Landlord and Tenant Act 1935

Landlord and Tenant Act 1935

An Act to consolidate and amend the law relating to landlords and their tenants

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART I - Preliminary

1.   Short title

This Act may be cited as the Landlord and Tenant Act 1935 .

2.   Repeal of local Acts: Non-application of Imperial Acts

(1)  The Acts enumerated in Schedule 1 are hereby repealed.

(2)  No Imperial enactment directly relating to the law of landlord and tenant shall have effect in this State.

2A.   Act not apply to residential tenancy agreements

[Section 2A Inserted by No. 82 of 1997, Sched. 3, Applied:01 Jul 1998] This Act does not apply to a residential tenancy agreement within the meaning of the Residential Tenancy Act 1997 to which that Act applies.

PART II - Leases and Rents

3.   Effect where words in schedule used

Whenever any party to any deed made according to the form set forth in Part I of Schedule 2 , or to any other deed which shall be expressed to be made in pursuance of this Act, shall employ in such deed respectively any of the forms of words contained in the first column of Part II of Schedule 2 , and distinguished by any number therein, such deed shall be taken to have the same effect and be construed as if such party had inserted in such deed the form of words contained in the second column of the same schedule , and distinguished by the same number as is set opposite to the form of words employed by such party; but it shall not be necessary in any such deed to insert any such number.

4.   Deed to include all outhouses, &c.

Every such deed, unless any exception be specially made therein, shall be held and construed to include all outhouses, buildings, barns, stables, yards, gardens, cellars, ancient and other lights, paths, passages, ways, waters, watercourses, liberties, privileges, easements, profits, commodities, emoluments, hereditaments, and appurtenances whatsoever, to the lands and tenements therein comprised belonging or in anywise appertaining.

5.   Deed not taking effect by this Act to be valid

Any deed or part of a deed which shall fail to take effect by virtue of this Act shall nevertheless be as valid and effectual, and shall bind the parties thereto, so far as the rules of law and equity will permit, as if this Act had not been made.

6.   Immaterial variances not to vitiate

If, in employing any of the forms of words contained in the first column of Part II of Schedule 2 in any such deed, there should occur a merely verbal and immaterial variance or departure from such form, or any clerical error, such variance or error shall not prevent such deed or the part thereof where such variance or error occurs from taking effect under this Act, provided the form of words employed is substantially to the same effect as any of those contained in the said first column .

7.   Action against tenant for life

Where any person has any rent in arrear or due upon any lease or demise for life or lives he may bring an action for such arrears of rent in the same manner as he might have done in case such rent were due and reserved upon a lease for years.

8.   Recovery of rent where lease not by deed

(1)  Where the agreement between the landlord and the tenant is not by deed, the landlord may recover a reasonable satisfaction for the lands, tenements, or hereditaments held or occupied by the defendant in an action for the use and occupation of what was so held or enjoyed.

(2)  If in evidence on the trial of such action any parol demise or any agreement, not being by deed, whereon a certain rent was reserved shall appear, the plaintiff in such action shall not be non-suited, but may make use thereof as an evidence of the quantum of the damages to be recovered.

9.   Tenant or person holding over to pay double value: No equitable relief from penalty

Where any tenant for any term of life, lives, or years, or other person who is in or comes into possession of any lands, tenements, or hereditaments by, from, or under, or by collusion with such tenant, wilfully holds over any lands, tenements, or hereditaments, after the determination of such term, and after demand made and notice in writing given for delivering the possession thereof by his landlord or lessor, or the person to whom the remainder or reversion of such lands, tenements, or hereditaments belongs, or his agent thereunto lawfully authorized, then such person so holding over shall, for and during the time he so holds over or keeps the person entitled out of possession of the said lands, tenements, or hereditaments, as aforesaid, pay to the person so kept out of possession, his executors, administrators, or assigns, at the rate of double the yearly value of the lands, tenements, and hereditaments so detained for so long a time as the same are detained, to be recovered by action; against the recovering of which penalty there shall be no relief in equity.

10.   Tenant holding over after giving notice to pay double rent

(1)  In case any tenant gives notice of his intention to quit the premises by him held at a time mentioned in such notice and does not accordingly deliver up the possession thereof at the time in such notice contained, then the said tenant, his executors or administrators shall thenceforward pay to the landlord double the rent or sum which he should otherwise have paid; to be levied, sued for, and recovered at the same time and in the same manner as the single rent or sum which could, before the giving of such notice, be levied, sued for, and recovered.

(2)  Such double rent or sum shall continue to be paid during all the time such tenant continues in possession as aforesaid.

11.   Recovery of rent on death of tenant for life

In case any tenant for life happen to die before or on the day on which any rent was reserved or made payable upon any demise or lease of any lands, tenements, or hereditaments which determined on the death of such tenant for life, then the executors or administrators of such tenant for life may, in an action, recover of and from such under-tenant of such lands, tenements, or hereditaments (if such tenant for life die on the day on which the same was made payable), the whole or, if before such day, then, a proportion of such rent according to the time such tenant for life lived of the last year or quarter of a year or other time in which the said rent was growing due as aforesaid, making all just allowances or a proportionable part thereof respectively.

11A.   Tenant remaining in possession after notice to determine tenancy

[Section 11A Inserted by 7 Geo. VI No. 53, s. 2 ]

(1)  Where a tenancy has been determined by written notice by either party to the other and the tenant remains in possession of the demised premises after the expiration of such notice, the acceptance by the landlord of any sum of money as rent from the tenant in respect of the occupation of the demised premises for any period not exceeding 6 months after such expiration shall not of itself constitute evidence of a new tenancy, and shall not operate as a waiver of such notice.

(2)  In the absence of any express agreement to the contrary, any sum paid as aforesaid shall be deemed to have been paid by the tenant, and received by the landlord, as mesne profits.

