Legislation: Residential Tenancies Act 1997, ss 6A, 6B and 71C, and Parts 1A, 4 and 5A, and Schedule 1 (Standard residential tenancy terms), clauses 75-79

Cases: Bangura & Fan [2013] ACAT 38

Bruton v London & Quadrant Housing Trust [1999] UKHL 26; [1999] 3 AER 481

Community Housing Canberra T/As CHC Affordable Housing

v Connell (Residential Tenancies) [2013] ACAT 68

Estate of Tanya Humphries v Commissioner for Housing in the ACT [2003] ACTSC 40

Northern Sandblasting P/L v Harris (1997) 188 CLR 313

NSW Land and Housing Corporation v Mann [2014] NSWCAT

Progressive Mailing House P/L v Tabali Pty Ltd (1985) 157

Radaich v Smith [1959] HCA 45; (1989) 101 CLR 209

Shahid v Australian College of Dermatologists [2008] FCAFC 72

Yousif v Commonwealth Bank of Australia [2010] FCAFC 8

Wiser v. Havelock Housing Association Inc [2014] ACTSC 138

Texts/Papers: Gillies, Peter, and Selvadurai, Niloufer, Law of Contracts, (The

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL RT 14/306

The Agreement is an occupancy agreement and that the Commissioner has properly terminated the Agreement.

1. The occupancy agreement is terminated and the Respondent is to vacate the premises and return vacant possession to the Commissioner on or before 20 August 2014.

1. The Respondent commenced occupying a 3 bedroom house in Gilmore in the ACT under an agreement with the Commissioner for Social Housing (the Commissioner) dated 11 July 2013 (the Agreement). The Agreement is annexed to these reasons. The Agreement was said to be an occupancy agreement within the meaning of Part 5A of the Residential Tenancies Act 1997 (RTA) as opposed to a residential tenancy agreement within the meaning of Part 1A of the RTA. The Agreement was for a fixed term of 3 months at a rent of $820 per fortnight subject to the Respondent's entitlement to any rent rebate per the special condition in the Agreement.
2. Clause 6.1.1 of the Agreement provided that the Agreement was to continue beyond the expiry of the fixed term on a "month to month basis" until such time as the Agreement was terminated by notice served on the Respondent.
3. The Respondent was allocated the house by the Commissioner as a temporary measure to facilitate the Respondent's care of his step children following the demise of their mother. Proceedings for the care of the children were afoot at the time and, subsequently, the children were removed to the care of a government agency. The Respondent was left in the house by himself with two dogs that apparently belonged to the children.
4. On 24 October 2013, the Commissioner issued and served a notice to vacate to the Respondent based on the expiration of the fixed term of the Agreement. The Commissioner purported to rely upon clauses 6.1, 6.2 and 6.3 of the Agreement. The Respondent did not vacate in response to the notice.
5. On 2 April 2014 the Commissioner lodged an application with the Tribunal seeking termination of the occupancy agreement. Annexed was a copy of the Agreement between the parties and the notice to vacate of 24 October 2013.
6. The matter came before a differently constituted Tribunal on 17 April 2014. Mr Adkins appeared for the Commissioner and Ms Faulder of the Welfare Rights and Legal Centre appeared for the Respondent. The Respondent contended that the Agreement was in truth a residential tenancy agreement and not a mere occupancy agreement within the meaning of the RTA. It was further contended that the notice served on the Respondent was ineffective to terminate a residential tenancy agreement. The Tribunal made orders for the filing of submissions by the parties for the resolution of this question of fact and law.
7. On 12 May 2014, the Commissioner filed its submissions which read as follows:
   1. Until the decision of the ACT Civil and Administrative Tribunal in Bangura & Fan ACAT 38 Rt 12/607 [2013], the accepted practice within the ACT community was that occupancy agreements could be used as an alternative to entering into a residential tenancy agreement, particularly if the agreement was for the short to medium term.
8. From the perspective of social housing, Occupancy Agreements were regularly used as temporary contracts for the relocation of tenants while works were completed at their permanent residence. Occupancy Agreements have also been regularly used following the death of a tenant or abandonment (repudiation) of a tenancy by a tenant, to allow a resident or family member to remain in the premises while their eligibility for Housing Assistance was assessed.
9. Occupancy Agreements have also been used widely in the community sector, and the Tribunal has upheld many of these agreements.
10. In reading the Residential Tenancies Act 1997, it is easy to understand how Occupancy Agreements could have been relied upon and entered into in error. In Bangura Senior Member Anforth alludes to this and notes that "(t)he Act substantially confuses the relatively clear distinction between tenancies and lesser contractual licences at common law." [32]
11. Since highlighted, Justice and Community Safety have identified that there are issues with the operation of Occupancy Agreements, and have raised them as a specific topic in its current review of the Residential Tenancies Act.

