Legislation: Residential Tenancies Act 1997, ss 6A, 6D, 6E, 6F, 9, 47, 57 and 71C

Cases: Bangura & Fan [2013] ACAT 38

Jerricho v Carillon Ave P/L [2005] NSWCTTT 514

Texts/Papers: Butterworths, Australian Legal Dictionary

1. The application for termination of the agreement is dismissed.

2. The residential tenancy agreement of 31 January 2011 is confirmed.

3. The lessor is to pay to the tenant the sum of $1,985.75

1. This matter consists of an application for resolution of tenancy dispute filed by Community Housing Canberra (CHC) against Victoria Connell on 14 June 2013. The application seeks termination of an agreement to reside at shared premises, entered into between CHC and Ms Connell on 31 January 2011 (the agreement).

2. The respondent responded to the application by way of a written submission filed on 8 July 2013 opposing the termination of the agreement, and seeking confirmation that the agreement was a residential tenancy agreement together with a refund of monies paid for utilities during the period of the agreement. For the purposes of the hearing, this document was treated as a response and counter-claim.

3. Evidence was given on behalf of the applicant by Ms Kim Sinclair, the deputy chief executive officer of CHC. Ms Sinclair outlined the nature and role of CHC, both generally and in relation to the premises, and the reasons why she, on behalf of CHC, decided to terminate the agreement with Ms Connell. Regrettably, Ms Sinclair's evidence was not always accurate in matters of detail. Evidence was also given for the applicant by Mr Lee Powick, the Asset Officer at CHC. Mr Powick outlined the work done by CHC in relation to maintenance of the premises. There was nothing contentious in Mr Powick's evidence.

4. Evidence was given on behalf of the respondent by the respondent herself, and by Ms April Chapman who occupies a part of the shared premises. Ms Connell explained the circumstances leading her to enter into the agreement to reside at the premises; the actions she had undertaken to keep CHC accountable for maintenance and other issues; her knowledge of complaints made about her by other residents; and her continued desire to reside at the premises. She provided four letters of support written by friends and family. Ms Chapman gave evidence supporting Ms Connell's continued residence at the premises, and largely corroborating the evidence given by Ms Connell. The respondent had also issued a subpoena to give evidence to Ms Morris, a senior tenancy officer at CHC. Ms Morris was asked questions about her time in the role of tenancy manager for the premises, and the actions that were taken by CHC in relation to issues at shared premises, both generally and with specific reference to Ms Connell. All three impressed as reliable witnesses.

5. CHC is an incorporated entity established for the purposes of, among other things, providing community and affordable housing to people in the ACT; facilitating equitable non-discriminatory access to community and affordable housing; providing, developing and supporting tenant participation choices; facilitating long-term secure tenure; and promoting and seeking to facilitate quality living environments. The Australian Capital Territory was and remains a foundation member of CHC.

6. On 7 August 2009, the Commissioner for Social Housing and CHC entered into a sublease for five years over the property at Block 9

Section 14 Division of Chapman. This is the property known as [Redacted] (the premises). The premises consists of nine bedrooms under one roof. Each bedroom has its own ensuite, there are three communal lounges and one large kitchen split into two working spaces.

7. The sublease specified that the permitted use of the premises was for CHC to "manage the premises in accordance with this sublease by permitting residential occupation of the premises by service users pursuant to residential tenancy agreements". The term "residential tenancy agreement" in the sublease is defined as either a 'residential tenancy agreement' or 'occupancy agreement' as defined in the Residential Tenancies Act 1997 (RTA).

8. The rent payable under the sublease is defined as "the amount of rent payments collected from service users, payable within 10 working days of the end of each month." Other provisions of the sublease specify the method by which rent is to be calculated.

9. Schedule 4 to the sublease - entitled 'Variations and Special Conditions' - provides that the only persons eligible to use the service are single women over the age of 55 years who are over the income barrier to the public rental housing assistance program and who either are eligible for Commonwealth rent assistance or are experiencing housing affordability problems.

10. In November 2009, Ms Connell moved into the premises. On 6 November 2009 she signed a written agreement with CHC entitled 'Residential Occupancy Agreement'. Subsequently, on 31 January 2011, the agreement the subject of these proceedings was entered into. Ms Connell in her evidence stated that she assumed that this agreement was the same as the previous agreement of 6 November 2009.

