COMMISSIONER FOR SOCIAL HOUSING v ZHANG & GUO (Residential Tenancies) - [2016] ACAT 65

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v ZHANG & GUO (Residential Tenancies) [2016] ACAT 65

RT 1137/2015
Catchwords: RESIDENTIAL TENANCIES - joint tenancy- termination of joint tenancy by one tenant

Legislation cited: Residential Tenancies Act 1997 s 36

Cases cited:              Baird v Campbell, Worthington, Hall & Basham [2005]       ACTRTT 8
  Estate of Tanya Humphries v Commissioner for Housing 2003        ACTSC 40
  Zhang & Anor v Commissioner for Social Housing in the ACT   [2015] ACAT46

Tribunal: Senior Member A Anforth

Date of Orders:  28 June 2016
Date of Reasons for Decision:         28 June 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 1137/2015
BETWEEN:
COMMISSIONER FOR SOCIAL HOUSING
Applicant

AND:
DONG QUAN ZHANG & YU HUA GUO
Respondent

TRIBUNAL: Senior Member A Anforth

DATE:28 June 2016
ORDER

The Tribunal Orders that:

The Commissioner’s application for possession is dismissed.

………………………………..
Senior Member A Anforth

REASONS FOR DECISION

Summary

The tenants are an elderly couple (Mr Zhang and Ms Guo, both over 70 years) who migrated from China a decade ago to join their two adult children, both of whom live in Canberra. Neither tenant speaks English and both are suffering a range of age related medical conditions. The tenants have a small Chinese pension but are not eligible for Centrelink. They have been financially supported by the children and other family members, including for their rent. The scheme under which the tenants migrated to Australia entails what is known as ‘an assurance of support’ by the adult son under which he undertook to financially support the parents for the period of the assurance, which expires in March 2017. Both children are well educated, English-speaking public servants.
In 2010 the Commissioner for Housing allocated the tenants a small unit on the Commissioner’s standard tenancy terms. The rent level was assessed on the counter factual premise that the tenants were receiving Centrelink. Their Chinese pension is considerably less than the deemed Centrelink amount.
In the second half of 2015 the husband, Mr Zhang, had developed a snoring problem which was disturbing the sleep of his wife. She had a heart and other conditions. He sought medical intervention for the snoring. The husband moved out of the small unit to live at the back of his son’s place whilst he dealt with the snoring. There was no suggestion of any form of marital breakdown. At all times the move was said to have been motivated by the snoring issue.
In September 2015, with the aid of her son, the wife informed the Commissioner of the husband’s move on the expectation that this would result in a reduction of the deemed Centrelink amount upon which the rent was calculated. The Commissioner took a statement from the wife in which she said that her husband had moved out and that he had taken his things with him. There was never any specificity about the duration of the move or what the ‘things’ he had taken with him were. The Commissioner took the view that the husband’s move was permanent and therefore constituted a termination of the couple’s joint tenancy.
The Commissioner then determined that because of the assurance of support that will still exist until March 2017, the Commissioner would not enter a new single tenancy with the wife. On this premise the wife is now without any right to remain in the unit and hence the Commissioner’s present application for possession.
The Commissioner said that there had always been a policy that government housing should not be allocated to migrants on assurances of support. The accommodation costs for such migrants is the responsibility of the family that gave the assurance. The Commissioner said that the policy was not actively implemented in 2010 and hence why the present tenants were allocated the unit. However at some point in the period from 2010 to September 2015 the Commissioner had a change of attitude over the policy and determined that it should be implemented, including in the case of the wife.
The Tribunal had no issues with the Commissioner’s understanding of the law. For the purposes of the law the issue is whether the husband’s move was permanent or temporary. If permanent, then the joint tenancy terminated in the manner put by the Commissioner and the Tribunal has no power to order the Commissioner to sign a new single tenancy agreement with the wife. If the move was temporary then the joint tenancy has not been terminated and the reinvigoration of the policy provides no basis at law (including under section 36 of the Residential Tenancies Act 1997 (RTA)) to terminate the joint tenancy.
