Case studies - Social housing

The following case studies reflect decisions made by the former Consumer, Trader and Tenancy Tribunal, which became the Consumer and Commercial Division of NCAT from 1 January 2014.

These case studies should not be viewed as precedents.  They are provided as a general guide only and should not be treated as legal advice or relied upon as such.  All Tribunal matters are determined on the merits of the individual case and the supporting evidence.

Access orders 

Under the Residential Tenancies Act 2010, a landlord or any other authorised person may enter the residential premises for the purpose of carrying out an inspection.  If entry is refused, the Tribunal may make orders authorising access.

A social housing provider landlord lodged an application with the Tribunal for orders to access the premises for the purpose of carrying out an inspection.  Only the landlord appeared in person at the Tribunal hearing, but the tenant had lodged a signed 12 page written submission.  The landlord gave evidence that an appointment had been made with the tenant giving seven days notice, but that the tenant had denied access and not made alternative arrangements.

The Tribunal was satisfied that the landlord was concerned for the tenant’s welfare and safety, and for this reason wished to inspect the premises.  The Tribunal also accepted the tenant’s written evidence that she did not object to the inspection, but that the previous appointment had been inconvenient to her.  Orders were made permitting access at a specific date and time for the landlord to inspect the property, with a right for both parties to have the matter relisted for hearing should there be any difficulties in complying with the order.

Damp and mould 

Damp and mould in rental properties can be a very difficult issue for tenants to live with and for landlords to carry out the necessary repairs.  If a tenant makes a compensation claim for damage caused by mould and mildew, they need to provide sufficient evidence or their claim may be unsuccessful.

A social housing tenant had lived in a house with her family for six years. From the commencement of the tenancy, the tenant made regular complaints to the property manager about damp and mildew. Several repairs had been made to patch up walls where cracks had appeared, but the tenant ultimately felt that the property had become ‘unliveable’ due to the damp. She sought her own independent building inspection that reported many damp-related issues with the property including decay of door jambs and architraves and high moisture readings in the walls.

The tenant lodged an application to the Tribunal for orders that the landlord carry out repairs and maintenance, and for compensation for the loss of personal items destroyed by mould and the breach of her ‘peace, comfort and quiet enjoyment’ of the property.

When the parties first arrived at the Tribunal they were successful in conciliating an agreement for the landlord to inspect the property and provide a schedule of repairs. However, the tenant was again unhappy with the actions taken by the landlord, and she renewed the application as she did not think the landlord had carried out repairs as agreed during conciliation.

At the formal hearing, the tenant gave evidence that she and her family had not been able to access all facilities in the home due to water damage, in particular the side verandah which was sagging and not safe so the children could not use it. The tenant also said she had lost several personal items due to mould damage, but was unable to provide any receipts.

The respondent social housing provider gave evidence that a technical officer had inspected the property and had reported that all scheduled repairs had been completed, including the installation of new security locks. The respondent conceded that the repairs had not been completed as per the timeframe agreed to in conciliation, but they were now completed.

The Tribunal Member found that the tenant was inconsistent about dates, and by her own admission, she was confused as to whom, when and what problems were reported. The Member accepted that the respondent landlord had acted when the damage was reported, albeit not promptly, and that the issues in the independent building inspection report were now rectified. As there was no evidence of the loss of personal items or a breach of peace, comfort or quiet enjoyment, the tenant’s application was dismissed.

Non payment of rent 

Not paying rent on time is a breach of the residential tenancy agreement.  However, before making orders terminating a tenancy due to non payment of rent, the Tribunal must be satisfied that the breach has been properly established.

Rental arrears had been an ongoing issue for a social housing tenant.  When the tenant had not made a rental payment for 4 months, the social housing provider landlord issued a notice of termination to the tenant. At the end of the notice period, the landlord applied to the Tribunal for termination orders.

At the Tribunal the parties were encouraged to settle the dispute through conciliation, but they were unsuccessful and the matter was referred for hearing. During the hearing the landlord gave evidence that the tenant had been in constant rental arrears for the past 3 years and many efforts had been made to salvage the tenancy.  They presented the Tribunal with the residential tenancy agreement, notice of termination, rent ledger, rent subsidy advice and correspondence to the tenant about the ongoing rent arrears.

The tenant said he thought his rent payments were automatically deducted from his Centrelink payments, but offered no explanation why he declined to meet with his tenancy officer or make arrangements to pay the arrears.  The Tribunal was satisfied that the tenant had breached the residential tenancy agreement.  The Tribunal did not accept the tenant’s evidence that the arrears were the fault of Centrelink and that he was not aware of the problem. 

The Tribunal was satisfied that the breach, in the circumstances of the case, was such as to justify termination of the agreement. Orders were made for termination of the tenancy and possession of the premises, and for the tenant to pay the outstanding rent arrears and a daily occupation fee until he moved out.

