Monday, 20th of November, 2017

Housing - Renting and Buying

Public Housing

A Guide to the ‘Housing Assessment System’

The priority given to an application for public rental accommodation is determined by a weighted measure of factors related to housing need. The factors used to determine need are Adequacy; Affordability; Appropriateness. Consideration is also given under Exceptional Need. Points are awarded under the three factors as required based on the applicant’s current housing situation and relevant associated issues.

Factor 1 – Adequacy

The aim of assessing housing adequacy is to recognise the importance of an appropriate standard of housing and to ensure that applicants living in different accommodation types have equitable access to public housing. The Adequacy factor includes those who have no or substandard accommodation, those who are in short or medium term transitional accommodation and those who’s medium to long term secure accommodation does not have appropriate amenity or space.

Adequacy is defined as the extent to which an applicant's current housing arrangements are considered suitable. This is achieved by assessing the applicant's current accommodation against:

  • Tenure Form – incorporating Living Conditions and Insecurity of Tenure; and
  • Bedrooms Short - the number of bedrooms required for the household.

Factor 2 – Affordability

The aim of assessing housing affordability is to recognise financial hardship due to excessive accommodation costs and to encourage applicants to access Centrelink rent assistance where applicable.

Affordability is defined as the extent to which the price of current accommodation lies within an applicant’s capacity to pay. This is achieved by measuring:

  • Rent to Income Ratio – the burden of rent that erodes expendable income;
  • Low Income Status – the hardship of survival for people on very low incomes; and
  • Cost of Buying Basic Facilities – forced costs associated with having no housing.

Rent to Income

Applicants paying less than 30% of their income in rent will not receive any points under this factor, as this level is considered affordable.

Board paid to recognised boarding houses, rooming houses, family and friends is treated as having rental, food and electricity components. The food component is set at $50 per boarding applicant per week and the electricity component at a flat rate of $20 per boarding household (any size) per week. The calculated rent component is then used to determine the Rent to Income Ratio.

Low Income

Where an applicant’s income is equivalent to or less than the Youth Allowance living away from home rate, points should be allocated. These points recognise the hardship of survival on very low incomes even where the rent to income ratio is not particularly high.

Cost of Buying Basic Facilities

Where applicants with no accommodation or substandard accommodation do not have the rental costs that other tenure forms carry, it is recognised that there are other costs involved.

Factor 3 – Appropriateness

The aim of assessing appropriateness is to recognise the benefits to the physical, mental and social well-being that housing, as a resource can provide.

Appropriateness is defined as the match between current living conditions and the specialised or particular circumstances of the applicant, recognising that some applicants require accommodation that is tailored to their unique needs.

This is achieved by assessing:

  • Family Violence, Sexual Assault/Abuse and Community Violence;
  • Requirement for a Modified Environment;
  • Ill-Health;
  • Requirement for a Stable Environment; and
  • Locational Disadvantage.

Assessment can be made up of any combination of the sub factors with the exception of Requirement for a Stable Environment and Family Violence which are mutually exclusive. It is recognised that family violence survivors require a stable environment and assigning maximum Family Violence points accounts for this.

Family Violence

Family Violence recognises that survivors of abuse may often be left in unsafe or short term transitional accommodation.

Confirmation will be required if the client is an applicant for public housing.

Confirmation of Family Violence may come from a number of sources. While legal documents are important, in some cases the commencement of legal action may result in greater personal risk for the client. The expert advice provided by the Victim Safety Response Team (VSRT), Tasmania Police, Family Violence Counselling and Support Service (FVCSS) and other practitioners carries equal weight. For Aboriginal people it is appropriate with their permission, to seek confirmation from alternative sources such as the Aboriginal Legal Service, Aboriginal Health Service or a senior member of the Aboriginal community who is recognised and endorsed by the Tasmanian Aboriginal Centre.

Requirement for a Modified Environment

Requirement for a Modified Environment recognises that the private rental market and some other accommodation options have limited capacity to meet the often specialised requirements of a person with a disability or a chronic health problem.

The assigning of Requirement for a Modified Environment points recognises that the applicant’s current accommodation does not provide suitable features for the applicant or other household members to live independently, with or without support.

Requirement for a Modified Environment is recognised when supported by a Certificate of Functional Ability. The certificate requires the person with a disability/condition to identify the nature and extent of functional impairment caused or made worse by their current accommodation.

Ill-Health

Where current accommodation may be detrimental to the applicant’s physical or mental health status, this will be considered as part of the application.

Ill-Health points are assigned where current accommodation is causing or worsening a physical or mental health condition due to draughty or damp accommodation, inadequate heating, overcrowding or the type of building materials used. The expectation is that the condition or disorder will disappear or diminish if the applicant is housed in public housing.

Claims for points under this factor must be supported by a Certificate of Ill-Health completed by a Medical Practitioner or Psychiatric Health Nurse, Psychiatrist or Clinical Psychologist. This form is only available from public housing at the time of assessment.

Requirement for a Stable Environment

This category recognises that some families or individuals have complex or multiple needs, which are being case managed or supervised on an ongoing basis, and where a positive outcome is contingent on the provision of stable housing.

Written documentation from an appropriate service provider must be provided.

Locational Disadvantage

If the location of the accommodation creates major difficulties in getting to essential and/or medical facilities, specialised schooling or employment, the applicant may be awarded points. The applicant’s capacity to use public transport and access to other forms of transport is considered in this category.

Offer Rejection

Offer rejection applies to those applicants who have chosen to unreasonably reject suitable offers of housing. Minus 10 points apply from one unreasonable rejection of an offer. This may change an applicant’s category.

Allocations

Public rental dwellings are to be offered on the basis of those most in need receiving assistance first.

Categories

A grading system is used to ensure that the relative need of applicants is determined in a consistent way, both within and between Service Centres. This system determines relative weighting for each applicant and this weighting will then determine the specific priority category for allocations. The category areas are as follows:

               Category  Points
               1             Greater than or equal to 35
               2             25-34
               3             15-24
               4             10-14

Applications with less than 10 points are cancelled.

Category 1 is the grouping of applicants with highest priority needs. Allocations of available properties are made to applicants with the highest priority at the time, provided the property meets the applicant’s needs. Applicants will be allocated according to the date they are placed on the waiting list within that category. Applicants placed in Category 1 are generally housed first.

Allocation procedure

When a property becomes vacant, a short list of eligible applicants on the public housing waitlist is completed. To ensure that appropriate and valid offers are made to applicants the following guidelines are used:

  • the available property should be in a location suitable to the applicant in greatest need (according to the shortlisting process);
  • there should be sufficient bedrooms to match the family size (according to the Bedroom Entitlements policy);
  • the property amenity must be suitable to the household needs e.g. disability or mobility issues.

Once an offer has been made, the property is held for that applicant and is not offered to any other applicant until the first applicant has rejected the offer, or has not responded to the offer. The offer is withdrawn in these situations and offered to another applicant on the waitlist.
 

Eligibility for Public Rental Housing

Eligibility

To apply for public rental housing, an applicant must:

  • be a Tasmanian resident;
  • be an Australian Citizen or a Permanent Resident;
  • be 16 years or older;
  • be a low income earner eligible for a Commonwealth Health Care Card;
  • not have financial assets exceeding $35,000 per household;
  • not own a home of your own.

Interest in a Property

A current interest in a property would usually automatically disqualify a person. However, this criterion does not apply in circumstances of family violence. Please refer to the Family Violence policy.

Other criteria

Other criteria that will be considered in deciding eligibility include:

  • age
  • income
  • outstanding charges
  • proof of identity
  • prior rejected offers of Housing
  • ownership of land

Assets

An applicant with assets worth more than $35,000 per household is not eligible for public housing.

Assets counted are:

  • Cash;
  • Savings
  • Shares, bonds and investments;
  • Lump sum payments;
  • Owners equity in a business;
  • Superannuation funds that have been realised; and
  • Real estate (residential premises, land and commercial premises)

Income Thresholds

The information below shows the income thresholds for different family types. The thresholds shown refer to gross weekly income.

These figures are used when assessing client’s income eligibility. Figures are based on eligibility for a Commonwealth Health Care Card.

Health Care Card* Single Couple (Combined) No children Single +1 child Couple +1 child Each additional child
Per week $501 $868 $868 $902 $34
Per fortnight $1002 $1736 $1736 $1804  

*Current as at 1 July 2013

Applicants with No Income

Applications will be accepted from persons with no personal income, but in the majority of cases the applicant will be deemed a relevant statutory income. Applicants may apply as a single applicant or as a family if they have dependants.

Examples of persons who fit may present with no individual income may be:

  • a person seeking to escape domestic violence but still living in the family home; or
  • applicants serving a gaol sentence

When an allocation is to be made, the applicant’s eligibility for a pension or benefit will be ascertained to determine appropriate rental charges. The applicant may not be offered a property until their income can be confirmed (family violence survivors excepted). Area Managers may apply discretion in extenuating circumstances only.

Applicants with Public Housing Debts

Persons with a debt from a previous occupancy may apply for public rental housing assistance but their application will be placed on suspension until the debt is repaid. However some applicants will have the suspension lifted early if they can demonstrate an ongoing commitment to repaying the debt. Discretion is applied in cases of significant hardship.

Bankrupts

Applicants who are undischarged bankrupts will be regarded as if the debt has been cleared and are entitled to public rental housing. However, where it is clear that the person has declared bankruptcy to avoid repaying a Housing Tasmania debt rather than enter into a debt repayment agreement, the application may be suspended for up to 6 months.

Review of Applications

Applicants should contact Housing Tasmania whenever their circumstances change so that their application may be reassessed.

 

Tenant Contribution, Rent, and Leases

Market Rent

The maximum that Housing Tasmania charges is the Market Rent. The Market Rent is reviewed annually using information provided by the Valuer Generals Office of Tasmania. Notice given for increases in Market Rent occur in accordance with the Residential Tenancy Act, section 20. Section 20 requires 60 days notice of a rent increase, or 6 months where the tenancy has existed for less than 60 days. There can not be an increase in rent more than once every six months (s20(3(c)).

Public Housing Rent Assistance

Most tenants do not pay the market rent because they pay a tenant contribution. The difference between the tenant contribution and the market rent is the public housing rent assistance. This is not paid direct to the tenant but is deducted from the market rent.

Tenant Contribution

Housing Tasmania’s rent setting policy changed on 24 October 2011.

The tenant contribution is calculated at 25% of assessable and calculable household income.

To ensure tenants have time to get used to the changes, some are being moved gradually to the new model. Therefore a variable rent setting model also exists for a small number of tenants.

See the Public Housing Rent Setting Fact Sheet for information on procedure and policy.

The tenant contribution may be changed at any time where there has been a change in household income and Housing Tasmania is not required to provide notice of the change as required by the Residential Tenancy Act 1997 (Tas).

Clients are required to notify Housing Tasmania of any change in circumstances that may affect household income. This may include changes in the number of household members, fluctuations in household income level. Housing Tasmania periodically checks household income and adjusts the tenant contribution accordingly through sending tenants a Household Income Statement to complete or through Centrelink’s Income Confirmation service.

Leases

Housing Tasmania Leases align with the Residential Tenancy Act (see Residential Tenancies).

Tenant's/Housing Tasmania’s Responsibilities

Responsibilities are covered by the Residential Tenancy Act.

Maintenance and Repairs

These are also covered by the Residential Tenancy Act, however in many respects Housing Tasmania offers wider coverage than that required under the Act.

Transfers

Housing Tasmania requires reasons before consenting to tenants transferring from one dwelling to another. Housing Tasmania will also consider the tenant’s history with regard to the payment of rent and other issues arising in the course of the tenancy.

The following are the most common reasons for allowing transfers.

  • Ill Health. Where their current home is impacting on the health of a member of the household and a transfer will result in improvement of that persons health.
  • Overcrowding. Where there is an increase to the household, say through a birth, adoption or relative residing in the dwelling, Housing Tasmania may consider a transfer.
  • Family Violence. This includes situations where Housing Tasmania believes a transfer will remove an occupant or occupants from physical danger.
  • Under-occupancy. A transfer may be considered where family size has decreased.
  • Nominal transfers. Upon death, separation or remarriage of the tenant, the remaining occupant can ask Housing Tasmania to have the lease put in their name. Until a change of lease, the new tenant cannot be held responsible for rent or cost of repairs owing from the previous tenant. This situation is covered by Housing Tasmania’s Succession of Tenure Policy.

Eviction

Evictions are covered by the Residential Tenancy ActPart 4, Division 2. Evictions require that a notice to vacate be issued to a tenant either 14 or 28 days before the eviction date. The length of time is dependent on the reason for a notice to vacate. The 14 day period applies where a tenant has failed to comply with a residential tenancy agreement, the lease has already expired and no more than 28 days has elapsed since expiration, or the tenant has caused a substantial nuisance (e.g. loud, and constant music). 28 days is required where the premises are to be sold, renovated or used for another purpose, the premises are being foreclosed (ss42-43). Housing Tasmania views eviction as a last resort and will work to try and engage the tenant and offer referrals to assist the tenant to meet the conditions of their lease and maintain a successful tenancy.

