OCCUPANT RT391 v GRANTOR RT391 (No. 2) (Residential Tenancies) - [2020] ACAT 59

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

OCCUPANT RT391 v GRANTOR RT391 (No. 2) (Residential Tenancies) [2020] ACAT 59

RT 391/2020
Catchwords: RESIDENTIAL TENANCIES – whether agreement is an occupancy agreement or a residential tenancy agreement – examination of terms of the agreement – lessor is a community housing provider – lessor does not provide care to residents – agreement is a residential tenancy agreement – notice to vacate invalid
Legislation cited: Residential Tenancies Act 1997 ss 6A, 6E, 71C

Cases cited:Georgiadis v Canberra Institute of Technology [2020] ACAT 38
Noble v Centacare [2003] ACTSC 37
Wiser v Havelock Housing Association Incorporated [2014] ACTSC 138
Young Women’s Christian Association of Canberra v Carne [2017] ACAT 15

Tribunal: Senior Member H Robinson

Date of Orders:  22 June 2020
Date of Reasons for Decision:         10 August 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL           RT 391/2020

BETWEEN:
OCCUPANT RT391
Applicant

AND:
GRANTOR RT391
Respondent

TRIBUNAL: Senior Member H Robinson

DATE:22 June 2020

ORDER

The Tribunal being satisfied that the relationship between the applicant and the respondent is one of tenant and lessor, the Tribunal orders that:

The respondent is restrained from terminating the residential tenancy agreement other than in accordance with the Residential Tenancy Act 1997 provisions relating to residential tenancies.

……………Signed………..
Senior Member H Robinson

REASONS FOR DECISION

On 22 June 2020 the Tribunal heard arguments in relation to the preliminary question of whether the arrangement in this matter constituted an occupancy agreement or a residential tenancy agreement. I gave my reasons orally. What follows is an edited copy of those reasons.

Background

A brief background to this matter is set out in the decision of Senior Member Katavic in Occupant RT391 v Grantor RT391 [2020] ACAT 43 at paragraphs [4] to [9] (the previous decision )
In summary, the applicant and the respondent are parties to a so-called ‘occupancy agreement’. Pursuant to that agreement, the respondent served upon the applicant a Notice to Vacate (NTV) dated 11 May 2020. The applicant seeks, amongst other things, an order preventing the respondent from evicting him.
In the previous decision matter, Senior Member Katavic stayed the eviction pending a final hearing. At the time of that decision the parties proceeded on the basis that the relationship between the parties was one of occupant and grantor. The applicant now contends that the arrangement constitutes a residential tenancy agreement. If the applicant is correct, the NTV would be invalid as it is inconsistent with the permissible grounds for termination of a residential tenancy agreement set out in schedule 1 of the Residential Tenancies Act 1997 (RT Act).
The issue of characterisation is fundamental to the Tribunal’s jurisdiction in this matter, to the powers it may exercise and to the lawfulness of the eviction process implemented by the respondent. It is therefore appropriate that I determine it on a preliminary basis without considering the other issues before the Tribunal.

Agreed facts

The parties have agreed on a set of facts that relate to the nature of the agreement between the parties. They are:
(a)the applicant is a severely disabled individual who requires full-time care and support;
(b)at present the applicant and another individual are co-residents in a suburban house that the respondent leases from the ACT Government under a services agreement;
(c)the applicant has a dedicated bedroom in that house. The applicant has resided in the house for some nine years and his co-resident for thirty;
(d)the house was previously managed by the ACT Government, who oversaw it as a disability group house, providing both accommodation and services to the residents, but it was transferred to the respondent organisation following the introduction of the NDIS;
(e)there is a written agreement between the parties entitled, ‘Occupancy agreement’. It was signed by the applicant’s guardians and the respondent on 20 March 2017;
(f)the agreement gives the applicant a right to occupy the premises as defined;
(g)the parties agree that this right amounts to an exclusive possession of the bedroom and shared use of the common living areas;
(h)all the residents are severely disabled, and all require a very high level of personal care and support, including all aspects of daily activity and living, including meal planning and preparation, bathing, cleaning and assistance with stimulation and outings. All these services are coordinated by a disability care provider (care provider) contracted directly by the applicant and the other residents and funded by the NDIS;
(i)a representative of the care provider stays at the residence at all times, and they sleep in the spare bedroom;
(j)the respondent does not supply any services to the applicant or other residents other than acting as lessor of the property;
(k)the respondent does not generally get involved in operational matters within the house;
(l)the applicant and the residents pay for utilities, including gas, electricity and water;
(m)the respondent does not enter the house other than in accordance with the notice provisions set out in the agreement or to conduct urgent repairs; and
(n)the keys are held by the resident’s guardians and by the service providers.

