Legislation cited: Residential Tenancies Act 1997 s 48, standard residential tenancy terms, clause 70

Human Rights Act 2004 s 12

Cases cited: Commissioner for Social Housing in the ACT & Canham [2012] ACAT 41

Commissioner for Social Housing v A [2015] ACAT 13

1. The residential tenancy agreement is terminated.

1. The operation of order 1 is suspended until 5.pm on 14 July 2016.

1. The tenant must vacate the premises on or before 5.pm on 14 July 2016.

1. If the tenant fails to vacate the premises as required by paragraph 3 of this order the lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.

1. By application to the Tribunal dated 6 July 2015 the applicant, the Commissioner for Social Housing (the Commissioner) applied for a termination and possession order in relation to its property in Ainslie, ACT. The property was the subject of a residential tenancy agreement dated 18 April 2007 between the Commissioner, as lessor and Mr Trpcevski, as tenant.
2. On 24 June 2016, I ordered that the residential tenancy agreement was terminated with effect from 5:00pm on 14 July 2016; that the tenant must vacate the premises on or before 5:00pm on 14 July 2016; and that if the tenant failed to vacate the premises as required the Commissioner may request the Registrar of the Tribunal to issue a warrant for eviction.
3. When making my orders, I gave a short statement that I was satisfied that the preconditions for making the order under section 48(1)(a)(i) - (v) were met; that I was not satisfied that the discretion under section 48(2) for refusing to make the order was available to me; and that I would not have exercised the discretion if it were. I suspended the orders regarding termination of the lease and vacating the premises for a period of three weeks under section 48(2)(b) of the Act, being to 14 July 2016.
4. When making my orders, I stated I would publish my reasons. I now do so.
5. The application was brought with reliance on section 48 of the Residential Tenancies Act 1997 (the Act), which provides:

Certain breaches of standard residential tenancy terms

_(1) On application by a lessor, the ACAT may make a termination and possession order if - _

(i) the tenant has breached the standard residential tenancy terms (other than by failing to pay rent that has become payable); and

(ii) the lessor has served a termination notice on the tenant based on the breach; and

(iii) the tenant did not vacate the premises in accordance with the notice; and

(iv) the breach of the standard residential tenancy terms was not in accordance with a term of the residential tenancy agreement endorsed by the ACAT; and

(v) the breach justifies the termination of the tenancy; or

(i) has made an order under section 83 (b); and

(ii) is satisfied that the tenant has breached that order; and

(iii) is satisfied that the breach justifies the termination of the tenancy.

_(2) The ACAT may, if satisfied that it is appropriate and just to do so in relation to an application mentioned in subsection (1) - _

_(a) refuse to make a termination and possession order if - _

(i) the tenant has remedied the relevant breach; or

(ii) the tenant undertakes to remedy the breach within a reasonable specified period and is reasonably likely to do so; or

_(b) make a termination and possession order but suspend it for a period of no more than 3 weeks if 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.

1. Referring to section 48(1)(a) of the Act, the Commissioner contended that the respondent was in breach of clause 70 of the lease agreement which stated:

(c) interfere, or permit interference, with the quiet enjoyment of the occupiers of nearby premises.

