Was the finding that the premises are not in good tenantable condition reached on an incorrect interpretation of clause 6(c) of the conditions of tenancy?

1. Ms Henderson raised some important issues concerning her obligations to maintain the premises in "good tenantable condition". Those issues were:
   • That the meaning of the phrase is sufficiently unclear to require the landlord to be very specific in its requirements to a tenant;
   • That the phrase refers to the fixtures of the tenancy and not the tenant's possessions in the tenancy;
   • That "good tenantable condition" insofar as it relates to fire hazards was achieved by the tenant.
2. Deputy President Johns discussed tenants with hoarding disorders in Franklin v South Australian Housing Authority.[11] The Deputy President addressed the matters that will usually be considered in the exercise of the Tribunal's discretion to grant vacant possession or make some other order:
   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 (e.g. a referral to a Tenancy Practitioner).
3. I considered the meaning of the phrase "good tenantable condition" in the matter of Fletcher v South Australian Housing Trust.[12] That case involved consideration of application for internal review of a decision ordering vacant possession of premises rented from the SAHT by a tenant who was a hoarder. I said:

1. The obligation to maintain the property in good tenantable condition is not elaborated upon and has not been judicially considered in any depth. It should be understood by reference to other obligations in the standard agreement between the SAHT and its tenants to: * Keep the premises and any surrounds clean, free from vermin and clear of refuse of any kind; * Develop and maintain those garden areas that are his/her responsibility to present a neat and tidy appearance; * Keep plumbing fixtures and pipes and drains in a clean and sanitary condition; * Comply with the legal requirements of the appropriate local authority for the collection and removal of rubbish and refuse from the premises; * Keep any common garden areas and passages and stairways and windows giving light onto them clean and free from obstruction; and * Make available for collection by the previous occupier of the premises any property left by the previous occupier and not purchased by the tenant. 2. There are numerous conditions that are directed at premises of communal occupation. There are no provisions directed at the accumulation of goods that are not 'refuse'. 3. The phrase "tenantable condition" can and does result in genuine differences of opinion as to what constitutes a reasonable accumulation of goods. It would reduce the incidence of disputes if the SAHT were to include as a condition of tenancy what is "tenantable condition" in this regard. 4. Ms Fletcher's daughter sought to distinguish cleanliness from excessive accumulation of goods. The distinction is an important one. One aspect of premises is being in good tenantable condition is that they remain hygienic. Where excessive amounts of goods are stored, hygiene can be compromised because the goods limit access for cleaning. But whereas excessive accumulation of goods is sometimes, and perhaps often, associated with a lack of cleanliness, that is not always the case. In this case, the Fletchers were emphatic in their evidence that the house remained clean despite the amount of goods in the premises. 5. In a short-term tenancy, it may be relatively easy for the SAHT to establish that the tenant knows what the SAHT considers to be "good tenantable condition" as it will bear close resemblance (taking into account fair wear and tear) to the house at the beginning of the tenancy. However, this point of reference becomes less reliable as the tenancy continues over many years and changes are made to the premises, either to repair or replace items, and to make structural changes, and where tenants are permitted to make changes as a home-owner might make such as painting, repairing, erecting sheds etc. Further, the premises will usually be unfurnished and contain no goods at the commencement of the tenancy. Therefore, there is no signal to the tenant about this aspect of tenantable condition at the commencement. 6. More important to the issue of accumulation of goods and its relation to "tenantable condition" are the inspections of premises. It could reasonably be expected that the accumulation of excessive goods would be addressed by inspections. Unfortunately, there was insufficient evidence about this topic before the Tribunal. It is not clear how often there had been inspections over the life of the tenancy or whether any of them had resulted in any directions to Ms Fletcher prior to the current process involving the Tribunal. Such evidence as there was indicated that the accumulation happened incrementally over many years but worsened when Ms Fletcher inherited the contents of her parents' estate approximately three years ago. An important aspect of this matter is the longevity of the tenancy. It would appear that Ms Fletcher has treated this as her life-long home and not as a place that must at all times be ready to be vacated within a short period. 7. I am left with a doubt as to whether what the SAHT considered to be tenantable was not understood by Ms Fletcher. Tess Fletcher stated at the internal review hearing that she asked for an itemised report following the inspections, but did not receive one. She said that if there were a general inspection report, then these "little issues and problems" could have been resolved. This statement highlighted the gulf between the parties. The SAHT considers that the extent of the accumulation is far from a "little issue" and that it should be obvious what needed to be done. However, apparently it was not obvious. It seems that a far greater mass of goods is acceptable for Ms Fletcher than for the SAHT - and perhaps most people. Such divergence of view would be addressed if the SAHT were to issue written instruction that had less scope for differences of opinion as to what is acceptable. A direction such as:

