WATT v BRAULT (Residential Tenancies)
[2016] ACAT 44
•14 January 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WATT v BRAULT (Residential Tenancies) [2016] ACAT 44
RT 1146/2015
Catchwords: RESIDENTIAL TENANCIES – termination notice for rent default invalid in the absence of a valid notice to remedy
Legislation cited: Residential Tenancies Act 1997 prescribed term 92
Tribunal: Senior Member A Anforth (Presiding)
Senior Member H Robinson
Date of Orders: 14 January 2016
Date of Reasons for Decision: 16 May 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 1146/2015
| EVELYN WATT | Applicant/Lessor |
-and-
| KELLIE BRAULT | Respondent /Tenant |
| Tribunal: | Senior Member H Robinson and Senior Member A Anforth |
| Date of Order: | 14 January 2016 |
| Premises at: | 1/124 Summerland Circuit, KAMBAH ACT 2902 |
ORDER
The tenant is to pay the rental bond of $1,400 by 21 January 2016.
The tenant is to pay rent arrears of $1,750.00 by 21 January 2016.
The lessor's application for possession is dismissed.
…………Signed…………..
Senior Member A Anforth
REASONS FOR DECISION
The parties entered a residential tenancy agreement on 7 September 2015. The applicant was the lessor and the respondent the tenant. The agreement was in the standard terms. The rent was $350pw and the bond $1400. The bond was never paid by the tenant.
On 22 October 2015 the lessor served a notice to terminate the tenancy which did not set out the grounds for the termination and which had not been preceded by a notice to remedy. The form was the standard notice to terminate form used in NSW. The tenant did not vacate the premises and the lessor lodged an application with the tribunal seeking possession (RT 15/1021). In that application the lessor indicated that the ground relied upon was a rent default.
The matter was listed for a conference on 26 January 2015. Both parties attended. A differently constituted tribunal dismissed the application for want of a valid notice to terminate.
On 26 November 2015 the lessor served a notice to remedy on the tenant alleging rent arrears of 4.77 weeks and giving seven days to make good the default.
On 4 December 2015 the lessor served a termination notice. The notice gave the tenant 14 days to make good the rent default or vacate by 18 December 2015.
On 9 December 2015 the lessor commenced the present proceedings in the tribunal seeking possession, rent arrears, water arrears and compensation for unspecified damage to the house (RT 15/1146).
The matter was listed for hearing on 14 January 2016. Both parties appeared in person. At the hearing the lessor outlined her concerns about certain behaviour issues alleged to be occurring between the tenant and her partner. These issues were not relevant to the notice to terminate.
At the hearing the tenant produced evidence that she had in fact complied with the notice to remedy of 26 November 2016. The lessor did not contend otherwise. The tenant later defaulted on rent again but there has been no notice to remedy or notice to terminate served based on that later default.
Prescribed term 92 of the Schedule to the Residential Tenancies Act 1997 provides:
92 . The tribunal may order the termination of the tenancy and eviction of the tenant on the ground of nonpayment of rent in the following circumstances:
(a) rent has been unpaid for 1 week. The first day of this period concludes at midnight on the day when the unpaid rent was due;
(b) the lessor has served a notice to remedy on the tenant for the failure to pay the rent, being a notice—
(i) served not earlier than 1 week after the day when the rent was due; and
(ii) containing a statement that if the tenant pays the rent outstanding to the date of payment within 7 days of the date of service of the notice to remedy, no further action must be taken and the tenancy continues;(c) if all rent is not paid within 1 week of the date of service of the notice to remedy—the lessor may then serve a notice to vacate on the tenant requiring the tenant to vacate the premises within 2 weeks of service of the notice to vacate;
(d) no earlier than the date when the notice to vacate is served, the lessor may apply to the tribunal for an order terminating the tenancy and evicting the tenant;
(e) the tribunal hearing of the application to terminate and evict must not be earlier than the end of the period specified in the notice to vacate;
(f) during any tenancy in which the lessor has previously issued 2 notices to remedy, the lessor may serve a notice to vacate 1 week after the day when the rent has fallen due without serving a notice to remedy.
In order for a termination notice required under 92(c) to be valid it must have been preceded by a valid notice to remedy that has not been complied with. In the present case the tenant did comply with the notice to remedy and hence the termination notice was invalid.
In the absence of a valid termination notice there was no basis for the Tribunal to order the termination of the tenancy for rent arrears. There was no other termination notice alleging other grounds.
The parties were advised that there is nothing to stop the lessor serving another notice to remedy based on the new rent default.
The failure to pay the bond and the subsequent rent defaults were breaches by the tenant for which the Tribunal has the power to order the tenant to make good.
The Tribunal made the above orders on the day of the hearing. The lessor subsequently sought reasons for the decision which are set out above.
………………………………..
Senior Member A Anforth
for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | RT 1146/2016 |
PARTIES, APPLICANT: | Evelyn Watt |
PARTIES, RESPONDENT: | Kellie Brault |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Senior Member A Anforth, Senior Member H Robinson |
DATES OF HEARING: | 14 January 2016 |
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