The proceedings were protracted for the reasons set out below. The tenants did not assert that the move was only temporary until well into the proceedings and only after the Tribunal had explained the relevance of the point. The husband and wife then both orally asserted that the move was only intended to be temporary whilst the snoring issue was addressed. The evidence in corroboration of the temporary nature of the move was led only at the end of the proceedings in the form of a sworn statement from both adult children which are unequivocal on the point. The Commissioner declined the Tribunal’s offer of the opportunity to cross examine these deponents.
Throughout the hearing the evidence either way on the duration of the husband’s move was equivocal but given the evidential onus on the tenants to prove the fact they asserted, the balance was probably in the Commissioner’s favour. The later uncontested sworn testimony of the adult children may be subject to some scepticism but is entitled to some weight. In a matter where the evidence on the critical point is fairly evenly balanced, the presence of this later, specific and uncontested evidence was decisive.
The respondents are tenants of the Commissioner. The tenancy commenced on 15 July 2010 as co-tenants on the Commissioner’s standards terms that included rebated rent.
On 14 September 2015 the husband, Mr Zhang swore a statutory declaration before a Chemist in Belconnen which stated:
I will move out from [Property Address] on 14 September 2015.
On 30 September 2015 the wife Ms Guo notified the Commissioner in writing that:
This is to confirm that Dong Quan Zhang moved out of [Property Address] on 14 September 2015.
On the 2 December 2015 the Commissioner lodged an application with the tribunal seeking an order for termination of the tenancy. The application referred to substantial rent arrears of $6315.70 as at 13 September 2015 and advised that the husband, Mr Zhang, had vacated the premises of 14 September 2015. A copy of the above documents were annexed.
The Commissioner sought possession on the basis of section 36(i) RT Act which provides:
Despite anything to the contrary in any territory law, a residential tenancy agreement must not terminate or be terminated other than in the following circumstances:
….
(i) if—
(i) a party to the agreement repudiates the agreement; and
(ii) the other party accepts the repudiation; and
(iii) the tenant vacates the premises;
...
Termination was not sought on the basis of rent arrears and no rent default notices were served on the tenants concerning rent arrears.
The matter was listed before the Tribunal on 7 January 2016. Mr Phillipson appeared for the Commissioner and Mr Zhang appeared in person with an interpreter. Ms Guo was not present. Canberra Community Law had advised the Tribunal by email of 5 January 2016 that Ms Guo was unable to attend for medical reasons and had negotiated an adjournment with the Commissioner. Canberra Community Law indicated that they would not be appearing for the tenants.
The Commissioner tendered an agreement dated 11 September 2015 with the tenants to pay the rent arrears by instalments and a rent ledger.
Mr Phillipson explained to the Tribunal that from the start of the tenancy the tenants were sponsored migrants under an ‘assurance of support’ from the son and as such should not have been granted a government tenancy. The costs of their accommodation was always a matter for their children. He indicated that a policy to this effect had existed in 2010 but that the policy had not been implemented when the tenancy commenced. Since that time the Commissioner has determined that the policy should be applied. In this sense the rules relating to the present tenancy have changed since its commencement in 2010.
Mr Phillipson submitted that the tenancy was a periodic co-tenancy and when Mr Zhang voluntarily and permanently vacated the premises on 14 September 2015 the co-tenancy was automatically brought to an end under section 36(i) of the RTA. Ms Guo was then only entitled to remain as a single tenant of the Commissioner if the Commissioner chose to enter a new tenancy agreement with her. The Commissioner decided not to do so because of the policy.
The matter was adjourned to a date to be fixed by the Registrar.
The matter was relisted for 12 February 2016. Mr Phillipson appeared for the Commissioner and the tenants appeared in person assisted by their daughter, Ms Jin Zhang. Mr Phillipson tendered:
(a)A copy of the decision in Zhang v Commissioner for Housing [2015] ACAT 46 by a differently constituted Tribunal.
(b)A copy of Baird v Campbell & Ors [2005] ACTRTT 8.
(c)A copy of the Policy HBC-14/285 ‘Management of Sponsored Migrants Applications for Housing Assistance’.