Review of Department Decisions

If a person is dissatisfied with the handling of any matter, the first step is to contact a Housing Tasmania Area office. A review of the original decision will occur by the office that made the decision.

If a client remains unsatisfied with a decision made by Housing Tasmania, they may apply to the Housing Review Committee (HRC). The Housing Review Committee can review whether policy has been appropriately and correctly applied. Current or past tenants and applicants may apply for a decision to be reviewed by the HRC, however not all matters are reviewable.

Who Can Seek a Review?

Applicants and tenants, past and present may apply to the Housing Review Committee.

Asking for a Review

A tenant may have a decision reviewed at any time following discussions with Area staff, if the tenant is unhappy with the decision or the decision-making process. When you are advised of a decision the letter will contain information about your review rights.

Hearing the Case

The Housing Review Committee is made up of three independent representatives appointed by the Minister, and two Housing Tasmania representatives. The role of the Committee is to carefully consider the application and decide whether the correct policy and procedure had been followed in making the original decision. The Committee makes a recommendation to the Director of Housing. If the applicant remains unsatisfied after the HRC result, they can contact the Ombudsman.

Privacy and Access to Information

Entry of Departmental Officers to a Tenant’s Home

Entry is covered by the Residential Tenancy Act 1997 (Tas), which means that an occupier must be given 24 hours notice of a Housing Tasmania officer intending to come to the property.

Tenant’s Files

The Personal Information Protection Act 2004 (Tas) provides that you can access your personal information held by the Department of Health and Human Services (DHHS), of which Housing Tasmania is a service area. Some information may be considered under the Right to Information Act 2009, if there is other information included e.g. completed complaint forms.

The DHHS provides an application for access to personal information, which can be sent by post, fax, or email. See the personal information access site on the DHHS website for more details.

Contacts and Resources

Department of Health and Human Services

Public housing fact sheets and policies

Access to personal information

Contact the Area office responsible for managing your application or tenancy records in the first instance.

Otherwise, you may contact via the below address.

Post: GPO Box 125
Hobart TAS 7001
Fax: (03) 6233 4021

Email: ots.document@dhhs.tas.gov.au
 

Tasmanian Public Housing Review

Housing Tasmania has well-defined internal mechanisms for complaint resolution. They have the Independent Housing Review Committee to handle review of decisions. There is no recourse for administrative appeal except for complaint to the State Ombudsman. Their fact sheet ‘Customer Feedback and Review Policy’ highlights that only three circumstances can be the subject of review before the Committee:

  • A determination has been made whereby a client is not eligible for the service or benefit for which they have applied
  • A client has a complaint about the level or quality of the service, or
  • Standards for a service have not been met.

However, there have been incidents of Housing Tasmania denying applicants access to the Independent Housing Review Committee. If you are unhappy with a Housing Tasmania decision, contact the State Ombudsman.

There is no right of review under the Judicial Review Act 2000, to the Supreme Court. In 2012 in King v Director of Housing, the Supreme Court held that the decisions of the Director of Housing to not renew a lease and to serve a ‘notice to vacate’ on a tenant were not of an administrative character. Such a decision would not fall within the circumstance set out above for appeal to the Committee. Due to the decision not to recontract being not of an administrative character, the Judicial Review Act 2000 does not apply to decisions of the Director of Housing or his delegates. Nor were there any obligations for the tenant to be provided with reasons as to the non-renewal of her lease or the service of the ‘notice to vacate’. Nor is there any indication that decisions under the Homes Act 1935, under which the powers of the Director of Housing are created, are open to review under the Magistrates Court (Administrative Appeals Division) Act 2001 before the Magistrates AAD. Decisions of the Director of Housing were held to be more akin to the acts associated with contracting, rather than administrative decisions. The Homes Act 1935 has been amended to contain a provision that states:

27A. Director may refuse to enter into contract, &c.
      (1) The Director may refuse –
(a) to enter into a contract for the sale to an eligible person of any land or land and dwelling-house; and
(b) to make an advance to an applicant under this Act.
      (2) A decision of the Director under this section is final.

The Tasmanian Ombudsman can hear complaints to do with Public Housing, and the in 2012-2013 year continued complaints regarding ‘the alleged failure of Housing Tasmania to appropriately and effectively manage conflict between its tenants in neighbouring properties. In the 2011-2012 year, the Ombudsman’s Annual Report complaints against Housing Tasmania included ‘charges levied … against outgoing tenants for repairs to property’. The 2010-2011 Annual Report had noted that Housing Tasmania had ‘implemented a three tiered review process’ for unhappy tenants. In the time since, Housing Tasmania has also created ‘Housing Connect’, which is intended to provide information for Housing Tasmania tenants and prospective tenants.

Planning and Development Controls

Controls and Applications

Development Control

Most land uses and development require the consent of local councils (sometimes called ‘planning authorities’). Such consents are called ‘planning permits’ or ‘planning approvals’. Development of land includes the carrying out of any building, engineering, mining or other operations on land. It also includes demolition and making any material changes in the use of the land or buildings or works upon it.

It is a good idea to contact the council to find out whether planning approval is required for any use or development. Council will also provide advice on the information that will need to be provided regarding the proposed development. Every local council in Tasmania (currently 29 in total) has a planning scheme that can be viewed by the public.

Planning Applications

Many councils provide specific application forms for planning permits. The application form will need to be accompanied by plans describing the proposed development in enough detail to allow a person viewing them to understand all the implications of the proposal, such as provision for parking, amount of vegetation to be cleared, effect on neighbours, and impact on traffic.

Applications for discretionary developments (that is, developments that a council can permit or refuse) are advertised in a local newspaper and a notice must be posted on the development site. You may have noticed these signs on house fences or sites indicating the plans for development and the right to lodge an objection with council. Any person can make a representation to the council regarding the likely impacts of the proposed development.

When assessing a development application, councils must take into account any representations they receive and all matters specified in the relevant planning scheme. If a planning permit is granted, it may be subject to conditions to manage the impacts, such as provisions for landscaping, parking or improving access arrangements.

Building Control

Building permits are usually required in addition to a development permit. The regulation of construction, alteration, or demolition of buildings is governed  by the, the Building Act 2000 (Tas) and its regulations (Building Regulations 2004 (Tas) and Plumbing Regulations 2004 (Tas)).

The Building Act 2000 provides that the National Construction Code is the legal technical standards for all building and plumbing work in Tasmania. The Code has provisions relating to materials, building methods, fire safety designs, and energy efficiency requirements.

The definition of building work is extensive and covers new work, additions, alterations and the demolition or partial demolition of any building.  That would include structural alterations to houses, and some fences and sheds.

Most new work in Tasmania will a building permit and approval of the local council is required before any work may be undertaken.

There are some exceptions including maintenance or very minor work (such as garden sheds, low fences and some low retaining walls) that do not require a permit so it is desirable to check with the council to see whether you need building approval. Regulation 4 of the Building Regulations 2004 provides a list of structures and building work that are exempt from the need for a building  permit.

Applications for building permits are lodged with the local council and must be accompanied by an application form and detailed plans and specifications. A building surveyor will certifiy likely compliance with the NCC.  A system of accreditation (licensing) of building practitioners was introduced in 2004. That includes the responsible designer, the building surveyor and the builder.

Enforcement for illegal building or plumbing work

If work is done without a permit, penalties may be imposed and Building Orders or Plumbing Orders may be issued by the council preventing any further work being carried out or requiring unauthorised works to be removed.

Appeals over building or plumbing permits and matters in respect of carrying out of building or plumbing work are heard by the Resource Management and Planning Appeal Tribunal (RMPAT).

Councils or other relevant authorities may also take action in the Supreme Court to enforce planning by means of an injunction preventing unlawful building activity. Planning appeals, although unlikely to be initiated for new buildings, are discussed below.

Development Applications and Environmental Impact

The assessment of development applications and associated environmental impacts are conducted within one integrated assessment process: the Resource Management and Planning System (RMPS). This integrated process includes the assessment of individual developments with respect to land-use planning, under the Land Use Planning and Approvals Act 1993 (LUPAA); and an assessment of environmental impacts under the Environmental Management and Pollution Control Act 1994 (EMPCA) (see also Environment).

Land Use Planning and Approvals

LUPAA is the major legislation relating to the regulation and control of development in Tasmania. LUPAA establishes a system of planning schemes that provide a framework for regulating the use and development of land, and some resources, within local government areas.

Planning Schemes

A planning scheme regulates the use, development, protection and conservation of land within a specific geographical area (local council area). A planning scheme must:

  • further the objectives of the RMPS;
  • be prepared in accordance with State Policies; and
  • be prepared in accordance with the Statewide Planning Scheme Template;
  • be consistent and coordinated with planning schemes in adjacent areas.

Generally, planning schemes regulate development by dividing land into specific zones and setting out objectives and development standards for land uses within each zone. For each zone, planning schemes identify land uses that are permitted, discretionary or prohibited.

For example, a Landscape Protection Zone may have the overall objective of protecting and maintaining landscape values, including flora and fauna, scenic areas and important views. To protect these values, industrial developments may be prohibited within the zone, agricultural activities may be permitted and commercial developments may be discretionary to allow Council to assess the likely impact of each proposed development. There may also be restrictions within the zone on building heights and a general policy to retain tree and vegetation cover.

Planning schemes also set out what information a Council will consider when assessing a development application and must be consistent with State Policies. For example, the State Policy on Water Quality Management 1997 (known as the Water Quality Policy) requires local councils to establish, in partnership with the community and the Board of Environmental Management and Pollution Control, protected environmental values for specific water bodies, coastal areas and groundwater. These values are then incorporated into the planning scheme.

Exempt Use and Development

If a use or development is exempt, no council approval is required.

Permitted Use and Development

If a use or development is permitted within a zone, the planning authority must approve the development application, provided it meets relevant development standards. A development application for a permitted use is not open for public comment, however conditions may be imposed under the planning permit.

Discretionary Use and Development

If a use or development is discretionary, the planning authority has the discretion to approve or reject the application, having regard to its potential impacts. The public are able to make representations in respect of applications for discretionary uses and the planning authority must consider all representations when assessing the development application and determining what (if any) conditions to apply.

Prohibited Use and Development

If a use or development is prohibited within a zone, a development application for the use will be refused. However, a developer can also seek an amendment of the planning scheme to rezone the land so that the use or development is no longer prohibited.

Planning schemes also set out what information an applicant must provide, and what a planning authority must consider when assessing a development application.

Obtaining development approval

Other than exempt development, any use or development (including new developments and the expansion of existing developments) needs to obtain planning approval from the local council.

To obtain planning approval, a developer must lodge a development application (including plans of the proposed development) with the planning authority, who assess the development against the planning scheme objectives and development standards, such as maximum building height or minimum lot size. After assessing the development application, the planning authority may issue a permit (with or without conditions) or reject the development proposal. It may also be required to refer the application on to the Board of the EPA or a regional water corporation (such as Southern Water) for further assessment.

Appealing a decision: the Resource Management and Planning Appeal Tribunal

The Resource Management and Planning Appeal Tribunal (the Tribunal) was established under the Resource Management and Planning Appeal Tribunal Act 1993 to consolidate a number of Tribunals dealing with planning and resource management decisions. The Tribunal is now the most important forum for the resolution of environmental and planning issues in Tasmania and nearly all land use disputes are heard in the Tribunal in the first instance. However, the Tribunal cannot hear disputes relating to forestry or the granting of mining or marine farming leases.

The Tribunal is less formal than a court and is intended to make it easier for members of the public to appeal against administrative acts and decisions. For example, the Tribunal is not bound by the rules of evidence, conducts public hearings and has a simpler, less technical hearing process. 

For planning appeals, the Tribunal will re-examine the council’s decision and make a fresh decision. That is, it will look at the development proposal and consider all the issues as if it was in the Council’s position. The Tribunal has the power to make any decision that the council could have made, including imposing conditions on the development proposal, rejecting or approving it.

The Land Use Planning and Approvals Act 1993 (LUPAA)

The basis process under the LUPAA

The basic process for the assessment of a discretionary development under LUPAA is as follows:

Further information

The planning authority may seek further information from the developer, to make sure that the planning authority properly understands the potential impacts of the proposal.

Public notice

The planning authority gives notice of the proposed development by:

  • placing an advertisement in the local newspaper;
  • displaying the application in the local council offices;
  • mailing a notice of the application to neighbouring properties;
  • placing notice posters on the development site (s57(4)).

Representations

Any person can make a representation to the planning authority regarding the proposed development within the time limit set out in the notice (this must be at least 14 days from the date of the advertisement).

Council must consult with other agencies

Planning authorities may consult with relevant government agencies (such as the Department of State Growth or Tasmania Fire Service) to make sure that all potential impacts of the development are addressed. In addition, the planning officer will consult with all relevant council officers with an interest in the proposal, for example engineering, transport, environmental health and waste management.

If the proposal is for a Level 2 activity, it must be referred to the Board of the EPA. If the proposal will have an impact on water or sewerage infrastructure, the application must be referred to the regional water corporation.