PART III - Provisions as to Execution and Seizure by Third Parties

12.   Goods on leased premises not to be taken in execution until arrears of rent, not exceeding one year's paid

No goods or chattels whatsoever lying or being in or upon any messuage lands or tenements which are leased for life, or lives, term of years at will, or otherwise, shall be liable to be taken by virtue of any execution on any pretence, whatsoever, unless the party at whose suit the said execution is sued out before the removal of such goods from off the said premises by virtue of such execution pays to the landlord of the said premises or his bailiff all such sums of money not exceeding or amounting to more than one year's rent as are due for rent for the said premises at the time of the taking of such goods or chattels by virtue of such execution.

13.   Rent so paid to be levied with execution

In case the said arrears exceed one year's rent, then the party at whose suit such execution is sued out paying the said landlord or his bailiff one year's rent may proceed to execute his judgment as he might have done before the commencement of this Act; and the sheriff or other officer is hereby empowered and required to levy and pay to the plaintiff as well the money so paid for rent as the execution money.

14.   Certain goods not to be levied on

No sheriff or other officer shall by virtue of any process of any court carry off or sell, or dispose of for the purpose of being carried off from any lands let to farm any straw threshed or unthreshed, or any straw of crops growing, chaff, turnips, manure, compost, ashes, or seaweed in any case whatsoever; nor any hay, grass, or grasses, whether natural or artificial, nor any tares or vetches, nor any roots or vegetables being produce of such lands, in any case, where, according to any covenant or written agreement entered into and made for the benefit of the owner or landlord of any farm, such hay, grass, or grasses, tares, or vetches, roots, or vegetables ought not to be taken off or withholden from such lands, or which by the tenor or effect of such covenants or agreements ought to be used or expended thereon, and of which covenants or agreements such sheriff or other officer has received a written notice before he has proceeded to sale.

15.   Tenant to give notice to sheriff

The tenant or occupier of any lands let to farm against whose goods any process of law issues whereby such goods may be taken and sold shall, on having knowledge of such process, give a written notice to the sheriff or other officer executing the same of such covenants or agreements whereof he has knowledge and which may relate to and regulate or are intended to regulate the use and expenditure of the crops or produce grown or growing thereon, and also of the name and residence of the owner or landlord of such land.

16.   Sheriff to give notice to owner or landlord and his agent

The sheriff or other officer shall forthwith, on executing such process and before any sale has been proceeded in, send a notice by the post to the owner or landlord of such lands in all cases where such owner or landlord is resident in any part of Tasmania and has been made known to and ascertained by such sheriff or other officer and also to the known agent of such owner or landlord in respect of such lands, stating to such owner, landlord, and agent the fact of possession having been taken of any crops or produce hereinbefore mentioned; and such sheriff or other officer shall in all cases of the absence or silence of such owner or landlord or his agent postpone and delay the sale of such crops or produce until the latest day he lawfully can or may appoint for such sale.

17.   Power of sheriff to dispose of goods to person agreeing to sue, and expend same according to covenant

Such sheriff or other officer executing such process may dispose of any crops or produce hereinbefore mentioned to any person who agrees in writing with such sheriff or other officer in cases where a covenant or written agreement is shown to use and expend the same on such lands according to such covenant or written agreement; and after such sale or disposal so qualified it shall be lawful for such person to use all such necessary barns, stables, buildings, outhouses, yards, and fields for the purpose of consuming such crops or produce as such sheriff or other officer allots or assigns to him for that purpose, and which such tenant or occupier would have been entitled to and ought to have used for the like purpose on such lands.

18.   On breach of agreement, sheriff to assign right of action to landlord

Such sheriff or other officer shall, on the request of any owner or landlord who is aggrieved by any breach of such agreement, permit such owner or landlord to bring any action in the name of such sheriff or other officer for the recovery of damages in respect of such breach; such landlord or owner having nevertheless fully indemnified such sheriff or other officer against all costs whatsoever and all loss and damage before any such action is commenced.

19.   Sheriff, before sale of crops or produce, to inquire as to landlord

Such sheriff or other officer shall, before any sale of any crops or produce of any lands let to farm is proceeded in, make by all ways and means due inquiry within the district where such lands are situate as to the name and residence of the owner or landlord of such lands.

20.   Sheriff not to sell grasses

No sheriff or other officer shall, by virtue of any process whatsoever, sell or dispose of any clover, rye grass, or any artificial grass or grasses whatsoever which are newly sown and growing under any crop of standing corn.

21.   Straw, &c., excepted

The above provisions shall not extend to any straw, turnips, and other articles which the tenant may remove from the farm consistently with some contract in writing.

22.   Protection of sheriff, except for wilful breach or omission

In every case where any action is brought against such sheriff or other officer for any breach of or omission of compliance with the provisions hereinbefore mentioned, no plaintiff shall be entitled to recover any damages against such sheriff or other officer unless it is proved on the trial of such action that such breach or omission was wilful on the part of the sheriff or other officer.

23.   Indemnity for sheriff and purchaser

No such sheriff or other officer, nor any deputy, agent, bailiff, or servant of a sheriff or other officer, nor any person who purchases any hay, straw, chaff, turnips, grass or grasses, or other produce and things hereinbefore mentioned under the provisions aforesaid, nor the servant of such person, shall be deemed or taken to be a trespasser, by reason of his coming upon or remaining in possession of any barns or other buildings, yards, or fields, for the purpose of threshing out or consuming any straw, hay, turnips, or other produce hereinbefore mentioned under the provisions aforesaid, or for doing any matter or thing whatsoever fit and necessary to be done for the purpose of executing the same and carrying into effect all stipulations contained in any agreement made under such provisions, though such acts are done by or on behalf of such sheriff or other officer, or by such person or his servant, after the return of the process under which such sheriff or other officer has acted.