The decision in Zhang v Commissioner for Housing dealt with the amount of rent the tenants were required to pay in their circumstances. They were not eligible for Centrelink and had only a small Chinese pension. The Commissioner deemed them to be earning the minimum Centrelink income for a couple and calculated rent accordingly. The findings in the above case are not directly in point for the present matter but the decision helpfully set out the history and circumstances of the tenants at length to which the present Tribunal has had regard. It explains why Ms Guo thought her husband’s absence may make a difference to the rent payable.
The decision in Baird v Campbell & Ors [2005] ACTRTT 8 was a decision of the presently constituted Tribunal and addressed the issue of the termination of co-tenancies. Mr Phillipson drew attention to the following passages:
21.             A residential tenancies agreement is a species of lease at common law (Estate of Tanya Humphries –v- Commissioner for Housing 2003 ACTSC 40; Progressive Mailing House Ltd –v- Tabale [1985] HCA 14; 1985 157 CLR 17; Residential Tenancies Law and Practice in NSW Anforth, Thawley and Christensen at [2.3.0]) and shares the dual characteristic of all such leases, namely:
(a) that as between the landlord and the tenant it is fundamentally a contract, regulated by the common law of contract as modified by any relevant statutory enactments viz the Residential Tenancies Act 1997 (Progressive Mailing House case; Northern Sandblasting P/L –v- Harris [1997] 146 ALR 495; Bruton –v- London Housing Trust [1999] UKHL 26; [1999] 3 AER 481
(b) that as against the rest of the world is an estate in land.
22.             For present purposes the Tribunal is concerned only with the contractual relationship between the landlord and tenant.
23. For a lease to be valid a number of fundamental conditions specified in the lease with certainty e.g. the identity of the contracting parties, the premises in question, the period of the lease, the rent being charged, the use to which the premises may be put, liability for outgoing associated with the premises and the manner in which it may be terminated (See Sackville and Neaves Property Law 7th Ed at [8.20] as to the identity of the parties; see Sackville and Neaves at [8.50] for the terms of the lease and mode of termination of the lease; see Cheshire and Fifoot, Law of Contract 7th Ed at [6.1]-[6.3] for the need for certainty in contracts generally). In the case of residential tenancies agreements some of these fundamental terms are defined in the Residential Tenancies Act 1997 and are included in the residential tenancies agreement via the mandatory prescribed terms in the schedule to the Act and are thus not left to the parties to agree upon.
24. In the case of leases involving multiple tenants, the common law recognises two possibilities, namely that the tenants contract with the landlord as joint tenants or as tenants in common. Prescribed term 100 of the Residential Tenancies Act 1997 provides that such tenants in the ACT take the tenancy as joint tenants.
25.             The joint tenants are bound contractually to the landlord in the terms of the lease. In addition, there exists a second contract between the joint tenants themselves regulating their internal rights arising from the lease. This second lease may be the subject of explicit agreement between the joint tenants but is otherwise implied by the common law (Hammersmith and Fulham London Borough Council –v- Monk [1991] UKHL 6; [1992] 1 AER 1; ACT Housing –v-Midgley [2001] ACTRTT 7; Residential Tenancies Law and Practice in NSW [2.57.3]). It is a term of the contract between joint tenants implied by law that the consent of all joint tenants is required to end a lease in the fixed term, but that any one joint tenant can terminate the lease on behalf of all joint tenants at the end of a fixed term or during a period lease. In short, the contract between joint tenants is to the effect that they are bound together for the fixed term, but that none gives any commitment to remain so bound after the expiration of the fixed term.
26.             Because the identity of the tenants is a fundamental term of a lease, a change in the composition of joint tenants to a lease has implications for the ongoing existence of the lease. A change in the composition of joint tenants may occur in one of the following manners:
(a) where the landlord and each of the existing and prospective tenants agree to an assignment of the lease from the existing composition of joint tenants to the proposed composition of joint tenants (an assignment). An assignment involves the new tenants taking over the existing lease on its terms, in the place of the previous tenants. An assignment does not involve a new lease being granted to the incoming tenants, and is therefore not relevant to the issue of the granting of a new fixed term lease.
