Commissioner for Housing for the Act v Iris Frank - [2006] ACTRTT 8

Commissioner for Housing for the ACT v Iris Frank [2006] ACTRTT 8
(22 March 2006)

CATCHWORDS

Right to quite enjoyment
Requirement to serve notice to vacate
Termination of tenancy for breach of neighbours enjoyment

LEGISLATION

Residential Tenancies Act 1997 (ACT)-section 48, 104
Prescribed Terms to Residential Tenancies Act 1997 - 70

CASELAW:
ACT Housing v Margules [2003] ACTRTT 6

Case Reference Number: RTT 05/1318

Re: 9 Cowan Street, Downer ACT 2602

Decision

1That the Tenancy Agreement has been breached.
2That the Residential Tenancies Agreement is terminated and possession of the premises is to be given to the lessor/s at 10:00am on the 16th day of February, 2006.
3That the said tenant and any other person claiming right of possession through the tenant’s tenancy is to vacate the premises in accordance with this Order.
4That if the tenant/s fails to vacate the premises in accordance with Order 2 & 3 above, the lessor may apply to the Registry of the Residential Tenancies Tribunal for a Warrant for Eviction.
5That this order is suspended for a period of 21 days.
6That the tenant/s is to remove all goods and return the premises in a clean condition.
7That any goods remaining on the premises after the date for vacant possession will be deemed uncollected goods and the Uncollected Good Act applies to their storage and disposal.
8That the tenant/s shall pay the lessor an occupancy fee at the rate of $7.79 per day from the 17th day of February, 2006, until the date that possession is given.