Decision

Following consultation with relevant agencies and reviewing all representations received, the planning authority may grant a planning permit for the development (with or without conditions) or refuse to grant the permit. Conditions imposed on a planning permit should reflect any advice from relevant agencies and aim to ensure that all potential impacts of the development are appropriately managed. Any conditions recommended by the EPA or a regional water corporation must be included in the permit.

Appealing against the decision

The developer and any person who made a representation can appeal to the Resource Management and Planning Appeal Tribunal against the decision of a planning authority. An appeal must be lodged with the Tribunal within 14 days of being notified of the decision and accompanied by a filing fee (currently fees vary).

A person who did not make a representation regarding the development, may still be able to join an appeal if the Tribunal is satisfied that:

  • they are a person whose interests are affected by the decision (such as a neighbouring landowner); and
  • it was unreasonable for them to have made a representation (for example, if they were away when the development application was advertised).

The Tribunal will re-examine the decision that is the subject of the appeal. That is, it will look at the development proposal and associated considerations as if the first decision had not been made. The Tribunal has the power to make any decision that the planning authority could have made, including imposing conditions on the development proposal, rejecting or approving it (see s23 Resource Management and Planning Appeal Tribunal Act). The Tribunal also requires parties to participate in mediation, and often resolves planning disputes by consent agreement.

Legal Representation

It is not always necessary to have legal representation in the Tribunal. However, planning and environmental law issues can be tricky, especially for people who have not had any experience with these matters. For complex matters, or where the other party has professional advice or representation, it may be advisable to get at least some initial advice from a professional experienced in environmental or planning law. Advice can come from a variety of sources, including lawyers, planners and engineers. You can contact the Tribunal to obtain a list of professionals willing to give you 15 minutes of free advice. Hobart Community Legal Service’s Planning Aid programme also provides free planning advice.

The only avenue of appeal against a decision of the Tribunal is to the Supreme Court of Tasmania based on a question of law.

Assessing Environmental Impacts

Under the EMPCA, development activities are classified according to three levels, depending on the environmental risk presented by the activity. The assessment process for each level varies, and is outlined below. An excellent resource is also available detailing the EIA process.

Level 1 Activities

Level 1 activities require a permit under LUPAA but generally pose a lower risk of environmental harm than Level 2 activities. Examples of Level 1 activities include some light industries, small water treatment plants and commercial premises.

The assessment of Level 1 activities, including the likely environmental impacts, is generally the responsibility of local councils (‘planning authorities’). Environmental controls are generally imposed through conditions on the planning permit issued for the activity (for example, limiting hours of operation or requiring ongoing monitoring of water quality).

Where the Director of the EPA thinks that the activity may cause environmental harm, he or she can require a planning authority to refer the development application to the EPA for assessment (this is called “calling in” a development). Calling in the development changes the status of the development to a Level 2 activity for assessment purposes.

Level 2 Activities

Level 2 activities are uses specifically identified in Schedule 2 of EMPCA on the basis that they are likely to pose a significant environmental risk without proper management. Level 2 activities include most large industrial and extractive activities, such as pulp and paper works, coal processing and sewerage treatment. Many Level 2 activities are classified according to capacity or output, so that developments only become Level 2 activities if they operate at a particular level. For example, mineral works becomes a Level 2 activity if it involves the processing of 1,000 tonnes or more per year of raw materials.

Level 2 activities must be referred to the Board of the EPA for an environmental impact assessment before a permit to operate can be issued. Following its assessment, the Board can require a planning authority to refuse a development application or specify conditions that must be included in the permit. DPIPWE is responsible for the ongoing regulation of Level 2 activities.

Level 3 Activities – Projects of State Significance

The government can declare a development proposal to be a Project of State Significance if it has at least two of the following attributes:

  • significant capital investment;
  • significant contribution to the State's economic development;
  • significant consequential economic impacts;
  • significant potential contribution to Australia's balance of payments;
  • significant impact on the environment;
  • complex technical processes and engineering designs;
  • significant infrastructure requirements.

Examples of Projects of State Significance have included the Mt. Lyell Copper Mine at Queenstown and the Oceanport development in Hobart.

Projects of State Significance are assessed by the Tasmanian Planning Commission (TPC) under the State Policies and Projects Act 1993, rather than by local councils. The TPC undertakes an integrated assessment of level 3 activities, considering all environmental, social, economic and community issues relevant to the project. The developer prepares a draft Integrated Impact Statement (based on guidelines set by the TPC), which is available for public comment. The TPC then holds a public hearing to consider the IIS, before making recommendations to the government about the Level 3 activity.

The final decision regarding a Project of State Significance rests with the government. The Minister has no obligation to follow the advice of the TPC, however, where the Minister’s decision is contrary to the TPC’s recommendation, the order allowing the development to proceed must be passed by both Houses of Parliament. Once passed by parliament, the Governor is ultimately responsible for declaring that a Project of State Significance can proceed.

If approval is given for a Level 3 activity, the conditions will specify who is responsible for ongoing regulation of the activity.

The EIA process

Environmental impact assessment (EIA) aims to evaluate the likely impacts of a development on the surrounding environment. In particular, an EIA is used to establish the information base for decision-making regarding these impacts to determine whether the development should proceed and any conditions that should be imposed to minimise or control its impacts.

For level 2 activities, or ‘called-in’ Level 1 activities, the Board of the EPA will determine what level of assessment is required. Smaller projects may only be required to prepare an Environmental Effects Report (EER), while projects which are larger, located in sensitive areas or subject to a high level of public interest may be required to prepare a detailed Development Proposal and Environmental Management Plan (DPEMP). The EPA has set general guidelines for the content of a DPEMP and the Board may also set project specific guidelines that must be addressed.

If a proposed development is likely to affect a heritage site under the Historic Cultural Heritage Act 1995 a threatened species under the Threatened Species Protection Act 1995 or an aboriginal site under the Aboriginal Relics Act 1975 the developer must also fully investigate the likely impacts of the development upon these areas.

The draft EER or DPEMP is assessed by the Board and released for public comment (between 14-42 days, depending on the level of assessment category). Any person may make a written submission regarding the proposal and associated impacts. The Board considers all public submissions when making its final assessment of the proposal. The Board may recommend to the planning authority that the development (with or without conditions) or can require the planning authority to reject the application. Any conditions recommended by the Board must be included in any permit issued for the project.

Environmental management tools under the EMPCA

EMPCA stands for the Environmental Management and Pollution Control Act (EMPCA) 1994.

A major component of EMPCA is a variety of management tools for the prevention and/or reduction of environmental harm. Other than environmental impact assessment, there are a number of management and enforcement options available to regulate activities that cause environmental harm, including:

  • Environmental Infringement Notices;
  • Environment Protection Notices;
  • Environmental Agreements;
  • Environmental Improvement Programmes;

Civil Enforcement

Environmental Infringement Notices (EINs)

If DPIPWE or a local council is satisfied that environmental harm has occurred, an authorised officer may serve the offender with an environmental infringement notice in respect of the offence (s67, EMPCA). An EIN imposes a penalty (usually less than $1,000) for the offence. However, an EIN does not impose any obligations to remedy the environmental harm.

If the person disregards the EIN, they can be liable for prosecution for the offence.

Environment Protection Notices (EPNs)

EPNs may be issued by the Director of the EPA or a local council. An EPN requires an offender to implement measures to prevent, control, reduce or remedy environmental harm. An EPN can also be used to vary permit conditions where it becomes necessary to address unexpected environmental harm. The EPN will override a development permit to the extent that they are inconsistent.

The EPN will state what the environmental harm is, how the environmental harm is to be managed and may impose conditions on the polluting activity. For example, an EPN may require the offender to:

  • remediate damage resulting from the pollution;
  • cease the use of particular types of chemicals;
  • carry out detailed water quality monitoring; or
  • limit operating hours at the premises.

Environmental Agreements

The Board can enter into Environmental Agreements with developers, with the approval of the Minister. These agreements set out management, investment, monitoring and reporting functions that require the developer to perform to higher environmental standards than those required by law. In return, developers are given exemption from certain taxes and charges.

Environmental Agreements may be made in respect of individual operations, premises, areas or regions and may apply to industry or activity groups. Environmental Agreements are legally binding documents and a party can be prosecuted if the agreement is breached.

Environmental Improvement Programmes (EIPs)

An environmental improvement programme is a specific programme to assist a person to achieve compliance with EMPCA by reducing environmental harm or transitioning to a new environmental standard. For example, if new noise regulations are introduced, the Board can require a developer to prepare a draft EIP to show how it will change its operations to achieve compliance with the new requirements.

EIP must specify the objectives to be achieved, set out a timetable for achieving the objectives and indicate how monitoring and reporting will be carried out. Once approved, the developer cannot be prosecuted for failing to comply with legislative requirements, provided the developer is complying with the EIP.

Council’s Obligation to Enforce Planning Schemes

Local councils have an obligation to enforce the provisions of their local planning scheme (s48, LUPAA). Therefore, local councils must enforce the specific provisions of a planning scheme, such as those regulating clearance of vegetation, subdivision and building height.

Civil enforcement of planning laws

Civil enforcement proceedings may be brought under section 64 of LUPAA against a person who does not comply with a planning scheme or with the provisions of LUPAA. For example, civil enforcement proceedings may relate to:

  • the failure of a local council to enforce its planning scheme;
  • a use or development being carried on without a development permit; or
  • a use or development being carried out in breach of the conditions of the permit.
  • Civil enforcement proceedings may be brought by:
  • the planning authority;
  • the Tasmanian Planning Commission; or
  • any person who has a ‘proper interest in the subject matter’. The Tribunal will determine whether a person has a ‘proper interest’. This generally infers that the applicant will be personally, professionally or financially affected by a certain activity.

Civil enforcement proceedings involve making an application to the Tribunal for an enforcement order. The Tribunal has broad powers to make orders, including orders requiring the respondent to:

  • temporarily or permanently refrain from the relevant activity (for example, to stop construction until a permit is obtained);
  • stop carrying out any use or development on the land;
  • make good any damage resulting from the breach (for example, replanting an area of vegetation cleared without a permit).
  • Civil enforcement proceedings must be brought within 2 years of the alleged offence.

Councils, individuals or other relevant authorities may also enforce planning or building controls by seeking an injunction in the Supreme Court preventing unlawful conduct.

The Tasmanian Planning Commission

The Tasmanian Planning Commission (TPC) took over from the Resource Planning and Development Commission in 2009.

The TPC performs a variety of functions in respect of land-use planning and development under several pieces of legislation including: the Land Use Planning And Approvals Act 1993, the State Policies and Projects Act 1993, the Public Land (Administration and Forests) Act 1991, the National Parks and Reserves Management Act 2002, and the Water Management Act 1999.

The principal functions of the TPC are to:

  • assess planning schemes (including amendments) ,
  • prepare the State of the Environment report,
  • advise the Planning Minister and planning authorities on planning schemes and planning issues,
  • review State policies,
  • assess Projects of State Significance (such as Basslink and Lauderdale Quay),
  • review water management plans, and
  • review management plans for national parks and reserves.

Heritage

There are specific Commonwealth and State legislation designed to protect significant heritage places, including natural, built and cultural environments.

Commonwealth legislation

Two lists of significant heritage places are maintained under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act):

  • National Heritage List - places of national heritage significance (such as Port Arthur); and
  • Commonwealth Heritage List - heritage places managed by the Commonwealth (such as Parliament House).

Developers need to seek approval under the EPBC Act for any development activity that is likely to have a significant impact on the heritage values of listed places. Commonwealth agencies are also required to develop and implement management plans for heritage places under their control.
Any person may nominate a property for listing on the National Heritage List by completion of a nomination form, available from the Australian Heritage Council. The nomination must identify the place being nominated, the location of the property and the reasons why the property should be listed. The Australian Heritage Council then reviews the nomination and makes a recommendation to the Minister about whether the property should be included in the List.

Tasmanian Heritage Council

In Tasmania, heritage properties are listed on the Tasmanian Heritage Register, maintained by the Tasmanian Heritage Council under the provisions of the Historic Cultural Heritage Act 1995.

Eligibility for entry onto the Register is based upon a number of criteria, listed within the Act. For example, a place may be listed because it is important in demonstrating the evolution or pattern of Tasmania's history or is representative of the characteristics of a broader class of cultural places. It is an offence to carry out works on a listed heritage property or within a listed heritage area, that may affect the cultural heritage significance of the property, without the approval of the Tasmanian Heritage Council (s32(1)).

Under the Act, the public has the opportunity to object or lodge submissions in relation to either the permanent listing or removal of a property from the Register.

Any person can make a representation opposing or supporting the permanent listing of a property on the Register within 60 days of public notice of the Heritage Council’s intention to list the property. Objections to the proposed listing can only be made on the basis that a property does not satisfy the criteria on which its entry is based.

Any person can make a representation opposing or supporting the removal of a property from the Register within 30 days of public notice of the Heritage Council’s intention to remove the property.

