HAVELOCK HOUSING ASSOCIATION INC. & WISER (Residential Tenancies)
[2013] ACAT 51
•30 July 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HAVELOCK HOUSING ASSOCIATION INC. & WISER
(Residential Tenancies) [2013] ACAT 51
RT 13/601
Catchwords: RESIDENTIAL TENANCIES – whether the agreement was for residential tenancy or occupancy: grantor’s control of common areas and occupant’s right to occupy and use facilities and furniture etc – income based rent - refusal to pay rent increase – rental arrears - whether Notice to Vacate was retaliatory – whether occupant’s right to privacy was interfered with – termination and possession order
List of legislation: Human Rights Act 2004, ss.12, 40, 40B, and 40C
Residential Tenancies Act 1997, ss.6A, 6D, 6E, 6F, 57, 71C, 71E,
71G and 76, and Schedule 1 (Standard residential tenancy
terms)
List of cases: Commissioner for Social Housing and Massey [2013] ACAT 41
Metro-west and Sudi [2011] VSCA 266
Radaich v Smith [1959] HCA 45
Tribunal: Ms E. Symons, Presidential Member
Date of Hearing 18 July 2013
Date of Reasons for Decision 30 July 2013
IN THE ACT CIVIL & )
ADMINISTRATIVE TRIBUNAL ) RT 13/601
HAVELOCK HOUSING ASSOCIATION INC Applicant/Grantor
FREEMAN WISER
Respondent/Occupant
Tribunal: Ms E. Symons, Presidential Member
Date : Thursday 18th July 2013
ORDER
The residential occupancy agreement is terminated at 5:00pm on Friday 19th July 2013.
The occupant must vacate the premises on or before 5:00pm on Friday 19th July 2013.
If the occupant fails to vacate the premises as required by paragraph 2 of this Order the grantor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.
The operation of paragraphs 1, 2 and 3 of this Order is suspended until 5:00pm on Friday 9th August 2013.
The occupant is to pay to the grantor the sum of $209.60 being arrears of rent and rent payable to the date of termination of the residential occupancy agreement.
The Office of Rental Bonds is directed to release $508.16 of the bond to the grantor to be credited against the sum payable in paragraph 5 above.
The occupant is to provide the Tribunal with his address for service of future notices and orders in these proceedings by Friday 9th August 2013.
Ms E. Symons
Presidential Member
REASONS FOR DECISION
This matter consists of an application (the Application) by Havelock Housing Association Inc. (the Applicant/Grantor) filed on 18 June 2013 seeking orders against Mr Freeman Wiser (the Respondent/Occupant) terminating the occupancy agreement and rental arrears.
The application for a termination and possession order is made under the Residential Tenancies Act 1997 (RT Act). This Tribunal has exclusive jurisdiction to hear and decide any matter under the RT Act.
Factual Background
On 14 October 2009, the Respondent signed an Occupancy Agreement (the Agreement) with the Applicant for the premises “At Room Number [redacted] (the Room) Havelock House, 85 Northbourne Avenue Turner ACT 2612” (the premises). The Room is one of several in a unit of rooms sharing common areas. In these reasons, the relevant unit is called the Unit.
On 6 December 2012, the Applicant gave the Respondent Notice to Vacate within 26 weeks of the Notice being served (the Notice). The Respondent did not vacate the premises in accordance with the Notice.
On 18 June 2013, the Applicant filed the Application seeking the orders referred to in paragraph 1.
The Applicant annexed a copy of the Notice (Exhibit A1) and a bundle of correspondence (Exhibit A5) between the Applicant and the Respondent to the Application.
On 28 June 2013 the Respondent filed a Response to which he annexed a four page statement (Exhibit R1) and copies of correspondence between the parties. He subsequently lodged a “Supplement on Human Rights” on 4 July 2013 and a “Supplement Regarding the Differentiation of Tenants from Boarders and Lodgers” (Exhibit R2) on 5 July 2013.
The Tribunal commenced the hearing on 11 July 2013. Mr N. Lefkaditis represented the Applicant, and the Respondent represented himself. The Tribunal adjourned the hearing to 18 July 2013.
The Respondent filed two further submissions, namely on 15 July 2013 a document entitled “Supplement specifying the Key Sections of the A.C.T. Residential Tenancy Act that are relevant to the Case;” and on 17 July 2013 a document entitled “Supplement Re Rental Raises.”
Mr Lefkaditis represented the Applicant, and the Respondent represented himself on 18 July 2013. At the commencement of the adjourned hearing on 18 July 2013, the Respondent sought to file a letter relating to an alleged incident that he claimed had occurred the previous evening and asked the Tribunal to make the following orders:
i.requiring the removal of a named person from the Unit i.e. force the performance of service rules in relation to such residents;
ii.requiring the Applicant’s Property Managers to follow the service rules in relation to vacancies so similar situations do not reoccur in the future;
iii.to determine if it is legal for 2 people to live in a single small room, which only fits a single mattress, or whether it is a fire hazard;
iv.for any compensation orders the tribunal deemed suitable in the circumstances.
As these matters allegedly arose after the hearing had been adjourned, and did not appear to be relevant to the Application being heard, the Tribunal declined to consider the matters raised in this letter.
The Issues
The primary issue raised by the Application is whether the Agreement should be terminated and a warrant for eviction issued.
