Distinguish Between Common Law And Statute Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Course

Certificate IV in Property Services Real Estate

Course No:

National Code:

CPP40307

Training Package:

CPP07

Subject No:

CPPDSM4009A

Subject:

Interpret legislation to complete agency work

Assignment:

1

Student:

Dominic Brooks

Postal Address:

30 Ultimo Walk

Taylors Hill

Victoria 3037

Student No:

N453534

Date sent:

Tuesday 26 October 2010

Index

Acknowledgement

Assignment answer

Part A

Q.1

4

Q.2

4

Q.3

5

Q.4

6

Q.5

7

Q.6 (a)

7

Q.6 (b)

8

Q.7

9

Q 8 (a)

10

Q.8 (b)

11

Q.9 (a)

12

Q.9 (b)

12

Q.9 (c)

12

Q.9 (d)

12

Q.10

13

Part B

Q.1

14

Q.2

14 to 20

Q.3

20 to 21

Bibliography

22

Your task

This task is designed for you to demonstrate your understanding of interpreting legislation to complete agency work. The assignment is made up of two parts, Parts A and B. You must complete and demonstrate competency in each Part.

Part A – Short paragraphs only are required for each question. You should be guided by the approximate word length in each question.

Part B – Short paragraphs only are required for each question. You should be guided by the approximate word length given in each question

Part A

Question 1 – Distinguish between common law and statute?

Common law is the system of law upon which both Australia and England legal system is based. It is law that has evolved from the making powers of judges and has developed through the doctrine of precedents. Common law developed from the practice of the English kings of sending their judges around England to decide cases on a uniform basis. These judges would apply the customary law and took in writing their decisions down. Over a period of time this became known as the "common law of England". It became part of our law through the doctrine of reception.

Statutory law or statute law is written law (as opposed to oral or customary law) set down by a legislature (as opposed to regulatory law promulgated by the executive branch or common law of the judiciary). In NSW, we are governed by the Statutes of the Commonwealth and NSW Parliaments Other States and Territories are also governed by Commonwealth Statutes and the statutes of that respective State or Territory.

In Australia statute laws is made by Federal or State Governments. Federal (Commonwealth) laws affect the whole of Australia, whereas State laws are specific to the state (ie: Property Stock and Business Agent Act, 2002). In the case of Canberra and the Northern Territory, territory parliaments have been formed to regulate these parts of Australia. However, territory parliaments have limited powers if compared against the laws enacted by State parliament.

The Commonwealth Parliament consist of the upper House (Senate) and the lower House (House of Representatives) and the Governor General. A proposed law is called a Bill, to become law it must be approved (passed) by both Houses and signed by the Governor General.

The Parliaments of Australia can make only laws to which they are empowered to make. However, were conflict exists between state and federal statutes in Australia, federal law will prevail in this instance (Section 109 of the Commonwealth Constitution).

In Australia we use the common law systems which are distinct from the civil law system which is used predominately throughout the world operating in Europe, South America and Japan. The main difference between the common law system and civil law system is with the civil law system laws are collected in written Codes made by the legislature. The courts merely interpret the Code and do not, as with common law, determine the law.

Question 2 – Outline the enactment process (that is, how legislation is passed)?

The enactment process involves:

Drafting of a bill.

Introducing the bill into one of the Houses (usually the lower house) for debate and approval.

Referring the bill to the other house for approval.

Once a Bill has been passed by the Parliament, copies of the Bill bearing a certificate from the Speaker of the House of Representatives or the President of the Senate are given to the Governor-General by the House of introduction. The Office of Parliamentary Counsel prepares a certificate for the Attorney-General's signature. When the certificate is signed by the Attorney-General it is sent to the Governor-General.

The Governor-General then gives the Royal Assent to the Bill by signing 2 copies of the Bill. In rare cases, the Bill is assented to by the Queen.

The exact time that it takes for an Act to receive the Royal Assent after it is passed by Parliament varies. However, it is usually between 7 and 10 working days.

The Royal Assent is given by the Governor-General after he or she receives the necessary documentation from the Attorney-General and the Parliament.

Proclamations fixing commencement dates for Acts, or sections of Acts, are drafted by the Attorney-General's Department on instructions from the Department responsible, and are published in the Gazette. Office of Parliamentary Counsel does not hold this information before it is published in the Gazette [1] .