The Heritage Council will consider all comments received before making a final decision on whether to permanently list a property on the Register, or to remove a property from the Register.

Appeals

Any person who made an objection or submission regarding the removal or inclusion of a property in the Register may appeal to the Resource Management and Planning Appeal Tribunal against the Heritage Council’s decision. The appeal must be lodged within 30 days of public notification of the decision.

An appeal against the permanent entry of a place on the Register may only be made on the basis that the property does not satisfy any of the required criteria on which the entry was based.

Parks and Wildlife Service

The PWS is an important body in the conservation of Tasmania’s heritage, having primary responsibility for the protection of indigenous heritage under the Aboriginal Relics Act, the management of heritage reserves, and the conservation of flora and fauna, which contributes to natural heritage conservation.

Local Councils

Many local councils in Tasmania maintain a register of locally important heritage properties. Once identified in a planning scheme, such properties may be subject to development restrictions in addition to obligations under State or Commonwealth heritage legislation. A local council’s heritage register may identify heritage properties not listed on any State or Commonwealth heritage register.

Local Government Issues - Rates

General

The major source of revenue for local government is the rating system. Rates are levied on almost all privately owned land and buildings in the State. In effect, all land and buildings are rateable, unless coming within the prescribed exceptions named in section 87 of the Local Government Act 1993 (LGA) such as public reserves and park lands, land used for churches, hospitals, libraries or recreation grounds.

The most important rate is the ‘general rate’. Normally the rate is levied in a uniform manner over the whole council area but councils have power to levy a separate rate for different classes of land. Councils have power also to fix ‘special rates’. Before a council is entitled to recover rates it must issue a rate notice which complies with the requirements of the LGA. Failure to issue a proper notice will jeopardise its ability to recover payment.

In each financial year the council must declare the rates for that year.

Valuation of Land

All rates and taxes in respect of land or buildings are based on an assessment of the value of the land and buildings. The Valuer-General usually values land in three ways:

  • Land Value - broadly speaking, this is the value of the land itself disregarding a house or any other improvements upon it.
  • Assessed Annual Value - this is an amount equal to the rent which the land and buildings might be expected to realise if rented.
  • Capital Value – this is the value the land might be expected to realise if sold.

Values are determined on the basis of sales of comparable property which have been recently made. The value of one house in a street or in a suburb will be affected by the sales price of other houses in that street or suburb.

Values are also based on the ‘highest and best use’ of the land or buildings which is legally possible or which may become legally possible. This means that a piece of land with one house upon it in a zone which permits residential flats may be valued as if it had residential flats upon it. Or a large block of land may be valued at the price for which it could be sold, if subdivided into smaller blocks. These valuation techniques have led to increases in assessments in recent years.

Councils have power to base their rates upon any of the above modes of valuation or upon a differential value approved by the Minister. The LGA permits either method of assessment as the base on which to levy rates but if a council wishes to change from one form of assessment to another, it must pass a special resolution accordingly.

Challenging a Valuation

The Valuation of Land Act 2001 requires notice of the valuation made by the Valuer-General to be given to each landowner. It is possible to lodge an objection with the Valuer-General against an increased (or decreased) valuation. The objection must be lodged in writing within one month after service of the valuation notice and must contain a full and detailed statement of the grounds of the objection. The Valuer-General may then alter the valuation or disallow the objection. If the objection is disallowed, or is allowed only in part, there is a right to require reference of the objection to the Land Valuation Court. The appeal must be instituted within one month of the service of the notice from the Valuer-General disallowing objection.

Enforcing payment of Rates

Once levied the rates form a charge on the land. Councils have various powers to enforce payment of rates, which include a power of sale in cases where rates have not been paid for three years or more. Late payment of rates automatically results in a fine equal to three percent of the amount of the rate plus interest.

Rate Certificates

A certificate may be obtained from a local council stating that there are no rates or other money outstanding on a parcel of land and this certificate is deemed to be conclusive proof of that fact. It is desirable for a purchaser to obtain such a certificate.

Contacts and Resources

Building Appeal Board Registrar

Workplace Standards Tasmania
Dept of Justice
30 Gordons Hill Rd
PO Box 56
Rosny Park, TAS, 7018
Phone: 03 6233 7657 (Outside Tasmania)
Local rate: 1300 366 322 (Inside Tasmania)
Fax: 03 6233 8338
Email: wstinfo@justice.tas.gov.au

Regional Management Planning Appeal Tribunal

Regional management planning appeal tribunal

Environmental Defenders’ Office

Environmental Defenders' Office

Local Council

All 29 local councils should be easily found on the internet, or in the yellow pages. For example:
Glenorchy City Council
Devonport City Council

Residential Tenancy

What is a Tenancy?

Tasmanian residential tenancies are governed by the Residential Tenancy Act 1997 (the Act). This Act standardises residential tenancy agreements, and the procedures around renting, including the lease itself and the process for lodging a bond, two of the most important steps in securing a tenancy. This means that there is one law for residential tenancy agreements, and standard forms of agreement.

A very important resource for tenants and landlords alike is the Rental Guide produced by the State Consumer Affairs Department. The Tenants’ Union also produces a guide called ‘Don’t Panic’ specifically for tenants.

According to the Act, a residential tenancy agreement exists where the right to occupy residential premises has been granted by the owner to a person for value (e.g. money). Such a tenancy exists:

  • whether or not the right is of exclusive occupation. This condition affects whether the landlord can enter the property without prior notice and agreement – without the right to exclusive occupation, a landlord may enter the premises without notice;
  • whether the agreement is express or implied. For example, a house owner and a potential tenant may discuss arrangements for accommodation, and then act on the discussion, never formalising the agreement verbally or in writing. The agreement will be implied by the actions they then undertake, such as paying rent, and allowing continued residence;
  • whether the agreement is oral or in writing. This means that a tenancy agreed to in a discussion, such as ‘sure, you can stay at XX Sevens St for 12 months at $150 a week’ and an acceptance of those terms will be an agreement; and
  • whether or not the agreement is for a fixed period. This means that there does not need to be an end date to the tenancy.

The tenancy however needs to be for a minimum of four weeks.

What if there is a verbal lease or a lease that isn’t the Residential Tenancy Agreement?

Verbal leases are taken account of under the Residential Tenancy Act . For example, section 20 states that an owner can increase rent payable by the tenant if the written residential tenancy agreement allows for it, or if there is no written residential tenancy agreement for those premises. Obligations under the Residential Tenancy Act still apply to verbal leases (s10(c)). It is best to have an agreement in writing.

Agreements

After Signing an Agreement

Tenants are entitled to a copy of the agreement. Ask the property owner or agent for a copy of all documents immediately after they are signed. An agent should not ask a tenant to sign incomplete documents. The agent or property owner must provide a copy of the agreement within 14 days of the agreement taking effect otherwise they are in breach of the Act.

Terms of Agreement

In law the parties are free to negotiate the terms of their residential tenancy agreement provided it complies with the Act. An agreement between the property owner and tenant sets out the terms and conditions governing this relationship. An agreement may be in writing or it may be oral. An agreement can be for a fixed period or a non-fixed period. If the agreement is for a fixed period e.g. six months, at the end of that time an agreement becomes one of a non-fixed period, unless a new fixed term is established within 28 days of the end of the previous fixed period.

All agreements, both written and oral, must comply with the Act. In the case of an oral agreement, a property owner is required to give the tenant a copy of any information relating to rights and obligations under agreements as provided by the Director of Consumer Affairs. The booklet The Rental Guide, produced by the Office of Consumer Affairs and Fair Trading would be appropriate. It can be downloaded or is available from Service Tasmania.

A recommended residential tenancy agreement and condition reportproduced by Tenants' Union is available for purchase from the Hobart Community Legal Service. Housing Tasmania has produced its own agreement for use in public housing tenancies. Any agreement containing provisions that are inconsistent with the Act renders those provisions to be of no effect. The Act obliges the property owner to pay for the costs of preparing agreements.

 

Becoming a Tenant

Tenants should add up the costs involved in renting a house or flat. Generally they should aim to ensure that they are able to afford the rent regularly.

When searching for accommodation, tenants can search online, look in the newspaper (The Saturday Mercury is generally considered rental property day, but there are many advertisements every day on the internet), or visit real estate agents in the area and see what houses and flats they have listed for rent. Ask the agent about all the expenses involved in renting the available accommodation. A guide listing real estate agents is in the Yellow Pages of the telephone directory, and real estate agents also have a huge online presence with their own websites or on other sites.

A prospective tenant should be on the doorstep of the premises being let or the real estate agent's office as early as possible. The etiquette around calling advertisers from the newspaper is unclear, but generally it is ‘first in, first served’, and calling earlier has a distinct advantage on waiting to call later. A tenant should ignore advertisements in newspapers placed from time to time by letting agencies, as distinct from real estate agents, as tenants will have to pay them an amount before the agency will refer them to property owners or real estate agents. They merely give access to their listings. However, advertisements for these agencies are rare in Tasmania.

Housing Tasmania (a division of the Department of Health and Human Services) may provide temporary housing in extreme emergencies. However, very strict guidelines are applied and it depends on the availability of houses. Low income families may apply for permanent public housing through this department, as may pensioners.

Families and individuals who are unable to raise the money needed to meet initial rental expenses may obtain some financial assistance (such as bond money) from community organisations such as Anglicare and Colony 47.

Rent assistance may also be payable by Centrelink for individuals and families in receipt of pensions or allowances. Rent subsidies may be paid by the Department of Health and Human Services. Other community organisations such as Shelter Tasmania also provide support for particular groups of tenants in search of accommodation, and help sort out other tenancy problems that may arise.

Boarders

Boarding premises fall under the general coverage of the Residential Tenancy Act 1997 (Part 4A). Boarding premises are often tenanted by vulnerable members of society, including people with a disability. Section 48D specifically makes provision for the limited situations where a room may be shared – this is where the two tenants are joint tenants, or where one is a carer for the other.

Under the Act, boarding premises is defined as a room and any other facilities provided with the room where:

(a) the room is occupied as a principal place of residence; and
(b) any of the bathroom, toilet or kitchen facilities are shared with other persons.

Boarding premises therefore include a boarding or rooming house as well as a pub, so long as the bathroom, toilet or kitchen facilities are shared with other people and the premises are not used for holiday purposes. However, the Act specifically excludes those premises located in a building occupied predominately by tertiary students (such as University Colleges), or students within the meaning of the Education and Training (Tasmanian Polytechnic) Act 2008 or the Education and Training (Tasmanian Skills Institute) Act 2008 (s3).

Boarding premise tenants and owners have rights and obligations under the Residential Tenancy Act 1997. Boarding tenants have the following obligations:

  • observing any house rules, such as visiting hours, rules for shared facilities, and smoking or alcohol consumption restrictions (s48H);
  • obligations that apply to all other tenants, such as cleanliness

Owners have the following obligations:

  • providing a copy of any house rules (s48G);
  • maintaining bathrooms, toilets and facilities shared by tenants in proper working order (s48F);
  • providing details of meal times;
  • clear rules around any restrictions;
  • changes to house rules (s48H)

Bathrooms and Toilets

  • Provide 24 hour access to a toilet and hand washing facilities
  • Reasonable use of either a bathroom or shower at least once every day
  • Private access to the toilet, bathroom or shower – not group access (s48C).

Meals

Where meals are connected with the accommodation, breakfast must be available between the times of 6am and 9am; lunch between 12 midday and 2pm; and dinner between the hours of 5pm and 8pm (s48E).

Own Rooms

Unless tenants are joint tenants or one person is the carer of another, a boarding premises (the room) must be inhabited by only one person (s48D).

Maintenance

The owner is responsible for the maintenance and proper working order of the facilities (s48F).

House Rules and Key Terms

Both of these must be provided in clear words. The agreement must be accompanied by house rules (s48G(3)(a)). The key terms are the parties to the agreement, the location of the premises, the facilities provided, the date of agreement, the date of expiry of the agreement if the agreement is for a fixed term, the amount of rent, and the period for which it is to be paid, and any services provided in connection with the agreement (s48G(5)).

House rules are listed at section 48H and include such items as rules of bathroom access, rules for visitors, restrictions on parking or storage, whether smoking or drinking is restricted.

Rent and Security Deposit

Rent

Under the Residential Tenancy Act rent is payable in advance for a payment period, such as a fortnight or a month, and the payment period can be varied only by mutual agreement. A property owner cannot enforce a payment period of more than two weeks rent in advance for boarding premises or 4 weeks rent in advance for all other cases (s19).

Tenants often get confused about the concept of ‘rent in advance’. Rent in advance does not usually mean that at the end of the tenancy period a tenant has accumulated some ‘rental credit’. Rent in advance simply means that a tenant pays for the period that is about to occur. For example, on Monday a tenant pays two weeks rent in advance. This mean the tenant pays for the two weeks following that particular Monday. After seven days has gone by, the tenant is only a week in advance. After another seven days the tenant is no longer in advance and the next payment of rent is due.

Rent receipts are compulsory where rent is paid by cash or cheque, and must contain the tenant's name, the date on which it was received, the address of the premises, the amount paid and the rental period to which the payment relates (s21). A property owner must keep these records for five years.

