Held, setting aside and substituting the decision under review:

• The tenancy is reinstated and the respondent will offer a probationary tenancy of 12 months commencing from the expiry of the previous tenancy term (subject to conditions).

Internal Review - Residential Tenancy - Landlord application - Termination and vacant possession - Breach of agreement - Condition of property

South Australian Civil and Administrative Tribunal Act 2013 s 70

The applicant appeared in person and was assisted by Ms J Nemet, RentRight SA

Mr F Catalano, South Australian Housing Authority, appeared for the respondent

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 70(6)(c)(i)

1. This is the further consideration of an application seeking the review of an order made by the Tribunal on 27 October 2022 in matter number 2022/SH003163 (the original Order).
2. The original Order required the applicant tenant Mr Franklin, to vacate the property on Thursday 8 December 2022. The basis of the original Order was Mr Franklin's failure to comply with previous Tribunal orders, and the poor condition of the property.
3. Mr Franklin sought a review of the original Order under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act). The Tribunal conducted a directions hearing on 29 November 2022 and then conducted a full hearing on 15 December 2022 and made an order adjourning the application to 31 January 2023 and requiring Mr Franklin to provide access so that a property inspection could occur on 30 January 2023.

1. Ms Nemet submitted that Mr Franklin acknowledges that he has a hoarding disorder. She said that his circumstances had changed in that he was now willing to work with supports to address the condition of the property, and had commenced doing so. She said that he needed further time to address the issue of the condition of his property.
2. Mr Catalano said that the respondent landlord, the South Australian Housing Authority (SAHA), still considered that the original Order was the correct and preferable order. Mr Catalano referred to the significant support which had been provided to Mr Franklin by SAHA. He said that Mr Franklin had been provided with sufficient opportunity to clean up by SAHA and also by the Tribunal. Mr Catalano said that SAHA did not agree for Mr Franklin's tenancy to continue and in fact, the fixed term tenancy had expired in November 2022, and SAHA's view was that the tenancy should not be extended.

The outcome of the hearing conducted on 15 December 2022

1. I accepted SAHA's submissions that the issue had been long-standing, SAHA had provided good support to Mr Franklin, Mr Franklin had been provided with sufficient opportunity to clean up the property by SAHA and also in the Tribunal process, but had failed to do so. However, I said that I would give Mr Franklin one last chance, and I adjourned the matter to 31 January 2023 with specific directions as to further cleaning up to be done in the yard. I said that if Mr Franklin was unable to achieve the tasks identified in my order, then it was likely that I would affirm the original Order at the adjourned hearing.

The evidence and submissions of the parties at the hearing of 31 January 2023

a) Mr Franklin acknowledges that he has a hoarding disorder. It is difficult to obtain supports and funding for persons with hoarding disorders. Ms Nemet is hopeful that with assistance from his GP, psychologist and counsellor from Relationships Australia, Mr Franklin may be able to obtain funding through the NDIS. > > b) While Mr Franklin has previously not engaged sufficiently with supports, he has now engaged with RentRight and he has two friends who have been working with him to clean up the property. > > c) While Mr Franklin may not have cleaned up the yards to the extent required by the Tribunal order of 15 December 2022, he has made substantial progress - particularly in the front yard - and he is continuing his clean-up work. Ms Nemet and Mr Franklin propose to lodge a clean-up plan with the Tribunal which will set realistic goals over a 12-month period. Mr Franklin seeks an opportunity for this to occur. The Tribunal has allowed other tenants longer to address the condition of their property and that would be appropriate in Mr Franklin's case. > > d) In the past, Mr Franklin's attempts to clean up have been hindered by his partner's mental health issues, and his own medical issues. Mr Franklin is working with his psychologist and counsellor to address these issues.

2. Mr Catalano submitted that when it was made, the original Order was the correct or preferable order for the following reasons:

a) This issue is longstanding - Mr Franklin was provided with a tenancy practitioner at a previous property because of the property condition and photos taken in January 2022 show the poor condition of the property at that point. Mr Franklin has had a reasonable opportunity to address the issue.

b) SAHA has provided Mr Franklin with substantial support to address his hoarding issues, in particular a referral to a Tenancy Practitioner between 15/10/20 - 14/4/21 and 28/6/22 - 12/10/22 increasing support when Mr Franklin was struggling.[1]

Despite the assistance of the Tenancy Practitioner, on 12 October 2022, SAHA decided to close the case because he had failed to make adequate progress.

1. The Tribunal provided Mr Franklin with a reasonable opportunity to address the issue of the property condition. The Tribunal conducted hearings on 2 June 2022, 23 June 2022, 25 August 2022 and then the final order was made by the Tribunal on 27 October 2022.