1. In Bangura, the nature of the contract was not ultimately relevant and as such no decision was made about the agreement itself. In the subsequent decision of Community Housing Canberra T/As CHC Affordable Housing v Connell (Residential Tenancies) ACAT 68 RT 13/ 586 [2013], Member Daniel noted that "varying terminology and lack of express provisions create some uncertainty as to what is intended to be the terms of the agreement." [50] Due to this uncertainty the contract was dealt with as a Tenancy Agreement.
2. The Applicant submits that no such ambiguity exists in this matter. The contract is unequivocally couched in the terms of an Occupancy Agreement and the occupancy principles required under the Residential Tenancies Act 1997 are clearly satisfied. Indeed, if it were not for the questions raised by Senior Member Anforth in Bangura as to the efficacy of Occupancy Agreements, the Applicant submits the matter would not now be being considered by the Tribunal.
3. While it is difficult to fault the reasoning of Senior Member Anforth in Bangura, the implication is that at the basic level a significant proportion of Occupancy Agreements that have been made in the ACT are frustrated by a common mistake.
4. In relation to implying a Tenancy Agreement, the Applicant submits that the Tribunal must be cognisant of the nature and intent of the original agreement. Here, the agreement was for a fixed term and carried the following clause:

6.1.1 In the absence of notice to terminate the agreement being issued prior to the date of expiration of the agreement, the Occupant may continue to occupy the premises after the date of expiration on a month to month basis, and otherwise on the terms of this Agreement. If the Occupant continues to occupy the premises after the date of expiration under this clause, either party may terminate the permit to occupy the premises, by 21 days notice in writing, expiring at any time, to the other party in accordance with term 6.2 of the agreement.

1. The Applicant submits that if the Tribunal determines that the agreement entered into the by the parties represents a Tenancy Agreement, then that Agreement should import a similar term as that agreed to in the original contract. The Applicant notes that s 36 of the Residential Tenancies Act 1997 states

Despite anything to the contrary in any territory law, a residential tenancy agreement must not terminate or be terminated other than in the following circumstances:

1. And in relation to fixed term tenancy agreements states
   • (a) if a fixed term agreement ends and the tenant vacates the premises on or after the end of the agreement.

1. Section 9 of the Residential Tenancies Act 1997 states
   1. Inconsistent tenancy terms void

_(1)A term of a residential tenancy agreement is void if - _

(a) it is inconsistent with a standard residential tenancy term; and

(b) it has not been endorsed by the ACAT under section 10.

(2) A term of a residential tenancy agreement is void if it/s inconsistent with this Act (other than a standard residential tenancy term).

1. Section 9 considered, the inclusion of such a term within a Residential Tenancy Agreement would be meaningless unless it were also endorsed by the Tribunal.
2. The Applicant submits that the inclusion of such an endorsed term. While inconsistent with the standard terms, would not be inconsistent with the Residential Tenancies Act 1997 itself and would therefore be capable of endorsement. Such a finding would more accurately reflect the contract the parties sought to enter into.
3. The absence of such a clause would leave the Lessor with no other option for moving to end the Agreement other than issuing the Respondent with a 26 Week Notice. Such notice was clearly outside the intent of the parties and the agreement entered into.
4. If the Tribunal is not willing to find a Tenancy Agreement that reflects the original contract as outlined above then the Applicant submits that the only reasonable and correct decision would be to void the agreement from the hearing date terminating the tenancy.
5. On 12 June 2014, the Respondent's solicitors filed submissions that read as follows:
   1. These submissions are made pursuant to orders dated 17 April 2014.
6. This is an application by The Commissioner for Social Housing seeking an order 'terminating the occupancy agreement' between the Applicant and the Respondent Mr Johnson in relation to[the property].
7. This application is premised upon the Respondent's failure to vacate the property after the service by the Applicant of a 21-day Termination Notice.
8. The Applicant filed submissions on 15 May 2014. The essence of those submissions appears to be that the Tribunal should accept the agreement is an occupancy agreement. If the Tribunal finds it is a tenancy agreement, it should incorporate into the agreement the terms of the signed occupancy agreement. If the Tribunal is not minded to do so, the Tribunal should void the agreement from the hearing date, thus terminating the tenancy.
9. It is the Respondent's submissions that the legal nature of the agreement between the Applicant and Respondent is most properly characterised as a residential tenancy agreement and, as such, the Applicant must comply with the requirements established under the Residential Tenancies Act 1997 ("the RTA") pertaining to residential tenancy agreements, including those relating to termination. Section 36 of the RTA prescribes the mechanisms for lawful termination of a residential tenancy agreement.
10. The Applicant correctly identifies, at paragraph [15], the grounds under which termination of the tenancy could be sought (in the absence of a breach of the standard terms, failure to pay rent, etc).
11. As the Applicant has not complied with the requirements for termination, the application must be dismissed.
12. The Respondent does not concede that the Tribunal should void the tenancy from the hearing date. If the Tribunal finds a tenancy agreement exists between the Applicant and Respondent, it is not open to the Tribunal to simply "void the tenancy".

