The Commissioner for Housing in the Act v Handley
[2006] ACTRTT 16
•24 May, 2006
The Commissioner for Housing in the ACT -v- Handley ACTRTT16 [2006]
CATCHWORDS
Rental arrears
Notice to Vacate
LEGISLATION
Residential Tenancies Act 1997 (ACT)
CASE LAW
Case Reference Number: RT 1998 of 2006
RE: Premises at 4 Collits Place MACQUARIE ACT 2614
Decision
Member: J. Lennard
Date: 24 May, 2006
ORDERS EX PARTE:
That the Tenancy Agreement has been breached.
That the Residential Tenancies Agreement is terminated and possession of the premises is to be given to the lessor/s at 10:00am on Wednesday the 24th day of May, 2006.
That the said tenant and any other person claiming right of possession through the tenant’s tenancy is to vacate the premises in accordance with this Order.
That a warrant for eviction is to be issued in accordance with Order 2 of these orders.
That the lessor may access the premises immediately to determine whether the tenants/s is still in possession.
That the tenant/s is to remove all goods and return the premises in a clean condition by 5:00pm on the 31st day of May, 2006.
That any goods remaining on the premises after the date for vacant possession will be deemed uncollected goods and the Uncollected Good Act applies to their storage and disposal.
That the tenant/s shall pay the lessor rental arrears in the sum of $6733.12 forthwith.
That any default in the payment of any instalment will result in the entire amount outstanding becoming due and payable forthwith.
That the tenant/s shall pay the lessor an occupancy fee at the rate of $36.47 per day from the 25th day of May, 2006, until the date that possession is given.
Member: J. Lennard
Date: 29 May, 2006
ORDERS:
That Warrant for Eviction is stayed.
That the application is adjourned until Friday the 16th day of June, 2006, at 10:00am.
| Member: J. Lennard 1 That the Warrant for Eviction is to issue. Member: J. Lennard 1 That the application to stay the Warrant for Eviction is dismissed. |
REASONS FOR DECISIONS
Background Information
- The applicant lessor and the Respondent tenant entered into a residential tenancy agreement in relation to premises at 4 Collits Place Macquarie, Act on 29 July 2003.
- On 11 May 2004 the tenant was in arrears of rent to the sum of $292.61 and the lessor served a notice to remedy.
- On 27 September 2004 the tenant was in arrears of rent to the sum of $474.11 and the lessor served a notice to remedy.
- On 3 February 2005 the tenant was in arrears of rent to the sum of $1073.71 and the lessor served a notice to vacate.
- On 15 February the tenant appealed, via the lessor’s internal review procedures against the notice to vacate. In his application for review the tenant stated, inter alia, that he had arranged for the rent to be directly debited from his bank account every fortnight and that he would make ‘every effort to keep paying untill [sic] I am 2 week in advance as required’. This appeal was upheld and the tenant entered into an agreement to repay the arrears of rent by instalments. The tenant failed to honour this agreement.
- On 9 March 2005 the tenant was in arrears of rent to the sum of $987.16 and the lessor served a second notice to vacate.
- On 23 March 2005 the tenant appealed, via the lessor’s internal review procedures against the notice to vacate. This appeal was upheld and the tenant entered into an agreement to repay the arrears of rent by instalments. The tenant failed to honour this agreement.
- On 22 August 2005 the tenant was in arrears of rent in the amount of 1299.86 and the parties entered into a further agreement for the repayment of arrears at $20 per fortnight. The tenant failed to honour this agreement and also failed to pay rent in the full amount as and when it fell due.
- The tenant failed to respond to letters sent by the lessor with regards to the non-payment of rent and arrears.
- On 3 May 2006 the tenant was in arrears of rent in the amount of $6249.52.
- The lessor made an application to the Residential Tenancies Tribunal for a termination and possession order.
Hearings by the Residential Tenancies Tribunal
12.The application was first heard by the RTT on 24 May 2006. Mr Peter Christensen represented the lessor; the tenant did not attend the hearing. The RTT made a termination and possession order, the provisions of which terminated the tenancy agreement between the parties on 24 May 2006, and ordered the tenant to pay an amount of $6733.12 rental arrears to the lessor.
13.The tenant made an application to set aside the order of 24 May 2006, and this application was heard on 29 May 2006. The tenant gave as grounds for setting aside the order and explanation that he believed that since he had made arrangements to commence regular payments of rent, he was not obliged to attend the application for termination of the tenancy agreement.
14.The RTT adjourned the application to set aside the orders of 24 May to 16 June 2006. The warrant was stayed and the tenant was directed to supply to the lessor information relevant to rental rebate calculations.
15.At the hearing on 16 June 2006 the lessor was again represented by Mr Peter Christensen and the tenant once again failed to appear. The RTT received evidence that the tenant was now in arrears of rent to the amount of $7388.92, an amount greater than the arrears at the date of the original application for a termination and possession order. Taking into account the tenant’s failure to appear and the greater amount of arrears, which indicated that the tenant had not made any further rent payments, the Tribunal ordered that a warrant for eviction be issued forthwith.
