A transaction structured as a sale of property with an option to repurchase and a tenancy agreement may be characterised as a mortgage in substance where the vendor is required to account for surplus proceeds on sale, the option operates as a proviso for redemption, and the tenancy agreement operates as an attornment clause. Where the tenancy agreement arises under the terms of such a mortgage, the Residential Tenancies Act 2010 (NSW) does not apply by virtue of s 8(1)(g), and NCAT lacks jurisdiction to make termination and possession orders. The exclusion in s 8(1)(f) requires the contract for sale itself to confer the right to occupy; a right conferred by a separate tenancy agreement entered into pursuant to the contract does not satisfy s 8(1)(f).
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