The applicant is to file a civil dispute application outlining the amount claimed and how that amount was determined.
[2]
The case concerns a dispute between a former resident of the caravan park at Southside Village in Canberra, Philip William Rocks (the applicant), and the manager of the park, Karen Hutcheson who is also the director of South Canberra Holdings Pty Ltd Trading as Southside Village (the respondent/owner).
The application was filed in the Tribunal on 25 January 2018 and came on for hearing on 27 February 2018. The matter was commenced as a dispute under the Residential Tenancy Act 1997. The respondent raised an objection to jurisdiction on the basis that the Residential Tenancy Act 1997 (the RT Act) did not apply to the dispute.
The Tribunal was called upon to determine the preliminary jurisdiction issue and to that end some evidence was taken from the parties. The facts required for determining the jurisdiction issue were not contested. The facts concerning the dispute itself were contested and have not been the subject of evidence before the Tribunal.
The applicant moved into the park in April 2017 with his own van. He paid a site fee of $180.00 weekly in advance. He was subsequently moved to new sites within the park on 9 September 2017 and 4 November 2017. On 21 January 2018 he was asked by the owner to leave the Village within three days allegedly because of frequent noise complaints from neighbors. His access to the park was barred from 31 January 2018 albeit his van remained on site (the eviction).
The applicant applied to the Tribunal to challenge the eviction. He contended that that there was an 'occupancy agreement' within the meaning of Part 5A of the RT Act between the park and himself and according the Tribunal had jurisdiction to hear the dispute over the merits of the eviction. The owner denied the existence of such an occupancy agreement and denied that the Tribunal had jurisdiction in the matter.
There was never any written agreement between the parties. The applicant had received a document titled 'Southside Village Rules' upon his arrival at the park, which listed the resident's obligations concerning sundry matters such as noise and cleaning. The document did not purport to be the whole of the agreement between the parties. It did not state the length of time the applicant was permitted to stay at the park, the rent or the circumstances in which the owner was entitled to evict the applicant. Neither party had signed the park rules document.
The resident contended that there had been either an oral or an implied 'occupancy agreement' between the parties. The owner accepted the existence of an oral or implied agreement, but denied that it amounted to an 'occupancy agreement' within the meaning of Part 5A of the RT Act.
The Tribunal indicated its preliminary position that the RT Act did not apply but queried whether the Tribunal nevertheless had jurisdiction under section 16 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) as a 'civil dispute'.
After hearing the submissions of the parties it was agreed that the Tribunal would determine the jurisdictional issue as a preliminary matter.
[3]
The contentions regarding jurisdiction gives rise to the following three questions:
(a) Was the agreement an occupancy agreement within the meaning of Part 5A?
(b) If it were not an occupancy agreement does the Tribunal nonetheless have jurisdiction over the matter arising from the agreement under its general jurisdiction in section 16 of the ACAT Act relating to contractual disputes; independent of the jurisdiction conferred by the RT Act.
(c) If the Tribunal has such jurisdiction what is the relevance of the fact that the application purported to be one made under the RT Act.
[4]
Definitional requirements of an occupancy agreement
[5]
The contractual status of a site agreement in the same caravan park was recently considered by the presently constituted Tribunal in Roberts v South Canberra Holding Pty Ltd Trading as Southside Village (Roberts).[1] In that matter the Tribunal held that a licence to place a van on a vacant site was neither a residential tenancy agreement nor an occupancy agreement for the purposes of the RT Act.
The core of the logic is as follows. Both residential tenancy agreements and occupancy agreements[2] require an agreement for the use of a 'premises' as a 'home'. The term 'premises' connotes a habitable structure and the term 'home' connotes further limitations on the nature of the premises and its minimum content.[3]
The agreement between the parties must be one in which the ownership of the 'premises' belongs to the lessor who then contracts with the tenant or occupant to allow the use of the premises as a home, for value i.e. rent.
In the case of bare site agreements in caravan parks there is no premises involved in the agreement. Bare land does not satisfy the definitional requirements of a premises or a home.
