Commissioner for Social Housing v Poole
[2016] ACAT 5
•5 February 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR SOCIAL HOUSING v POOLE
(Residential Tenancies) [2016] ACAT 5
RT 14/902
Catchwords: RESIDENTIAL TENANCIES – termination and possession order – conditions – expiration of orders
Legislation cited: Residential Tenancies Act 1997 ss 42, 49
Cases cited:ACT Housing v Alex [2000] ACTRTT 1
Texts/Papers cited: Private Residential Tenancy Law report of the Community Law Reform Committee of the ACT
Tribunal: Senior Member J Lennard
Date of Orders: 5 February 2015
Date of Reasons for Decision: 28 January 2016
ACT CIVIL & )
ADMINISTRATIVE TRIBUNAL ) RT 14/ 902
Between: COMMISSIONER FOR SOCIAL HOUSING IN THE ACT
{Applicant/Lessor}
And: KATHY ANN POOLE
{Respondent/Tenant}
Tribunal : Ms J. Lennard, Senior Member
TAKE NOTICE that on Thursday 5th February 2015, the ACT Civil & Administrative Tribunal of the Australian Capital Territory, made the following ORDERS:
CONDITIONAL TERMINATION AND POSSESSION ORDER
The tenant is to pay to the lessor the sum of $4697.53 for arrears of rent, such payment to be made in instalments as follows:
| 1.01 | The sum of | $30.90 | by 5:00pm on Wednesday | 18/02/15 |
| 1.02 | The sum of | $30.90 | by 5:00pm on Wednesday | 04/03/15 |
| 1.03 | The sum of | $30.90 | by 5:00pm on Wednesday | 18/03/15 |
| 1.04 | The sum of | $30.90 | by 5:00pm on Wednesday | 01/04/15 |
| 1.05 | The sum of | $30.90 | by 5:00pm on Wednesday | 15/04/15 |
| 1.06 | The sum of | $30.90 | by 5:00pm on Wednesday | 29/04/15 |
| 1.07 | The sum of | $30.90 | by 5:00pm on Wednesday | 13/05/15 |
| 1.08 | The sum of | $30.90 | by 5:00pm on Wednesday | 27/05/15 |
| 1.09 | The sum of | $30.90 | by 5:00pm on Wednesday | 10/06/15 |
| 1.10 | The sum of | $30.90 | by 5:00pm on Wednesday | 24/06/15 |
| 1.11 | The sum of | $30.90 | by 5:00pm on Wednesday | 08/07/15 |
| 1.12 | The sum of | $30.90 | by 5:00pm on Wednesday | 22/07/15 |
| 1.13 | The sum of | $30.90 | by 5:00pm on Wednesday | 05/08/15 |
| 1.14 | The sum of | $30.90 | by 5:00pm on Wednesday | 19/08/15 |
| 1.15 | The sum of | $30.90 | by 5:00pm on Wednesday | 02/09/15 |
| 1.16 | The sum of | $30.90 | by 5:00pm on Wednesday | 16/09/15 |
| 1.17 | The sum of | $30.90 | by 5:00pm on Wednesday | 30/09/15 |
| 1.18 | The sum of | $30.90 | by 5:00pm on Wednesday | 14/10/15 |
| 1.19 | The sum of | $30.90 | by 5:00pm on Wednesday | 28/10/15 |
| 1.20 | The sum of | $30.90 | by 5:00pm on Wednesday | 11/11/15 |
| 1.21 | The sum of | $30.90 | by 5:00pm on Wednesday | 25/11/15 |
| 1.22 | The sum of | $30.90 | by 5:00pm on Wednesday | 09/12/15 |
| 1.23 | The sum of | $30.90 | by 5:00pm on Wednesday | 23/12/15 |
| 1.24 | The sum of | $30.90 | by 5:00pm on Wednesday | 06/01/16 |
| 1.25 | The sum of | $30.90 | by 5:00pm on Wednesday | 20/01/16 |
| 1.26 | The sum of | $30.90 | by 5:00pm on Wednesday | 03/02/16 |
| 1.27 | The sum of | $30.90 | by 5:00pm on Wednesday | 17/02/16 |
| 1.28 | The sum of | $30.90 | by 5:00pm on Wednesday | 02/03/16 |
| 1.29 | The sum of | $30.90 | by 5:00pm on Wednesday | 16/03/16 |
| 1.30 | The sum of | $30.90 | by 5:00pm on Wednesday | 30/03/16 |
| 1.31 | The sum of | $30.90 | by 5:00pm on Wednesday | 13/04/16 |
| 1.32 | The sum of | $30.90 | by 5:00pm on Wednesday | 27/04/16 |
| 1.33 | The sum of | $30.90 | by 5:00pm on Wednesday | 11/05/16 |
| 1.34 | The sum of | $30.90 | by 5:00pm on Wednesday | 25/05/16 |
| 1.35 | The sum of | $30.90 | by 5:00pm on Wednesday | 08/06/16 |
| 1.36 | The sum of | $30.90 | by 5:00pm on Wednesday | 22/06/16 |
| 1.37 | The sum of | $30.90 | by 5:00pm on Wednesday | 06/07/16 |
| 1.38 | The sum of | $30.90 | by 5:00pm on Wednesday | 20/07/16 |
| 1.39 | The sum of | $30.90 | by 5:00pm on Wednesday | 03/08/16 |
| 1.40 | The sum of | $30.90 | by 5:00pm on Wednesday | 17/08/16 |
| 1.41 | The sum of | $30.90 | by 5:00pm on Wednesday | 31/08/16 |
| 1.42 | The sum of | $30.90 | by 5:00pm on Wednesday | 14/09/16 |
| 1.43 | The sum of | $30.90 | by 5:00pm on Wednesday | 28/09/16 |
| 1.44 | The sum of | $30.90 | by 5:00pm on Wednesday | 12/10/16 |
| 1.45 | The sum of | $30.90 | by 5:00pm on Wednesday | 26/10/16 |
| 1.46 | The sum of | $30.90 | by 5:00pm on Wednesday | 09/11/16 |
| 1.47 | The sum of | $30.90 | by 5:00pm on Wednesday | 23/11/16 |
