(a) the need for the flexibility to remove residents who are violent or misbehaving towards other residents or staff, or to remove their guests or visitors (invited or otherwise);

(b) the need for flexibility in its financial dealings with residents including arrangements for rent and bond;

(c) the need to enter a resident's house, invited or not, as part of the support programs;

(d) the need to regulate the conduct of residents in various ways as part of its support program and to mitigate the impact of one resident's conduct on other residents; and

(e) its limited accommodation resources, such that difficulties in removing unsuitable or non-complying residents may result in a misuse or wastage of those limited resources.

1. Toora is a declared crisis accommodation provider for the purposes of section 126 of the Act and so at present could terminate residential tenancies agreements on four weeks' notice.

1. The legislation applied in this case is the legislation in force at the time of the application for endorsement, which is the same legislation as in force at the date of this decision.
2. A residential tenancy agreement is defined in section 6A of the Act:

_(1) An agreement is a residential tenancy agreement if, under the agreement - _

(a) a person gives someone else (the tenant) a right to occupy stated premises; and

(b) the premises are for the tenant to use as a home (whether or not together with other people); and

(b) in writing, oral, or partly in writing and partly oral.

(b) given with a right to use facilities, furniture or goods.

(4) This section is subject to the following sections:

[there follows a list of express exclusions from the definition, none of which are presently relevant]

_Despite section 6A (4), an agreement is a residential tenancy agreement if it - _

(c) expressly states that it is a residential tenancy agreement.

1. The Agreement between Toora and the respondents satisfied both section 6A and 6B and does not fall within any of the exclusions to the definition.
2. Section 8(1) of the Act provides that all residential tenancy agreements shall be in the terms of the standard agreement set out in Schedule 1 of the Act:

(a) must contain, and is taken to contain, terms to the effect of the standard residential tenancy terms mentioned in schedule 1; and

(i) that is consistent with the standard residential tenancy terms; or

(ii) that is inconsistent with a standard residential tenancy term if the term has been endorsed by the ACAT under section 10.

1. For present purposes the important part is section 8(1)(d)(ii).
2. Section 9 provides that:

_(1) A term of a residential tenancy agreement is void if - _

(a) it is inconsistent with a standard residential tenancy term; and

(b) it has not been endorsed by the ACAT under section 10.

(2) A term of a residential tenancy agreement is void if it is inconsistent with this Act (other than a standard residential tenancy term.

1. The effect of section 9 is that:

(a) terms inconsistent with the standard terms are void unless endorsed under section 10 (section 9(1)); and

(b) terms inconsistent with the Act are void per se, that is, they cannot be endorsed.

For this reason, it becomes necessary to identify each of the terms proposed for endorsement and whether the source of inconsistency is with the standard terms of a provision of the Act. Put another way, not all inconsistent terms can be endorsed.

1. Section 10 provides:

(1) The parties to a residential tenancy agreement may apply in writing to the ACAT for endorsement of a term of the agreement (the inconsistent term) that is inconsistent with a standard residential tenancy term.

(2) If the parties apply for endorsement of the inconsistent term, the ACAT must do 1 of the following:

(b) substitute the equivalent standard residential tenancy term for the inconsistent term.

_(3) In making a decision under subsection (2), the ACAT must consider - _

(a) the criteria determined under subsection (6); and

(b) whether the inclusion of the inconsistent term in the residential tenancy agreement was obtained by fraud or undue influence.

(4) The ACAT must not endorse a term that is inconsistent with this Act (other than a standard residential tenancy term).

1. There have been no criteria determined by the Minister under section 10(6).
2. Sections 8 to 10 of the Act and standard term 3 essentially remove the parties' freedom to contract and mandate a standard contract. There is a long history behind this policy that has its roots in the immediate post WWII period and the perceived historical imbalance and abuse of power by landlords. The idea was to provide tenants with a measure of protection by way of standard terms which the landlord could not avoid or contract out of. See for example sections 15, 19, 21 and 219 of the Residential Tenancies Act 2010 (NSW).
3. This endeavour entailed a consideration of the minimum terms necessary to achieve this legislative policy. Those minimum terms now include:

(a) The exclusive right of possession of the premises, including to the exclusion of the landlord. This includes the right to determine who can, and who cannot, come upon their property and when. The legislation significantly limited when and how the landlord could enter the premises.

(b) The quiet enjoyment of the premises as a home. This requires restrictions on the landlord's power to intervene in or dictate the tenant's activities in the premises, consistent with it being the tenant's home and the human rights of the tenant.

