Re: Billabong Aboriginal Corporation ? v ? Jason Cameron & Rhonda Cameron
[2008] ACTRTT 3
•31 March 2008
Re: Billabong Aboriginal Corporation – v – Jason Cameron & Rhonda Cameron ACTRTT 3 [2008]
CATCHWORDS
Termination of Tenancy Agreement – Rental arrears – Endorsement of Clauses – Rental Increase
LEGISLATION
Residential Tenancies Act 1997 (ACT)
Sections 9,
Clauses 34- 36 Standard Residential Terms
CASE LAW
Case Reference Number: RTT 08/058
Re: Premises at: 20 Henry Sutton Circuit, Dunlop. ACT 2615
Decision
1.That the application be dismissed.
Member: J. A. David
Date: 31 March 2008
IN THE RESIDENTIAL ) RT 58 of 2008
TENANCIES TRIBUNAL )
OF THE AUSTRALIAN )
CAPITAL TERRITORY )APPLICANT: Billabong Aboriginal Corporation
(Lessor)
RESPONDENTS: Jason Cameron & Rhonda Cameron
(Tenants)
STATEMENT OF REASONS
BACKGROUND
1 The parties entered into a residential tenancies agreement in relation to the premises at 20 Henry Street, Dunlop in the Australian Capital Territory for a fixed term of 12 months from 1 August 2007 to 31 July 2008 at a weekly rent of $430. Annexure ‘A’ to the Tenancy Agreement provided that a new ‘Prescribed Term 36’ was to be included in the agreement. This term was not endorsed by the Tribunal.
2 The new Prescribed Term 36 provided that, where the premises were provided to the Lessor by the Commission for Housing and the Commissioner reviewed the rent under section 15(3) of the Housing assistance Act 1987 and then increased the rent, then:
a)‘If a previous review of rent has been undertaken by the Commissioner – the increase shall not take effect less that 1 year after the date of the last increase of rent in respect of the premises, or
b)If no previous review of rent has been undertaken – the lessor may increase the rent in accordance with the decision of the Commissioner.’
3 The tenant fell behind in paying the rent and the lessor issued a 2nd Notice to Remedy on 17 September 2007. A 1st Notice to Remedy had been issued under a previous Tenancy Agreement between the parties in respect of these promises. The lessor intended to issue a Notice to Vacate to the tenants on 30 November 2007 requiring the tenants to vacate on or before 5 December 2007. However, by agreement the tenants undertook to pay $50 per fortnight off their arrears of rent and to pay the rent regularly.
4 A Rental Rebate Review was issued on 19 November 2007 to the tenants requiring them to lodge the Application Form for a review together with the required proof of income in support by 30 November 2007. The Review notice stated that if the tenants did not lodge a completed application by 30 November 2007 they would have to pay the full rent of $480 per week from 22 December 2007.
5 The tenants were advised by letter dated 9 January 2008 that their Application for a Rental Rebate had not been successful and that they were required to pay the ‘full weekly rent of $480 as of 14 January 2008.’ A further Notice to Vacate was issued on 21 January 2008 as the tenants were then $1407.48 in arrears. The Notice required the tenants to vacate the premises on or before 5 February 2008. By letter dated 22 January 2008 the tenants were advised the Final Inspection would take place on 5 January 2008.
6 At the hearing on 21 February 2008 the tenants were represented by a representative of the Welfare Rights Legal Centre. I dismissed the lessor’s application on the ground that there was no endorsement of the ‘new Prescribed Term 36’, as a result it was void under section 9 and Clause 35 of the Standard Residential Tenancy Terms in Schedule 1 of the Residential tenancies Act 1997 (the Standard Terms).
7 The lessor requested this Statement of Reasons on 28 February 2008. The Tribunal apologises for the time taken to provide them.
Documentary Evidence
8 The documentary evidence before the Tribunal was that contained in the Application together with an updated Tenant Ledger tendered at the hearing by the lessor.
FINDINGS AND REASONING
Applicable Law
9 Section 9(1) of the Residential Tenancies Act provides that ‘a term of a residential tenancy agreement is void if:
a) it is inconsistent with a standard residential tenancy term, and
b) it has not been endorsed by the tribunal under section 10.’Section 9(2) goes on to provide that a term of a residential tenancy agreement is void if it is inconsistent with the Act. Then section 10 of the Act gives the tribunal power to endorse terms that are inconsistent with the Standard terms in certain circumstances.
10 Clauses 34 - 41 of the Standard Terms apply to rental increases. Essentially the relevant clauses for this Application provide that the rent may be increased on or after 12 months from the commencement of the tenancy (Cl. 35). The lessor must give the tenant 8 weeks notice in writing of the increase and specify the amount and the proposed commencement date for the increase in the notice (Cl.38).
Rental Increase
11 The lessor sought a termination and possession order against the tenants on the grounds the tenants had not paid the rent owing under the increase of $50 per week of which they were notified on 9 January 2008 after the failure of their rental rebate review application. The tenants were also given notice on 19 November 2007 that they needed to file a rental rebate application and supporting documentation and that they would have to pay increased ‘full rent’.
12 At the hearing the lessor advised the tribunal that it rents the premises from the Commissioner for Housing under a “head lease” and then further rents the premises to the present tenants. The Commissioner for Housing had increased the rent the lessor paid under the ‘head lease’ and therefore the lessor sought to pass on that rental increase to it’s tenants by the new Prescribed Term 36. Also, the lessor stated that tenant and the lessor had an oral agreement to pay the rent in advance as that was not provided for in the tenancy agreement. Finally, the tenants had had substantial periods where they had paid their rent late.
13 On behalf of the tenants it was submitted that there was no provision in the tenancy agreement for rent to be paid in advance and also there was an unlawful rental increase as new Prescribed Term 36 was not endorsed and therefore void under section 9 of the Act. The provisions of Clause 35 of the Standard Terms in Schedule 1 of the Act were not complied with in relation to the notice required for a rental increase. Therefore, the alleged rental arrears were much less that the lessor had calculated and in fact the tenants’ rent was paid up to date.
14 The Tribunal accepts the submissions made on behalf of the tenants concerning the notice to vacate; that it is not valid as there was no proof of service nor oral evidence of service and that the Notice does not state the correct amount of rent owing.
15 The Tribunal finds that the ‘new Prescribed Term 36’ is void under section 9 of the Act and that, even if it were not void, the require notice under Clause 35 of the Standard Terms was not given. A rebate is needed for overpayment of rent.
16 Therefore, the Tribunal determined that the lessor’s claim should be dismissed. The Tribunal ordered accordingly.
ORDERS
1.That the application be dismissed.
Jennifer David – Member
31st March 2008.
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