9 That the Orders of 25 August 2005 remain in force until vacation of premises.

Member: Jann Lennard
Date: 22 March, 2006

Reasons for decision

The Applicant Lessor and the respondent tenant entered into a residential tenancy agreement on 27 March 2003, in relation to premises at 9 Cowan Street, Downer, ACT.
In June 2004 the lessor began receiving complaints from the neighbours in relation to the conduct of the tenant.
The lessor served a Notice to Remedy for a breach of clause 70 of the residential tenancies agreement – that the tenant should not use the premises in a manner that interfered with the quiet enjoyment of the neighbours. This Notice was served on 14 February 2005. The tenant failed to remedy that breach to the satisfaction of the lessor and as a result the lessor made an application for an order to comply with the terms of the Residential Tenancy Agreement.
On 12 May 2005 the Tribunal heard that application. Both parties had legal representation. The lessor was represented by Mr Christensen and the tenant by Mr Elmarrazzay.
The Application was for an order that the tenant comply with the terms of the residential tenancy agreement, and in particular that the tenant remove from her premises signs which were alleged to be defamatory of her neighbours, and which were causing distress and upset to those neighbours.
The lessor had indicated on the Application form that a termination and possession was being sought but there was no discussion of this in the hearing and the Tribunal conducted the hearing as an application for orders to ensure compliance with the terms of the residential tenancy agreement and the protection of the quiet enjoyment of their premises by the tenant’s neighbours.
The Tribunal adjourned the matter to enable a conference between the paries. The Tribunal ordered the tenant to remove the offending notices.
The matter was relisted for hearing upon the application of the lessor. On 22 July 2005 the Applicant provided evidence to the Tribunal of further breaches of Clause 70 by the tenant. This would if established also constitute a failure by the tenant to comply with the orders of the Tribunal. The Tribunal made further Orders that the tenant comply with the terms of the Residential Tenancy Agreement and indicated that any further failure to comply with the orders of the Tribunal would be dealt with under section 108(2) of the Residential Tenancies Act.
On 11 August 2005 the Applicant again brought the matter before the Tribunal and alleged that the Tenant had failed to comply with the Orders of the Tribunal. On this occasion the Tribunal adjourned the matter to 25 August 2005, but Ordered the tenant to attend on that occasion, in default of which the matter would be dealt with in her absence.
On 25 August 2005 both parties were present and legally represented. The applicant was represented by Mr Christensen and the tenant by Ms Helen Dalley (Welfare Rights and Legal Centre).
The Residential Tenancies Tribunal heard evidence from several neighbours of the tenant. The consistent theme of this evidence was that the tenant’s conduct made it impossible to use and enjoy their homes, in particular the neighbours gave evidence that they were not comfortable in the gardens of their premises. Each gave evidence as to the existence of security cameras and/or spotlights, which were trained, on their premises; that the tenant was loud and abusive of them, often using bad language and that while the signs subject of earlier orders by the tribunal had been removed, others had been erected.
The Residential Tenancies Tribunal, while acknowledging some inconsistencies in the evidence of the neighbours, formed the view that the evidence clearly showed that he Tenant’s conduct had caused the neighbours a great deal of distress and upset, and the Tribunal accepted the evidence that they were depressed, distressed and afraid to go into the gardens of their premises. At this point the Tribunal, while satisfied that he conduct of the Tenant was a breach of clause 70 of the Tenancy Agreement, did not form the opinion that this breach justified eviction.
The Tribunal made the following orders:
1That the tenant not display or permit the displaying on/from the premises any sign, notice or other document.
2That the tenant comply with the terms of the Residential Tenancy Agreement and, in particular, not interfere or permit interference with the quiet enjoyment of nearby occupants.
3That except in case of emergency, the tenant is not to approach or attempt to contact either orally or in writing any occupants of nearby premises or have any third party do so.
4That the tenant ensures that the light from any spotlights at her premises do not spill over to any other property.
5That the tenant is not to install any surveillance/recording device upon premises, except with approval of Housing ACT.
6That if the tenant fails to comply with any of the above orders, the Tribunal will exercise its powers under Section 108(2).
7That leave is given to the applicant, Housing ACT, to re-list this matter on 24 hours notice.
8That Housing ACT is to supply particulars, list of witnesses and all documentary evidence to be relied upon in future to the Residential Tenancies Tribunal with any application to re-list.
On 23 January 2006, the lessor applied to the Tribunal for the matter to be heard again, on the basis of further alleged breach of clause 70, and failure to comply with the Orders of the Tribunal.
The Tenant did not attend the hearing on 15 February 2006, but was represented by Ms Dalley. Ms Dalley informed the Tribunal that the tenant was not able to attend as she had been taken to hospital with chest pains. Ms Dalley stated that the ongoing proceedings had caused the tenant a great deal of stress.
The Tribunal decided to proceed with the hearing in the absence of the tenant. In reaching this decision the Tribunal took into account the following:
a)The need to balance the interests of the lessor and the tenant;
b)That this was the fifth time the matter had been before the Tribunal;
c)That Ms Dalley had received all documentary evidence from the lessor on 30 January and had had an opportunity to discuss this with the tenant;
d)Ms Dalley was confident that the tenant had given her sufficient instruction in relation to the evidence for her to be able to assist the Tribunal in its consideration of the documents;
e)Ms Dalley stated that the tenant admitted to ‘swearing in front of the neighbours’
f)The tenant was in a state of extreme distress and not likely to be able to take part in any adjourned hearing. Ms Dalley was confident that the tenant, despite her stress and other illnesses was able to give proper instructions in relation to this matter, and in particular in relation to the breaches of the Tenancy Agreement and Tribunal Orders which were the subject of the hearing; and
g)That the Tribunal has power to proceed with hearings in the absence of a party (s91(d)).
The Tribunal proceeded by way of confining the evidence to the written statements of the neighbours of the tenant. Miss Dalley told the Tribunal that she had discussed the statements with the tenant. The Tribunal proceeded in this manner on the basis that if the statements and the admissions of the tenant established that there had been a breach of the tenancy agreement (and consequently a breach of the Tribunal orders), there would be no need to hear from the tenant’s neighbours personally.
The Tribunal had before it written statements from various neighbours as follows:
a)Gisela Murray (11 Cowan Pl) – incident on 6 December 2005 – “a torrent of abuse”. “She [ the tenant] said words to the effect of “the fucking neighbours, they keep spying on me”…the expression ‘fuck’ was used at least 20 times…she then started speaking in German…using expressions that translate to ‘you stupid people’…”
Ms Dalley informed the Tribunal that the tenant had admitted to the swearing described and to speaking in German.
b)Dean Socal (7 Cowan Street) – incident 11.15pm 15 December 2005 – Mr Socal was using a torch and looking for his cat. Mrs Frank was in her front yard she called out in a foreign language and used the phrase ‘you bloody fucking pervert’
Ms Dalley informed the tribunal that the tenant admitted to being in her front yard at the time and may have responded when the torch was shone on her.
c)James Shaw (14 Cowan Street) – incident 7.40 pm 30 December 2005 – the tenant ‘opened the door of 9 Cowan Street, directly opposite my residence and yelled at me “ F##cking monster, F##cking bastard, you’ll get yours”.’
-incident at 10.30 pm 30 December 2005 – the tenant was in her garden and was swearing and abusing Mr Shaw and other neighbours(Mr Lawrence and Mr Murray) – ‘her behaviour was loud and erratic, switching between English and German, swearing [you bloody ars#ole pervert, you f##cking monster]; threatening [you’ll get a Police Order]; and sometimes incoherent’.
d)Frank Murray (11 Cowan Street) and Brian Lawrence ( 16 Cowan Street) provided written statements to the same effect.
Ms Dalley informed the tribunal that the tenant admitted to being in her front yard at the time, but she denies swearing at Mr Shaw, although she admits she did swear at Mr Murray.
e)Jennifer Lawrence incident 9.30 pm 11 December 2005 – Mrs Frank yelled ‘you fucking perverts’ She also yelled in German.
Ms Dalley informed the tribunal that the tenant had no recollection of this incident.