Preliminary comments on the Tribunal’s role

The respondent filed two sets of submissions, on 23 June 2020 and 29 June 2020. In both it urges the Tribunal to take a practical approach having regard to the very serious allegations against the applicant, the difficult situation within the house and the respondent’s clear desire to ensure the safety of all residents.
The respondent’s position is an unenviable one. It has a long history of providing low cost housing and social support services to vulnerable people in the Canberra community and no doubt it takes its obligations very seriously.
In this case the respondent’s representatives are faced with a situation where they believe one of the occupants of a property it manages poses a risk to another. I make no findings on that point and note that it is disputed. Nonetheless, the respondent is doing its best to balance competing needs, and on this basis, it believes that an occupant of the premises must move. I acknowledge the sense of desperation and frustration the respondent’s agents must be feeling at this legal process. Undoubtedly the applicant’s guardians are feeling similarly.
However, I need to be clear about the Tribunal’s role.
The Tribunal is not seized of a general jurisdiction to do justice or simply impose solutions to problems at large. As Presidential Member McCarthy observed in Georgiadis v CIT:
The Tribunal is created under statute. It does not have any general jurisdiction. Any power it exercises or order it makes must be derived from statute. It cannot adopt a “flexible” approach to the interpretation of statutory provisions conferring jurisdiction. It cannot create jurisdiction by following “a discretionary approach” to statutory interpretation. It cannot, as Mr Georgiadis submitted, review a decision because the person seeking the review believes it is wrong or because it has a significant impact on the person.[1]
[1] Georgiadis v Canberra Institute of Technology [2020] ACAT 38 at [12]
The Presidential Member’s comments were made in the context of an administrative review, but the same principles apply in this jurisdiction.
The applicant, through his guardians, has brought the application in the Tribunal’s residential tenancies jurisdiction. The applicant, or his guardians, ask the Tribunal to apply the law of that jurisdiction, being that set down under the RT Act. That Act gives the Tribunal certain powers to make orders in relation to residential tenancies and occupancy agreements. The applicant has squarely put before the Tribunal the question of the legal characterisation of the relationship between the parties. That is his right. The nature of the legal relationship between the parties determines their rights and obligations and goes directly to the legal framework pursuant to which the Tribunal may determine whether the respondent has a legal basis to terminate the agreement between itself and the applicant. The argument cannot be set aside or diminished because it is inconvenient or creates an administrative nightmare for the respondent, an organisation that is no doubt already stretched and trying its best. The Tribunal cannot proceed on the assumption that all will be well or that common sense will override the law. The Tribunal must decide the matter and must decide it according to law.

