COMMISSIONER FOR SOCIAL HOUSING IN THE ACT & HIGGINS (Residential Tenancies)

The matter before the ACT Civil & Administrative Tribunal was an application by the Commissioner for Social Housing in the ACT (applicant/lessor) against Mr John Higgins (respondent/tenant) for termination of a tenancy agreement on the basis of rental arrears. The Commissioner sought termination and possession of the premises on the basis that Mr Higgins had failed to comply with a Notice to Remedy served on 20 July 2011, which was followed by a Notice to Vacate on 24 August 2011. Mr Higgins had failed to vacate the premises as required by the Notice to Vacate and further, a further Notice to Vacate was served on 10 April 2012, which Mr Higgins had also failed to vacate the premises as required.

The Tribunal considered the legal issues of whether the Notice to Remedy had been served, whether the Notice to Remedy was legally 'spent', whether the applicant was estopped from taking action, and whether a conditional termination and possession order could require repayment of only part of the arrears. The Tribunal found that the Notice to Remedy had been served, and it was not legally'spent'. The Tribunal also found that the applicant was not estopped from taking action, and a conditional termination and possession order must require repayment of the full amount of arrears.

In making the order, the Tribunal considered the history of non-payment, unfulfilled undertakings, and failure to meet the required rental payment. The Tribunal found that Mr Higgins was not reasonably likely to pay the rent and the rent that had become payable, as required under section 49(3) in order for the discretion to make a conditional termination and possession order to be exercised. Consequently, the Tribunal declined to exercise the discretion to make a conditional termination and possession order in this matter, and proceeded to make an unconditional order for termination and possession.

The Tribunal ordered that the residential tenancy agreement is terminated at 5:00pm on Tuesday, 7 May 2013. The tenant must vacate the premises on or before 5:00pm on Tuesday, 7 May 2013. The Tribunal also authorised all Officers of the Australian Federal Police to take appropriate action to evict the tenant from the premises upon the giving of two days notice in accordance with subsection 40(1) of the Residential Tenancies Act 1997, with such assistance as is necessary and reasonable. The tenant is to provide the Tribunal with his/her address for service of future notices and orders in these proceedings by 7 May 2013. Liberty to relist the matter within 28 days of the lessor obtaining possession of the premises, for hearing of any claims for compensation and an order quantifying the rental arrears payable.