Commissioner for Social Housing in the Act and Cotsell (Residential Tenancies) - [2012] ACAT 25

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING IN THE ACT & COTSELL (Residential Tenancies) [2012] ACAT 25

AA 11/26
(RT 11/126)

Catchwords: APPEAL – agreement to occupy site at Longstay Caravan Park -characterisation of agreement- - residential tenancy agreement or occupancy agreement – meaning of premises - mobile home on land where land and mobile home have different owners – occupancy agreement
Legislation:Residential Tenancies Act 1977 ss 6A, 6F, 71C, 71E, dictionary “premises”
Cases:Turner v York Motors Pty Ltd (1951) 85 CLR 55
Peter Beresford v Department of Urban Services[2004] ACTSC 58

Tribunal: Ms L. Crebbin, General President
Mr A. Anforth, Senior Member
Ms J. Lennard, Senior Member

Date of Orders: 24 April 2012
Date of Reasons for Decision: 24 April 2012

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL )

AA 11/ 26
(RT 11/ 126)

BETWEEN:
COMMISSIONER FOR SOCIAL

HOUSING IN THE ACT
Appellant

AND:
JOSEPHINE COTSELL
Respondent

TRIBUNAL:Ms L. Crebbin, General President
Mr A. Anforth, Senior Member
Ms J. Lennard, Senior Member

DATE:24 April 2012
ORDER

On being satisfied that the agreement between the parties in this matter is correctly characterised as an occupancy agreement, the Tribunal finds that the order made by the original Tribunal on 25 July 2011 (the order) is incorrect and now orders:

1. the Commissioner for Social Housing is to file brief written submissions as to how the order should be corrected on or before 4 May 2012;

2. Josephine Cotsell is to file brief written submissions in response on or before 14 May 2012;
3. applications for appeal AA 11/26 and AA 11/23 will be listed so that the Tribunal can consider the submissions and make orders to finalise the appeals on a date to be fixed.
………………………………..
Ms L. Crebbin
General President
For and on behalf of the Tribunal

REASONS FOR DECISION

This matter concerns two appeals against an order made by an original Tribunal on 25 July 2011 (the order). The order is a termination and possession order that, in summary, says that a residential tenancy agreement in place between Ms Josephine Cotsell and the Commissioner for Social Housing (the Commissioner) is terminated and that Ms Cotsell is required to vacate the premises the subject of the agreement by a particular date.
Ms Cotsell appeals against the order. She says that the original Tribunal made an error and that it should have made a conditional termination and possession order to allow her to remain living on the premises on condition that she continue to pay an amount for on-going rent as well as an amount to repay rent that she owes. Her appeal is matter AA 11/23.
The Commissioner for Social Housing also appeals against the order. The Commissioner says that the original Tribunal’s order is incorrect because the agreement between the parties was not a residential tenancy agreement but an occupancy agreement. If that is the case, neither the original Tribunal nor this Appeal Tribunal could make a conditional termination and possession order as Ms Cotsell seeks. The Commissioner’s appeal is matter AA 11/26.
The original proceedings were commenced by the Commissioner on 31 January 2011. The Commissioner sought orders for inter alia, the termination of an occupancy agreement between the parties and possession of a site occupied by Ms Cotsell.
The question of whether the agreement between the parties was properly characterised as a residential tenancy agreement or as an occupancy agreement was raised during the course of the proceedings before the original Tribunal (the question). There were some seven listings before the Tribunal. During the course of one of the listings, the original Tribunal heard submissions on the question. The transcript indicates that no finding was made and that the matter was adjourned with orders in place requiring Ms Cotsell to continue to pay an amount to the Commissioner to cover on-going fees and an amount towards arrears. The matter was re-listed on the application of the Commissioner when Ms Cotsell failed to keep up the required payments. When the matter came back before the original Tribunal, the question appears to have been over looked.
On 25 July 2011, the original Tribunal proceeded to make a termination and possession order using a template form of order for matters involving residential tenancy agreements. No reference was made by anyone present to the unresolved question. The choice of form does not appear to have been a deliberate or conscious act of the member.
The parties agreed that appeal AA11/26 should be considered by the Appeal Tribunal first so that the question can be determined. The outcome of that appeal will affect the outcome of Ms Cotsell’s appeal.