Question 3 – Briefly explain the main features of an Act. Please use an Act applicable to the real estate industry of NSW to illustrate your answer?

Issue

Comment

Title

Residential Tenancy Act 1987

Number:

26 (Royal Assent)

Status information:

Current version 17 July 2009

Section 2

Commencement dates for sections and schedules of Act.

Provision in force:

Historical notes website http://www.legislation.nsw.gov.au list all notes that have commenced which are applicable to this Act.

Proposed repeal:

Residential Tenancy Act, 2010 No.21 under section 21 has been repealed.

Responsible Minister:

Minister for Commerce jointly with the Minister for Fair Trading.

Authorisation:

Section 45 of the Interpretation Act 1987.

Complied on NSW legislation website.

Definition:

Section 3 of the Act defines the terms used in the statute and how they are defined.

Specific definitions

Example Section 28 (2) provide definitions to words relevant to section 28 of the Act (ie urgent repairs)

Contents

Part 1 Preliminary

Part 2 Residential tenancy agreement

Part 3 Landlords and tenants

Division 1 Rights and obligations

Division 2 Change of landlord or tenant

Division 3 Acceptable behavior agreements

Part 4 Rents

Division 1 General matters

Division 2 Rent increases and excessive rents

Part 5 Termination of residential tenancy agreement

Division 1 Termination generally

Division 2 Notices of termination

Division 2A Special provisions relating to social housing tenancy agreements

Division 3 Termination of residential tenancy agreement by Tribunal

Division 4 Recovery of possession of residential premises

Division 5 Abandoned premises and goods.

Part 6 Powers of Tribunal and Tenancy Commissioner

Division 1 Repealed

Division 2 Powers of Tribunal

Division 3 Power of Tenancy Commissioner

Part 7 Administration

Part 8 Miscellaneous

Schedule 1 Repealed

Schedule 2 Saving, transitional and other provisions

Schedule 3 Repealed

Schedule 4 Saving, transitional and other provisions

Historical notes.

Question 4 – Explain the difference between an Act and a Regulation?

Issue

Comment

Act

Is a statute document that expresses how something has to be done as a consequence of decisions made by a legislative or judicial body?

Regulation

Are rules and administrative codes issued by governmental agencies at all levels, municipal, state and federal? While not laws they have the force of law, since they are adopted under authority granted by statutes, and often include penalties for violations.

Question 5 – When does an Act commence (that is, come into force as law)? How can you find out whether an Act has commenced? Briefly explain referring to the appropriate statutory provisions in your answer?

A bill becomes an Act when the statute has been given the Royal Assent by the Governor General or the Governor representing the State. An Act usually comes into operation 28 days after receiving the Royal Assent or on the date it is proclaimed to commence [2] .

Tables of Commonwealth Acts are on the ComLaw site. Each table includes information about the commencement of Acts and of parts of Acts. The commencement date can also be determined by looking at the commencement provision, usually section 2, of the Act.

The Act will commence as a whole or sometimes different parts commence at different times. The most common commencement times are:

At Royal Assent (ie signing by the Governor-General);

At a specified date;

On a day to be fixed by Proclamation;

Immediately before or after the commencement of another provision in that Act or another Act.

Example:

Residential Tenancy Act 1987 No: 2; current version 17 July 2009, commencement sequence for the Act is contained within Section 2 (1) (2) of the Act.

Question 6 (a) – Identify and briefly describe three types of incidences that lead to changes in legislation.

Incidences

Reason

Change in Government

A change in government at either Federal or State level will bring with the new party elected to form government new ideas and direction. Legislation to support government decisions or promises made during the election period will be introduced during their term to enhance their position to govern the country.

Ministerial direction

The Minister responsible for the overseeing of an Act will on advice from other parliamentary people; legal council or relevant department make amendments to the Act or Regulation in-line with changes to the industry to which the Act relates.

Legal decision

Court or Tribunal decisions which result in an Act or Regulation being challenged. Such circumstances may result in the legislation being amended to prevent a precedent being created that would allow for a legal loophole.

Question 6 (b) – Identify and briefly one area of legislation, applicable to the real estate industry in NSW, which is currently subject to change (whether or not a Bill has been presented)?

Legislation / Bill

Reason

Residential Tenancy Bill 2010

Division 4 of Part 5 (section 106 and 107) re-enact sections 77 and 78 of the 1978 Act.