The legal framework

The legal definitions of residential tenancy agreement and occupancy agreement are set out in section 6A and 71C of the RT Act respectively, with section 6E providing some exclusions for what is not a residential tenancy agreement. These provide:
6A     What is a residential tenancy agreement?
(1)     An agreement is a residential tenancy agreement if, under the agreement—
(a)a person gives someone else (the tenant) a right to occupy stated premises; and
(b)the premises are for the tenant to use as a home (whether or not together with other people); and
(c)the right is given for value.
(2)     The agreement may be—
(a)     express or implied; or
(b)     in writing, oral, or partly in writing and partly oral.
(3)     The right to occupy may be—
(a)     exclusive or not exclusive; and
(b)     given with a right to use facilities, furniture or goods.
(4)     This section is subject to the following sections:
section 6D (Certain kinds of agreements not residential tenancy agreements)
section 6E (Certain people given right of occupation not tenants)
section 6F (Certain kinds of premises mean no residential tenancy agreement).
Section 71C states:
71C What 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.
NoteAfter 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.
NoteThis Act does not apply to nursing homes, hostels for aged or disabled people or other prescribed premises (see s 4).
As should be apparent, the definitions of occupancy and residential tenancy agreement are nearly identical.
In essence, an occupancy agreement, as defined by section 71C(1), and a residential tenancy agreement, as defined by section 6A(1), have the same features save that an agreement would only be an occupancy agreement if it is not a residential tenancy agreement. This is entirely unsatisfactory.
I note that there is currently a proposed amendment to the RT Act by virtue of the Residential Tenancies Amendment Bill 2020 (the amendment bill) that will amend some provisions to provide clarity in some circumstances, and I will come to that shortly. In the meantime, we are left with the question as to how two legal relationships defined in near identical terms can be distinguished from each other.
A number of previous decisions, both of this Tribunal and the Supreme Court, have considered this perplexing problem. Some general principles have been identified, but in general, the approach is that each matter will fall upon its facts.
The most recent decision of note is that of Senior Member Lennard in Young Women’s Christian Association of Canberra v Carne [2017] ACAT 15 (Carne). That matter concerned an individual renting a standalone house through a crisis accommodation provider. In that matter the Senior Member considered the previous authorities in some depth and set out, at paragraph 14 of that decision, a framework under which to conduct an analysis. That framework, which I adopt, is as follows:
(a)Examine the agreement to determine whether it falls within the definition of a residential tenancy agreement in accordance with section 6A of the RT Act.
(b)If the agreement falls within the definition of a residential tenancy agreement, then the Tribunal should have regard to the exceptions that are set out in the RT Act in section 6E.
(c)If the agreement falls within the exceptions contained in section 6E, then the Tribunal should have regard to the provisions dealing with occupancy agreements to determine whether the agreement is an occupancy agreement.
(d)In relation to all three steps, and particularly steps (b) and (c), the communications between the parties and the terms of the agreement are to be taken into account.
Under the Carne approach, the first step is to examine the agreement between the parties.
The agreement in this case is a written agreement and consists of the occupancy agreement, a set of clauses attached to a schedule at the front of the agreement, and a document entitled, ‘house rules for shared housing,’ as well as several other attachments relating to custody of keys and asbestos, amongst other things.
The agreement is expressly stated to be “an occupancy agreement within the meaning of section 71C of the Residential Tenancies Act”. However, what the parties have called the document is not determinative of how it may be characterised. The substance of the agreement must also be considered.
The first limb of the test in section 6A of the RT Act asks whether the agreement gives someone – in this case the applicant – a right to occupy stated premises. It clearly does. Indeed, the opening words to the schedule are that:
It is agreed that the grantor grants the occupant, for value, a right of occupation of the premises for use as a residence by the occupant in accordance with the Residential Tenancies Act.