(b) in theory the existing composition of joint tenants could sub-let to the proposed composition of joint tenants, although this raises the serious issue on the part of those joint tenants who are common to both groups, of their right to contract with themselves. When this occurs the sub-tenancy is said to merge with the head tenancy and the sub-tenancy becoming the one tenancy pursuant to section 36(g). This option is probably not available at law.
(c) where the landlord and all of the tenants agree to terminate the fixed term lease (a surrender at common law) whether they then enter a new lease or not.
27.             At common law it is not possible to have two independent leases both conferring an immediately right to possession in respect of the same premises. The obvious reason for this is that neither set of tenants will then have the exclusive right of possession which is the defining characteristic of a lease as an estate in land (Radaich –v- Smith [1959] HCA 45; 1959 101 CLR 209) and which is granted by the landlord to the tenant under the lease. A tenant under a residential tenancies agreement is entitled to the exclusive right of occupancy of the premise (prescribed term 53). Thus a landlord cannot grant a new lease to take effect in possession over premise whilst there is still in existence a valid lease over the premises, whether the existing lease is in the fixed term or periodic phase of the lease. In order to grant the new lease to take effect in possession the landlord must first secure the lawful termination of the existing lease whether that lease is in the fixed term or periodic phase of the lease. This problem applies in the case of single tenants and joint tenants, it makes no difference. A landlord can execute a second lease of the landlord’s reversionary interest to a second tenant who thereby acquires no immediate right to possession but rather becomes the landlord or first tenant (Sackville and Neaves [8.39]). This is not relevant for present purposes.
28.             Thus in order to grant a new fixed term lease over premises to a composition of joint tenants it is necessary for there to be a lawful termination of either the original lease, whether in its original fixed term or periodic phase. This will probably be the case whether the new fixed term lease is to be granted to the same composition of joint tenants or to a new composition of fixed term tenants. The rationale is the same, the new lease is not merely an extension of the earlier lease and there cannot be two leases over the same property running concurrently.
29.             There could be some doubt about the above proposition in the case of a new fixed term lease to the same composition of joint tenants in that it may be argued that the new fixed term lease constitutes an agreed variation to the existing lease whose fixed term has, or is about to, expire. The weakness in this argument is that the term of the lease is itself a fundamental term of the lease differentiating one lease from another. Secondly, the new fixed term lease does not purport to be an extension of the older fixed term which is already expired or about to expire. The landlord is not obliged to grant any new fixed term lease and can grant or withhold agreement on whatever lawful terms he/she wishes, including for example rent increases. At common law the exercise of a contractual option by a tenant to take a new fixed term lease constitutes a new lease and not a mere continuation of the previous lease for the above reasons. In the case of a landlord negotiating with tenants to grant a new fixed term lease for which the tenant has no contractual right of option, it would be incongruous to treat the new fixed term lease in a more favourable light than that which the common law attached to the exercise of a contractual option. Accordingly the Tribunal is of the view that the granting of a new fixed term lease constitutes a new residential tenancies agreement.
30.             However, even if the Tribunal is wrong in the view it takes immediately above, there is no doubt that the granting of a new fixed term lease to a new composition of joint tenants requires the termination of the previous joint tenancy of the differently constituted joint tenants.
31. A lease can be entered for a fixed term or may be a periodic lease without any fixed term, from its beginning. When the fixed term of a lease expires the lease does not automatically come to an end. It simply continues as a periodic lease until the lease is terminated in a manner permitted by law. Section 36 of the Residential Tenancies Act 1997 defines the only modes of lawful termination of a residential tenancies agreement in the ACT. It reads:
36. Notwithstanding anything to the contrary in any law of the Territory, a residential tenancy agreement shall not terminate or be terminated other than in the following circumstances:
(a) where a fixed term agreement expires and the tenant vacates the premises on or after the expiration;
