Barletta v Hussain
[2021] ACAT 24
•31 March 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BARLETTA v HUSSAIN & ANOR [2021] ACAT 24
RT 44/2021
Catchwords: RESIDENTIAL TENANCIES – termination and possession – lessor genuine intention to reside in premises – tenants’ failure to vacate – mutual claims of disadvantage – ground for termination exists – lessor entitled to termination and possession order
Legislation cited: Residential Tenancies Act 1997 s 47, standard term s 96
Cases cited:Commissioner for Social Housing v Cook [2020] ACAT 36
Commissioner of Housing of the Australian Capital Territory the Nicole Smith [1995] ACTSC 17
David Harold Eastman v Commissioner for Housing for the Australian Capital Territory [2006] ACTSC 52
Tribunal: Senior Member K Katavic
Date of Orders: 18 February 2021
Date of Reasons for Decision: 31 March 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 44/2021
BETWEEN:
ANGELO BARLETTA
Applicant/Lessor
AND:
BAZLUN BILKIS
First Respondent/Tenant
MOHAMMAD HUSSAIN
Second Respondent/Tenant
TRIBUNAL:Senior Member K Katavic
DATE:18 February 2021
ORDER
The Tribunal orders that:
1.The residential tenancy agreement is terminated at 5pm on 18 February 2021.
2.The tenants must vacate the premises on or before 5pm on 18 February 2021.
3.If the tenant fails to vacate the premises as required by paragraph 2 of the Order the lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.
4.The operation of paragraphs 1, 2 and 3 of this Order is suspended until 11 March 2021.
5.The tenants are to give the Tribunal and the lessor/s a Notice of New Contact Details with an address for service of future notices and orders in these proceedings by 11 March 2021.
6.The lessor's claims for compensation are listed for preliminary conference on a date to be advised. The lessor/tenant is to give to ACAT and the tenant/lessor a document itemising the amounts claimed by one week prior to the conference.
……………Signed…………..
Senior Member K Katavic
REASONS FOR DECISION
Introduction
1.On 18 February 2021, the Tribunal heard an application by the lessor seeking termination and possession orders. After hearing from the parties, the Tribunal made orders and gave oral reasons.
2.Those oral reasons are set out below, with some minor editing.
Background
3.The parties in this matter entered into a residential tenancy agreement for the property at 11 Hollingsworth Street in Gungahlin. The agreement was for a fixed term of five years commencing on 27 August 2015 ending on 27 August 2020.
4.There is some history between the parties regarding the tenants vacating the premises at the end of the fixed term. Ms Vaneyk from McGrath real estate appeared for the lessor and Mr Christensen represented the tenants.
5.This application was commenced on 22 January 2021 seeking termination and possession orders in relation to a notice to vacate (NTV) dated 19 November 2020. The NTV was issued in accordance with clause 96(1)(a) of the Standard Residential Tenancy Terms,[1] (the Standard Terms) being eight weeks’ notice for the lessor’s genuine intention to live in the premises.
[1] Schedule 1 of the Residential Tenancies Act 1997
6.The NTV required the tenants vacate the premises by 15 January 2021.
7.The tenants have not vacated the property.
Applicable law
8.Clause 96 (1)(a) of the Standard Terms enables a lessor to serve a notice to vacate during a periodic tenancy provided that the notice period is eight weeks if the lessor genuinely intends to live in the premises.
9.The legal position is summarised as follows, as referred to in Commissioner for Social Housing v Cook [2020] ACAT 36:
(a)Section 47 of the Residential Tenancies Act 1997 (the Act) provides that on application by the lessor, the Tribunal may make a termination and possession order. The Tribunal’s discretion is enlivened if it is satisfied that a ground for termination exists (other than for a breach of the agreement), the lessor has served a termination notice on the tenant based on that ground, and the tenant has not vacated the premises as required by the termination notice.
(b)The relevant grounds for the purposes of section 47 of the Act is that the lessor genuinely intends to live in the premises and a notice has been served under clause 96(1)(a) giving the tenant eight weeks to vacate. Where a notice has been given to that effect and the tenant has not vacated in accordance with that notice the lessor is entitled to seek relief in the Tribunal. The Tribunal must be satisfied of the ground relied upon, that is, does the lessor genuinely intend to live in the property.