Prohibited drugs on premises 

A mandatory term in every social housing tenancy agreement is that the tenant agrees they shall not use, cause or permit the premises to be used for any illegal purposes. A breach of this term may justify the Tribunal making orders for the termination of the tenancy. However there are additional matters set out in Section 152 of the Residential Tenancies Act 2010 that must be considered before such orders are made.

A social housing landlord lodged an application to the Tribunal for termination of the tenancy, alleging that the tenant was involved with the possession, storage and supply of prohibited drugs.

The application for termination was based on police evidence after they had executed a search warrant of the premises which they suspected to be a ‘drug house’. The police discovered an exercise book setting out what appeared to be prohibited drug supply transactions, various prohibited drugs, digital scales, a number of small resealable bags and capsicum spray in one of the bedrooms. A small resealable bag with prohibited drugs inside was also found in the refrigerator.

The landlord claimed that the tenant was aware of all of these items and permitted her son to use the premises for an illegal purpose being the possession, storage and supply of prohibited drugs. At the Tribunal hearing, the tenant, a 60 year old grandmother, gave evidence that her son did not live at the premises and that he only came there to visit his son (her grandson) who lived with her. She maintained that all of the drugs and equipment belonged to her son. She said that she was only aware of the small amount of drugs in the refrigerator, and that she was afraid to confront her son as he was aggressive.

In seeking the order for termination and possession of the premises the landlord submitted that while the tenant was not responsible for the illegal activities, she had nevertheless permitted them to occur at the premises, and that she may allow her son back into the premises and allow repetition of the offences.

The tenant however told the Tribunal Member that she was on a limited income and it was very important that she and her grandson stay in the social housing premises. She explained that her grandson had special learning needs which would be jeopardised if forced to move, and that there had been no other breaches in the 35-year history of the tenancy. She also confirmed she would not allow her son back into the premises or permit these events to occur again.

The Tribunal Member carefully considered all of the evidence and on balance decided to make a specific performance order for the tenant to comply with the residential tenancy agreement with a right for the landlord to relist the matter if the tenant breached the agreement again.

Rent increase 

When determining a tenant’s application that a rent increase is excessive, the Tribunal must have regard to the factors set out in section 44 of the Residential Tenancies Act 2010. These include the state of repair of the premises and the facilities provided, the general market level of rent for comparable premises, and any work done by the tenant to the premises.

A tenant had lived in the same social housing property for 25 years. As she had part-time employment, the tenant paid market rent for the property. When she received a notice that there was to be a $70.00 per week rent increase, she lodged an application to the Tribunal seeking orders that the rent increase was excessive.

At the hearing the tenant provided photographs showing the state of repair of her property and of comparable rental properties in the area. She gave evidence that she had added to the property value during her tenancy by painting the house and carrying out significant landscaping improvements at her own expense. She claimed that the landlord had not undertaken any significant repairs or maintenance during her 25-year tenancy and that any repair requests were usually ignored. The tenant also gave evidence of her employment income and medical expenses for a chronic condition, stating that the proposed rent increase would cause her financial hardship. The landlord relied only on a valuation following a recent property inspection.

The Tribunal considered section 44 of the Act and found that the tenant had produced details of a number of similar properties in the area, but that landlord’s evidence was limited only to a rental valuation. The Tribunal was also satisfied that the tenant had invested time and money in maintenance with the consent of the landlord, that she had requested numerous repairs without a satisfactory response, and that the proposed rent increase was well above the statistical rent increase for the area. Orders were made for a $20.00 rent increase to take effect for the period of one year.

Right to privacy 

Tenants have a right to privacy and quiet enjoyment of their rented premises.  The law restricts a landlord’s access to the rental property and entry is only allowed at certain times for certain reasons and in most cases, notice must be given first.  A landlord must give written notice to tenants if they require access to premises for the purposes of maintenance, repairs or health and safety.

A social housing landlord lodged an application with the Tribunal under section 60 of the Residential Tenancies Act 2010 seeking access to the premises for maintenance and repairs, and to carry out an inspection for other possible health and safety issues.

At the hearing the landlord stated that they wanted to access the property to repair the hot water system and the stove, and to carry out a standard property inspection. As evidence, they provided the Tribunal Member with copies of various letters to the tenant requesting access to the property. They claimed that each time the tenant had refused them access to the property.

The tenant did not appear at the Tribunal hearing, but instead sent an email requesting an adjournment of the hearing as she had a medical condition. The landlord was given an opportunity to comment on the tenant’s adjournment request. They said this was not the first time they had been before the Tribunal seeking access orders, and on every occasion the tenant had failed to appear at the hearing.

The Tribunal refused the tenant’s adjournment request, given the circumstances and orders were made permitting access to the premises on a specific date. The Tribunal allowed both parties leave to have the matter relisted if there were difficulties complying with the orders.