(b) if a tenant notifies the lessor in the form approved under section 133 (Approved forms—Minister) for a termination notice, and vacates the premises in accordance with the notice;
(c) where the tribunal terminates an agreement under division 4.3 or 4.4;
(d) where the tribunal makes a termination and possession order in relation to the premises that are the subject of the agreement under division 4.4 or 4.5;
(e) where the tenant abandons the premises that are the subject of the agreement;
(f) where a person takes action in accordance with section 64;
(g) where the tenant and lessor agree in writing to terminate the agreement and the tenant vacates the premises in accordance with the agreement to terminate;
(h) where the tenant and the lessor are the same person;
(j) where—
(i) a party to the agreement repudiates the agreement; and
(ii) the other party accepts the repudiation; and
(iii) the tenant vacates the premises.
32.             At the end of a fixed term lease the tenants may determine not to continue into a periodic lease and any tenant may give the landlord the notice required under prescribed term 88 to terminate the lease.
33.             During the fixed term of a lease the landlord cannot evict the tenant except by order of the Tribunal for some breach on the part of the tenants justifying the termination of the lease, or in certain limited circumstances permitted under section 36. Neither can the tenant abandon the premises during the fixed term without incurring an obligation to continue paying rent until a new tenant is found (section 61-62). There is an essential security of tenure operating in both directions during the fixed term.
34.             If during a fixed term or at the end of fixed term, the parties to a lease agree to enter a new fixed term lease, then both parties obtain a new and extended period of security of tenure. It is a new lease for a new fixed term.
35. The above outline of the law is relevant to the present case insofar as there has been three successive fixed term tenancies, commencing on 17 November 2001 and each anniversary thereafter. The composition of joint tenants in the first lease was not the same as in the second and third lease. For the reasons given above the lease commencing on 18 November 2001 terminated by the agreed surrender of the parties on 17 November 2002 per section 36(g) Residential Tenancies Act 1997.
36.             Section 36(g) requires that the existing joint tenants agree to the termination of the lease and deliver vacant possession to the landlord. In the present instance the parties manifested that agreement in the execution of the new lease of 18 November 2002 by three of the four original joint tenants, which they were entitled to do at the end of the fixed term. The old composition of joint tenants gave possession to the new composition of joint tenants. In so doing the old composition of joint tenants notionally gave vacant possession to the landlord who in turn gave vacant possession to the new composition of joint tenants.
37.             In these circumstances the original tenancy of 18 November 2001 came to an end on 17 November 2002. The rights of the landlord and the tenants under this lease should then have crystallised and been resolved by the parties. The landlord should have carried out the obligations imposed on the landlord under the Act, namely the conduct of an inspection of the premise and a resolution of any bond claims arising under that lease (section 32). The landlord should then have prepared a new Ingoing Condition Report for the new tenants (section 29) and prescribed terms 21-22).
38.             Ingoing conditions reports are an important incident of the new lease. These reports are required by the Act to provide a contemporaneous basis for comparison between the condition of the premise at the start of the lease and at the end of the lease. The landlord ultimately bears the onus of proof of establishing any breach by the tenants in returning the premises in a lesser state than that it which was received. Any prejudice to the landlord in discharging this onus of proof flowing from the landlord’s own failure to carry out this task assigned to the landlord under the Act, is one of the landlords own making.
39.             The failure of the landlord to recognise the above distinction between successive leases is common in the industry. It is not uncommon for there to be many successive leases with individual joint tenants coming and going over many years without any clarification of the state of rent arrears and the state of premises at the beginning or end of any of these successive lease. The effect of this default on the part of landlords is that it becomes very difficult for the Tribunal to determine which set of joint tenants is responsible for any rent arrears or damage to the property accruing over the years, and who is entitled to any return of the bond.

