Palmer v Ogbonna (Residential Tenancies)
[2022] ACAT 3
•13 January 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PALMER v OGBONNA (Residential Tenancies) [2022] ACAT 3
RT 1034/2021
Catchwords: RESIDENTIAL TENANCIES – application by lessor for termination and possession order – where lessors intend to move into the premises – requirements for a valid notice to vacate – effect of notice omitting to include a statutory declaration as required by clause 96(1A) of the standard terms – whether notice validly served and for the required period – ACAT lacks jurisdiction to correct defective notice pursuant to sections 59 or 83 of the Residential Tenancies Act 1997 – lessor’s notice found to be invalid due to failure to provide a statutory declaration with the notice – application dismissed
Legislation cited: Residential Tenancies Act 1997 ss 8, 9, 10, 36, 47, 59, 83, standard terms 3, 4, 5, 52, 53, 75, 83, 92, 93, 94, 96
Subordinate
Legislation cited: Residential Tenancies Regulation 1998 s 5
Cases cited:Mohammadian v Samani [2021] ACAT 125
Tribunal:Senior Member M Hyman
Date of Orders: 13 January 2022
Date of Reasons for Decision: 19 January 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 1034/2021
BETWEEN:
CRAIG PALMER
First Applicant/Lessor
AMANDA PALMER
Second Applicant/Lessor
AND:
FLORENCE OGBONNA
Respondent/Tenant
TRIBUNAL:Senior Member M Hyman
DATE:13 January 2022
ORDER
The Tribunal orders that:
The application is dismissed.
……………Signed………..
Senior Member M Hyman
REASONS FOR DECISION
The applicants – the Palmers – own a house in Canberra. Mr Palmer’s work took him elsewhere, and in the family’s absence from Canberra they let their house to the respondent, Ms Ogbonna, under a fixed term residential tenancy agreement. When his work elsewhere came to an end, the family planned a move back to Canberra. At the end of the fixed term tenancy, in October 2021, the applicants gave the respondent notice to vacate on the basis that they intended to move back into their house, as permitted under the Residential Tenancies Act 1997 (the RTA). The respondent did not vacate the premises in accordance with the notice. The applicants accordingly applied to this Tribunal for an order terminating the tenancy and giving them vacant possession. When the matter came before me on 13 January 2022 I found that the applicants had not met all the statutory requirements for the grant of a termination and possession order, and I dismissed the application. The applicants requested written reasons for that decision. These are those reasons.
At the hearing Mr Palmer appeared in person, with a power of attorney made out to him and signed by Ms Palmer. Ms Ogbonna made a power of attorney out to Mr Edward Ogbonna, and both Ms Ogbonna and Mr Ogbonna appeared by telephone. The papers before the Tribunal included the residential tenancy agreement between the applicants and the respondent, and the notice to vacate given by the applicants. There was also a volume of email traffic detailing the efforts of the respondent – unsuccessfully, up to the date of the hearing – to find alternative rented accommodation.
The papers show that the applicants entered into a fixed term residential tenancy agreement with the respondent on 16 October 2020. On 14 October 2021 that fixed term tenancy ended and reverted to a periodic tenancy. On or about 18 October 2021 the applicants’ agents sent the tenant a notice to vacate in eight weeks, giving 13 December 2021 as the date at which the tenancy would end and the premises were to be vacated. It is not at issue that at the date of the hearing the respondent was yet to vacate the premises. The applicants applied for interim orders and also made a substantive application for a termination and possession order; both applications are dated 16 December 2021. The matter was listed for urgent hearing.
It is an important part of the context, although it has no direct bearing on my decision, that the Palmer family has been put to great inconvenience by the inability to move back into the family home. The applicant said that his wife and children had been forced to leave Canberra and stay with relatives in NSW, while he is in short-term accommodation while the tenancy issue is resolved.
Issue
The only issue before the Tribunal is whether to grant the termination and possession order applied for.
