New South Wales Consolidated Acts

LANDLORD AND TENANT ACT 1899 - SECT 2AA

2AA No taking possession of dwelling-house without court sanction

(1) In subsection (5) the reference to land that is or includes a dwelling-house that is subject to a tenancy does not include a reference to land that is or includes a dwelling-house that:

(a) is or forms part of any premises in respect of which a licence is in force under the Liquor Act 2007 ,

(b) is or forms part of a motel or boarding-house,

(c) is let as a dwelling-house and forms part of premises the subject of the tenancy, where another part of the premises the subject of the same tenancy is let as a shop within the meaning of the Shop Trading Act 2008 ,

(d) is the subject of a mining lease,

(e) is let as a dwelling-house to an employee of the landlord and is occupied by him or her in consequence of or in conjunction with his or her employment,

(f) is let for holiday purposes, or

(g) is a dwelling-house of a prescribed class or description.

(2) For the purposes of subsection (1) (f), a dwelling-house is let for holiday purposes if:

(a) the agreement under which the dwelling-house is let expresses the tenancy to be for a term of one month or less, and

(b) the dwelling-house is not subject to a periodic tenancy that arose after the expiration of that term.

(3) The Governor may make regulations for the purposes of subsection (1) (g).

(4) For the purposes, and without limiting the operation of any other provision, of this section and for the purposes of any proceedings against a person acting in contravention of subsection (5):

(a) land a tenancy of which has expired or been determined shall be deemed to continue to be land the subject of that tenancy,

(b) a person who, immediately before a tenancy of land expired or was determined, was the landlord or tenant under that tenancy shall be deemed to continue to be the landlord or tenant, as the case may be, under that tenancy until that person is lawfully deprived of possession of that land, and

(c) a person who is, or would, but for the expiration or determination of any tenancy of land have been, entitled as against a tenant of that land or any part thereof to possession of that land or any part thereof shall be deemed to be or to continue to be a tenant of that land until he or she is lawfully deprived of possession of that land.

(5) A person, on his or her own behalf or on behalf of another person, shall not, except pursuant to a judgment or order of, or a warrant issued pursuant to a judgment, order or direction of, a court, take possession of any land that is or includes a dwelling-house and that is the subject of a tenancy the tenant under which is a person other than the person taking possession.

Maximum penalty: For an offence committed by an individual, 5 penalty units; for an offence committed by a body corporate, 10 penalty units.

(6) Subsection (5) does not apply to or in respect of the taking of possession of land that is or includes a dwelling-house where the land is mortgaged and possession of the land is taken:

(a) in pursuance of the powers of the mortgagee under the mortgage, or

(b) by a receiver under the mortgage in respect of the land,

and is so taken:

(c) by receiving the rents and profits thereof, or

(d) as against a tenant under a tenancy that is not binding on the mortgagee.

(7) It is a sufficient defence to a prosecution for an offence under subsection (5) if the defendant proves that, at the time he or she took possession of the land, he or she believed on reasonable grounds that every tenant of the land or any part thereof, of whose tenancy notice had been given to him or her or, if he or she is not the landlord, to the landlord, had ceased to reside on the land and did not intend to resume residing on the land.

(8) This section has effect notwithstanding anything contained in any other Act or in any contract, agreement or arrangement.