Jonathan Face v Julie & Simon Macken

[2007] ACTRTT 9

Jonathan FACE -v- Julie & Simon MACKEN  ACTRTT9 [2007]

CATCHWORDS
Notice to vacate – Genuineness of lessors’ intention to live in the premises 

LEGISLATION
Residential Tenancies Act 1997 (ACT)

Sections 104 

Clause 96 Standard Residential Terms

CASE LAW

CASE REFERENCE NUMBER:   RT 31 of 2007

RE: Premises at 1/24 Basedow Street, TORRENS, ACT 2607

DECISION

ORDERS

1.    Application dismissed.

Member:       Jennifer David
Date:            2 February 2007

STATEMENT OF REASONS

BACKGROUND

1    The parties entered into a residential tenancies agreement in relation to premises at 1/24 Basedow Street, Torrens in the Australian Capital Territory.  The tenancy was for a fixed term of 12 months that had become a periodic tenancy at the time of the events below. 

2    The tenant sought compensation from the Tribunal for an alleged breach by the lessors in that, on 14 November 2006, the lessors had issued a Notice to Vacate under Clause 96 of the Standard Residential Tenancy Terms (the Standard Terms) under the Residential Tenancies Act 1997 (the Act) on the grounds the lessors genuinely intended to live in the premises.  The tenant argued that the lessors had no such genuine intention at the time they issued the Notice to Vacate.  The tenant vacated the premises on 16 December 2006.

3    The tenant alleged that the lessors had no genuine intention to move into the premises for 2 reasons:

a)   The lessors advertised the property for rent, at a higher rent, in allhomes.com.au on 15 January 2007. 

b)   Prior to issuing the Notice to Vacate the lessors sought to increase the rental for the premises from $243 to $260 per week.  The tenant said he informed the lessors such an increase was excessive, advising that applying the CPI figures for the period would result in an appropriate increase being $9.54 per week.  The tenant stated he received the Notice to Vacate the next day.

4    The tenant sought a total of $11,332 compensation for moving expenses, time off work, reconnection of utilities and services, loss of privacy, increased travelling time and the application fee.

5    At the hearing on 2 February 2007, the lessors, present via telephone link, both stated they had a genuine intention to move into the premises at the time they served the Notice to Vacate but that their personal circumstances had changed. They made their decision not to move in to the premises in the New Year period for family reasons.   The lessors were living in Sydney at the time of the hearing.

6    The Tribunal dismissed the application.  On 16 February 2007 the tenant requested this Statement of Reasons.

Documentary Evidence

7    The tenant submitted the following documentary evidence:

·      Copy of allhomes.com.au advertisement

·      Notice to Vacate dated 16 November 2006

·      Information concerning removal costs, reconnection of telephone services, ActewAGL new customer establishment fee

·      Whereis.com map and Step by Step Directions illustrating distance to travel from the premises to the Applicant’s work and from the tenant’s new premises and his work

·      dodo invoice including “move house” fee

·      Payslip for 9 January 2007

·      Statement of Particulars

·      Letters dated 14 and 15 November 2006 from the lessors to the tenant.

8    The lessors did not submit documentary evidence.

FINDINGS AND REASONING

Applicable Law

9    In essence Clause 96(1)(a) of the Standard Terms provides that a lessor may serve on a tenant a notice to vacate giving four (4) weeks notice “if the lessor genuinely intends to live in the premises”.

10    The Shorter Oxford English Dictionary (5^th ed. 2003) defines ‘genuine” as:

“Having the character claimed for it: real, true, not counterfeit and (of a person) free from affectation or hypocrisy”

11    The tenant submitted that the coincidence of the rental increase which he refused and the Notice to Vacate together with the subsequent advertising of the property for rental at an increase weekly rent, were such that the Tribunal could readily infer that the lessors did not have a genuine desire to live in the premises. 

12    Whilst the Tribunal was sympathetic to the tenant’s argument given the circumstances enumerated above, the lessors both stated at the hearing that they had genuinely intended to live in the premises.  They had moved into the premises on 19 December 2006.  However, the lessor Julie Macken stated their circumstances changed and it was over the New Year period that the lessors decided they would not remain in the premises but would move to Sydney to be near their grandchildren who had decided to live with their father.  As a result, the lessors would not need a large family home in Canberra.  They stated they also did not want to travel frequently between Canberra and Sydney.  The lessors moved to Sydney on 30 January 2007.  The lessor Simon Macken gave a similar corroborating statement.

13    The Tribunal carefully considered all the evidence and circumstances and was of the opinion that on the balance of probabilities the lessors had a real or true intention to live in the premises at the time the Notice to Vacate was served and the tenant moved out.  The lessors did move into the premises but then their circumstances significantly changed after.  The changed circumstances were that their grandchildren had decided to live with their father in Sydney.  As a result of this the lessors made their decision to move to Sydney during the New Year period and moved to Sydney on 30 January 2007.  The fact that the lessors were still living in Sydney at the date of the hearing supported their version of events. 

14    Therefore, the Tribunal determined that the lessors did have a genuine intention to live in the premises at all relevant times and dismissed the tenant’s application. 

ORDERS

1. Application dismissed.

Jennifer David

Member

23 March 2007