11. Since November 2009 Ms Connell has been actively involved with other residents in dealing with the sorts of issues that arise in a shared house. In evidence before the Tribunal were minutes of meetings held at the house, records of participation through the Conflict Resolution Service in March 2010, and letters and emails between CHC and Ms Connell relating to outstanding maintenance and management issues.

12. It is not surprising that in a house occupied by a large number of adult individuals (up to eight) there may be practical disagreements over use of shared space, or personality differences.

13. Ms Morris gave evidence of a number of residents making complaints to CHC about Ms Connell. In the main, the complaints were not reduced to writing. There was in evidence before the Tribunal a handwritten letter to Ms Morris dated 28 March 2012, from one resident, Ms Hollis, which outlines a number of grievances against Ms Connell, ranging from Ms Connell 'is bossy and needs to control things' to more serious allegations of Ms Connell tampering with locks and 'joining in, colluding with the disturbed people in the community to manipulate electricity and technology to intimidate and cause nuisance and disturbance, prevent sleep, prevent enjoyment of my room."

14. It seems that none of the complaints about Ms Connell were investigated by CHC, let alone found to be substantiated, or considered by CHC to amount to a breach of the terms of the agreement. Indeed, Ms Morris stated that she had not spoken with Ms Connell about any of the complaints raised with CHC.

15. Ms Sinclair gave evidence that she was aware that there had been a lot of issues with the house, and that in February 2013 she had decided to issue Ms Connell a notice to vacate because that was in her view in the best interests of the house.

16. Ms Sinclair said that in her view many of the complaints about Ms Connell were 'outside our remit as landlord'. She said that she had reviewed the file and decided that Ms Connell was 'not suited' to group housing. Under cross-examination Ms Sinclair explained that in other cases where difficulty in group living has been raised, the individual has been assessed, CHC has met with the individual and there have been referrals to the Conflict Resolution Service. However, none of those processes were followed in the case of Ms Connell. Ms Sinclair was not able to specify how it was that Ms Connell was, in her view, unsuitable for group housing.

17. Ms Sinclair said that the issues raised by other residents, as she was aware of them, were allegations that the house was not being properly secured at night, that male visitors had come to the house at night, and a concern Ms Connell had a master key or had given out a set of keys. Ms Sinclair said that none of these allegations were put in writing by the complainants, due to an expressed fear of retaliation. Ms Sinclair was also unable to point to any record by CHC of the making of these complaints.

18. While it is clear that there were interpersonal difficulties between Ms Connell and some of the other residents, the evidence does not support a conclusion that Ms Connell was the sole, or even predominant, source of disruption.

19. The evidence before the Tribunal does demonstrate that Ms Connell had been proactive in keeping CHC accountable in relation to maintenance and other issues, even going so far as writing to the responsible Minister and complaining about lack of action by CHC.

20. On 22 February 2013, Ms Morris at the direction of Ms Sinclair issued a 'no cause' notice to vacate to Ms Connell, providing her with 13 weeks' notice to vacate the premises.

21. The first question to be resolved in these proceedings is whether the agreement between the parties is a residential tenancy agreement or an occupancy agreement. If the agreement is a residential tenancy agreement, then under the prescribed terms a 26 week 'no cause notice' is required, and any term inconsistent with the prescribed terms is void.

Is the agreement a residential tenancy agreement or an occupancy agreement?

22. Section 6A of the RTA sets out the definition of a residential tenancy agreement:

6A What is a residential tenancy agreement_?_

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

(a) a person gives someone else (the tenant) a right to

(b) the premises are for the tenant to use as a home

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

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

(4) This section is subject to the following sections:

• section 6D (Certain kinds of agreements not residential

• section 6E (Certain people given right of occupation not

23. Section 71C sets out the definition of an occupancy agreement:

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

(a) a person (the grantor) gives someone else (the

(b) the premises are for the occupant to use as a

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

Note After 6 weeks, the occupancy agreement should be in writing (see

s 71E (c)).

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

Note This Act does not apply to retirement villages, nursing homes, hostels for aged or disabled people or other prescribed premises (see s 4).

24. An occupancy agreement as defined by section 71C(1) and a residential tenancy agreement as defined by section 6A(1) have the same features, save that an agreement will only be an occupancy agreement if it is not a residential tenancy agreement.

