Commentary on Sections Part 3: Access to Services etc Schedule 3: Excluded residential tenancy agreements Section 22: Persons disqualified by immigration status not to be leased premises
129.This section provides that a landlord must not allow an adult to occupy property under a residential tenancy agreement if they are a disqualified person.
130.Subsection (2) provides that the restriction in subsection (1) will only be contravened where the circumstances set out at subsection (4) or subsection (5) apply.
131.Subsections (4) and (5) set out the two different circumstances in which a contravention of this restriction may occur. In the first scenario a landlord enters into an agreement which allows a disqualified person to occupy the property. In the second scenario, while at the time the landlord enters into the agreement the person who will occupy the premises has the right to rent, that right comes to an end while they remain in the property.
132.Subsection (6), read in conjunction with subsection (4) makes it clear that a person does not have to be named in a tenancy agreement for these provisions to apply. A landlord is expected to make reasonable enquiries regarding the persons who will take up residence under an arrangement before entering into an agreement and even if the individual is not specifically named in any written agreement, the landlord will be responsible for them if they have authorised their occupation or should have been aware of their occupation, from the making of reasonable enquiries.
133.Subsection (7) is an anti-avoidance provision. A landlord cannot attempt to avoid liability for a penalty by relying on a provision in a residential tenancy agreement which states that a disqualified person is not permitted to occupy the premises if they subsequently enter into a side agreement which allows a disqualified person to take up residence without undertaking the required checks or if they otherwise waive a breach of such a provision.
134.Subsection (9) confirms that the restriction set out in the section is not intended to affect the validity or enforceability of any provisions of a residential tenancy agreement. A breach of the restriction will not impact on a landlord or tenant’s ability to enforce any provision in the agreement that they have entered into.