1. The Respondent entered into an agreement with the Applicant on 11 July 2013 in relation to the property. This agreement was termed to be an 'occupancy agreement'.
2. The agreement was for the fixed term, terminating on 11 October 2013. No further written agreement was entered into between the parties.
3. On 24 October 2013, the Applicant served the Respondent with a 21-day Termination Notice.

1. The RTA provides the framework that governs the relationship between the Applicant and the Respondent.

1. An "Occupancy Agreement" is defined in broad terms by section 71C of the RTA:

_(1) An agreement is an occupancy agreement if - _

(a) a person (the grantor) gives someone else (the occupant) a right to occupy stated premises; and

(b) the premises are for the occupant to use as a home (whether or not with other people); and

(c) the right is given for value; and

(d) the agreement is not a residential tenancy agreement.

(a) express or implied; or

(b) in writing, oral, or partly in writing and partly oral.

(a) exclusive or not;

(b) given with a right to use facilities, furniture or goods.

_(4) The person given the right to occupy the premises may be - _

(a) a boarder or lodger; or

(b) someone prescribed by regulation for this section.

1. Most significantly, section 71C(1)(d) defines an occupancy agreement in the negative as an "agreement [which] is not a residential tenancy agreement."
2. Section 71C does not provide guidance as to how one delineates between a residential tenancy agreement and an occupancy agreement. However, existing authority on the interpretation of the provision suggests a threshold enquiry:

The first question is whether an agreement between parties does or does not answer the description of a residential tenancy agreement. Only if the answer is in the negative is the further questions asked as to whether the agreement answers the definition of an 'occupancy agreement' (emphasis added).

1. Thus, the first enquiry when characterising the relationship between the Applicant and the Respondent ought to be whether it falls within the definition of a residential tenancy agreement.

1. A residential tenancy agreement is defined in s 6A of the RTA:

(1) An agreement is a residential tenancy agreement if, under the

(a) a person gives someone else (the tenant) a right to occupy stated premises; and

(b) the premises are for the tenant to use as a home (whether or not together with other people); and

(c) the right is given for value.

(a) express or implied; or

(b) in writing, oral, or partly in writing and partly oral.

(a) exclusive or not exclusive; and

(b) given with a right to use facilities, furniture or goods.

1. The Tribunal has construed the definition contained in section 6A broadly. For example, in the matter of Bangura & Fan (Civil Dispute) [2013], the Tribunal held that the common law requirement for exclusive possession is not a pre-condition to the finding of a tenancy and held that persons in shared accommodation can still be found to have entered a residential tenancy agreement by implication.
2. The existence of a residential tenancy agreement is to be ascertained with reference to the conduct of the parties and can be found to subsist despite:
   1. Nomenclature; and
   2. Intention
3. The nomenclature of the agreement signed by the Applicant and Respondent does not conclusively define the nature of the legal relationship between the parties. The mere title of an agreement does not define its legal status.
4. The position under the RTA in relation to nomenclature in the context of occupancy agreements can be distinguished from that of residential tenancy agreements. Section 6B provides that if an agreement states that it is a residential tenancy agreement, then this must be deemed to be such an agreement. Conversely, section 71C does not contain such a provision.
5. Regardless of the nomenclature in the agreement signed by the parties, the true nature of the relationship is reflected in the respective conduct of the parties:

The characterization of an agreement as being an 'occupancy agreement' remains a legal conclusion that must be reached by the Tribunal on the facts of the case. (emphasis added).

24.There is no requirement in the definition provided by section 6A of the RTA that the parties share a common intention to create a residential tenancy agreement as such. As noted by Member Daniel in Connell:

This is not to say that section 6A does not include an intentional element; this is required by the need that there be agreement. There is no doubt in this case that there was a common intention for Ms Connell to be given the right to occupy a property, as a home, for value. An agreement was reached, and that agreement has been implemented between the parties.

25.The Respondent was given exclusive possession of premises. The Applicant received rent payments and treated, for all intents and purposes, the Respondent's occupation as one of any other public housing tenant. Importantly, the Respondent retained keys to the premises and had exclusive control, and use, of the premises.

26.It is submitted that the agreement satisfies the definition provided by section 6A for a residential tenancy agreement and that sections 6D, 6E and 6F are of no application in this matter.

27.If the Tribunal accepts the Respondent's submissions as to the nature of the agreement, it follows that any terms inconsistent with the RTA are void. The only basis upon which the Tribunal could grant a termination and possession order is pursuant to section 47 of the RTA (no-cause), which requires the issuing of a 26 week notice. As this has not occurred, the application must be dismissed.

28.In light of the above, the Respondent requests the Tribunal:

(a) Dismiss the application;

(b) Confirm the residential tenancy agreement between The Commissioner for Social Housing in the ACT and Mr Steven Johnson.