What constitutes the right of occupation under the agreement is somewhat complicated. Clause 2.1 of the agreement gives the resident the right to occupy the premises as a “boarder or a lodger”, which picks up the definition of ‘occupant’ in the RT Act. The ‘premises’ is then defined as “room number 2” at a stated street address, being the street address of the property in which the bedroom is located. The ‘premises’, the subject of the agreement, therefore appears to be a bedroom. Clause 34 of the agreement then provides that the occupant may use, in common with other occupants, the communal areas of the house. The interpretation sections in the agreement state that the house is as defined in the schedule, but the relevant box in the schedule is left blank. Presumably ‘the house’ is the house at the address stated.
The agreement provides that the right of access to the common areas must be exercised in accordance with the house rules. What legal arrangement this creates over the communal areas – be it a licence or a non-exclusive tenancy – is not a matter I need to decide at present. I am satisfied that the agreement gives a right of occupation to at least the bedroom.
The next question in section 6A(1)(b) is whether the premises are for the tenant to use as a home, whether or not together with other people. Clearly, they are. I don’t understand that to be disputed.
The third question in section 6A(1)(c) is whether a right is given for value. Again, this test is clearly met. The agreement requires the resident to pay rent, which appears to be set at a percentage of market value.
Section 6A(2) provides that the agreement may be express or implied, in writing, oral or both. The agreement in this case is expressed in writing, although there may be supplementary terms.
Section 6A(3)(a) provides that the RT Act requires that possession may be exclusive or not exclusive. I am satisfied that the resident has at least exclusive possession of the bedroom.
Section 6A(3)(b) provides that the right to occupy may be given with a right to use facilities, furniture and goods. In this case there is an associated right to use the facilities in the communal area of the house. Furniture and goods are supplied by the residents, but these shared items are located in the communal areas of the house.
Having regard to the above factors, I am satisfied that the agreement meets the definition of a residential tenancy agreement in section 6A of the RT Act.
I note, however, that meeting this test is not difficult and the majority of longer term accommodation arrangements will meet it, if only because of the very broad wording of the definition in section 6A, and the fact that longer term arrangements tend to mean that the occupant is inevitably using the premises as a home.
The next question, therefore, is whether any of the exceptions in section 6E of the RT Act apply, such that the agreement may be said to be an occupancy instead. The exceptions are of a limited nature – the question being: is the resident a boarder or a lodger?
The occupancy agreement asserts that the applicant is either a boarder or a lodger but does not specify which. I understand, on the basis of the respondent’s submissions of 29 June 2020, that the respondent contends the applicant is a boarder.
Unfortunately, the terms ‘boarder’ and ‘lodger’ are not defined in the RT Act. However, in Noble v Centacare [2003] ACTSC 37, Crispin J noted that “[t]he common law is replete with cases concerning the circumstances in which an occupier will be held to be a boarder or a lodger.”[2] His Honour then went on to discuss a number of those circumstances. His Honour cited several cases:
[2] Noble v Centacare [2003] ACTSC 37 at [25]
27. In Noblett and Mansfield v Manly [1952] SASR 155, Mayo J expressed it this way:
The primary usual meaning of ‘lodger’, as so defined, is “one who resides as an inmate in another person’s house, paying a certain sum periodically for the accommodation”; or “one who occupies a hired room in another’s house”… A “boarder” is one who… has his food, or food and lodging, at the house of another for compensation; one who lives in a boarding house or with a family as one of its members at a fixed rate; one who has food at another’s table or meals and lodgings at his house to pay a compensation of any kind”.
In ordinary circumstances of both a lodger and boarder legal possession remains in the person who provides the room or rooms or meals. He retains possession and control over the rooms and means of ingress and egress but grants license to guests who pay or give consideration for the privilege.[3]
28. In the subsequent case of Street v Mountford [1985] UKHL 4; [1985] 2 All ER 289 at 293, Lord Templeton said that:
An occupier of residential accommodation at a rent for a term is either a lodger or a tenant. The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. A lodger is entitled to live in the premises but cannot call the place his own ...
If on the other hand residential accommodation is granted for a term at a rent with exclusive possession, the landlord providing neither attendance nor services, the grant is a tenancy; any express reservation to the landlord of limited rights to enter and view the state of the premises and to repair and maintain the premises only serves to emphasise the fact that the grantee is entitled to exclusive possession and is a tenant.
[3] Noble v Centacare [2003] ACTSC 37 at [27]

