Commissioner for Social Housing v Estate of the Late Moira Burgess & Anor (Residential Tenancies)
[2022] ACAT 82
•10 October 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR SOCIAL HOUSING V ESTATE OF THE LATE MOIRA BURGESS & ANOR (Residential Tenancies) [2022] ACAT 82
RT 674/2022
Catchwords: RESIDENTIAL TENANCIES – termination and possession orders – death of tenant – intestate – rent arrears – notice to vacate served on Public Trustee and Guardian – estate vests in Public Trustee and Guardian – no election to administer estate – tenant’s son occupying premises – no legal right to occupy – whether tribunal can transfer or recognise any rights in the estate
Legislation cited: Administration and Probate Act 1929 s 38A
Human Rights Act 2004 ss 11, 12
Residential Tenancies Act 1997 s 49
Cases cited:Abu-Arab v NSW Trustee & Guardian [2014] NSWSC 954
Burgess v Commissioner for Social Housing & Anor [2022] ACAT 81
Commissioner for Social Housing v The Estate of the Late Joy Hill & Anor [2018] ACAT 73
Tribunal:Senior Member K Katavic
Date of Orders: 10 October 2022
Date of Reasons for Decision: 11 October 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 674/2022
BETWEEN:
COMMISSIONER FOR SOCIAL HOUSING
Applicant
AND:
ESTATE OF THE LATE MOIRA BURGESS
Respondent
JASON BURGESS
Party Joined
TRIBUNAL:Senior Member K Katavic
DATE:10 October 2022
ORDER
The Tribunal orders that:
The residential tenancy agreement is terminated at 5.00pm on 10 October 2022.
The tenant must vacate the premises on or before 5.00pm on 10 October 2022.
If the tenant fails to vacate the premises as required by paragraph 2 of the Order the lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.
The tenant is to pay to the lessor the sum of $3,205.09 being arrears of rent and rent payable to the date of termination of the residential tenancy agreement.
………………………………..
Senior Member K Katavic
REASONS FOR DECISION
Introduction
The Tribunal has before it an application for termination and possession orders under section 49 of the Residential Tenancies Act 1997 (the RTA). The applicant is the Commissioner for Social Housing who is the lessor of a property in Spence, in the ACT (the Premises). The respondent is the estate of the late Moira Burgess. The party joined is Mr Jason Burgess, her son. Mr Burgess was joined to these proceedings as an interested party.
On 10 October 2022, the Tribunal heard this application and after hearing from the parties I made orders terminating the tenancy and granting vacant possession to the applicant. I gave oral reasons. Those oral reasons are set out below with some minor editing.
Also, on 10 October 2022, in Burgess v Commissioner for Social Housing & Anor[1] (Burgess) I dismissed an application by Mr Burgess seeking an order restraining the lessor from dealing with the Premises and a declaration that he is a tenant in relation to the Premises. I published my reasons in that matter.[2]
[1] [2022] ACAT 81
[2] Burgess v Commissioner for Social Housing & Anor [2022] ACAT 81
I have taken into account my findings on the evidence before me in Burgess without objection from the applicant or Mr Burgess.
Facts
On 28 May 2014, Ms Burgess and Mrs Mary Bell entered into a tenancy agreement with the applicant for the Premises.[3] From 28 May 2015, Ms Burgess was the sole tenant.[4]
[3] Annexure A to the Application
[4] Annexure A to the Application
On 13 March 2022, Ms Burgess passed away. She did not have a will. Mr Burgess is her sole surviving child. He began residing in the Premises from late February 2022. He did not live there before that.
On 1 August 2022, the applicant served a Notice to Remedy (NTR) on the respondent for rent arrears.[5] The NTR required the respondent to pay, within 7 days of service, outstanding rent of $914.09 and $217 being two weeks rent in advance. The NTR was served on the respondent by way of email to the Public Trustee and Guardian (PTG).[6]
[5] Annexure B to the Application
[6] Annexure B to the Application
On 3 August 2022, the PTG sent an email to the applicant stating:
I acknowledge receipt of your email and the attached Notice to Remedy.
The Public Trustee and Guardian (PTG) does not have a record of a will for the late Moira Burgess and is not aware of any person administering her estate.
If no one is administering the estate, under s38A, it is appropriate for you to serve the notice on PTG as contemplated by s38A Administration and Probate Act.