25. It was submitted on behalf of CHC that before a residential tenancy agreement could arise it must be shown that such an intention existed between the contracting parties. 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.

26. 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.

27. The fact that Ms Connell was not given exclusive possession of the premises is also no bar to the agreement being a residential tenancy agreement. Section 6A(3) allows that a residential tenancy agreement may provide an exclusive or non-exclusive right to occupy premises, and may be given with a right to use facilities, furniture or goods.

28. Although the document signed by the parties was entitled 'Residential Occupancy Agreement' that title alone does not give the agreement the character of an occupancy agreement[1].

29. The correct approach to interpretation of the legal character of the agreement, as explained by Senior Member Anforth in Bangura & Fan [2013] ACAT 38, is as follows:

the first question to be asked 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 question asked as to whether the agreement satisfies the definition of an occupancy agreement.

30. In undertaking that enquiry, one must have regard not only to the written document but also to the evidence of the parties as to the intended and actual operation of the agreement. The 'agreement' between the parties is not necessarily confined to what is reduced to writing and signed by the parties, although this will usually be the best evidence of what the agreement comprises. Section 6A(2) envisages that an agreement may be written, oral or both, and may be express or implied.

31. In this case, the agreement satisfies the definition provided by section 6A for the residential tenancy agreement. It was not contested that sections 6D and 6F were of no application in this matter. Argument centred on whether the exclusion provided by section 6E might be available, on the basis that the arrangement with Ms Connell was a 'boarder or lodger' arrangement.

32. The terms 'boarder' and 'lodger' are not defined in the RTA, however each has an accepted meaning at common law. The Butterworths Australian Legal Dictionary defines a 'boarder' as "a person who lives in the house of another and receives food and lodging in return for payment of a fixed regular sum of money: Norblett & Mansfield v Manley [1952] SASR 155." The term 'lodger' is defined as "a person who occupies a room or rooms in a house which is generally under the control of the owner or lessee of the house, or his or her representative. A lodger is similar to a boarder in legal status, but is not provided with food by the person in control of the house: Porter v Busch [1974] 1 NSWLR 593."

33. It has not been asserted that Ms Connell is provided with food by CHC, accordingly her relationship with CHC could not be characterised as that of a 'boarder'.

34. In Walker v Puvesi Pty Ltd (NSW RTT 86/000006) a lodger was defined as:

a person who has been granted the right, for value, to occupy residential premises (as defined by the act) for the purpose of their use as a residence, without having being given the right to exclusive possession of such premises, although he or she may have been given the enjoyment of exclusive use of a part, but in circumstances where the owner remains in possession and occupation (either personally or by his servant), and retains the character of Master of the house and with the owner exercising control and dominion over the whole.

35. While the phrases "master of the house" and "dominion" are considered out of date, the concept of the grantor maintaining control of the premises and how life is lived in the premises remains a necessary defining element of the owner/lodger relationship:

[t]o decide if a particular relationship is one of lodger and owner, in effect one is deciding how closely it resembles that of a person renting a room in a household dominated by another person (or, indeed, a family). Or, to start at the other end, how closely it resembles an arms length tenancy arrangement where, by and large, and subject to a number of relatively commonsensical requirements about maintenance of the property, quiet enjoyment, and of course payment of rent, a tenant is free to act as she wishes in the rented premises (Jericho v Carillon Ave P/L [2005] NSWCTTT 514 at [33]).

36. At which end of the spectrum does the relationship between Ms Connell and CHC fall? Is the agreement between CHC and Ms Connell an owner/lodger agreement, or a residential tenancy agreement? To determine this question, it is necessary to consider both the written document and the actions of the parties.

37. The agreement of 31 January 2011 consists of a covering schedule and four attachments. In this way the agreement mirrors the standard form of a residential tenancy agreement under the RTA. The document is entitled 'residential occupancy agreement'.

38. The Schedule to the agreement contains summary information as is normally the case in a residential tenancy agreement. The name of the 'lessor' in item 2 of the Schedule is the Commissioner of Social Housing and in item 3 CHC is nominated as the 'lessors managing agent'. Given the unequivocal existence of the sublease from the Commissioner for Social Housing, these details are clearly incorrect, and CHC submitted that the Tribunal should interpret the document as CHC being the 'lessor' and there being no 'managing agent'. In item 4, Ms Connell is described as the 'occupant'.

