Commissioner for Social Housing v the Estate of the Late Joy Hill and Anor (Residential Tenancies)

The Commissioner for Social Housing filed an application to terminate a residential tenancy agreement at 37 Sanderson Close, Flynn ACT following the death of the tenant, Ms Joy Hill, on 14 February 2017. The application was opposed by Mr John Humpherston, Ms Hill's son, who had resided in the property for many years, but was not a tenant. The matter raised a question as to how to terminate a lease in a situation where there is no executor, no letters of administration, and no intention by the Public Trustee and Guardian (PTG) to become involved in the proceedings.

The legal issues the court was required to decide were whether the requirements for a termination of tenancy for unpaid rent pursuant to section 49 of the Residential Tenancies Act 1997 (RT Act) were made out, and if so, whether the tribunal should exercise its discretion to make a termination and possession order.

The court found that, in the absence of an executor or administrator, the estate of the deceased tenant remained vested in the PTG. Although the PTG had been notified of the proceedings and had elected not to be heard, the Commissioner still needed to establish that the requirements of section 49 of the RT Act had been met. The court accepted that the notices to remedy and to vacate were not served on the PTG, but waived the defects in the service of the notice to vacate pursuant to section 59 of the RT Act, as there was no disadvantage to the tenant in doing so. The court found that the requirements of section 49 of the RT Act were met, as the estate had not vacated the premises. The court exercised its power to terminate the residential tenancy agreement pursuant to section 49 of the RT Act, and ordered that the Estate pay any outstanding arrears owing to the applicant.

Final orders:
1. Mr John Humpherston is joined as a third party to the proceedings.
2. Defects in the Notice to Vacate as to address for service are waived as the Tribunal is satisfied there was no prejudice to the respondent.
3. The residential tenancy agreement is terminated at 5:00 pm on Wednesday 15 November 2017.
4. The tenant must vacate the premises on or before 5:00 pm on Wednesday 15 November 2017.
5. This termination and possession order has effect as a warrant for eviction.
6. All Officers of the Australian Federal Police are hereby authorised to take appropriate action to evict the tenant/s 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.
7. The tenant is to pay to the lessor the sum of $9,224.94 being arrears of rent and rent payable to the date of termination of the residential tenancy agreement.
8. The tenant is to provide the Tribunal with his address for service of future notices and orders in these proceedings by 24 November 2017.
9. These orders are to be served on the tenant at Public Trustee and Guardian, PO Box 221 Civic Square ACT 2608 and by email to [email address].
10. Reasons will be published.