JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2016
DATE OF JUDGMENT:	10 June 2016
CASE MAY BE CITED AS:	Swan v Uecker
MEDIUM NEUTRAL CITATION:	[2016] VSC 313

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LANDLORD AND TENANT — Residential tenancies — Whether tenant assigned or sublet or purported to assign or sublet without the landlord’s consent by allowing “AirBnB guests” to stay in the premises — Residential Tenancies Act 1997, ss 244, 253, 263, 288, 314, 317ZF, 317ZG and 319.

LANDLORD AND TENANT – Lease or licence – Test – Right to exclusive possession – Matters relevant to test – Whether ability to make person leave after expiry of agreed period of stay is relevant – Whether principal place of residence is relevant – Whether exclusive possession granted – Lewis v Bell (1985) 1 NSWLR 731; Radaich v Smith (1959) 101 CLR 209; Street v Mountford [1985] 1 AC 809 discussed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. Pizer QC with Ms K. Evans	Bleyer Lawyers Pty Ltd
For the Respondents	Mr W. Smith	Tenants Union Victoria Pty Ltd

HIS HONOUR:

Introduction

This proceeding has been brought pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”). The Applicant, Catherine Swan, is seeking to appeal from an order of the Victorian Civil and Administrative Tribunal (“the Tribunal” or “VCAT”) constituted by Member Campana made on 24 March 2016 in proceeding number R2016/4286.[1]
[1]Swan v Uecker (Residential Tenancies) [2016] VCAT 483 (24 March 2016).

The Applicant owns a two bedroom apartment in Fitzroy Street, St Kilda (“the Apartment”). In August 2015, she leased the Apartment to the Respondents pursuant to a residential tenancy agreement for a term from 20 August 2015 to 19 August 2016 (“the Lease”). The Applicant sought an order for possession in VCAT on the basis that the Respondents had sublet the Apartment in breach of the provisions of the Lease.[2] The Applicant’s case was that the Respondents granted leases to third parties (“AirBnB guests”) who stayed in the Apartment. The Respondents conceded before the Tribunal that AirBnB guests stayed at the apartment for short term stays, booked through the AirBnB website.
[2]The Additional Terms of the Lease—a Residential Tenancy Agreement—provide:

VCAT dismissed the application on the basis that the Respondents had granted licences only to the AirBnB guests, but not leases. Consequently, the Tribunal found that they had not sublet the Apartment.

Broadly speaking, the substance of the legal issues before VCAT was the nature of the occupancy by the AirBnB guests and the consequences, if any, under the terms of the Lease.

In the interests of expedition and economy in terms of time and cost, this proceeding was heard as a combined or “rolled up” application for leave to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Swan v Uecker

Details

AGLC: Swan v Uecker [2016] VSC 313
Case: [2016] VSC 313
Decision Date: 10 June 2016

CaseChat Overview and Summary

In the case of Swan v Uecker, the matter before the court was a dispute between the landlord and tenant of a residential property. The central issue was whether the tenant had assigned or sublet the premises, or had purported to do so, by permitting guests to stay in the property via the "AirBnB" platform, without obtaining the landlord's consent. The relevant legal framework was the Residential Tenancies Act 1997, which includes provisions governing the assignment and subletting of residential tenancies.

The court was required to determine whether the tenant's actions constituted an assignment or sublet under the Act, and whether these actions were valid without the landlord's consent. In particular, the court had to examine the nature of the arrangements between the tenant and the "AirBnB guests" to ascertain whether these arrangements amounted to a lease or a licence. The distinction between these two is crucial as a lease confers the right to exclusive possession, while a licence does not. The court considered the relevant case law, including Lewis v Bell (1985) 1 NSWLR 731, Radaich v Smith (1959) 101 CLR 209, and Street v Mountford [1985] 1 AC 809, which outline the factors pertinent to the test for determining whether a right to exclusive possession exists.

The court concluded that the arrangements in question constituted a sublet, as the landlord retained the right to exclusive possession of the property and could require the tenant to vacate the premises after the agreed period of stay. Furthermore, the fact that the property was not the tenant's principal place of residence played a role in the court's determination. The court held that the landlord's consent was necessary for the tenant to sublet the premises, and since this consent was not obtained, the sublet was unlawful. Consequently, the court ruled in favour of the landlord, determining that the tenant had engaged in an unauthorised sublet of the property.

As a result of the court's decision, the tenant was required to cease allowing guests to stay in the property via the "AirBnB" platform without the landlord's consent. The court may have also ordered the tenant to pay any applicable fines, costs, or damages to the landlord.

Orders