Background Facts

It is common ground that on 28 June 2007 Ms Cotsell and the Commissioner entered into an agreement (the Agreement) in which Ms Cotsell agreed to pay the Commissioner an amount of $281 per month to occupy site 68 at the Narrabundah Long Stay Caravan Park (“the site”). The Agreement was headed “Occupancy Agreement”.
It is also common ground that, when the Agreement expired, which on its terms occurred on 11 February 2008 (Agreement, Schedule 1, Item 5), the parties behaved as if it continued in force. There was no specific agreement between the parties to continue the Agreement after 11 February 2008.
Ms Cotsell concedes that she has not consistently paid the fees due and payable under the Agreement. When the Commissioner lodged the initial application on 31 January 2011, Ms Cotsell owed an amount of $6617.56. The arrears increased during the original proceedings.
Ms Cotsell lives in a structure erected on the site. The Commissioner does not own the structure but does own the site on which the structure sits. It is accepted that the structure is not permanently fixed to the site and is capable of being moved.
Consideration of the Question
The Residential Tenancies Act 1977 (the Act) defines a residential tenancy agreement in s 6A in this way:
(1) An agreement is a residential tenancy agreement if, under the agreement-
(a) a person gives someone else (the tenant) a right to occupy stated premises; and
(b) the premises are for the tenant to use as a home (whether or not together with other (people); and
(c) the right is given for value.
Section 6F provides that a residential tenancy agreement does not include an agreement for the right to occupy premises, if the premises are a mobile home in a mobile home park.
An occupancy agreement is defined at s 71C of the Act:
(1) An agreement is an occupancy agreement if -
(a) a person gives (the grantor) gives someone else (the occupant) a right to occupy stated premises; and
(b) the premises are for the occupant to use as a home (whether or not together with other (people); and
(c) the right is given for value; and
(d) the agreement is not a residential tenancy agreement.
The dictionary contained in the Act provides that premises includes-
a)any habitable structure, whether it is fixed to the land or not; and
b)part of any premises; and
c)any land, buildings or structures belonging to the premises.
The Commissioner says that the arrangement between Ms Cotsell and the Commissioner is an Occupancy Agreement because:
(1)this is consistent with the permitted uses of the Narrabundah Long Stay Caravan Park under the Territory Plan;
(2)this is only form of agreement that could be made between them under the Act, properly construed; and
(3)this is consistent with the intention of the parties entering into the Agreement;
If the Commissioner’s submissions are accepted, the Tribunal will need to amend the order to ensure it is within the Tribunal’s power relating to occupancy agreements.
Ms Cotsell submits that the Appeal Tribunal should take a robust approach to the interpretation of the Act and find that there is an implied residential tenancy agreement between the parties, regardless of the nature or ownership of the structure she lives in.
She submits that the Act is designed to protect vulnerable people, like her, for residential tenancy matters and it is appropriate that the Act be interpreted so as to give her the greater degree of protection that is offered to a tenant by the availability of conditional termination and possession orders.
Ms Cotsell submits that the site the subject of the Agreement between the parties, includes the structure she lives in. The “premises” for the purposes of her agreement comprises both the land and the structure on it. She says that this complies precisely with the definition of “premises” in the Act. The fact that the legal titles to the site and to the structure are vested in different entities is irrelevant for defining “premises” for the purposes of section 6A of the Act. Section 6F is irrelevant in her circumstances and the agreement between the parties can fit comfortably within the definition of a residential tenancies agreement.
The definition of premises in the Act is inclusive rather than exhaustive. ACAT may in determining the meaning of premises, have regard to common usage and the general law. ACAT is required to give a meaning to premises in the context of the Act as a whole and with regard to the intention of the legislature as gathered from, inter alia, the scope, purpose and object of the Act.
The parties accept that the legislation is wholly related to residential occupation.
When the word ‘premises’ is used in the Act, it must be taken to refer to premises intended to be used for residential purposes. The tribunal is required to give a meaning to ‘premises’ in accordance with the settled principles of statutory interpretation. That is, to interpret words in the context of the Act as a whole and to assign a meaning that is consistent with the intention of the legislature.