The matters raised by the respondent in his Response raise the following issues:
·whether the Agreement is an occupancy agreement or a residential tenancy agreement;
·whether the Notice to Vacate issued by the Applicant was validly issued or was retaliatory;
·if validly issued, whether the Occupancy Agreement should be terminated;
·if the Occupancy Agreement is terminated the amount, if any, of the arrears of rent payable by the Respondent; and
·whether the Applicant breached the Respondent’s human rights and/or privacy and, if so, whether compensation is payable.
The Hearing
At the resumed hearing, Mr Lefkaditis and the Respondent gave evidence by affirmation and were cross examined.
Mr Lefkaditis tendered a reconciliation of the Respondent’s rent (the reconciliation) (Exhibit A3) for the period 23 January 2013 to 23 July 2013. The reconciliation showed that the balance of rent owing was $539.66. It stated that the Respondent paid his rent one week after the fortnightly rent charge and if he paid in accordance with that practice then the “actual arrears as of 16 July 2013 will be $193.51, accumulated fron (sic) rent shortfall as of 23rd January 2013.”
The Evidence and the Submissions
The Tribunal found that the bulk of the Respondent’s answers to questions at the hearing were non responsive and vague. He was singularly focussed on the issues of concern to him and appeared to find it difficult to comply with the Tribunal’s requests to not interrupt and to not dictate the proceedings. The Tribunal took into account that the Respondent is not a trained lawyer and could not be expected to present his case is a sophisticated manner
In considering the issues, the Tribunal took into account the Respondent’s detailed written submissions. He had obviously invested a significant amount of time and energy in preparing and writing these submissions.
The Occupancy Agreement
The Agreement signed by the parties on 14 October 2009 was Exhibit A1. It was entitled “Havelock House Occupancy Agreement”. The parties were described as “The Grantor - Havelock Housing Association Inc.” and “the Occupant – Freeman Wiser.” The Agreement provided under “The premises” – “The Grantor lets to the Occupant the premises
At the room at Havelock House, 85 Northbourne Avenue Turner, ACT 2612 Together with all furniture, fittings, appliances and goods listed in the Condition Report.” The Agreement included the following documents all of which had been signed and dated by the Respondent and Mr Lefkaditis – Occupancy Agreement Terms (Attachment A), Service Rules Part A (Attachment B), Supply of Keys (Attachment C), Reviews (Attachment D), Asbestos (Attachment E), Centrelink Authority (Attachment F), Maintenance (Attachment G), Vacating Checklist (Attachment H) and Electricity Authority (Attachment I).The Respondent claimed at the hearing that the Agreement he had signed with the Applicant was not an occupancy agreement, rather it was a residential tenancy agreement. He described that the naming of the Agreement as an occupancy agreement as a legalistic trick whereby the Applicant was illegally attempting to pervert all of the tenants’ legal rights under the RT Act. He told the Tribunal that the agreement he had signed was a tenancy agreement. His written submissions and statements were based on this claim.
In his Statement Contesting the application (Exhibit R1)[1], he stated that, notwithstanding the Applicant had told him Havelock House was a boarding house, he had lived in a boarding house and in shared units and the main difference was that in boarding houses the service provider professionally cleaned each unit and each room in the unit, provided three meals a day for full board in a separate dining area, and provided a linen and laundry service. Based on his own experience he alleged that as the Applicant did not offer any of these services it was not a boarding house; it was merely offering standard units just like any other lessor in Canberra.
[1] at page 1
He submitted that the Agreement he had with the Applicant did not fall into the exclusions in Sections 6D, 6E or 6F of the RT Act and was a tenancy rather than an occupancy contract. This was why all of the standard residential tenancy terms specified in Schedule 1 of the RT Act were included in the Agreement. In his Supplementary Submissions filed on 15 July 2013, he set out sections 6A and 6E(1)(b) of the RT Act.
In his Supplement lodged on 5 July 2013, the Respondent referred the Tribunal to the case of Radaich v Smith[2] as authority for the finding that it is the substance of the right to occupy that matters, not the form of the agreement.
[2] [1959] HCA 45 In this case the High Court considered whether a Deed created a lease or a licence. McTiernan J stated:[2]
“As Denning L.J. said in Facchini v. Bryson (1952) 1 TLR 1386 [at pp.1389-1390] " . . . the parties cannot by the mere words of their contract turn it into something else. Their relationship is determined by the law and not by the label they choose to put on it" [words within square brackets added]
The Respondent further submitted that the key factor in differentiating a tenancy from an occupancy contract was whether the landlord lived in the rental premises. He alleged that Mr Lefkaditis did not reside at Havelock House, so that the Tribunal should find that the agreement he had with the Applicant was a tenancy agreement. He acknowledged that a landlord, if an owner-occupier, cannot be excluded from their own house and would not be subject to tenancy provisions such as exclusive possession of the premises.
Consideration
Section 71C of the RT Act states:
71CWhat is an occupancy agreement?
(1)An agreement is an occupancy agreement if—
(a) a person (the grantor) gives someone else (the occupant) a right to occupy stated premises; and
(b) the premises are for the occupant to use as a home (whether or not with other people); and
(c) the right is given for value; and
(d) the agreement is not a residential tenancy agreement.
(2) The agreement may be—
(a) express or implied; or
(b) in writing, oral, or partly in writing and partly oral.
Note After 6 weeks, the occupancy agreement should be in writing (see s 71E (c)).
(3) The right to occupy may be—
(a) exclusive or not;
(b) given with a right to use facilities, furniture or goods.