The relevant statutory provisions:

The Residential Tenancies Act 1997 provides at s48:
Certain breaches of standard residential tenancy terms
(1) On application by a lessor, the tribunal may make a termination and possession order if satisfied that—
(a) the tenant has breached the standard residential tenancy terms (other than by failing to pay rent due and payable); and
(b) the lessor has served a termination notice on the tenant based on that breach; and
(c) the tenant did not vacate the premises in accordance with the notice; and

(d) the breach of the standard residential tenancy terms was not in accordance with a term of the residential tenancy agreement endorsed by the tribunal; and
(e) the breach justifies the termination of the tenancy.

(2) The tribunal may, if satisfied that it is appropriate and just to do so in relation to an application mentioned in subsection (1)—
(a) refuse to make a termination and possession order if—
(i) the tenant has remedied the relevant breach; or

(ii) the tenant undertakes to remedy the breach within a reasonable specified period and is reasonably likely to do so; or
(b) make a termination and possession order but suspend it for a period of no more than 3 weeks if satisfied that—
(i) were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and
(ii) that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period.

Clause 70
The tenant must not:
(a) use the premises, or permit them to be used, for an illegal purpose to the detriment of the lessor's interest in the premises; or
(b) cause or permit nuisance; or

(c) interfere, or permit interference, with the quiet enjoyment of the occupiers of nearby premises.

Powers of the Tribunal s 104

The tribunal may, in addition to any other order it is empowered to make, make the following orders in relation to an application about a tenancy dispute or occupancy dispute:
…
(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;

…
(l) any other order the tribunal considers appropriate.

The questions for the Tribunal are contained in the Residential Tenancies Act 1997 as follows:

1) Has there been a breach of clause 70 (b) and (c)?

Yes - this is established by the evidence. The Tribunal finds that the tenant has on several occasions since the making of the Orders on 25 August 2005 breached both those Orders and the terms of the Tenancy Agreement. Loud, abusive and foul language directed at the neighbours when they are in the yards/gardens of their residences is an interference with their quiet enjoyment.
2) Does this breach justify eviction?

The Tribunal notes the following:

a) the breach has continued over a long period of time: the Tribunal notes that the breaches continued despite several Orders that the tenant comply with the terms of the tenancy Agreement.
b) the disturbance to the quiet enjoyment of the neighbours is significant, and has resulted in severe diminution of the peace and enjoyment of their premises by the neighbours, including but not limited to lack of sleep, inability to utilise the premises as would ordinarily be expected and fear of going outside.
c) the breach of clause 70 (b) & (c) did not abate despite complaints and the issuing of a notice to remedy and the making of orders by this Tribunal. With regard to the breaches by the tenant since the last order, the Tribunal is of the opinion that these continued breaches indicate that the tenant is either unwilling or incapable of conducting herself in manner which complies with her obligations under the tenancy agreement. The Tribunal therefore formed the view that any further order to the tenant to comply with the residential tenancy agreement would not be met.

The Tribunal notes the lessor has not served a notice to vacate upon the tenant, as required by s48(b). However, the tenant was served with a Notice to Remedy on 14 February 2005; and, it was the failure by the tenant to remedy the breach of clause 70 that prompted the lessor to make the original application to the Tribunal. The tenant has consistently failed to comply with clause 70, and, has ignored the orders of the Tribunal to do so. To require the lessor to serve a 14 day Notice to Vacate would not advantage the tenant and would result in an unwarranted use of the Territory’s resources.

Given that the Tribunal has information before it that indicates that the lessor is willing to re-locate the tenant, and given that the Tribunal is, in light of that information, prepared to suspend the Order for termination of the tenancy by 21 days, the tenant is in no worse position that she would be should the Tribunal require the lessor to serve a notice of vacation, the Tribunal is of the view that the only appropriate order is one for termination of the tenancy and vacation of the premises by the tenant.

The Residential Tenancies Tribunal, therefore, concludes that eviction is justified. ACT Housing v Margules [2003] ACTRTT 6 (16 January 2003).

The tribunal makes the following orders pursuant to s104:
9That the Tenancy Agreement has been breached.
10That the Residential Tenancies Agreement is terminated and possession of the premises is to be given to the lessor/s at 10:00am on the 16th day of February, 2006.
11That the said tenant and any other person claiming right of possession through the tenant’s tenancy is to vacate the premises in accordance with this Order.
12That if the tenant/s fails to vacate the premises in accordance with Order 2 & 3 above, the lessor may apply to the Registry of the Residential Tenancies Tribunal for a Warrant for Eviction.
13That this order is suspended for a period of 21 days.
14That the tenant/s is to remove all goods and return the premises in a clean condition.
15That any goods remaining on the premises after the date for vacant possession will be deemed uncollected goods and the Uncollected Good Act applies to their storage and disposal.
16That the tenant/s shall pay the lessor an occupancy fee at the rate of $7.79 per day from the 17th day of February, 2006, until the date that possession is given.
17That the Orders of 25 August 2005 remain in force until vacation of premises.

Jann Lennard
Member
22 March, 2006