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austlii:sa/SARTT/2000/17
defendant. Application dismissed
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A landlord cannot issue a termination notice to a tenant and then offer to extend the lease - doing so waives the right to rely on the termination notice. Here, the landlord's agent gave the tenant a notice to pay rent or leave, but two days later offered a 12 month extension. The Tribunal found this was waiver and dismissed the landlord's application for possession. The Tribunal also noted that the tenant had actually paid rent up to the hearing date, though the payments hadn't been properly recorded by the agent.
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The application seeks orders of the Tribunal for vacant possession, release of the security bond to the landlord and payment of outstanding rent.
Mr Ian Lilburn, of the agent on behalf of the landlords, appeared and gave sworn evidence. Ms Sandra Kelly, the tenant, appeared and gave sworn evidence.
On the basis of the evidence, I find that there is a residential tenancy agreement on the following terms:
Rent: Initially $145.00 per week but from 28 April 1999
Security Bond: $580.00 was guaranteed by the South Australian Housing Trust on behalf of the tenant and registered with the Commissioner (Bond No.
I find that this agreement is subject to the Residential Tenancies Act, 1995 ("the Act").
I find that a notice of termination in the prescribed form (Schedule 2) was submitted with the application which is dated 6 March 2000. It refers to a breach of failure to pay rent. The notice provides that the breach must be remedied within seven days and if the breach is not remedied then the tenant is required to give up possession on 15 March 2000.
However, by letter dated 8 March 2000 the agent for the landlords offered the tenant a 12 month extension of her lease which was dated and signed by her on 13 March 2000. As this offer to extend the agreement came shortly after the notice of termination had been issued, the Tribunal determines that the agents for the landlords have effectively waived their right to rely on the Schedule 2 notice.
The Tribunal received a copy of the rent record which showed that rent was paid to 17 February 2000 with the last rent payment being made on 25 February 2000. The tenant produced a Commonwealth Bank pay-in book which showed four further payments which do not appear on the rent record. These payments are as follows:
It is unclear why these payments have not been credited to the agency account. However the butts of the pay-in slips are stamped with Commonwealth Bank stamps and the agent accepted that they have been paid. If those amounts are credited rent will be paid to 30 March 2000. The agent will ascertain what has occurred with these rent payments. However in the particular circumstances of this case the Tribunal declines to make any order. It will simply dismiss the application.
Pacillo & Pacillo (by Bernard H Booth Pty Ltd)
Kelly [2000] SARTT 17
Application dismissed