Fowler v Fowler

[2022] NSWCATCD 138

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Fowler v Fowler [2022] NSWCATCD 138

Hearing dates:

13 July 2022

Date of orders:

07 September 2022

Decision date:

07 September 2022

Jurisdiction:

Consumer and Commercial Division

Before:

S Hanstein, General Member

Decision:

The tenancy agreement is terminated on 7 February 2023, and possession is to be given to the landlord on that day.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Whether residential tenancy agreement exists — Long term tenancy — Termination – Whether tenancy agreement should be terminated

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Cases Cited:

Case v Frimont [2021] NSWCA 30

Sutcliffe v Hennessy [2017] NSWCATCD 77

Category:

Principal judgment

Parties:

James Fowler (Applicant)

Jeffrey Fowler (Respondent)

Representation:

Moins Morris Schaefer (Applicant)

Tony Cox Lawyers & Conveyancers (Respondent)

File Number(s):

RT 22/19090

Publication restriction:

Nil

REASONS FOR DECISION

1. This is an application for termination of a long term tenancy under section 94 of the Residential Tenancies Act 2010 (“Act”).

2. The issues are:

1. Whether there is a residential tenancy agreement between the applicant as landlord and the respondent as tenant

2. If so, whether the tenancy should be terminated under section 94 of the Act

3. If so, what date should vacant possession of the premises be required to be given.

3. The proceedings were instituted by the applicant by his power of attorney, Ms Mill. Ms Mill is the daughter of the applicant and the sister of the respondent.

4. Both parties filed documentary material in support of their cases including statutory declarations, and were legally represented at the hearing. None of the deponents of the statutory declarations were cross examined at the hearing.

Applicant’s case

5. The applicant’s evidence and submissions included the following.

1. There is a residential tenancy agreement between the parties within the meaning of section 13 of the Act. The applicant and his (now deceased) wife granted the respondent a right of occupation of the premises in about 1990, and an amount of rent was paid for that right. The rent was $100 per week which reflected the approximate national average rent for the time the tenancy commenced.

2. That the parties intended the agreement to be a residential tenancy agreement is reflected by their actions in lodging applications with the Tribunal in about 2010 and 2021 in respect of the tenancy.

3. Vacant possession is required to enable the premises to be sold to fund the applicant’s refundable accommodation deposit for an aged care facility.

Respondent’s case

6. The respondent’s evidence and submissions included the following.

1. Rather than being a residential tenancy agreement within section 13 of the Act, this is an informal family arrangement for an extended time.

2. The respondent moved into the premises with his parents in the 1980s, and remained there when they subsequently relocated. It was a mutual understanding that the respondent had made a contribution to the premises through the work he had done in his parents’ business and that he would be entitled to the premises.

3. The respondent paid his parents $80 per week (increasing to $100 per week) to cover rates, water and insurances over the property. This was not rent but a payment to meet any expenses of the property.

4. The respondent has continued to live at the property since that time, and has been responsible for property maintenance and upkeep of the property.

5. If required to leave the premises, the respondent would become homeless.

Legislation and legal principles

7. Section 13 of the Act provides, relevantly:

13 Agreements that are residential tenancy agreements

(1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence.

(2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing.

(3) An agreement may be a residential tenancy agreement for the purposes of this Act even though—

(a) it does not grant a right of exclusive occupation, or

(b) it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities.

Note—

See section 8 for agreements that are not covered by this Act. Section 7 sets out premises not covered by this Act.

...

8. Section 94 of the Act provides:

94 Termination of long term tenancies

(1) The Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement—

(a) if the tenant has been in continual possession of the same residential premises for a period of 20 years or more, and

(b) if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement has expired, and

(c) if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case.

(2) A landlord may make an application under this section without giving the tenant a termination notice.

(3) The Tribunal must not make a termination order under this section that specifies a termination date that is before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.

(4) The Tribunal, in determining the day on which vacant possession of the residential premises is to be given to the landlord, must not order that vacant possession be given earlier than 90 days after the order is made.

9. The following principles apply when assessing whether an arrangement is a residential tenancy agreement within section 13 of the Act:

1. It is necessary for there to be an agreement, even though the agreement need not be in writing and may be implied.

2. There must be an intention to create a legal relationship. The intention of the parties must be assessed objectively.

3. There must be the granting by one person to another, for value, of a right of occupation of premises that are residential premises.

4. Payment of Council rates and charges can satisfy the requirement that “value” be provided.

5. If the elements of section 13 are established, there is a residential tenancy agreement, regardless of any other relationship that may also exist between the parties.

6. Subsequent conduct of the parties can be used to determine whether an agreement was in truth entered into.

(See Case v Frimont [2021] NSWCA 30 and Sutcliffe v Hennessy [2017] NSWCATCD 77, and the authorities referred to therein)

Consideration

Residential tenancy agreement

10. On the balance of probabilities, I am satisfied that there is a residential tenancy agreement between the parties.

11. The applicant, who is the owner of the premises, clearly granted the respondent the right to occupy the premises. The grant was for value, as the respondent was to, and has been, paying an amount for that right – whether or not it is considered “rent” or an amount to cover rates and other expenses. The premises are clearly residential premises.

12. I am also satisfied that the parties entered into an agreement, and intended to create a legal relationship satisfying the requirements of a residential tenancy rather than some other arrangement. This is consistent with each party instituting proceedings in the Tribunal under the Act. I am satisfied there was agreement as to the identity of the parties and the premises, as to an amount to be paid by the respondent for the right to occupy, and as to when the right to occupy would begin. It appears there was no fixed term agreed upon, and that the parties intended that the respondent could occupy the premises for a long period. It was therefore a periodic tenancy.

13. That the respondent made improvements to the premises from time to time, and may have been the intended beneficiary of the premises under the applicant’s will, does not prevent this from being a residential tenancy.

Termination and possession

14. I am satisfied, in all the circumstances of the case, that a termination order should be made under section 94 of the Act.

15. The preconditions to the making of the order are satisfied: the tenant has been in continual possession of the premises for more than 20 years or more, and any fixed term (if there was one) has expired.

16. I am satisfied on the evidence before me, on the balance of probabilities, that the applicant is in need of significant funds to pay the deposit for his residential care, and that his attorney intends to provide those funds from selling the premises. I am also satisfied that the sale of the premises is not reasonably practicable with the respondent in occupation.

17. I have considered the respondent’s circumstances, as set out in the evidence before me. I am not satisfied that those circumstances outweigh the factors supporting the making of a termination order, and I am satisfied that it is appropriate to make the termination order in the circumstances of the case.

18. I am satisfied, however, that in light of the time the respondent has occupied the premises, his circumstances and likely hardship that he will suffer as a result of the termination of the tenancy, that an extended period should be given for vacant possession, and I order possession to be given on 7 February 2023. I am satisfied this is appropriate in all the circumstances, notwithstanding the need for funds for the applicant.

Orders

19. The orders are:

1. The tenancy agreement is terminated on 7 February 2023, and possession is to be given to the landlord on that day.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

28 September 2023 - Formatting amendments.

Decision last updated: 28 September 2023