PART IV - Emblements and Fixtures

24.   On determination of leases or tenancies under tenant for life, &c., instead of emblements tenant to hold until expiration of current year, &c.

Where the lease or tenancy of any farm or lands held by a tenant at rack rent determines by the death or cesser of the estate of any landlord entitled for his life or for any other uncertain interest –

(a) instead of making or having any claim to emblements, the tenant shall continue to hold and occupy such farm or lands until the expiration of the then current year of histenancy, and shall then quit, upon the terms of his lease or holding, in the same manner as if such lease or tenancy were then determined by effluxion of time or other lawful means during the continuance of his landlord's estate;

(b) the succeeding landlord or owner shall be entitled to recover and receive of the tenant, in the same manner as his predecessor or such tenant's lessor could have done, if he had been living or had continued the landlord or lessor, a fair proportion of the rent for the period which may have elapsed from the day of the death or cesser of the estate of such predecessor or lessor to the time of the tenant so quitting;

(c) the succeeding landlord or owner and the tenant respectively shall, as between themselves and as against each other, be entitled to all the benefits and advantages, and be subject to the terms, conditions, and restrictions to which the preceding landlord or lessor and such tenant respectively would have been entitled and subject in case the lease or tenancy had determined in manner aforesaid at the expiration of such current year; and

(d) no notice to quit shall be necessary or required by or from either party to determine any such holding and occupation as aforesaid.

25.   Growing crops seized and sold under execution to be liable for thereafter accruing rent

In case all or any part of the growing crops of the tenant of any farm or lands are seized and sold by the sheriff or other officer by virtue of any writ of fieri facias or other writ of execution, such crops, so long as the same remain on the farms or lands, shall, in default of sufficient distress of the goods and chattels of the tenant, be liable to the rent which may accrue and become due to the landlord after any such seizure and sale, and to the remedies by distress for recovery of such rent, and that notwithstanding any bargain and sale or assignment which may have been made or executed of such growing crops by the sheriff or other officer.

26.   Right of tenant to remove buildings and fixtures erected by him with landlord's consent

(1)  If any tenant of a farm or lands at his own cost and expense erects, with the consent in writing of the landlord for the time being, any farm-building, either detached or otherwise, or puts up any other building, engine, or machinery, either for agricultural purposes or for the purposes of trade and agriculture (which are not erected or put up in pursuance of some covenant or obligation in that behalf), then all such buildings, engines, and machinery shall be the property of the tenant and shall be removable by him, notwithstanding the same may consist of separate buildings, or that the same or any part thereof may be built in or permanently fixed to the soil, so as the tenant making any such removal do not in anywise injure the land or buildings belonging to the landlord, or otherwise put the same in like plight and condition, or in as good plight and condition as the same were in before the erection of anything so removed.

(2)  No tenant shall, under the provisions of this section, be entitled to remove any such matter or thing as aforesaid without first giving to the landlord or his agent one month's previous notice in writing of his intentions so to do; and thereupon it shall be lawful for the landlord, or his agent on his authority, to elect to purchase the matters and things so proposed to be removed or any of them; and the right to remove the same shall thereby cease, and the same shall belong to the landlord; and the value thereof shall be ascertained and determined by 2 referees, one to be chosen by each party, or by an umpire to be named by such referees, and shall be paid or allowed in account by the landlord who has so elected to purchase the same.

PART V - Distress for Rent

Division 1 - General provisions

27.   Remedy for rent where estate depends on life of another

Any person who has any rent for term of life of any other person and the said rent is due and unpaid in the life of such last-mentioned person may, after the death of such person, have an action against the tenant, his executors, and administrators; and also may distrain for the arrears upon the lands and tenements in like manner as he might have done during the life of the person on whose life the estate depended.

28.   Rents to be recoverable by distress

Every person who has or is entitled to any rent, of whatsoever nature the same may be, shall have the same remedy by distress and by impounding and selling the same as in the case of rent reserved upon a lease.

29.   Corn loose may be distrained and, subject to replevin, sold

Every person having rent in arrears and due upon any demise lease or contract may seize and secure any sheaves and cocks of corn or corn loose or in the straw or hay lying or being in any barn or granary or upon any hovel stack or rick or otherwise upon any part of the land or ground charged with such rent; and may lock up or detain the same in the place where the same is found for or in the nature of a distress until the same is replevied upon security given as hereinafter provided; and in default of replevying the same within the time hereinafter provided, may sell the same, so as nevertheless such corn, grain, or hay so distrained as aforesaid is not removed by the person distraining to the damage of the owner thereof out of the place where the same is found and seized but is kept there (as impounded) until the same is replevied or sold.

30.   Right of landlord to distrain stock, &c., for arrears

Every landlord or his bailiff, receiver, or other person empowered by him may take and seize as a distress for arrears of rent any cattle or stock of his tenant feeding or depasturing upon any part of the premises demised or held, and may also take and seize all sorts of corn and grass, hops, roots, fruits, pulse, or other product whatsoever which is growing on any parts of the estates so demised or held as a distress for arrears of rent, and the same may cut, gather, make, cure, carry, and lay up when ripe in the barn or other proper place on the premises so demised or held; and in case there is no barn or proper place on the said premises, then in any other barn or proper place which the said landlord hires or otherwise procures for that purpose and as near as may be to the premises; and in convenient time may sell or otherwise dispose of the same towards satisfaction of the rent for which such distress has been taken and of the charges of such distress and sale in the same manner as other goods and chattels may be seized, distrained, and disposed of.

31.   Distress on growing products to cease if payment made

In case the tenant, his executors, administrators, or assigns, after any distress for arrears so taken of corn, grass, hops, roots, fruits, pulse, or other product which is growing as aforesaid, and at any time before the same is ripe and cut, cured, or gathered, pays or causes to be paid to the landlord for whom such distress is taken, or to his bailiff or other person usually employed to receive the rent of such landlord, the whole rent which is then in arrear, together with the full costs and charges of making such distress and which have been occasioned thereby, then and upon such payment or lawful tender thereof, actually made, whereby the end of such distress will be fully answered, the same and every part thereof shall cease; and the corn, grass, hops, roots, fruits, pulse, or other product so distrained shall be delivered up to the tenant, his executors, administrators, or assigns.

32.   Exemptions from distress

(1)  [Section 32 Subsection (1) amended by No. 55 of 1965, s. 5 ]The following goods and chattels of a tenant or his family shall, subject to the proviso hereinafter contained, be exempt from distress for rent, namely, the tools, implements, and instruments of trade, if any, and the necessary wearing apparel, tables, chairs, cooking utensils, bedsteads and bedding of himself or his family, to a value not exceeding $40 in the whole.

(2)  In this section the word trade means any trade, profession, business, or occupation.

(3)  Any sewing-machine, knitting-machine, type-writing machine, or mangle, the property of or let on hire to any female person, shall be exempt from distress for any rent claimed in respect of the premises or place in which such machine or mangle may be; but this exemption shall not apply in respect of more than one sewing-machine, one knitting-machine, one type-writing machine, or one mangle, respectively, the property of, or let on hire to, any one such person.

(4)  [Section 32 Subsection (4) amended by No. 55 of 1965, s. 5 ]Where goods and chattels of exempt classes, aggregating more than $40 in value, have been distrained, the tenant, by notice in writing to the person distraining, may elect which of such goods and chattels, to the value of $40 in all, shall be exempted from the distress, and the same, if and so far as they are exempt under this Act, shall be released from the distraint.

(5)  A court of petty sessions, on complaint that any goods or chattels exempt under this section from distress for rent have contrary thereto been taken under distress, may by summary order direct that the goods and chattels so taken, if not sold, be restored, or if they have been sold, that such sum as the court determines to be the value thereof shall be paid to the complainant by the person who levied the distress or directed it to be levied.

33.   Beasts of the plough, cattle, and sheep exempt where other sufficient distress

Beasts of the plough and sheep shall not be liable to be distrained for rent due and in arrear unless some other sufficient distress cannot be found, and all distress shall be reasonable and not too great.

34.   Landlord not to distrain certain goods after sale under section 17

In all cases where any purchaser of any crops or produce under the provisions of Part III has entered into an agreement with the sheriff or other officer as in that Part authorized touching the use and expenditure thereof on lands let to farm, it shall not be lawful for the owner or landlord of such lands to distrain for any rent –

(a) any corn, hay, straw, or other produce thereof which at the time of such sale, and the execution of such agreement entered into under the provisions aforesaid, has been severed from the soil and sold subject to such agreement by such sheriff or other officer;

(b) any turnips, whether drawn or growing, if sold according to the provisions aforesaid; or

(c) any horse, sheep, or other cattle, or any beast whatsoever, or any waggons, carts, or other implements of husbandry which any person employs, keeps, or uses on such lands for the purpose of threshing out, carrying, or consuming, any such corn, hay, straw, turnips, or other produce under the provisions and agreement aforesaid.

35.   Distress after lease expired

Where any person has any rent in arrear or due upon any lease for life or lives or for years, or at will, ended or determined, such person may, at any time within the space of 6 months after the determination of such lease and during the continuance of his title or interest and during the possession of the tenant from whom such arrears became due, distrain for such arrears.

36.   Second distress if first not sufficient

In all cases where the value of the cattle or goods or chattels distrained is found not to be of the value of the arrears distrained for, the party to whom such arrears were due, his executors or administrators may distrain again for the residue of the said arrears.

37.   Avowry without naming tenant

Whenever any lands, tenements, and other hereditaments are held of any person by any rents, if the landlord of whom any such lands, tenements, or hereditaments are so held, distrain upon the same for any such rents and replevin thereof is sued, the landlord may avow or his bailiff or servant may take cognizance or justify for taking of the said distresses, without naming any person certain to be tenant of the same and without making any avowry, justification, or cognizance upon any person certain.

38.   How defendant may avow in replevin

All defendants in replevin may avow and make cognizance generally that the plaintiff in replevin or other tenant of the lands and tenements whereon such distress was made, enjoyed the same under a grant or demise at such a certain rent during the time wherein the rent distrained for accrued, which rent was then and still remains due, or that the place where the distress was taken was parcel of such tenements, without further setting forth the grant, tenure, demise, or title of such landlord.

39.   Seizure and sale of goods fraudulently removed

In case any tenant for life or lives, term of years, at will, sufferance, or otherwise, of any messuages, lands, tenements, or hereditaments upon the demise or holding whereof any rent is or shall be reserved or made payable, shall fraudulently or clandestinely convey away or carry off or from such premises his goods or chattels to prevent the landlord from distraining the same for arrears of rent so reserved or made payable, then such landlord or any person by him for that purpose lawfully empowered, within the space of 30 days next ensuing such conveying away or carrying off such goods and chattels, may take and seize such goods and chattels wherever the same are found, as a distress for the said arrears of rent; and the same may sell or otherwise dispose of in such manner as if the said goods and chattels had actually been distrained by such landlord in and upon such premises for such arrears of rent.

40.   Goods not to be seized if sold in good faith

No landlord or other person entitled to such arrears of rent shall take or seize any such goods or chattels as a distress for the same which are sold in good faith and for a valuable consideration before such seizure made to any person not privy to such fraud as aforesaid, anything herein contained to the contrary notwithstanding.

