VCAT considers the Charter in ordering the creation of a tenancy agreement

DS v Aboriginal Housing Victoria (Unreported, Victorian Civil and Administrative Tribunal, Residential Tenancies List, Member Warren, 3 July 2012)

Summary

In a recent decision, the Victorian Civil and Administrative Tribunal considered the Charter rights of an applicant for the creation of a tenancy agreement. The Tribunal found that the application engaged the applicant’s right under sections 13 and 17 of the Victorian Charter, and ultimately ordered the respondent landlord (a social housing provider) to enter a tenancy agreement with the applicant.

Background

The applicant’s mother, TH, was the sole tenant of premises let by Aboriginal Housing Victoria (AHV). The applicant lived in the premises with his mother and three younger siblings (aged 13, 8 and 3 years) since around 1999. The house was the family home and the only house DS could remember living in.

In March 2011, TH was incarcerated. DS requested AHV to transfer the tenancy into his name but this application was refused and soon after AHV issued a notice to vacate for no reason. The Tribunal granted a possession order to AHV but delayed the eviction for one month. DS applied for an order that AHV enter a tenancy agreement with him in respect of the rented premises. DS had recently turned 18 years of age.

Decision

The Residential Tenancies Act 1997 (Vic) empowers the Tribunal to order a landlord to enter a tenancy agreement with an applicant where:

• The applicant resides at the rented premises but is not a party to the tenancy agreement.
• The previous tenancy agreement has terminated or will be terminated in accordance with the Act.
• The applicant could reasonably be expected to comply with the duties of a tenant.
• The applicant would be likely to suffer severe hardship if compelled to leave the rented premises.
• The hardship suffered by the applicant would be greater than any hardship suffered by the landlord, if an order was made.

The Tribunal found the first requirement was satisfied as DS had continued to reside at the rented premises following his mother’s incarceration. The second requirement was satisfied as a possession order had been made in respect of the rented premises.

The Tribunal found that DS could reasonably be expected to comply with the duties of a tenant, as he had continued to pay rent for the premises since his mother’s incarceration. Although DS had not paid rent for the two weeks immediately prior to the hearing of the application, the Tribunal accepted DS’s evidence that he thought the house would be “lost” after the hearing, and he would have to move his possessions out of the property. The Tribunal accepted that DS was willing and able to pay rent for the premises in the future.

In relation to DS’s hardship the Tribunal found that DS had a “long connection” to the rented premises. He had lived in the premises for 13 years, had grown up there with his three younger siblings and regarded it as his home. The Tribunal also found that DS had significant ties to the local area: the rented premises was within walking distance of the house where DS’s siblings were living temporarily until their mother was released and also within walking distance of the schools attended by DS’s siblings.

The Tribunal accepted evidence that DS’s mother was due to be released in September 2012 and intended to return to live at the rented premises with DS and the three younger children on her release.

The Tribunal found that because of his low income and lack of rental history DS was unlikely to be able to secure private rental accommodation in the local area and would likely be rendered homeless if compelled to leave the rented premises. The Tribunal found that this amounted to “severe” hardship.

In relation to AHV’s hardship the Tribunal considered that the “practical effect” of an order in DS’s favour would be the transfer of the tenancy agreement from DS’s mother to DS. The Tribunal regarded this not as a form of hardship but as “part of the normal process of administering a housing [waiting] list”.

The Tribunal found that AHV’s investigation and consideration of DS’s request for transfer of the tenancy agreement into his name was flawed in several significant resects. AHV had failed to speak with, or attempt to speak with DS, regarding his request. Further, AHV’s rejection of DS’s request appeared to be based on several significant factual errors. The Tribunal stated that if the investigation had been conducted properly, including the direct involvement of DS, the outcome “may well have been very different”. In these circumstances the Tribunal was satisfied that AHV’s hardship would not be greater than DS’s hardship.

Having considered these mandatory requirements the Tribunal then considered its residual discretion whether or not to make an order. In exercising this discretion the Tribunal accepted that it is a “public authority” for the purposes of the Victorian Charter and is bound to comply with section 38 of the Charter (see Giotopoulos v Director of Housing [2011] VSC 20, at paragraphs [84]–[89]).

As in Giotopoulos the Tribunal found that the right to non-interference with the home (section 13) and to protection of the family unit (section 17) were both engaged by the application for creation of a tenancy agreement. The Tribunal referred to section 7 of the Charter in considering whether the limitation of DS’s human rights was justified.

The Tribunal found that refusing the application would result in DS being evicted from his home and the family unit being split up, rather than DS residing at the rented premises with his family. The Tribunal found “no justification” for exercising the discretion in this way, and therefore ordered AHV to enter a tenancy agreement with DS.

Commentary

Historically the Tribunal has consistently refused applications for creation of a tenancy agreement where the respondent is a social housing provider. Since the decision of Forrest J in Cosic v Director of Housing [2007] VSC 486 the Tribunal has given inordinate weight to the effect of granting a tenancy agreement on the waiting list of the Director or a social housing provider.

This decision sees the Tribunal taking a more balanced and considered approach to such applications. In this decision the Tribunal recognised that granting a tenancy agreement does not necessarily disrupt the “orderly maintenance” of the waiting list for public housing. In this decision, as in many applications for creation of a tenancy agreement, the practical effect of the Tribunal granting the application will be exactly the same as if the landlord approved a transfer of tenancy to the applicant – which is a normal and accepted part of tenancy management for the Director and social housing providers.

This decision also showed the Tribunal rigorously engaging with the Charter aspects of an application for creation of a tenancy agreement. Although the Tribunal cannot consider a landlord’s compliance with the Charter in determining an application for a possession order (Director of Housing v Sudi [2011] VSCA 266), the Tribunal as a public authority must consider the Charter when exercising its residual discretion in an application for creation of a tenancy agreement. In many cases the rights under sections 13 and 17 of the Charter will both be relevant, and advocates should present relevant evidence of the effect of granting the application on the family unit and in maintaining the connection with the applicant’s home.

Post script: Two days after DS signed the tenancy agreement ordered by the Tribunal, AHV gave DS a notice to vacate for no specified reason. This notice is currently the subject of an application to the Tribunal.

The decision is not yet available online.

Bill Swannie is Senior Lawyer at the Tenants Union of Victoria.