) against whom an intervention order is in force; or (b) the person referred to in subsection (1)(b) whom the Tribunal is satisfied has committed domestic abuse against an applicant or a domestic associate of the applicant who normally or regularly resides in the rooming house, if the proprietor indicates, as part of proceedings before the Tribunal, that the proprietor considers it would be unreasonable for such an order to be made. (5) The Tribunal must, before making an order under subsection (3) requiring a proprietor to enter into a new rooming house agreement, be satisfied that the resident or residents under the new rooming house agreement could reasonably be expected to comply with the obligations under the new agreement. (6) If a party to proceedings on an application under this section objects to an application for the making of an order under subsection (1) or (3), the Tribunal must not make the order unless satisfied that the hardship likely to be suffered by the applicant or a domestic associate of the applicant who normally or regularly resides in the rooming house would, if the order were not made, be greater than any hardship likely to be suffered by the objector as a consequence of the making of the order. (7) In considering an application under this section, the Tribunal must have regard to such of the following orders and proceedings (if any) as are relevant to the application: (a) an order, injunction, undertaking, plan, recognisance or other form of obligation imposed or agreement made under the Family Law Act 1975 of the Commonwealth; (d) a pending application for an order referred to in paragraph (a), (b) or (c); (8) If a rooming house agreement is terminated under this section because of an intervention order in force against a resident under the agreement, or because a resident under the agreement has committed domestic abuse, the Tribunal may order the resident to make a payment of compensation to the proprietor for loss and inconvenience resulting, or likely to result, from the termination of the agreement or from an order under subsection (3). (9) If the Tribunal finds, in relation to a rooming house agreement that is terminated under this section, that 1 or more, but not all, of the residents under the agreement are responsible for damage to the rooming house or property provided by the proprietor, the Tribunal may determine that the responsible resident or residents are liable (to the exclusion of other residents under the agreement) for making any payment of compensation ordered under section 110(1)(c). (10) If 1 or more, but not all, of the residents under a rooming house agreement are liable under subsection (8) or (9) for making a payment of compensation, the following provisions apply: (a) the Tribunal may give a direction under section 110(1)(i) that the bond (if any) be paid to the proprietor and any resident who is not liable for making the payment in such proportions as the Tribunal thinks fit; (b) a direction under paragraph (a) may not operate to limit the amount of bond payable to a proprietor under section 110(1)(i). 105V—Abandoned room (1) The Tribunal may, on application by a proprietor, declare that a resident abandoned the resident's room on a day stated in the declaration. (2) The resident is taken to have abandoned the room on the day stated in a declaration under this section. (3) If a resident under a rooming house agreement for the provision of accommodation for a period of 6 months or more has abandoned the resident's room, the proprietor is entitled to compensation for any loss (including loss of rent) caused by the abandonment. (4) However, the proprietor 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 proprietor, order the resident to pay to the proprietor compensation to which the proprietor is entitled under this section. 105W—Abandoned property (1) If property is left on the premises by a resident after the resident vacates the resident's room— (a) the proprietor may, at any time after recovering possession of the room, remove from the premises and destroy or dispose of property consisting of perishable goods; and (b) in the case of any other property (other than personal documents), the proprietor— (i) must, as soon as practicable, make reasonable attempts to notify the resident that the property has been found on the premises; and (ii) must take reasonable steps to keep the property safe for the prescribed period after possession of the room is recovered; and (iii) may destroy or dispose of the property after taking steps to keep it safe for the period referred to in subparagraph (ii). (2) If personal documents are left on the premises by a resident after the resident vacates the resident's room, the proprietor— (a) must, as soon as practicable, make reasonable attempts to notify the resident that the documents have been found on the premises; and (b) must take reasonable steps to keep the documents safe for the prescribed period after possession of the room is recovered; and (c) may destroy or dispose of the documents if they are not reclaimed by the resident within the period referred to in paragraph (b). (3) For the purposes of this section, a person who is entitled to possession of the property may reclaim it by paying to the proprietor the reasonable costs incurred by the proprietor as a result of the property being left on the premises. (4) A proprietor may not deal with property left on premises by a resident after termination of a rooming house agreement otherwise than in accordance with this section. (5) Nothing in this section affects any obligation a proprietor may have in relation to property left on the premises under another Act or law. Part 8—Dispute resolution Division 1—Conciliation Subdivision 1—Definitions for this Division 106—Definitions conciliation of a dispute includes preliminary assistance