The Bill proposes to:

List matters to be taken into account by a Tribunal in considering whether a residential premise has been abandoned. Such matters included:

Failure to pay rent

Evidence that the tenant no longer resides at the premises.

Failure by the tenant to comply with the tenancy agreement.

Permit for the landlord to seek compensation through the Tribunal if it is established that the property has been abandoned.

Question 7 – Outline a system you could use for keeping up to date with changes and amendments to the laws regulating properties agencies. Note: If you currently work in a real estate or other property agency, you may base your answer on the system utilized by your firm?

I do not work for a real estate company so I suggest the following procedure be followed:

On the agency intranet a spreadsheet could be created to advise staff on how to search for amendments to laws or other matters affecting the real estate industry. For example:

Matter

Procedure

To find out if an Act has been amended.

Log on to ComLaw / Austlii websites to determine if the Act has been amended.

To find out if a Regulation has been made under the Act.

Log on to ComLaw / Austlii websites and check the Regulations that are available on-line or

Or

Check with the Office of Legislative Drafting and Publishing in the Australian Government Attorney-General's Department.

To find out which Minister is responsible.

Log on to ComLaw website and check the Administrative Arrangement Order.

To find out of a Bill is being drafted.

Contact the Department that is responsible for the Bill or

Contact the Department of the Prime Minister as they keeps a list of Legislation Proposed for Introduction or

Log onto Austlii website and undertake a search.

To find out what stage a Bill is at in Parliament.

Log on to BillsNet website to find out what stage a Bill is at in Parliament.

Note: BillsNet site maintained by Parliament House.

To find a copy of a Bill.

Log on to ComLaw website, the website list Bills currently before Parliament and Bills that are no longer in Parliament.

Question 8 (a) – Explain the effects of s33 and s36 of the Interpretation Act, 1987?

Act

Section

Comment

INTERPRETATION ACT 1987

Section 33

33 Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

Refers to how statutory interpretation of legislation is to be interpreted. For example the meaning of the word may be used to define the intent of a section of the act. However, nothing prevents the court to go beyond what has been written and/or enacted to determining the meaning of a word when interpreting legislation. As real estate agents when we interpret legislation it would be applicable that we used the plain meaning rule as this, is the safest and sure method of determine the meaning of words that have been enacted.

INTERPRETATION ACT 1987

Section 36

36 Reckoning of time

If in any Act or instrument a period of time, dating from a given day, act or event is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.

If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of any thing falls:

On a Saturday or Sunday, or

On a day that is a public holiday or bank holiday in the place in which the thing is to be or may be done,

The thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be.

If in any Act or instrument a period of time is prescribed or allowed for the doing of any thing and a power is conferred on any person or body to extend the period of time:

That power may be exercised, and

If the exercise of that power depends on the making of an application for an extension of the period of time-such an application may be made,

After the period of time has expired.

Refers to the service of documents and the effect of those documents in terms of their start and end date.

For example:

36 (1) a letter is served on a client requiring that they respond in 14 days. If the letter was served on Monday 1/10/10 then the 14 days commence from the 2/10/10 and ends on the 16/10/10.

36 (2) the letter is served and the last day falls on a Saturday, Sunday or Public Holiday then the day following that day is the last day (which would be in the case of a Saturday or Sunday generally a Monday in the case of a public holiday, well that depends on the day).

36 (3) permits a person to require an extension of time. Such request must be made in accordance with the provisions of the Act.

Question 8 (b) – Outline 3 rules of statutory interpretation (other than those referred to above)?

Three general rules apply to statutory interpretation. These are:

The literal approach (Plain meaning rule).

Is where the courts will give the words of the Statute their original meaning, even though to do some might produce an absurd, unjust inconsistent or sometimes a meaningless result [3] .

The Golden rule

Is used by the Courts when interpreting the law in case where the literal rule would produce a result that is unjust, repugnant or inconsistent with the Statute. Legal Council would give words meaning that would remove the injustice, repugnancy, or the inconsistency in their decision making processes [4] .

The Mischief rule

This rule is sometimes known as the "the rule in Heydon case" and can only be applied in the case of an ambiguous provisions in an enactment. The rule suggests that, in interpretation of a statute, the courts are to do what they can to ascertain what the mischief was that the legislation was intended to prevent or correct and to interpret the legislation accordingly [5] .