(4) The person given the right to occupy the premises may be—
(a) a boarder or lodger; or
(b) someone prescribed by regulation for this section.
Note This Act does not apply to retirement villages, nursing homes, hostels for aged or disabled people or other prescribed premises (see s 4).
As stated in paragraph 18 above, the parties to this Agreement are described in the agreement as grantor (Applicant) and occupant (Respondent) as required by subsection 71C(1)(a). The Agreement is in writing (ss. 71C(2)(b)) and provides in the first paragraph that the Grantor grants to the Occupant for value a right of occupation (ss. 71C(1)(c)) of the premises for use as a residence (ss. 71C(1)(b)) in accordance with the Agreement. The Respondent’s right to occupy is given with a right to use facilities (clause 106(HH) and Service Rules 3) and to use furniture, fittings, appliances and goods listed in the Condition Report (ss71C (3)(b)). The Respondent’s right to occupy is described as a boarder in the correspondence to him from the Applicant. Section 6E of the RT Act states:
6E Certain people given right of occupation not tenants
(1) A residential tenancy agreement does not include an agreement for the right to occupy premises if the person given the right of occupation is—
(a) a party to an agreement entered into honestly for the sale or purchase of the premises; or
(b) a boarder or lodger; or
(c) a person prescribed by regulation.(2) This section is subject to the following sections:
• section 6B (Residential tenancy agreement if agreement written and says it is residential tenancy agreement)
• section 6C (Residential tenancy agreement if agreement part of employment).
The written agreement between the parties does not state it is a residential tenancy agreement (subsection 6E(2)). It is not employer provided accommodation (subsection 6E(2)). The Tribunal had no hesitation in accepting Mr Lefkaditis’ evidence that the Respondent was a boarder.
In considering the legal relationship between the Applicant and the Respondent the Tribunal has considered the evidence in relation to who maintains control over the property. While one of the indicia of control would be that the owner, or someone employed by the owner, lives in the premises, this is not the sole indication of control. In this matter, it was clear from the evidence that the Applicant has control of the communal areas; the Applicant is responsible for the maintenance and service of the facilities and items in the common areas and has a key for the purposes of maintaining control of the premises. The Agreement did not give the Respondent exclusive possession of the common areas within the Unit.
A tenancy agreement automatically includes the 100 Standard residential tenancy terms found in Schedule 1 of the RT Act. While subsection 71G(1) of the RT Act states that an occupancy agreement must contain terms to the effect of the Standard Occupancy Terms prescribed by regulation, there is no regulation. Thus, an occupancy agreement does not have standard terms.
Pursuant to section 71G(b)(ii) of the RT Act, the occupancy agreement may contain any other term that is consistent with the occupancy principles which are to be found in section 71E of the RT Act. Section 71E states:
71EOccupancy principles
(1) In considering a matter, or making a decision, under this Act in relation to an occupancy agreement for premises, a person must have regard to the following principles (the occupancy principles):
(a) an occupant is entitled to live in premises that are—
(i) reasonably clean; and
(ii) in a reasonable state of repair; and
(iii) reasonably secure;
(b) an occupant is entitled to know the rules of the premises before moving in;
(c) an occupant is entitled to the certainty of having the occupancy agreement in writing if the occupancy continues for longer than 6 weeks;
(d) an occupant is entitled to quiet enjoyment of the premises;
(e) a grantor is entitled to enter the premises at a reasonable time on reasonable grounds to carry out inspections or repairs and for other reasonable purposes;
(f) an occupant is entitled to 8 weeks’ notice before the grantor increases the amount to be paid for the right to occupy the premises;
(g) an occupant is entitled to know why and how the occupancy may be terminated, including how much notice will be given before eviction;
(h) an occupant must not be evicted without reasonable notice;
(i) a grantor and occupant should try to resolve disputes using reasonable dispute resolution processes.
(2) If an occupant occupies a mobile home on land in a mobile home park and the mobile home is not provided by the grantor—
(a)the occupancy principle in subsection (1) (e) applies to the land and any fixtures provided by the grantor, but not the mobile home; and
(b) the grantor is entitled to enter the mobile home only with reasonable notice, at reasonable times, on reasonable grounds and for reasonable purposes.
In this matter, the terms of the Agreement between the Applicant and the Respondent are to be found in the Attachment which included clauses specifically endorsed for Havelock Housing and identified as (HH) and some of the Standard Residential Tenancy Terms. The Agreement also included Service Rules (or House Rules) which required the occupant to observe the objects, rules and policies of the Havelock Housing Association Inc. The Tribunal is satisfied that these terms are consistent with the Occupancy Principles. This is the agreement which both parties signed and accepted.
For the reasons set out above, the Tribunal is satisfied and finds that the Agreement between the parties is an occupancy agreement.
Notice to Vacate
Clause 94 of the Occupancy Agreement Terms signed by the parties provided for “Termination of occupancy without cause.” The Notice to Vacate was in writing and identified the Respondent as well as the property; being the Room Havelock House, Turner. The Notice stated that it was issued pursuant to clause 94. It was dated 6 December 2012 and was signed by Mr Lefkaditis on behalf of the Applicant. It was sent to the Respondent by Express Post. It notified the Respondent that he was required to vacate the premises within 26 weeks of the Notice being served on him; said that the occupancy would end on the day he vacated the premises, and that the final inspection had been scheduled for 12 June 2013. It did not require the Respondent to vacate the premises during a fixed term. The Applicant was not required to have a cause or reason to issue the notice.
