1 Residential Tenancies Act 2010
Transcription
1 Residential Tenancies Act 2010
1 LONG TERM TENANTS 1. Section 94 (1) (a) of the Residential Tenancies Act 2010 defines ‘long term tenant’ as a ‘tenant [who] has been in continual possession of the same residential premises for a period of 20 years or more’. 2. In regards to no-grounds terminations the Act treats long term tenants differently to other tenants (see Sections 84 (4), 85 (4) and 94) . Section 94 states: 94 Termination of long term tenancies (1) The Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement: (a) if the tenant has been in continual possession of the same residential premises for a period of 20 years or more, and (b) if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement has expired, and (c) if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case. (2) A landlord may make an application under this section without giving the tenant a termination notice. (3) The Tribunal must not make a termination order under this section that specifies a termination date that is before the end of the fixed term if the residential tenancy agreement is a fixed term agreement. (4) The Tribunal, in determining the day on which vacant possession of the residential premises is to be given to the landlord, must not order that vacant possession be given earlier than 90 days after the order is made. The Act treats long term tenants differently in three respects: • The landlord applies directly to the Consumer, Trader and Tenancy Tribunal for a termination order, without issuing a notice of termination. • The Tribunal must look at ‘the circumstances of the case’. • If the Tribunal proceeds to make an order, then it must not make an order for possession for a date earlier than 90 days from the date of the order for termination. Long term tenants 16 July 2012 2 3. The first dot point in Paragraph 2 is a radical departure from previous practice. The landlord does not issue a notice of termination (and if they do, it is not a termination notice under the Act). 4. The second dot point in Paragraph 2 preserves the status-quo from the repealed Residential Tenancies Act 1987 (Section 64 (2) (c)), but only for a long term tenant. 5. The third dot point in Paragraph 2 introduces a problem that occurred only infrequently under the previous Act. When an order for termination is made, there is no longer a tenancy on-foot and it is 90 days before the possession order takes effect. Reasons follow: (i). Section 81 (3) of the Residential Tenancies Act 2010 states that a residential tenancy agreement terminates if the Tribunal makes an order terminating the residential tenancy agreement. (ii). In the case of long term tenancies, Section 94 (4) of the Act states that the possession order must be dated to take effect at least 90 days after the order terminating the residential tenancy agreement. (iii). But this leaves the former tenant and former landlord in limbo, as the former tenant continues to occupy the premises without a residential tenancy agreement on-foot which bind parties to Part 3 ('Rights and obligations of landlords and tenants') of the Act. However, this situation is addressed by the Tribunal making an order under Section 188 (b) of the Residential Tenancies Act 2010: that is, to suspend the operation of the order terminating the residential tenancy agreement until the same date that the possession order takes effect. 6. On 12 December 2011 Older Persons Tenants Service wrote to the Chairperson of the Consumer, Trader and Tenancy Tribunal seeking a ‘Chairperson’s Directions’. On 30 April 2012 the Chairperson placed Chairperson’s Directions CTTT CD2012-3 entitled ‘Suspension of operation of order for termination to date for possession’ on the website of the Consumer, Trader and Tenancy Tribunal. This may be viewed at: http://www.cttt.nsw.gov.au/Resources/Publications/Chairpersons_directions/Susp ension_of_operation_of_termination_order.html 7. It should be noted that long term tenants are treated no differently to other tenants where the termination notice provides grounds. 8. Following the commencement of this provision OPTS received an enquiry where the original tenant signed a lease or residential tenancy agreement more than 20 years ago, but died with their spouse taking over the tenancy. However, the spouse has lived at the premises ‘continually’ for more than 20 years. Long term tenants 16 July 2012 3 The question arises whether the spouse is a long term tenant within the meaning of the Act. There are two arguments that support an answer in the affirmative. Firstly, Section 3 of the Residential Tenancies Act 2010 defines tenant to include ‘the person to whom such a right passes by transfer or operation of the law’. Secondly, The Macquarie Dictionary (Second Edition, 1991, p.388) defines ‘continual’ as ‘proceeding without interruption or cessation; continuous in time’. Janice Gray, Brendan Edgeworth, Neil Foster and Scott Grattan, Property Law in New South Wales , Second Edition, Butterworth, 2007 (pp 184 to 186) discusses the meaning of ‘possession’: … it is not a term which has been neatly and succinctly judicially defined' Toohey J in Mabo v Queensland (No 2) described it as ‘a conclusion of law defining the nature and status of a particular relationship of control by a person over land’ [my emphasis]. Applying the definition of ‘continual’ and drawing upon the comments by Toohey J in Mabo v Queensland (No 2), even though the name of the deceased spouse only was on the original lease or residential tenancy agreement, it may argued, depending upon the circumstances, that both jointly exercised control over the land. Hence, it follows that the surviving spouse’s continual possession of the same residential premises is for more than 20 years. It is doubtful whether a child (instead of a surviving spouse in the above scenario) would meet the criterion of ‘control over land’ and, accordingly, any attempt to assert that the child was a long term tenant would fail. 9. Following the commencement of this provision OPTS received an enquiry where current the tenant initially may have been a boarder, but he had lived at the same premises ‘continually’ for more than 20 years. What is relevant is their status as a tenant at the time they are asked to go, and the length of their occupation of those residential premises. Indeed, other categories of tenants who similarly might be covered by this provision include an owner who became a tenant such as one of the many victims of the HomeFund fiasco. 