Termination of Tenancy

Based on the contribution of Anne Yuille, as amended by Genevieve Bolton, Executive Director/Principal Solicitor of Canberra Community Law and current to January 2018

The termination of a Housing ACT tenancy by either party is governed by the Standard Terms of the Act and the powers of the ACAT at Part 4 of the RTA.

In addition, there are certain processes and considerations particular to the termination of Housing ACT tenancies.

Termination by the tenant

As all Housing ACT tenancies are periodic, a tenant may terminate the tenancy by giving 3 weeks notice. Housing ACT has its own Notice of Intention to Vacate form for this purpose. The tenant is required to leave the premises in substantially the same condition and substantially as clean as at the commencement of the tenancy, subject to fair wear and tear. Housing ACT will generally conduct a pre-vacation inspection once the tenant has given notice, and always when the tenancy is ending because of transfer. The Housing Manager will identify cleaning and repairs they believe need to be done before the tenant returns the property to Housing ACT. As many Housing ACT tenancies last many years, in some cases upward of 40 years, there may be no record of the property’s original condition and limited records of the tenant’s request for repairs and lessor’s maintenance. In these circumstances the objective requirements may be difficult to determine, and dispute is common.

A final inspection is generally conducted on the last day of the tenancy. It is important for the tenant to return the keys to Housing ACT to mark clearly that the tenant no longer has possession of the property from that day and time.

Termination by Housing ACT

The principal of security of tenure still underpins Housing ACT tenancies to a large extent. It is relatively rare for Housing ACT to use the “no cause” provision in the Standard Terms (see clause 94 of the Standard Terms). It is generally used in only three circumstances:

1. The first is in relation to clause 28 of the Program which requires the tenant to move to another dwelling for reasons of safety or community harmony. If the tenant refuses to move, Housing ACT may issue a 26 week Notice to Vacate;
2. The second circumstance is a more recent development in which a 26 week notice may be given to a tenant whose annual household income has exceeded $94,855.70 in 2 consecutive years. A tenant can seek internal review of the decision to terminate the tenancy and consideration is given to a range of individual circumstances.
3. The third situation in which the 26 week notice provision may be used is where the tenant is incarcerated for a period of more than 6 months. Recently such notices have also been given to tenants who are unable to occupy their home because of bail conditions or because they are in long term residential rehabilitation.

Apart from these three situations, the reasons for termination by Housing ACT will be an alleged breach of the tenancy agreement by the tenant. In some instances the breach will be evident: failure to pay rent, for example. In other cases, whether or not there is a breach by the tenant is very much a question to be determined by reference to evidence.

Non-payment of rent

In accordance with the Standard Terms, if a tenant is 7 days or more in arrears of rent, Housing ACT may issue a Notice to Remedy giving 7 days for the arrears to be paid. If the tenant fails to pay the arrears, on or after the 8th day Housing ACT may issue a Notice to Vacate giving 14 days, and, if the tenant fails to vacate, Housing ACT may apply to the ACAT for a Termination and Possession Order (TPO).

In practice the Housing Manager will endeavour to establish the cause of non-payment or underpayment of rent and will encourage the tenant to enter into an arrears repayment arrangement. Given the low incomes of most tenants, repayment of rent arrears can only be by instalments. A Notice to Vacate on the grounds of rent arrears is not usually issued if the tenant is making regular payments of rent plus an arrears component.

Generally, Housing ACT will seek to recover outstanding rent without seeking eviction. At section 49 of the RTA, ACAT has the power to make a Conditional Termination and Possession Order (CTPO) which allows the tenancy to continue on condition of payment of rent and arrears in accordance with the orders. In order to make a CTPO the Tribunal must be satisfied that the tenant is “reasonably likely” to repay the arrears and pay rent as it falls due, and the tenant must undertake to do so. If the tenant fails to comply with a CTPO, Housing ACT may apply to the Tribunal for a warrant of eviction.

The current policy of Housing ACT in relation to rent arrears is that eviction is the last resort. If the tenancy manager is of the view that it may be appropriate for Housing ACT to seek eviction, the matter will generally be referred to the review body, the Housing Assistance Tenancy Review Panel (HATRP) for a recommendation of whether or not to seek an Unconditional Termination and Possession Order. Underlying problems experienced by the tenant may be picked up at the HATRP review: for example, arrears arising from loss of rebate, which may be addressed administratively, or a health issue affecting capacity to pay, addressed by referral to support services.

The Tribunal has tended to be reluctant to evict Housing ACT tenants, particularly where there are children involved, because of the detrimental effects of homelessness for people on low incomes who may have no other housing options. This concern is balanced by consideration of the public purse and eviction may be the final outcome for persistent non-payment of rent. This is more likely to be the case where the tenant does not attend the hearing or provide the Tribunal with any account of the cause of the rent arrears.

Breach other than non-payment of rent

If Housing ACT wishes to seek ACAT orders under section 48 of the RTA, in respect of a breach other than non-payment of rent, they must issue a Notice to Remedy giving the tenant 14 days to remedy the breach. If after 14 days there is no remedy, or the breach is not capable of remedy, a Notice to Vacate giving 14 days may be issued. The kinds of breaches for which Housing ACT seeks ACAT orders include:

• Failure to provide access for inspection
• Failure to take reasonable care of the premises
• Making an unauthorized alteration to the dwelling
• Causing or permitting nuisance and/or interfering or permitting interference with the quiet enjoyment of neighbours.

It is important to note that before making a Termination and Possession Order under section 48 the Tribunal must be satisfied that there is a breach of the tenancy and the breach justifies eviction.

“Nuisance” applications are particularly problematic because there may be little or no evidence of the alleged breach. There is no provision in section 48 RTA for “Conditional Orders” equivalent to the provision in section 49 RTA. However, since mid-2008 an amendment to section 48 RTA has empowered the ACAT to make a TPO if the ACAT has previously made an order for performance of the tenancy agreement – that is, an order requiring the tenant to comply with the terms of his/her agreement – and the ACAT is subsequently satisfied that the tenant has breached that order. It has become the practice of Housing ACT, in response to a complaint about a tenant’s behaviour, to issue a Notice to Remedy and then apply to the ACAT for a “General Order” requiring the tenant to remedy the breach, and an order for compliance with the tenancy agreement. In some cases such orders may be sought and obtained, often ex parte, with little or no evidence presented to the Tribunal. The Tribunal may set the matter down for full hearing or invite the parties to settle the matter by consent. It is not uncommon for the Tribunal to make orders that the tenant is to comply with the tenancy agreement. It is a relatively small step from such an order to an application for Termination and Possession based on an alleged breach of that order. It should be noted that the Tribunal must be satisfied not only that a breach has occurred but that the breach justifies the termination of the tenancy.

Having regard to the challenges facing some public housing tenants – including limited literacy or education, non-English speaking backgrounds, cultural alienation, poverty, mental health issues, other disabilities, and a preponderance of tenants with some or all of these problems in high density complexes – it is not difficult to see how a neighbourhood dispute may be a slippery slope to eviction.

Housing ACT has made some investment in policies and staffing to find alternative approaches to eviction action in relation to disputes between neighbours, but this remains a vexed area for both lessor and tenants.