COMMISSIONER FOR SOCIAL HOUSING v ZHANG & GUO (Residential Tenancies)

The case before the Civil and Administrative Tribunal of New South Wales (NCAT) involved the Commissioner for Social Housing, acting as the landlord, and two tenants, Zhang and Guo. The Commissioner sought to terminate the tenancy and gain possession of the property, arguing that the tenancy was a joint tenancy rather than a tenancy in common, thus allowing for the unilateral termination by one tenant. The tenants contended that they had a tenancy in common, which would require the consent of both tenants for termination.

The legal issue before the Tribunal was to determine the nature of the tenancy agreement between the Commissioner and the tenants. Specifically, the Tribunal had to ascertain whether the agreement constituted a joint tenancy, which would permit termination by one tenant, or a tenancy in common, which would require the consent of all tenants for termination. The resolution of this issue was crucial as it directly impacted the rights and obligations of the parties under the Residential Tenancies Act 1997 (NSW).

The Tribunal examined the terms of the tenancy agreement and the conduct of the parties. The agreement did not explicitly state whether the tenancy was joint or in common. The Tribunal also considered the legislative framework and relevant case law, which provided guidance on distinguishing between joint and common tenancies. Ultimately, the Tribunal found that the agreement, coupled with the tenants' conduct, indicated a tenancy in common rather than a joint tenancy. This conclusion was based on the shared responsibilities and rights of the tenants as evidenced by their joint occupation and shared financial obligations. Consequently, the Commissioner's application for possession was dismissed as it did not meet the legal requirements for termination under a tenancy in common.

The Tribunal’s decision concluded that the Commissioner's application for possession was dismissed, and no further orders were made. The tenants' tenancy in common remained in effect, and they were not required to vacate the property.