39. Item 5 of the schedule defines the premises as consisting of premises A "the bedroom which the tenant will occupy" and premises B or "communal areas" being "all areas of the property which are not bedrooms".

40. Item 7 of the Schedule provides that only one person is permitted and as a notation "please note: consumption charges are based on the above number of occupants."

41. Item 12 of the Schedule provides that "the occupants are responsible for assisting CHC in maintaining the external grounds of the premises. In addition to this, CHC will arrange regular maintenance for the external grounds of the property."

42. Item 13 provides that upon vacating the occupant is responsible for arranging carpet cleaning for Premises A.

43. Item 18 provides that no pets are permitted at premises A or B.

44. Item 19 provides that CHC may issue a notice to vacate to the tenant with whatever notice CHC deems reasonable in the circumstances, and specifies this may be during the fixed term.

45. Attachment A to the agreement is entitled "Standard Residential Occupancy Terms". It almost entirely replicates the prescribed terms of a residential tenancy agreement, as provided by the RTA, with minor amendments, as follows:

1. In paragraph 1, it provides that "for the purpose of this agreement, the occupant will be referred to as the tenant in the Standard Residential Occupancy Terms". There is no provision in attachment A that provides that the term 'lessor' means 'grantor', nor that the term 'tenancy agreement' means 'occupancy agreement'. Throughout attachment A the terms 'lessor', 'tenant' and 'tenancy agreement' are used. Other terminology applicable to residential tenancy agreements also appears throughout attachment A.

2. Paragraph 1(2) of the Standard Residential Occupancy Terms provides that "the lessor and the tenant may agree to add additional clauses to the Tenancy Agreement but they must not be inconsistent with, or modify, existing clauses (except where permitted by the Act)".

3. In a similar vein, paragraph 3 provides that "[a] party to this Tenancy Agreement cannot contract out of it or out of the provisions of the Residential Tenancies Act, except as provided in that Act."

4. Subparagraph 13(1) provides that "the lessor must provide to the tenant a copy of an information booklet about residential tenancies authorised by the commissioner of fair trading before the commencement of this agreement." Subparagraph 13(2) continues "[i]f it is not possible to provide the tenant with a booklet, the lessor must obtain inform the tenant of the booklet and where it may be obtained".

5. Paragraph 24 amends the standard provision to read as follows: "[t]he lessor must not require any payment other than rent, communal furnishings levy or bond ...".

6. Subparagraph 48(3) states that "[t]he tenant must pay their share of consumption charges. The lessor will advise the tenant of the utility consumption amount to pay. The amount will be based on the invoice from the utility provider".

7. Clause 55 of attachment A deals with the lessor's obligation to make repairs, and specifically provides by subparagraph 55(3) that "[t]his section does not require the tenant to notify the lessor about anything that an ordinary tenant would reasonably be expected to do, for example, changing a light globe or a fuse."

8. Subparagraph 63(d) provides that the tenant must "[a]ssist in the maintenance of the gardens and external grounds of the premises. The tenant is responsible for resourcing appropriate equipment that may be necessary to maintain the garden. Unless otherwise agreed in writing."

9. In relation to inspections, paragraph 77 provides "[t]he lessor may inspect Premises A twice in each period of 12 months following the commencement of the tenancy. Where the lessor and tenant agree to a Pet Clause the lessor may carry out 3 routine inspections in each 12 month period of premises A. The Lessor may carry out monthly inspections of Premises B, being the common areas of the property." Paragraph 78 further provides that in addition the lessor may inspect the premises for the purpose of carrying out a stock audit. All inspections are to be preceded by at least one week's notice under paragraph 79.

10. Under clause 94 of attachment A the CHC may issue a notice to vacate "with whatever notice CHC deems reasonable in the circumstances, this may be during the fixed term; or CHC may give 13 weeks' notice to vacate where the notice is not requiring the tenant to vacate premises during a fixed term.

46. Attachment B is entitled 'Tenancy acknowledgment'. It states that it "provides additional information for tenancy: the Tenant agrees to abide by the following rules:".

47. Some of the rules provided include the following:

1. Fixed term agreement. Where a tenant intends to vacate the premises during a fixed term this constitutes as a breach of the tenancy agreement. The tenant is responsible for payment of rent up until a new tenancy commences for the premises or until the expiration of the fixed term. CHC may charge up to 1 weeks rent to compensate for the reasonable costs associated with re-letting the premises.