A rent increase is allowable during a fixed term tenancy. In both fixed and non-fixed term tenancies a property owner must give the tenant 60 days written notice of intention to increase the rent stating the amount of the increase and the date it is to take effect. Rent cannot be increased before the elapse of twelve months and any further increases must be 12 months apart (s20).

If a tenant considers a rent increase unreasonable, they should consider writing a letter to that effect to the owner or real estate agent. There is also a right to complain to the Residential Tenancy Commissioner to determine whether or not a rent increase is reasonable. In these circumstances the Commissioner would look at general rent levels in the area for the type of property being considered and any other relevant factors put by the tenant's case. If satisfied that the increase is unreasonable, the Commissioner can order the property owner to change the increase. Such an order would remain effective until the time of the next allowable increase i.e. six months.

If a tenant gets behind in rent, a property owner can serve on the tenant a 14 day notice to vacate the premises (s42(1)(a)). If during that notice period the tenant pays the arrears in full, the notice is automatically cancelled (s42(2)). This process can occur twice in a 12 month period. However, if on a third or more occasion a tenant gets into rent arrears, an owner has the right to enforce a notice to vacate regardless of whether or not the tenant makes up the arrears (s42(2)). Under the Act a person cannot make distress for unpaid rent or seize a tenant's goods for rent arrears. A property owner may sue a tenant for rent arrears in the Magistrates Court, Civil Division.

Security deposit (bond)

Tenants are usually asked for a security deposit also known as a bond. A bond is a sum of money paid by the tenant before moving into the house or flat. The Act provides for lodging the bond with the Rental Deposit Authority (RDA). The payment can be made by post, or at Service Tasmania offices.

This money is held by the RDA as a security against the tenant being in rent arrears at the end of the tenancy, or for damage done to the premises by the tenant. The Act stipulates that a security deposit cannot be more than the equivalent of four weeks rent. The Act also provides that a security deposit cannot be increased during the course of the tenancy.

When lodging your bond, you will be issued with a receipt and number indicating your bond amount and number. Keep this number! You WILL need it.

Tenants are entitled to the return of their bond money if:

  • they have looked after the house or flat; and
  • are up to date with rent payments; and
  • have given proper notice of their intention to leave; and have left the premises in the same or better condition than when they commenced the tenancy.

The property owner cannot legally withhold bond money for deterioration that is the result of ‘fair wear and tear’. Fair wear and tear could include:

  • scuff marks on vinyl floors
  • wear on carpets
  • peeling paint
  • marks on kitchen surfaces
  • some discolouration of grout in bathrooms

Tenants should give the property owner or agent notice in writing in accordance with the Act when they intend to vacate. Tenants should also arrange for the property owner or agent to inspect the premises in their presence and return the keys on the day they intend to leave. Both parties should refer to the Condition Report at the time of inspection. If the property owner or agent refuses to attend as requested, the tenant can still complete a report in the presence of another witness such as a friend or family member. If possible photographs should be taken and prints initialled and dated.

Who Pays for What?

A tenant should ask for a statement of all expenses before signing the residential tenancy agreement. A tenant should also get receipts for all expenses. Under the Act, real estate agents and property owners are required to give receipts for rent if the rent is paid by cash or cheque. The Act specifies what should be contained on receipts (s21). Often agents or property owners ask tenants to pay costs associated with drafting the lease, however the Act states that expenses for preparing agreements are to be borne by the property owner.

Property owners who employ agents to manage their rental properties should also note the costs involved.  Property owners should ensure that the agents they engage to manage their properties do so in a way that meets the responsibilities to both the property owner and the tenant. Tenancy problems have arisen in the past because some agents, acting unprofessionally, have not properly carried out their obligations to either the owner or the tenant. Under the Property Agents and Land Transactions Act 2005, there are requirements for registration of property managers to ensure that they are qualified to act as managers (Part 2).

Rates and Taxes

The property owner cannot force the tenant to pay rates and taxes. The payment of the rates and taxes would normally be the property owner's responsibility in the case of residential tenancies.

Water consumption charges have to be paid by the tenant but only if there is an individualised water meter for the property and only the usage component of the bill. This means that in circumstances where a tenant lives in a block of units in which there is one water meter for a number of different properties the tenant is not required to pay for water. Nor is the tenant required to pay the fixed charge of the water bill. It is strongly recommended that tenants ask the landlord to see a copy of the water bill before payment.

Condition Reports

Inspecting the house or flat is the first step. Condition Reports, compulsory under the Act if a security deposit is required, detail the condition of the premises. Damaged items such as broken windows or carpet stains should be carefully noted. Condition Reports must be completed and signed by the agent or property owner and given to the tenant who must respond to the report within two days of the tenancy commencing. The tenant is entitled to a condition report and it should be attached to the agreement and kept in a safe place. The property owner or agent should also keep a copy of the condition report. A condition report should also be filled out at the end of the tenancy. Keeping photographic evidence of the condition of the property is also very useful. This will be central to return of a bond.

If the property owner or agent refuses to sign the Condition Report, then that person is in breach of the Act. In such circumstances, the tenant should fill out their own report and have a responsible family member or friend check off the items and sign it. This signed copy should then be sent to the property owner or agent with a letter stating why the tenant was forced to proceed in this manner. Blank Condition Reports are available from the Hobart Community Legal Service or the Real Estate Institute of Tasmania. A tenant may wish to photograph any damaged items. The prints should be initialled and dated and kept with the agreement. As well as being a requirement under the Act, condition reports make it easier for the tenant and property owner to resolve possible disputes about damage that occurred before the tenancy commenced.

The tenant should take time to properly read the agreement. A tenant who does not understand part of an agreement should not be satisfied with just any explanation. They should have it carefully explained by a person from a community legal service such as the Tenants’ Union or by a private lawyer. Any difficulties should be resolved at the outset. A tenant who is not satisfied with the agreement is free to ask the property owner or agent to change, add or remove clauses, provided this does not breach the Act.

If, after negotiation, changes to the agreement are mutually agreed to, the tenant should confirm these changes and make sure that neither their copy nor the original has any blanks ‘to be filled in later’. They should also make sure that all alterations are initialled and also the bottom of any extra attached sheets are initialled. This prevents changes being made on any copy after the tenant has signed. The tenant should also make sure that any verbal agreements are put in writing, otherwise they may be meaningless.

Repairs and Maintenance

The Act requires an owner to maintain the premises as they existed at the commencement of the tenancy, except for fair wear and tear. This means that a tenant should inspect premises as thoroughly as possible before agreeing to rent them. Any obvious signs of needed repair or maintenance should be discussed with the owner or agent at the outset. Any agreement to undertake maintenance, prior to the tenancy commencing, should be obtained in writing and signed by the agent or owner. If there are problems that pre-exist the tenancy, you may not be able to have them repaired at the expense of the owner.

Under the Act there are three categories of repairs: general, urgent and emergency. A property owner is required to provide the tenant with the names and contact details of nominated repairers who will charge the owner directly for any repairs done which were not the fault of the tenant. However, a tenant must follow specific procedures as detailed in the Act and outlined below.

General Repairs

A tenant is to notify the owner of general repairs needed within seven days of the need arising. The owner or agent is to carry out these repairs as notified within 7 days in the case of boarding premises, or in any other case, within 28 days, provided the need for repair is not the fault of the tenant (s32). A cooking stove element must be repaired within 14 days.

If the owner fails to carry out the required repairs, a tenant may make a complaint to the Residential Tenancy Commissioner seeking an order for the owner to carry out general, reasonable repairs. An example of a general repair would be a hole in the ceiling that appears because of the general condition of the house. Tenants are expected to undertake minor repairs that arise from general wear and tear. For example, tenants are required to replace accesible light globes and tap washers. However, where tap washers or light globes are reasonably inaccessible the owner has an obligation to replace rather than the tenant.

Urgent Repairs

In the case of urgent repairs (such as repairs to an essential service like a hot water system) a tenant is to notify the owner immediately the need for the repair arises (s33). If the owner is unable to be contacted or fails to act within 24 hours of being notified, a tenant can arrange for the nominated repairer to restore the essential service to functioning level. If the owner has failed to provide a list of nominated repairers, the tenant may arrange for a suitably qualified repairer to do the required work. The suitable repairer may then repair the problem to a workable condition only. The owner is then obliged to reimburse the tenant these costs within 14 days of the account being paid. When a nominated repairer is not available and a tenant cannot afford the option of employing a suitable repairer, a tenant can seek an order for repairs in the Magistrates Court, Civil Division. Essential services include:

  • water
  • sewerage
  • removal of waste water from kitchens, bathrooms and laundries
  • electricity
  • heating
  • cooking stove (total breakdown)
  • hot water service

Emergency Repairs

Emergency repairs can also be urgent repairs. In the case of emergency repairs (such as severe storm damage or fire damage) the tenant is to notify the owner immediately after the emergency occurs. If the owner is unable to be contacted or fails to act and the damage will result in further deterioration of the premises, a tenant can arrange for a nominated repairer to carry out the repairs needed to prevent further damage. If the name of a nominated repairer has not been provided, the tenant can arrange for a suitable repairer to carry out the required repairs and recover the costs from the property owner within 14 days of the account being paid. Again, a tenant can have repairs enforced by the court if they cannot afford to cover the initial costs.

Reimbursement for Repairs

Reimbursement of costs requires the tenant to provide a statement from the repairer as to the need for repair, a copy of the account and a receipt of payment. If the owner disputes the need for repair, the owner may apply to the Residential Tenancy Commissioner to determine liability within 14 days after receiving these documents. The owner may succeed with their case (and be found not liable) if:

  • they were not notified; or
  • the need for repair was the fault of the tenant; or
  • the repairs were carried out before the expiry of 24 hours notice (s36).

Common Residential Tenancy Questions

Sub-tenancies

The relationship of tenant and sub-tenant is the same as that of property owner and tenant. The sub-tenant pays rent to the tenant for the right to occupy exclusively part or all of those premises for which the tenant has been granted a similar right by the property owner. The sub-tenancy must be for a term less than the tenant's own term or it will be regarded as an ‘assignment’ .

Many tenants of a house or flat have other people living on the premises. Often there is no express agreement about the terms on which they stay there, except for the amount of their contributions to rent and other expenses. Whether they are joint tenants or merely licensees or sub-tenants of another tenant depends on the circumstances.

Every tenant is entitled to sub-let provided permission is gained from the property owner. A property owner must not unreasonably refuse permission for a tenant to sub-let premises. If a tenant sub-lets premises, the tenant remains legally liable to the property owner for any liabilities incurred by the sub-tenant. In addition the sub-tenant has no recourse against the property owner; they may only look to the letting tenant for repairs or maintenance or any other needs which may arise during the sub-tenancy.

Visitors

Any person who enters the property on behalf of the owner is obliged to observe the provisions of the Act. Therefore, for example, the tenant is entitled to 24-hours notice if the owner wants repairs carried out on the tenant’s rooms. Owners are also required to provide a lock and any other security device necessary to secure the premises, and ensure that these are maintained throughout the tenancy. Alternatively, tenants are liable for the actions of any person visiting the tenant at the boarding premises.

Fixtures and chattels

A fixture is an object that is attached to the land or built into the premises so that it is part of the land or premises and no longer has any separate identity. Fixtures become part of the property to which they are attached. Chattels are items that are considered to be moveable, and not attached to the property itself – for example, the difference between a fixture and a chattel is the difference between a toilet and a chair, both of which the tenant provided.

Whether an object is a fixture or a chattel (a moveable object) depends on the degree of attachment i.e. whether it is stuck, nailed, screwed to the building or merely rests by its own weight. It can also depend on the purpose of the attachment and whether or not it was meant to be a permanent addition.

Tenants can remove the fixtures they installed, if after removal the premises are left in as good a condition as they were before the fixtures were attached. However, where a tenant agrees in an agreement to leave premises ‘with all additions, improvements and fixtures’ the tenant will not be able to remove these fixtures.

A tenant can only remove the ‘tenant's fixtures’ during the tenancy or within a reasonable period thereafter. They cannot simply demand their return as an afterthought and may lose any right to them once they have finished vacating the property.

Therefore a tenant should consider all these issues before buying and installing fixtures that have to be attached to a wall or floor. Items such as awnings, shades and wall decorations may be chattels if there is no substantial attachment. Expensive partially built-in items such as gas space heaters and hot water services may well be fixtures in some circumstances.

Covenants

Tenancy agreements, especially in one of the standard printed forms, contain a long list of matters that the tenant promises to do or not to do. These promises are known as ‘covenants’. Some of the common covenants are: to pay the rent; to pay for damage caused by the tenant; and not to assign or sub-let without the property owner's consent.

If a tenant fails to observe a covenant and the property owner suffers financial loss as a result, the owner may sue the tenant for breach of covenant. The property owner may claim compensation for any losses caused by the breach. Similarly the tenant may sue the property owner for any breach of covenant by the owner. Before suing, consideration should be given as to whether a loss has been incurred and the amount of the loss, since court action may not be worth taking if the loss is non-existent or small.