The purpose approach

This rule seeks to determine the intention of Parliament when it enacted the legislation. The purpose approach is itself a development of the Mischief rule, which seeks to discover the wrong that Parliament tried to correct by the stature and to correct the Act accordingly.

The difficulty with the purpose approach has usually been the problem of how to actually discover the purpose of Parliament. The courts have relied on intrinsic materials but have generally not been able to use extrinsic material to discover the intentions of Parliament.

Intrinsic materials include those parts of the statute that do not form part of the text, such as the title, marginal notes and section headings. Extrinsic materials are anything outside the body of the Act itself. [6] 

Question 9 (a) – Many industries now have Codes (or Rules) of Conduct? What is an industry Code of Conduct?

Issue

Comment

Industry Codes of Conduct

Are Codes regulating the conduct of participants in an industry towards other participants in the industry or towards consumers in the industry?

Are typical a set of rules which govern the conduct of individuals and organisations in a particular industry.

Focus and outline acceptable standards for its members in terms of their behavior and ethnics to a specific industry.

Typically have been voluntarily agreed to by the signatories.

In some circumstances have been made law by the Australian Government under the Trade Practices Act. For example:

Franchising Code which is a mandatory code that regulates conduct between franchisors and franchisees

Horticulture Code which a mandatory code that regulates trade in horticulture produce between growers and wholesale traders (except for exporters, retailers and processors)

Oilcode which is a mandatory code that regulates the conduct of suppliers, distributors and retailers in the petroleum marketing industry

Unit Pricing Code which a mandatory code of conduct that regulates the pricing information provided by grocery retailers.

Question 9 (b) – The Property Stock and Business Agents Act, 2002 prescribes Rules of conduct for licensees. Where are these Rules located?

Comment

Remark

Property Stock and Business Agent Act, 2002

Section 37 the Act advises that the regulations may prescribe rules of conduct to be observed in the carrying out of a business.

Property Stock and Business Agent Regulation, 2003

Clause 11 (1) (a) (b) (c) (d) (e) (f) (g) of the Property Stock and Business Agents Regulation, 2003 outlines the rules of conduct for people working or engaged to work within the property industry.

Question 9 (c) – Are there Rules of conduct law – that is, are they legally enforceable?

Comment

Remark

Yes

The rules of conduct are legislative codes and are legally enforceable for which penalties apply under Section 37 (2) of the Act. A person engaging in the property industry is required to comply with both the Act and the Regulation.

Whereas voluntary codes, which are codes set up by professional associations are binding on its members but are not legally enforceable. A breach of a voluntary code may result in the person having their membership cancelled.

Question 9 (d) – Outline the penalties for non-compliance with the Rules of conduct?

Comment

Remark

Property Stock and Business Agent Act, 2002

Section 37 (2) of the Act advised that a licensee or registered person who without reasonable excuse contravenes a rule of conduct prescribed for the purposes of this section is guilty of an offence. The maximum penalty is 100 penalty units in the case of a corporation or 50 penalty units in any other case.

Failure to comply may affect a person’s application for renewal of a license or cancellation of license and enforcement action through the Department of Fair Trading.

Question 10 – Identify and briefly outline strategies for incorporating the Rules of conduct and other standards of ethical behavior into the daily work practices of a property agency. Note: if you currently work in a real estate or other property agency, you may base you answer on the system utilized by your firm.

I do not work for a real estate company so I suggest the following procedure be followed:

Comment

Remark

Induction

Each time a person is employed or there is a change in a procedure which would result in an amendment to the Rules of Conduct Policy staff to be inducted. Require each staff member to sign the attendance sheet and place a copy of the document on their personal file as evidence that they have undertaken induction.

Where a Rule of conduct policy has not been implemented into an organisation.

Introduce the notion recommending that a Rules of Conduct policy is created outlining management’s expectations.

Display and make available throughout the organization the policy

Development a code or statement on ethnical conduct. Make sure there is adequate planning, training and performance monitoring when implementing any change into the agency.

Monitor and review.

Include a procedure detailing how complaints are to be assessed and how unethical behavior is to be monitored.

Part B

Question 1 (100-150 words)

Explain how you can locate (Commonwealth and State) legislation applicable to the real estate industry in NSW on-line.

Step

Comment

1

log on to the internet

2

log on to google type AustLii or in the search bar type http://www.austlii.edu.au

3

If through google you did your search click on Austlii and open the webpage.