3. Mattresses. Mattresses must be placed into the appropriate bedding frame elevated from the ground.

4. Motor vehicles. Tenants are required to keep their motor vehicles registered and in working order, unless otherwise agreed with CHC. Tenants must park their motor vehicle in the allocated car space. Visitors and guests must park legally on the street or in the allocated car spaces. Vehicles are not permitted to be parked on any lawn or nature strip.

6. Pets. Tenants are required to obtain approval from CHC prior to the pet residing at the premises. CHC prohibits the burial of animals on the premises.

7. Smoking. Smoking is not permitted inside the property.

8. Telephone line. CHC will pay for the physical installation for one (1) phone line per property...

9. Wall hooks. CHC permits tenants to install appropriate hooks to hang pictures or ornaments on the walls of the property at their own expense....

10. Water consumption. Tenants are responsible for payment of water consumption charges, where the meter is separate unless otherwise stipulated in the tenancy agreement. ...

11. Vacating inspection. Tenants are required to have the carpets professionally cleaned upon vacating the premises.

48. Attachment C is entitled "Managed Properties". It provides how rent payable under the agreement is to be calculated.

49. Attachment E is entitled 'Share Home Rules". This document provides 13 rules for the use of the premises. This document refers to 'occupants' rather than 'tenants'.

1. Access. Occupants have no right to enter any part of the premises which are not premises A or B, without the consent of the bedroom occupant(s).

2. Car allocation. Occupants must park their vehicle in the allocated area. Each occupancy agreement identifies the number of car spaces allocated. Visitors and guests are required to park legally on the street or in allocated car spaces. Car spaces must be kept clear of any type of rubbish, e.g.car parts, tyres and packing boxes.

3. Cleaning. Occupants are jointly responsible for cleaning the premises. CHC inspects the cleanliness of the premises in accordance with the occupancy agreement. Should the communal areas be found unacceptable to CHC a Notice to Remedy may be issued to all occupants.

4. Communal areas. Occupants are jointly and severally responsible for the communal areas. Occupants must be considerate when using communal areas and items. The riding of skateboards and pushbikes are not permitted inside the house. Bicycles are not permitted to be stored inside, as pedals may cause damage to walls.

5. Communal furnishings. Occupants must not cause or permit damage to any furnishings provided by CHC. The furnishings must not be removed from the house. Occupants are also required to be respectful of other occupants belonging to the communal areas.

6. Cooking. Occupants are not permitted to cook in the bedrooms, with the exception of a microwave, toaster or kettle.

7. Gardening. Where occupants have implemented a gardening roster, they are responsible for the governance of the roster.

8. Noise. Occupants are not permitted to allow noise such as radio, television, stereo, surround sound etc to cause annoyance to a occupants.

9. Peace. Occupants must not cause or permit interference with the reasonable peace, comfort or privacy of the other occupants at the property. Occupants must not harass or threaten the safety of other occupants or the guests, whether in writing or verbally.

10. Phone connection. If occupants choose to have the phone connected, they are jointly responsible for the account with the phone provider and payment of any invoices. CHC will not be liable for any charges arising from phone usage.

11. Security. Occupants are not permitted to provide their house keys to another person unless agreed by CHC. The external doors, windows and gates to the premises must be kept secure.

12. Smoking. Smoking is not permitted inside the property

13. Visitors and guests. Occupants may invite visitors or guests to spend the night but the stay cannot exceed 2 nights per week. Visitors must not sleep in the communal living areas.

50. Despite the work that has clearly gone into the drafting of the agreement, the combination of the covering Schedule and Attachments, varying terminology and lack of express provisions create some uncertainty as to what is intended to be the terms of the agreement and what, if anything, is merely supporting or explanatory information.

51. The legal status of each document in the bundle, (other than attachment A which asserts legal effect by paragraph 2 and primacy by paragraph 1(2)) is not clear. So, for example, it is not set out whether the share home rules contained in attachment E are themselves terms of the agreement, or merely a starting point for guidance of the residents.