The facts of the present case are slightly different from those in Roberts. In the present case the applicant did use his caravan on the site assigned to him in the caravan park 'as a home' until he was evicted, whereas in Roberts the applicant sub-licenced the caravan to another person. However, this fact only contributed to an auxiliary reason in Roberts and has no impact on the main reason concerning the definition of 'premises'.
The situation may be different if the site in the caravan park already has a van or cabin in situ that is owned by the park, and under the agreement the resident obtains the right to use the van or cabin as a home. Such an arrangement is consistent with the definition of 'premises' in the Dictionary to the RT Act which "includes any habitable structure, whether it is affixed to the land or not." Note however that under this definition the 'habitable structure' must still be intended to be used as a 'home'. This definition would not be satisfied by a tent pitched on the site and would not include intended use of a van on site other than as a home, for example, as an office.
Even if the agreement is for an onsite habitable van or cabin owned by the park, there is still an issue of whether the RT Act intended to catch such agreements. These agreements are expressly excluded from the definition of 'residential tenancy agreements' by section 6F(1)(a) RT Act but there is no corresponding exclusion from the definition of an 'occupancy agreement'. It may be that the legislative policy encapsulated in section 6F was intended to operate in respect of the Act as whole in which case there would be no 'occupancy agreement' either. But this is not a clearly stated legislative policy and it was open to the Legislature to have legislated for the exclusion of caravans when Part 5A was inserted into the RT Act_._
There are other weighty policy reasons for not excluding agreements for on-site park owned van/cabin accommodation from the definition of occupancy agreement. These policies include the fact that such parks often provide long term housing for people on low income that have no other realistic housing options; and the impracticality of such people having to litigate their contractual disputes in the Magistrates or Supreme Court.
For present purposes it is sufficient that the Tribunal finds that the agreement between the present applicant and respondent is neither a residential tenancy agreement nor an occupancy agreement for the purposes of the RT Act_._
The conclusion that site only agreements in which the resident provides their own van are not residential tenancy agreements was also reached by the NSW Court of Appeal in May v Ceedive Pty Ltd[4] in relation to similarly worded provisions in the Residential Tenancies Act 2010 (NSW). The NSW legislation has no equivalent to the ACT occupancy provisions.
Given that the agreement is not an occupancy agreement for the purposes of the Residential Tenancies Act 1997 two further questions arise:
(a) How should the agreement between the parties be characterised in law?
(b) If the agreement gives rise of a cause of action known to law then is it one that the Tribunal has jurisdiction to entertain?
It is plain that there is an agreement of some kind between the parties that could give rise to a contractual dispute. The nature of the right conferred on the applicant is one to use land that otherwise does not belong to him. This may also give rise to a species of property right.
Section 17 of the ACAT Act confers on the Tribunal jurisdiction to hear civil dispute applications. Section 16 of the ACAT Act defines 'civil dispute application' to include an action in 'contract'.
The agreement between the parties in this matter is clearly a contract. It is an agreement between legal persons, for mutual consideration with the intention to create enforceable legal rights.[5]
Therefore, the Tribunal, prima facie, has jurisdiction to hear the matter as a civil dispute under section 17 of the ACAT Act_._ This task involves determining the relevant issues of fact and law including the construction of the contract.
The nature of the contract between the parties can be intertwined with the nature of any property rights that the contract was intended to create. Contracts are often the vehicle by which estates in law come into existence and remain in existence. This issue is addressed at [2.3.8] in Anforth, Christensen and Adkins, Residential Tenancies Law and Practice in NSW (Federation Press, 7th Ed, 2017).
At common law there are various kinds of tenancies which confer different rights in terms of tenure and use. They have in common that the tenant takes the exclusive right of occupancy and use during the term of the tenancy which can be exercised against the world (in rem), being a right derived from the contract with the owner of the land, that is, a tenancy is both a contract and an estate in land.[6]
At common law the contractual right to exclusive occupancy is the defining characteristic of a lease, that is, it is a condition precedent to the coming into existence of the estate in law.[7] The test is an objective one drawn from the agreement itself and not from the subjective intent of the parties.[8]
Section 6A of the RT Act dispenses with the common law requirement that tenancy agreements must grant the tenant exclusive possession but then provides that the tenant is to take the right to exclusive possession once the tenancy agreement is formed.