The section however does not impose any positive obligation on the PTG in relation to the estate unless PTG elects to administer the estate.
PTG does not elect to administer the estate of the late Moira Burgess.[7]
[7] Annexure C to the Application
On 18 August 2022, the applicant served a Notice to Vacate (NTV) on the respondent requiring the respondent to vacate the property by 9 September 2022 on grounds the respondent had failed to remedy the rent arrears.[8] As at 13 August 2022, $1,131.90 rent was owing.[9] The NTV was served on the respondent by email to the PTG and by sending it through prepaid post to the PTG.[10]
[8] Annexure D to the Application
[9] Annexure D to the Application
[10] Annexure D to the Application
The respondent has not vacated the Premises and rent has not been paid.
Mr Burgess applied to the applicant for Housing Assistance which has been denied.
The requirements of section 49
The Tribunal must consider whether the requirements of section 49(1) of the RTA have been met to enliven the Tribunal’s discretion to make a termination and possession order. Even if the Tribunal is so satisfied, section 49(3) still confers a discretion in relation to whether or not to make a termination and possession order. For the purposes of section 49(1), I am satisfied those requirements are met.
The respondent has failed to pay rent payable under the tenancy agreement and remains unpaid. As at the date of hearing, the amount owing is $3,205.09.
In relation to the required notices, the applicant has served a NTR and a NTV on the respondent by sending those notices to the PTG. The PTG did not attend the hearing. In Burgess I found as follows:
32.On the facts before me, Mr Burgess has not been appointed administrator of his mother’s estate nor have letters of administration been granted such that her estate may be distributed or transferred. Her real and personal estate vests in the PTG. The PTG has not elected to administer her estate. Of course, section 38A of the Probate Act applies only until another representative is appointed, however that has not occurred in this case. I accept Mr Burgess has taken some steps for that purpose, but I cannot accept that those steps are substantial or well-advanced. Mr Burgess does not represent the estate.
33.I must conclude that by reason of section 38A of the Probate Act, Mrs Burgess’s estate, including her rights under the tenancy agreement, has vested in the PTG and the PTG being duly notified of these proceedings has not elected to administer the estate or join the estate to these proceedings. In circumstances where the estate has vested in the PTG and the PTG has not elected to administer the estate, as the tribunal said in Commissioner for Social Housing v The Estate of the Late Joy Hill & Anor “in effect, the tenant may be taken to have submitted to any orders the Tribunal may make in the matter.[11]
[11] Burgess v Commissioner for Social Housing & Anor [2022] ACAT 81 at [32] and [33]
In relation to the application before me, I am satisfied the relevant notices have been correctly served on the PTG as the estate has vested in the PTG and I am satisfied the PTG has not elected to administer the estate. The respondent may be taken to submit to any orders the Tribunal may make in this matter.[12]
[12] Commissioner for Social Housing v The Estate of the Late Joy Hill & Anor [2018] ACAT 73 at [32]
The respondent has not vacated the Premises.
Should the tenancy agreement be terminated?
The Tribunal may or may not terminate a tenancy agreement and grant vacant possession even if the requirements of section 49 are met. Having regard to the facts and circumstances before me, I am not persuaded there is a basis for refusing the application. I am satisfied orders terminating the tenancy and granting vacant possession are appropriate.
The applicant submits that in all of the circumstances the orders should be made, particularly because Mr Burgess has no recognisable interest entitling him to reside in the Premises.
The applicant submits the Premises are modified and those modifications would enable the applicant to offer the Premises to people on the applicant’s waiting list for social housing. The Tribunal does not have evidence as to the nature of the modifications before it. I am not persuaded this is a compelling reason.
The applicant further submits that on the information provided in his application for Housing Assistance, Mr Burgess appears to be paying rent elsewhere and receiving rental payments as income. The inference I was invited to draw was that Mr Burgess has alternative accommodation available to him. I do not have any evidence from Mr Burgess about the payments referred to by the applicant. I only have an account of the information given to the applicant by Mr Burgess in applying for housing assistance.
In addition, the applicant submits a housing manager has driven past the property and advised that it does not appear to be occupied and mail is overflowing. There is little weight that can be given to this submission in the absence of any evidence.
