Residential Tenancies Act Case in the Court of Appeal
Published on January 8, 2014 by Matthew Rafferty
There has been a rare Residential Tenancies Act case proceed to the Court of Appeal.
The case is: Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28.
The landlord in the case is the NSW Land and Housing Corporation. The tenant was convicted of cultivation and supply of cannabis.
The landlord sought to terminate the lease under section 91 of the Residential Tenancies Act, which permits the Tribunal to issue a termination order if the tenant uses the premises for the manufacture, sale, cultivation or supply of a prohibited drug.
In this case, there was no evidence that the tenant used the premises for the manufacture, sale, cultivation or supply of cannabis, however a large quantity (12kg) was found at the premises.
The Tribunal did not grant the termination order, but instead ordered the tenant not to permit the premises to be used for any illegal purpose, and gave the landlord the option to have the matter re-heard if the tenant did not comply with that order.
The Tribunal’s decision was overturned at the District Court, but reinstated at the Court of Appeal. The Court of Appeal found that the Tribunal had discretion as to whether to issue the termination order or not.
The reasons why the Tribunal exercises its discretion in favour of the Tenant included:
- the tenant’s history of illness and mental illness;
- the tenant’s history of drug abuse; and
- the tenant’s undertaking (as part of her bail conditions) to reside in the premises; and
- to give the tenant an opportunity to show she could complete her medical treatment and rehabilitation program.
The case demonstrates the difficulty a landlord can have in evicting tenants because of behaviour – even when the behaviour is criminal.
Part of the case discussed the extra provisions in Part 7 of the Residential Tenancy Act – which relate to Social Housing Tenancy Agreement. This part now applies to registered Community Housing Providers. Sections 143, 148 and 152 provide a Community Housing Provider with some additional grounds to terminate a residential tenancy agreement (although the Tribunal may refuse to grant termination orders based on the same reasons as above).
You can find some information about registration as a Community Housing Provider at http://www.nrsch.gov.au/home.
Please contact us if you would like more information about registration as a Community Housing Provider, or Part 7 of the Residential Tenancies Act.