1. Mr Catalano said that even though Mr Franklin had not fully complied with the Tribunal order of 15 December 2022 (as illustrated by the photos taken by SAHA officers at the inspection carried out on 30 January 2023), SAHA would be prepared to give Mr Franklin one last chance but in view of the history of the matter, that would be on strict conditions:
   • Ms Nemet and the SAHA officers must agree on a clean-up plan;
   • Mr Franklin must allow access to SAHA officers so that they can conduct monthly visits to assess his progress in terms of the goals on the clean-up plan;
   • SAHA must have the right to request an urgent hearing at any point over the next 12 months if Mr Franklin is failing to provide access or failing to meet the goals set in the clean-up plan.

Mr Catalano said that if Mr Franklin agreed to those terms and conditions, then SAHA would be prepared to consider extending his tenancy for a further probationary period of 12 months.

1. In the review hearing, I allowed for a short adjournment after Mr Catalano's submissions so that Ms Nemet and Mr Franklin would have an opportunity to discuss SAHA's proposal. After some discussions, they agreed with the proposal.

1. Section 70 of the SACAT Act requires that on review, the Tribunal must make the correct or preferable decision taking into account the evidence available to the Tribunal at the original hearing, giving appropriate weight to the original Order and taking into account any other evidence the Tribunal considers is relevant and appropriate to take into account as part of the review process. An application for review necessarily involves an application for leave.
2. Tenancy disputes involving hoarding usually involve complex circumstances such as:

1. The principal issue will be an excessive accumulation of clutter and the amount of clutter will have reached a point at which the tenant is in breach of their obligations to maintain the property in a reasonable condition and reasonably clean[2].

• While many households may have some clutter, in a matter involving hoarding, the accumulation of clutter is so extreme that the property is sometimes unsafe (for example, because Emergency Services may not be able to access the property, or electrical sockets are being obscured by clutter).
  • Sometimes a property in which there is hoarding, may also be unsanitary because it is unclean (eg dirty dishes in the sink; unwashed clothing and other items lying around the house; perishable food left uncovered and unrefrigerated) which can lead to the risk of vermin.
  • A tenant who is a hoarder may not acknowledge that the hoarding is problematic and has led them to be in breach of their obligations as a tenant or alternatively, the tenant will refuse to take responsibility for the issue by making numerous excuses as to why the condition of the property has reached the point of being so poor.
  • A tenant who is a hoarder is quite likely to encounter multiple barriers in de-cluttering the property:
    • The tenant may well suffer from mental health issues and/or other health issues which are likely to be a contributing factor;
    • De-cluttering can be expensive and unaffordable for tenants;
    • De-cluttering can also involve significant physical work which may be beyond the physical capabilities of a tenant who has health issues;
    • A tenant who is a hoarder may be suspicious of supports, and unwilling to properly engage with those offering assistance to de-clutter.

3. In Mr Franklin's case, he acknowledges that he is a hoarder however, up until this review process, he failed to take appropriate steps to address his hoarding, and he failed to engage with the supports offered to him. He was clearly in breach of his obligations under his tenancy agreement concerning the condition of his property. Mr Franklin's explanations for his failure to address the condition of his property were not an excuse for the condition of his property.

The role of the Tribunal in dealing with applications involving hoarding/property condition

1. The Tribunal must make an impartial and unbiased assessment of any dispute involving hoarding. In these matters, the Tribunal will generally have two primary issues to consider: first, is it likely that the tenant will be able to return the property to a reasonably clean and reasonable condition within a sensible time frame and second, is the tenancy likely to be viable on a long-term basis. In considering those issues, the Tribunal will usually take into account the following factors:
   • Is the tenant genuine in acknowledging that the poor condition of the property is an issue - for example, has the tenant commenced de-cluttering or otherwise demonstrated a commitment to clean up the property.
   • Is a tenant's proposal to clean up of the property realistic - for example, is the hoarding so extreme, or are there conditions of squalor which make this submission unrealistic.
   • Has the tenant actually engaged with supports - sometimes a tenant will say that they are willing to engage with supports, but then the tenant will refuse to allow others to work on the de-cluttering.
   • Does the tenant have practical arrangements in place which are likely to achieve actual progress in a reasonable time such as -
     • Practical support from others to assist in de-cluttering;
     • A realistic clean-up plan which has been agreed by the landlord;
     • Strategies to address the cost of de-cluttering (such as how to afford the cost of a skip).
   • Is the tenant addressing health issues (including mental health issues) which are likely to have contributed to the poor condition of the property.
   • What is the attitude of the landlord to the matter - the Tribunal would generally expect that where the landlord is SAHA or a Community Housing Provider, then the tenant is likely to be a disadvantaged person and so would usually require more time to address any hoarding issues, and also should be provided with support to do so (eg a referral to a Tenancy Practitioner).
2. I agree with Mr Catalano's submission that the original Order was the correct and preferable order when it was made. I note that before the final order requiring Mr Franklin to vacate, Member Ward, as she then was, had conducted three previous hearings. In each order she made, Member Ward was clear about the clean-up work to be undertaken at the property. Member Ward was also clear about the possible consequences should Mr Franklin not adhere to the orders. In her order of 25 August 2022, Member Ward stated:

"... the tenant has made some progress ... [but] on balance, I would not be satisfied that the tenant has made substantial progress toward achieving the goals set for him in the last Tribunal orders ... > > I will make orders that the tenant declutter and clean the laundry, Bedroom 2 and the passageway leading to Bedroom 2, the bathroom and the kitchen ... If the tenant has not complied with the Tribunal's orders by the time of the next hearing, there is a serious possibility that the Tribunal may make orders evicting the tenant from the property."