On behalf of Mr Burgess, it was submitted that he has an income and is employed but could not afford private rent. His application for Housing Assistance was denied due to failing to provide further information not because his circumstances had been assessed. I accept that is the case.
Ms Meikle submitted that because Mr Burgess shares custody of his 12 year old son, the effect of terminating the tenancy and granting vacant possession could have consequences for custody arrangements and family court orders if he cannot provide accommodation. She further submitted that the Tribunal was required to take into account sections 11 and 12(a) of the Human Rights Act 2004 (HRA) due to the destructive interference the orders would have on the family group and the home.
On the material before me, I cannot comfortably find Mr Burgess does not have access to alternative accommodation or that his custody arrangements would be affected. There may be some impact or necessary change which may or may not be permanent. It is disruptive, but it cannot be put any higher than that. In relation to the application of the HRA and any interference with the rights under sections 11(1) and (2) and 12(a), Mr Burgess’s son also resides elsewhere when not with Mr Burgess. That is unaffected by the termination of this tenancy. I must also take into account the circumstances in which Mr Burgess came to live in the Premises and whether he has a right to reside in this particular Premises. I cannot accept that he does. I am not satisfied any issue under the HRA arises in these circumstances.
Ms Meikle also informed the Tribunal that although she did not have specific instructions, she understood nothing had changed since the matter was last before the Tribunal in relation to the administration of the estate.
The circumstances before me are not dissimilar to those considered by the tribunal in Commissioner for Social Housing v The Estate of the Late Joy Hill & Anor (Hill).[13] However, unlike Mr Humpherston in Hill, these Premises are not Mr Burgess’s childhood home and he has not been there long. Mr Burgess’s circumstances do not give rise to any right to reside in the property. This is the primary basis upon which I am satisfied the discretion in section 49(3) of the RTA is exercisable in favour of the applicant.
[13] [2018] ACAT 73
In the time that has elapsed between Ms Burgess’s death and the hearing Mr Burgess has taken some, but not substantial steps, to seek administration of the estate, or otherwise sought to give legal effect to any property right that may relate to the Premises.
There is no evidence before me that the estate is able to pay the rental arrears or make future payments of rent. There is no evidence that the PTG is minded to take any action on behalf of the estate and has expressly declined to do so. Following the authorities referred to by the tribunal in Hill, it is clear that the PTG is not obliged to pay the rent or take any action in relation to the lease at all.[14]
[14] Abu-Arab v NSW Trustee & Guardian [2014] NSWSC 954
Mr Burgess has not established any legal right to continue to occupy the premises. He has argued he is a tenant and I have already found against him on that issue. I am not satisfied the Tribunal has the capacity to declare he is a tenant by virtue of any beneficial interest that he may have in the estate, particularly where he does not represent the estate, any beneficial interest has not been recognised and the interest is currently vested in the PTG, who has disavowed any interest.[15] I agree with the tribunal in Hill that “there is no capacity for the Tribunal to make an order transferring the estate’s rights in the tenancy to him.”[16] I am not satisfied there is an implied tenancy between the applicant and Mr Burgess.[17]
[15] Burgess v Commissioner for Social Housing & Anor [2022] ACAT 81 at [43]
[16] Commissioner for Social Housing v The Estate of the Late Joy Hill & Anor [2018] ACAT 73 at [45]
[17] Burgess v Commissioner for Social Housing & Anor [2022] ACAT 81 at [46] – [52]
The arrangements cannot be left as they are. To do so, as the tribunal said in Hill “would be contrary to public policy and common sense.”[18]
Orders
[18] Commissioner for Social Housing v The Estate of the Late Joy Hill & Anor [2018] ACAT 73 at [46]
The residential tenancy agreement is terminated at 5.00pm on 10 October 2022.
The tenant must vacate the premises on or before 5.00pm on 10 October 2022.
If the tenant fails to vacate the premises as required by paragraph 2 of the Order the lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.
The tenant is to pay to the lessor the sum of $3,205.09 being arrears of rent and rent payable to the date of termination of the residential tenancy agreement.
………………………………..
Senior Member K Katavic
| Date(s) of hearing: | 10 October 2022 |
| Representative for the Applicant: | N Lee, Tribunal Advocate |
| Respondent: | No appearance |
| Solicitor for the Party Joined: | G Meikle, Canberra Community Law |
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