The distinction was further examined by Burns J in Wiser v Havelock Housing Association Incorporated [2014] ACTSC 138 (Wiser), a matter on appeal to the Supreme Court from a decision of this Tribunal. In that matter the applicant, Mr Wiser, was a tenant at Havelock House. Wiser concerned a premises within Havelock House, a facility with a number of bedrooms and common areas, with an office and support staff located on the premises. It is an arrangement that is distinguishable to the present one, which involves a separate premises, but there are similarities as explored below.
In Wiser his Honour Burns J noted that it was difficult to reconcile the RT Act and the concept of a non-exclusive tenancy with these common law tests. That difficulty lies at the heart of this matter, with the applicant having a mixture of an exclusive occupancy of a room, but shared access to all the incidents of modern living that are permitted to comfortably reside within it.
So, what is relevant beyond exclusive and non-exclusive possession? In Wiser, Burns J opined that:
The cases to which I have referred and to which Crispin J referred in Noble v Centacare also speak of boarders and lodgers receiving services such as the provision of meals or the cleaning of rooms, and these are frequently referred to in the cases as relevant to the issue of exclusive possession. There is, in any event, no suggestion in these cases that the provision of services or their absence was determinative of the issue.[4]
[4] Wiser v Havelock Housing Association Incorporated [2014] ACTSC 138 at [26]
In this case it is impossible to separate the concepts of exclusive possession and the provision of cleaning and meals because of the special circumstances of the applicant, who is dependent on full-time care by external caregivers in a way that most residents would not be. The factual evidence before me is that the applicant receives his meals, or at least assistance with preparing them, from an external party. The assistance is provided by carers who work in and who stay at the house. All other services are also provided by persons who attend the house.
In day to day practice, the relationship between the parties may, on a surface level, resemble a boarding style arrangement or a nursing care style arrangement. However, the key point is – and the parties agree on this fact – the applicant does not receive those services from the lessor. They are entirely supplied by an external organisation to which the applicant contracts and the respondent does not. This makes it distinctly different to a boarding house style arrangement where the grantor controls the delivery of the services.
It is opportune here to return to the proposed amendments to the RT Act, by way of the Residential Tenancies Amendment Bill 2020. That Bill, if passed in its current form, will amend section 71C to include, relevantly in section 71C (1)(b)(iii) a provision which states:
(iii) an agreement—
(A)to exclusively occupy a sleeping space in a building with other sleeping spaces with related access to shared facilities or provision of domestic services; and
(B)that states it is an occupancy agreement. [5]
[5] Residential Tenancies Amendment Bill 2020, section 22
The explanatory memorandum states, in relation to this amendment, that:
The Residential Tenancies Act aims to define the rights and obligations of tenants and landlords under residential tenancy agreements, while the Residential Tenancies Act only sets out the minimum contractual requirements for occupancy agreements. The minimum contractual requirements for occupancy agreements provide the flexibility for them to be adapted to a wider range of stakeholders who use occupancy agreements.[6]
[6] Explanatory Statement to the Residential Tenancies Amendment Bill 2020 at page 7
The legislation has a proposed new subsection 71C(1) that will amend the definition of ‘occupancy agreement’ to state that an agreement to (a) exclusively occupy a sleeping space in a building with other sleeping spaces with related access to shared facilities or provision of domestic service; and (b) that states it is an occupancy agreement, will be an occupancy agreement.
The Bill is currently before the Legislative Assembly, but it has not been passed. Accordingly, the definition does not apply at present. There is also some question as to whether the amendment is intended to change the law or to clarify it. However, even in the event that the amendment is clarificatory, a question in this case would arise as to whether the provided services are ‘related’. In this case it does not appear that they are, because there is no relationship between the service providers and the terms of the agreement between the parties – they could not readily say to be “related”. The situation, while different in quantum, is not necessarily different to a situation where a regular tenant acquires food and other assistance while at home, for example, an elderly resident who contracts with various social service providers in order to remain in their house and not in a nursing home environment. So, if the provision of services is relevant, it is not determinative, and in this case, it does not aid the respondent.
What else may be considered? The Supreme Court in Wiser went on to identify the necessity for a term (ie. period of the tenancy) to be identified in a residential tenancy agreement. His Honour said:
One obvious and significant difference, for the purposes of the RTA, between a residential tenancy agreement and an occupancy agreement, is that the former must incorporate the standard residential tenancy terms found in Schedule 1 of the Act. Clause 2 of the standard residential tenancy terms provides that by signing a tenancy agreement, the lessor and the tenant agree to be bound by its terms “during the period of the tenancy it creates”. As such, in order for an agreement to be a residential tenancy agreement, it must be an agreement expressed, among other things, as granting a right to occupy stated premises for a term. Such an agreement may be for a fixed term… or it may be periodic.[7]