(c) The rent payable and how and when the rent could be increased.

(d) The security of tenure, involving the circumstances and manner in which a tenant could be evicted.

1. At common law there exists a range of forms of contractual licences under which people can occupy and reside in premises. These contractual licences do not carry the same bundle of rights for tenants as do residential tenancies, that is, residential tenancies are the higher form of protection afforded to residents.[1] A residential tenancy agreement is not only a form of contractual licence, it also constitute an estate in land.[2]
2. These other forms of contractual licenses include what are historically described as 'boarders,' 'lodgers,'[3] guests in inns and hotels,[4] live in domestic employees, other employer provided accommodation[5] including military barracks, student and staff at boarding schools and university colleges,[6] residents in caravan parks, residents of holiday accommodation,[7] occupants of short term shelters,[8] retirement villages,[9] patients in hospitals, residents in benevolent institutions and aged care facilities, invited guests staying overnight etc. Each of these forms of contractual license carries its own bundle of rights for the residents, and in some jurisdictions some of these forms of occupation have now been embodied in statutes.[10]
3. In the ACT the legislature has chosen to embody the statutory protection for some (but not all) of these forms of contractual licensees in Part 5A Residential Tenancies Act 1997. Part 5A catches those arrangements that are similar in nature to residential tenancies. Part 5A at least catches the arrangements the common law called boarders and lodgers,[11] the university college style accommodation,[12] and longer terms residents of cabins and mobile homes in caravans parks:[13]

_71C(1) An agreement is an occupancy agreement if - _

(a) a person (the grantor) gives someone else (the occupant) a right to occupy stated premises; and

(b) the premises are for the occupant to use as a home (whether or not with other people); and

(d) the agreement is not a residential tenancy agreement.

(b) in writing, oral, or partly in writing and partly oral.

Note After 6 weeks, the occupancy agreement should be in writing (see s 71E (c)).

(b) given with a right to use facilities, furniture or goods.

_(4) The person given the right to occupy the premises may be - _

(b) someone prescribed by regulation for this section.

Note This Act does not apply to nursing homes, hostels for aged or disabled people or other prescribed premises (see s 4).

1. Part 5A does not prescribe standard terms, rather it prescribes 'occupancy principles' and leaves the parties the freedom to agree the details. Those principles are framed in broad terms:

71E(1) In considering a matter, or making a decision, under this Act in relation to an occupancy agreement for premises, a person must have regard to the following principles (the occupancy principles):

_(a) an occupant is entitled to live in premises that are - _

(b) an occupant is entitled to know the rules of the premises before moving in;

(c) an occupant is entitled to the certainty of having the occupancy agreement in writing if the occupancy continues for longer than 6 weeks;

(d) an occupant is entitled to quiet enjoyment of the premises;

(e) a grantor is entitled to enter the premises at a reasonable time on reasonable grounds to carry out inspections or repairs and for other reasonable purposes;

(f) an occupant is entitled to 8 weeks notice before the grantor increases the amount to be paid for the right to occupy the premises;

(g) an occupant is entitled to know why and how the occupancy may be terminated, including how much notice will be given before eviction;

(h) an occupant must not be evicted without reasonable notice;

(i) a grantor and occupant should try to resolve disputes using reasonable dispute resolution processes.

_(2) If an occupant occupies a mobile home on land in a mobile home park and the mobile home is not provided by the grantor - _

(a) the occupancy principle in subsection (1) (e) applies to the land and any fixtures provided by the grantor, but not the mobile home; and

(b) the grantor is entitled to enter the mobile home only with reasonable notice, at reasonable times, on reasonable grounds and for reasonable purposes.

1. Sections 73 and 74 of the Act give the parties the right to bring any dispute arising under their occupancy agreement to the Tribunal.

1. Set out below is a review of the terms of the Agreement that have raised the present concerns. Nothing that follows is intended to be a criticism of Toora's programs, arrangements or conduct. The point is only to draw attention to the particular and peculiar character of these arrangements as embodied in the proposed residential tenancy agreement when considering whether this Agreement should be more properly the subject of an occupancy agreement under Part 5A, rather than a residential tenancy agreement.
2. The Tribunal's concerns are not triggered by any one of the terms of the proposed agreement taken in isolation. There are examples of residential tenancy agreements in the social housing sphere and otherwise, that contain one or more of these terms. The problem in the present case is the number and nature of these terms, all in the one Agreement. This raises the issue of where the line should be drawn between residential tenancy agreements and occupancy agreements.
3. The proposed residential tenancy agreement at clause 1.2 provides an order of priority in the case of conflicting terms, at least to the extent that the Act permits. That priority is:

(a) the Agreement Particulars (set out on the covering page of the Agreement);

For the reason given above, sections 9 and 10 will not permit this term to have literal effect. At best it can apply to those terms inconsistent with the standard terms but not to those inconsistent with the Act.