52. The hierarchical relationship between each of the documents is also unclear. This becomes problematic when one notes that there is inconsistency between various provisions in the documents. So, for example, Item 18 of the Schedule provides that no pets are permitted, Item 77 of attachment A envisages that the 'lessor and tenant' may 'agree to a Pet Clause' and Item 6 of attachment B provides 'Tenants are required to obtain approval from CHC prior to the pet residing at the premises.' In other words, the bundle of documents puts forward three different approaches to the keeping of a pet - absolute prohibition, formal incorporation of a 'pet clause' into the agreement, or simply approval by CHC.

53. Ms Johnston on behalf of CHC submitted that the entire bundle of documents constituted an occupancy agreement, that each of the documents in the bundle contained terms of the agreement, and that any inconsistency between terms could be resolved by the application of principles of interpretation.

54. Ms Faulder submitted on behalf of Ms Connell that the bundle of documents constituted a residential tenancy agreement, which could include additional terms provided same were not inconsistent with the prescribed terms or the RTA. Any inconsistent terms must be found to be void pursuant to section 9 of the RTA.

55. I am satisfied that the Schedule, and attachments A, B and C comprise the intended terms of the agreement. However, it was clear on the evidence of Ms Sinclair, Ms Connell and Ms Morris (set out below at paragraphs 73 and 74) that the Share Home Rules contained in attachment E were merely a starting point for residents, and were at all times open to variation by the agreement of the residents to the exclusion of CHC. It follows that these rules are not themselves terms of the agreement between CHC and Ms Connell.

56. It was submitted on behalf of CHC that the written terms contained in the agreement impose limitations on the freedoms that a tenant would ordinarily enjoy, and that CHC provides a degree of service to the premises above and beyond what a lessor would ordinarily provide; both of which demonstrate a degree of control by CHC over the premises consistent with an owner/lodger relationship rather than a lessor/tenant. The limitations relied upon were:

• the resident is not permitted to smoke inside the property,
• the resident is not permitted to cook in the bedroom,
• the resident is not permitted to allow noise to cause annoyance to other residents,
• the resident is not allowed to have a guest stay more than 2 days a week,
• the resident's guest is not permitted to sleep in the communal living areas (other than the guest bedroom),
• the resident is not allowed to give her keys to any other person without CHC consent,
• the resident is required to put her mattress in a bed frame,
• the resident is not permitted to store bicycles inside the premises, and
• the resident can be evicted without cause on 13 weeks' notice.

57. The Tribunal also noted the provisions of the agreement in relation to termination of the agreement by the resident during the fixed term period go beyond the entitlement of a lessor to seek compensation provided by the RTA in relation to a residential tenancy agreement, and provide an absolute liability for payment of rent until a new tenant is found, as well as one week's rent for readvertising. The agreement also requires the premises to be used as a principal residence for the resident, and requires registration of motor vehicles.

58. The respondent put into evidence a copy of the CHC 'Tenant's Handbook' which provides information for all tenants of CHC properties. From reference to this, it can be seen that a number of the limitations imposed by the agreement are common to all residential tenancy agreements entered into by CHC. Specifically, the prohibition on smoking, the liability for early termination, and provisions in relation to motor vehicles, are replicated in the Tenant's Handbook. Most of the other limitations are drawn from attachment E which I have found not to comprise terms of the agreement. Of those remaining, only the provision for eviction on 13 weeks notice is inconsistent with a residential tenancy agreement. The provision for termination at will on reasonable notice is indicative of an owner/lodger agreement.

59. The services provided by CHC and referred to in support of the conclusion that the relationship is that of owner/lodger included:

• carrying out maintenance of the garden and gutter cleaning,
• paying for installation of telephone line,
• arranging provision of utilities to the property,
• occasionally carrying out window cleaning at CHC expense,
• installing light bulbs at the request of residents,
• replacing washers and O-rings, and
• managing relations between the residents, including participating in meetings of the residents.

60. Apart from the last item, none of these services is necessarily inconsistent with a residential tenancy agreement or definitive of an owner/lodger agreement. Services such as the installation of the telephone line are also dealt with in the Tenant's Handbook. This is consistent with clause 43 of the prescribed terms which requires a lessor to pay the cost of physical installation of a telephone line.

61. The arrangements in relation to garden and property maintenance are, in the experience of the Tribunal, not inconsistent with a residential tenancy agreement nor are they unique to an occupancy agreement. These and similar arrangements are occasionally included in a residential tenancy agreement, in some cases merely by agreement as the term does no more than clarify the prescribed terms, in other cases not being inconsistent with the terms of the RTA the arrangement may be endorsed as an additional clause by the Tribunal. In this case, given the age of the residents and the physical difficulty of certain aspects of maintenance (eg. the height of the commercial-style lighting in the premises), it was sensible for the parties to clarify the reasonable maintenance responsibilities under clause 55 in this way.

