Burgess v Commissioner for Social Housing & Anor (Residential Tenancies) - [2022] ACAT 81

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BURGESS v COMMISSIONER FOR SOCIAL HOUSING & ANOR (Residential Tenancies) [2022] ACAT 81

RT 552/2022

Catchwords: RESIDENTIAL TENANCIES – death of tenant – standing to bring application under Residential Tenancy Act 1997 – whether tenancy dispute – parties to application – succession of tenancy – scope and extent of tribunal’s jurisdiction

Legislation cited: ACT Civil and Administrative Act 2008 s 21
Administration and Probate Act 1929 ss 38A, 44
Residential Tenancies Act 1997 ss 72, 76, 79, 83, 127A

Cases cited:Abu-Arab v NSW Trustee & Guardian [2014] NSWSC 954

Commissioner for Social Housing v The Estate of the Late Joy Hill & Anor [2018] ACAT 73
NSW Land and Housing v Estate of the late Leanne Maher and Larry Maher [2013] NSWCTTT 358
The Estate of Tanya Humphries v Commissioner for Housing in the ACT [2003] ACTSC 40

Tribunal:Senior Member K Katavic

Date of Orders:  10 October 2022
Date of Reasons for Decision:      10 October 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 552/2022

BETWEEN:

JASON BURGESS
Applicant

AND:

COMMISSIONER FOR SOCIAL HOUSING
First Respondent

AND:

PUBLIC TRUSTEE AND GUARDIAN
Second Respondent

TRIBUNAL:Senior Member K Katavic

DATE:10 October 2022

ORDER

The Tribunal orders that:

Order 1 made on 29 July 2022 and Order 2 made on 10 August 2022 are set aside.
The application is otherwise dismissed.

………………………………..

Senior Member K Katavic

REASONS FOR DECISION

Introduction

On 13 March 2022, Ms Moira Burgess passed away. Since 28 May 2014, she was a tenant in, Spence in the ACT (the Premises). The applicant in this matter, Jason Burgess, is her son. He came to reside in the Premises in late February 2022 to care for his mother until her death. He has remained living in the Premises since. He asks the Tribunal in this application to declare he is a tenant in relation to the Premises. He also seeks orders restraining the Commissioner from dealing with the Premises. Interim orders of this kind were made to preserve the status quo. The Tribunal must decide whether Mr Burgess has standing to bring such an application.

Facts

In late February 2022, Mr Burgess moved into the Premises full-time to care for his mother. He did not live there prior to this.
On 11 March 2022, Mr Burgess gave the Commissioner a Rental Rebate Form on behalf of Ms Burgess. However, it was incomplete and not processed. Mr Burgess says he did not realise this did not add him as a tenant.
On 13 March 2022, Ms Burgess died intestate i.e., without a will.
Mr Burgess is the sole surviving child of Ms Burgess, and she did not have a partner at the time of her death.
He has shared custody of his 12-year-old son from Wednesday to Saturday. He lives with Mr Burgess on those days in the Premises and has done so since late February 2022.
Since April 2022, no rent has been paid for the Premises.
On or about 2 June 2022, Mr Burgess told the Commissioner of Ms Burgess’s death.
Between 16 June 2022 and 21 July 2022, the Commissioner advised Mr Burgess that he could not remain in the Premises and had discussions with him about vacating the Premises.
On 25 July 2022, the application first came before the Tribunal urgently in circumstances where the Commissioner had taken steps to change the locks and take possession of the Premises thus removing Mr Burgess on grounds that he was trespassing. Mr Burgess asserted the tenancy had not been terminated and sought declaratory orders that he was a tenant. I made an interim order restraining the Commissioner from dealing with the Premises, in circumstances where the tenancy had not been terminated and the Commissioner had no basis for accessing the Premises. In particular, the Public Trustee and Guardian (PTG), to whom Ms Burgess’s estate vests, had not been notified.
On 1 August 2022, the Commissioner wrote to the PTG about Ms Burgess’s estate and served a Notice to Remedy for rent arrears.
On 3 August 2022, the PTG advised the Commissioner that it did not elect to administer Ms Burgess’s estate.
On 10 August 2022, I joined the PTG as a second respondent to the proceedings.
Since he commenced these proceedings, Mr Burgess has obtained legal advice in relation to administering his mother’s estate, lodged a will search, made enquiries about superannuation, and dealt with her personal belongings. He had not taken steps to apply for Letters of Administration in the ACT Supreme Court.
He told the Tribunal that he cannot afford to pay market rent in a private rental.
On 29 August 2022, the Commissioner commenced proceedings against Ms Burgess’s estate seeking orders terminating the tenancy and granting vacant possession. That application has not been decided. Mr Burgess was joined as an interested party to those proceedings.
As at 31 August 2022, Mr Burgess had applied for a Housing ACT property.
On 31 August 2022, I reserved on the question of Mr Burgess’s standing to bring these proceedings. The PTG did not attend the hearing and has not made any submissions to the Tribunal.
At all times during these proceedings Mr Burgess has been represented by Ms Meikle of Canberra Community Law. The Commissioner has been represented by Ms Lee.
Mr Burgess relied on written submissions and a witness statement dated 9 August 2022. The Commissioner relied upon a timeline including attachments A-H.