1. The Commissioner contended that respondent was in breach of clause 70 because he had over many years kept dogs at the leased premises that had been the subject of repeated complaints from neighbours, particularly in relation to noise caused by the dogs. Despite repeated warnings from the Commissioner that the respondent was in breach of clause 70, many dogs continued to be kept at the leased premises and the noise disturbances continued.
2. The hearing of the application was twice vacated in part to facilitate attempts to negotiate a settlement, but the negotiations were unsuccessful.
3. I heard the application on 23 February 2016. I took evidence from several witnesses about the noise disturbances. I formed the view that each of the witnesses was balanced and objective in their descriptions of the disturbances. Many were somewhat uncomfortable in giving their evidence, and impressed upon me that they bore no ill will towards the tenant and were anxious to live in a harmonious community.
4. Their concern was that the dogs on the leased premises caused, and were causing, substantial interference with their quiet enjoyment of their properties on a sustained basis and over a long period. There was evidence of complaints about "intolerable noise from the dogs" back to mid February 2011. Many witnesses explained that the noise was so disturbing that it obliged them to stay in their houses rather than enjoy their gardens and to keep windows locked even in summer. Each gave evidence on their oath, and was cross-examined as appropriate. I accepted the evidence of each of these witnesses.
5. The tenant accepted that he was in breach of clause 70. He accepted too that he had been served with a copy of a termination notice based on the breach. I received a copy of the notice in evidence. There was no dispute that he had not vacated the premises contrary to the notice. The question arising under the application was whether the breach justified the termination of the lease agreement, that being a precondition under section 48(1)(a)(v) of the Act for making a termination and possession order. Ms McCormick, solicitor for the tenant, impressed upon me that the Commissioner is the "landlord of last resort" - the significance of which, I think, is sometimes overstated - and that the Commissioner's role is to provide housing assistance to those in the ACT who are most in need. She relied on the Tribunal's decision in Commissioner for Social Housing in the ACT & Canham [2012] ACAT 41 to contend that "as a general principle, it is undesirable to unhouse people (whether single people or families) unless it is the last resort".
6. Ms McCormick also relied on Commissioner for Social Housing v A [2015] ACAT 13 to submit termination would be disproportionate and unreasonable, and therefore an arbitrary interference with the tenant's home contrary to section 12 of the Human Rights Act 2004.
7. Ms McCormick submitted, and I accepted, that the tenant is a "highly vulnerable member of the community", with physical and mental disabilities. She submitted the termination would have a serious impact not only on the tenant but also on his disabled son who lives with him from time to time.
8. She submitted that "the risk of homelessness to him outweighed the impact of noise on the complainants". The context of this submission was somewhat unclear and depended significantly on consideration of all the facts, but I rejected that submission in the terms it was expressed. Risk of homelessness and the vulnerability of persons in need are issues to manage and address, but do not cause tenants to be immune from consequences arising from their breach of their lease agreements.
9. In this case, it was the scope to manage and address the breach that persuaded me, at the time, that the breach did not justify termination. The problem was the dogs, not the tenant. Removal of the dogs did not require removal of the tenant. My concern was not to punish the tenant, but to resolve the breach.
10. Accordingly, on 23 February 2016 I made an order that the respondent tenant remove all dogs except his companion dog 'Brcella' from the leased premises before 11 March 2016 and that the matter be otherwise adjourned to 4 March 2016 at which time I would make more detailed orders designed to ensure that the breach of clause 70 arising from dogs at the leased premises did not occur again.
11. On 4 March 2016 I made the following orders:

1. Subject to Order 3, the tenant (Mr Vangeli Trpcevski) shall not, after 11 March 2016, keep or permit any dog to be on the leased premises, 11 Lalor Street, Ainslie, without the written consent of the Commissioner for Social Housing.

2. The Commissioner for Social Housing shall inform the Tribunal within 7 days of becoming aware or receiving advice that the tenant has acted contrary to Order 1.

3. The tenant may keep the companion dog 'Brcella', at the leased premises on the following conditions:

(a) the tenant provide the Commissioner for Social Housing with a photograph that clearly depicts 'Brcella' by 17 March 2016; and

(b) Order 3 may be reviewed and revoked in the event that the Tribunal receives a complaint under Order 4.

4. The Commissioner for Social Housing shall inform the Tribunal and the tenant within 7 days of receiving any complaint about a barking or yelping dog at 11 Lalor Street, Ainslie.

5. The application for termination of the tenant's lease is adjourned to Thursday 1 September 2016 at 10:00 am.

6. The parties have liberty to apply for the application to be relisted on 7 days' notice.

7. The Commissioner for Social Housing must provide a copy of these orders to the residents at 6, 7, 8, 9, 10, 12, 13, 14 and 15 Lalor Street, Ainslie by 11 March 2016.