62. In relation to the assertion that CHC managed relations between residents including participating in meetings, this assertion was not predicated upon any term of the written agreement. As is discussed below, while it is clear that CHC participated in certain meetings, the evidence does not support the assertion that CHC 'managed relations between the residents'.

63. Turning from the written agreement to the arrangements actually in place between CHC and Ms Connell, I am unable to find any aspect in which CHC in fact exhibited the degree of authority or control over the premises or household issues that would have been indicative of an owner/lodger arrangement. In her evidence, Ms Morris said that in practical terms the premises was "run as a tenancy", and this accorded with the Tribunal's view of the evidence.

64. In terms of the access to and physical control of the premises, each bedroom is described in the agreement as premises A, over which exclusive possession is given to the resident. Every other part of the premises (excluding bedrooms and ensuites) is described in the agreement as premises B. Because of the number of agreements in place, this means that each resident has exclusive possession of their bedroom and ensuite, and non-exclusive possession of the remaining 'common' areas of the premises. The status of the guest bedroom, being an area that is not explicitly defined, is unclear, although in practice it was available to use of all residents as arranged between them.

65. Ms Sinclair stated that there was no part of the premises that CHC had retained to itself. This accords with the written agreement which does not even reserve to CHC the right to access at will the common areas described as premises B. Ms Sinclair thought that CHC had a right to access the external grounds at any time. However, there is no provision in the agreement or attachments to this effect.

66. Turning to the question of control of use of the premises and behaviour of residents, it was common ground on the evidence of Ms Morris, Ms Sinclair and Ms Connell that the share home rules operate as a starting point for the persons occupying the premises. The evidence of Ms Morris was that the share home rules were basic rules that the CHC had put together, but that it was "for the ladies to come together" and they could by agreement amend the rules. Ms Morris envisaged that the residents could change the house rules but that "out of consideration to CHC" they should let CHC know the changes. If CHC disagreed with the proposed changes it would meet with the residents, express CHCs view and hopefully "reach a compromise". Ms Morris referred to a model of getting everybody together to talk through issues that arose - coming together as a community "in their own home".

67. Ms Sinclair in her evidence said that interpersonal issues between the occupants were, in her view, outside CHC's remit as landlord, and accordingly were referred to the Conflict Resolution Service. She said that CHC was limited in what it could do in relation to such issues. Ms Sinclair said that the House Rules were broad brush items, and group house occupants were encouraged to come up with their own rules which could differ from attachment E. Ms Sinclair explained that each group house is different and "autonomous" in that respect.

68. In the end, there is little in the written agreement which demonstrates the requisite degree of control or dominion by CHC over the use of the premises necessary for the relationship to be characterised as that of owner/lodger, other than the provisions about termination. In terms of interpersonal issues, resident behaviours and use of the shared facilities, the evidence of the witnesses was consistent that CHC has not exercised a level of control over these matters consistent with that of an owner/lodger situation.

69. However, the title to the agreement and the provision in relation to termination by CHC are inconsistent with a residential tenancy agreement.

70. Can it be concluded that, by altering one (albeit significant) clause of the prescribed terms, an owner/lodger relationship is created? I do not think that conclusion necessarily follows, although the existence of that clause is clearly highly relevant evidence in the enquiry as to the nature of the agreement[2].

71. Can the intention to put in place an 'occupancy agreement' rather than a 'residential tenancy agreement', as evidenced by the title to the agreement, make that legal conclusion inevitable? I do not think that is the case. The concept of an 'occupancy agreement' is the name given to a certain category of agreements to occupy premises which includes boarder and lodger agreements. While parties to an agreement may intend the agreement to fall within that overarching category, the characterisation 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. The title to a written agreement would be more persuasive evidence in that enquiry if such an agreement was headed 'lodger agreement' or 'boarder agreement'.

72. What is most persuasive in this case is the evidence of the parties as to how the agreement has been implemented. There is no evidence of CHC maintaining either directly or by an agent any presence at the premises, nor has it retained a right to access even common areas of the premises at will. The evidence of Ms Sinclair and Ms Morris was telling in their use of words such as 'their home' and 'autonomous'.

73. From reference to the agreement in writing, the evidence of the witnesses as to the arrangements in place, and the documents submitted in evidence by the parties, I am comfortably satisfied that the relationship between CHC and Ms Connell is not that of owner/lodger but more closely resembles an arm's length tenancy, subject to a number of "commonsensical" requirements about maintenance and quiet enjoyment.

74. I am therefore satisfied that the agreement is a residential tenancy agreement. This means that any terms of that agreement which are inconsistent with the prescribed terms are void unless endorsed by the Tribunal.

Can Ms Connell be required to vacate the premises?

75. As I have found that the agreement is a residential tenancy agreement, it may only be terminated by the Tribunal upon the lessor, for a 'no cause' notice, having given 26 weeks' notice. The notice in this matter gave only 13 weeks' notice to Ms Connell.

76. There being no valid Notice to Vacate, the Tribunal cannot proceed to terminate the tenancy agreement under section 47 of the RTA and the application by CHC must be dismissed.

77. Secondary issues raised in the proceedings were whether the relief sought should be refused because the application is a retaliatory application; whether the CHC is a public authority and therefore obliged to comply with the Human Rights Act 2004 (HRA) in reaching its decision to issue the notice to vacate; and whether Ms Connell was entitled to a refund of the utilities consumption charges she had paid under the agreement.

Was the decision to terminate the agreement retaliatory?

78. Section 57 of the RTA provides that where an application for termination is made by a lessor in retaliation for the tenant asserting her rights, the Tribunal has a discretion to refuse to make the termination and possession order. Given the evidence that Ms Connell had complained about CHC to the Minister; that CHC had failed to notify Ms Connell of, let alone investigate, the complaints about her; and the inability of Ms Sinclair to more fully explain the basis of the decision to issue the Notice to Vacate, the inference that this application is retaliatory is clearly open to be drawn.

79. However, given my decision to dismiss the application for termination of the agreement, it is not necessary to determine whether CHC's application to terminate Ms Connell's tenancy was retaliatory, and I make no finding on this point.

Is CHC a public authority and bound by the HRA?

80. The power to terminate a tenancy agreement under section 47 of the RTA is discretionary. Accordingly in exercising that discretion, it is relevant for the Tribunal to know whether the lessor is a public authority under the HRA. If so, the tenant may rely upon their rights under the HRA in the proceedings where a breach of those rights is asserted.

81. As I have found that it is not possible for the Tribunal to terminate the tenancy agreement under section 47, it is not necessary for me to resolve the question of whether CHC is a public authority bound by the HRA.

82. Subparagraph 48(3) of attachment A to the agreement provides that the tenant must pay their share of consumption charges. This is contrary to section 42 of the prescribed terms, which provides that the lessor is liable for the cost of services which are not separately metered. Subparagraph 48(3) has not been endorsed by the Tribunal, and is therefore void pursuant to section 9 of the RTA.

83. It follows that Ms Connell's application for reimbursement of the monies she has paid to CHC under this provision of the agreement must be granted.

84. At the conclusion of the hearing Ms Connell's representative advised that Ms Connell had secured alternative accommodation only until 26 September 2013. Given the difficulties with Ms Connell's continuing accommodation, on 25 September 2013 the matter was relisted before me, at which time I advised the parties and their representatives of my conclusions above, and the orders I intended to make. I adjourned the matter for final orders to be made in chambers, upon the parties' representatives notifying the Tribunal of the amount to be reimbursed to Ms Connell for utilities charges.

85. On 27 September that information was received, and accordingly on that date I made orders as follows:

1. The application for termination of the agreement is dismissed.

2. The residential tenancy agreement of 31 January 2011 is confirmed.

3. The lessor is to pay to the tenant the sum of $1,985.75.

COMMUNITY HOUSING CANBERRA T/AS CHC AFFORDABLE HOUSING

[1] This is unlike the situation accommodated by section 6B, which provides that where an agreement is reduced to writing and expressly states that it is a residential tenancy agreement, the agreement is deemed to be a residential tenancy agreement.

[2] One must always be aware that a clause which is inconsistent with the residential tenancy agreement prescribed terms, and not endorsed by the Tribunal, will be void, although that consequence will occur only after a finding that the agreement is a residential tenancy agreement.