16.Mr Handley made an application to set aside the orders of 16 June 2006. In his written application Mr Handley stated ‘I was lead [sic] to believe that my housing officer would be here and my lawyers were going too [sic] call me. I did not mean to not attend and [it] was not my intension [sic] to let this happen’.
17.The Tribunal received oral uncontested evidence form the lessor that the tenant had not provided the information relevant to rental rebate calculations as directed by the tribunal on 29 May 2006 and that the arrears of rent had increased to $7 643.92.
18.Mr Handley asserted that he intended to pay the arrears and rent as it fell due in the future.
The Applicable Legislation
19. Section 49 of the Residential Tenancies Act provides:
(1) On application by a lessor, the tribunal may make a termination and possession order if—
(a) The tenant has failed to pay rent due and payable under the residential tenancy agreement; and
(b) The lessor has served a termination notice on the tenant on the basis of the failure to pay rent; and
(c) The tenant has not vacated the premises in accordance with the notice.
(2) If a lessor has made an application under subsection (1), the tribunal may refuse to make a termination and possession order if—
(a) The tenant has paid the rent due and payable and is, in the tribunal's opinion, reasonably likely to pay rent as it becomes due and payable; and
(b) The tribunal considers it just and appropriate to do so.
(3) Instead of making a termination and possession order under subsection (1), if—
(a) The tenant is, in the tribunal's opinion, reasonably likely to repay the rent due and payable as well as pay rent that becomes due and payable; and
(b) The tenant agrees to repay the rent due and payable, and undertakes to pay rent as it becomes due and payable, as required by the tribunal;
the tribunal may order that if the tenant fails to pay the rent due and payable, or rent that becomes due and payable, as required by the tribunal—
(c) the tenancy terminates at a specified hour on the day after the day when any rent was due and payable and not paid; and
(d) the lessor becomes entitled to possession of the premises and all rent due is payable immediately.
(4) If—
(a) the tribunal makes an order under subsection (1); and
(b) the tribunal is satisfied that—
(i) were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and
(ii) that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period;
the tribunal may suspend the operation of the termination and possession order for a specified period of no more than 3 weeks.
Reasons for Decision
20.The Tribunal was satisfied on the evidence presented in the several hearings on this matter that:
(a) the tenant has failed to pay rent due and payable under the residential tenancy agreement – the tenant was at the date of the hearing in arrears to the amount of $7643.92; and
(b) the lessor has served a termination notice on the tenant on the basis of the failure to pay rent ; and
(c) the tenant has not vacated the premises in accordance with the notice.
21.The Tribunal finds that these matters satisfy the requirements of s49(1) of the Act and therefore the Tribunal could make a termination and possession order based on non payment of rent.
22.The Tribunal considered the making of an order under section 49 (3) – that is a termination and possession order on condition. The Tribunal was of the opinion that the tenant was not reasonably likely to repay the rent due and payable as well as pay rent that becomes due and payable. In considering this matter the Tribunal took into account the following factors:
a)the length of the tenancy – almost 6 years;
b)that the tenant had first fallen into arrears in the first 12 months of the tenancy;
c)that there had been two notices to remedy and two notices to vacate served on the tenant by the lessor and these had not resulted in any real or effective attempt by the tenant to correct the situation of rental arrears;
d)that the tenant had on several occasions entered into agreements to repay the arrears and to pay rent as and when it fell due, but had failed to honour those agreements;
e)that the tenant had failed without believable excuses to attend Tribunal hearings where the termination of the tenancy was being considered;
f)that the tenant had without any excuse failed to supply the information relevant to rental rebate calculations;
g)that the amount of arrears was $7 643.92 – an amount equivalent to 30 weeks rent;
h)that since the original application for termination and possession the amount of arrears has increased from $6 249.52 to $7 643.92; and,
i)that section 42 of the Act provides:
(1) If the enforcement of a termination and possession order is subject to a condition (an enforcement condition ), the order expires on a day stated by the tribunal in the order.
(2) The expiry day must not be more than 1 year after the day the order is made.
(3) However, subsection (2) does not apply if the tribunal believes on reasonable grounds that—
(a) there are exceptional circumstances; and
(b) it would be inappropriate to state an expiry day in accordance with subsection (2).
23. If a conditional; order were to be completed in one year the tenant would need to pay the arrears at a rate of $294 per fortnight, in addition to rent payments.. The Tribunal does not consider an extremely large amount of arrears to be an exceptional circumstance that would justify having no expiry date or extending the period during which the order remained in force.
24. The Tribunal , being of the opinion that the tenant was not reasonably likely to comply with any order made under section 49(3) of the Act, and, being satisfied that the provisions of section 49(1) have been met dismiss the application to set aside the Order of 16 June 2006 and orders that a warrant for eviction be issued forthwith.
J. Lennard
Member
7 July 2006
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