31 August 2015

Amendments to the Residential Tenancies Regulations 1989 (the RT Regulations) have been gazetted in the Government Gazette of 21 August 2015. The changes come into effect on various dates, with further detail on each of the changes being provided below.

Key dates for amendments to take effect 

• From 22 August 2015 amendments relating to renewing or extending written tenancy agreements and the partial reimbursement of security bonds take effect.
• From 20 September 2015 updates to prescribed forms incorporating consent for electronic service: Form 1AA Residential Tenancy Agreement (Form 1AA) and Form 1AD Information for Tenant with Non-written Residential Tenancy agreement (Form 1AD).

Renewing or extending written tenancy agreements (regulation 5AB effective 22 August 2015)

As you will be aware, section 27A of the Residential Tenancies Act 1987 (the RT Act) requires a written tenancy agreement to be completed using the prescribed Form 1AA.

Regulation 5AB of the RT Regulations has been amended to include a provision that clarifies a new written tenancy agreement is not required when the tenancy is simply being renewed or extended with the same parties at the same premises. Instead of completing a new Form 1AA, the parties can renew or extend the agreement by confirming the material changes to the agreement in writing, for example, the new start and end dates of the agreement and any new amounts of rent payable.

Partial reimbursement of security bonds (regulation 5BA effective 22 August 2015)

Under section 29(8) of the RT Act, a lessor or property manager cannot require a tenant to sign the Joint application for disposal of the security bond (bond disposal form) until the tenancy agreement relating to the security bond has been terminated and the amounts payable to the tenant and/or lessor are stated on the form.

While section 29(8) was intended to prevent the practice of a lessor or property manager having a tenant sign a blank bond disposal form (akin to signing a blank cheque) before the tenancy has ended and the eventual amounts are agreed, it has had an unintended consequence on the ability to refund part of the security bond to a tenant during the tenancy.

Though not a requirement of the RT Act, some lessors and property managers agree to decrease the amount of the bond when the rental amount decreases or a pet is no longer at the premises.

As a result, regulation 5BA has been inserted into the RT Regulations to include a provision that section 29(8) of the RT Act will not apply when the tenant is being provided with a partial refund of the security bond when there has been a decrease in the rent payable under the tenancy agreement or a pet bond was paid but the pet is no longer being kept at the premises.

When providing the Bond Disposal Form to the tenant for their signature, the form must detail the amount payable to the each tenant. Bond money cannot be returned to the agent or lessor if the bond is being decreased during the tenancy. 

Form 1AA Residential Tenancy Agreement (updates effective 20 September 2015)

Section 85 of the RT Act outlines how notices or documents required or authorised to be issued under the RT Act are required to be served. However as noted in the Special Bulletin: Residential Tenancies Act 1987 Issue 45, it is the Department’s view that notices issued under the RT Act can be served electronically.

The Form 1AA will be amended to include a provision for each party to the agreement to advise if they consent to receiving notices and information by email and/or facsimile. For existing tenancy agreements, the consent of the parties can be obtained in writing.

Under the Electronic Transactions Act 2011, certain notices and documents required to be given to a tenant in writing under the RT Act can be provided electronically, as long as the:

• signature of a person on the document (other than the author) is not required to be verified, authenticated, attested or witnessed;
• information or documentation is not specified as only being able to be delivered by personal service;
• information is given in a way that is readily accessible; and
• recipient has consented to the information being given by means of electronic communication.

Clauses 46 and 49 within Part B of the Form 1AA will be altered to reflect new regulation 5BA in relation to the partial refund of a security bond.

Clauses 51A to 51D will be added to Part B of the Form 1AA to include information about electronic service of notices or documents.

You will need to make sure that you start using the new version of the Form 1AA for all new agreements from 20 September 2015. You do not need to replace existing agreements with the new form.

Form 1AD Information for Tenant with Non-written Residential Tenancy agreement (updates effective 20 September 2015)

If a verbal residential tenancy agreement is made, section 27B(b) of the RT Act requires the lessor or property manager to provide the tenant with a copy of the prescribed Form 1AD.

Clauses 45 and 48 of Form 1AD will be updated to reflect the regulation amendments in relation to the partial refund of a security bond and about the service of notices electronically.

Similar changes to those stated above will be made to the prescribed Form 1AB Social housing tenancy agreement and will take effect as of 20 October 2015, though these may not directly affect you.

Forms and information relating to residential tenancies are available on the Department’s website and enquiries can be made by email or by calling 1300 30 40 54.