The Residential Tenancies Act 2010 (NSW) was assented to on 17 June 2010, and section 79 of the new Act contains provisions that can both terminate and modify residential tenancy arrangements in some circumstances where a final order for an Apprehended Violence Order (‘AVO’) has been made.
The new Act will come into effect in late 2010 after the necessary supporting regulations have been made, so it is important to note that the comments that follow refer to a law that has not yet come into force.
For further information, visit the Office of Fair Trading’s website: http://www.fairtrading.nsw.gov.au/About_us/Legislation/Changes_to_legislation/Renting_laws_are_changing.html
According to the Office of Fair Trading, once the new laws come into force, s 79 will ensure that ‘victims of domestic violence living in a rented property will have the right to change the locks and seek to take over the tenancy if their name is not already on the lease.’ This perhaps overstates the true position, since the relevant provisions are only triggered where the AVO includes an exclusion order. In other words, the AVO must prohibit the respondent from ‘having access to the residential premises.’ Presumably then, an order that simply prohibits the respondent from assaulting, molesting or harassing the person in need of protection (‘PINOP’), will not be sufficient to trigger s79 once the Act comes into force.
It is important to note that s 79(1) appears to operate automatically to terminate the tenancy of the respondent to the AVO. According to this sub-section, upon the making of a final AVO that includes an exclusion order prohibiting the respondent from having access to the rented premises, the respondent’s tenancy ‘is terminated’, although this termination does not affect the tenancy of any co-tenant not subject to the order. The sub-section does not seem to envisage any form of application to the CTTT to effect the termination, so presumably it is the order itself that triggers this event. No doubt the regulations will contain greater detail of the processes of notification of landlords that will be required.
This is all very well, but what if the PINOP is not on the lease?
S 79(2) addresses this concern by providing that the Tribunal may make an order recognising a remaining occupant ‘as a tenant under the residential tenancy agreement,’ again, provided ‘the tenant or a former tenant or co-tenant is prohibited by a final apprehended violence order from having access to the residential premises.’ Of course this will require a formal application to be made by the PINOP to the CTTT, and the forthcoming regulations will no doubt flesh the necessary processes out.
Subsection 3 goes on to provide that such an order may vest a tenancy ‘on such of the terms of the previous residential tenancy agreement as the CTTT thinks appropriate having regard to the circumstances of the case’, which seems to suggest that the CTTT can delete terms from the existing tenancy agreement, but not add or otherwise modify the terms of the existing agreement.
In subsequent updates we will provide you with further details of the regulations.