10. Watch a pitfall with Section 110 (1). A tenant of 20 years or more standing who receives a 90-day termination notice may be seen as abandoning their tenancy (and up for all the associated costs) if they move out early using Section 110 of the Act. The reason for this is that the termination notice that they received is not a termination notice within the meaning of Section 80 of the Act, because of the operation of Section 85 (4). If the tenant wishes to leave before the 90 days is up (or until such time as there is a Tribunal order terminating the tenancy), then one course open to them is to obtain the landlord's consent under Section 81 (4) (e). Long term tenants 16 July 2012 4 There is an alternative interpretation of the so-called 'pitfall' with Section 110 (1) (thanks to Chris Martin of the Tenants’ Union of NSW). It is not abandonment, but a termination by consent. Although the landlord’s notice is not a termination notice, it is still a representation on the part of the landlord that they seek an end to the tenancy. Neither is this representation conditional. By making their representation in the form of a 90-day termination notice, the implicitly assumes the 'get out sooner' provision that Section 110 inserts into such notices. Also, there is the matter of estoppel: ie the landlord represents to the tenant that their tenancy may end per Sections 85 and 110. The tenant relies on that representation to their detriment by vacating in the absence of a valid termination notice. Therefore, the landlord is estopped from asserting their legal right to recover losses. Robert Mowbray Older Persons Tenants Service 16 July 2012 Long term tenants 16 July 2012 5 Attachment 1 Submission to Consumer, Trader and Tenancy Tribunal The landlord seeks a termination order under Section 94 of the Residential Tenancies Act 2010. This section states: 94 Termination of long term tenancies (1) The Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement: (a) if the tenant has been in continual possession of the same residential premises for a period of 20 years or more, and (b) if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement has expired, and (c) if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case. … (4) The Tribunal, in determining the day on which vacant possession of the residential premises is to be given to the landlord, must not order that vacant possession be given earlier than 90 days after the order is made. The tenant asks that the landlord’s application be dismissed because of ‘the circumstances of the case’. Clearly, it was the intention of Parliament in 2010, when the Act was enacted, for the Tribunal to give special consideration to the circumstances of long term tenants, with it having the discretion to dismiss an application brought by the landlord. I refer to the case of RTA v Swain in which the NSW Court of Appeal upheld the decision of Rolfe J in the Supreme Court matter of Swain v Residential Tenancies Tribunal (unreported Supreme Court of New South Wales 22 March 1995 Rolfe J). The Supreme Court judgment in Swain held that the Residential Tribunal in considering an application to terminate the tenancy under section 64 (2) (c) the Tribunal must give weight to any possible hardship to the tenant when considering under that section ‘the circumstances of the case’. Section Long term tenants 16 July 2012 6 64(2)(c) was held to apply when termination was commenced under section 58 of the Act. The Court of Appeal in endorsing Rolfe J's reasoning on the operation of section 64 (2) (c) sets a test, which requires the Tribunal to consider the hardship to the tenant if the tenancy were terminated. Rolfe J noted in that case: ... Possible 'circumstances', which may have to be taken into account, are the time the tenant has occupied the premises, the age and state of health of the tenant, the necessity for any number of reasons for the tenant to live in a particular area, and the inability of the tenant to obtain other suitable accommodation in which, of course, I include accommodation in an area suitable for matters such as proximity to family, facilities or employment. (at 14) I refer the Tribunal to the discussion of Section 64 (2) (c) of previous Residential Tenancies Act 1987 on pages 170 to 175 of Allan Anforth and Peter Christensen, Residential Tenancies Law and Practice New South Wales, 4th Edition, 2008. The tenant’s circumstances are detailed in Appendix 1 [tenant to append a document called ‘Appendix 1” that spells out their circumstances and attaches evidence, such as statutory declarations, medical certificates, etc.]. The tenant submits that, because of the circumstances of the case, the landlords’ application should be dismissed. Long term tenants 16 July 2012 7 Attachment 2 POSSIBLE CONSENT ORDER The Tribunal makes the following orders: 1. That the residential tenancy agreement between the parties terminates today. 2. That the tenant will give vacant possession of the residential premises on … [insert date … must be a date not less than 90 days after date of Tribunal hearing]. 3. That the tenant will pay or occupation fee of $X/7 per day whilst he remains at the premises [where $X is the weekly rent]. 4. That the Tribunal will suspend the operation of the order terminating the tenancy and the order to pay occupation fee until … [insert date, being the same date that the possession order is to take effect]. (s188 (b) of RTA 2010) The Tribunal notes that the landlord agrees that, should the tenant wish to leave earlier than … [insert date, being the day before the possession order is to take effect], the landlord will have no objection as long as 7 days’ written notice is given. The landlord will only require the rent (or occupation fee) to be paid up to the new vacating date. 1 1 Any such agreement to leave earlier than the possession date should be turned into a written agreement by the landlord and the tenant at the time that the tenant gives the 7 days’ written notice in order for the landlord to be bound by s. 81 (4) (e) of RTA 2010. Alternatively, it is sufficient for the tenant to give 21 days written notice under s. 97 of RTA 2010. Long term tenants 16 July 2012