The Respondent did not dispute the contents of the Notice to Vacate.
Consideration
The Tribunal is satisfied that the Notice complied with clause 94 of the Occupancy Agreement, it was not defective, and it was validly given to the Respondent.
Was the Notice to Vacate retaliatory?
The Respondent claimed the Notice was retaliatory action pursuant to section 57(1)(b)(ii) of the RT Act in that the Applicant was retaliating to letters he wrote to it by issuing and serving him with the Notice. As a resident in Havelock House, he said, he was standing up for his rights, as a tenant, by writing letters and bringing matters that concerned him to the Applicant’s attention.
Mr Lefkaditis told the Tribunal that the Respondent had been corresponding with the Applicant for a number of years in relation to his concerns about the terms of the Agreement and his premises at Havelock House. His concerns included alleged privacy breaches, human rights issues, and other issues in relation to the terms of the occupancy agreement. The Respondent had repeatedly made clear to the Applicant that he regarded the agreement between them as a tenancy agreement; he did not regard himself bound by the terms of the Occupancy Agreement he had signed.
Mr Lefkaditis said that the Applicant is a social housing provider and provides Community Housing. It is an incorporated association. Its members make the Rules of the Association and policies. Management implement the Rules. The Applicant had tried, unsuccessfully, to work with the Respondent and have him raise his concerns at members’ meetings so that they could be dealt with. The Respondent’s actions had placed a great burden on the Applicant in responding to the correspondence.
The Applicant has a duty of care to all the occupants at Havelock Housing. Given the Respondent’s stated position that he was not bound by the terms of his Occupancy Agreement, the Applicant determined to send the Respondent a letter dated 26 November 2012 setting out the options as it saw them.
That letter stated:
“Based on your last few letters to myself and previous management staff over a period of twelve months you have repeatedly indicated that you no longer wish to be bound by the Occupancy Agreement to which you signed on the 14th October 2009 as you believe we have added extra clauses that conflict with the Residential Tenancies Act.
I have tried to explain that there is a difference in your agreement as you live in what is considered a boarding house where you need to share communal areas with others including the Grantor and Tenancy Agreements do not cater to that.
The only few options that are left to resolve this matter are such:
First option is for you as the Occupant to apply to ACAT to allow the Magistrate to make the final decision on our agreement, and their decision will have to be honoured by both parties.
Second option is for Havelock Housing Association Inc. to give you a 26 week notice termination without cause, and happy to write a positive reference to assist you to get new accommodation as you have been a good occupant.
Third option to find you better accommodation that is more suitable to your needs to which you have declined earlier this year.
Havelock Housing Association Inc. have (sic) been working within the terms and conditions set out on your agreement that you have signed and there has been no breaches to the effect when entered on Saturday morning or by contractors. I have given you many avenues you can use to state your case to find resolution. The options above now are the only way of finally resolving this matter if you still want to abide by your Occupancy Agreement.”
Mr Lefkaditis said that the Applicant offered to meet with the Respondent and work with him to obtain other suitable accommodation where the Respondent would feel that his rights were not impinged as he claimed happened at Havelock House. The Respondent did not take up the offer to meet with the Applicant.
The Applicant said that the Respondent had not initiated proceedings in the Tribunal until he filed a Response to the Applicant’s current Application. The Applicant had not received any correspondence from either the Welfare Rights and Legal Centre or the Tenants Union ACT on behalf of the Respondent. The Respondent did not initiate mediation and although the Respondent alleged breaches of his human rights, the Applicant had not been contacted by the ACT Human Rights Commission. Apart from the correspondence from the Respondent, the only action that Mr Lefkaditis was aware of was that the Australian Federal Police (AFP) attended Havelock House in response to an allegation from the Respondent that Mr Lefkaditis had breached the Respondent’s privacy. The AFP spoke to Mr Lefkaditis. No further action was taken.
In the absence of a satisfactory response to the Applicant’s letter from the Respondent, the Applicant had taken the ‘no cause 26 weeks’ Notice to vacate’ action foreshadowed in its letter.
In response to questions from the Tribunal, the Respondent acknowledged that he had not applied to the Tribunal for an order in relation to the Applicant, prior to filing his Response and Counter Claim to the Applicant’s application for a termination and possession order. The Respondent presented no evidence that he had complained to a government entity in relation to the Applicant. The Respondent told the Tribunal that he had sought legal advice from Welfare Rights and Legal Centre but did not provide any evidence corroborating his evidence. Nor did he provide any evidence of his seeking mediation. In fact, the evidence provided by the Applicant, which the Tribunal accepted, was that the Respondent had been offered opportunities to meet with the Applicant and to also raise any concerns he had by attending a Residents’ meeting and that he had not accepted these opportunities, choosing instead to continue writing letters.
Consideration
Section 57 of the RT Act states:
57Retaliatory applications
(1) This section applies if—
(a) a lessor has applied for a termination and possession order under this part ; and
(b) the tenant presents evidence that—
(i) the tenant applied to the ACAT for an order in relation to the lessor; or
(ii) the tenant complained to a governmental entity in relation to the lessor; or
(iii)the tenant took reasonable action to secure or enforce the tenant's rights; or
Examples
1 The tenant sought legal advice.
2 The tenant sought mediation.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see title="A2001-14">Legislation Act, s 126 and s 132).