The word premises is defined in the Macquarie Dictionary as a house or building with the grounds, etc, belonging to it.
The Butterworths Property Law dictionary defines premises as buildings, self contained apartments or rooms within buildings or land. A very general term, it is used in particular to refer to rooms or buildings subject to a lease, or from which a business is conducted or from which some other activity is carried out....Premises may consist solely of land or buildings, or may encompass partly land and partly buildings.
Each party’s submissions as to the meaning of premises referred to the decision of the High Court of Australia in Turner v York Motors Pty Ltd (1951) 85 CLR 55 where it was stated: the word premises is no doubt a vague one...we should adhere to the rule laid down that bare land without buildings, if let for the purposes of occupation as bare land, does not constitute premises.
The Supreme Court of the Australian Capital Territory applied this principle in Peter Beresford v Department of Urban Services[2004] ACTSC 58 (2 July 2004) and confirmed that bare land without buildings, if let for occupation as bare land, does not constitute premises.
In the matter before the tribunal the agreement between the parties contemplates two essential matters:
a) That the Territory will, for a fee, permit Ms Cotsell to use a block of land, for occupation by her in a caravan or mobile home owned by her.
b) The land and the caravan or mobile home will be occupied by her as her home.
The agreement grants Ms Cotsell the right to access a site, to place a mobile home owned by her on that site and to occupy the mobile home as her home.
On its face, this is an agreement that section 6F of the Act excludes from the definition of a residential tenancy agreement.
The terms of the standard residential tenancy agreement setting out the rights and obligations of the lessor and tenant, contemplates that a residential tenancy agreement exists where the lessor owns both the land and the dwelling on the land. The lessor’s obligations to maintain premises in good repair for example, could be frustrated if it were otherwise.
In regulating residential tenancy matters as it does, the Act clearly intends that a residential tenancy agreement will arise if, and only if, the lessor owns both the land and the dwelling.
The intention is reinforced by the occupancy principles set out in s 71E of the Act. Section 71E (2) provides that if an occupant occupies a mobile home on land in a mobile home park and the mobile home is not provided by the grantor, the occupancy principle in 1(e) applies to the land and any fixtures provided by the grantor, but not to the mobile home (emphasis added).
This envinces a clear intention that those parts of the Act that concern occupancy agreements, apply in situations where the land is owned by the grantor and a mobile home on the land is owned by the occupier or grantee. The land and home are in those circumstances properly described as premises for the purposes of the definition of occupancy agreement in s 71C.
Reading sections 6A, 6F(1), 71C and 71E of the Act together, the tribunal concludes that if an agreement between the parties relates to a mobile home on land in a mobile home park, where the land is owned by one party and the mobile home is owned by a second party and the second party has the right, under the agreement, to place the mobile home on the land of the first party then:
a.‘Premises’ will include both the land and the mobile home, and
b.The agreement will be an occupancy agreement, subject to the occupancy principles as limited by section 71E(2).
The Tribunal finds that the agreement between the Territory and Ms Cotsell, entered into on 28 June 2007 and continuing by implication from the continued occupation of the site by Ms Cotsell, is properly construed as an occupancy agreement under the Act.
Accordingly, the Commissioner’s submissions are accepted. The incorrect order issued by the original Tribunal on 25 July 2011 must be amended. The Tribunal will re-list the matter to hear submissions from the parties about how that should be achieved and what should happen with appeal application AA11/23.

………………………………..
Ms L. Crebbin
General President
For and on behalf of the Tribunal

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:	AA 11/26
PARTIES, APPLICANT:	Commissioner for Social Housing in the ACT
PARTIES, RESPONDENT:	Josephine Cotsell
COUNSEL APPEARING, APPLICANT
COUNSEL APPEARING, RESPONDENT
SOLICITORS FOR APPLICANT	Mr N. Hancock, ACT Government Solicitor
SOLICITORS FOR RESPONDENT	Mr Emerson-Elliott, Welfare Rights and Legal Centre
TRIBUNAL MEMBERS:	Ms L. Crebbin, General President Mr A. Anforth, Senior Member Ms J. Lennard, Senior Member
DATES OF HEARING:	30 September 2011 and 16 November 2011
PLACE OF HEARING:	Canberra ACAT

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: