Commissioner for Social Housing v Arndt (Residential Tenancies)
[2016] ACAT 119
•1 November 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR SOCIAL HOUSING v ARNDT (Residential Tenancies) [2016] ACAT 119
RT 720/2015
Catchwords: RESIDENTIAL TENANCIES – jurisdiction - long stay caravan park – is the park ‘premises’ – definition of ‘premises’ - occupancy agreement
Legislation cited: Residential Tenancies Act 1997 ss 6F, 71C, 71E
Cases cited:Commissioner for Social Housing in the ACT v Cotsell [2012] ACAT 25
Texts/ Papers: ACT, Parliamentary Debates, Legislative Assembly, 17 August 2004, 3787-8 (Bill Stefaniak)
2004 Legislative Assembly for the Australian Capital Territory: Residential Tenancies Amendment Bill 2004, Explanatory Statement
Tribunal: Senior Member J Lennard
Date of Orders: 1 November 2016
Date of Reasons for Decision: 1 November 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 720/2015
BETWEEN:
COMMISSIONER FOR SOCIAL HOUSING
Applicant
AND:
ROBIN ARNDT
Respondent
TRIBUNAL: Senior Member J Lennard
DATE:1 November 2016
ORDER
The Tribunal orders that:
1. The matter is set down for hearing before Senior Member Lennard on Friday 9 December 2016 at 10am.
2. The applicant is to provide to the tribunal and to the respondent written submissions, and any further documents upon which it intends to rely at the hearing by Wednesday 16 November 2016.
3. The respondent is to provide to the tribunal and to the applicant written submissions and any further documents upon which it intends to rely at the hearing by Wednesday 30 November 2016.
………………………………..
Senior Member J Lennard
REASONS FOR DECISION
Background facts
1. On 22 June 2007 the applicant and the respondent entered into an agreement in relation to site 55 of the Narrabundah Long Stay Caravan Park. That agreement is in evidence before the Tribunal. The agreement is entitled Occupancy Agreement for the Narrabundah Long-Stay Caravan Park. The fixed term of the agreement expired on 11 February 2008. On 11 February 2008, the applicant sent a letter to the respondent offering to extend the occupancy agreement into a periodic agreement. The respondent completed and returned an acceptance form. On 1 July 2008 the parties entered into a second fixed term occupancy agreement, which expired on 11 May 2009 and subsequently converted into a periodic occupancy agreement. A copy of the second occupancy agreement is in evidence before the Tribunal. Pursuant to that occupancy agreement, the respondent occupant is required to pay an occupancy fee of $281 per month.
2. On 5 May 2015, a notice to vacate pursuant to clause 2.2 of the occupancy agreement was served upon the respondent occupant. That notice required the occupant to vacate the site on or before 8 June 2015. Clause 2.2 of the Occupancy Agreement provides:
the Occupant may continue to occupy the Site after the date of expiration on a month-to-month basis, and otherwise in the terms of this Agreement. If the Occupant continues to occupy the Site after the date of expiration under this clause, either party may terminate the permit to occupy the Site, by one month’s notice in writing, expiring at any time to the other party.
3. This application is for termination and possession of the site. The occupant 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. The structure is not permanently fixed to the site and is capable of being removed from the site. The matter was heard on 13 August 2015 and ex parte orders terminating the agreement were made by ACAT. On 9 September 2015 the ex parte orders were set aside and the matter was adjourned with procedural directions.
4. The matter was next heard on 12 November 2015. Mr Christensen, representing the respondent, raised a jurisdictional issue and the matter was adjourned with procedural directions for the parties to provide written submissions. Submissions were filed and served by the respondent on 19 February 2016 and by the applicant on 25 February 2016.
5.The hearing was resumed and on 25 February 2016 the parties made oral submissions on the issue of jurisdiction. The matter was reserved for a written decision.
Is the site ‘premises’?
6.The respondent submitted that the ACAT does not have jurisdiction to determine the application because the site which is the subject of the agreement between the parties is not ‘premises’ as set out in the Residential Tenancies Act 1997 (the RT Act) and therefore the agreement is not occupancy agreement. It is accepted by both parties that an agreement relating to ‘premises’ that are a caravan or mobile home in a mobile home park will not be a residential tenancy agreement.
7.If the agreement is neither a residential tenancy agreement, nor an occupancy agreement but a lease at common law, as asserted by the respondent, then ACAT does not have jurisdiction to determine the application. If the subject site is ‘premises’ then the agreement between the parties may properly be characterised as an occupancy agreement. It would follow from this that ACAT has jurisdiction to determine the matter.
8.The written submissions by the respondent relate to the interpretation of section 71C of the RT Act. The section provides as follows:
What is an occupancy agreement?
(1) An agreement is an occupancy agreement if—
(a) a person (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 with other people); and
(c) the right is given for value; and
(d) the agreement is not a residential tenancy agreement.
9.The respondent submits that the ACAT has no jurisdiction to deal with this matter because the agreement between the parties is neither a residential tenancy agreement nor an occupancy agreement.
10.The respondent’s submissions may be summarised as follows:
(a)It is accepted that an agreement relating to ‘premises’ that are a caravan or mobile home in a mobile home park will not be a residential tenancy agreement.
(b)An occupancy agreement applies to ‘premises’ being used as a home and it makes no sense to refer to bare land as a home.
(c)An occupancy agreement gives a person permission to live in ‘premises’ and ‘premises’ are defined in the RT Act as follows:
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.
(d)The respondent contends that the use of the word ‘premises’ is clear and unambiguous and that resort ought not be had to extrinsic materials, or the presumed intention that arises from section 71E of the RT Act.
11.The applicant also made submissions in relation to the definition of ‘premises’. The applicant notes that the definition is an inclusive one. It is the applicant’s submission that ‘premises’ are not confined to that which is set out in the RT Act.
12.The applicant provided copies of two occupancy agreements entered into between the parties: one dated 22 June 2007 and the other dated 1 July 2008. The applicant also provided a copy of a letter dated 11 February 2008 from the applicant to the respondent making reference to an extension of the occupancy agreement. In its written submissions the applicant stated the arrangement between the applicant and the respondent as evidenced in these documents is one in which the applicant, being the grantor has given the respondent a right to occupy a site. The right is given for value. It was a term of the agreement at clause 3.1 that the other party would provide their own residence in the form of a caravan or mobile home and in exchange for the Occupancy fiat receive access to the site in accordance with the agreement.
13.The applicant also referred to the decision of the Appeal Panel of ACAT in Commissioner for Social Housing in the ACT & Cotsell [2012] ACAT 25 (Cotsell).
The relevant law
Residential Tenancies Act 1997
14.The RT Act defines ‘mobile home’ to mean a dwelling (whether on wheels or not) that can be transferred from place to place and re-erected; and “mobile home park” to mean land lawfully used for the purpose of accommodating mobile homes or caravans, and including a caravan park or camping ground.
15.The RT Act provides at section 6F that any agreement relating to the occupation or rental of a caravan or mobile home in a mobile home park will not be a residential tenancy agreement.
16.The RT Act at section 71C provides that an agreement is an occupancy agreement if a person (the grantor) gives someone else (the occupant) a right to occupy stated premises; and the premises are for the occupant to use as a home and the right is given for value and the agreement is not a residential tenancy agreement.
17.‘Premises’ is defined in the RT Act as follows:
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.
18.The general approach is that the word ‘includes’ is used if it is intended to enlarge the ordinary meaning of the word. The legislature cannot be taken to have exhaustively defined premises in accordance with paragraphs (a), (b) and (c) of the definition of ‘premises’.
19.For the purposes of statutory interpretation, words are to be given their meaning by reading them in the context of the Act as a whole. The RT Act in ‘Part 5A – Occupancy Agreements’ refers to mobile homes in a mobile home park in relation to the occupancy principles found at section 71E. The legislation specifically refers to an occupant occupying a mobile home on land in a mobile home park where the mobile home is not provided by the grantor.
20.Section 71E relevantly provides:
Occupancy principles
(1) In considering a matter, or making a decision, under this Act in relation to an occupancy agreement for premises, a person must have regard to the following principles (the occupancy principles):
(a)an occupant is entitled to live in premises that are—
(i) reasonably clean; and
(ii) in a reasonable state of repair; and
(iii) reasonably secure;
(b) an occupant is entitled to know the rules of the premises before moving in;
(c) an occupant is entitled to the certainty of having the occupancy agreement in writing if the occupancy continues for longer than 6 weeks;
(d) an occupant is entitled to quiet enjoyment of the premises;
(e) a grantor is entitled to enter the premises at a reasonable time on reasonable grounds to carry out inspections or repairs and for other reasonable purposes;
(f) an occupant is entitled to 8 weeks notice before the grantor increases the amount to be paid for the right to occupy the premises;
(g) an occupant is entitled to know why and how the occupancy may be terminated, including how much notice will be given before eviction;
(h) an occupant must not be evicted without reasonable notice;
(i) a grantor and occupant should try to resolve disputes using reasonable dispute resolution processes.