41.   Penalty for fraudulent removal

In case any tenant fraudulently removes and conveys away his goods or chattels as aforesaid, or in case any person wilfully and knowingly aids or assists any such tenant in such fraudulent removal or conveying away of any part of his goods or chattels or in concealing the same, every person so offending shall forfeit and pay to the landlord from whose estate such goods and chattels were fraudulently carried off as aforesaid double the value of the goods by him or them respectively carried off or concealed as aforesaid, to be recovered by action in any court of competent jurisdiction.

42.   Summary proceedings if value $100 or less

(1)  [Section 42 Subsection (1) amended by No. 55 of 1965, s. 5 ]Where the goods or chattels so fraudulently carried off or concealed do not exceed the value of $100, the landlord or his agent in his behalf may proceed on complaint against such offender.

(2)  A court of petty sessions, upon the hearing of any such complaint, may examine the facts and all proper witnesses, and in a summary way determine whether such person is guilty of the offence with which he is charged; and may inquire in like manner of the value of the goods and chattels alleged to have been fraudulently carried off or concealed by him as aforesaid; and, upon proof of the offence, the court shall adjudge the offender to pay double the value of the said goods and chattels to such landlord or to his agent at such time as the court appoints.

43.   Recovery of goods fraudulently removed

When any goods or chattels which have been fraudulently or clandestinely conveyed or carried away as aforesaid are put, placed, or kept in any house, barn, stable, outhouse, yard, close, or place locked up, fastened, or otherwise secured so as to prevent such goods or chattels from being taken and seized as a distress for arrears of rent, the landlord or any person empowered to take and seize as a distress for rent such goods and chattels (first calling to his assistance some police officer who is hereby required to aid and assist therein, and, in case of a dwelling-house, oath being made before some justice of a reasonable ground to suspect that such goods or chattels are therein) in the daytime may break open and enter into such house, barn, stable, outhouse, yard, close, or place, and may take and seize such goods and chattels for the said arrears of rent.

44.   Treble damages for pound-breach

Upon any pound-breach or rescue of goods or chattels distrained for rent, the person aggrieved thereby shall, in any action for the wrong thereby sustained, recover treble damages and costs of suit against the offender in any such rescue or pound-breach, or against the owner of the goods distrained, in case the same be afterwards found to have come to his use or possession.

45.   Double damages and costs against wrongful distrainer

If any distress and sale shall be made for rent pretended to be in arrear or due, where in truth no rent is in arrear or due to the person distraining, or to him in whose name or right such distress shall be taken, the owner of such goods or chattels distrained and sold, or his executors or administrators, shall and may, by action to be brought against the person so distraining, or his executors or administrators, recover double the value of the goods or chattels so distrained and sold, together with full costs of the action.

46.   Distress: How to be made

(1)  [Section 46 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] No landlord or other person to whom any rent is due or to whom a power of distress is given by any deed or other instrument or is given by law, shall seize and take any goods or chattels as a distress for arrears of rent, unless such distress is made by such person or by his agent or bailiff duly authorized by a warrant of distress signed by such landlord or person, or by his Australian legal practitioner or agent, thereunto by him duly authorized.

(2)  [Section 46 Subsection (2) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] If the landlord or person giving such warrant of distress is unable to write his name, his signature, by mark thereunto, shall be attested by a justice or by an Australian legal practitioner.

(3)  Where a distress is made by an agent or bailiff he shall deliver, at the time of making the distress, a copy of such warrant as aforesaid to the tenant in possession of the premises or to the owner of the goods or chattels distrained, or, if the tenant or owner is not present, to some person resident at or near the premises, for such tenant or owner, and in case there is no person resident at or near to such premises to whom such copy can be delivered, such agent or bailiff shall deliver the same to such tenant or owner if demanded at any time within 30 days next after such distress has been made.

47.   Inventory and bill of charges to be delivered

Every landlord or other person making any distress shall forthwith make out and sign an inventory in the appropriate form in Schedule 3 of the goods and chattels distrained and also a bill of the charges then claimed on account of such distress; and such landlord or other person shall thereupon deliver such inventory and bill of charges in the like manner as is hereinbefore directed with regard to the warrant of distress.

48.   Appraisement not required

No appraisement of any goods and chattels distrained shall be necessary to the validity of any distress or sale thereof unless the same is required as hereinafter provided.

49.   Charges for distraining

(1)  The charges which may be made in respect of any distress shall be those prescribed in Schedule 4 and no other charges shall be made or demanded or shall be payable in respect of any distress.

(2)  [Section 49 Subsection (2) amended by No. 18 of 2008, s. 37, Applied:26 Jun 2008] The judges, or a majority of them, may, by rules of court, prescribe a scale of charges in lieu of those set forth in Schedule 4 and thereupon such scale shall be deemed to be Schedule 4 .

50.   Impounding goods distrained

(1)  [Section 50 Subsection (1) amended by No. 51 of 1985, s. 4 and Sched. 2, Part II ]Every person distraining any goods or chattels may impound or otherwise secure the same upon the premises where the same are taken; or may at any time within 5 days after the distress remove such goods or chattels to some one convenient place not more than 5 kilometres from the premises where they were taken and may there impound or otherwise secure the same.

(2)  In every case of such removal the person distraining shall within 24 hours after such removal give notice in writing to the tenant in possession or owner of such goods or chattels of the removal of the same and the place to which such goods and chattels have been removed; and such notice may either be given to such tenant or owner, or if he is absent may be left with some person at the place from which such goods or chattels have been removed.

51.   Power of registrars of Magistrates Court (Civil Division) to make replevin and deliverance

(1)  [Section 51 Subsection (1) amended by No. 13 of 2012, s. 39, Applied:30 May 2012] It shall be lawful for the registrar of the Magistrates Court (Civil Division) held at or conveniently near to the place where any goods or chattels have been distrained for rent to make replevin and deliverance of such distress in any case where by law replevin and deliverance may be made.

