Seymour v Smigielski & Ors (Residential Tenancies)
[2023] ACAT 1
•14 December 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SEYMOUR v SMIGIELSKI & ORS (Residential Tenancies) [2023] ACAT 1
RT 877/2022
Catchwords: RESIDENTIAL TENANCIES – nature of living arrangement – co-tenancy – application for orders that one co-tenant stop being a party to the residential tenancy agreement – grounds for removing a co-tenant – considerations – drug use, damage to property, abusive and threatening behaviour, pets
Legislation cited: Residential Tenancies Act 1997 s 37G
Tribunal:Senior Member K Katavic
Date of Orders: 14 December 2022
Date of Reasons for Decision: 9 January 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 877/2022
BETWEEN:
MICHAEL SEYMOUR
Applicant
AND:
SCOTT SMIGIELSKI
First Respondent
AND:
DANSEY AYLING TRINAE JEAN
Second Respondent
AND:
NAIJU GEORGE
Third Respondent
AND:
STELLA NAIJU
Fourth Respondent
TRIBUNAL:Senior Member K Katavic
DATE:14 December 2022
ORDER
The Tribunal orders that:
From 1 February 2023, the first respondent must stop being a party to the residential tenancy agreement dated 30 July 2022.
The residential tenancy agreement dated 30 July 2022 continues between the lessors and the applicant and second respondent.
On 1 February 2023, the first respondent’s rights and obligations under the residential tenancy agreement dated 30 July 2022 end.
The first respondent’s counter claim is dismissed.
…...…………………..
Senior Member K Katavic
REASONS FOR DECISION
Introduction
The main parties in dispute with each other in this matter live together. On 14 December 2022, the Tribunal heard an application seeking orders that a co-tenant stop being a party to the residential tenancy agreement. I made orders and gave oral reasons at the conclusion of the hearing. This is an edited version of those reasons.
From about August 2022, the applicant, and the first and second respondents commenced living together in a house in Kambah in the ACT (the Premises). They have lived together previously. They had intended for their occupation of the Premises to comprise a residential tenancy between the applicant and the lessors with the first and second respondents being occupants. However, they all signed a residential tenancy agreement dated 30 July 2022 with the lessors as tenants and agreed to be bound by the terms of that agreement. The agreement was for a 12-month fixed term. There are no separate occupancy agreements between the applicant and the first and second respondents. They are therefore co-tenants.
This dispute only involves the tenants. The applicant seeks orders removing the first respondent as a co-tenant. The second respondent supports the application. The applicant and second respondent are a couple. The lessors do not have view as to whether the first respondent should stop being a co-tenant.
The application and evidence
The relationship between the tenants and the household dynamic has broken down. It began to deteriorate not long after their co-habitation began but has deteriorated more significantly since October 2022. The first respondent does not have alternative accommodation, but acknowledges the current situation is undesirable. He opposes being removed as co-tenant. The issue before the Tribunal is whether there are grounds to order the first respondent stop being a party to the agreement.
The Tribunal heard evidence from each of the tenants.
The applicant and second respondent allege the first respondent has engaged in illicit drug use, and abusive and threatening behaviour. They further claim he has damaged the property by removing shelves from a cupboard, a blind being removed, bricks bordering a garden bed being removed, and an outdoor brick BBQ being dismantled. They also claim he has an unapproved pet. They both claimed the first respondent smokes ‘crack’ using a ‘crack pipe’[1] and that this drug paraphernalia is left around the home. Neither documented any of the agreements they say were reached orally before moving in together such as the status of the third bedroom, children residing in the property, or the first respondent’s dog.
[1] I understand ‘crack’ to be an illicit drug which is smoked using a pipe.
The first respondent denies those allegations. He says he has used marijuana for personal use in the garage only. He denied the existence of a ‘crack pipe’ or that he uses ‘crack’. He says he rectified the alleged damage to his cupboard and accepts there was one incident involving an argument with the second respondent. From time to time the second respondent’s young children reside in the Premises, which the first respondent says he was not aware of and did not agree to. He said he thought he was allowed to have a dog but did not and has not sought approval from the lessors to keep the dog.
The legislation – co-tenancies
The Tribunal is being asked to bring the current arrangement to an end by removing the first respondent from the agreement. The tenancy agreement itself is not being disturbed other than seeking the removal of the first respondent from it. It is intended to remain in force with the applicant and second respondent as co-tenants.
Section 35G of the Residential Tenancies Act 1997 (the RTA) states:
ACAT orders—co-tenancy matters
(1) On application by a co-tenant under a residential tenancy agreement, the ACAT may—
(a)if consent required under section 35A (1) (a) is refused—order that a co-tenant may stop being a party to the agreement under section 35A; or
(b)order that the co-tenant may refuse consent for a co-tenant to stop being a party to the agreement under section 35A; or
(c)for an application made under section 35D—
(i)declare that the lessor's refusal to consent to the new person becoming a co-tenant under the residential tenancy agreement was unreasonable; or
(ii)order that the new person stop being a party to the residential tenancy agreement; or
(d)order that—
(i)a co-tenant must stop being a party to the agreement within a stated period (being a period not less than 3 weeks after the order is made); and
(ii)the agreement continues between the lessor and the remaining co-tenants; and
(iii)the co-tenant's rights and obligations under the agreement end; or
(e)make any other order in relation to an order mentioned in paragraphs (a) to (d) that the ACAT considers appropriate.
The applicant seeks orders pursuant to section 35G(1)(d). If the Tribunal were persuaded to make such an order, the first respondent’s rights and obligations under the tenancy agreement would cease. The Tribunal, however, does not have the power to order the first respondent be physically removed from the Premises, only that his legal right to occupy the Premises cease. This places co-tenant(s) who have successfully obtained orders that another co-tenant ceases to be a party to an agreement at a distinct disadvantage as the tribunal does not have a power similar to a warrant for eviction that would enable a co-tenant to be removed from the property. There is potential for any orders made by the tribunal to be a hollow victory or ineffectual. This may require consideration by the legislature.
Section 35G(1)(d) of the RTA, unhelpfully does not provide any grounds upon which such an order could be made or any matters the tribunal may take into account.
The explanatory statement for the insertion of section 35G(1)(d) states:
New section 35G specifies powers of the Tribunal specific to disputes arising from co-tenancies. The Tribunal, upon application by a co-tenant, is empowered to make an order removing a co-tenant from the tenancy agreement. This power is deliberately out of alignment with the existing power of the Tribunal to terminate a tenancy as it will arise from a dispute between co-tenants rather than as a dispute between a landlord and the tenants. An application to remove a co-tenant from the tenancy agreement might arise if the co-tenant is jeopardising the entire tenancy agreement through their repeated non-payment of their share of rent or utilities, use of the premises for illegal activities, or repeated intentional damage to the property.
The legislature has empowered the tribunal to intervene where parties to a residential tenancy agreement can no longer continue in that arrangement. There may be a variety of reasons that might happen. The spectrum of disputes that might arise between co-tenants does not mean in every case removal of a co- tenant is necessary. It is a serious step and the gravity of making such an order should be weighed against the nature of the complaint.
The nature of any dispute between co-tenants will vary and the basis upon which one co-tenant asserts another should be removed from the agreement will vary. The discretion conferred in section 35G(1)(d) is not confined by the scenarios set out in the explanatory statement. They provide guidance but are not the boundaries by which the tribunal might consider ordering a co-tenant to stop being a party to an agreement. Sometimes co-tenants simply cannot live together any longer and the co-tenancy is untenable.
From the terms of the explanatory statement, emphasis is placed on the tenancy agreement itself and whether it is jeopardised by one or more co-tenants. There are many ways the tenancy agreement might be jeopardised. They are not limited to what is stated in the explanatory statement. Breaches of the tenancy agreement by one or more co-tenants repeatedly or significantly would jeopardise the tenancy for other co-tenants. That is because any breaches may entitle a lessor to seek termination of the tenancy agreement on grounds that may not be attributable to all of the co-tenants. The removal of a co-tenant is not a tool to be used to settle personality disputes or trivial disputes about how the tenants live on a day-to-day basis. To my mind it should be reserved for more serious issues. That would include whether the tenancy has been breached by a co-tenant or whether the conduct of a co-tenant creates a risk to the safety of other co-tenants and their entitlement to the quiet enjoyment of the property.
Should the first respondent be ordered to stop being a party to the agreement?
The Tribunal has heard allegations in relation to the first respondent’s conduct at the property. The most serious of these relates to drug use and abusive behaviour. The first respondent denies illicit drug use in the house but says he only smokes marijuana in the garage and it is for personal use. I accept that possession of less than 50g of cannabis for personal use is not illegal. I do not have any evidence of how much cannabis the first respondent has possessed from time-to-time. Both the applicant and second respondent say a ‘crack pipe’ has been found in various places in the house. The applicant says the first respondent has directly asked him where his ‘crack pipe’ is. The first respondent says there is no ‘crack pipe’ at all.
It is not unusual for a Tribunal to have to decide between conflicting evidence. Having read the witnesses statements and heard the oral evidence I am comfortably satisfied drug use has occurred in the property by the first respondent and that it has occurred to an extent that would jeopardise the tenancy agreement. I am satisfied on the balance of probabilities on the evidence before me a ‘crack pipe’ has been found in the house and likely belongs to the first respondent.
The evidence before me details a deterioration of the relationship between the tenants to the extent that I am satisfied there have been incidents I will characterise as heated. The second respondent gave evidence she feels unsafe, and she feels the situation is unsafe for her children. She was not challenged on that. I am comfortably satisfied in all of the circumstances there is a valid safety concern.
The applicant relied upon the first respondent causing damage to the property as a ground for seeking his removal from the tenancy. There is no ingoing condition report which establishes the condition of the property at the commencement of the tenancy. In relation to the removal of shelves, I am satisfied it has been rectified and do not make any finding in relation to it or the blind. These would not of themselves jeopardise the tenancy as any damage of that nature is either required to be fixed at the end of the tenancy or might be deducted from the bond. In relation to the BBQ, it is difficult to assess given the absence of a condition report. The first respondent does not deny he removed bricks from it and says he did so because it was unsafe. This alone would not warrant his removal as a co-tenant.
In relation to the keeping of a pet, clause 74A of the residential tenancy agreement says the tenants may keep an animal and that the residential tenancy agreement may require prior approval from the lessors. Nowhere in the signed residential tenancy agreement has the requirement for prior approval been specified as term. This is not a basis for removing the first respondent as a co-tenant.
I do not make any findings in relation to allegations of sexual assault against the first respondent. He has not been questioned, charged or convicted of any such offence.
Conclusion
Given the untenable nature of the living arrangement and my finding that drug use – both cannabis and the existence of other paraphernalia in the house – jeopardises the tenancy agreement I am satisfied it is appropriate to order the first respondent stop being a party to the residential tenancy agreement. The situation is sufficiently serious, based on the evidence before me to warrant making such an order. To do otherwise leaves the tenants in an unliveable situation and at risk of having the agreement terminated.
It is true the applicant and second respondent might have sought alternative accommodation or sought to have themselves removed, but that is not the application before me. I am being asked to remove the first respondent based on the grounds and evidence before me. I accept this approach disadvantages the first respondent and that he does not presently have alternative accommodation options. To ameliorate the impact of this outcome I order that he must stop being a party to the residential tenancy agreement from 1 February 2023. I am satisfied this is sufficient time.
I acknowledge this has caused significant distress for all involved and is not how the tenants anticipated things would turn out. Notwithstanding the difficult nature of this dispute I am satisfied, on balance, it is appropriate to make these orders.
The first respondent made a counterclaim in relation to the recognition of the first respondent’s contribution to the bond. I am not satisfied I have power to direct the bond form to be executed, but acknowledge the applicant is happy to sign it so as to recognise the interest all the co-tenants have in the bond held by the ACT Rental Bonds Office.
Orders
I therefore make the following orders:
(a)From 1 February 2023, the first respondent must stop being a party to the residential tenancy agreement dated 30 July 2022.
(b)The residential tenancy agreement dated 30 July 2022 continues between the lessors and the applicant and second respondent.
(c)On 1 February 2023, the first respondent’s rights and obligations under the residential tenancy agreement dated 30 July 2022 end.
(d)The first respondent’s counter claim is dismissed.
………………………………..
Senior Member K Katavic
| Date of hearing: | 14 December 2022 |
| Applicant: | In person |
| Solicitor for the First Respondent: | T Pham, Legal Aid |
| Second Respondent: | In person |
| Third Respondent | In person |
| Fourth Respondent: | In person |
0
0
1