It may be that the definition in section 6A represents a reversal of the order of the common law but this is not necessarily the only way to view the matter. A residential tenancy agreement in the ACT (and in other jurisdictions) is now a statutory contract; there is limited freedom to contract out or around its terms and this does not include the right to contract out or around the right of exclusive possession and use. That being the case, it must be presumed to be the intention of the parties at the point of concluding a residential tenancy agreement that the tenant will take the exclusive right of possession because it is an axiomatic consequence of the agreement. This is no different to the intention of the parties at common law at the same point in time. In short, the fact that the definition of a residential tenancy agreement is framed to catch agreements where there is no exclusive right of possession becomes devoid of any utility when the mandatory terms of the residential tenancy agreement then confer that very right.
At common law a tenancy can be one relating to land only without any habitable structure and this is commonly the case including in agricultural tenancies. There is no reason in principle why the owner of a caravan park could not enter into a tenancy (a lease) with another person for a site in the park. It may be that such a tenancy may need express or imply easements relating to access to the site but this does not deny the leased status of the site in question. In order for a tenancy to exist over the site in the park it would still have to be determined that the agreement conferred to the exclusive right of occupancy and use on the resident for the terms of the tenancy. This involves the surrender of a substantial degree of flexibility by the park owner in the manner in which they can deal with the site.
Even if there is no tenancy of the site in the park there can still be a contractual licence to use the site. Not all contractual licences are tenancies, for example, the contractual licence to enter the cricket ground to watch the cricket. It is a contract and the entrant is not a trespasser unless and until the licence is terminated. But the licence does not give the entrant the exclusive use of any particular part of the cricket ground and the licence is made subject to conditions including time limits for the game, behaviour and the duty to obey instructions etc. The entrant is given no right to restrain or complain of the conduct of other people in the crowd that may be causing a nuisance to him/her as would be the case where the nuisance was caused to the owner or tenant or a parcel of land.
More relevantly, the common law was quite familiar with contractual licencees known as 'boarders' and 'lodgers'. In neither case were the licencees given the exclusive right of use of their bedrooms, that is, the owner reserved rights of entry and the residents had a further non-exclusive licence to use the common areas of the house. In both cases there were conditions imposed on the use by the resident of the bedroom and common areas usually called 'house rules'.[9] These forms of contractual licences usually provided for termination at the will of either party.
A site only contract in a caravan park is at the very least a contractual licence to use the site for agreed usages and subject 'park rules'.
In the present case the applicant was subjected to detailed house rules and constant supervision by the landlord. He was moved around to different sites of the caravan park three times during his stay, and shared other facilities with other occupants of the park. The fact that he could be moved from site to site at the park owner's discretion indicates that there was no agreed security of tenure on any particular site; or at best there was as tenancy at will in relation to any particular site.
Generally park owners need the flexibility to move residents around to meet business needs. On the other hand it is unfortunately commonly the case that once a resident became established in the park with their own van they build permanent structures around their van including cement slabs, verandahs, plumbing and sewerage. After these improvements the vans or cabins are no longer transportable. This occurred to a limited degree in the case of the present applicant.
Parenthetically, the question then arises at common law concerning the effect of a park owner watching and implicitly (or even explicitly) sanctioning the improvements by the resident. At what point do the estoppel principles of Walton's Stores (Interstate) Ltd v Maher[1988] HCA 7; (1988) 164 CLR 387 arise in favour of the resident.
Most site agreements contain 'make good' clauses which required that the site be returned to the owner at the end of the agreement in the same condition in which it was taken (minus fair wear and tear). The parties must be taken to know that once the above kind of improvements are made that any eviction will likely result in the need for demolition of those improvements in order to return the site to the condition in which it was originally received causing an obvious and consequential loss to the resident.
These considerations would suggest that the nature of the contractual agreement between a park owner and a resident that carried out improvements may have evolved over the time of the improvements. The choices appear to be that the agreement had evolved to:
(a) a tenancy agreement; or
(b) remained a contractual licence with implied compensation terms if the applicant is wrongly removed from the site;
(c) remained a contractual licence with an implied right to on-sell the van on site if the resident is removed from the park or even if the resident chooses to vacate the park leaving the van on site; and
(d) no change in the contractual licence and the resident undertakes the improvements at his/her own risk.