1. The matter came before the presently constituted Tribunal on 8 July 2014. Mr Adkins appeared for the Commissioner and Ms Aidman of WRLC appeared for the Respondent. There was discussion concerning a possible compromise. The Commissioner indicated that she may be willing to transfer the Respondent to a smaller housing unit commensurate with his status as a single person provided that the Respondent satisfied the Commissioner's eligibility criteria. The Respondent indicated his preparedness to move to a smaller unit. The Tribunal indicated its preference for the matter to resolve in a manner that did not see the Respondent unhoused if such a compromise could be found.
2. The matter was adjourned to facilitate the compromise. The Respondent was ordered to provide the Commissioner with an application for housing with his financial details for eligibility assessment. The matter was listed for further directions only on 16 July 2014 in the hope that a compromise may have been reached by that time.
3. On 16 July 2014, the parties informed the Tribunal that the Commissioner had offered the Respondent a choice between two small units. The Respondent was provided with keys to inspect the premises.
4. The parties were encouraged to resolve the proceedings on this basis. However orders were made for the disposition of the outstanding issue of fact and law in the event that the Respondent chose not to accept either unit. Those orders read:
   1. If the tenant accepts either of the offered premises the parties are to advise the tribunal.
   2. If the matter does not settle the applicant is to file and serve any further evidence and submissions by Friday 18 July 2014.
   3. The respondent is to file and serve any further evidence and submissions by Friday 25 July 2014.
   4. The outstanding issue will then be determined on the papers.

1. The matter evidently did not settle and, on 18 July 2014, the Commissioner filed the following final submissions:
   1. When Housing ACT entered into this agreement with Mr Johnson it did so intending to be contractually bound only on those terms within the occupancy agreement.
   2. The Residential Tenancies Act 1997 allows for statutory contracts in two forms: occupancy agreements and residential tenancy agreements. They are different in their essential terms - occupancy agreements do not afford s36 termination protection nor include the standard residential terms of schedule 1.
   3. If the Tribunal were minded to accept the Respondent's request to effectively incorporate new terms into the occupancy agreement, such that the agreement is indistinguishable from a newly formed residential tenancy agreement, then I submit the Tribunal has retrospectively changed the contract in an irreparable way.
   4. The test for incorporation of terms is 'would a reasonable person - in the position of the party who denies the term that has been incorporated in the contract - understand the other person as intending to contract on the basis that the term is part of the contract.'

5. The question then becomes, would a reasonable person in the position of Housing ACT understand that when Mr Johnson entered into the occupancy agreement, Mr Johnson intended that the terms of a residential tenancy agreement would form part of the contract.

1. I submit that a reasonable person could not reach this conclusion. Housing ACT contracted to the terms of an occupancy agreement only and there were no grounds to believe that Mr Johnson intended anything different.
2. The Tribunal can call the contract between Housing ACT and Mr Johnson anything it likes. It can call it a 'Residential Tenancy Agreement' if it so chooses. What the Tribunal cannot do is incorporate terms into that agreement which Housing ACT never agreed to.
3. Mr Johnson was allocated a three bedroom home. The reason for this allocation was specifically in relation to his care of Ms Hall's children. The children were removed from Ms Johnson's care in October 2013 and Housing ACT have been clear in our intent to end Mr Johnson's occupancy of this property since that time.
4. Mr Johnson says that he knows he is in a property which is too large for him and has no objection to moving to a smaller property. Housing ACT has provided alternative accommodation options to Mr Johnson which he has declined.
5. Social housing is a scarce resource and it is important that it is appropriately directed to those most in need in the ACT community. The longer Mr Johnson remains in this property the longer a family is denied the opportunity of a home and stable family life.

11.While he is eligible for public housing, Mr Johnson will remain on the list to be housed in single person accommodation. He has already had significant latitude in remaining at the current property and I submit there is no utility for allowing Mr Johnson's occupancy to continue further.

1. On 25 July 2014, the Respondent's solicitors filed the following final submissions:
   1. These submissions are made pursuant to orders dated 16 July 2014.

1. In June 2013, Mr Johnson's fiancé passed away. This was sudden and unexpected and Mr Johnson witnessed her death.
2. Following his fiancé's passing, Mr Johnson cared for his fiancé's children, his stepchildren. Care & Protection Services (CPS') were involved as there was no legal parent to care for the children (Mr Johnson's fiancé having been awarded parental responsibility by the Family Court earlier in 2013).

4. As the children did not wish to reside in the home of their mother, CPS liaised with Housing ACT and an alternate property was secured (being the property the subject of the current application).

5. Mr Johnson continued to care for the children. No other person put their hand up to care for the children. Unfortunately, after Housing ACT issued Mr Johnson with a Notice to Vacate (whilst still caring for the children), Mr Johnson was under enormous pressure as he did not know where he would live with the children. Mr Johnson found CPS to be unsupportive and, when Mr Johnson expressed considerable frustration at the situation, CPS removed the children from his care.

1. On 1 May 2014, the Children's Court awarded parental responsibility to CPS. The children remain in foster care. Mr Johnson has had ongoing contact with the children and would like to one day care for the children on an overnight basis.
2. Prior to final orders being made in the Children's Court, the Housing & Tenancy Review Panel ('HATRP') reviewed Mr Johnson's matter and recommended that Mr Johnson be given a 12 month tenancy. The Delegate of the Commissioner, Ms Bronwen Overton-Clarke overrode this recommendation and the Commissioner lodged an application with the ACAT seeking a termination and possession order.

1. Mr Johnson lodged an Application for Social Housing Assistance sometime prior to May 2014. The Commissioner appears not to have processed this application.
2. Mr Johnson lodged two (2) further Applications for Social Housing Assistance.
3. On 16 July 2014, seemingly after encouragement by the ACAT, the Commissioner offered Mr Johnson keys to two (2) properties. Mr Johnson inspected both properties. Unfortunately, neither property was suitable as Mr Johnson has two (2) large dogs and the properties were units; one of the top floor and the other a mid-floor unit.

11.On 18 July 2014, the Welfare Rights & Legal Centre notified the Commissioner that the properties were not suitable and advised that a ground floor unit with a small courtyard would be more appropriate.

12.The dogs belong to Mr Johnson's deceased fiancé. Whilst Mr Johnson does not wish to be homeless, he is extremely reluctant to let go of the dogs as they are a connection to his past. In addition, the children know the dogs.

13.Mr Johnson had ceased working to care for the children and to attend contact arrangements when the children were removed from his care. Mr Johnson has recently re-entered the workforce. The business he is working for (as a mechanic) is a start-up company and Mr Johnson is trying to get his foot in the door to gain ongoing employment.

14. The Applicant filed further submissions on 18 July 2014;

15. In relation to the legal arguments engaged by the Applicant, the Respondent has little to add to the Respondents earlier submissions.

16. The Applicant asserts that a residential tenancy agreement could not exist between the Applicant and Respondent:

because Housing ACT entered into this agreement**... intending** to be contractual bound only on those terms within the occupancy agreement [emphasis added].

The Tribunal can call the contract between Housing ACT and Mr Johnson anything it likes. It can call it a 'Residential Tenancy Agreement' if it so chooses. What the Tribunal cannot do is incorporate terms into that agreement which Housing ACT never agreed to.[emphasis added].

1. It has been accepted by the Tribunal that intention of a party is not conclusive in the assessment of the legal status of a relationship in this contact (e.g. Bangura & Fan (Civil Dispute) [2013] ACAT 38; Community Housing Canberra T/as CHC Affordable housing v Connell [2013] ACAT 68. As the Tribunal held in Connell:

There is no requirement in the definition provided by section 6A of the RTA that the parties share a common intention to create a `residential tenancy agreement'.

19.The Applicant further submits that of the Tribunal were to find residential tenancy protections 'embedded' in the contract between the Applicant and Respondent, then the Tribunal would be retrospectively changing the contract.

20.It is submitted that this incorrectly construes the impact of the Residential Tenancies Act ('RTA'). The RTA governs the legal relationship between the Applicant and the Respondent, and the basic protections afforded therein cannot be contracted out of.

21.Schedule 1 of the RTA articulates the "Prescribed Terms" which apply to all residential tenancies in the ACT. The Prescribed Terms cover much of the relationship between lessor and tenant, including the requirements for termination of any relationship.

22.The Prescribed Terms can be modified by the lessor and tenant if the proposed changes are consistent with the Prescribed Terms. Where, however, the lessor and the tenant wish to change their Residential Tenancy Agreement in a way which is inconsistent with the Prescribed Terms, all such changes must be endorsed by the Tribunal. There is no assertion here on behalf of the Applicant that endorsement of such kind was sought.

23.Certain rights and obligations of residential tenants in the ACT are embedded in the RTA and cannot be changed, even with consent of the parties. One such immutable term is that, pursuant to section 36, a tenancy is to be terminated only in accordance with the RTA.

24.It is submitted that the agreement between the Applicant and Respondent satisfies the definition in section 6A of the RTA and that it is not open to the Tribunal to terminate the Respondent's tenancy without the satisfaction of proper notice requirements afforded to tenants.

24.Mr Johnson has not had a "free ride". He is a young man who, in the past 13 months has experienced more than most people and certainly more than anyone would wish for. He lost his fiancé and his step-children. The experience has been traumatic and Mr Johnson has struggled with depression and suicidal ideation.

25.Mr Johnson is yet to be provided with a suitable offer of property transfer but hopes one may be forthcoming in the near future. In the meantime, Mr Johnson wishes to retain the roof over his head.