Photograph 1 of the shed taken on [date] shows that it is three quarters full of items. Half of the volume of goods in the shed must be disposed of (ie not remain on the premises) by [date]. A further inspection after that date will determine whether a further reduction is required.

4. Further, tenants would be less likely to misapprehend, and the Tribunal would not be faced with such different accounts, if there was some standardised method of recording, by photographs and descriptors, the state of premises and parts thereof.
5. In that case, the decision to grant vacant possession was set aside and the tenant allowed a further opportunity to remedy the breach. The case turned on whether Ms Fletcher had been given sufficiently clear instruction as to what she had to do to remedy the breach. That issue does not arise here. Firstly, the Senior Member issued quite specific orders as to what was to be done. Secondly, Ms Henderson has never submitted that she did not know what was asked of her. Rather, she submitted that the requests were unreasonable or, more frequently, that she could not comply with them because of her disabilities and a lack of others to help her.
6. Consistent with the approach taken in Fletcher v South Australian Housing Trust, I do not accept the Ms Henderson's submission at the internal review hearing that "good tenantable condition" refers only to the structural aspects of the premises, and whether they are hygienically kept. She contended that it was not open to the SAHT or the Tribunal to regulate the distribution of her possessions throughout the tenancy.
7. It is correct that neither the SAHT nor the Tribunal asserted or found a lack of hygiene. What was found was an excessive volume of goods. It was asserted that the volume of the tenant's possessions and the way that they were stored had the effect that the tenant had breached the requirement to maintain the tenancy in a "good tenantable condition".
8. The primary basis upon which the SAHT argued that accumulated goods jeopardise the "good tenantable condition" of the premises is the creation of a fire load and the risk that people will not be able to get in, or out, of the premises in the event of fire. It is for this reason that the first direction to hoarders is usually to clear pathways from doors to windows and between doors.
9. In this case, the SAHT did not provide any expert evidence about this. It should do so in such cases. It should either provide generic information about fire hazards from accumulated goods, and preferably a specific report about particular premises. However, the Senior Member considered that she was able to conclude that safety was compromised by inspecting the photographs of the premises.
10. On internal review, Ms Henderson submitted that she mitigated fire risks by maintaining two domestic fire extinguishers, sand and woollen blankets at the premises, and that the premises had two smoke alarms (upstairs and downstairs).
11. However, even without a report from a fire control authority, I am satisfied that that it was open to the Senior Member to conclude, at a superficial level, that the volume of goods at the premises increased the risk that the premises presented a risk to emergency services officers that they would not be able to have unimpeded access throughout the property if it were needed. However, the evidence about that issue was finely balanced.