(2)  Before such deliverance is made, the registrar shall take in his name from the person to whom such replevin is granted and 2 sufficient sureties a bond in double the value of the property distrained (such value to be ascertained by the oath of one or more credible and disinterested witness or witnesses, which oath the registrar is hereby authorized to administer), conditioned for commencing within one month from the date of such bond, and prosecuting with effect and without delay, an action for the taking and detaining the property distrained and for returning such property in case a return shall be awarded.

(3)  The registrar shall, at the request of the avowant or person making cognizance, assign such bond to the avowant or person making cognizance, by endorsing the same and attesting it under his hand in the presence of 2 or more witnesses, and, if the bond so taken and assigned be forfeited, the avowant or the person making cognizance may bring an action and recover thereupon in his own name, and the court where such action shall be brought may give such relief to the parties upon such bond as may be agreeable to justice and reason, and the judgment of the said court shall have the nature and effect of a defeasance of such bond.

(4)  The registrar may issue all necessary process in connection with any replevin granted by him, and such process shall be executed by the bailiff of his court.

(5)  [Section 51 Subsection (5) amended by No. 55 of 1965, s. 5 ]The registrar shall be entitled to demand and receive for the making of every replevin and the taking of the bond thereon a fee of $1, and for the making of every such assignment a fee of 25 cents.

(6)  [Section 51 Subsection (6) amended by No. 51 of 1985, s. 4 and Sched. 2, Part II ]In all cases in which any distress is made at any place distant more than 32 kilometres from the office of the sheriff or of a deputy-sheriff, or of any such registrar as aforesaid, any justice may grant replevin of the goods and chattels distrained in the same manner and subject to the same conditions as the registrar may grant the same.

(7)  The justice taking the bond may assign the same in the like manner as the registrar; and such bond may be sued on in like manner.

(8)  No such justice shall be liable in any action for taking insufficient security if he has acted in good faith and with reasonable care and caution.

(9)  Nothing in this section shall affect the power of the sheriff or his deputy to grant replevin.

52.   Manner of proceeding where tenant of land distrained upon is absent from the State

In case any distress shall be levied upon any land or tenements the tenant whereof shall, at the time of such distress being levied, be absent from this State, then it shall be lawful for the sheriff or his deputy or any such registrar as aforesaid to grant a replevin and make deliverance of the goods and chattels distrained to the agent or attorney of such tenant so being absent as aforesaid and to take such bond as aforesaid from such agent or attorney in the name of such agent or attorney and to assign such bond to the avowant or person making cognizance as aforesaid in the manner hereinbefore provided for the taking and assigning replevin bonds, and in case such bond shall be forfeited the avowant or person making cognizance may bring an action and recover thereupon in his own name in the same manner in all respects as is hereinbefore provided for the prosecution of actions upon replevin bonds, and it shall be lawful for such agent or attorney to commence and prosecute an action of replevin for the taking of any such distress as aforesaid, in which action the plaintiff shall be allowed to plead the same pleas, and upon the trial thereof to give in evidence and have the benefit of all the same matters and things which the tenant himself might have pleaded and given in evidence or had the benefit of if he had been the plaintiff in the same action instead of such attorney or agent, and, for the purposes of this action only, it shall be sufficient in any pleading to describe the goods and chattels distrained as and to be the goods and chattels of the plaintiff as agent or attorney of such tenant, and in all other respects the said action shall be prosecuted and dealt with in such and the same manner as if the action had been commenced and prosecuted by the tenant himself.

53.   Sale of distress by public auction

[Section 53 Amended by 25 Geo. V No. 78 ]

(1)  Where any goods or chattels are distrained, and the tenant in possession or owner of the goods does not, within 7 days next after the distress, replevy the same according to law, it shall be lawful for the person distraining, after the expiration of the said 7 days, to cause such goods or chattels to be sold.

(2)  The period of 7 days aforesaid shall be extended to a period of not more than 15 days if the tenant or such owner make a request in writing in that behalf to the landlord or other person levying the distress and also give security for any additional cost that may be occasioned by such extension of time.

(3)  The landlord or person levying the distress may, at the written request or with the written consent of the tenant or such owner, sell the goods or chattels distrained, or part of them, at any time before the expiration of such extended period as aforesaid.

(4)  [Section 53 Subsection (4) amended by No. 13 of 2012, s. 40, Applied:30 May 2012] In all cases the sale of such goods or chattels shall be made by public auction, either by a licensed auctioneer or by a bailiff of the sheriff or of the Magistrates Court (Civil Division).

54.   Appraisement when demanded

[Section 54 Amended by 25 Geo. V No. 78 ]

(1)  If within the period of 7 days next after the distress the tenant by notice in writing to the person distraining requires the goods and chattels distrained to be appraised the same shall be appraised as hereinafter provided.

(2)  On receipt of such notice the person distraining, with a police officer, shall, before proceeding to sell the same, cause such goods and chattels to be appraised by 2 appraisers sworn to appraise the same truly according to the best of their understanding.

(3)  Any police officer, when so required, shall aid and assist in such appraisement and may administer the necessary oath to any person appointed to make the appraisement.

55.   Application of proceeds

[Section 55 Amended by No. 55 of 1965, s. 5 ][Section 55 Amended by No. 43 of 1991, s. 5 and Sched. 1 ]The money to arise from such sale shall be applied in satisfaction of the charges of making the distress and sale and of the sum demanded; and the overplus, if any, shall be forthwith paid to the said tenant or owner, and the person causing such distress to be made shall deliver, if demanded at any time within 30 days from the time of such sale, a true account in writing of such sale.

Penalty:  Fine not exceeding 20 penalty units.