1. The Tribunal does not cavil with the submissions on the law advanced by each party. Both sets of submissions appear to accurately state the relevant principles of law. The real issue is the application of the principles to the facts of this case. It is here that the parties part company.
2. The Tribunal accepts that merely calling the present Agreement an occupancy agreement is not definitive of its true character.[1] The Tribunal accepts that if the Agreement can be fairly characterised as a residential tenancy agreement then there is no need to determine whether it may also be characterised as an occupancy agreement.
3. The true character of the Agreement must be determined objectively, that is, by reference to the express or implied communications between the parties and the terms of the Agreement itself.[2]
4. The objective nature of the test to be applied means that the personal (subjective) hopes, wishes, intentions or aspirations of either party is not a relevant consideration unless and only to the extent that those subjective factors were actually communicated to the other party and were factored into the final agreement reached between the parties.
5. A residential tenancy agreement and an occupancy agreement are both contracts, albeit with substantial statutory overlay.[3] It might be more accurate to describe a residential tenancy agreement as a statutorily imposed contract.
6. Nevertheless, it is still the case that the objectively communicated intention of the parties is important to working out the true character of the agreement. That intention is to be found in the antecedent communications between the parties and in the terms of the written agreement reached between the parties.
7. In the present case, the objective communications between the parties centred on providing accommodation to the Respondent when he was temporarily caring for his children while the issue of the permanent care of the children was determined. This kind of arrangement is one that Commissioner undertakes from time to time as part of the Commissioner's wider operations within the welfare security net in the ACT. Accommodation of this kind does not necessarily require the occupant allocated to a house to have satisfied the assets and income test that would normally apply to any applicant for permanent social housing in the ACT. The Commissioner is also involved in a range of crisis accommodation issues from time to time.
8. The above is relevant to working out the objective intention of the parties. The mere fact that the Respondent was put into the house with the children, with exclusive occupancy, is not of itself determinative of the existence of a residential tenancy agreement. The arrangement is also consistent with the Commissioner's role in providing crisis or temporary housing in conjunction with other welfare agencies.
9. The Agreement itself was signed by both parties. The aspects of the Agreement that point to a residential tenancy agreement are:
   • (a) the fact that the Respondent and the children were to have the sole right to possession during the terms of the Agreement; and
   • (b) clause 4 of the Agreement relating to the state of repairs of the premises and the Commissioner's duty to repair are drawn from the standard terms of a residential tenancy agreement.
10. The aspects of the Agreement that are inconsistent with a residential tenancy agreement and point to an occupancy agreement are:
    • (a) the title of the Agreement as an Occupancy Agreement;
    • (b) the fact that the Occupancy Principles of Part 5 were annexed to the Agreement;
    • (c) the fact that clause 1.2 expressly states that the Agreement is an occupancy agreement and is not a residential tenancy agreement;[4]
    • (d) clause 2.1 is inconsistent with the Respondent's complete exclusive right of possession as a tenant in that it expressly restricted occupation to the Respondent and the children.[5] In the case of a tenancy, the Respondent would have the freedom to have other people live with him;
    • (e) the use of the expression 'occupation fee' rather than 'rent':
    • (f) the fact that clause 5 permits the Commissioner to enter the premises on terms not consistent with a residential tenancy agreement;[6]
    • (g) the fact that clause 6 permits the Commissioner to terminate the Agreement in a manner inconsistent with a residential tenancy agreement;[7] and
    • (h) the absence of sundry other terms of the standard residential tenancy agreement.
11. The inconsistency between the statutory terms of a residential tenancy agreement and terms agreed between the parties is important. The agreed terms intrude in very substantial ways into some of the core rights accorded to tenants; for example, the scope of the tenant's exclusive right of possession, the landlord's right of access to the premises and the process for terminating the Agreement.
12. Viewed objectively, it is not possible to see the present agreement as a residential tenancy agreement, but the terms do accord with the common terms of an occupancy agreement.
13. Apart from a consideration of the objective intentions of the parties and the terms of the Agreement itself, there are public policy considerations pointing to an occupancy agreement. The Commissioner points to the existence of a waiting list for government housing in the ACT and 'queue jumping'. The Tribunal is not persuaded that this policy consideration carries much weight.[8]
14. The Tribunal raised with the parties the danger to the role of the Commissioner if people allocated temporary or crisis accommodation are elevated to the status of permanent tenants (under a residential tenancy agreement). The availability of housing stock for temporary or crisis programs will quickly evaporate and the Commissioner will be faced with a disincentive to participation in the provision of such accommodation. This is not a desirable policy outcome for those in Canberra facing temporary or crisis housing stress.

1. The Agreement is an occupancy agreement.
2. The Commissioner has properly terminated the Agreement.
3. The Respondent has failed to vacate the premises in response to the termination.
4. The dispute between the parties is a 'occupancy dispute' within the meaning of section 73 of the RTA over which the Tribunal has jurisdiction (section 79 of the RTA).
5. The Tribunal has power to resolve the dispute by making an order for possession of the premises in favour of the Commissioner (section 83(i) of the RTA).
6. The occupancy agreement is terminated and the Respondent is to vacate the premises and return vacant possession to the Commissioner on or before 20 August 2014.