(iv) the ACAT made an order in favour of the tenant against the lessor.
(2) The ACAT must refuse to make the termination and possession order—
(a) if satisfied that the circumstance mentioned in subsection (1) (b) exists; and
(b) in the absence of proof to the satisfaction of the ACAT that the lessor was not motivated to apply for a termination and possession order by the circumstance.
(3) Subsection (2) applies despite any other provision of this part.
The Tribunal has carefully considered all of the evidence. The Tribunal’s finding is that the Respondent has not presented any evidence under section 57(1)(b). It follows that the Tribunal is not satisfied, on the balance of probabilities, that any of the circumstances in subsection 57(1)(b) of the RT Act exist. The Tribunal further finds, having considered all of the evidence, that the Applicant was not motivated to apply for a termination and possession order by any of the circumstances in subsection 57(1)(b) of the RT Act.
The Rent
Mr Lefkaditis told the Tribunal that the Respondent’s rent was “Income –related rent” calculated in accordance with clauses 34 and 37(HH) of the Occupation Agreement Terms. It was not “market based rent” to which clauses 35, 36 and 38 of the attached terms applied. If the Respondent had been paying market based rent it would be double the amount he was currently assessed to pay. Terms identified (HH) in the Occupancy Agreement Terms have been endorsed by the Tribunal.
Clauses 34 and 37(HH) state:
Increase in rent
34 The amount of rent shall not vary from period to period except as provided by this Occupancy Agreement........
….
37.1(HH) In each fortnightly period, in full satisfaction of the Occupant’s obligation to pay rent to the Grantor in that period, the Grantor agrees to accept and(sic)”Income-related Rent”, based on household income, which is less that (sic) the rent for the premises. If the income-related Rent is equal to, or more than, the rent, only the rent is payable in respect of the occupancy.
37.2(HH) The Occupant agrees to provide the grantor with proof of income (income statement must be from an acceptable source e.g. registered place of employment, Centrelink etc.,) If no such income statement is provided, HHA will calculate the rent payable at 74.99% of market rent:
(a) at six monthly intervals throughout the tenancy;
(b) whenever the income of the Occupant increases or decreases and the change is likely to continue indefinitely; and
(c) at such times as required in writing by the Grantor.
37.3(HH) If the Occupant fails within 4 weeks to provide the Grantor with proof of income in accordance with an obligation under clause 37.2(HH) the rent due to the grantor after the expiration of that 4 weeks is the rent and not the income-related rent until such time as the required proof of income is provided.
Mr Lefkaditis said that in accordance with the above clauses, each six months the Applicant requested that occupants provide proof of income such as a Centrelink statement. Occupants who receive Centrelink payments have rent set at 25% of income plus the Rent Assistance received from Centrelink. The Respondent’s rent was set at $330.00 a fortnight on 13 June 2012.
The Respondent was notified by letter from the Applicant dated 10 January 2013 that his rent had been recalculated based on his revised income information and set at $173.07 a week ($346.15 a fortnight) from 23 January 2013. The Respondent refused to pay the increased rent. After 23 January 2013, he continued to pay $330.00 a fortnight. The Respondent’s last payment of $330.00 was received on 16 July 2013. The arrears for the fortnight 10 July 2013 – 23 July 2013 totalled $209.00.
The Respondent told the Tribunal that the rent increases imposed by the Applicant were not explained. He conceded, in response to a question from the Tribunal, that he had not sought an explanation from the Applicant. He claimed that the frequency of the rental changes was not in accordance with the tenancy agreement he had signed.
The Respondent’s submissions specifically focussed on clauses 34, 35, 36, 37 and 38 in the Standard Residential Tenancies Terms in Schedule 1 of the RT Act. These clauses limited rent increases to intervals of not less than 12 months and required the grantor to give the occupant at least 8 weeks’ notice in writing of an intention to increase the rent, the amount of the increase and the date of the proposed increase.
Consideration
The Respondent’s submissions were largely premised on his claim that he had a tenancy agreement and not an occupancy agreement with the Applicant, which issue the Tribunal has already considered and determined above.
As stated in paragraph 28 above, the Standard Residential Tenancies Terms are automatically included in a tenancy agreement. The Tribunal has found that the Agreement between the parties in this matter is an occupancy agreement, not a Tenancy Agreement.
In the absence of any regulated standard occupancy terms, the Applicant has attached some of the Standard Terms (clause 34, an amended clause 35 which states ‘The rent may not be increased at intervals of less than 12 months from the date of last increase’, clause 36 (clause 37 has been deleted) and clause 38). The Occupancy Agreement also includes endorsed Havelock Housing specific terms in clauses 37.1(HH), 37.2(HH) and 37.3(HH), referred to above.
Mr Lefkaditis’ evidence was that the Respondent’s rent was income-related, not market rent. This evidence was not challenged. The Tribunal accepts this evidence and makes findings accordingly. The relevant clauses for determining the amount of income-based rent are clauses 37.1(HH), 37.2(HH) and 37.3(HH), not clauses 35, 35 and 38, which relate to market rent increases.
Having considered all of the evidence the Tribunal is satisfied, on the balance of probabilities, and finds that the Applicant has correctly and properly determined the Respondent’s income related rent in accordance with clauses 37.1(HH), 37.2(HH) and 37.3(HH) of the occupancy agreement.
However, the Tribunal noted the Respondent’s statement in his Supplementary Submissions lodged 17 July 2013[3]claims that the rental rate notices do not show the reconciliation of the income statement to the rent calculated, which makes it a lot of work for the tenants to check the validity of the Applicant’s calculations. The Tribunal agrees with the Respondent in this regard and recommends that, when the Applicant recalculates rent based on an occupant’s revised income information, the detail of this calculation be included in the letter to the occupant.
[3] at Paragraph 4 page 3
The Tribunal accepts the Applicant’s evidence and finds that the arrears of rent are $209.60, and are continuing to accrue at the rate of $16.15 a fortnight.
Alleged Breaches of the Respondent’s Privacy
Mr Lefkaditis told the Tribunal that he is the property manager of Havelock House which has 103 rooms. In the Respondent’s case, the Applicant, as grantor, entered into an occupancy agreement with the Respondent pursuant to which he was granted occupation of the Room. The Room is a bedroom and is one of seven bedrooms grouped around a common area comprising a lounge/dining room, kitchen and bathroom (“the common area”). Each occupant is granted exclusive possession[4] of their individual bedroom and use the common area with other household members of the Unit. He described the complex containing the seven bedrooms and the common area as a unit.
[4] Clause 53, Occupancy Agreement
The Service Rules – Part A include the following clauses:
“3. This Occupancy Agreement grants the Occupant occupancy of a room at Havelock and the use of the kitchen, bathroom and living/dining room in common with other household members of the unit. The Occupant agrees that this does not imply occupancy rights to a specific room or unit.
4. The Grantor may enter any room in Havelock House, other than the Occupant’s premises, without giving notice to the Occupant. The Grantor agrees when accessing the common areas associated with the Occupant’s premise to buzz first, when practicable, and then knock three times and to give reasonable time for the Occupant and household members to respond before entering announcing their presence.”
Mr Lefkaditis said that as the Property Manager he has a duty of care to ensure that the Applicant provides service maintenance of electricity, gas and furniture in Havelock House. He needs to have a right of access to common areas, including the common area in each unit, within Havelock House for this purpose. The Applicant has had occasion to enter the common area of the Unit and, when doing so, has complied with clause 4 in the Service Rules and Clauses 75(1), 76, 76(1)(HH) and 77(2)(HH) of the Occupancy Agreement Terms.
In November 2012, he entered the common area in the Unit and removed excess furniture. Recently, he accessed the premises in accordance with Clause 76(1)(HH)(a) because of an emergency caused by a burst water main. He said that he also entered the common area of the Unit on 12 June 2013, the date the Notice required the Respondent to vacate the premises and left a letter addressed to the Respondent (Exhibit A5) under the Respondent’s door. This letter asked the Respondent to hand in his keys at Reception on 13 June 2013; notified him that the rent arrears were then $185.94 and that he was required to pay the rent arrears, if any, on 13 June 2013. The Respondent did not attend reception as requested to hand in his keys and pay the rent arrears.
A few days later, not having received a response from the Respondent, Mr Lefkaditis attended the Room in the Unit accompanied by a witness, Mr Tony Lonergan. He knocked on the door of the Room many times, stated his name and stated many times that he would be opening the door. When he did not receive an answer he opened the door slightly to see if the room was vacated. He saw the Respondent sitting on a chair looking at him. Mr Lefkaditis said he then advised the Respondent that the Applicant would be commencing these proceedings as the Respondent had not vacated the premises in accordance with the Notice.
The Respondent has still not vacated the premises at the time of the hearing.
Throughout the matter, the Respondent relied on his submission that he had a tenancy agreement with the Applicant. He submitted that the landlord did not have an unrestricted right of access to most of the property.
The Respondent claimed that he had agreed to rent the Unit from the Applicant, not the room. He agreed, in cross examination, that his room had the room’s number on its door. He did not agree that clause 110(HH) in the Occupancy Agreement Terms gave the Applicant a right of access to the common areas in the Unit. He alleged[5] that clause 110(HH) and Service Rule 4 were intended to circumvent the protections detailed by the RT Act[6] by creating an unrestricted right of access for the lessor to all areas of Havelock House. He submitted that clause 110(HH) and Service Rule 4 were inconsistent with the standard terms and should be found to be void according to Schedule 1 and sections 8 and 9 of the RT Act.
[5] Page 2 Respondent’s statement 28 June 2013 forming part of his Response
[6] Sections 52, 53, 75 and 77-82 of Schedule 1
He also submitted that if the Agreement with the Applicant was an occupation agreement giving the Applicant the right to enter the common area of the Unit then he, the Respondent, should have access to the common area of the Applicant’s premises, namely in a neighbouring unit. Mr Lefkaditis submitted that the Tribunal that the Applicant had an Occupancy Agreement with the Respondent for the Room in the Unit; there was no occupancy agreement between the Applicant and the Respondent in relation to any part of the neighbouring unit.
Consideration
It was evident from the correspondence and the Respondent’s submissions that the Respondent had been alleging, for some considerable time, that the Applicant had repeatedly breached his privacy and his human rights by entering the common areas of the Unit and, in June 2013, his bedroom.
Clause 52 of the Occupancy Agreement Terms stated that the grantor shall not cause or permit any interference with the reasonable peace, comfort or privacy of the occupant in the use by the occupant of the premises. As stated above, the premises of which the Respondent had exclusive occupation was his bedroom; he had the right to use the common areas with the other occupants in the Unit. None of the occupants had exclusive possession of the common areas in the Unit.
Clause 55 requires the grantor to maintain the premises in a reasonable state. The grantor’s access to the premises is covered in clauses 75, 76 and 110(HH) and Service Rule 4. However, clauses 75 and 76 are subject to clause 76.1(HH) which states: “Notwithstanding clause 75 and 76, the Grantor may enter the premises at any time without notice: (a) in case of emergency; or (b) if there is reasonable concern for the safety of the occupant ort other persons in the premises.” Pursuant to clause 77.2(HH), if the grantor enters the premises pursuant to clause 76.1(HH) without the occupant’s consent the entry is to be effected by two or more of the grantor’s employees who are to attempt to make their presence known to the occupant before entry. Service Rule 4 requires the grantor, if not giving notice to the occupant, and intending to enter the common area associated with the occupant’s premises (or bedroom) to buzz if practicable, knock three times and to give a reasonable time for the occupant and other household members to respond before entering announcing their presence.
The Tribunal found Mr Lefkaditis to be a credible witness. It had no hesitation in accepting his evidence that he complied with clauses 76, 76.1(HH) and 77.2(HH) of the Agreement and Service Rule 4 when entering the premises. In relation to the alleged breach of privacy on 12 June 2013, the Tribunal is not satisfied from the evidence that his delivering the courtesy letter under the Respondent’s door which notified the Respondent of the practical arrangements for him to hand in his key and settle his rent arrears, if any, amounted to a breach of privacy.
The need for Mr Lefkaditis to have written and delivered this letter could have been avoided if the Respondent had attended reception and made appropriate enquiries and arrangements at any time in the 26 weeks before the date notified in the Notice to Vacate occurred. Instead, the Respondent told the Tribunal that he made no arrangements to look for or obtain other accommodation, notwithstanding he had 26 weeks’ notice to vacate. It was readily apparent to the Tribunal from the evidence that the Respondent had unilaterally determined that he had a residential tenancy agreement, not an occupation agreement, and that he had no intention of complying with the terms of the Occupancy Agreement or the Notice to Vacate.
The Respondent further claimed that Mr Lefkaditis again breached his privacy when he opened the door to the Room some days after 12 June 2013. The Tribunal does not agree with the Respondent’s claim. It was appropriate, in the circumstances, that the Applicant check the Respondent’s bedroom to see whether he had vacated it in accordance with the Notice prior to filing its Application at the Tribunal. The Tribunal had no hesitation in accepting Mr Lefkaditis’ evidence of the actions he took to ensure compliance with clauses 76.1(HH) and 77.2(HH) of the Agreement and Service Rule 4.
Having considered all the evidence and for the reasons set out above, the Tribunal is comfortably satisfied that the Applicant did not breach the Respondent’s privacy and finds accordingly.
As a result of this finding, the Respondent’s claim for compensation and/or rent reduction for alleged breaches by the Applicant of his privacy, peace and quiet enjoyment of the premises, fails.
The Respondent’s Human Rights.
The Respondent alleged breaches of his human rights, in particular that his right to privacy in section 12(a) of the Human Rights Act 2004 (ACT) (HR Act) has been unlawfully interfered with by Havelock Housing Association Inc. from some time in 2011, if not earlier. Section 12(a) states:
12. Privacy and reputation
Everyone has the right—
(a) not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
(b) …..
The HR Act requires that as far as possible ACT laws must be interpreted and applied in a way that is compatible with the human rights guaranteed in the HR Act. Section 40B(1)(b) of the HR Act requires public authorities to give proper consideration to human rights when making decisions. A failure to do so will amount to unlawfulness.
From 1 January 2009, the HR Act expressly requires public authorities to act consistently with human rights; and, when making decisions, give proper consideration to relevant human rights.
Individuals have a direct right of action to apply to the Supreme Court to seek a remedy for an alleged contravention of this obligation. This right is subject to a 12 month time limitation in subsection 40C(2)(a) of the HR Act for commencing proceedings. The Tribunal noted that the Respondent had not instituted such an action in the ACT Supreme Court.
Pursuant to subsection 40C(2)(b) of the HR Act a person may also rely on the unlawfulness of the conduct of the public authority in other legal proceedings in ACT courts and tribunals.
In considering whether or not the Applicant is a public authority the Tribunal notes that a similar issue was considered in the Victorian Civil and Administrative Tribunal and the Victorian Court of Appeal in Metro-west v Sudi.[7] (“Sudi”). The Sudi case was brought against Metro-west, a non-government provider of social housing, which received block funding from government to provide transitional housing, which it supplemented with income from tenancies. In that case Justice Bell found that Metro-west was carrying out a function of a public nature in providing transitional housing to the applicants. He noted that in deciding whether an entity is a functional authority it is important to take into account the responsibility which government has for the care and protection of vulnerable and disadvantaged people. Governments have traditionally performed this function in the public interest, even if the means of doing so have varied.
[7] [2011] VSCA 266
Mr Lefkaditis told the Tribunal that the Applicant had been appointed by the Commissioner for Social Housing to manage some community public housing assets including Havelock Housing as the nominated owner for the Territory.
The Tribunal noted that in Commissioner for Social Housing and Massey[8] (“Massey”) the parties did not contest that the Commissioner for Social Housing is a public authority as defined by section 40 of the HR Act and the Tribunal found that the Commissioner’s actions and decisions were captured by the operation of section 40B of the HR Act.
[8] [2013] ACAT 41
The Tribunal is satisfied that the Applicant in the current proceedings is carrying out a public function for the purpose of the HR Act and that the proceedings under the RT Act are ‘legal proceedings’ for the purposes of section 40C(2)(b) of the HR Act.
In the present matter the Respondent has asked the Tribunal to find that the Applicant’s application for a termination and possession order was unlawful as it infringed his right under subsection 12(a) of the HR Act not to have his privacy, family [or] home unlawfully or arbitrarily interfered with.
The Tribunal has already considered the evidence and submissions in the Respondent’s claim in relation to the Applicant breaching his privacy, above, and found that the Applicant complied with the Agreement and its terms and had not breached the Respondent’s privacy. For abundant clarity the Tribunal is satisfied, for the same reasons, that the Applicant has not unlawfully interfered with or infringed the Respondent’s right to privacy under section 12(a) of the HR Act.
The Tribunal also considered whether the issuing of the Notice to Vacate breached the Respondent’s human rights. This issue was considered in Massey. That Tribunal considered how a tenant can rely on rights under the HR Act in RT proceedings. The Tribunal said[9]:
“Consistent with the approach taken by the Tribunal in Thornthwaite, I do not consider that it is appropriate to interpret section 40C(2)(b) as itself conferring some sort of HR Act review jurisdiction upon the Tribunal. Given the significant practical and legal ramifications of such a grant of power, one could expect specific provision if the legislature intended that outcome. I consider that the appropriate interpretation of the provision is that it allows rights under the HRA to be considered and relied upon where those rights, or a finding of “unlawfulness” in relation to those rights, can be incorporated into the existing legal framework for the proceedings.”
[9] At paragraph 44
When considering the action of issuing the notice to vacate, the Tribunal in Massey stated[10]:
“It is not unusual for the ACAT in termination proceedings to consider the notice to vacate and whether it has been issued in compliance with requirements of the RT Act. Should the ACAT add to the range of its enquiries in this regard the question of the human rights compatibility of issuing of a notice to vacate by a public authority? It is not the practice of the ACAT to inquire into whether a notice to vacate is issued in accordance with other legislative requirements which may apply to an applicant.”
[10] At paragraph 56
In Massey the Tribunal came to the conclusion[11] that it is not appropriate for the Tribunal to engage in a consideration of whether issuing a Notice by a public authority is an unlawful act under section 40B of the HR Act. That Tribunal also did not consider that it was appropriate for the Tribunal to engage in a review of the decision to institute legal proceedings for a termination and possession order under the RT Act as a potential abuse of process.
[11] At paragraph 57
While that Tribunal subsequently described as ‘conclusion specific’ the last sentence of the previous paragraph, the Tribunal in the present matter, is also not satisfied that, having considered all of the evidence and submissions, the Applicant’s decision to institute legal proceedings for a termination and possession order against the respondent was unlawful and therefore an abuse of process.
Consistent with the statement in paragraph 87 above, the Tribunal is satisfied that it is open to this Tribunal to consider the Respondent’s rights under the HR Act when considering the discretion under section 47 of the RT Act whether or not to make an order. In Massey the Tribunal said[12]:
“…. In any matter involving the exercise of discretion it is appropriate to have regard to all relevant circumstances, and it is well-accepted that the identity, role and responsibilities of the Commissioner as a public housing provider, and now as a public authority, must be taken into account.
Section 40C(2)(b) provides that rights under the HRA may be relied upon in these proceedings, and given that the HRA is beneficial legislation an interpretation consistent with that beneficial purpose should be adopted, where this is possible. It seems to me that were the tenant able to point to a substantive way in which the termination and possession order sought in these proceedings would be contrary to those rights, that may be taken into account in exercising the discretion whether or not to make the order.”
[12] At paragraphs 71, 72
Having considered all of the evidence and the submissions, the Tribunal is satisfied and finds that the Applicant’s privacy was not unlawfully interfered with as the Applicant complied with the terms of the Agreement for access to common areas in the Agreement. The Tribunal had no hesitation in accepting Mr Lefkaditis’ evidence in relation to the Applicant’s access to the Respondent’s premises, and the common areas in the Unit. Where his evidence and the respondent’s evidence differed, the Tribunal preferred Mr Lefkaditis’ evidence. The Tribunal is also satisfied, having considered all of the evidence and the submissions, and finds that the Respondent’s privacy was not arbitrarily interfered with by the Applicant.
Accordingly, the Tribunal finds that the Respondent’s claim that the Applicant has breached his human rights as set out in section 12(a) of the HR Act, fails as does his claim for compensation.
Conclusion
After considering all of the above matters the Tribunal is satisfied that, in all of the circumstances, the Tribunal should exercise the discretion to make a termination and possession order and a payment for rent arrears in these proceedings in accordance with the Applicant’s Application.
The Orders provide, inter alia, for the bond to be paid to the Applicant on account of the rental arrears until the date the Respondent vacates. If there is any surplus of the bond money that surplus is to be paid to the Respondent upon vacation.
………………………………..
Ms E Symons
Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
FILE NUMBER: | RT 13/601 |
PARTIES, APPLICANT: | Mr N. Lefkaditis, Havelock Housing Association Inc. |
PARTIES, RESPONDENT: | Freeman Wiser |
TRIBUNAL MEMBERS: | Ms E. Symons, Presidential Member |
DATES OF HEARING: | 11, 18 July 2013 |
PLACE OF HEARING: | Canberra |
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