56.   Public to have access to view goods

At the time appointed for any such sale, any person shall have full liberty of ingress, egress, and regress into and out of the premises where such goods or chattels are impounded or otherwise secured, in order to view or buy and remove any part of such goods or chattels, without being liable as a trespasser.

57.   Irregularity not to vitiate distress, but may ground claim for damage

(1)  Where any distress is made for any rent or sum justly due, and any irregularity or unlawful act is afterwards done by the person causing the distress to be made, or by his agent or bailiff, the distress shall not be deemed unlawful nor the distrainer a trespasser ab initio; but the party grieved may recover satisfaction for the damage by action; and if he recovers he shall have full costs.

(2)  No tenant shall recover in any action for any such unlawful act or irregularity as aforesaid if tender of amends has been made by the party distraining, or by his agent, before action brought.

58.   Penalties for certain irregularities, omissions, &c.

[Section 58 Amended by No. 55 of 1965, s. 5 ][Section 58 Amended by No. 43 of 1991, s. 5 and Sched. 1 ]No person shall –

(a) wilfully neglect to make out, sign, and deliver –

(i) the prescribed inventory;

(ii) a bill of charges claimed; or

(iii) any prescribed notice –

as required by this Act in respect of any goods or chattels distrained by him;

(b) being an agent or bailiff make any distress without obtaining a warrant as required by this Act or wilfully neglect to deliver, as required by this Act, a copy of such warrant; or

(c) retain, take, or receive any other or greater charge than is prescribed by Schedule 4 .

Penalty:  Fine not exceeding 20 penalty units.

59.   Forms to be used

Every precept to replevy, replevin bond, and assignment of such bond, respectively shall be in the appropriate form in Schedule 3 .

Division 2 - Provisions as to lodgers and under-tenants

60.   Interpretation

In this Division –

superior landlord includes a landlord in cases where the goods seized are not those of an under-tenant or lodger;

tenant and under-tenant do not include a lodger.

61.   Right of under-tenant or lodger, if distress levied, to make declaration that immediate tenant has no property in goods distrained, and to undertake to pay rent due to superior landlord

(1)  If any superior landlord levies or authorizes to be levied, a distress on any goods or chattels of –

(a) any under-tenant;

(b) any lodger; or

(c) any other person not being a tenant of the premises or of any part thereof, and not having any beneficial interest in any tenancy of the premises or of any part thereof –

for arrears of rent due to the superior landlord by his immediate tenant, the under-tenant, lodger, or other person aforesaid may serve the superior landlord, or the agent employed by him to levy such distress, with a statutory declaration made by the under-tenant, lodger, or other person aforesaid in accordance with the provisions of this section.

(2)  Such declaration shall set forth –

(a) that the immediate tenant has no right of property or beneficial interest in the goods or chattels so distrained or threatened to be distrained, and that such goods or chattels are the property, or in the lawful possession, of the declarant; and

(b) in the case of an under-tenant or lodger, the amount of rent, if any, then due to his immediate landlord, and the times at which future instalments of rent will become due, and the amount thereof, and shall contain an undertaking to pay to the superior landlord any rent so due or to become due to his immediate landlord, until the arrears of rent in respect of which the distress was levied or authorized to be levied have been paid off –

and there shall be annexed to and verified by such declaration a correct inventory, subscribed by the declarant, of the goods and chattels referred to in the declaration.

62.   Penalty for proceeding with distress after a declaration has been made under section 61

(1)  If any superior landlord, or any agent employed by him –

(a) after being served with such declaration and inventory as aforesaid; and

(b) in the case of an under-tenant or lodger, after such undertaking as aforesaid has been given, and the amount of rent, if any, then due has been paid or tendered in accordance with such undertaking –

levies or proceeds with a distress on the goods or chattels of the under-tenant, lodger, or other person aforesaid, such superior landlord, bailiff, or other agent shall be guilty of an illegal distress, and the under-tenant, lodger, or other person aforesaid may apply by complaint under the Justices Act 1959 , for an order for the restoration to him of such goods.

(2)  On the hearing of such complaint the court shall inquire into the truth of the declaration and inventory, and shall make such order for the recovery of the goods or chattels or otherwise as to it may seem just.

(3)  The superior landlord shall also be liable to an action at the suit of the under-tenant, lodger, or other person aforesaid, in which action the truth of the declaration and inventory may likewise be inquired into.

63.   Payments of under-tenant or lodger to superior landlord

(1)  For the purposes of the recovery of any sums payable by an under-tenant or lodger to a superior landlord under –

(a) any such undertaking as aforesaid; or

(b) a notice served in accordance with section 65 –

the under-tenant or lodger shall be deemed to be the immediate tenant of the superior landlord, and the sums payable shall be deemed to be rent.

(2)  Where the under-tenant or lodger has, in pursuance of any such undertaking or notice as aforesaid, paid any sums to the superior landlord, he may deduct the amount thereof from any rent due or which may become due from him to his immediate landlord, and in that case such immediate landlord may make the like deductions from any rent due or which may become due from him to his immediate landlord, if any.

64.   Exclusion of certain goods

[Section 64 Substituted by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]

(1)  The preceding sections of this Division do not apply to any goods –

(a) belonging to the spouse of the tenant whose rent is in arrear; or

(b) comprised in any bill of sale, hire-purchase agreement or settlement made by that tenant; or

(c) in the possession, order or disposition of that tenant by the consent and permission of the true owner, under such circumstances that that tenant is the reputed owner.

(2)  In this section,

spouse includes the person with whom a person is in a significant relationship, within the meaning of the Relationships Act 2003 .

65.   Alternative to distress on goods of under-tenant or lodger

(1)  In cases where the rent of the immediate tenant of the superior landlord is in arrear, it shall be lawful for such superior landlord to serve personally upon any under-tenant or lodger a notice in writing –

(a) stating the amount of such arrears of rent; and

(b) requiring all future payments of rent, whether the same has already accrued due or not, by such under-tenant or lodger to be made direct to the superior landlord giving such notice until such arrears shall have been fully paid.