Standing

Ms Meikle urged the Tribunal to adopt a broad construction of section 76 of the Residential Tenancies Act 1997 (the RTA), primarily because, as she submitted, it is the only forum in which Mr Burgess can agitate his case. She also submits that Mr Burgess has a beneficial interest in Ms Burgess’s estate giving rise to his interest in the tenancy. Ms Burgess’s estate is not a party to these proceedings. Mr Burgess is the sole applicant. He asserts standing on grounds that he has a beneficial interest in the tenancy as the sole beneficiary under intestacy law, and that he is otherwise a tenant.
Section 76 states:
76 Jurisdiction of ACAT under this Act etc
(1) The ACAT has exclusive jurisdiction to hear and decide any matter that may be the subject of an application to the ACAT under—
(a) this Act; or
(b) the standard residential tenancy terms; or
(c) the occupancy principles.
The exclusive jurisdiction conferred by section 76 and any matter that may be the subject of an application to the ACAT must be read together with the types of disputes that arise from three specified sources. ‘Tenancy dispute’ is defined in section 72 to mean:
72 Meaning of tenancy dispute
(1) For this Act, a dispute is a tenancy dispute if it—
(a) is between the parties (including between co-tenants) to a residential tenancy agreement; and
(b) is about, arises from, or relates to, the agreement.
(2) A tenancy dispute includes—
(a) a dispute if an application relating to the dispute may be made under part 4 (Termination of residential tenancy agreements) or part 5 (Rental rate increases); and
(b) a referral of an application and notice of dispute taken to be an application about a tenancy dispute under section 35 (3); and
(c) an application for compensation under this Act.
Section 79 of the RTA establishes who may apply to ACAT. It states:
79     Who may apply to ACAT?
(1)   A party to a residential tenancy agreement (including a child) may apply to the ACAT for resolution of a tenancy dispute.
(2)   A party to an occupancy agreement (including a child) may apply to the ACAT for resolution of an occupancy dispute.
Section 83 of the RTA sets out the orders the ACAT may make, and while not exhaustive, is not without limits. Section 83 provides:
83 Orders by ACAT
(1) Without limiting the orders the ACAT may make, the ACAT may make the following orders in relation to an application about a tenancy dispute or occupancy dispute:
(a)an order restraining any action in breach of a residential tenancy agreement or occupancy agreement;
(b)an order requiring performance of a residential tenancy agreement or occupancy agreement;
(c)an order requiring the payment of an amount to the Territory or a person;
(d)an order requiring the payment of compensation for loss of rent, occupancy fees or any other loss caused by the breach of a residential tenancy agreement or occupancy agreement;
(e)an order stating that an amount (not more than the amount of bond or security deposit paid into the trust account in relation to the relevant residential tenancy agreement or occupancy agreement, as the case requires) be paid to the lessor or grantor from the trust account;
(f)an order restoring a residential tenancy agreement or occupancy agreement and granting the former tenant or occupant possession of premises—
(i)from which the person was evicted in contravention of this Act; or
(ii)that the person vacated in accordance with a termination notice that was not in the form (if any) approved under section 133 (Approved forms—Minister) for the notice;
(g)an order requiring payment of all or part of the following into the ACAT until the ACAT orders otherwise:
(i)the rent payable under the standard residential tenancy terms; or
(ii)an occupancy fee payable under the occupancy agreement;
(h)an order directing payment out of any amount paid into the ACAT as appropriate;
(i)an order terminating a residential tenancy agreement or occupancy agreement and granting vacant possession of the relevant premises to the applicant for the order;
(j)an order—
(i)declaring the premises abandoned; and
(ii)if the abandoned premises are a manufactured home or mobile home in a residential park and the ACAT considers that the premises are not fit for human habitation—directing the operator of the park how the premises may be disposed of;
Note An operator of a residential park in which a manufactured home or mobile home is abandoned can only dispose of the home under the Uncollected Goods Act 1996, s 24A if the ACAT has made an order under par (j).
(k)an order correcting a defect in a notice or in the service of a notice;
(l)any other order the ACAT considers appropriate including declaratory orders in relation to a matter in this Act.