[7] Wiser v Havelock Housing Association Incorporated [2014] ACTSC 138 at [30]
Clause 8 of the agreement between the parties specifies a periodic term from the commencement date on a month to month basis with rent paid fortnightly. This distinguishes it from a more casual arrangement or from one where there is no identifiable term stated in the agreement and the parties just decide arrangements as they go. This factor again suggests that the agreement between the parties is less likely to be a boarder or lodger arrangement and more likely to be a residential tenancy. Again, however, it is not decisive.
The Supreme Court went on to observe, at paragraph [37] of Wiser, that the premises the subject of the agreement in that case consisted of a single bedroom with all other facilities – that is, kitchen, bathroom, dining and lounge – being shared with other residents occupying under their own separate agreements. The degree of impracticality of this arrangement was a factor for the Court. Again, by itself, this is not determinative, although it is certainly a relevant consideration. Arrangements where there are multiple leases over bedrooms within a premises are not infrequently the subject of dispute before the tribunal, often in circumstances where relationships within the property have fallen apart.
An argument could be made that an interpretation of the Act that would countenance such an impractical arrangement should not be favoured. However, while I agree that the arrangements may be impractical, the difficulty is that the express provisions of the Act allow for non-exclusive residential tenancies, and tenancies with shared facilities. This suggests that the concept of shared access to premises is intrinsic to the statutory framework envisaged by the RT Act. There is therefore no capacity to take up the purposive approach that would interpret against it as it is clearly anticipated in the legislation these kind of arrangements will exist.
Another factor in Wiser was one of control. The evidence in Wiser confirmed that the respondent, Havelock House, retained control over the communal areas. It was responsible for the maintenance and service of the facilities and items in the common areas and had a key for the purposes of maintaining control of the premises. The evidence in Wiser was that Havelock House was involved in the provision of services to residents. The same may be said of the circumstances in Noble v Centacare, which related to Ainslie Village
In the present case the agreement does not give either party exclusive possession of the common areas within the unit. However, clause 34.2 of the occupancy agreement purports to grant the respondent a right to access the common areas of the house. This is a factor in favour of the arrangement being an occupancy. However, in contrast to the circumstances at Havelock House or Ainslie Village, where the lessor is present on the premises and in control of the facilities, the agreed evidence before me in this case is that this right is exercised only in accordance with notices issued under the agreement. The respondent plays no role in the day to day management or supervision of the house and rarely exercises any control over those common areas.
As such, it seems to me that the relationship between the respondent and the applicant is, in practice, more similar to that in Carne than it is to Wiser and Noble.
As Senior Member Lennard observed in Carne, in considering the differences in these circumstances:
The control exercised by Centacare over the boarders and lodgers in their supported accommodation far exceeds the control that may have been exercised by the YWCA in this case. The degree of control exercised over the residential premises seems to have exceeded that normally imposed by a tenancy agreement and to have been attributable to the special needs of residents of the village and, perhaps, to the need to protect others from conduct attributable to the conditions from [which] some of the residents suffered. [at 45] There is no evidence that Mr Carne could not do as he wishes within the premises. The requirements of the Service Rules do not prevent him from living as he chooses and treating the premises as his home. The YWCA does not retain any control or dominion over the premises, as was the case in Noble, but rather requires the respondent to participate in case management meetings.[8]
[8] The Young Women’s Christian Association of Canberra v Carne [2017] ACAT 15 at [17(c)]
Granted, the present situation is not so clear cut. The applicant’s disabilities do not permit him the kind of independent living arrangements Mr Carne enjoyed. Moreover, the applicant must share the communal areas of the house. As such, there are house rules which bind him and arguably impede the right to quiet enjoyment that would usually be intrinsic to a residential tenancy agreement.
The existence of the house rules, particularly about behaviour, is perhaps the strongest ground for arguing that this relationship either is an occupancy, or at least that it should be. However, the rules themselves are not decisive. The content of the house rules in this case primarily relates to the relationship between the occupants and the communal areas. The greatest limitation is possibly the restriction on guests, but given the use of the communal facilities, the rules may largely be considered to reflect arrangements for those areas.
The house rules also make it clear that individuals’ bedrooms are private. There is no evidence before me, and indeed, the parties agree that the respondent does not interfere in the day to day management of the premises and does not exercise any degree of control or influence over the common areas as it did in, for example, Wiser.
On balance, the house rules are a borderline consideration. They suggest to me something of an occupancy, or an intention to create an occupancy, but they do not outweigh the other considerations.