The Tribunal explained the import of the above decision to the tenants, namely that the purported actions of Mr Zhang in advising the Commissioner that he was moving and would no longer be a party to the tenancy, would be an act by Mr Zhang that amounted to a surrender of the joint tenancy thereby bringing the joint tenancy to an end. Alternatively, such a declaration by Mr Zhang would amounted to a repudiation by him of the continuing joint tenancy in that he would have declared his intention to no longer be bound by the joint tenancy.
Mr Zhang said that he had been misunderstood and that he had no intention of permanently leaving his wife. The issue was his snoring which disturbed his wife’s sleep. She was annoyed with him over this. Mr Zhang said he had moved out to his son’s house whilst he addressed his snoring problem. In this sense Mr Zhang asserted that he had not purported to permanently vacate the premises or to repudiate the tenancy.
Mr Zhang said that he has been living his son in Canberra but that his son was soon moving to Brisbane. Mr Zhang was not intending to move to Brisbane with his son.
The matter was adjourned for decision.
After the matter had been adjourned, on 15 February 2016 Mr Zhang and his daughter attended the Tribunal counter and made enquiries about the appeal process. They said that there was other material that they had wished to rely upon but had not been provided to the Tribunal. This query was directed by Tribunal staff to the Tribunal member who ordered that the matter be relisted to provide the tenants with the opportunity to provide any further evidence or submissions they wish to. The tenants were invited to file and serve the material. The Commissioner was notified.
On 22 February 2016 the tenants filed and served:
(a)A submission from Mr Zhang in which he said that they had remedied the rent issue. He said that he had gone to the Commissioner’s office to inquire about moving out and was told he needed to complete the Statutory Declaration. He said he did not really understand what he was signing. He is 74 years of age and has a range of diseases including a respiratory disease. In the submission Mr Zhang did not actually refer to snoring or to the fact that his departure from the premises was to be temporary only.
(b)A report from Dr Voon (GP) concerning Mr Zhang’s medical problems.
(c)A letter from the Sleep Disorders Unit of Canberra Hospital dated 18 March 2015 indicating that Mr Zhang had been booked for a sleep apnoea study.
(d)A report from Dr Tuck (GP) of 12 March 2015 to Canberra Hospital concerning the pending sleep study.
(e)A submission from Ms Guo concerning her husband’s snoring. She said he moved out because his snoring was more than she could cope with. Ms Guo did not indicate whether the move was temporary or permanent but said that she had not understood the import of Mr Zhang moving and that it was unfair that she could be evicted because of it. Ms Guo has her own range of medical problems set out in a report from Dr Tuck of 22 February 2016.
The matter was relisted on 4 March 2016. Mr Atkins appeared for the Commissioner and the tenants appeared with their daughter Ms Zhang.
Mr Zhang maintained his position that he had no intention of permanently vacating the premises; it was only to be a temporary measure whilst he attended to his snoring. He said that his son was moving to Brisbane and he would then be homeless. These matters had not been addressed by Mr Zhang in his previous submissions. The matter was adjourned to 28 April 2016 to afford Mr Zhang the chance to adduce corroborative evidence on both these issues.
On 15 March 2016 Ms Zhang applied for an adjournment of the resumed hearing scheduled for 28 April on the basis that she would be overseas. The Commissioner did not oppose the request and the matter was scheduled for 12 May 2016, and then rescheduled for 18 May 2016.
On 17 March 2016 Mr Wei Zhang, son of the tenants, filed a short statement saying that he had actually moved to Brisbane on 25 January 2016 because of his job and his house was on the market. The statement said nothing about his father.
On 17 March 2016 Mr Zhang filed a statement to the effect that his move from the premises was to be ‘short term’ until his sleeping disorder improved. He said that he was willing to move back to the premises notwithstanding the snoring problem because of the tenancy problem he had unintentionally caused.
On 17 May 2016 the Commissioner filed submissions. It set out a time line of relevant events. One of the events recorded was an interview with Ms Guo on 21 October 2015. She is reported to have advised the housing officer that Mr Zhang had moved and taken all his possessions with him. He first moved to their daughter’s place and then to his son’s place.
The Commissioner drew attention to the fact that it was not until the Tribunal hearing on 4 March 2016 that the tenants first asserted that the Mr Zhang’s moved had only been temporary.
On 18 May 2016 Mr Phillipson appeared for the Commissioner and the tenants appeared in person with their daughter. The tenants maintained the position that Mr Zhang’s move was only ever intended to be a temporary one. The Tribunal noted the absence of any corroboration of this assertion, its inconsistency with previous statements, the fact that Mr Zhang is alleged to have taken all this things with him and the belatedness of the assertion only after its significance was apparent to the tenants. The Tribunal nevertheless gave the tenants a further opportunity to file and serve corroborating evidence. An order was made that once served with any statements the Commissioner could notify the Tribunal to have the matter relisted for cross examination of the deponents of any evidential statements. In default of any such notification by the Commissioner the matter was reserved for decision.
On 27 May 2016 the tenants daughter Jin Zhang filed a statutory declaration in which she said that on 8 September 2015 at the parent’s premises her father told her that he only intended to move out whilst he underwent treatment for his snoring, after which he would return to the premises. The tenants’ son, Wei Zhang, swore a statutory declaration to the same effect referring to the same conversation on the same night. He said that his father’s residence at his house was only intended to be temporary.
The Commissioner filed a submission dated 3 June 2016 in which the Commissioner said that cross examination of the tenants son and daughter was not required but the Commissioner did challenge the credibility of these statutory declarations. The Commissioner filed a statutory declaration from Ms Radmila Stosic to the effect that at no time during her meeting with Ms Guo or her son, did either indicte that Mr Zhang’s absence from the house was only temporary.