12. However, with respect to the matters listed in Fletcher v South Australian Housing Trust it is important to emphasise that the case also highlighted that "good tenantable condition" entails that a tenant must be able to vacate a property at short notice. Ms Henderson submitted that the goods at the property were hers and consequently, their presence did not affect whether the premises were in "good tenantable condition". Presumably this is because the presence of the goods does not affect the state that the premises would be offered to a subsequent tenant. In other words, "tenantable" suggests that the premises must be capable of being offered to new tenants at some stage in the future. Such a contention cannot be sustained. In the Tribunal's experience, where a person who has a hoarding disorder leaves the premises, the landlord is invariably left with the cost of assisting in the removal or disposal of goods. This is because the tenant cannot, for medial or psychological or financial reasons or usually a combination of all of these, arrange the movement of the goods in a timely manner or at all. "Good tenantable condition" envisages that the tenant can vacate the property within the timeframes envisaged by the tenancy agreement and the RT Act.
13. Ms Henderson has a periodic tenancy which means that (subject to SAHA policies), she is liable to be given 90 days' notice by the landlord to vacate without a reason. Further, if an order for vacant possession is made in respect of the tenancy, 90 days is also the longest period of time that the operation of an order can be suspended.[13] The evidence in this case was that Ms Henderson would not be able to do that, except with significant external assistance. During the proceedings, Ms Henderson referred to the last occasion on which she moved house, in 2019. On her own evidence, she was unable to do that without assistance. On her own case, she cannot move out within 90 days or, in her view, at all.
14. In light of the uncontested evidence and the proper construction of "good tenantable condition", it was open to the Senior Member to conclude that the tenant has not maintained the premises in "good tenantable condition". The Tribunal made that finding on 4 August 2022 (paragraph 10). The Tribunal found that the extent to which the tenant's possessions crowded the rooms and hallways was such that the premises were "a long way" from meeting the requirement of "good tenantable condition". The finding was based on the Tribunal's examination of photographs and the evidence of witnesses.
15. The outcome of that hearing was not the subject of any application for review by Ms Henderson. That finding remains correct, albeit that it may have been more accurately attached to the accumulating evidence that Ms Henderson had no prospect of reducing the volume of her possessions to a level that was consistent with being able to move out in a reasonable timeframe in light of the nature of her tenancy, or maintaining her possessions at that level. It is for this reason that, although it did not attract any attention during the hearing, the finding that the breach was "sufficiently serious to justify termination" for the purposes of s 87 must also be upheld. An ongoing breach that cannot be remedied that affects safety and places a financial burden on the landlord for rectification is one that is sufficiently serious to justify termination.
16. The term "good tenantable condition" in the standard terms and conditions is arcane and unhelpful. I reiterate the statements made in Fletcher v South Australian Housing Trust that the SAHT should consider re-drafting this (and other) conditions in the standard tenancy conditions to provide better direction to tenants as to what is expected of them.
17. In this case, the tenant's arguments regarding whether the premises were in good tenantable condition do not succeed.