3. In the original Order (made on 13 October 2022) Member Ward stated that in her assessment, she was not satisfied that there was a reasonable prospect that the tenant would be able to address the condition of the property within a reasonable period.
4. Effectively, Ms Nemet submits that the original Order should be set aside for two reasons. First, in the original jurisdiction, the Tribunal did not give Mr Franklin long enough to clean up his property and second, because Mr Franklin's circumstances have changed.
5. I do not agree with Ms Nemet's first submission. Every one of these matters is different. In the original jurisdiction, the Tribunal is usually inclined to allow something between 6 - 12 months for a tenant to address a property condition issue - depending on the circumstances.[3] However, at any second or subsequent hearing, the Tribunal will be making an assessment of a tenant's progress. Unfortunately, it is not uncommon for a tenant to make good progress initially, but then to cease cleaning up altogether or to cease making reasonable progress. If the Tribunal decides at any adjourned hearing, that the tenant's progress has fallen below the standard required in order to return the property to a reasonable condition within a reasonable time, then it is well within the discretion of the Tribunal to terminate the tenancy (provided that this has been made clear to the tenant). I consider that Member Ward's orders in this matter were entirely consistent with this approach and I consider that her orders were appropriate.
6. However, I acknowledge that Mr Franklin's circumstances have now changed as
   • he acknowledges that his property is cluttered, and the clutter needs to be removed so that the property is returned to a reasonable condition;
   • he acknowledges that he must take responsibility for this issue and the issues that have distracted him from cleaning up in the past must not continue to distract him from cleaning up now;
   • he has demonstrated a willingness to address the issue of the property condition in making an effort to clean up the yard (mainly the front yard at this stage);
   • he has engaged with RentRight, his two friends and SAHA to achieve the recent progress at the property;
   • he has agreed to abide by a clean-up plan and he has agreed to allow access as required by SAHA.
7. On that basis, and on the basis of the parties' consent at the hearing, I will make final orders in the terms discussed at the hearing.
8. I make one further observation about this matter. While initially SAHA opposed any proposal to allow Mr Franklin to remain in the property, SAHA was prepared to reconsider that position in recognition of Mr Franklin's changed circumstances. I am grateful to SAHA for being prepared to entertain a different approach in this matter because of the changed circumstances, and for participating in the Tribunal process in such a fair and reasonable manner.

The Tribunal grants leave to apply for internal review.

The Tribunal Order of 27 October 2022 in matter number 2022/SH003163 is set aside and the following orders are substituted instead:

1. The tenancy is reinstated (and the respondent will offer a probationary tenancy of 12 months commencing from the expiry of the previous tenancy term in November 2022) on the following conditions:

a) The applicant tenant will lodge a draft clean-up plan with the Tribunal before close of business on Friday 3 February 2023 and the parties will agree to a final clean-up plan before close of business on Tuesday 28 February 2023. If the parties are unable to agree to a final clean-up plan, then either party may make a written request to the Tribunal for another hearing. > > b) The applicant tenant will allow access to the respondent landlord, for the purposes of an inspection to be conducted on the last Tuesday of every month for the next 12 months (commencing on Tuesday 28 March 2023) at 10.00am and for each of those inspections: > > 1. the landlord may have 2 officers present; > 2. the officers may be present for up to an hour; > 3. they must have unimpeded access to all rooms in the house and any sheds in the garden and may take photos; > 4. Mr Franklin may have his partner and a representative from RentRight at the inspection or another support person present.

If Mr Franklin fails to provide access on any occasion, then the respondent landlord may make a written request for another hearing.

1. If the respondent landlord considers that the applicant tenant is failing to adhere to the clean-up plan then the respondent may make a written request for another hearing provided that such a request is made before 3 February 2024.

[1] See entry on 3/8/22 in the notes of the Tenancy Practitioner.

1. [2] In the case of a SAHA tenant, their obligation is to keep the premises and any surrounding area clean and in good tenantable condition, free from vermin and clear of refuse - under their tenancy agreement.
2. [3] But if the landlord is not SAHA or a Community Housing Provider, the Tribunal may decide to allow no time at all, (ie to make an order for vacant possession) or to allow a short time for a clean up