| 1.48 | The sum of | $30.90 | by 5:00pm on Wednesday | 07/12/16 |
| 1.49 | The sum of | $30.90 | by 5:00pm on Wednesday | 21/12/16 |
| 1.50 | The sum of | $30.90 | by 5:00pm on Wednesday | 04/01/17 |
| 1.51 | The sum of | $30.90 | by 5:00pm on Wednesday | 18/01/17 |
| 1.52 | The sum of | $30.90 | by 5:00pm on Wednesday | 01/02/17 |
| 1.53 | The sum of | $00.73 | By 5:pm on Wednesday | 15/02/17 |
The tenant is to pay future rent as it becomes payable under the tenancy agreement, less any rebate granted by the Commissioner for Social Housing, the next payment of rent being due on or before Wednesday 18th February 2015 and fortnightly thereafter.
If the tenant fails to make one of the payments required by paragraph 1:
3.1.the tenancy agreement shall terminate at 5:00 pm the following day;
3.2.upon termination of the tenancy agreement the lessor is entitled to possession of the premises; and
3.3.the instalments remaining under paragraph 1 are immediately due and payable.
If the tenant fails to make a payment of future rent as required by paragraph 2:
4.1.the tenancy agreement shall terminate at 5:00 pm the following day;
4.2.upon termination of the tenancy agreement the lessor is entitled to possession of the premises; and
4.3.The instalments remaining under paragraph 1 are immediately due and payable.
If the tenancy agreement is terminated by operation of paragraph 3 or paragraph 4 of this Order, the tenant must vacate the premises on or before the date of termination.
If the tenant fails to vacate the premises as required by paragraph 5 of this Order the lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.
This Order expires at 5:00 pm on Thursday 4th February 2016.
DATED 5th February 2015
By the Tribunal
Signed
Ms J. Lennard
Senior Member
ACT Civil & Administrative Tribunal
REASONS FOR DECISION
On 18 October 2013 the applicant as lessor, and the respondent as tenant, entered into a residential tenancy agreement in relation to the lessor’s property at Scullin ACT.
On 8 January 2014 a notice to remedy for rental arrears was served by the lessor on the tenant. The arrears at this time were $643.78.
The tenant failed to remedy the arrears and on 5 May 2014 a notice to vacate was served on the tenant. The vacation date was 19 May 2014. The arrears were $2383.13.
The tenant did not vacate in accordance with the notice and on 17 September 2014 the lessor made an application to the ACAT for a termination and possession order. Directions were made and the parties were required to make written submissions.
The hearing was conducted on 5 February 2015. The evidence before the Tribunal was that at the date of the hearing the arrears were $4697.53. The Tribunal received evidence that the tenant had fallen into difficulties with personal and health issues and that this had contributed to the arrears becoming so great. The tenant has four children under the age of seven, including two-year-old twins. The rent schedule before the Tribunal showed that the tenant had made seven regular payments of rent plus an amount of $30.90 in reduction of arrears in the period immediately before the hearing. The tenant was supported by both Belconnen Community Services and Uniting Care Australia and had received financial counselling. A budget had been developed which would assist to pay debts including the rental arrears.
The Tribunal was satisfied that there had been a failure by the tenant to pay the rent due and that a valid notice to terminate had been served, but that the tenant had continued in possession of the premises. The tenant was reasonably likely to pay arrears and future rent as it fell due, and gave an undertaking to the Tribunal to do so. The Tribunal exercised its discretion to make a conditional termination and possession order. The lessor did not oppose the order.
The order required the tenant to pay to the lessor the sum of $4697.53, by instalments of $30.90 per fortnight commencing 18 February 2015. The order provided that if the tenant failed to make one payment of rent arrears, the tenancy would terminate at 5pm on the following day. The lessor would be entitled to possession of the premises and all outstanding amounts remaining would become due and payable immediately.
