DAVIS & COMMISSIONER for SOCIAL HOUSING in the ACT (Residential Tenancies)

[2011] ACAT 60

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

DAVIS & COMMISSIONER FOR SOCIAL HOUSING IN THE ACT (Residential Tenancies) [2011] ACAT 60

AA 11 of 2010

Catchwords:             Residential Tenancies appeal against termination order – considerations for grant of conditional termination and possession order – importance of tenant complying with obligations

List of Legislation:   ACT Civil & Administrative Act 2008

Residential Tenancies Act 1997

List of cases:             Commissioner for Social Housing in the ACT and Radovanov [2011] ACAT 12

Tribunal:                  Mr C.G Chenoweth, Acting Presidential Member

Date of Orders:  3 August 2011
Date of Reasons for Decision:         1 September 2011

ACT CIVIL &   )

ADMINISTRATIVE TRIBUNAL          )  

AA 10 of 2011

Between:MICHELLE DAVIS

Appellant Tenant

And: COMMISSIONER FOR SOCIAL HOUSING IN THE ACT

Respondent Lessor

Tribunal: MR C.G Chenoweth, Acting Presidential Member

Date:3 August 2011

CONDITIONAL TERMINATION AND POSSESSION ORDER

The ACT Civil and Administrative Tribunal makes the following ORDERS:

1.The residential tenancies agreement (the tenancy agreement) between the appellant tenant and respondent lessor in relation to premises at (address not disclosed) shall terminate unless the tenant complies with the following conditions: 

a)the tenant is to pay the lessor the sum of $6160.55 for rent owed;

b)the rent owed is to be paid by instalments calculated at the rate of $30.00 per week;

c)the first payment of rent owed is to be made on the 11 August 2011 and payments of $60.00 must be made each fortnight after that date; 

d)in addition to payment of the rent owed, the tenant is to pay rent regularly in accordance with the tenancy agreement; 

e)once the rent owed has been paid in full the tenant is to continue to pay rent, in advance, in accordance with the tenancy agreement;

f)the rent and any rent owed are to be paid directly to the lessor.

2. If the tenant fails to comply with any of the conditions set out in order 1 above:

(i)the tenancy terminates at 12.00 noon on the day after the tenant’s failure to comply with the condition;

(ii)the lessor is entitled to vacant possession of the premises on termination of the tenancy;

(iii)all rent payable including any rent which has accrued from the date of this order, is  payable immediately.

3. This order will expire on the 2 August 2012.

THE TRIBUNAL NOTES THAT if the tenant continues to live at the premises after the termination of the tenancy, the lessor may apply for a warrant for the eviction of the tenant.  A warrant for the eviction of the tenant may issue if the criteria set out in section 42A of the Residential Tenancies Act 1997 are met.

DATED 28 May 2022

By the Tribunal

MR C.G Chenoweth

Acting Presidential Member

ACT Civil & Administrative Tribunal

REASONS FOR DECISION

1.These are the reasons for decision for an order made by me on 3 August 2011. The order was for the appeal to be allowed. A conditional termination and possession order was made in place of the original order of 31 March 2011, under which the lease between the Appellant and Respondent was terminated for failure to pay rent.

2.These reasons summarise elements of the comprehensive verbal reasons that I gave at the time of making the order of 3 August 2011, and should be read together with those comments.

3.The appeal was lodged on behalf of the Appellant by Welfare Rights and Legal Centre, by application dated 7 April 2011. The Appellant is the tenant of premises at (address not disclosed) leased from the Respondent. It is clear from the material produced by the Respondent that the Appellant owes many thousands of dollars in rent, and that her limited means would make it very difficult for her to repay these quickly. The reason why these arrears were allowed to accumulate to this level were not clear.

4.The appeal was based on the availability of additional evidence to support a submission that the Appellant could sustain a tenancy and will face homelessness if she is evicted. The application also claimed that there was evidence to demonstrate that the Appellant had sought additional assistance and counselling to enable her to sustain her tenancy, and that her family situation required the maintenance of the property as a home for herself and her children.

5.The Appellant filed an affidavit dated 18 April 2011, setting out her personal and family circumstances. These included disruptive elements and circumstances in her personal relationship with the father of her children. It also included the need to maintain a home for her daughter who had suffered brain injury in the past as a result of family violence. The daughter is presently under the care of Disability Services ACT. Evidence from the Team Leader – Children and Young People in Disability ACT indicated that when the daughter shortly reaches the age of 18 years alternative accommodation needs to be found. The daughter wished to reside with her mother, and the Appellant would welcome her, but if the tenancy was terminated there would be no way in which they could live together. The Appellant’s other children were in care with others, but they paid regular visits including overnight visits.