Legislative framework
Under the RTA there is a limited number of ways in which a residential tenancy agreement can be terminated. These are set out in section 36. Most of the listed ways for an agreement to end are at the tenant’s initiative, or by agreement between lessor and tenant.[1] Other ways in which a residential tenancy agreement may end include where the Tribunal makes a termination and possession order.[2]
[1] Residential Tenancies Act 1997, section 36(1)(a), (b), (c), (f), (h)
[2] Residential Tenancies Act 1997, section 36(1)(d), (e)
The RTA provides that a residential tenancy agreement is taken to include the set of standard terms in Schedule 1 to the Act.[3] A fixed term agreement contains the terms as at the date that the agreement was entered into;[4] a periodic agreement contains the standard terms in force from time to time,[5] and that includes the periodic agreement to which a fixed term agreement reverts on its expiry.[6]
[3] Residential Tenancies Act 1997, section 8
[4] Residential Tenancies Act 1997, section 8(1)(a)(i)
[5] Residential Tenancies Act 1997, section 8(1)(a)(ii)
[6] Residential Tenancies Act 1997, section 8(3)
The terms in the Schedule, incorporated in the residential tenancy agreement between lessor and tenant, become the terms of the contract between them, and govern the operation of the tenancy. The standard terms provide that a fixed term tenancy is for the period specified in the tenancy agreement;[7] a periodic tenancy includes a tenancy that is not for a specified term, and a tenancy that continues at the end of a fixed term tenancy.[8] Parties to a tenancy agreement cannot contract out of the standard terms or the provisions of the RTA, except as specified in the RTA.[9]
[7] Residential Tenancies Act 1997, standard term 4
[8] Residential Tenancies Act 1997, standard term 5
[9] Residential Tenancies Act 1997, standard term 3; sections 9 and 10 of the RTA set the parameters whereby parties may contract out of standard terms, and the constraints on doing so; these provisions are not relevant to the present matter
The standard terms prescribe steps that parties can take to bring a tenancy agreement to an end.[10] Clause 96 allows a lessor to bring a periodic tenancy to an end in certain circumstances, by following a specified procedure. The standard terms at the relevant time, in October 2021, and to the extent they are relevant to the present matter, read as follows:
(1) If there is a periodic tenancy, the lessor may serve on the tenant a notice to vacate for the following periods on the following grounds:
(a)8 weeks notice if the lessor genuinely intends to live in the premises;
…
(1A) If the lessor serves a notice to vacate on the ground of an intention or belief mentioned in subclause (1)(a), … , the lessor must also give the tenant a statutory declaration about the intention or belief.
[10] Residential Tenancies Act 1997, standard terms 92, 93, 94, 96
Clause 83 of the standard terms specifies how a notice to vacate must be served. The notice must be consistent with the requirements of the RTA; must give the address of the premises; must set out the grounds for the notice and sufficient particulars to substantiate the grounds; and must state the requirement to vacate the premises at the end of the notice period and that the tenancy ends on the day the tenant vacates the premises.
If a lessor serves a notice to vacate but the tenant does not vacate the premises by the date specified, the lessor may apply to this Tribunal for a termination and possession order. Subsection 47(1) of the RTA, the relevant provision in these circumstances, reads as follows:
47 No breach of standard residential tenancy terms
(1) On application by a lessor, the ACAT may make a termination and possession order if satisfied that—
(a)a ground for termination exists under the standard residential tenancy terms (other than for a breach of the standard residential tenancy terms); and
(b)the lessor has served a termination notice on the tenant based on that ground; and
(c)the tenant has not vacated the premises as required by the termination notice.