5

Using the alphabetical list and your mouse open the list to show all Commonwealth Consolidated Acts. For example if you were looking for the Property Stock and Business Agents Act, 2002 you would click on letter P.

6

Scroll down the list until you find the Property Stock and Business Agents Act, 2002.

7

Open the Act by clicking on your selection.

Note

Through AustLii a hardcopy of the Act as a PDF can be saved to your computer or printed.

The unit notes suggest that we refer to AustLii when searching for Acts and Regulations. I prefer to use the following website when searching for Acts and Regulations in NSW http://www.legislation.nsw.gov.au/maintop/search/inforce. This site was recommended to me when I worked at the Building Professionals Board (State Government NSW, Parramatta branch).

Question 2 (250-300 words)

Choose and download from the internet, an Act applicable to the real estate industry in NSW and then answer the following questions:

Outline steps you took to locate this Act on-line?

Process

Comment

Property Stock and Business Agent Act, 2002

The Act the subject of the question.

1

log on to the internet

2

log on to google type AustLii or in the search bar type http://www.austlii.edu.au

3

If through google you did your search click on Austlii and open the webpage.

5

Using the alphabetical list and your mouse open the list to show all Commonwealth Consolidated Acts. For example if you were looking for the Property Stock and Business Agents Act, 2002 you would click on letter P.

6

Scroll down the list until you find the Property Stock and Business Agents Act, 2002.

7

Open the Act by clicking on your selection.

Note

Through AustLii a hardcopy of the Act as a PDF can be saved to your computer or printed.

The unit notes suggest that we refer to AustLii when searching for Acts and Regulations. I prefer to use the following website when searching for Acts and Regulations in NSW http://www.legislation.nsw.gov.au/maintop/search/inforce. This site was recommended to me when I worked at the Building Professionals Board (State Government NSW, Parramatta branch).

Has the Government made Regulations under the Act? Outline the steps you took to find the answer to this question?

Yes the relevant Regulation for the Property Stock and Business Agents Act 2002 is the Property Stock and Business Agents Regulation 2003

Step

Comment

1

Using http://www.legislation.nsw.gov.au/maintop/search/inforce I search for the Regulation (http://www.comlaw.gov.au). I cut and paste the box I used to search for the Regulation for this assignment.

Top of Form

What do you want to search?

In Force

Acts Regs etc EPIs

Repealed

Acts Regs etc EPIs

Sorry but no documents matched your query.

Standard Search

exact phrase

all of the words

any of the words

without the words

search in

Text   Title

limit search to year

and/or No

2

Pressing search the following result was the Property Stock and Business Agent Regulation 2003

Bottom of Form

Where are the provisions relating to Enforcement, penalties and remedies located in the legislation? Outline the steps you took to find the answer?

Act / Part

Comment

Property Stock and Business Agent Act, 2002

The Act the subject of the question.

Part 13 is titled Enforcement comprises sections 204 to 208.

Topic address under section 204 to 210 include:

Section 204 Authorised officers

Section 205 Powers of entry, inspection

Section 206 Power of authorized officer to obtain information, records and evidence.

Section 208 Taking possession of records to be used as evidence.

Section 209 Search warrants

Section 210 Injunctions

Part 14 is titled Offences and proceedings (ie penalties and remedies) comprise sections 211 to 218.

Topic addressed under section 204 to 210 include:

Section 211 Fraudulent conversion and false accounts of money received by licensee or registered person.

Section 212 Fraudulent accounts for expenses, commission and other charges.

Section 213 Offences by person other than principal offenders.

Section 214 Operation of Crimes Act not affected.

Section 215 Proceedings for offences

Section 216 Penalty notices

Section 217 Time for laying information

Section 218 Offences by corporations

Penalty clauses are addressed throughout the Act:

Other relevant sections which list a penalty clause include:

Section 8 (1)

Section 9

Section 10

Section 11

Section 12

Section 13 (1)

Section 30 (5)

Section 31 (7) (a) (b)

Section 32 (4) (a) (b)

Section 33 (1) (a) (b)

Section 34 (3)

Section 35 (1) (2)

Section 37 (2) (a) (b)

Section 39 (1)

Section 40

Section 42 (3)

Section 43 (1) (c)

Section 44

Section 45

Section 46 (2)

Section 47 (1)

