How you are impacted by recent changes to the Residential Tenancies Act 1987, changed CPD arrangements and more - Real estate industry bulletin 212

23 December 2019

New Residential tenancy laws

The Consumer Protection Legislation Amendment Bill 2018 passed through parliament recently, bringing changes to the REBA Act and residential tenancy laws.

These changes to the REBA Act mean that you will need to meet your annual compulsory professional development (CPD) requirements every calendar year or face potential enforcement action.

The Real Estate and Business Agents (General) Regulations 1979 require real estate agents, business agents and sales reps to complete their CPD activities by the end of each calendar year.  The Act has been amended to create an offence for non-completion of CPD. Modified penalties to enable infringement notices to be issued as an alternative to prosecution or other disciplinary action are currently being drafted.  Further information will be provided once the arrangements are finalised.

From 1 January 2020 the Commissioner will be able to review your compliance with CPD obligations and apply a condition to a certificate of registration or licence for non-compliance at any time not just at renewal.

From 1 January 2021 should you not comply with the annual requirement to undertake 10 hours of CPD training the Commissioner will have the ability to:

• provide education on the requirements;
• issue a formal administrative warning,
• issue an infringement notice;
• take disciplinary or prosecution action; or
• apply a condition to a certificate​

Also included in the recent changes to the REBA Act are new provisions to:

• Permit a claim on the fidelity fund where the defalcation occurs within six months after the agent ceases to hold a licence and triennial certificate where the CEO considers that to be just and reasonable.
• Allow an allegation to be made to the SAT in respect of a contravention under the REBA Act by an agent for up to 12 months after the agent ceases to hold a licence or triennial certificate.
• Require that an application for assistance from the Home Buyers Assistance Account be made within 90 days of settlement of the contract.
• Consider it an offence for a person to give false/misleading information in all instances where the person is required by the REBA Act to give information to the Commissioner or Chief Executive Officer.

Changes to Residential Tenancies Act 1987(the RTA)

Recent changes to tenancy legislation that may affect you include new provisions.

Affixing furniture

While Consumer Protection has actively encouraged lessors to permit tenants to affix furniture to prevent it toppling onto children, from 2 December 2019 changes to tenancy laws allow tenants to apply to an agent for permission to affix furniture in order to ensure the safety of a child or person with a disability. The tenant must use the approved form.  You have 14 days to respond to the request and can only refuse if:

• affixing the item to the wall would disturb material containing asbestos; or
• the premises are entered in the Register of Heritage Places; or
• the premises is situated in a strata scheme with by-laws prohibiting the affixing of the item to the wall of the premises.

If you do not respond within the 14 days you are taken to have consented to the request.

The tenant must notify the landlord in writing of any damage caused by anchoring and removing furniture, and be responsible to repair it. The tenant must remove the items from the wall at the end of the tenancy and restore the wall to its original condition unless otherwise agreed in writing.

Read our Furniture stability webpage and factsheet for complete details.

Utilities

From 1 January 2020 who is responsible for utilities charges has been clarified.

When the service is connected in the name of the lessor or a strata company the tenant is only responsible to pay the cost for their consumption if the service is separately metered or if not separately metered then only if the calculation of the charge has been previously agreed in writing between the lessor and the tenant.

If the service is not in the name of the tenant the tenant is not responsible for any charges other than consumption.  If you wish the tenant to pay for consumption you must provide the tenant a detailed written notice of the charge,  including the meter readings and the charge per metered unit within 30 days of receipt of the water, gas or electricity bill from the provider.  Where these charges are not coming direct from the provider to the agent you should ensure that the lessor is aware of the changes to ensure that invoices are received within the timeframe which allows for the charges to be passed onto the tenant.

The charge to the tenant can include the GST component of the consumption amount.

Where a tenancy ends within 30 days after an invoice for a public utility service is received or the invoice is received after the tenancy has ended notice may be provided to the tenant as soon as practicable after the notice is received and the tenant is located.

The Paying rates and utilities webpage will be updated on 2 January 2020.

Damage to premises

Standard tenancy agreements require tenants to not intentionally or negligently cause damage or permit damage to be caused to the residential premises.  From 1 January 2020 tenants will be responsible for damage to common areas and chattels in common areas of strata properties.  A court may terminate a residential tenancy agreement where the tenant has intentionally or recklessly caused or permitted serious damage to a common area or chattels in the common area of the premises.

Magistrates Court representation

From 1 January 2020 discretion has been restored to Magistrates to appoint an appropriate person to represent a party in court. The Magistrate must still permit a property manager or tenant advocate employed by a non-profit association or similar body  to represent a party in court, but will also have discretion to appoint another appropriate person if deemed necessary.  This could be required if a party is unable to attend due to being ill or overseas, for example.  This person will have to demonstrate that they have sufficient knowledge of the issue to provide that they can appropriately represent the party. In order to agree to the representation the Magistrate must still be convinced that the other party will not be disadvantaged by the representation.​

Office Hours for Christmas/New Year Period

Our offices will be closed from Wednesday 25 December 2019 to Wednesday 1 January 2020. We will reopen for business on Thursday 2 January 2020.