(2)  Upon the service as aforesaid of such notice the superior landlord shall have the right to recover, receive, and give a discharge for such rent from such under-tenant or lodger.

Division 3 - Special provisions as to hire-purchase goods

66.   Procedure where hire-purchase goods are distrained

[Section 66 Amended by 25 Geo. V No. 78 ]

(1)  Where any goods or chattels have been distrained for rent due by a tenant or lodger in respect of any premises, and such goods or chattels or any part thereof are comprised in a hire-purchase agreement, the owner of such last-mentioned goods or chattels (hereinafter referred to as "the owner") may, within 7 days after such distraint has been made, or at any time before the removal of the goods or chattels so distrained, deliver to the landlord of such premises, or to the agent or bailiff of such landlord, a statutory declaration, stating that he is such owner, and setting out the particulars of the goods or chattels comprised in the hire-purchase agreement, and the amount still unpaid, and upon payment of which such goods or chattels as last aforesaid would, if the hire-purchase agreement had been fully carried out, have become the property of the hirer.

(2)  Upon delivery of any such declaration as aforesaid –

(a) if there are, upon the premises upon which the distress has been levied, sufficient other goods or chattels to satisfy the distress, no further proceedings shall be taken under such distress in respect of the goods or chattels comprised in the hire-purchase agreement;

(b) in any other case, the landlord or his agent or bailiff may, in addition to the distraint already made by him, make a further distraint upon the goods and chattels liable to distress, for such an amount as is referred to in subsection (1) , and proceed to a sale thereof in the manner provided by law, and the proceeds of such sale shall be applied by the landlord, in so far as the same shall extend, in manner following:

(i) first in payment of the costs of and incidental to the distress and sale;

(ii) secondly in payment to the owner of such amount as is referred to in subsection (1) ;

(iii) thirdly in satisfaction of the amount due to the landlord –

and the balance, if any, of such proceeds shall be paid by the landlord to the hirer.

(3)  For the purposes of this section a hire-purchase agreement does not include an agreement whereby the goods comprised therein have become the absolute property of the person therein expressed to be the hirer thereof.

PART VI - Summary Proceedings to Recover Possession of Premises

67.   Interpretation

In this Part –

agent means any person usually employed by the landlord in the letting of the premises or in the collection of the rents thereof, or specially authorized in writing by the landlord to act in the particular matter;

landlord means the person entitled to the immediate reversion of the premises, or, if the premises be held in joint-tenancy, co-parcenary, or tenancy-in-common, shall mean any one of the persons entitled to such reversion;

premises means lands, houses, or other corporeal hereditaments;

tenant includes any person in possession of the premises or any part thereof, after the termination of the tenancy without the authority of the landlord.

68.   Tenant in certain cases holding over may be summoned before magistrate or justices

[Section 68 Amended by No. 55 of 1965, s. 5 ]

(1)  If the term or interest of the tenant of any premises held by him at will or for any term not exceeding 7 years, either without being liable to the payment of any rent or at a rent not exceeding the rate of $520 a year, and upon which no fine shall have been reserved or made payable, shall have ended or shall have been duly determined by a legal notice to quit or otherwise, and such tenant shall neglect or refuse to quit and deliver up possession of the premises, or any part thereof, the landlord or his agent may proceed by complaint under the Justices Act 1959 , against the tenant for the recovery of possession of such premises.

(2)  If such premises were held by the tenant at a rental exceeding a rate of $80 a year such complaint shall be heard and determined by a magistrate.

69.   Power of court to make order for possession, and for rent or mesne profits enforceable by distress

(1)  Upon the hearing of any such complaint as aforesaid, it shall be lawful for the court, upon proof of the tenant still neglecting or refusing to deliver up possession of the premises, and of the rent payable in respect of the premises, and of the holding, and of the expiration or other determination of the tenancy, with the time and manner thereof, and of the title of the landlord, if such title has accrued since the letting of the premises, and of the service of the summons if the tenant shall not appear thereto, to order that possession of such premises shall be given by the tenant to the landlord or his agent on or before such day as the court shall name, not being more than 28 days nor less than 48 hours after the hearing of the complaint.

(2)  The court in its discretion may allow to the landlord such sum as it may think fit for rent or mesne profits of the premises, to be paid on or before a day to be named by the court.

(3)  Such order for payment of rent or mesne profits shall be enforceable by distress only and not by imprisonment.

70.   Warrant to give possession of premises

(1)  If the tenant shall neglect or refuse to give possession of the premises to the landlord or his agent within the time named in the order, it shall be lawful for the court or one of the justices by whom such order was made, to issue a warrant addressed to all police officers commanding them to enter into the premises and to give possession of the same to the landlord or his agent.

(2)  Entry upon any such warrant shall not be made on a Sunday, Good Friday, or Christmas Day, or at any time except between the hours of 9 a.m. and 4 p.m.

(3)  For the purpose of executing any such warrant every police officer is hereby authorized and empowered, if necessary, to break and enter into the premises and eject the tenant or any other person therefrom.

(4)  Any such warrant may be in the appropriate form in Schedule 3 .

71.   Saving as to existing law

The provisions of this Part for recovery of possession of premises and of payment of rent and mesne profits shall not prejudice or affect any other remedy in respect thereof.

SCHEDULE 1 - Repeal

Section 2

SCHEDULE 2

Section 3

PART I

Form

PART II

SCHEDULE 3

Form 1

Section 59

Form 2

Section 59

Form 3

Section 47

Form 4

Section 59

Form 5

Section 70

SCHEDULE 4 - Charges of Distress

Section 49