The issues

The Commissioner has correctly defined the issues and the Tribunal accepts the Commissioner’s statement of the law. If, as fact, Mr Zhang did vacate the premises with the intention that it was permanent then his actions would terminate the joint tenancy in the manner indicated by the Commissioner. This would be the case irrespective of the motive of Mr Zhang in moving out.
If the joint tenancy is terminated in the above manner then Ms Guo has no remaining right to remain in the premises unless the Commissioner enters into a new tenancy with her alone. There is no suggestion that this has occurred and the Commissioner has at all times indicated a contrary intention. No implied single tenancy arises from Ms Guo’s ongoing occupation whilst the present matter has been before the Tribunal.
The issue is one of fact, namely did Mr Zhang vacate with the intention of no longer being bound by the tenancy; or did he move out as a temporary measure whilst he addressed the snoring issue.
The Tribunal accepts Ms Guo’s evidence about the snoring and her own ill health. She has put this position forward from the start of the dispute.
In favour of the Commissioner’s argument are the following:
(a)Neither Ms Guo, Mr Zhang nor their adult children referred to the temporary nature of the move until late in the proceedings, after its relevance had been raised in the Tribunal.
(b)Ms Guo had approach the Commissioner for a rent reduction based on the absence of her husband at the premises, although this action may also be consistent with a temporary departure.
(c)Mr Zhang apparently took all his possessions with him, although it is not entirely clear what possessions are referred to other than clothes and toiletries.
(d)The tenants are the subject of an assurance of support from their children and in this sense may not be in the same desperate circumstances as would exist in the absence of that assurance.
In favour of the tenants argument are the following:
(a)They are both elderly and do not speak English. It is not easy for them to make themselves understood.
(b)They are not entitled to income maintenance from Centrelink or Medicare and have no significant income beyond a small pension and the assistance they receive from their children.
(c)They are both afflicted by a range of significant medical conditions related to aging.
(d)The husband’s snoring was exacerbating the wife’s medical problems;
(e)There was no indication from the daughter or the son that they intended the father to live with them indefinitely. At all material times the son had intentions of moving to Brisbane which has finally happened, and so it was unlikely that the son was thinking that his father would live with him permanently.
(f)There was no evidence that the marital relationship that had lasted all these years was now at a permanent end. There was no suggestion of any motivation for Mr Zhang moving other than because of the snoring.
(g)The son and daughter have sworn declarations to the effect that there was at least one family discussion to the effect that the move was temporary.
The resolution of these factual issues is not clear cut. The Tribunal understands the Commissioner’s scepticism concerning the belated evidence of the son and daughter at paragraph 45(g) above, but at the end of the day those sworn declarations were not tested in cross examination.
The Tribunal accepts that Mr Zhang intended to move out and did so for the reasons he advanced, namely his snoring. There was no marital breakdown. He was undergoing treatment for the snoring presumably with the intention of overcoming the problem. Moving out whilst this treatment occurs is not of itself an abandonment or repudiations if he intended to move back once the snoring was a thing of past.