(c)Section 47 does not bind the Tribunal to make a termination and possession order and it may refuse to do so. The breadth of that discretion is informed by the terms of the agreement and in the purpose and scope of the Act. It is not unfettered.[2]
[2] Commissioner for Social Housing v Cook [2020] ACAT 36 at [15] citing David Harold Eastman v Commissioner for Housing for the Australian Capital Territory [2006] ACTSC 52 at [33] and Commissioner of Housing of the Australian Capital Territory the Nicole Smith [1995] ACTSC 17 at [26] to [31]
10.In Cook,[3] the tribunal said:
[3] Commissioner for Social Housing v Cook [2020] ACAT 36 at [16] citing Commissioner of Housing of the Australian Capital Territory the Nicole Smith [1995] ACTSC 17 at [26] to [31]
16. It is a basic rule of statutory construction that where a statute does not provide an indication as to what factors should or should not be considered in the exercise of discretion, a court or tribunal must have regard to the terms, language, scope and object of the legislation as a whole in the exercise of that discretion. The court or tribunal should interpret a piece of legislation in order to give effect to the intention or purpose of that legislation, as set out within the legislation. This was discussed in Commissioner of Housing of the Australian Capital Territory v Nicole Smith [1995] ACTSC 17 the Court stated with reference to the exercise of the discretion…
17. …There is nothing in the judgement that requires a court or tribunal to deal with public lessors and private lessors differently. The terms of the Agreement and the provisions of the RT Act cannot be applied more stringently to the Commissioner.
18. …A tribunal, applying a general power to evict has a discretion to refuse relief, having regard to all the circumstances and the conduct of the parties. Even where, as in this case the formal requirements have been met, the Tribunal is not required to grant an order terminating the tenancy. Residential tenancies law is intended to balance the rights of the lessors and tenants, and in determining whether to make a termination and possession order, the Tribunal may have regard to issues of substance rather than issues of form. It must be noted that the discretion is not unfettered. The Tribunal must exercise the discretion judicially and upon grounds which do not go beyond the scope and objects of the RT Act.
Consideration
11.The lessor has relied upon documents accompanying the application and additional documents filed on 11 February 2021. Those documents include statutory declarations by the lessor, his partner, his sister, and his mother. Only Ms Young, the lessor’s sister gave oral evidence and was cross-examined. The tenants’ representative did not challenge the statements contained in the remaining statutory declarations.
12.The tenants relied upon a witness statement of Mr Hussain and various medical reports filed on 11 February 2021. He also gave oral evidence at the hearing and was cross-examined.
13.The lessor’s genuine intention to live in the premises was not challenged. I am satisfied that for the purposes of the NTV and section 47 of the Act, that ground exists.
14.The tenants seek the following orders in the alternative:
(a)First, decline to exercise the discretion to terminate the tenancy.
(b)In the alternative, terminate the tenancy on a date eight weeks in the future (the reasons for this will become apparent).
(c)Finally, if the termination and possession orders are made with effect today, suspend the orders for three weeks. The lessor agrees with this course.
15.This matter raises the competing difficult circumstances of the parties which on both sides equates to disadvantage. Section 47 however, does not speak to the Tribunal being required to prefer one parties’ disadvantage over the other. The Tribunal must have regard to all the circumstances.
16.The lessor submits that he is effectively homeless and is entitled to reside in the property he owns. He submits the tenants have no intention of vacating the property. He submits that the required notice was issued, and he needs to move in. He was residing in a unit in Bonner, which he vacated due to tenants moving in. The Bonner property was not suitable for his medical needs.
17.The tenants submitted they have no alternative accommodation. It was submitted that their son owns a property which currently has tenants. The Tribunal was told that a NTV was issued in February 2021 giving eight weeks’ notice of their son’s intention to move in with Ms Bilkis and Mr Hussain also residing there. Ms Vaneyk says as property manager for that property, that they have no records of it. Even so, she questioned why a NTV was not issued in November 2020 when the tenants knew they needed to find alternative accommodation as opposed to waiting until February 2021 – after the date vacant possession was required. Mr Christensen submits that because the tenants need to wait eight weeks for their son’s tenants to move out, I should terminate their tenancy with Mr Barletta in eight weeks’ time.
18.The tenants challenged the circumstances giving rise to the lessor finding himself in a situation where he moved from the Bonner property. The lessor had been residing in a unit in Bonner until January 2021. He has vacated that property. He owns it. Ms Young was asked why she entered into a tenancy agreement for that property on 13 January 2021 on behalf of Mr Barletta, requiring it to be vacant from 28 January 2021 for the new tenants. This was premised upon Ms Young being aware of the tenants not needing to vacate the Gungahlin property until 15 January 2021 and being aware of the tenants advising Ms Vaneyk on 13 January 2021 that they did not intend to vacate the Gungahlin property in accordance with the notice. Ms Young referred to several emails sent by tenants on 23 November 2020, 6 December 2020, and 10 December 2020 which she said caused her to believe the tenants would be vacating in accordance with the notice.
19.Having reviewed those emails, I am satisfied it was reasonable for Ms Young to hold the belief that she did. Ms Vaneyk also followed up with the tenants about their vacation of the property on 6 and 11 January 2021. She did not get a response until 13 January 2021 at 2.36am advising they would not be moving out. She responded at 10.08am on the same day advising the matter would be referred to the Tribunal as the lessor was not in a position to extend the NTV.