in dispute resolution such as the giving of advice to ensure that— (a) the parties to the dispute are fully aware of their rights and obligations; and (b) there is full and open communication between the parties about the dispute; conciliation conference means a conference called by the Commissioner under section 107(4). Subdivision 2—Conciliation of dispute by Commissioner 107—Conciliation of dispute by Commissioner (1) If a party to a tenancy dispute applies to the Commissioner for conciliation of the dispute, the Commissioner may conciliate the dispute. (2) A fee prescribed by regulation is payable on an application under subsection (1). (3) The Registrar or a Deputy Registrar may refer an application made to the Tribunal to the Commissioner for conciliation. (4) The Commissioner may call a conference of the parties to the dispute for the purpose of attempting to resolve the dispute by agreement. (5) The Commissioner must notify the parties of the time and place fixed for the conference. (6) If conciliation of a dispute is terminated because it appears to the Commissioner that it is unlikely that an agreed settlement can be reached within a reasonable time or for any other reason, the Commissioner must refer the matter to the Registrar or a Deputy Registrar for the listing of the matter before the Tribunal. Subdivision 4—Duties and procedure 108A—Functions of Commissioner in conciliation of dispute The Commissioner has the following functions in the conciliation of a tenancy dispute under this Division: (a) to seek to identify the issues in dispute and to narrow the range of the dispute; (b) to encourage the settlement of the dispute by facilitating, and helping to conduct, negotiations between the parties to the dispute; (c) to promote the open exchange of information relevant to the dispute by the parties; (d) to provide to the parties information about the operation of this Act relevant to a settlement of the dispute; (e) to help in the settlement of the dispute in any other appropriate way. 108B—Procedure (1) A conciliation conference may, at the discretion of the Commissioner, be adjourned from time to time. (2) Unless the Commissioner decides otherwise, the conference will be held in private and the Commissioner may exclude from the conference any person apart from the parties and their representatives. (3) The Commissioner (if not legally qualified) may refer a question of law arising at the conference to a member of the Tribunal who is a legally qualified member (within the meaning of the South Australian Civil and Administrative Tribunal Act 2013) for determination. (4) A party must, if required by the Commissioner, disclose to the other party details of the party's case and of the evidence available to the party in support of that case. (5) The Commissioner or a party may terminate a conciliation at any time. (6) A settlement to which a party or representative of a party agrees at a conciliation conference is binding on the party provided that it is not inconsistent with this Act. (7) The settlement must be put into writing and signed by or for the parties and a copy of the signed settlement must be provided to the Tribunal. (8) The Tribunal may make a determination or order to give effect to the settlement. (10) The Commissioner has the same protection and immunity as a member of the Tribunal under the South Australian Civil and Administrative Tribunal Act 2013. 108C—Restriction on evidence Evidence of anything said or done in the course of conciliation of a tenancy dispute under this Division is inadmissible in proceedings before the Tribunal except by consent of all parties to the proceedings. Division 2—Intervention 109—Power to intervene (1) The Commissioner may intervene in proceedings before the Tribunal or a court concerning a tenancy dispute. (2) If the Commissioner intervenes in proceedings the Commissioner becomes a party to the proceedings and has all the rights (including rights of appeal) of a party to the proceedings. Division 3—Powers of the Tribunal 110—Powers of Tribunal (1) The Tribunal may, on application by a party to a tenancy dispute— (a) restrain an action in breach of this Act, a residential tenancy agreement, a rooming house agreement, or an agreement collateral to a residential tenancy agreement or a rooming house agreement; or (b) require a person to comply with an obligation under this Act, a residential tenancy agreement, a rooming house agreement or an agreement collateral to a residential tenancy agreement or a rooming house agreement; or (c) order a person to make a payment (which may include compensation) under this Act, a residential tenancy agreement, a rooming house agreement or a collateral agreement or for breach of this Act, a residential tenancy agreement, a rooming house agreement, or a collateral agreement; or (d) relieve a party to a residential tenancy agreement, a rooming house agreement or a collateral agreement from the obligation to comply with a provision of the agreement; or (e) terminate a residential tenancy or rooming house agreement or declare that a residential tenancy or rooming house agreement has, or has not, been validly terminated; or (f) reinstate rights under a residential tenancy agreement or rooming house agreement that have been forfeited or have otherwise terminated; or (g) require payment of rent into the Fund until conditions stipulated by the Tribunal have been complied with; or (h) require that rent paid into the Fund be paid out and applied as directed by the Tribunal; or (i) require that a bond (including a bond under Part 7) paid into the Fund be paid out and applied as directed by the Tribunal; or (j) require a tenant or a rooming house resident to give up the possession of premises to the landlord or rooming house proprietor; or (k) make orders to give effect to rights and liabilities arising from the assignment of a residential tenancy agreement; or (l) exercise any other power conferred on the Tribunal under this Act; or (m) do anything else necessary or desirable to resolve a tenancy dispute. (2) The Tribunal does not have jurisdiction to award compensation for damages arising from personal injury. 