The Act and most covenants exempt the tenant from having to pay for ‘fair wear and tear’. Other covenants have similar exemptions. For example, a covenant by the tenant to ‘comply with all Acts of Parliament, Regulations and Council By-Laws’ should exempt the tenant from responsibility for compliance that involves structural alterations or expensive large-scale renewal.

Right of Entry

The tenant has exclusive possession of the premises. This means that a tenant may exclude anyone from entering the property, including the property owner or agent. Agreements should contain an express covenant to this effect as per the Act. Even if it is not expressly included in an agreement, this covenant will be legally enforceable.

The Act states that a tenant is entitled to quiet enjoyment of the premises and that the owner or agent is not to enter without the tenant’s permission (s55). The exceptions to this are as follows:

  • if a tenant is unable to give permission due to illness or injury;
  • if denial of permission is likely to result in damage or personal injury;
  • if excessive damage has occurred;
  • if the premises have been abandoned.

An owner or agent may enter the premises after giving 24 hours notice and between the hours of 8am and 6pm for the following reasons:

  • to meet commitments under the lease and to ensure repairs have been properly carried out;
  • if the tenant has breached the lease;
  • to conduct routine monthly inspections of boarding premises and three-monthly inspections in any other case (s56).

Miscellaneous Requirements Under the Act

A tenant is not to use premises for unlawful or non-residential purposes (s52). A tenant is not to cause or permit a substantial nuisance from the rented premises. A tenant is liable for the actions of others lawfully on the premises during the agreement period, but is not liable for those who enter without consent.

A tenant may appoint an agent for the purposes of receiving notices and documents. A notice delivered to such an agent is taken as being delivered to the tenant.

An owner is to ensure the premises are fitted with locks and security devices necessary to secure the premises and these are to be maintained during the agreement period (s57). No party is to alter or remove such devices without the permission of the other party. In certain circumstances a magistrate may order a party to remove or alter security devices. If locks or security devices are added, the other party is to be provided with a key, opening device or appropriate information about the security system.

An owner (or agent) must supply the tenant with their full name and address and must notify the tenant of any changes to these details (s62). If the owner is a corporation, the name of the responsible officer is to be supplied to the tenant, as well as the address of the corporation.

The Act contains penalties for non-compliance and parties may be prosecuted under the Act. Some breaches under the Act provide a valid reason for a party to end an agreement. Others may attract fines. In the case of disputes heard by the Commissioner or by a magistrate, a breach committed by a party in a dispute may result in less weight being given to that person's version of events. Persons affected can see a community legal service such as the Tenants’ Union or see a private lawyer.

Bond Return Disputes

Where a bond is in dispute the Rental Deposition Authority (RDA) automatically notifies the Residential Tenancy Commissioner for the purposes of resolving the dispute. A bond is in dispute when either tenant or owner has made a claim to the RDA and the other party disagrees, or when an owner has made a claim for a share of the bond, and the tenant has not responded within 10 days. The referral of the dispute to the Tenancy Commissioner is automatic, as is the dispute process.

The burden on both the owner and the tenant is that of establishing their case. For example, a tenant should provide information on why they are disputing the landlord’s claim on the bond, and a landlord would provide receipts and evidence of repairs being made. The Commissioner is likely to want:

  • A copy of the residential tenancy agreement
  • A copy of the condition report signed by both parties, from the beginning of the tenancy
  • A copy of the condition report completed at the end of the tenancy
  • Bank statements or the rental ledger
  • Relevant documents, such as photographs, receipts and/or witness statements

Tenants need to show that the premises were left in a similar or cleaner condition than when they first moved in. If it is claimed they were left in a dirtier condition, the tenant should ask the property owner to substantiate the claim and prove any cleaning expenses.

Tenants should pay the rent until the end of the tenancy. They are not legally entitled to ‘deduct’ the last weeks of rent money from the bond.

The property owner is able to claim for any breach of the agreement and take action in the Magistrates Court to recover compensation where damage was done or the premises were left in a dirty condition. This is especially so where the actions of the tenants have caused the property owner to spend more than the bond money on restoring the premises to the condition it was at the beginning of the tenancy, excepting fair wear and tear. Claims in respect of residential tenancies are heard in the Magistrates Court, Civil Division.

The Residential Tenancy Act provides that the Residential Tenancy Commissioner also has the power to act in the case of boarding premises.

Ending an Agreement

Fixed Term and Non fixed Term Tenancies

Changes were made to the Residential Tenancy Act 1997 effective from October 1, 2014. 

A property owner and a tenant can mutually agree to end a tenancy at any time. It is advisable to put such agreements in writing. Where there is a fixed term agreement, a tenant and a property owner should discuss their intentions towards the end of the fixed term period and make appropriate arrangements to either end the tenancy or establish a new fixed term tenancy or a non-fixed term tenancy. If these sorts of arrangements are not made, then a fixed term tenancy automatically reverts to a tenancy of non-fixed term once the lease lapses. There is no requirement for the tenant to notify the owner of their intentions. However, obviously, open and honest communication is always preferable to silence where a legal agreement is involved.

When a fixed term agreement is coming to an end there are three possible outcomes: renewal, conversion to a non-fixed term tenancy or termination. Renewal is a straight forward new contract, however a renewed lease may be subject to an increase in rent. Conversion is noted above. Termination by the owner requires that the owner provide the tenant with a notice to vacate 42 days before the expiration of the lease. If the owner does not provide the tenant with the 42 days notice, the lease is taken to extend to enable the tenant to have the full 42 days notice. There are circumstances in which the owner is obliged to only provide 14 days notice for a tenant to vacate. Where a tenant is in breach of the Residential Tenancy Act or they have caused a substantial nuisance.

A fixed term agreement with respect to boarders can also end early so long as both the boarder and the owner agree to end it. The tenant should tell the owner at least 2 days before they want to leave.

In the case of a non-fixed term tenancy, a tenant is required to give a property owner 14 days notice of intention to terminate the tenancy and a property owner must give a tenant 42 days notice to vacate. If a tenant has not breached the Act, a property owner must have a legitimate reason for giving notice, as contained in the Act at section 42. Reasons include that the property is to be sold or substantially renovated, a family member is to move into the residence or the property is to be used for another purpose. If the property is to be sold by a lending institution to recoup debts of the owner, the tenant is entitled to 60 days notice. With respect to boarders, non-fixed term agreements can be ended by the tenant telling the owner at least 2 days before they want to leave.

Notices to terminate and vacate for both tenants and boarders must be in writing and must contain the following details in order for them to be valid:

  • the date of service and the date of effect of the notice;
  • the name of the tenant and the owner/agent;
  • the address of the premises; and
  • the grounds for notice (ss40 and 44).

Generally notice is either for 14 or 28 days, depending on the nature of the issue that has lead to the notice to terminate or notice to vacate. Both tenants and boarders on a fixed term tenancy can give a property owner a notice to terminate if the owner fails to make repairs within the required time limits (s38), or if the owner is in breach of the agreement unless that breach is remedied within the 14 days notice period (s39(2)). Similarly, an owner/agent can give both a tenant or boarder a notice to vacate premises if they have breached the agreement, unless the tenant or boarder remedies the breach within 14 days (s43(3)). A notice to vacate can also be given, as stated above in the section on rent, if the tenant or boarder is in rent arrears on a third or more occasion within a 12 month period. Payment of rent after a notice has expired does not constitute a new agreement.

Under certain conditions tenants and property owners can seek court orders to enforce an immediate notice to terminate or vacate (ss41 and 45). A tenant can apply for such an urgent order in the Magistrates Court, Civil Division if serious damage or injury is likely to be committed by the owner.

Conditions where either party can seek court orders include where a  tenant has failed to comply with a proper notice to vacate and/or there is a risk of serious damage or injury likely to be committed by the tenant or the property has been abandoned. Either party may seek an order if any person has caused or is likely to cause damage or physical injury to them or to neighbouring premises. Where a property owner seeks a court order for non-compliance, the owner must serve the tenant with a copy of the court application on the same day as the owner applies for the order. In these cases the court enforces a date for vacant possession of the premises. An unsuccessful party to a court action usually pays the costs of the successful party. There is no set figure. The Magistrates Court, Civil Division now deals with orders under the Act.

Apart from the conditions outlined above, a property owner must not attempt to gain possession of premises by any other means.

To avoid being considered as a tenant after the day the notice takes effect and therefore to avoid the liability to pay rent, a tenant should:

  • return the keys - to retain them can amount to remaining in possession;
  • remove all furniture and other belongings;
  • get the property owner/agent to give a receipt that the premises have been surrendered and accepted in good condition.

Breaking an Agreement

Tenants and boarders who want to leave before their agreement expires should not just walk out. If they do the owner can sue them for the rent. Different situations apply depending on the type of agreement.

Any fixed term lease may be ended earlier by mutual agreement between the property owner and tenant/boarder, or if there have been sufficient problems to justify notice of termination of agreement or notice to vacate. It is advisable to get such an agreement in writing.

A tenant who wishes to leave before the lease ends should give the owner/agent a letter saying why they wish to terminate the lease. The tenant is however liable for the continued payment of rent until such time as a new tenant can be found as well as any other loss resulting from the early vacation.

Tenants who sign a fixed term agreement have generally covenanted (agreed) to pay rent for the full term. However, there is an obligation on the owner of premises to make reasonable attempts to find a new tenant, such as advertising in the paper or seeking the efforts of a real estate agent (s64A(b)). As such, the property owner must mitigate their loss by advertising the premises promptly and not unreasonably refusing prospective tenants. The same stipulations apply to boarders. Where a tenant seeks to break the lease, and no new tenant has been found, the outgoing tenant, if vacating the property is still responsible for the rental payments, however they are no longer responsible for the gardening or cleaning of the property.

Assignment

Tenants or boarders entering a written agreement for a fixed term should clarify their rights to assign. An assignment of a lease is a transfer of the whole of the tenant’s interest in the lease, that is, the whole of the unexpired term of the lease. The parties to the assignment are the assignor and the assignee. Privity of contract exists between the original property owner and the original tenant or boarder. Unless it is explicitly stated in the contract that a party or parties are released from all obligations, original covenants between the parties remain enforceable even after they have disposed of their respective interests.

A tenant or boarder who cannot assign under a lease is liable to pay advertising costs and other costs associated with re-letting, so that a new tenant or boarder can be found as quickly as possible. A tenant or boarder who wishes to leave during the term of the lease should cooperate with the property owner/agent in finding a new tenant/boarder.

Penalty Clauses

Some agreements contain clauses requiring the tenant to pay a specific percentage of the annual rent should they leave before the lease ends, irrespective of whether the landlord or agent actually incurs costs in reletting the premises. Such clauses are void under the Act.

Agreed Damages Clauses

An agreed damages clause might require that upon leaving a tenancy during the agreement period the tenant must cover all of the advertising costs associated with finding a new tenant, and must pay the rent on the property until new tenants are found. Thus, all losses that may be suffered due to the tenant's actions are paid for by the tenant. This is now covered by the Act.

Abandonment

A property can be declared abandoned if a tenant leaves without notice and ceases to occupy the premises. Tenants who do this sometimes leave behind goods and chattels. If this occurs a property owner can apply to the Magistrates Court, Civil Division to have the property declared abandoned (s47A). The magistrate will determine that the property is abandoned if they are satisfied that the tenant has ceased to occupy the premises without notice of termination. If satisfied, the magistrate will then order that vacant possession of the premises be delivered to the owner. In these circumstances a tenant remains liable for any loss incurred by the owner either from loss of rent or through acquiring vacant possession.

An owner is required to mitigate losses. Once the property has been legally declared abandoned, a property owner may dispose of any goods left by the tenant (s48). If the goods left by the tenant are estimated by the owner to be of no financial value and the owner makes a statutory declaration to the Office of Consumer Affairs and Fair Trading stating this, then the owner may dispose of the goods. If the goods are valued at less than the ‘prescribed amount’ (which is currently $300) then the owner may sell the goods without an order from the Magistrates Court. If the goods are valued at more than or equal to the prescribed amount, the owner must apply to the Magistrates Court to sell the goods. Proceeds of sale can be used by the owner to recover any debts owed by the tenant and to recover any reasonable sale costs. Any remaining balance is to be kept in an interest-bearing account for six months and if not claimed by the tenant during this time the balance becomes the property of the Residential Tenancy Commissioner (s48(4)).

Contacts and Resources

Consumer Affairs and Trading

Consumer Affairs and Trading provides information on rentingFact sheets are also available.

Currently, before the publication of a revised Residential Tenancy Guide, a summary of the recent changes is available.

The Residential Tenancy Commissioner

The Residential Tenancy Commissioner also provides Draft Guidelines for Residential Tenancy Disputes for issues ranging from bond to abandonment of premises.

Tenants’ Union of Tasmania

The Tenants’ Union of Tasmania is a free advice resource for public and private residential tenants. They can be contacted for telephone advice on 1300 652 641 or 6223 2641.