1. It was, I think, apparent that if the tenant had complied with order 1 from 4 March to 1 September 2016, when the application was listed for further hearing, the tenant would have been in a strong position to submit that the application should be dismissed.
2. Regrettably, the matter was relisted consequent upon advice that on 18 May 2016 six dogs were removed from the leased premises pursuant to a warrant.
3. At the resumed hearing on 24 June 2016, I heard evidence from two residents, and each was cross-examined. Each gave evidence courteously and objectively about the ongoing problem of dogs at the tenant's leased premises, and the consequent severe disturbance to their enjoyment of their properties, especially their outdoor living areas, arising from the ongoing barking and fighting, flies attracted to dog faeces and smell.
4. The first witness stated they were at their "wits end", where this problem had been ongoing for years, especially where the Tribunal had made orders on 4 March 2016 prohibiting the tenant from having any dogs on the premises, save for the identified companion dog, and still the problem continued. The witness commented on hearing more than one dog on the leased premises after 17 March 2016.
5. The second witness commented on hearing dogs fighting inside the house on the leased premises. He estimated there were five dogs at the premises. The witness gave evidence that he received assurances from the tenant's wife, who was often at the leased premises but lives elsewhere, that they "would not be keeping the dogs for much longer" but dogs continued to be at the leased premises.
6. None of this evidence was challenged in cross examination.
7. I received into evidence an order of the ACT Magistrate's Court made on 20 April 2016 prohibiting the tenant's son from purchasing, acquiring, taking possession or having custody of any animal for a period of five years with the exception of a named dog. It was the breach of this order that led to the seizure of six dogs at the leased premises under warrant.
8. The tenant did not give evidence in his case nor did anyone else. However, I received evidence of the tenant's medical disabilities and of another son.
9. At the resumed hearing, the tenant accepted the ongoing breach of clause 70. Whether to make a termination in possession order turned on the question of whether the breach justified the order.
10. For many reasons, Ms McCormick submitted I still should not make the order.
11. First, she relied on absence of complaint from neighbours about ongoing disturbance and submitted that "the burden shifts the neighbours" to suggest an interference with their quiet enjoyment, particularly where my orders on 4 March 2016 enabled them to do so. I rejected that submission. Order 1 did not contemplate the tenant keeping dogs provided they did not interfere with neighbours' quiet enjoyment of their properties. It required the tenant not to keep dogs at all, save for his companion dog, to prevent the possibility of ongoing disturbance. In any event, the burden did not shift to the neighbours. The orders were designed to inform neighbours of the orders and to provide a mechanism to communicate ongoing concerns to the Tribunal. It did not impose on neighbours a burden to report. I noted and accepted Ms Murphy's evidence as follows:

In the original orders that were sent to me there was an email address that we could put in complaints so I thought I'd start to write them all down and then I started thinking, "Why do I have to do this? Why do I have to go in the house every single time and start keeping a diary of the noise again and the fact that there is more than one dog?" It just seemed so wrong to me that there were orders issued so why is it so difficult to have somebody adhere to them and then why does it come back on me then to have to constantly be fighting the battle? I started to get very weary of the situation

