Rayner v Respondent RT2436 (Residential Tenancies)

[2024] ACAT 28

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

RAYNER v RESPONDENT RT2436 (Residential Tenancies) [2024] ACAT 28

RT 36/2024

Catchwords:                 RESIDENTIAL TENANCIES – application for termination of residential tenancy – whether respondent had sought prior approval for pets on premises pursuant to s 71AE-AF of Residential Tenancy Act 1997– whether the respondent had misled the applicant in violation of s 52 of the Residential Tenancy Act 1997 – whether the respondent placing the premises on booking.com constituted a sublease in violation of s 72(1) of Standard Terms in Schedule 1 of the Residential Tenancy Act 1997 – application granted

Legislation cited:ACT Civil and Administrative Tribunal Act 2008 s 22b

Residential Tenancy Act 1997 ss 52, 71AE-AF, s 72 (1) of Schedule 1, Standard Residential Tenancy Terms

Tribunal: Member M Hanna

Date of Orders:  19 March 2024

Date of Reasons for Decision:         8 April 2024

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 36/2024

BETWEEN:

JOHANNA RAYNER

Applicant/Lessor

AND:

RESPONDENT RT2436

Respondent/Tenant

TRIBUNAL:Member M Hanna

DATE:19 March 2024

ORDER

The Tribunal orders that:

1.The residential tenancy agreement is terminated at 10am on 26 March 2024.

2.The tenant must vacate the premises on or before 10am on 26 March 2024.

3.If the tenant fails to vacate the premises as required by paragraph 2 of the Order, the lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.

4.The counterclaim filed by the respondent is dismissed.

….……Signed………..

Member M Hanna

REASONS FOR DECISION

1.The application sought to have the respondent’s tenancy agreement terminated by ACAT on the basis of a number of alleged breaches of the standard residential tenancy terms and the Residential Tenancy Act 1997 (as detailed below).

2.A Notice to Remedy had been issued on 19 February 2024 in regard to outstanding rent. After reviewing evidence from both parties, no breach was found as rent was paid up until 18 March 2024.

3.The applicant alleged the respondent had breached section 72(1) of the Standard Residential Tenancy Terms, incorporated into Schedule 1 of the Residential Tenancies Act 1997 (the Act) section 72(1) by subleasing the apartment, or parts of it, without permission of the lessor. The respondent admitted that she did sublease a room on Booking.com without permission “for a period of months.” She was unable to exactly specify when this breach came to an end but claimed she had ceased to breach section 72(1) after being issued a notice to remedy. Further, the respondent claimed she did not know approval was necessary but admitted that she had also sub-let her apartment in an earlier lease five years before and had sought permission of the lessor there to do so (in Queensland). The applicant adduced written and oral evidence that the respondent was still subleasing as late as January and February 2024. The respondent attempted to disprove the evidence by adducing emails that suggested she may have closed, or attempted to close, her Booking.com account sometime before October 2023. On the balance of probabilities, it was found that this breach was established and not rectified timely.

4.The applicant further claimed that the respondent had breached sections 71AE–AF (Item 16 of the tenancy agreement), requiring that the tenant request permission from the lessor before having pets. Photographic and witness statements were supplied to the tribunal which indicated that there were a number of cats, possibly four or five, in the apartment as early as June 2023. Further, the earliest request for permission from the respondent was subsequent to the notification of the breach by the applicant, and that as of 11 July 2023, the applicant had informed the respondent that the lessor refused permission for the cats to be housed there.

5.Medical evidence was provided to the tribunal indicating the lessor has a very serious allergic and health issue with cat and horsehair. The lessor testified she does not oppose pets as a whole but cannot accept cats due to the hazard they would pose for her on resuming the apartment. The lessor informed the Tribunal that she needs to return to the premises later in the year on her return from posting in London, but she admitted that no notice of her return to her premises had been given to the respondent.

6.The respondent testified that at the time of taking up the tenancy that she did not house her cats in the apartment but did not counter the applicant’s evidence that the cats were in place prior to seeking approval and after permission was refused. She also admitted that she acted as a pet sitter for cats at the premises and allowed other cat sits to occasionally reside on the property and not sought permission for either.

7.The Tribunal found that the respondent was in breach of section 71AE–AF of the Act and Item 16 of her tenancy agreement.

8.The applicant alleged the respondent had violated section 52 of the Residential Tenancy Act by making a “false or misleading statement” in her tenancy application, by failing to notify the Lessor of her intention to house cats on the premises and then doing so. Evidence was led which shows that cats have been a part of the respondent’s life for some years and continue to be. Though the respondent insisted that at the time of the application for the tenancy that her cats were housed with a friend, and that she travels often in her work, evidence established that the respondent has a close relationship with cats, that she is a cat sitter and fosters cats and that at the time of the application, owned or was caring for at least two, if not four or five cats. It is hard to conceive that the respondent did not misrepresent her position by failing to note that she would in the near future bring a number of cats onto the premises, something she knew the applicant required permission for.

9.A counter claim filed by the respondent claimed lost earnings due to dealing with the application. The only evidence filed in support were medical certificates and evidence of various medical conditions. The respondent refused to share or disclose these with the applicant. The Tribunal repeatedly sought to have the respondent clarify the exact nature of the counter claim, how the applicant was responsible for the condition she claimed to exist and to quantify the claim. The respondent was unable to qualify or exactly quantify her counterclaim, nor state exactly what damages or orders, if any, she sought. It was evident, in reviewing these issues, that the respondent felt that in having to attend proceedings, having to put together a response to the alleged breaches and document her situation, she had found the situation traumatic and distressing. However, no evidence was led which established any direct link to the lessor or the lessor’s agents nor was any evidence supplied to the tribunal to quantify any alleged damages or wages lost. The counterclaim was therefore dismissed.

………………………………..

Member M Hanna

Date(s) of hearing:	18 March 2024
Applicant:	In person
Respondents:	Mr M Cross & Ms C Allan, authorised representatives