1. The Occupant:: Steven Johnson
2. The Grantor: The Commissioner for Social Housing
3. The Premises: 44 Alice Jackson Cres Gilmore
4. The Occupancy Fee: $820 per fortnight
5. The Termination date: 11 October 2013

1.1 The Housing Commissioner hereby permits the Occupant to occupy the Premises in accordance with the terms of this Agreement from the commencement date until this agreement is terminated pursuant to Clause 6.

1.2 The parties acknowledge that this agreement is an occupancy agreement under Section 71C of the Residential Tenancies Act 1997 and nothing in this Agreement is intended to create the relationship of Lessor and Tenant between the Housing Commissioner and the Occupant in respect of the Premises, and nothing in the Agreement is intended to give the Occupant any interest in the land comprising the Premises.

2.1 The Occupant shall use the Premises as a place of residence for the Occupant and his/her family and for no other purpose except with the written approval of the Housing Commissioner. The Occupant will not permit any other person to reside in the premises.

2.2 The Occupant shall not assign, sublet or part with possession of the premises or any part of them without the written consent of the Housing Commissioner. The Occupant shall be deemed to have parted with possession of the premises in the event he or she is absent from the premises for more than 21 days without the written consent of the Housing Commissioner.

3.1 The Occupant shall pay the fortnightly occupation fee set out in the Schedule on the date of the signing hereof in advance and on each fortnight thereafter to the Housing Commissioner or as directed by the Housing Commissioner, unless the Special Condition hereto applies.

4.1 The Occupant acknowledges that the premises are, at the commencement, in a fit and proper state for occupation.

4.2 The Housing Commissioner shall maintain the premises in a reasonable state of repair having regard to their condition at the commencement of this agreement.

4.3 The Housing Commissioner shall not cause or permit any interference with the reasonable peace, comfort or privacy of the Occupant in the use by the Occupant of the premises.

(a) not intentionally or negligently damage the premises or permit such

damage;

(b) notify the Housing Commissioner of any damage or the need for any repairs as soon as possible; and

(c) take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to their condition at the time of the commencement of the agreement and the normal incidents of living.

4.5 The Housing Commissioner shall make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed) but the Housing Commissioner shall not be obliged to repair damage caused by the negligent or wilful act of the Occupant or of persons on the property with the consent of the Occupant.

4.6 If the premises are a unit under the Unit Titles Act 2001, the Occupant must comply with the articles of the Owners' corporation, and with any notice served in accordance with the articles, to the extent that they are not inconsistent with this agreement.

4.7 The Occupant shall not make any additions or alterations or add any fixtures or fittings to the premises without the written consent of the Housing Commissioner.

(a) use the premises, or permit them to be used, for any illegal or criminal purpose; or

(b) cause or permit nuisance or interfere with the quiet enjoyment of occupiers of nearby premises by him or herself, his or her family and residents or any other person on the premises with the consent of the Occupant.

5.1 The Occupant may permit access to the premises by the Housing Commissioner at any time.

5.2 The Housing Commissioner may inspect the premises every three months during the term of this agreement, upon giving the Occupant 3 days' written notice.

5.3 The inspection shall take place at a time agreed between the parties with reasonable regard to the work and other commitments both of the Occupant and of the Housing Commissioner (or their agents). In the event a time cannot be agreed, either party may apply to the Tribunal to specify a time.

5.4 On giving the Occupant 3 days notice (or such other agreed period), the Housing Commissioner may enter the premises at a reasonable time, having regard to the interests of the Occupant and the Housing Commissioner, for the purpose of making or inspecting repairs.

5.5 In the case of urgent repairs the Housing Commissioner shall give reasonable notice and enter the premises at a reasonable time having regard to the interests of the Occupant and the Housing Commissioner.

6.1 Notwithstanding any law to the contrary, if it has not previously terminated, this agreement shall terminate on the Termination date set out in schedule.

6.1.1 In the absence of notice to terminate the agreement being issued prior to the date of expiration of the agreement, the Occupant may continue to occupy the premises after the date of expiration on a month to month basis, and otherwise on the terms of this Agreement. If the Occupant continues to occupy the premises after the date of expiration under this clause, either party may terminate the permit to occupy the premises, by 21 days notice in writing, expiring at any time, to the other party in accordance with term 6.2 of the agreement.

6.2 Either party may also terminate this agreement by giving 21 days written notice to the other. This agreement ends on the date specified.

6.3 The Housing Commissioner or the Occupant may, by giving 2 days written notice, terminate this agreement on a date specified in the notice on the grounds that the Premises are not fit for habitation;

6.4 In the event the Occupant does not vacate the premises on the date specified in sub-clauses 6.1, 6.2 or 6.3, the Housing Commissioner may apply to the ACT Civil and Administrative Tribunal (ACAT) for a Termination and Possession order.