Was the making of the order for vacant possession the wrong decision in light of the applicant's disabilities and the consequences for her of the order?

1. Ms Henderson observed, correctly, that the Tribunal's decision to terminate a tenancy and grant vacant possession under s 87 of the RT Act is couched in discretionary and not mandatory terms. The Tribunal "may" make such orders if satisfied of a breach by the tenant that is sufficiently serious to justify termination. She submitted that Tribunal ought not have made the orders that it did.
2. Undoubtedly, there is a discretion to make an order for termination or vacant possession or to make a different order if those consequences are not appropriate. Ms Henderson framed this issue as if there was an obligation on the Tribunal to consider whether termination of the tenancy would be "harsh, unjust or unreasonable". That phrase does not arise in the legislation or case law on the subject. Ms Henderson submitted that the Tribunal ought to have considered the order "harsh, unjust or unreasonable" on the basis that:
   • She has a variety of disabilities including a hoarding disorder;
   • She would like to reduce the volume of goods at the premises with assistance as she cannot do it alone;
   • She has not in fact moved all of her possessions inside yet after moving into the premises in 2019;
   • The possessions are part of her and cannot be seen or touched by anyone except with her consent;
   • The possessions are important and valuable and constitute a library;
   • She would be homeless if the order were upheld;
   • She would be forced to give up her companion animals (birds) which assist her to remain mentally stable;
   • It would be discriminatory; and
   • It would be equivalent to a death sentence.
3. Ms Henderson filed with her internal review, a letter from her general practitioner[14] stating that she meets the criteria for post-traumatic stress disorder, major depressive disorder, panic disorder with agoraphobia and hoarding disorder. The SAHT does not challenge the medical evidence. Ms Henderson did not indicate that she had been advised that, with treatment, the symptoms of these disorders would be controlled, or that she anticipated any change to the symptoms of her hoarding disorder in the future by virtue of any treatment regime she has been complying with. On her own statements, she has kept a substantial library, as well as other items, for some years.
4. Ms Henderson referred me to the decision of Davis v South Australian Housing Trust.[15] In that decision the District Court exercising the former jurisdiction of its Administrative and Disciplinary Division, overturned an order for termination and vacant possession in relation to a tenant who had breached her tenancy by permitting the premises to be used by another person for an illegal purpose (growing cannabis). The Court considered that the fact that the illegal conduct was not dangerous, that it was not undertaken by the tenant herself, and the tenant's personal circumstances were such that the original decision should be quashed and the tenancy continued. Ms Henderson submitted that her own personal circumstances were more dire and that, by analogy, the decision relating to her should be set aside.
5. There are few similar features to that case with Ms Henderson apart from the significance of the consequences of an eviction. It is the Tribunal's view that the legislative scheme invites a particular approach to the two issues it confronts upon a finding of a serious breach. The two stages of decision-making in a case such as this one are:
   • Whether an order of termination and vacant possession is appropriate under s 87, taking into account the range of alternative orders, and
   • If such an order is appropriate, whether the operation of the order should be suspended pursuant to s 93(4) within the provisions governing that discretion, and particularly the 90 day maximum that the legislature has set.
6. In considering the first limb, the personal circumstances of the tenant are relevant but are subordinate to the seriousness of the breach, the length of the tenancy, whether the breach has been rectified or will be within a reasonable period of time, and the likelihood of the breach recurring. There is no basis upon which it has been established that the Senior Member did not consider these factors when making orders on 16 March 2023. Looking at the history of the matter, it is clear that the Senior Member explored alternatives to an order for termination and vacant possession for just under two years before concluding that the tenancy was not viable. This is confirmed by the Statement of Reasons at para [23].
7. Where the landlord is the primary provider of public housing, the exercise of the discretion takes into account that special role and the obligation on the landlord to explore alternatives to termination that private landlords are not obliged to consider.[16] There was no lack of evidence that both the landlord and the Tribunal had given consideration to those alternatives over a lengthy period of time.
8. Accordingly, the decision to terminate and grant vacant possession was the correct and preferable decision.
9. The personal circumstances of the tenant are the primary focus of the second limb of the test. It is evident that those circumstances were made clear to the Tribunal in the original decision-making process and that they led to a conclusion that Ms Henderson ought to be given 90 days to vacate, being the maximum provided for in the RT Act.
10. Despite the breadth of power conferred on the Tribunal in s 110, the upper limit of 90 days set by the legislature should be understood to operate to prevent the Tribunal from setting a longer period.[17] In any event, Ms Henderson did not seek a longer period to vacate but rather an order setting aside the original order in favour of an order that she be permitted to remain as a tenant and remedy the breach over an unspecified much longer period of time.
11. I would grant leave to proceed with the internal review as some issues of importance were raised. However, the original order was correct and preferable, and will be affirmed. This means that Ms Henderson must move out by midday on Wednesday 14 June 2023.

2. The original decision of 16 March 2023 is affirmed.

[1] [2019] SASC 30 at [6].

[2] Per slip rule order issued on 26 May 2021.

[5] See SACAT Act, s 3; South Australian Civil and Administrative Tribunal Regulations 2015, reg 4.

[9] [2017] SACAT 43.

[11] [2023] SACAT 21.

[12] [2019] SACAT 36.

[14] Letter from Dr Con Tsourtos dated 9 June 2021.

[15] [2011] SADC 16.

[16] Goji v South Australian Housing Trust [2018] SACAT 43.

[17] See also Upton v Fynes [2021] SACAT 84.