Is this an application governed by Part 6 of the RTA?

The relationship between these provisions in Part 6 of the RTA determines the extent of what the Tribunal can hear and decide. While it is exclusive it is not

at-large and is nonetheless limited. It is limited by the source from which applications may be made and the types of disputes. It is limited by who can apply and the kinds of orders that can be made. Although Mr Burgess’s claim relates to a residential tenancy agreement that does not automatically mean it is an application the Tribunal can hear and decide as contemplated by section 76.
Mr Burgess seeks a declaration that he is a tenant. For ACAT to be vested with jurisdiction this must be an application capable of being heard and decided under the Act. It is not an application about a standard residential tenancy term or an occupancy principle. In order to do so, Mr Burgess must be a party to a residential tenancy agreement. He is not a party to an occupancy agreement as there is no occupancy agreement in place.
Mr Burgess submitted that the words “any matter that may be the subject of an application to the ACAT” cast a wide net and contained no specific threshold requirement for jurisdiction, beyond an application being brought pursuant to either a provision of the RTA, the standard residential tenancy terms, or occupancy principles. Those words cannot be read in isolation from the three specified sources of a dispute which limits the matters that may be heard and decided by the tribunal. This is further informed by the definition of a dispute and who can apply. It covers a specific relationship and the terms that govern that relationship.
The exclusivity of the tribunal’s jurisdiction is confined to matters that arise under the three specified sources such that applications of those types can only be commenced in the tribunal and not some other forum. Applications that fall outside that exclusive jurisdiction may still be commenced in other forums, such as the ACT Magistrates Court and the ACT Supreme Court. For example, a compensation claim seeking an amount more than the tribunal’s jurisdictional limit of $25,000 would need to be brought elsewhere if the parties did not agree to extend the tribunal’s jurisdiction.[1]
[1] ACT Civil and Administrative Act 2008 Section 21
While the dispute might be about, arises from, or relates to, the agreement, to pick up the words from section 72(1), who can bring such a dispute before the tribunal is governed by section 79. Its scope is limited.
Mr Burgess is not a party to the residential tenancy agreement dated 28 May 2015. The only parties to that agreement are Ms Burgess and the Commissioner.[2] In circumstances where Ms Burgess died without a will, she is intestate.[3] Her real and personal property form part of her intestate estate,[4] this includes her tenancy agreement.[5] As no grants of representation on her estate have been made, section 38A of the Administration and Probate Act 1929 (Probate Act) applies:
[2] Annexure B Commissioner’s timeline
[3] See Administration and Probate Act 1929 section 44, definition of intestate
[4] See Administration and Probate Act 1929 section 44, definition of intestate estate
[5] The Estate of Tanya Humphries v Commissioner for Social Housing [2003] ACTSC 40 at [4]
38A Estate to vest in public trustee and guardian until grant
(1)This section applies if—
(a)a person dies; and
(b)representation has not been granted.
(2)The person’s real and personal estate vests in the public trustee and guardian.
