Commissioner for Housing for the Act v Anthony Worrall

[2006] ACTRTT 13

Commissioner for Housing for the ACT -v- Anthony Worrall

ACTRTT 13 [2006]

CATCHWORDS

Right to inspect premises

LEGISLATION

Residential Tenancies Act 1997 (ACT)

CASE LAW

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Case Reference Number:     RT 1907 of 2006

RE: Premises at 8/16 Northbourne Flats, Turner  ACT 2602

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Decision

Member:         J. Lennard
Date:              27 April, 2006

1. That the lessor is granted access to the premises on Thursday the 6^th of April, 2006 from 10am to 12 noon for the purposes of conducting an inspection in accordance with clause 77 of the standard residential terms.  Such right of access may be exercised in the absence of the tenant.

2. That the tenant is to comply with the terms of the Residential Tenancies Agreement and the Tribunal draws the attention of the tenant to clauses 75-79 in particular.

STATEMENT OF REASONS

1. The Applicant is the proprietor of premises at 8/16 Northbourne Flats, Braddon, ACT.

2. On 21 March 1996 the parties entered into a residential tenancy agreement in relation to those premises.

3. It is a term of that tenancy that the lessor may inspect the premises twice in each period of 12 months following commencement of the tenancy, upon the lessor giving the tenant one week’s written notice of such inspection. The inspection must take place at a time agreed between the parties with reasonable regard to the work and other commitments of the parties.

4. Clause 79(3) of the residential tenancy agreement provides that if the parties are unable to agree on an appropriate time, the lessor or the tenant may apply to the Tribunal for an order permitting access at a specified time.

5. The lessor made such an application and the matter was heard by the Residential Tenancies Tribunal on 29 March 2006. The lessor was represented by Mr Peter Christensen and the respondent appeared in person. The Tribunal had written submissions from each party and also received oral evidence during the hearing.

6. The written submission from the lessor indicated that on 14 Junes 2005, 8 September 2005, 24 January 2006 and 31 January 2006, the lessor had attempted to conduct inspections, each of which had been preceded by the requisite notice, but had been effectively refused appropriate access to the premises. In addition the evidence indicated that each of the Housing Officers had been treated rudely and abused by the tenant.

7. On 2 February 2006 the lessor served a Notice to Remedy upon the tenant. The tenant has not allowed access to the premises, and therefore has failed to remedy the breach of the residential tenancy agreement.

8. In his written submission the tenant acknowledges the lessor’s right to conduct inspections in accordance with the residential tenancy agreement. The tenant stated: I do not refuse to give access to the lessor for the purpose of inspection. I do not agree with the allegations that I have denied access for the purpose of inspection…..I consent to provide access for an inspection at a mutually agreeable time, provided that the agreed date gives me 7 days notice.

9. Without making a finding that the tenant wilfully refused access to the lessor, the Tribunal noted that the Housing Officers had acted with appropriate caution in leaving the premised upon any conduct by the tenant which could be interpreted as refusal to co-operate or allow access.

10.The tenant during the hearing adopted a rude and unco-operative attitude towards the Applicant and the Tribunal.

11.Taking into account the tenant’s failure to respond to the Notice to remedy, the evidence of the Housing Officers as to the tenant’s abusive conduct and the attitude which the tenant adopted during the hearing, the Tribunal made an order for access by the lessor to the premises. The order made the terms of the inspection clear and sought to avoid further non-compliance by the tenant by permitting the lessor to access the premises in the absence of the tenant and drawing the requirements of the tenancy agreement to the attention of the tenant.

Jann Lennard
Member

27 April 2006