These matters were uncontroversial. The one issue remaining to be determined by the Tribunal was the length of time for which the order should operate. The Tribunal notes that in some cases orders have been made to operate for the period of time necessary for the tenant to repay the entire amount of arrears owed to the lessor.
The legislative framework
Sections 42 and 49 of the Residential Tenancies Act 1997 (the RT Act) deal with the Tribunal’s power to make conditional termination and possession orders.
Section 49(4) applies if the tenant is, in the Tribunal’s opinion, reasonably likely to pay the rent that has become payable, as well as to pay future rent as it becomes payable, and the tenant agrees to pay the rent that has become payable and undertakes to pay future rent as it becomes payable. Pursuant to section 49(4) the Tribunal may, instead of making a termination and possession order, make a conditional termination and possession order. Such an order provides that if the tenant fails to pay the rent that has become payable, or future rent as it becomes payable, as required by the order then the tenancy terminates at a stated hour on the day after the day when any rent becomes payable and is not paid and the lessor becomes entitled to possession of the property and all rent payable is payable immediately.
Section 42 applies to conditional termination and possession orders and provides that such orders expire on the date stated by the ACAT in the order. The expiry day must not be more than one year after the day the order is made.[1] However, section 42(3) does not apply if the Tribunal believes on reasonable grounds that there are exceptional circumstances and it would be inappropriate to state an expiry date of no more than one year from the date of the order.
[1] Section 42(3) of the Residential Tenancies Act 1997
There is nothing in the RT Act which indicates that it was the intention of the legislature that ACAT should make orders which extend to cover the period of time necessary to repay the entire amount of arrears. Indeed, the legislative history of the provision indicates otherwise. The recommendation of the Private Residential Tenancy Law report of the Community Law Reform Committee of the ACT was that the tribunal should be able to make specific orders, both for the scheduled payment of rent arrears over a specified period and for the continued payment of ongoing rent. The report recommended that the time which was allowed for rental arrears to be repaid should be at the discretion of the tribunal.[2] As first enacted, section 49 of the RT Act did not specify a fixed period for payment.
[2] Paragraph 855
Most conditional orders made did not specify an expiry date. The orders continued in force for the remainder of the tenancy. Unless the tenant made an application to the tribunal to have the order revoked, they remained at risk of the tenancy being terminated because of a missed or late payment of rent. This situation was confirmed by the tribunal in ACT Housing v Alex.[3]
[3] [2000] ACTRTT 1
In 2005 the ACT Legislative Assembly amended the legislation with the effect that section 42 now provides that conditional termination and possession orders, expire on the date specified in the order which, in the absence of exceptional circumstances, shall be no longer than one year after the order is made. The submissions of the respondent tenant canvas the legislative debates in relation to that amendment, and may be summarised as follows.
The then Chief Minister and Attorney-General asserted that...
At present, the orders asked for an indefinite time. A tenant can make up the deficiency only to find himself or herself liable for eviction many years later if they are running late on one rental payment. The government amendment simply provides that, as a general rule, conditional orders expire after 12 months. That does not mean that any deficiency has to be made up in that time. It simply means that the automatic exposure to eviction is removed after 12 months. A person who during a period of 12 months has established a pattern of making up a deficiency is unlikely to breach the continuing civil requirement to repay the debt.
The current form of conditional termination and possession orders includes an order to repay the debt arising from accrued rental arrears and provides that if there is a default in the payment of arrears the balance remaining becomes due and payable immediately. The lessor has a range of remedies available, including but not limited to, proceedings in the Magistrates Court to enforce the judgement debt. The lessor is not disadvantaged if the order expires no more than one year from the date of the order. The lessor can serve further notices to remedy and to vacate and may collect the debt through civil processes, should the tenant miss a payment of rent as it falls due, or a payment of the rental arrears debt.
The total amount of arrears which have accrued may be a factor to be taken into account by the tribunal in deciding whether exceptional circumstances exist to make a longer order; but it is only one factor. A considerable rental arrears debt is not of itself exceptional. Indeed, in social housing matters, accrued arrears are often in excess of $3000.
The lessor provided no information about other factors which ought to be taken into account by the tribunal to determine whether exceptional circumstances exist. Therefore, the tribunal ordered that the conditional termination and possession order would expire at 5pm on Thursday 4 February 2016, one year after the order was made.
………………………………..
Senior Member J Lennard
HEARING DETAILS
FILE NUMBER: | RT 15/92 |
PARTIES, APPLICANT: | Commissioner for Social Housing |
PARTIES, RESPONDENT: | Kathy Ann Poole |
REPRESENTATIVE APPEARING, APPLICANT | Mr Butler |
SOLICITOR APPEARING, RESPONDENT | Ms Aidman |
TRIBUNAL MEMBERS: | Ms J Lennard – Senior Member |
DATES OF HEARING: | 5 February 2015 |
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