6.5 The Housing Commissioner may apply to the ACAT for a Termination and Possession order effective immediately if it is satisfied that the Occupant has intentionally or recklessly caused or allowed, or is likely to cause or allow -

(a) serious damage to the premises or to other property of the Housing Commissioner; or

(b) injury to a representative of the Housing Commissioner or a member of a representative's family.

(c) serious or continuous interference with the quiet enjoyment of nearby premises by an occupier of the premises.

6.6 In the event either party alleges the other has breached a term of this agreement (including as to payment of the occupation fee), and wishes to terminate the agreement, the party must serve a Notice on the other specifying the breach and providing 7 days to remedy the breach. In the event the breach is not remedied within 7 days, the party serving the Notice may apply to the ACAT for a Termination and Possession order.

6.7 The Occupant shall leave the premises on vacation -

(a) in a reasonably clean state, removing all his or her belongings and any other goods brought onto the premises during the duration of this agreement; and

(b) in substantially the same condition as the premises were in at the commencement of this agreement, fair wear and tear excepted.

7.1 On vacating the premises, the Occupant must advise the Housing Commissioner of a forwarding address.

7.2 This Agreement shall be governed by and construed in accordance with the law for the time being in force in the Australian Capital Territory and the parties submit to the jurisdiction of the ACT Civil and Administrative Tribunal of the Australian Capital Territory. The "Occupancy Principles" specified at Part 5A of the Residential Tenancies Act 1997 apply to this Agreement.

SIGNED AS AN AGREEMENT this 11 day of July 2013

To obtain Rent Rebate, Occupants must complete an application as required under the Public Rental Housing Assistance Program. Each application must be true and correct in every respect and include all relevant information (whether requested by the Housing Commissioner or not).

• provide further details whenever requested by the Housing Commissioner (including making a renewed application); and
• immediately give notice to the Housing Commissioner of any relevant change of circumstances, whether requested by the Housing Commissioner or not.

Occupants authorise the Housing Commissioner to obtain information from their employers, the Department of Family and Community Services, Centrelink and other Commonwealth, State or Territory agencies relating to their income or other details relevant to their entitlement to Rent Rebate.

If Occupants do not comply with this clause, the Housing Commissioner may redetermine their entitlement to Rent Rebate. A redetermination may be backdated. Occupants must repay on demand any overpayment of Rent Rebate arising from a backdated redetermination.

PART 5A OF THE RESIDENTIAL TENANCIES ACT 1997

(1) In considering a matter, or making a decision, under this Act in relation to an occupancy agreement for premises, a person must have regard to the following principles (the occupancy principles):

(a) an occupant is entitled to live in premises that are

(i) reasonably clean; and

(ii) in a reasonable state of repair; and

(iii) reasonably secure;

(b) an occupant is entitled to know the rules of the premises before moving in;

(c) an occupant is entitled to the certainty of having the occupancy agreement in writing if the occupancy continues for longer than 6 weeks;

(d) an occupant is entitled to quiet enjoyment of the premises;

(e) a grantor is entitled to enter the premises at a reasonable time on reasonable grounds to carry out inspections or repairs and for other reasonable purposes;

(f) an occupant is entitled to 8 weeks notice before the grantor increases the amount to be paid for the right to occupy the premises;

(g) an occupant is entitled to know why and how the occupancy may be terminated, including how much notice will be given before eviction;

(h) an occupant must not be evicted without reasonable notice;

(i) a grantor and occupant should try to resolve disputes using reasonable dispute resolution processes.

(2) If an occupant occupies a mobile home on land in a mobile home park and the mobile home is not provided by the grantor -

(a) the occupancy principle in subsection (1) (e) applies to the land and any fixtures provided by the grantor, but not the mobile home; and

(b) the grantor is entitled to enter the mobile home only with reasonable notice, at reasonable times, on reasonable grounds and for reasonable purposes.

[1] Radaich v Smith [1959] HCA 45; (1989) 101 CLR 209; Bruton v London & Quadrant Housing Trust [1999] UKHL 26; [1999] 3 AER 481

[2] Yousif v Commonwealth Bank of Australia [2010] FCAFC 8 at 98; Shahid v Australian College of Dermatologists [2008] FCAFC 72; Gillies, Peter, and Selvadurai, Niloufer, Law of Contracts, (The Federation Press, 2009) at p197

[3] Progressive Mailing House P/L v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17; Estate of Tanya Humphries v Commissioner for Housing in the ACT [2003] ACTSC 40; Northern Sandblasting P/L v Harris (1997) 188 CLR 313; Radaich v Smith supra)

[4] cf. section 6A of RTA where the parties have the right to nominate the agreement as being a residential tenancy agreement.

[5] Wiser v. Havelock Housing Association Inc [2014] ACTSC 138

[6] cf. Part 4 of the RTA and clauses 75-79, 82 of schedule 1 of the RTA

[7] Cf. Divisions 4.1 and 4.4 of the RTA

[8] See NSW Land and Housing Corporation v Mann [2014] NSWCAT