Ultimately, his Honour in Wiser did not decide the matter on any of the abovementioned considerations, but rather on a particular clause in the agreement between the parties in that case that allowed Havelock House to move the applicant. His Honour said:
What, I think, makes it clear that the present case is not a residential tenancy agreement is the express acknowledgement that the applicant was not granted occupancy rights to a specific room or unit in Havelock House: Service Rules - Part A, Rule 3. While the Agreement contemplates the applicant occupying Room 8.7, reading the Agreement as a whole, he was not given a right of continuing occupation of that room, and he may have been required to change rooms by the respondent during the period of the Agreement. This right on the part of the respondent is utterly inconsistent with purported leasehold or residential tenancy agreement.[9]
[9] Wiser v Havelock Housing Association Incorporated [2014] ACTSC 138 at [37]
Analogous service rules do not appear to exist in this case. The premises are defined as bedroom 2 and there is nothing in the agreement which suggests the respondent may reallocate the room in which the applicant lives. He has exclusive possession of that room. That is not likely to change and is a reason why the Wiser decision is not readily applicable to this case.
On balance, therefore, a consideration of the circumstances as a whole does not suggest that these arrangements could be characterised as a boarder or lodger arrangement. Accordingly, this is a residential tenancy agreement.
For completeness, I note that in Carne, Senior Member Lennard alluded to the danger to the role of the Commissioner for Social Housing, who was the respondent in that case, and other temporary crisis or supportive accommodation providers, if people allowed temporary or crisis accommodation to be elevated to the status of a permanent tenant under a residential tenancy agreement. This would have serious ramifications for housing stock for temporary or crisis accommodation programs.
Even if it were possible to consider such policy issues, this is not one such case where they would be relevant. The applicant and another resident have lived in the premises for an extended period of time. There could be no suggestion the relationship is temporary or transitional or that there is any intention that the arrangements be anything other than stable, continuing and enduring. In all likelihood the residents – or perhaps, more accurately, their guardians – would be entitled to assume that they have a degree of security of tenure that is more consistent with a tenancy than an occupancy.
Accordingly, having had regard to all the factors, and not without some reluctance, I’m satisfied that the agreement between the applicant and the respondent was one of lessor and tenant. This means the standard terms of schedule 1 of the RT Act apply to the agreement and any terms that are inconsistent with those terms are void unless endorsed by the Tribunal.
The circumstances in which a residential tenancy agreement may be terminated by the lessor are exclusively set out in the standard terms in schedule 1 of the RT Act. They do not provide for the kind of summary termination for serious breach permitted by the occupancy agreement. However, clause 93 of the standard terms sets out a process for termination of a breach that involves a notice period and an opportunity for the tenant to remedy their behaviour. Other bases may be available to the lessor. That is a matter for the lessor.
As in Carne, the agreement in this case was undoubtedly drafted to enable easy termination of arrangements that were not practicable, such as, on the respondent’s argument, the present one. I understand why this was done, and the concern for the welfare of some vulnerable occupants that may have motivated it. However, these contractual provisions, even if well intentioned, cannot override the Act. In order to evict the applicant, the respondent needs to recommence proceedings under the RT Act and then seek a final order from this Tribunal.
The current process is therefore unlawful.
I have considered the application of the Human Rights Act 2004 and do not consider that any of the principles therein affect my decision, even assuming that it applies to the respondent.
I do not reach this decision lightly. The respondent clearly feels it has a duty to all its occupants and cares for their safety. That is admirable. However, at the end of the day the legal framework under which it operates must be complied with.

Conclusion

The agreed accommodation provided in this case is, at the very least, exclusive use of the bedroom as a home for value with access to shared facilities. These arrangements pre-date the respondent’s involvement, although they are formalised in the agreement between the parties. The applicant’s relationship with the respondent relates only to the provision of a place of residence for use as a home for value. The respondent is not a party to or involved in the broader service delivery framework. That means the agreement meets the definition of a residential tenancy agreement, at least in relation to the bedroom. None of the exceptions that would make it an occupancy agreement apply.
Accordingly, the notice of termination of an occupancy agreement is not a valid notice of termination and does not comply with clause 93B of the standard terms. The Tribunal orders that the respondent be restrained from terminating the residential tenancy agreement for breach other than by agreement or pursuant to an order of the tribunal in compliance with the standard terms in schedule 1 of the RT Act.
………………………………..
Senior Member H Robinson
HEARING DETAILS

FILE NUMBER:	RT 391/2020
PARTIES, APPLICANT:	Occupant RT391
PARTIES, RESPONDENT:	Grantor RT391
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	Canberra Community Law
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Senior Member H Robinson
DATES OF HEARING:	26 June 2020