(3)The public trustee and guardian may undertake the administration of the person’s estate while the person’s property is vested in the public trustee and guardian.
(4)However, subsection (3) does not require the public trustee and guardian—
(a)to administer the estate; or
(b)act as trustee of any trust created by the person’s will; or
(c)exercise any discretion, power or authority of a personal representative, trustee or devisee.
On the facts before me, Mr Burgess has not been appointed administrator of his mother’s estate nor have letters of administration been granted such that her estate may be distributed or transferred. Her real and personal estate vests in the PTG. The PTG has not elected to administer her estate. Of course, section 38A of the Probate Act applies only until another representative is appointed, however that has not occurred in this case. I accept Mr Burgess has taken some steps for that purpose, but I cannot accept that those steps are substantial or well-advanced. Mr Burgess does not represent the estate.
I must conclude that by reason of section 38A of the Probate Act, Ms Burgess’s estate, including her rights under the tenancy agreement, has vested in the PTG and the PTG being duly notified of these proceedings has not elected to administer the estate or join the estate to these proceedings. In circumstances where the estate has vested in the PTG and the PTG has not elected to administer the estate, as the tribunal said in Commissioner for Social Housing v The Estate of the Late Joy Hill & Anor “in effect, the tenant may be taken to have submitted to any orders the Tribunal may make in the matter”.[6]
[6] [2018] ACAT 73 at [32]
In order to enliven the Tribunal’s jurisdiction under the RTA, by reference to sections 76 and 79 of the RTA, only the PTG on behalf of the estate (or the Commissioner) could bring an application about or relating to the agreement. The PTG has not done so. I am not satisfied Mr Burgess can do so on behalf of the estate or purportedly pursuant to asserted rights and interests claimed to be held in the estate. He cannot do so in an individual capacity as the assumed beneficiary and successor of the tenancy. Such succession has not been legally determined or recognised and would be beyond the tribunal’s jurisdiction to decide.
I am reinforced in my view by reference to the kinds of orders the tribunal may make under section 83 of the RTA. Declaratory relief in terms of who is a tenant or who succeeds a tenant are not amongst them. I accept the powers conferred under section 83 are broad and expressed to be non-exhaustive. However, I am not satisfied it extends to the kind of declaratory relief Mr Burgess seeks especially where he is not a party to the residential tenancy agreement and has no legal basis for commencing proceedings in this tribunal in the name of his mother’s estate. The kind of injunctive and declaratory relief he seeks in those circumstances is not within the ambit of Part 6 of the RTA, particularly sections 72, 76, 79 and 83.
To establish his standing, Mr Burgess essentially requests the Tribunal recognise a right or interest he might have in his mother’s estate which the ACT Supreme Court has not yet done. To do so is beyond the Tribunal’s jurisdiction. It is tantamount to circumventing the proper course set out in the Probate Act and would have the Tribunal transferring a right in the tenancy to him which I am not persuaded the Tribunal has the power to do.

Does Mr Burgess have an interest?

Mr Burgess submits that as the sole beneficiary of his late mother’s estate he has an interest in the tenancy such that the tenancy will pass to him. On the facts before me any interest as a beneficiary has not been secured.
In 2005, the Residential Tenancies Amendment Bill 2005 (the Bill) amended the Act and amongst other things, inserted section 127A[7] of the RTA which states:
127A Transfer of public housing under will
(1)A public housing tenancy agreement may provide that the tenant must not give the tenant’s rights under the agreement by will to another person who is not an occupant of the premises.
(2)If a person takes possession of public housing premises under a will, the housing commissioner may apply to the ACAT to adjust the rent, or terminate the agreement.
(3)In considering an application under subsection (2), the ACAT must have regard to the eligibility criteria under relevant approved housing assistance programs under the Housing Assistance Act 2007.
[7] Residential Tenancies Amendment Bill 2005 clause 22
The explanatory statement for the Bill states:
Clause 22 New section 127A – inserts a new section 127A into the Act. The new section provides that, in relation to new public housing tenancies, that the residential tenancy agreement may provide that the tenancy may not pass to a non-occupant on the death of a tenant. The section also provides that the Commissioner for Housing may seek an order from the Residential Tenancies Tribunal where a new tenant takes possession of social housing under testamentary law. The order may terminate the tenancy or adjust the rent for the premises having regard to the relevant housing assistance programs under the Housing Assistance Act 1987. This section is necessary where the rent may prior to death have been substantially below market rate.
Despite the Explanatory Statement referring to circumstances where a new tenant takes possession of social housing under testamentary law, the provision specifically references possession under a will. It does not expressly deal with possession passing to a new tenant under intestacy laws and could not therefore abrogate the common law position.
Section 127A came into existence following Connolly J’s decision in Estate of Tanya Humphries v Commissioner for Housing in the ACT (Humphries)[8] In that case Ms Humphries was the sole tenant under a residential tenancy agreement with the Commissioner. Mrs Valerie Costello and Mr Gregory Shepherd were described in the schedule to the residential tenancy agreement as “other residents”. Ms Humphries died on 6 July 2001 but had executed a will containing a clause “I give my whole estate to my mother Valerie Francis Humphries.”[9] The will did not specifically mention the tenancy. The Court held that a residential tenancy agreement was a form of property interest that could be transferred under a will and the RTA did not have the effect of the effect of abrogating the common law position that a periodic tenancy is a form of property interest that may pass under a will.
[8] [2003] ACTSC 40
[9] Valerie Costello is Valerie Humphries.