(2) If an occupant occupies a mobile home on land in a mobile home park and the mobile home is not provided by the grantor—
(a)the occupancy principle in subsection (1) (e) applies to the land and any fixtures provided by the grantor, but not the mobile home; and
(b) the grantor is entitled to enter the mobile home only with reasonable notice, at reasonable times, on reasonable grounds and for reasonable purposes.
21.ACAT has considered the characteristics and definition of occupancy agreements in Cotsell at paragraph 20 and following. The Appeal Tribunal stated:
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 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.
…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 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 apartment all 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.
22.The Appeal Panel in Cotsell noted that the occupancy agreement between the parties contemplated two essential matters: that the territory would, for a fee, permit the occupant to use a block of land for occupation in a caravan or mobile home owned by the applicant; and the land and the caravan or mobile home would be occupied as a home. Cotsell also confirmed an application relating to an agreement for the occupation of a site at Narrabundah Long Stay Caravan Park.
23.I am satisfied that the word ‘premises’ is unambiguous and that its inclusive definition in the RT Act does not confine its meaning to a dwelling and land. The inclusive definition serves to enlarge the ordinary meaning of the word ‘premises’ – buildings or land or buildings and land. Within the context of the RT Act ‘premises’ are used as a home. Although it was not necessary, therefore, to have regard to extrinsic materials, the extrinsic materials (as set out below) support this conclusion.
24.Part 5A of the RT Act was inserted by amendment in 2004. The Explanatory Statement[1] notes that the Act is amended to apply to a wide range of agreements – principally agreements of a short term nature, including licences, boarder contracts and lodger contracts, extended over a wide range of premises presently excluded from the Act, including caravan parks and student accommodation.
[1] 2004 Legislative Assembly for the Australian Capital Territory: Residential Tenancies Amendment Bill 2004, Explanatory Statement at page 8
25.During the Legislative Assembly debates concerning the passage of the Residential Tenancies Amendment Bill 2004, there was considerable discussion of the benefits that would accrue to residents of caravan parks.
26.Specifically, there was discussion of an amendment to the Bill which introduced the occupancy principle now set out in section 71E (2) of the RT Act:
If an occupant occupies a mobile home on land in a mobile home park and the mobile home is not provided by the grantor—
(a) the occupancy principle in subsection (1) (e) applies to the land and any fixtures provided by the grantor, but not the mobile home; and
(b) the grantor is entitled to enter the mobile home only with reasonable notice, at reasonable times, on reasonable grounds and for reasonable purposes.
27.Mr Stefaniak, speaking to this amendment, stated[2]:
This amendment tries to rectify a problem for long-term residents in a caravan park who, in this instance, own their own van. This amendment ensures that, if they occupy a mobile home which they own on land in a caravan park, the occupancy principle applies to the land and any fixtures provided by the grantor, but not to the mobile home. It ensures that the grantor is entitled to enter the mobile home only with reasonable notice, only at reasonable times and only on reasonable grounds and for reasonable purposes.
We are probably all aware that this has not been done in the past and that the grantors, or people in that position, have entered privately owned mobile homes in circumstances that may not be reasonable. This amendment brings it much more into line with other tenancy-type arrangements. We think this is only fair, especially if the person owns their own home but happens to have it parked at a mobile home park
[2] ACT, Parliamentary Debates, Legislative Assembly, 17 August 2004, 3787-8 (Bill Stefaniak)
28.As stated in Cotsell there is 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 an occupancy agreement contained in section 71C. 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: ‘premises’ will include both the land and the mobile home, and the agreement will be an occupancy agreement.[3]
[3] Commissioner for Social Housing in the ACT & Cotsell [2012] ACAT 25 at [32] to [34]
29.I therefore find that the agreement between the Territory and Ms Arndt is an occupancy agreement.
………………………………..
Senior Member J Lennard
HEARING DETAILS
FILE NUMBER:
RT 720/2015
PARTIES, APPLICANT:
Commissioner for Social Housing
PARTIES, RESPONDENT:
Robin Arndt
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
Mr Christensen
TRIBUNAL MEMBERS:
Senior Member J Lennard
DATES OF HEARING:
25 February 2016
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