1. The Tribunal's order dated 5 February 2014 is set-aside.
2. The application is dismissed

Ms Jacqui Wilson (Housing officer, Director of Housing)

1. The Director of Housing ("the Director") is hoping to regain possession of a public housing property in Broadmeadows, by seeking an order from the Tribunal that the tenant has abandoned the rented premises.
2. It's not the first time the Director has tried to end its tenancy agreement with Amber Zavos ("the tenant").
3. On 5 February 2014, in the absence of Ms Zavos, the Tribunal made an order declaring the tenant had abandoned the rented premises on 15 January 2014.
4. On 7 February 2014, Ms Zavos requested a review and rehearing[1].
5. The matter came on for hearing on 28 February 2014, at which time I granted the review, satisfied that the tenant had a reasonable excuse for not attending the hearing, and that the application for review had been made within 14 days of the order.
6. I then proceeded to re-hear the matter. At the end of the hearing, I reserved my decision.
7. The question for determination by the Tribunal is whether or not as a result of Ms Zavos' absence from the rented premises, she has abandoned it.

1. The Director was first advised that the tenant was not living at the rented premises in July 2013. It was told by neighbour, Jason Marshall, that he had seen a moving truck blocking the common driveway for approximately two hours.
2. Mr Marshall gave evidence at the hearing. He also presented a two page document titled "Zavos Reports.txt" in which he had logged attendances at the rented premises and property from July 2013 to December 2013.
3. The log does not report any attendances at the property by Ms Zavos.
4. However in cross examination, Mr Marshall admitted that he was unclear whether or not furniture was going into or out of the rented premises. He stated that in the two years prior to noticing the moving truck, he had only seen Ms Zavos once every three months. He also gave evidence of hearing a noise at the rented premises recently and peering over a fence, only to see Ms Zavos who told him to go away.
5. Ms Zavos says the moving truck was moving her back into the rented premises after she spent some time away from the property. This explanation was supported by a letter from a Victims of Crime support worker. Ms Zavos was the victim of a violent assault and several burglaries at the rented premises. In May 2013 she moved her furniture out of the rented premises, fearful of her and her sons safety. By July 2013, Ms Zavos was feeling safer and with the assistance of the Victims Assistance and Counselling Service, a removalist moved items back into the property.
6. Since that time, Ms Zavos admits that she has spent most nights away from the property, returning once a week to collect her mail and maintain the rented premises. She did spend the school holidays in September 2013 at the rented premises, when her son was away, and a girlfriend stayed with her making her feel safe.
7. Most nights Ms Zavos spends at her mothers place in Collingwood. She shares a bed with her 9 year old son - her mother has the second bedroom. She says that she is her mothers carer. Ms Zavos and her mother have been on a public housing waiting list for a transfer to a three bedroom property to accommodate them all (including Ms Zavos' son) for six years.
8. Ms Zavos has also considered seeking a transfer from the rented premises to another two bedroom property. However she has been told by the Director that she can't be on two waiting lists at the same time. If Ms Zavos was to put her name down for a transfer, she and her mother would be removed from the 3 bedroom waiting list. The Director has confirmed that this is its policy.
9. Ms Zavos says she hopes to return to staying at the rented premises overnight and through counselling, is working on taking steps to feeling safe.
10. The Director made much of a third party staying at the rented premises. Ms Zavos admits she had someone living there, as a way of maintaining the premises. The "guest" was removed by police from the rented premises, in January, following a number of thefts in the area. I do not consider the existence of a third party at the rented premises assists the Director. In my view, the tenant is more likely to be seen to have sub-let the property than abandoned it. However I form no conclusive view on this point.
11. Ms Zavos has at all relevant times continued to pay the rent for the rented premises. The Director stopping these payments when the first order was made in early February. She also has all the utilities connected at the rented premises in her name.

1. An order declaring the premises abandoned is sought pursuant to section 241 of the Residential Tenancies Act 1997 ("the RT Act") which states :

(1) If a landlord believes that a tenant has abandoned rented premises, the landlord may apply to the Tribunal for an order declaring that the tenant has abandoned them.

(2) An application under sub-section (1) must be heard by the Tribunal within 5 business days after the application is made.

(3) On an application under sub-section (1), the Tribunal may by order declare that the rented premises were abandoned by the tenant on a day specified by the Tribunal.

(4) The tenant is deemed to have abandoned the rented premises on that specified day.

1. The RT Act does not define the term "abandoned". No assistance is to be gained with the definition in either the explanatory memorandum or the second reading speech. Nor has there been any published decision concerning abandonment of rented premises.
2. The Courts of Victoria have however considered the term in reference to a claim for adverse possession. As recently as 6 September 2013, Associate Justice Lansdowne[2] referred to a decision[3] of the Full Court of the Supreme Court of New South Wales, where the "Court expressed the test as being whether the break in possession is such as to indicate abandonment, being a question on the facts of the particular case".
3. Her Honour then went on to quote Gordon J who stated "in our opinion it is a question of fact in each case whether a trespasser has in fact abandoned his possession, and that question is not conclusively answered by showing that he may for a short period of time have ceased to be in actual physical occupation of the land. We do not think the mere non-user of the land for a time is conclusive evidence of abandonment of possession".
4. The Oxford dictionary defines abandon as "leaving a place empty or uninhabited, without intending to return". The Macquarie dictionary defines abandon as "to leave behind completely and finally : to abandon one's home".
5. With the payment of rent, the connection of utilities, the regular attendance for maintenance, the existence of most personal items including furniture and a desire to return, in my view Ms Zavos has not abandoned the rented premises. While she may not be living in the property, she is using it. She has not left it empty, nor left it behind completely. She is returning periodically and has an intention to return more permanently.
6. The landlord submits that I should give consideration to the demand and pressure on waiting lists for public housing. Unlike an application for the creation of a tenancy agreement[4], the "hardship" likely to be experienced by a party to the application is not a matter for consideration.
7. If I was to consider the public housing waiting lists, then I would also take into account the Director's policy relating to absences from the home[5].
8. I would also take into account the policy that has hindered Ms Zavos from being able to move to a property she feels comfortable in. Due to "policy", Ms Zavos can't be on two waiting lists at the same time. To put her name in for a transfer to a different 2 bedroom property (due to the violence she has experienced in the home), means that she would be taken off the waiting list she and her mother are on for a 3 bedroom property. They have been on that list for more than six years.
9. If I was to take the Director's policy into account, the balance of the competing interests identified above, would weigh heavily in favour of an outcome that would be in favour of Ms Zavos.
10. However for the reasons already stated[6], I have not looked beyond a consideration of the facts and whether or not Ms Zavos can be said to have abandoned the property.
11. In my view, Ms Zavos has not abandoned the rented premises. The order of the Tribunal dated 5 February 2014 is to be set-aside. The application for an order declaring the premises abandoned is dismissed.

[1] Pursuant to s.120 of the Victorian Civil and Administrative Tribunal Act 1998.

[2] In Ky Enterprises Pty Ltd v Darby [2013] VSC 484 @ paragraph 107

[3] In Nicholas v Andrew [1920] NSWStRp 18; [1920] 20 SR (NSW) 178

[4] See s.234 of the Residential Tenancies Act 1997.

[5] The Director of Housing policy allows a tenant to be absent from a property for a period of 6 months, as long as the rent continues to be paid. For any period longer than 6 months, the Director ordinarily serves the tenant with a 120 day notice. Ie A "no reason" notice.