1. Second, Ms McCormick submitted that there had been "a significant improvement in the situation, not to mention that the dogs in question have been removed by the RSPCA." She referred me to the witness statements, noting improvements subsequent to the orders. I was not persuaded that the improvements were material. Both witnesses spoke about ongoing noise disturbance. I received evidence of five dogs fighting, dog faeces and smell and that the improvements were transitory.
2. Third, Ms McCormick noted that the dogs were owned by the tenant's son or sons and spoke about future arrangements for the tenant's sons to be housed elsewhere. This, she said, would solve the problem. However there was no evidence about these arrangements nor the possibility or probability that they would eventuate.
3. Fourth, Ms McCormick contended that the order would render not only the tenant homeless but also his sons who, she said, were "couch surfing" and living in transient housing. I did not receive evidence about that, nor did I accept that that consequence would follow. The tenant and his wife own as joint tenants a four bedroom home elsewhere in Canberra. The tenant's wife lives there. So do her sons, from time to time. I was told the tenant too lives in the home from time to time when unwell. Termination of the tenancy would not render anyone homeless. It would only remove one of the houses where the tenant and his sons could reside. In the absence of evidence to the contrary, it seemed at least possible that the tenant's wife would "take them in" if the tenancy were terminated, particularly where the tenant owns the house in conjunction with his wife. For this reason, I was not persuaded that the decision in Canham is applicable. The reasons, read as a whole, make plain that the Tribunal member's statement that it is "undesirable to unhouse people" was in the context of rendering them homeless, rather than in a context of removing optional housing.
4. In this respect, Ms McCormick reminded me of her submission on 23 February 2016 that it was "inappropriate" for the tenant to live with his wife in his own home in circumstances where they have "separated". I accepted that submission as part of the factual matrix when making orders that permitted the tenant to remain in the leased premises on condition he not keep dogs at the premises, but was not persuaded that it was a sufficient reason not to terminate the lease on 24 June 2016. It is not uncommon for family members to have difficulty residing with each other, nor was I persuaded that this difficulty was a sufficient reason for the Commissioner to maintain alternative housing for the tenant in circumstances where he was in breach of the lease and in breach of the orders I made on 4 March 2016.
5. It was also clear to me that the tenant's wife cares for him and their sons very much. She attended the Tribunal with the tenant on the several occasions I heard this matter. She sat with him and participated in the hearing. It was also clear from one of the witnesses that she frequently visited the leased premises and is the primary carer for the family. When asked "how often would she be coming over" to the leased premises, the witness said:

We'd see her two or three times a week coming and going

1. During the hearing, I express my concern to Ms McCormick that I had made orders requiring the tenant not keep dogs at the leased premises save for a companion dog, and that very soon afterwards he was in breach of the orders. I express my concern that if I permitted the tenant to remain in the premises in the face of admitted and significant breaches of the orders and of clause 70 of the lease I would be

...almost sending a message that none of this really matters, that the Tribunal's orders really don't count for very much and I would expect the neighbours would think that to.

1. In reply, Ms McCormick returned to the question of whether the breach justified termination, and relied on the tenant's disability and his inability to manage his son for why this occurred. I was not persuaded that this was a sufficient reason to excuse the breach of the Tribunal's orders. Even if the tenant has difficulty managing his son, the tenant's wife was well aware of the orders, and the court order that her son not purchase, acquire, take possession or custody of any other animal save for a named dog. She was regularly at the leased premises; she assured a neighbour that the dogs would soon be gone; she and her husband own a house where the dogs could have been taken at least in the short term so as not to be in breach of the Tribunal's orders and the court order; and yet it took a warrant in order to remove six dogs from the premises.
2. Nor was I persuaded that the tenant's inability to manage his son or his son keeping dogs at the premises excused the breach. Indeed, implicit in the submission was the likelihood that the breach would continue if his son continued to stay at the premises and bring dogs.
3. For these reasons, I was satisfied for the purposes of 48(1)(a)(v) of the Act that the breach justified termination of the tenancy. For the same reasons, I was not persuaded that termination would be disproportionate or unreasonable and therefore an unlawful or arbitrary interference with the tenant's home contrary to section 12 of the Human Rights Act 2004.
4. I also considered the discretion available to me under section 48(2)(a) of the Act not to make the termination in possession order if I thought it "appropriate and just to do so" if the tenant had remedied the breach or undertook to remedy the breach within a reasonable specified period and was reasonably likely to do so. I was not persuaded that the tenant had remedied the breach, in the sense of putting in place measures that would ensure no dog but for his companion dog would henceforth be at the premises, nor did he give any undertaking to that effect. The tenant did not give any evidence at all. For this reason, I was not persuaded that I had power under section 48(2)(a) not to make the order. In any event, where I was satisfied that the breach justified termination and having regard to the long history of this matter, I was not satisfied that it would be "appropriate and just" not to make the order.
5. I was however satisfied that I should suspend the order for three weeks under section 48(2)(b) of the Act, and did so.