Section 48 (2) (a) (b)

Section 51 (1)

Section 53C (4)

Section 53D (4)

Section 58 (2) (a) (b)

Section 66 (1) (c) (a) (b) (4)

Section 66A (1) (2)

Section 67 (1)

Section 68 (5)

Section 69 (1)

Section 70 (1)

Section 71 (2)

Section 72

Section 74 (2)

Section 76A (1)

Section 78 (2)

Section 80

Section 82 (2)

Section 83 (2)

Section 89

Section 91 (2) (3)

Section 92

Section 93

Section 94

Section 98 (7)

Section 102 (2)

Section 110 (1)

Section 113

Section 119 (3)

Section 120

Section 163 (2)

Section 184 (2)

Section 185 (3)

Section 207

Section 219 (1)

Is there a Bill currently before Parliament to amend this legislation? Outline the steps you took to find the answer to this question?

No bill was proposed for the Property Stock and Business Agent Act, 2002.

Step

Comment

1

log on to the internet

2

log on to google type AustLii or in the search bar type http://www.austlii.edu.au

3

If through google you did your search click on Austlii and open the webpage.

5

Go to cases and legislation pick NSW. Scroll down to NSW Bills 1999-

NSW Legislation

New South Wales Acts (Point-in-Time)

New South Wales Consolidated Acts

New South Wales Acts As Made

New South Wales Repealed Acts

New South Wales Consolidated Regulations

New South Wales Regulations As Made

New South Wales EPIs As Made

New South Wales Repealed Regulations

NSW Bills 1999-

6

Click on "P" and the relevant year 2010.

New South Wales Bills

Bills beginning with ...

A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

Bills for the year ...

1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

This database contains copies of New South Wales Bills from 1999 onwards. The Parliament of New South Wales maintains a website which contains current and historical Bills. All material herein is reproduced by permission, but does not purport to be the official or authorised version.

Database last updated: 18 October 2010

This is the date AustLII last updated this database and does not necessarily indicate currency. This database is updated from data obtained directly from the New South Wales Parliament website twice per week. AustLII aims to publish updates on Monday and Thursday of each week. Bills introduced into Parliament after AustLII's most recent update will not be available in this database. More recent updates may be available from the New South Wales Parliament website.

7

Last Bill was in 2002

Property, Stock And Business Agents Bill 2002

Question 3

In the past 18 months legislation has been pasted by the NSW Parliament to amend the Residential Tenancies Act, 1987 (NSW) to require mortgagees who become entitled to possession of rented premises to give the tenant a written notice to vacate the premises. Go online and find the answers to the following questions, and outline the steps you took to find answers?

What is the name of the amending Act, and when was it passed?

Residential Tenancies Act 2010

What section of Residential Tenancies Act, 1987 (NSW) deals with mortgagee repossessions of properties?

Section 122 of the Residential Tenancy Bill 2010

Act

Section

Residential Tenancies Bill 2010

Section 122 - Mortgagee repossessions of rented properties

Application

This section applies if a residential tenancy agreement is terminated because the mortgagee in respect of the residential premises becomes entitled to possession of the premises and the former tenant under that agreement is given notice to vacate the premises by the Sheriff.

Note. The Sheriff must give the former tenant not less than 30 days to vacate the residential premises (see section 7A of the Sheriff Act 2005).

Former tenant may withhold or recoup rent etc

The former tenant who is holding over after termination of the residential tenancy agreement:

(a) is not, during the period of 30 days following the date on which the tenant is given the notice to vacate, required to pay any rent, fee or other charge to occupy the residential premises, and

(b) Is, if the former tenant has paid any rent in advance for any part of that period, entitled to be repaid the amount of that rent.

Tribunal may order repayment to former tenant.

The Tribunal may, on application by the former tenant, order the repayment to the former tenant of any amount referred to in subsection (2).

Inspection of residential premises by prospective purchasers

The mortgagee (or any person acting on behalf of the mortgagee) is, during the period in which the former tenant is holding over after termination of the residential tenancy agreement, entitled to enter the residential premises to show the premises to prospective purchasers on a reasonable number of occasions, but only if the former tenant: (a) is given reasonable notice of each such occasion, and (b) agrees to the date and time of the inspection.

What is the minimum period of notice the mortgage must give to the tenant? Which section of the Act is this?

Section

Number of days

122 (1)

30