Consideration
A fixed term residential tenancy agreement under the RTA is the statutory counterpart of a common law lease. It allocates a possessory right to the tenant – a possessory right limited by the term of the tenancy – and during its term the lessor is severely constrained with regard to the premises, provided the tenant continues to meet the terms of the agreement, especially by paying the correct rent on time and by taking proper care of the premises. Under the standard terms the lessor grants the tenant exclusive possession[11] and must not interfere with, or permit interference with, the tenant’s peace, comfort and privacy in the use of the premises.[12] The lessor may not enter the premises except in accordance with the RTA, the agreement, by order of this Tribunal, or otherwise by law, or as permitted by the tenant.[13]
[11] Residential Tenancies Act 1997, standard term 53
[12] Residential Tenancies Act 1997, standard term 52
[13] Residential Tenancies Act 1997, standard term 75
Once a tenancy transitions from fixed term to periodic, the constraints ease, and it becomes more straightforward to bring the tenancy to an end, but it remains a process in which recognition is given to a tenant’s interest in finding and retaining secure accommodation. Where a lessor takes action to end a periodic tenancy, a certain amount of notice must be given and certain procedures must be followed. Where a lessor has the intention of moving into the premises, clause 96 requires that a notice to vacate be given to the tenant; the notice period has varied from time to time in the ACT, but at the time relevant to the present matter the notice period was eight weeks. Further, the lessor is obliged to give the tenant a statutory declaration affirming the intention of occupying the premises.
Where such notice is given, and the tenant does not vacate, the lessor may seek a termination and possession order under section 47 of the RTA, which requires that a ground exist (relevantly, here, the genuine intention to occupy the premises), that the notice to vacate has been served, and that the tenant has not vacated as required. Satisfaction of those conditions is needed to enliven the Tribunal’s discretion to grant the order; in the absence of those conditions being met, the Tribunal lacks the jurisdiction to make the termination and possession order sought.
In the present matter I have no doubt that the applicants have formed a genuine intention to move back into the family home; and it is not at issue that the tenant has not vacated the premises. The question that arises is whether the notice given meets the requirements of the RTA. Clause 83 of the standard terms sets out what is required in such a notice: under clause 83(b) it must set out the ground and provide particulars, which in the current context not only requires that the intention to move into the premises be stated, but also that the statutory declaration called for by clause 96(1A) be provided.
The correct giving of notice and provision of a statutory declaration were the subject of detailed examination in a recent case. In Mohammadian v Samani[14] (Mohammadian) the Tribunal noted first of all that the wording of clause 96(1A) of the standard terms, especially the words “must also” in that clause, requires that the statutory declaration required be provided at the same time as the notice to vacate.[15] The Tribunal in that case also examined the requirements of service of notices to vacate, noting that the practice adopted frequently by agents of sending such notices by email was not in accordance with section 5 of the Residential Tenancies Regulation 1998, which prescribes quite narrowly the methods of service that can be used. Further, for the reasons explained in that decision, care needs to exercised in the giving of a notice to vacate if the lessor and Tribunal are to be confident that the notice period required by the legislation has been met.
[14] [2021] ACAT 125
[15] Mohammadian v Samani [2021] ACAT 125 at [74]
In the present matter, it seemed that the notice to vacate was provided by email, although that was not entirely clear; and the notice period was exactly eight weeks if I assumed that the notice was given and received on 18 October 2021 (the notice itself appeared undated, but another message by agency staff referred to having “just sent” the notice, and that message was dated 18 October). For reasons similar to those explored in Mohammadian I was not at all sure that the notice was validly served and that the notice period required had in fact been given;[16] but I did not have to reach a conclusion on these points because by the admission of the applicants no statutory declaration had been given to the tenant. Clause 96(1A) of the standard terms was unmet and the requirements of section 47 were plainly not satisfied. I accordingly lacked the jurisdiction to make a termination and possession order under that section.
[16] Mohammadian v Samani [2021] ACAT 125 at [46]-[67], [77]-[79]
For the purposes of completeness, I would note that the power to correct a defective termination notice in sections 59 and 83 of the RTA, whatever corrections those sections may allow, certainly does not extend to creating a statutory declaration where one has not been made.
In all the circumstances I have no option but to dismiss the application. I appreciate that this may be devastating for the Palmer family.
………………………………..
Senior Member M Hyman
| Date(s) of hearing: | 13 January 2022 |
| First Applicant: | In person |
| Second Applicant: | Mr C Palmer, authorised representative |
| Respondent: | Mr E Ogbonna, authorised representative |
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