This was recognised in NSW Land and Housing v Estate of the late Leanne Maher and Larry Maher[10] where the tribunal said:
The relevant principle is that death of the tenant does not result in termination of a tenancy, as the tenancy survives for the benefit of the estate until lawfully terminated, which requires an RTA s 108 application for termination and possession if vacant possession has not been given: see Anforth & Others, Residential Tenancies in NSW at [2.108.1] citing Department of Housing v Estate of Doyle (1998); Sunmaid Village (Administering Authority) v Executor of the Estate of McKenzie (1992); Fiti v Department of Housing (2001); and Estate of Humphries v Commissioner for Housing [2003] ACTSC 40 where Connolly J in the ACT Supreme Court held that the tenancy continued in the name of the deceased’s estate and that the beneficiary of the deceased will succeed to the tenancy in their own right. Mr Maher is the beneficiary of the Estate and has applied for succession but his application was refused. The interest in the Premises is currently vested in the NSW Trustee who has disavowed any interest.
[10] [2013] NSWCTTT 358 at [16]
The Tribunal does not have the capacity to declare Mr Burgess has any beneficial interest, as a tenant or that he otherwise may have in the estate, particularly where he does not represent the estate, any beneficial interest has not been recognised and the interest is currently vested in the PTG, who like in Maher, has disavowed any interest.
Similarly, in Commissioner for Social Housing v The Estate of the Late Joy Hill & Anor[11], although it was dealing with an application for termination and possession orders, the tribunal found:
44.Mr Humpherston did not present any argument that was contrary to this. He appeared to accept that his only right to reside in the house was through his relationship with the deceased and the estate. In the circumstances, although the argument was somewhat unusual, I was satisfied that the requirements of section 49 were met.
45.Notwithstanding those requirements were met, the Tribunal still had a discretion in respect to whether to make a termination and possession order under section 49 of the RT Act. There were no relevant facts before the Tribunal that could reasonably persuade the Tribunal that the discretion should be exercised to refuse to make the order sought by the Commissioner. Mr Humpherston’s circumstances were very unfortunate (clearly, the premises was his childhood and current home), but they did not give rise to any right to reside in the property. It was not submitted that Mr Humpherston was in fact a tenant, and there is no capacity for the Tribunal to make an order transferring the estate’s rights in the tenancy to him. Nor in the time that elapsed between the tenant’s death and the final hearing had he taken any steps to seek probate or administration of the estate, or otherwise to seek to give legal effect to any property right that may relate to the property.
46.There was no evidence that the estate was able to repay the rental arrears, or make future payments of rent. There was no evidence that the PTG was minded to take any action on behalf of the estate, and the authorities make it clear that it is not obliged to pay the rent or take any action in relation to the lease at all.[12] Mr Humpherston had not demonstrated any legal right to continue to occupy the premises. To leave arrangements as they were would be contrary to public policy and common sense.
[citations retained]
[11] Commissioner for Social Housing v The Estate of the Late Joy Hill & Anor [2018] ACAT 73 at [44]-[46]
[12] Abu-Arab v NSW Trustee & Guardian [2014] NSWSC 954
To my mind, whether Mr Burgess has such an interest under testamentary law of the kind referred to in Humphries, does not arise in this application as I have found he lacks standing to make this application and to find he has standing by way of an asserted beneficial interest in the estate would otherwise be beyond the Tribunal’s jurisdiction. Even so, like Mr Humpherston, Mr Burgess has not obtained letters of administration for the estate, nor has he sought to give legal effect to any property right that may relate to the tenancy. I make no criticism of Mr Burgess in this regard but must recognise the facts before me.

Is there a tenancy with Mr Burgess?

The RTA defines a tenant as “a person who has a right of occupation under a residential tenancy agreement.” A residential tenancy agreement may be express or implied.
There are several factors which cause me to find against Mr Burgess on this issue.
Unlike the circumstances in Humphries, Mr Burgess was never recognised by the Commissioner as ‘another resident’ so as to ground any right of occupation. Steps were taken to advise the Commissioner of Mr Burgess living in the Premises for rental rebate purposes, but those documents were not processed as they were incomplete. That is not enough to confer any right of occupation to Mr Burgess.
The Commissioner actively took steps, albeit imperfectly, to remove Mr Burgess from the Premises following notice of Ms Burgess’s death. This has culminated in the related proceedings for termination and possession orders.
The Commissioner has refused to accept payment from Mr Burgess for rent so as to avoid any implied tenancy arising.
Mr Burgess is not a long-term resident of the Premises. He came to live there to care for his mother and had only been there for about three weeks before she died. The Commissioner was not promptly notified and he has remained in the property since.
On these findings I am not persuaded an implied tenancy exists between Mr Burgess and the Commissioner so as to afford Mr Burgess standing.

Conclusion

Mr Burgess cannot make this application to the Tribunal on behalf of his mother’s estate as only the PTG could do so. He cannot do so in his own right as he is not a party to the residential tenancy agreement. He otherwise has no recognisable interest which would secure his standing in relation to the tenancy agreement. The Tribunal lacks power to make the declaratory orders sought in any event as it is beyond its jurisdiction.
Order 1 made on 29 July 2022 and Order 2 made on 10 August 2022 are set aside and the application is otherwise dismissed.

………………………………..

Senior Member K Katavic

Date of hearing:	31 August 2022
Solicitor for the Applicant:	G Meikle, Canberra Community Law
Representative for the Respondent:	N Lee, Tribunal Advocate