The problem with alternative (a) is in determining the implicit terms and duration of the tenancy. Is it to be implied that the tenancy is for an indefinite duration because capital loss would be suffered upon eviction any point in time. This cannot be right because even tenancies have limited durations and it is no small thing to imply an indefinite or life tenancy on behalf of the resident. Even in tenancies the tenant may be given explicit or implicit consent to do improvements but this does not convert the agreed terms of the tenancy into an indefinite duration. At best it only raises rights to compensation at the end of the tenancy and then only if the parties had so agreed before the improvements were done. If a tenant does unauthorised improvements or there is no agreement for the lessor to compensation tenant for the improvements at the end of the tenancy, then the tenant bears the cost of 'making good', that is, restoring the premises to how they were at the start of the tenancy.[10]
The fact of having done improvements cannot lead to dissipation of the park owner's right to evict for breach of the park rules thereby creating a life tenancy subject only to payment of rent. Management of parks would become unworkable. The contract between the parties must be given a construction that could have been within the intention of the parties had they turned their attention to the matter at the relevant time, and provides business efficacy. Neither of these principles supports the notion that the park owner should be taken to have agreed to waive the right to terminate the site agreement for cause.
Turning to alternative (b) at [39] above. There is no suggestion from either of the present parties that any agreement was reached to compensate for the improvements. Even if the parties had turned their attention to this issue at the time the improvements were being done, it would be very difficult to agree an evaluation process. Many onsite vans, including the present one, are in a run- down state. They are of no value in their own right and the park owner does not want to retain the van on site. There could be some objectively determined valuation of the cement slab and plumbing but this assumes the subsequent occupants of that site want to remain long term or want to spend the money to attach their vans to the plumbing and sewerage. Not all vans have toilets and showers. Any subsequent van owner moving onto site would take no value from the plumbing and sewerage unless they spend the capital to put on a toilet and shower.
Alternative (c) at [39] also has its problems. It assumes that the sequence of subsequent owners of the van retain a right to pass on title to the next purchaser of the van, that is, the site may be permanently occupied by the same run down van albeit owned by a series of purchasers.
For the above reasons, the present Tribunal is of the view that absent express agreement to the contrary, a resident spends capital on his/her van at their own risk. This includes the risk of being evicted for any number of reasons, one of which would be for breach of park rules.
The Tribunal finds that it has the jurisdiction to hear the present matter under section 16 ACAT Act and not under RT Act_._ It does not matter that the applicant commenced the present application using the wrong form or nominating the wrong cause of action.[11] The Tribunal is intended to operate in an informal manner and to assist unrepresented parties to understand the issues (section 6 ACAT Act). The Tribunal's principal function is to resolve disputes in the community and this goal is not promoted by taking a narrow jurisdictional approach to its role. There is no value in having unrepresented parties arguing small claims before the Magistrates or Supreme Court. The better approach is to accept jurisdiction whereever it is open to do so on a reasonable construction of the relevant conferring legislation.
[8]
The Tribunal has jurisdiction in this matter as a civil dispute.
The remaining issues for determination are:
(a) whether the conduct of the applicant alleged by the respondent in fact occurred;
(b) whether any conduct of the applicant justified eviction in accordance with the park rules; and
(c) if not, what is the measure of compensation payable to the applicant.
[5] Anforth, Christensen and Adkins, Residential Tenancies Law and Practice in NSW (Federation Press, 7th Ed, 2017) at [2.13.3]
[13]
[6] Anforth, Christensen and Adkins, Residential Tenancies Law and Practice in NSW (Federation Press, 7th Ed, 2017) at [2.3.8]
[14]
[7] Residential Tenancies Law and Practice in NS' (2017) 7th ed Anforth, Christensen and Adkins at [2.3.8]
[15]
[8]Bruton v London and Quadrant Housing Trust[1999] 2 All ER 481; KJRR Pty Ltd v Commissioner of State Revenue[1999] VSCA 2; Anforth, Christensen and Adkins, Residential Tenancies Law and Practice in NSW (Federation Press, 7th Ed, 2017) at [2.3.8]