1. The Agreement Particulars and clause 8.2(a) of the Agreement contain an inconsistency in that they limit persons who can reside in the premises to specific individuals. By this process the tenant could not have a friend or family member (adult or child) reside with them without Toora's consent. This is inconsistent with the right of a tenant to the exclusive possession and quiet enjoyment of the premises contained in standard terms 53 and 52 of the Act:
   1. Unless otherwise agreed in writing, the tenant has exclusive possession of the premises, as described in the agreement, from the date of commencement of the tenancy agreement provided for in the agreement.
   2. The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
2. Clause 8.2(a) is a derogation from the important concept that the premises is the tenant's home for the terms of the tenancy. The kind of restriction in clause 8.2(a) is not a restriction that is imposed on other members of society in the use of their home whether as owners or tenants. It is however consistent with private boarding arrangements, boarding houses, shelters, and some university residences etc.
3. Clause 8.2 of the Agreement permits Toora to remove an approved occupant (other than the tenant) if its reasonably believes that person has or will commit an act of domestic violence against the resident. This clause would permit Toora to use reasonable force or police intervention for this purpose. This is not a right that any lessor has in residential tenancies and it is a major intrusion into the tenant's exclusive right of occupancy and quiet enjoyment.
4. Clause 8.2 also deems the resident to have abandoned the premises, and the tenancy terminated, if the resident is absent for more than four weeks without Toora's consent. No ordinary tenant needs the lessor's permission to go away for four weeks or is obliged to obtain their lessor's consent to do this. This clause is to be distinguished from those such as standard term 71 which merely prohibits the tenant leaving the premises vacant for more than a specified period. Standard term 71 is directed to potential vandalism and the tenant's duty to notify the lessor of any damage including, for example, from storms. As long as the tenant has a house sitter or friend or one of the usual residents (including the tenant's family) in occupation then no issue arises and the tenant is not obliged to obtain the lessor's consent to their holiday, going away for work or going into hospital etc.
5. This clause is also inconsistent with sections 36 and 61 of the Act which deal with deemed termination of tenancies due to abandonments. Abandonment does not arise because a tenant was away for four weeks or more or for any prescribed time period.
6. Clauses 8.4(c) to (f) provide Toora with the right to direct the resident to take various actions with Housing ACT in relation to bonds. For tenants generally, it is their own concern how they obtain the bond money and from whom; and a lessor does not have the power to direct a tenant what to do and when.
7. Clause 8.6 provides Toora with the sole discretion to vary rents. This is inconsistent with the restrictions on rent increases Part 5 of the Act and standard terms 34 to 40.
8. Clause 8.7 provides Toora with the right to direct the resident to apply for Commonwealth Rent Assistance which is then paid to the lessor in addition to rent and the bond. This is inconsistent with section 15 of the Act and standard term 24:

15(1) In consideration for giving a tenant a right to occupy premises, a lessor may only require or accept rent or a bond.

_(2) A lessor must not require or accept any consideration for - _

(a) agreeing to enter into, extend or renew a residential tenancy agreement; or ...

1. Clause 8.9 permits Toora to enter the resident's premises once a week for various purposes. This is inconsistent with standard terms 75 to 79 and is a significant intrusion on the right to quiet enjoyment.
2. Clause 8.11 permits Toora to distribute a set of House Rules. The clause permits the House Rules to regulate a wide range of activities and behaviours of the proposed tenant and their invitees, including:

(a) attending meetings as part of their case management plan;