Buying and Selling Real Estate

Ways to Own Property

Ways to Own Property

Apart from Crown leases, titles to real estate  in Tasmania are either under the old system (known as general law) or the Torrens Title system. Nearly all general law land has now been converted to the Torrens Title. The Torrens Title System was intended to simplify title, so that one document contained all information about a property. It has largely succeeded.

Old System – General Law Title

General Law title was introduced into the colony of Tasmania when it was first settled, and has its roots in English land law. After the original Crown grant of land, title to property was transferred to each successive owner by a deed of conveyance or mortgage. Each document had to be properly signed and attested, stamped and contain a description of the land. All these documents formed the ‘chain of title’. If one document was invalid, all those which came after it probably were too. A general law  title is considered to be only as strong as the weakest document in the chain of title. For example an a general law title containing a deed where a signature wass forged or unattested would break the chain of ‘good title’.

As a result of the complexity of searching  general law title and how far back it must be traced, the law now provides that one must only search back 20 years for ‘good title’ provided there is, to begin with, a good title that is at least 20 years old. In practice, to find a good starting title often means going back well beyond 20 years. General law conveyancing is generally complex, time consuming and expensive. Most titles in Tasmania are now under what is known as ‘the Torrens’ system.

If you are purchasing real estate that is under general law title, the general law title will ultimately now be converted automatically to Torrens title once it has transferred to a new owner or had a new dealing registered. The Land Titles Office handle this process on lodgement of required documents. The Land Titles Act 1980 (Tas) provides for the compulsory conversion of general law title to Torrens title on the lodgement for registration under the Registration of Deeds Act 1935 (Tas) of a conveyance on sale (i.e. you are buying a property with general law title), or a legal mortgage (i.e. the owner of the general law title property takes out a mortgage and the lender registers its mortgage against the title). This means that general law ‘old  system’ title is being eliminated through transactions regarding the property or through a process whereby the property can be voluntarily converted to Torrens title.

To know if you are looking at a general law title you would ordinarily expect it to have a registered deed number and accompanied by a series of past transactions. It will have a map also showing surrounding properties that may have been subdivided together and have an accompanying description that may go something like:

ALL that piece of land situate in the City of Hobart in Tasmania (being portion of Twenty eight perches and eight tenths of a perch of land conveyed by one Mary Crane to Joseph Ebenezer Merkby by an Indenture dated the Sixth day of December One Thousand Eight Hundred and Eighty Eight and registered number 8/1649 and bounded as follows...’

Torrens System

‘Torrens title land’ is land under the Land Titles Act 1980 (Tas). Torrens title searching and conveyancing is far simpler than that under the general law system. Electronic searches can be undertaken on the Land Titles Office records known as the LIST. 

In most cases you should be able to obtain a copy of the search of the title and associated plan and copies of any registered dealings on the title such as registered easements. 

The Torrens title will have a Volume and Folio number under the Certificate of Title in the top right hand corner of the page. It will contain a ‘Description of Land’, the name of the registered proprietor in its ‘First Schedule’ and details of registered mortgages and other dealings such as Schedules of Easements or caveats its ‘Second Schedule’. There is a plan of the property with the Certificate of Title.

The Certificate of Title should be kept in a secure place for safe keeping. (If there is a mortgage registered against the title to the property the mortgagee will usually hold the original Title until the mortgage is discharged)

Owning a Property with Someone Else

In Tasmania there are 2 ways to own property with another person or entity – join tenants or tenants in common. If you are purchasing a property with another person you should consider whether a joint tenancy arrangement or tenancy in common is more appropriate.

Joint Tenancy

Joint tenants, although they have a joint interest in the property, cannot identify a definable proportion of the property as their interest in the same.  Joint tenants cannot individually mortgage their share of the land, but rather must act collectively in relation to any dealings with it. Upon the death of a joint tenant that person's interest in the property is automatically transferred to other joint tenant(s). If there are more than two joint tenants, for example four, then the death of one will see their share go in equal portions to the surviving joint tenants, until the last joint tenant is left with the whole of the property. This is what will happen by operation of law, regardless of whether or not the deceased owner makes a Will and indicates they want something different to happen. Joint tenants are often a preferred structure for couples particularly in the case of the family home.

A joint tenancy can be converted into a tenancy in common (explained below) by an application for severance under section 63 of the Land Titles Act 1980 (Tas).

Tenancy in Common

Tenancy in common means that where two or more persons have either equal or disproportionate shares in the property. This may be desirable where there are different contributions to be made to the purchase and upkeep of the property. Each tenant in common has the use and occupation of the property and may deal with their definable interest by way of mortgage, etc without the consent of the other. To deal with the property as a whole, however, the consent of all tenants in common is necessary. On the death of a tenant in common the land passes to that person's beneficiaries under their Will or intestacy.

Where strangers or business associates purchase real estate together a joint tenancy structure may be unsuitable particularly if contributions to the purchase of the property are unequal.

Units, Flats and Townhouses

Company Title

Under a ‘company title’ arrangement the land and buildings are owned by a private company. The company's shareholding structure is organised so that ownership of a certain number of shares entitles the shareholder to exclusive possession of a part of the building (for example, a flat and perhaps a garage).

It is important to realise that the ‘flat owner’ does not own any separately identifiable land, only shares in the company. An owner's right to sell or transfer the shareholding, will be subject to company approval, which may in certain cases be withheld. Rules governing the occupation, and right to lease the flat, may be made by the company by a vote of the majority of the shareholders, and it may be difficult to borrow money for the purchase. If considering purchasing a property which is part of a company title it is recommended that you seek legal advice prior to entering into a contract.

Strata Title – Strata Titles Act 1998

The Strata Titles Act 1998 (Tas) governs creation of separate ‘stratum titles’ for units, flats and townhouses.

It is not within the scope of this handbook to provide detailed information regarding stratum titles. There are important matters of difference between a stand-alone title to a property and a ‘stratum title’ to a property. There is a link noted at the end of this chapter to a useful booklet available from Department Primary Industries Water and Environmental called ‘Strata Living in Tasmania’ which provides information and a general overview of stratum titles and the Act.

For example, a developer of property may construct several residential units on one block of land. In order to obtain separate titles to each of the units to be able to sell them individually the developer needs to either register a plan of subdivision or a stratum plan.

On registration of a stratum plan separate titles to each of the units will be issued. The plan should show what the boundaries of the lot and ‘common property’. Common property are usually features at the complex for the use of all unit owners such as a shared driveway or flower beds for example are not owned by any individual unit owner solely but owned by the ‘body corporate’. 

On purchasing a stratum title unit you automatically become a member of the ‘body corporate’ of the strata complex. A body corporate exists at law on registration of a strata plan for a development. There are situations where particularly in small strata complexes such as only 2 units on the site, the body corporate is not considered to be ‘active’.

The role of the body corporate is important. The body corporate has responsibility for maintenance and management of ‘common property’ and other powers, functions and responsibilities as outlined in the Strata Titles Act 1998 (Tas) which includes rules about being able to keep pets in your unit or on the common property, contributions to maintenance of common property and fees payable and insurance policies for units and common property. You should ensure you understand these issues and how they affect you if you own or are considering purchasing a stratum titled unit.

There are ‘by laws’ that apply to strata complexes. There are Model By-Laws outlined in Schedule 1 of the Strata Titles Act 1998 (Tas) that will apply automatically registration of a strata plan but there is power for the original developer to lodge different First By Laws on registration of a strata plan. The members of the body corporate to modify or change the by laws subject to unit entitlements and the contents of the by laws.

Each member of the body corporate will also have ‘unit entitlements’ attaching to their particular title. It is important to know what unit entitlements you have if you own a strata titled property as they govern issues such as voting rights at meetings of the body corporate and levying responsibility for contribution to maintenance of common property areas for example.

Buying and Selling Real Estate

The transactional process for buying and selling real estate is called conveyancing.

This section goes through the process of conveyancing though it does not claim to be a ‘conveyancing kit’. Readers should not rely on the information contained herein to complete their conveyancing without obtaining professional advice. The information provided herein relates generally to common issues regarding residential properties.

Entering a Binding Contract

Unlike some other types of contracts, to be enforceable a contract for the sale of real estate must be in writing. There are certain formalities at law that must exist for an enforceable agreement for the sale of real estate.

The requirement for writing was originally embodied in the Statute of Frauds and is repeated within section 36 of the Conveyancing and Law of Property Act 1884 (Tas).

Buying Real Estate

In Tasmania purchasing real estate remains ‘caveat emptor’ - buyer beware. It is not a good idea to buy on impulse without proper investigation into for example the nature of the Title of the property, the condition of the property, possible heritage listing, and any zoning restrictions that may apply and to consider what conditions you will require in making your offer to purchase. For some time it has been discussed that draft legislation will be introduced in Tasmania to put greater responsibility on Vendors to make disclosure of known problems with a property. At the date of production of this chapter, that legislation has not yet been formally introduced.

Making an Offer: costs and finance

In Tasmania the common practice to make an offer to buy real estate is by the Purchaser signing a formal offer in the form of a Contract which outlines the important terms of the transaction.

Currently there is a ‘pro-forma’ Contract for Sale of Real Estate commonly used by real estate agents, conveyancers and solicitors.

This Contract is in 2 parts:

  1. Standard Conditions of Sale; and
  2. Particulars of Sale

which together form the Contract. Use of this form of Contract is not mandatory and this form of Contract can be adapted by agreement between Vendor and Purchaser needed.

The Purchaser’s formal offer to purchase the Property will include details such as:

(a) The purchase price being offered by the Purchaser;
(b) The details of the deposit offered;
(c) The description of the property and details of chattels (e.g. stove, curtains, heaters) being sold with the Property;
(d) The timeframe proposed by the Purchaser for settlement;
(e) ‘Conditions precedent’ required by the Purchaser which may commonly include:

(i) A finance condition – that the Purchaser can get the money they need to buy;
(ii) A building inspection report condition – the Purchaser has had the property independently inspected;
(iii) A condition regarding the offer being subject to the sale of the Purchaser’s home – if the Purchaser cannot buy a new house without selling their current house;
(iv) A condition that there are no legal restrictions on the use of the Property which may hinder or prevent its use for the purpose proposed by the Purchaser (e.g. the Purchaser may only wish to purchase the Property if they can secure Council approval for development for units, for example).

Negotiations for the purchase of the property then commence. If the property is listed for sale through a real estate agent, generally the real estate agent will handle negotiations between the Vendor and Purchaser.

The negotiation process may generally involve the real estate agent presenting the Purchaser’s formal signed offer to the Vendor. There may be counter proposals by the Vendor such as a counter offer to the price offered by the Purchaser or proposal to change the conditions precedent proposed in the Purchaser’s offer.

Some sales may occur ‘privately’, without involvement or assistance from real estate agents. It is recommended that legal advice and assistance be obtained as to preparation of a valid and enforceable Contract in those situations.

Once a Vendor and Purchaser have reached agreement the final Contract should:

(a) Contain all terms and conditions that both Vendor and Purchaser have agreed upon;
(b) Be signed and dated by the Vendor, the Purchaser and each of their signatures should have been witnessed by an independent adult person.

In Tasmania there is currently no ‘cooling off’ period regarding real estate contracts. This means that once a formal Contract has been signed by both Vendor and Purchaser that there is no allowance for a ‘change of mind’ and automatic withdrawal from the Contract. For example some other States have formal ‘cooling off’ periods to allow parties to withdraw for any reason within a certain period of time such as 2 days after signing.

An example of the Contract for Sale of Real Estate is available through the Law Society website.

An explanation of the sections of the Contract is also available from the Tasmanian Law Society.

It is recommended that legal assistance and advice be obtained.

Buying at Auction

Some properties are sold at auction and are sold ‘unconditionally’, meaning no protection as to the need to still secure finance or any due diligence or enquiries. It is wise that prior to attending an auction you contact the real estate to obtain a copy of the Particulars of Contract that they should have available.

The Particulars of Contract should detail the terms of the contract that you agree to enter into if you are the successful bidder at auction. You should ensure that you take advice as to the terms of the Contract, have unconditional finance approval in place before attending an auction with a view to making a bid and importantly conduct any due diligence on the property given the nature of a sale by auction is generally not to reserve any conditions for protection of a purchaser seeking to withdraw.

Conveyancing Costs - Selling

Agency Agreements

If a vendor decides to sell their property through a real estate agent they enter into a contract with the real estate agent usually called an ‘Agency Agreement’ Whilst the terms and conditions of Agency Agreements vary, the Agency Agreement will stipulate that they pay the agent a commission at an agreed rate or a rate determined by an applicable scale if a buyer is found through their instrumentality or through their introduction, or to a person introduced to the vendor by the agent or through their signs or their advertisements or if sold generally during the period of the Agency Agreement.

The Agency Agreement will usually provide exclusive rights to the real estate agent to sell the house for a fixed time, usually 90 days but this can be varied as agreed between the vendor and the real estate agent. The vendor should carefully read the Agency Agreement and if they have any doubts about it, seek legal advice.