6.It is also clear from the evidence that the Appellant had been dealing with very substantial personal problems including excessive use of alcohol and other drugs, and a gambling problem. She has however obtained employment, and a favourable reference was given by her employer indicating that she was a reliable person in her work, who sought to take on as much work as possible. The Appellant also provided evidence that she had been consulting with financial and counselling services, and that she had recognised the need to address her personal problems.

7.When the matter came before me on 21 April 2011, the appeal was adjourned for a period of three months to enable the Appellant to obtain further evidence, and to demonstrate her compliance with the orders for payment of rent and a contribution towards back rent that I then made.

8.In the course of the hearing, the Respondent’s representative referred to the Tribunal decision in the matter of Commissioner for Social Housing in the ACT and Radovanov [2011] ACAT 12, a decision of Senior Member Anforth. In that decision, the Commissioner read and had incorporated a statement concerning the role that the Respondent sees in the provision of emergency housing in the Territory. The following paragraphs are particularly relevant, and were stressed by me in the decision that I gave on 3 August 2011:

"It is therefore very important that Housing ACT tenants understand that they have entered into responsibilities under a residential tenancy agreement and that those responsibilities are real and enforceable law, and will be given appropriate weight by the ACAT.

When support is required to sustain a tenancy, Housing ACT encourages engagement via one of the many support and advocacy services like Welfare Rights that the ACT Government funds to assist in the achievement of the social outcome of a sustainable tenancy. In addition, Housing ACT has internal support services, not the least of which are Housing Managers who engage extensively with tenants."

9.The basis of the appeal in this case was that the evidence now available to the Tribunal would enable it to be reasonably satisfied pursuant to section 49 (3) of the Residential Tenancies Act 1997 that the present position of the Appellant would enable her to pay the arrears of rent, albeit over an extended period of time, and comply with her obligations under the lease, including payment of rent in the future. The appeal in this form necessarily implies an undertaking by the tenant to do so.

10.It is unrealistic to expect that the Appellant will be able to repay the arrears in a short time. They have been allowed to build up over an extensive period, and the failure of the Appellant to address the problem earlier has no doubt contributed to her difficulties. However, the evidence before me indicates that since the matter was first heard on 21 April 2011, the Appellant has complied with her rental obligations and also complied with the obligation to repay a further $30 per week.

11.While the personal circumstances of the Appellant warrant sympathy, the question for the Tribunal on appeal of this nature is whether it can be satisfied that there is a reasonable expectation of future compliance with the tenancy and with a nominated contribution to repay the arrears. Having heard all of the evidence on the appeal, I determined that I could be so satisfied.

12.The most significant ground to encourage this finding is the performance of the Appellant over the last three months. Further, the steps that the Appellant has taken to engage support and counselling services, who will help her to budget and plan expenditure in a way that complies with her obligations, encourages this conclusion. There is an application to the Public Trustee, as financial guardian for the Appellant's daughter, for some contribution towards the living expenses of the daughter in the event that she comes to live with the Appellant. This should provide additional resources (although modest) to assist in payment of rent. All of these factors constitute what I described as "a few green shoots in the wilderness" that was the personal situation of the Appellant prior to the proceedings in this Tribunal.

13.I made it clear to the Appellant the importance of complying with her obligations, because without them she could not preserve a home for herself and her daughter, and a place to which her other children could have access as part of the family. There can be no greater motivation for her to continue to address the alcohol and drug dependency and gambling issues which have plagued her life and led to the situation of the termination and possession order initially made by this tribunal. Her employment and the support of her employer are vital as without a home it would be difficult if not impossible for her to maintain employment.

14.I have also stressed to the Appellant that a failure to comply with the terms of the conditional termination and possession order would mean that the Respondent would have the right to terminate the tenancy with the result that she would be homeless. I recognise that ultimately the Respondent must act in accordance with the obligations that it has to share the limited resource of public housing in the most efficient way, and to do so in partnership with tenants who both understand and accept their obligations to contribute.

………………………………..

Mr C.G Chenoweth

Acting Presidential Member 

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      AA

APPLICANT:               Michelle Davis

RESPONDENT:           Commissioner for Social Housing in the ACT

COUNSEL APPEARING:      APPLICANT:          WELFARE RIGHTS & LEGAL CENTRE

RESPONDENT:      

SOLICITORS:  APPLICANT:          

RESPONDENT:      

OTHER:  APPLICANT:          

RESPONDENT:      Mr Adkins representing Housing

TRIBUNAL MEMBER/S:       Mr C.G Chenoweth

DATE/S OF ORDER :             3 August 2011  PLACE: CANBERRA

DATE/S OF REASONS FOR DECISION: 1 September  2011                   PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )       CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: