Director of Housing v Francese (Residential Tenancies) [2020] VCAT 139

1. The following are the Tribunal's reasons for its decision in two (2) applications heard together finally on 4 February 2020 when decisions were reserved.
2. In each application Orders have been entered on the Tribunal Order Entry System (In Chambers) today to reflect the Tribunal's conclusions as set out below.

1. The Director of Housing ("the landlord") filed an application on 4 December 2019 seeking an Order for possession of the rented premises at 1/34 Coolgardie Street Frankston North ("the premises") pursuant to Section 344 of the Act.
2. That application was listed but adjourned on 20 December so that Ms Francese ("the respondent") might obtain legal advice and file an application pursuant to Section 332 of the Act seeking an order for the creation of a tenancy in her favour with respect to the premises; she filed that application on 20 December.
3. Both applications were again adjourned from 21 January 2020 to the date of the final hearing.

1. The landlord was represented by Ms. Chambers and Ms Chapman who both gave evidence, as did the respondent, who appeared unrepresented.
2. There were no other witnesses.
3. The landlord produced extensive files of photographs of the premises (taken by Ms Chambers on 8 April and 23 December 2019 and on 20 January 2020), relevant correspondence and a bundle of notices given to the tenant under the Act from time to time.

(Being undisputed, the following constitute part of the findings as to fact)

1. Some years ago, one Crystal Baker ("the tenant") took possession of the premises under a tenancy agreement entered into with the landlord.
2. In about May 2018 the tenant of another property in Frankston, of which the landlord was also landlord, told the landlord he was vacating that property and that the respondent was living there and would not leave.
3. The respondent applied to the landlord for a tenancy transfer but that was refused because she did meet the landlord's policy requirements to which reference is made below.
4. Then in June 2018, the respondent commenced to reside in the premises, without the knowledge or consent of the landlord, and as the landlord was first advised when the tenant filed an application for a rental rebate on 28 August 2018.
5. The rent for the premises was then increased from $15.00. per week to $70.00. per week to take account of the respondent's income. The evidence suggests that it is more likely than not that the respondent undertook to pay the increased rent, a rent the tenant would not have to pay if not for the respondent's presence in the premises and that, from time to time, the respondent did pay the rent.
6. The landlord's policies required it to take account of the respondent's income in assessing the rent for the premises even though she might not reside there on a full time or permanent basis.
7. However arrears of rent arose in May and July 2019 when the respondent did not pay the rent, albeit the situation was on each occasion rectified after Notices to Vacate were served.
8. In July 2019 the respondent was incarcerated for a short period.
9. The tenant was admitted to hospital in September 2019, did not return and her keys to the property were returned in November 2019, leaving the respondent in effective control of the premises. The rent was rebated again to $15.00 when the tenant went into hospital.
10. Before the tenant vacated the premises and up to the date of the hearing the outside of the premises were littered with excessive amounts of rubbish; persons other than the tenant and the respondent were residing at the premises from time to time.

1. Has the respondent been residing in the premises as her principal place of residence? -

1. Is the respondent a party to a tenancy agreement with respect to the premises? From the above findings no
2. Has the tenant delivered vacant possession of the premises?

the respondent could reasonably be expected to comply with the duties of a tenant under a tenancy agreement to which the Act applies; and

the respondent would be likely to suffer severe hardship if she were compelled to leave the premises; and

the hardship suffered by the respondent would be greater than any hardship that the landlord would suffer if an order were made requiring the landlord to enter into a tenancy agreement with the respondent?

1. Were the premises rented under a tenancy agreement at any time within twelve (12) months before the date of the landlord's application?

1. Are the premises occupied by a person (not being a tenant under a tenancy agreement) who entered into or remained in possession without the landlord's licence or consent?

1. Nothing in the evidence suggests that the landlord ever consented expressly or impliedly to the respondent residing in the premises, despite its knowledge of her being there from August 2018 onwards. It had no knowledge of and made no enquiries as to the basis upon which she was residing there.

1. According to the landlord's representatives, and the Tribunal accepts, the landlord did not take action to enforce any rights it had under the Act arising from the respondent being there because it was not satisfied that the tenant had sub-let the premises or assigned her tenancy to the respondent. The landlord appears to have accepted that the tenant had valid reasons not to seek court orders excluding the respondent from the premises.
2. It is probable that the respondent was disclosed by the tenant on the rent rebate from in 2018 at the insistence of the respondent according to Ms Chapman's evidence which the respondent did not dispute.
3. It is more likely than not that the tenant did not consent to the respondent's continuing occupation of the premises in 2019 although the evidence does not enable the Tribunal to determine what residency arrangements, if any, were made between the tenant and the respondent in June 2018.
4. It is more likely than not that, in 2019, the tenant and her health workers, as Ms Chapman testified, informed Ms Chapman before the tenant vacated the premises that the tenant wanted the respondent to leave the premises but that the respondent refused to leave.
5. The Tribunal accepts Ms Chapman's evidence that the landlord's records show that the tenant during her tenancy was a vulnerable person who often had psychiatric illnesses and from time to time felt powerless to remove unwarranted occupants of the premises.
6. Similarly the Tribunal accepts that Ms Chapman was told by the tenant and her helpers on more than one (1) occasion that the tenant feared that the respondent's presence in the premises might endanger her tenancy rights, that she wanted the respondent out of the premises and that, once admitted to hospital, she would not return to the premises because of the respondent's behaviour and unwanted presence.
7. Despite the respondent's denial that this was the tenant's wish or that Ms Chapman had been so advised, there was no basis for the Tribunal to reject Ms Chapman's evidence in that regard.
8. Section 98 of the Victorian Civil and Administrative Tribunal Act 1998 provides that the Tribunal generally is not bound by the rules of evidence and may inform itself of matters as it sees fit, subject of course to it being bound by the rules of natural justice.
9. It has long been held that the Tribunal may receive and consider hearsay evidence.[1]
10. The Tribunal also accepts Ms Chapman's evidence that the respondent has caused nuisance to an occupier of neighbouring premises, that may have led to the occupier being relocated and that those premises remain vacant because of the difficulty in letting them when the premises in issue here are in such a poor state and occupied by various occupants.
11. Although it was the tenant's and not respondent's responsibility to comply with the provisions of the Act with regard to cleanliness and entry to premises prior to the tenant vacating the premises, the photographs put in evidence by the landlord clearly indicate that, whatever was the state of the premises before the tenant vacated, the premises are now in an appallingly unclean state, since December 2019 have been unclean and littered with rubbish and are likely to be inhabited occasionally by persons other than the respondent, with the respondent's acquiescence.
12. The respondent did not contest that the photographs put in evidence accurately showed the state of the premises but said she had a problem as a hoarder of goods and was progressively getting rid of the rubbish at the premises.
13. The evidence indicates an issue far beyond hoarding. The Tribunal does not accept that the current state of the premises is at all excusable or is related to a hoarding problem. In my view the respondent has little or no regard for the condition of the premises of which she says she wants to be the tenant.
14. The landlord gave the tenant five (5) notices to enter the premises and two (2) breach of duty notices regarding the state of the premises after the respondent commenced to live at the premises but they achieved nothing. The respondent claimed ignorance of the notices and of course they were addressed to the tenant and not to the respondent.
15. In February 2019 the local municipal authority issued an order against the premises due to their being in an unclean condition.
16. Nonetheless the Tribunal is of the view, from the landlord's evidence and the lack of any response from the respondent and her claimed relationship with and claim to be the carer of the tenant, that the respondent knew or ought to have known about what the landlord was seeking to achieve and did nothing to co-operate or to assist the tenant the evidence suggests that it may well not have been the tenant herself who was the real cause of the breaches which concerned the landlord.
17. Despite her claims to the contrary, there is no evidence to suggest that the respondent has in any way cooperated with the landlord in following its processes whereby she might apply for a transfer of the tenancy of the premises to her.
18. From all of the above I am not satisfied that the respondent could reasonably be expected to meet her obligations under a tenancy agreement to which the Act applies if the landlord were required to enter into such an agreement.
19. Despite the respondent, in response to a question I put to her, stating that if she was required to leave the premises she might have to seek boarding house accommodation, there was no evidence as to any hardship, let alone severe hardship, as opposed to mere inconvenience, that she would suffer if that were required of her.
20. The respondent gave vague and unconvincing evidence as to her plans for the accommodation of her eleven (11) year old son who resides with his father; but nothing she said in that regard constituted evidence of hardship.
21. The landlord's records indicate that at least at some time in recent years the respondent's son has been placed in the care of relatives to the exclusion of his mother.
22. If the Tribunal were to require the landlord to enter into a tenancy agreement as the respondent, in my view the landlord would suffer hardship which in view of my finding must be greater than that which the respondent claims although not proven.
23. The Tribunal accepts the landlord's evidence that:

the respondent does not meet the aims of its policies for tenancy transfers, a policy which seeks to balance the needs of existing occupants and tenants with the needs of others on the public housing list and promotes an equitable and managed allocation of public housing properties;

the respondent, who has been on its public housing waiting list since 2015, is eligible for a one (1) bedroom only house, is receipt of a New Start Allowance from the Commonwealth Government and has no dependents; and

to allow the respondent to remain in the premises or to become a tenant of the premises would adversely affect the next eligible person approved on the waiting list.

1. In my view to allow the respondent to have tenancy rights with respect to the premises would give her an unfair advantage over others and an advantage to which she is not entitled.
2. Whilst the landlord's eligibility criteria are not of themselves matters which the Act requires to be taken into account in these circumstances, they are, in my view very important in considering the question of relative hardship.
3. In Cosic v Director of Housing[2] the Supreme Court of Victoria it was held that hardship is not to be confined to personal hardship but could apply to a body corporate such as the Director of Housing and that detriment to the orderly administration of the respondent's waiting list constituted hardship.

1. The respondent meets the criteria imposed by Section 232 of the Act.
2. Based upon the above findings, the Tribunal cannot be satisfied as to the matters required by Section 233(1) (a), (b) or (c), and the respondent's application for the creation of a tenancy in her favour is dismissed.
3. Based upon the above findings, the landlord is entitled to the orders it seeks under Section 344 of the Act, the requirements of Sub-sections (1) (a) and (b) having been satisfied.

RESIDENTIAL TENANCIES ACT 1997

Section 63 Tenant must keep rented premises clean

A tenant must keep the rented premises in a reasonably clean condition except to the extent that the landlord is responsible under the tenancy agreement for keeping the premises in that condition.

Section 89 Tenant has duty to permit entry

A tenant has a duty to permit a person exercising a right of entry in accordance with this Division to enter the rented premises.

Section 232 Application to Tribunal for creation of tenancy agreement

(1) A person who has been residing in rented premises as his or her principal place of residence and who is not a party to a tenancy agreement applying to those premises may apply to the Tribunal for an order requiring the landlord of the premises to enter into a tenancy agreement with the person if -

(a) an application for a possession order for the premises has been made under Part 7; or

(b) the tenant has abandoned the rented premises; or

(c) the tenant has delivered up vacant possession of the rented premises; or

(d) the tenant has given a notice of intention to vacate the rented premises; or

(e) the tenant has died and there is no surviving tenant.

Section 233 Order of Tribunal

(1) The Tribunal may make an order requiring the landlord to enter into a tenancy agreement with the applicant under section 232 if the Tribunal is satisfied that -

(a) the applicant could reasonably be expected to comply with the duties of a tenant under a tenancy agreement to which this Act applies; and

(b) the applicant would be likely to suffer severe hardship if he or she were compelled to leave the premises; and

(c) the hardship suffered by the applicant would be greater than any hardship that the landlord would suffer if the order were made.

(a) be entered into before the end of the time stated in the order; and

(b) be on the same terms and conditions as the tenancy agreement in force in respect of the rented premises before the order is made, subject to any changes that the Tribunal determines.

Section 344 Application for possession order if premises occupied without consent

(1) A person who claims to be entitled to the possession of premises may apply to the Tribunal for a possession order if -

(a) the premises have been rented premises under a tenancy agreement at any time within the period of 12 months before the date of the application; and

(b) the applicant alleges that the premises are occupied solely by a person (not being a tenant under a tenancy agreement) who entered into or remained in occupation without the applicant's licence or consent or that of any predecessor in title of the applicant.

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998

Section 98 General procedure

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

[1] See references to case authorities at pp 484-485 Pizer's Annotated VCAT Act 6th edition

[2] [2007] VSC 486 an unreported decision of Forrest J.