Once an offer for the sale of the property is presented to the vendor, the vendor should consider all provisions carefully including sale price, conditions requested by the purchaser and what that might mean for the vendor, and the proposed settlement period. If in doubt, the vendor should take legal advice prior to signing. The vendor should also consider whether it is appropriate to seek the advice of their accountant or financial adviser before entering into a contract for sale particularly if the vendor is selling an investment property or is registered for GST or if there are queries as to the application of Capital Gains Tax and how that might affect the vendor.

Once the contract has been settled and signed for the sale of the vendor’s property to the purchaser, the vendor should nominate who they wish to have handle the conveyancing for them.

If the vendor has a mortgage they should contact their bank once they have an unconditional contract for the sale of their property for the release of their mortgage through their bank. If the property is mortgaged and money is still owed to the bank, it is usual for settlement to occur at the bank or the bank’s solicitors office.

Settlement requires attendance by the vendor’s solicitor, the purchaser’s solicitor plus any associated bank representative lending finance to purchase the property and the vendor’s outgoing bank. The vendor’s bank will then provide the title and discharge of mortgage to the vendor’s solicitor in exchange for what is owing. Generally these monies must be paid by way of bank cheque.

If there is no mortgage registered on the title to the property the vendor should ensure that they confirm the location of the original Certificate of Title to the property as soon as possible (i.e. whether held in a bank safety deposit box or with a law firm) to ensure it is available by the due date for settlement.

Costs of Selling and Moving

The real estate agent you propose to engage to sell your home should be able to tell you the basis on wich you will be charged and if there will be out of pockets such as advertising or sign boards. The Real Estate Institute of Tasmania (REIT) provides a guide of recommended commission and fees calculated on the property sale price achieved. You should discuss the fees and services that will apply with the real estate agent you choose to engage.

Removal expenses are another substantial source of expense. In addition there are costs associated with disconnecting and reconnecting utilities. Information is readily available from electricity suppliers, such as Aurora.

Conveyancing Costs - Buying

Cost of Conveyancing

The costs and disbursements to purchase a property are generally higher than the costs to sell as there is more work involved.

Most law firms offer conveyancing services as part of their practice. In Tasmania there are also a number of licensed ‘conveyancers’. Licensed conveyancers are not lawyers but are licensed to undertake conveyancing services and their role is limited to only providing those services within the scope of their qualifications.

Most law firms and conveyancers are able to provide estimates over the telephone as to the likely costs.

Do-it-Yourself?

Handling your own conveyancing can be time-consuming and risky particularly if you are the purchaser.

If something goes wrong (for instance the person misunderstands a document, a clause in the contract or a search result) this could end in expensive and unnecessary litigation.

Insurance

The law in Tasmania regarding when risk is considered to pass to a purchaser under a contract for sale, whether the contract has been completed or not, is a grey area.

Some contracts seek to include clauses to pass liability to a purchaser from the date the contract is signed, regardless of whether or not there are still conditions, such as finance, to be satisfied. The cautious position, and usually noted on ‘standard form’ contracts for sale of residential property is that either party can be risk until the contract has been completed and both parties should protect themselves by maintaining adequate and proper insurance until the contract has been completed.

Searches

Various searches are carried out on behalf of the purchaser by their solicitor or conveyancer to identify:

(a) if the vendor has good title to the property to pass to the purchaser;
(b)  if the property is affected by mortgages, leases, or other matters which the purchaser has not contracted to accept;
(c) if there are any problems with satisfying the condition precedent in the contract as to the use that the purchaser intends to put the property

Searches are usually commenced after a contract has been signed unless legal advice indicates they should be undertaken before signing, including where in potential auction sales these kinds.

Some of the searches and enquiries commonly undertaken include:

  • Council searches as to Council rights and powers concerning the property and information regarding the rates on the property, including any arrears;
  • Land Tax searches;
  • Hydro Search for way leave easements;
  • Search the Department of Transport for road plans which will affect the property;
  • Checking the boundaries of the property as physically fenced or pegged match with what is on the registered title plan and to ensure there are no encroachments onto or by the property – the help of a registered surveyor may be required. Physical inspection of the property is beneficial to check for the existence of any physical features apparent on the property that may not be appearing on the title plan or any search reults from Council. For example, an inspection may reveal that a drain physically exists on the property that may have become an easement by prescription
  • Search bankruptcy records - this is to verify the legal ability of the vendor to sell the property and to ensure they are not bankrupt, in the process of bankruptcy or an undischarged bankrupt having come into ownership of the property through an inheritance for example
  • Check Mineral Resources Tasmania for the existence of mining exploration licences and the soil make up

Issuing requisitions on title to the Vendor for answering by the Vendor. Whilst not an exhaustive list of requisitions some common requisitions are:

  • What documents of title will be handed over on settlement?
  • What covenants and easements affect the subject land?
  • Are there any, and if so what, mortgages, easements, licences, restrictions, covenants or conditions as to user or otherwise, or any encumbrances affecting the subject property not disclosed by the usual searches?
  • Has the vendor received or are they aware of any notices from any federal, state, local government or other body or authority as to road construction or footpaths, drains channelling, sewerage, water installation, stormwater drainage, encroachment, user or any other matter in relation to the said land?
  • Is the vendor aware of any restrictions as to the user of the subject property or as to the erection, construction or alteration of any buildings, whether residential dwellings, flats, apartments, home units or otherwise on the subject land?
  • Are there any, and if so what, amounts due or accruing for rates, taxes, road or street construction, drainage, sewerage or water connection in respect of the subject property or is there any contingent liability or liabilities in respect thereof not disclosed by rate certificate under section 132 of the Local Government Act 1993 (Tas)?
  • Who is in occupation of the said land and in what capacity?
  • Has any person acquired any rights by adverse possession of the subject property or any portion thereof and if so what?
  • Has any person the right to remove any fixtures on the land such as buildings, sheds, fencing, or any fixtures in any building on the land, and if so what?
  • Are there any, and if so what, subsisting agreement or liabilities for boundary fences between the vendors and any adjoining owner or occupier and has any notice been given in respect of boundary fences?
  • Are any of the chattels and goods included in the Agreement for Sale subject to any existing Hire Purchase Agreement, Bill of the Sale or any other encumbrance, registered or unregistered?
  • Are there any way-leave agreements with electricity authorities affecting the said property or are there any contracts with the said Commission for the guarantee of the supply of power by way of private power line or otherwise?
  • What mining rights, mining leases, licences or mining tenements exist in the property under the Mining or any other Act relating to the same?

Answers to Requisitions on Title

The answer to the above questions may be ‘no’ but lawyers will phrase it something like ‘Not to the knowledge of the vendor but the purchaser must make their own usual enquiries of all relevant authorities’.

However the answer might be ‘yes’. Searches may reveal things that are unwelcome to the purchaser. Often local residents will know about problems in a particular suburb because of adverse media coverage. Such problems may include contamination from heavy industry, land slip areas, etc. The purchaser may be advised of these problems by the relevant Council during routine searches.

For rural blocks, problems that are revealed may be different such as the discovery of unwelcome easements or rights of way, or the discovery that the fences on the property in no way relate to the boundaries. The question arises, what to do when one of these searches provides unwelcome information. If the answer is such as to make the purchaser wish to withdraw from the contract then this is certainly the time to obtain legal advice.

Stamp Duty

Stamp duty is payable by a purchaser.

The amount of stamp duty to be paid on a purchase depends on the features of the transaction. Sometimes stamp duty is calculated based on the purchase price of the Property or there may be situations where stamp duty is assessed differently based on the value of the Property, particularly if a private sale or sale between family members.

There are a number of rulings on the issue of stamp duty. Professional advice should be obtained as to the impact of stamp duty prior to entering a contract.

You may be eligible for a reduction in stamp duty if you are eligible for a First Home Owner Grant. Information as to the stamp duty reduction that may apply in addition to First Home Owners grants and a useful stamp duty calculator are available on the State Revenue Office website.

The Duties Act 2001 (Tas) changed on 1st October 2012 and an example of how stamp duty is currently calculated based on the purchase price of a Property is set out below.

Rates after 1 October 2012 are:

  • $150,000: Purchase Price stamp Duty on Property: $4,185
  • $500,000: Purchase Price stamp Duty on Property: $18,247.50

The higher the purchase price or value of the transfer, the higher the stamp duty payable. Extract tables from the State Revenue Office of Tasmania is set out below.

Transfers BEFORE 1st October, 2012

Value of the Property (including chattels)                       Duty Payable
$0 – 1,300                                                                        $20

$1,301 – 10,000                                                                $1.50 for every $100, or part, of the dutiable value

$10,001 – 30,000                                                              $150 plus $2 for every $100, or part, by which the dutiable value exceeds $10,000

$30,001 – 75,000                                                              $550 plus $2.50 for every $100, or part, by which the dutiable value exceeds $30,000

$75,001 – 150,000                                                            $1,675 plus $3 for every $100, or part, by which the dutiable value exceeds $75,000

$150,001 – 225,000                                                          $3,925 plus $3.50 for every $100, or part, by which the dutiable value exceeds $150,000

Over $225,000                                                                 $6,550 plus $4 for every $100, or part, by which the dutiable value exceeds $225,000

Transfers AFTER 1st October 2012

Value of the Property (including chattels)                       Duty Payable

$0 -1,300                                                                          $20

$1,301 – 25,000                                                                $20 plus $1.75 for every $100, or part, by which the dutiable value exceeds $1,300

$25,000 – 75,000                                                              $435 plus $2.25 for every $100, or part, by which the dutiable value exceeds $25,000

$75,000 – 200,000                                                            $1,560 plus $3.50 for every $100, or part, by which the dutiable value exceeds $75,000

$200,000 – 375,000                                                          $5,935 plus $4.00 for every $100, or part, by which the dutiable value exceeds $200,000

$375,000 – 725,000                                                          $12,935 plus $4.25 for every $100, or part, by which the dutiable value exceeds $375,000

Over $725,000                                                                 $27,810 plus $4.50 for every $100, or part, by which the dutiable value exceeds $725,000

Filing Fees

In addition to payment of stamp duty, legal fees and disbursements for conveyancing work there are some Government filing fees payable in sale and purchase of real estate.

For example, these are some common filing fees and the current rates (subject to change) on a standard residential property sale and purchase:

(a) Filing fee on the transfer document signed by the Vendor - currently $188.64;
(b) Filing fee on registration of discharge of a Vendor’s existing mortgage - currently $152.64;
(c) Filing fee on registration of a new mortgage $123.12

The above fees are current as at the date of production of this chapter The Land Titles Office can provide information as to the current filing fees and fees on any other commonly lodged documents. A link to the Land Titles Office website and telephone contact details appear at the end of this chapter.

First Home Owners Grant

First home buyers may be eligible for up to a $7,000 Commonwealth grant towards the purchase of a residential home. More information including forms, guidelines, rulings and eligibility criteria is available from the State Revenue Office of Tasmania.

Settlement

On the due date for settlement, if you have engaged the services of a solicitor or conveyancer they will handle the procedural steps of settlement.

The purchaser and vendors should agree the final settlement figure. This amount is the purchase price less the deposit, plus or minus pro-rata rates and land taxes.

On settlement date the purchaser should have arrangements in place for the required funds for settlement to be made available. The purchaser’s solicitor or conveyancer will generally handle the collection of funds and the necessary cheques for settlement. They should also provide:

  • The original Certificate of Title to the property;
  • The original correctly signed and witnessed land transfer form;
  • Keys (if applicable);
  • Discharge of any registered mortgage or other encumbrance such as a caveat and applicable filing fees.

If the purchaser has taken out a mortgage to finance the purchase, all of the final steps on settlement day will be organised by their bank. The Certificate of Title and other documents will be retained by their bank who will organise assessment and payment of stamp duty and registration of the Certificate of Title into the name of the purchaser and the bank keep the original Certificate of Title while the mortgage is current.

If there will not be a mortgage to finance the purchase, usually the purchaser’s solicitor or conveyancer will handle the assessment and payment of stamp duty and registration of the Certificate of Title into the name of the purchaser. The Purchaser should ensure that they keep the original Certificate of Title in safe custody (such as by storing in a safety deposit box with a bank or in the strong room of a law firm) as the costs, risks and inconvenience of replacing a lost or stolen Certificate of Title are considerable.

Contacts and Resources

The Law Society of Tasmania 

www.taslawsociety.asn.au or telephone (03) 62 344 133

State Revenue Office

www.sro.tas.gov.au

email: fhogs@treasury.tas.gov.au

telephone (03) 6233 8070 or 1800 001 388 (for Tasmanian callers outside the 62 area)

Mineral Resources Tasmania

www.mrt.tas.gov.au

Real Estate Institute of Tasmania

www.reit.com.au

telephone (03) 6223 4769

Land Titles Office

http://dpipwe.tas.gov.au/land-property-titles/land-titles-office

telephone (03) 6233 3659

Strata Living in Tasmania Guide

Strata Living in Tasmania

Consumer Affairs and Fair Trading

http://www.consumer.tas.gov.au/real_estate

telephone 1300 654 499
 

 

Disclaimer

This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.