111—Conditional and alternative orders (1) The Tribunal may make orders on conditions the Tribunal considers appropriate. (2) The Tribunal may make orders in the alternative so that a particular order takes effect, or does not take effect, according to whether stipulated conditions are complied with. 112—Restraining orders (1) If the Tribunal is satisfied, on application by a landlord, that there is a risk that the tenant or a person permitted on the premises by the tenant may cause serious damage to property or personal injury, the Tribunal may make an order (a restraining order) restraining the tenant and other persons on the premises from engaging in conduct of a kind described in the order. (1a) If the Tribunal is satisfied, on application by a tenant, that there is a risk that a co‑tenant or a person permitted on the premises by a co‑tenant may— (a) cause serious damage to property; or (b) cause personal injury; or (c) if the co‑tenant is a domestic associate or former domestic associate of the tenant—commit an act of domestic abuse, the Tribunal may make a restraining order restraining the co‑tenant and other persons on the premises from engaging in conduct of a kind described in the order. (1b) In considering an application under subsection (1a), the Tribunal must have regard to such of the following orders and proceedings (if any) as are relevant to the application: (a) an order, injunction, undertaking, plan, recognisance or other form of obligation imposed or agreement made under the Family Law Act 1975 of the Commonwealth; (d) a pending application for an order referred to in paragraph (a), (b) or (c); (2) An application for a restraining order may be made without notice to the persons against whom the order is sought but, if the order is made without giving them a reasonable opportunity to respond to the allegations against them, the Tribunal must allow them a reasonable opportunity to satisfy it that the order should not continue in operation. (3) A person must not contravene a restraining order. Maximum penalty: Imprisonment for 1 year. Division 4—Representation 113—Representation (1) A party to a tenancy dispute may only be represented in proceedings before the Tribunal (including a conference or mediation under sections 50 and 51 respectively of the South Australian Civil and Administrative Tribunal Act 2013), or at a conciliation conference under this Act, as allowed by this section. (2) A party to a tenancy dispute may be represented by a lawyer if— (a) all parties to the proceedings agree to the representation and the Tribunal is satisfied that it will not unfairly disadvantage a party who does not have a professional representative; or (b) the Tribunal is satisfied that the party is unable to present the party's case properly without assistance; or (c) another party to the dispute is a lawyer, or is represented by a professional representative; or (d) the Commissioner has intervened in, or is a party to, the proceedings. (3) A party to a tenancy dispute may be represented by a person who is not a lawyer if— (a) the party is a body corporate and the representative is an officer or employee of the body corporate; or (b) the party is a landlord or rooming house proprietor and the representative is an agent, or an officer or employee of an agent, appointed by the landlord or rooming house proprietor to manage the premises on the party's behalf; or (c) all parties to the proceedings agree to the representation and the Tribunal is satisfied that it will not unfairly disadvantage an unrepresented party; or (d) the Tribunal is satisfied that the party is unable to present the party's case properly without assistance. (4) In this section— professional representative means— (a) a lawyer, a law clerk, or a person who holds or has held legal qualifications under the law of the State or another place; or (b) a land agent, or an officer or employee of a land agent. 114—Remuneration of representative A person must not ask for or receive a fee for representing a party to a tenancy dispute in proceedings before the Tribunal (including a conference or mediation under sections 50 and 51 respectively of the South Australian Civil and Administrative Tribunal Act 2013), or at a conciliation conference under this Act, unless— (a) the representative is a lawyer or a law clerk employed by a lawyer; or (b) the representative is an officer or employee of a body corporate who represented the body corporate in the proceedings; or (c) the representative is an agent, or an officer or employee of an agent, who represented a landlord in the proceedings whose premises the agent had been appointed to manage on behalf of the landlord. Division 5—Other matters 114A—Internal review in relation to certain orders (1) Despite section 70 of the South Australian Civil and Administrative Tribunal Act 2013, leave must not be granted under section 70(1a) of that Act in relation to an application for review of a relevant decision, except if exceptional circumstances apply. (2) In this section— relevant decision means an order of the Tribunal under this Act that a person make a payment (which may include compensation) to another person, other than an order for vacant possession of premises in respect of a residential tenancy agreement that includes either or both of the following: (a) a payment relating to rent arrears (being rent payable under the agreement that has remained unpaid); (b) a payment relating to future rent payments (being rent payable until the termination of the residential tenancy).