On 19 June 2009 NSW Parliament assented to the Residential Tenancies Amendment (Mortgagee Repossessions) Act 2009 (the Mortgagee Repossessions Act) which inserts new sections 71A and 72 into the Residential Tenancies Act 1987 (NSW). The new sections commenced operation on the same date.

Section 71A of the Mortgagee Repossessions Act has the following ramifications:

  • it introduces a 30 day minimum notice period to vacate once a mortgagee is entitled to possession of rented premises;
  • it provides rent relief for a period of 30 days after the notice has been given to a tenant who is holding over after termination of a fixed term lease agreement; and
  • it allows the mortgagee (or a person acting on their behalf) to enter the rented premises to show prospective purchasers on a reasonable number of occasions, subject to the tenant being given reasonable notice of each occasion and agreeing to the date and time of the inspections.

Importantly even if the mortgagee has obtained a court order for earlier possession, section 71A(8) provides that section 71A has effect despite the terms of any court order, contract or other agreement. However, a tenant may agree to leave earlier, particularly if they are concerned about the disruption from inspections or repairs that the mortgagee may be entitled to undertake.

A mortgagee may only recover possession once the date specified in the notice to vacate has expired. Section 72 (1A) prohibits a mortgagee, where the tenancy agreement has been terminated, from taking possession before the date specified in the notice to vacate (being a period of at least 30 days).

The NSW government proposes a further 100 changes to the Residential Tenancies Act 1987 but will provide a consultative process prior to introducing changes into parliament.