It seems to the Tribunal that the tenants were unaware of the potential implications of Mr Zhang’s departure and hence did not actually think through the possible consequences of his move. On the evidence of the son and daughter the move was temporary, but how temporary is not clear.
The absence of the assertion that the move was only temporary at the beginning of the tribunal process may be explained either of three reasons. Either:
(a)they were unaware generally of the relevant law and of the relevance of the husband departing the unit until told by the Tribunal, at which time they first turned their minds to the issue;
(b)no one ever asked them the relevant question until it arose in the Tribunal - there was nothing in the Commissioner’s evidence that points to any person having raised the permanency issue with the tenants; or
(c)it was a belated fabrication by the tenants.
Until the uncontested sworn evidence of the adult children, the Tribunal was equivocating on the factual issue.
The evidence of the son and daughter is entitled to some weight. In the light of this evidence the Tribunal is prepared to give the tenants the benefit of doubt in finding as a fact that the tenants had no intention of permanently separating; the intention was only that Mr Zhang would move out for an undefined period whilst he underwent treatment for his snoring after which he would return to the premises with his wife.
It is not an unreasonable thing for Mr Zhang to have been concerned about the impact of his snoring on his wife who was elderly and sick in her own right. It could be seen as an act of kindness rather than betokening any marital disharmony for which there is no evidence.
In coming to this finding the Tribunal has also had regard to the principle that it is preferable not to unhouse people, and particularly people of limited means, unless it is necessary to do so. The Tribunal is cognisant of the argument that the children should fund the parent’s accommodation under the assurance of support and they have been assisting with these and other costs of the parents. But this assurance expires early next year at which point any legal obligation on the children (or rather the son, there being no assurance given by the daughter) to this effect also expires. Whether the children would or could maintain the economic support for the parents at this time is not known to the Tribunal. The parents will then presumably qualify for Centrelink but this level of income maintenance would not be sufficient for private rental. The parents may then need to apply to the Commissioner again for social housing at which point they would be at the bottom of the Commissioner’s waiting list and the Commissioner may then have to find temporary accommodation for them. From a social utility point of view it is hard to see much gain for the tax payers of the ACT relative to the very substantial disruption and inconvenience to the tenants.
The Tribunal does not shy away from the sympathy it expressed during the hearing for the plight of the tenants. They are as strangers in a strange land; and had they known of the implications of Mr Zhang’s move then it is almost a certainty that the move would not have happened. It was open to the housing officer to have assisted the tenants’ understanding on the issue at the time of the earlier discussions with tenants, which might have headed off the saga that has unfolded.
Based on a finding that Mr Zhang only intended to vacate the premises whilst addressing his snoring and not permanently, there has been no surrender or repudiation of the joint tenancy.
Therefore, the Commissioner’s application for possession is dismissed.

………………………………..
Senior Member A Anforth

HEARING DETAILS

FILE NUMBER:	RT 1137/2015
PARTIES, APPLICANT:	Commissioner for Social Housing
PARTIES, RESPONDENT:	Dong Quan Zhang & Yu Hua Guo
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Senior Member A Anforth
DATES OF HEARING:	7 January 2016, 4 March 2016, 18 May 2016