20.Ms Young gave evidence that the tenancy agreement for the Bonner property was signed the morning of 13 January 2021. She had made plans for tenants to be in the property because Mr Barletta’s medical needs meant he needed to move into the Gungahlin premises. The tenancy agreement for the Bonner property proceeded and commenced on 28 January 2021. I am satisfied that it was reasonable to enter the Bonner tenancy given all indications prior to this suggested the tenants could vacate by 15 January 2021 and the new Bonner tenants would not be moving in until 28 January 2021.
21.The evidence before the Tribunal also suggests that the tenants had medical advice from 6 January 2021 that due to their medical needs, particularly Mr Hussain’s, they should not move house as it was a stressful activity. They did not convey this to Ms Vaneyk until 13 January 2021.
22.The tenants submit that due their medical conditions, but particularly Mr Hussain’s heart condition they should not be ordered to leave the property as this would place him under additional stress. Mr Hussain’s medical issues are not new. They have existed for some time. He was recommended as an ideal candidate for coronary surgery by Dr Glenn McKay on 1 February 2021 as it was the lowest risk procedure with the best likely outcome for him. Mr Hussain says he would like a second opinion regarding his treatment options. On 12 January 2021, Dr Rajesh Brahmbhatt provided a medical certificate stating he would not recommend that Mr Hussain undertake any additional stress or strain like moving house or similar stressful activities until further notice as that can potentially put his health at risk.
23.The Tribunal does not have evidence before it as to the tenants’ financial situation. Dr Brahmnbhatt recommends Mr Hussain not carry out stressful activities or strain. Moving house could be achieved by engaging removalists to pack, carry and move personal belongings. The tenants have said they prefer to reside in the Gungahlin area as it is close to their medical professionals. They have referred to their own home but this was explained as being their son’s home. They cannot move in with their son as he resides with friends. The Tribunal was not told why the tenants could not move into serviced accommodation or a hotel until the tenants move out of their son’s home.
24.The tenants have said that they have applied for up to 60 properties as at the hearing date and have been unsuccessful. They partly blame adverse rental references for this. They learned that the Tribunal proceedings were disclosed to a potential lessor for a property in Ngunnawal and this caused an offer to be withdrawn. Ms Vaneyk claims she is obliged to disclose such matters. She also said she has not received any requests for a reference.
25.On the other hand, the lessor provided evidence that due to his work as a concreter he has significant problems with his knees and needed to move into the Gungahlin house as it does not have stairs. His condition made living in the Bonner unit difficult. He is now residing with his partner in a unit with his mother, but this again is difficult due to his medical condition. It is temporary.
26.Mr Christiansen submitted that the lessor’s circumstances regarding his accommodation were his own doing. He says the Bonner tenancy should not have been entered into until it was clear the tenants had vacated the Gungahlin property. I disagree. The belief that the tenants would vacate as required was reasonable based on the email correspondence. The lessor had a genuine intention to live in the premises and I am satisfied he has a legitimate reason for leaving the Bonner property.
27.As I indicated earlier, this matter raises competing issues between the parties. I do not discount what either party is experiencing and the difficulty this situation places them both in.
28.On balance, I find that in the circumstances the lessor should be entitled to relief in circumstances where the ground for termination exists. I have had regard to the tenants’ situation and the reasons they say they cannot move. Having regard to all the circumstances I am not satisfied that it is appropriate to refuse the lessor’s application. The medical issues relied upon by the tenants are not new. Although the tenants have said their search for another residence has been extensive and unsuccessful, that is not a reason to continue this tenancy. Particularly in circumstances where against that the lessor has a genuine intention and need to reside in the property. I am satisfied this meets the expected balance between the rights of the parties having regard to the scope and intention of the Act. The lessor is entitled to live in the premises and that is the genuine intention in this case.
29.The evidence regarding the NTV for the son’s property and needing eight weeks is vague. I cannot be comfortably satisfied that the NTV was issued and even if it was, that that tenancy will be brought to a timely end to enable a seamless transition for these tenants into that property. That is not a reason that persuades me to make an order terminating the tenancy at a future date.
30.I therefore make the following orders:
(a)The residential tenancy agreement is terminated at 5pm on 18 February 2021.
(b)The tenants must vacate the premises on or before 5pm on 18 February 2021.
(c)If the tenant fails to vacate the premises as required by paragraph 2 of the Order the lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.
(d)The operation of paragraphs 1, 2 and 3 of this Order is suspended until 11 March 2021.
(e)The tenants are to give the Tribunal and the lessor/s a Notice of New Contact Details with an address for service of future notices and orders in these proceedings by 11 March 2021.
(f)The lessor's claims for compensation are listed for preliminary conference on a date to be advised. The lessor is to give to ACAT and the tenants a document itemising the amounts claimed by one week prior to the conference.
………………………………..
Senior Member K Katavic
Dates of hearing: 18 February 2021 Applicant: Ms K Vaneyk, authorised representative Solicitor for the Respondent: Mr P Christiansen
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