(b) accepting any reasonable offer of accommodation by Housing ACT; and

1. The right to a lessor to tell the tenant what they can and cannot do in their home is a derogation from a tenant's right to quiet enjoyment and an exclusive right of possession. Even a lessor of a tenant living in units that share common walls with other units and shared facilities, does not have the right to impose House Rules on their tenant. House Rules are a feature of boarding arrangements where the residents share common facilities, or are rules agreed between joint tenants as part of their express or implied intra-tenant contract.[14]
2. If a tenant were to breach the House Rules, then it is doubtful that Toora could do anything about it. The House Rules are not a term of the Act nor are they a standard term. Section 36 of the Act prescribes the only methods by which a residential tenancy can be terminated by reason of the conduct of the tenant. These methods include an order of the Tribunal terminating the tenancy for breach of a standard term;[15] where the standard terms provide a ground such as the ending of the fixed term;[16] breach of certain provisions of the Act relating to rent;[17] or damage to the premises, the lessor or its employees, or serious and continuous interference with the quiet enjoyment of nearby premises.[18] Merely breaching the House Rules or even an endorsed term does not necessarily fall within any of these categories. For example, having a bottle wine with dinner or having a friend stay overnight would breach the House Rules but would not be grounds for termination of the lease.
3. The power in paragraph 25(b) above amounts to a right of Toora to evict a resident for no reason other than Housing ACT offering the resident accommodation. This is also inconsistent with section 36 of the Act and would not provide a basis for termination. It is also fundamentally inconsistent with the declared policy of providing the proposed tenants with security of tenure. The reason is readily apparent; the crisis accommodation house was never meant to be a substitute for long-term secure accommodation for the residents. There is a fundamental incompatibility between the two.
4. Clause 8.12 provides for a two week eviction where the resident engages in any form of violence or "presents a danger to" other tenants or staff. The determination of whether the danger exists is in the sole discretion of Toora. Section 51 of the Act provides:
   1. _On application by a lessor, the ACAT may make a termination and possession order effective immediately if satisfied that the tenant has intentionally or recklessly caused or allowed, or is likely to cause or allow - _

(a) serious damage to the premises or to other property of the lessor; or

(b) if the lessor is an individual - injury to the lessor or a member of the lessor's family; or

(c) if the lessor is a corporation - injury to a representative of the corporation or a member of a representative's family; or

(d) serious or continuous interference with the quiet enjoyment of nearby premises by an occupier of the premises.

(a) require that there be any actual injury to any person or damage to property;

(b) limit any injury or damage to that intentionally or recklessly caused by the tenant or their guest; or

(c) require that the 'danger' amount to a 'serious or continuous' interference with the quiet enjoyment of other tenants.

1. The right for Toora to determine for itself whether violence has occurred and whether that violence is sufficient to justify eviction is inconsistent with the consensual nature of a residential tenancy agreement. There is little point in having a contractual term that authorises one of the parties to unilaterally determine how to characterise the other party's conduct and whether to evict based on that characterisation.
2. The Agreement itself is drafted in a form of legalese that will probably not be understood by most of Toora's residents. There does not appear to be any plain English booklet to explain rights and obligations to residents including the effect of the terms proposed to be endorsed. This is not consistent with section 12 of the Act:

12(1) The lessor must give the tenant a copy of the proposed residential tenancy agreement and, if they are not included in the copy of the agreement, the standard residential tenancy terms, and allow the tenant a reasonable time to consider the proposed agreement.

(2) A copy of a residential tenancy agreement provided under subsection (1) that contains a provision that is inconsistent with a standard residential tenancy term must be annotated in a way that draws the attention of the tenant to the provision and the fact that it is inconsistent with a standard residential tenancy term.

1. Toora's wish to afford maximum rights to its residents by according them the status of a residential tenants is admirable but fundamentally inconsistent with the nature of supported crisis accommodation and the kind of flexibility that Toora seeks. There is no reason apparent to the Tribunal why Toora's advisors could not draft a suitable occupancy agreement that may better accommodate these two competing policy goals.
2. The matter is adjourned for further directions and for Toora to consider its position and advise whether it wishes to press its applications for endorsement.

[1] Anforth, Christensen and Atkins, Residential Law and Practice in NSW (Federation Press 7th Ed, 2017) (Anforth et al) at [2.3.8]

[5] Anforth et al at [2.9.1]; Residential Tenancies Act 1997 section 53

[6] Anforth et al at [2.12.3]; Residential Tenancies Act 1997 section 53

[10] See for example Boarding Houses Act 2012 (NSW), Residential Parks Act 1998 (NSW), Retirement Villages Act 1999 (NSW)

[14] Anforth, Christensen and Atkins, Residential Law and Practice in NSW (Federation Press 7th Ed, 2017) at [2.3.7]

[15] Section 48

[16] Section 47

[17] Section 49

[18] Section 51