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Benchmark - Rental arrears
Tenancy matters
    •  Rent
        -  Arrears
            >  NEW Termination on basis of substantial arrears
            >  Failure of tenant to vacate by agreed date
            >  Reliance on conduct of landlord regarding end of tenancy

Termination on basis of substantial arrears 

The landlord applied to the Tribunal for termination of the tenancy, on the ground that the tenant was in substantial arrears of rent.

The Tribunal noted that it should deal with the application in two stages. The first stage was an investigation of the technical validity of the landlord’s application, in which the Tribunal looked at the validity of the termination notice. The second stage was a determination by the Tribunal of whether or not to exercise its discretion to terminate the tenancy, and, if so, the determination of how long the tenant should have to find other accommodation.

The Tribunal found that a Residential Tenancy Agreement under the Residential Tenancies Act 1987 existed and that the termination notice on its face was valid.

The tenant argued that there were errors in the landlord’s ledger, and that he was not indebted to the extent alleged. However he did acknowledge that he was two months in arrears of rent.

The Tribunal considered that, in the absence of any other circumstances, the tenant’s admission that he was two months in arrears of rent was fatal to his tenancy. The tenant was unable to satisfy the Tribunal that the thousands of dollars of rent owing could be made up within a reasonable time.

In view of the high amount of arrears owing, the Tribunal considered that, in fairness to the landlord, it should make an early order for possession to the landlord.

Therefore the Tribunal ordered that the Tenancy Agreement be terminated and vacant possession be given to the landlord about three weeks after the date of hearing. Further, the Tribunal ordered that the tenant pay the landlord $5,000.00 in full and final settlement of all claims, and that the rental bond be paid entirely to the landlord, with the amount of the bond to be credited against the order for payment.

Keshisjan v Horsburgh [2011] NSWCTTT 533

Failure of tenant to vacate by agreed date 

A landlord applied to the CTTT for the termination of a tenancy and compensation for rent arrears and damage to the rented premises.

The landlord alleged that the tenant had informed him that he had vacated the premises and that his ex-girlfriend and her brother remained in those premises. The tenant said that he would not pay further rent. When the tenant contacted the ex-girlfriend to negotiate a new tenancy, she was verbally abusive, and said she would contact the police if the landlord came to the property or contacted her.

The CTTT found that there had been an agreement that the tenant would vacate the premises by a certain date. The Tribunal held that the tenant had attempted to terminate the residential tenancy agreement under Section 59 of the Residential Tenancies Act 1987 (NSW). Termination by the tenant under Section 59 requires the tenant to give the landlord vacant possession.

The landlord contended that, due to the ex-girlfriend and her brother remaining on the premises, he had not been given vacant possession. However, the landlord had failed to act expeditiously to check whether the premises were vacant, or to obtain vacant possession. Further, the landlord had intended to attempt to formalise a new tenancy agreement with the ex-girlfriend, and it was only after his conversation with her that he decided to take the view that her continued presence was the tenant’s problem. Therefore, the CTTT held that the landlord could not now repudiate his implied consent to the ex-girlfriend and her brother continuing to occupy the premises.

The CTTT held that the landlord had not proved on the balance of probabilities that the tenant had damaged the premises.

The only order the CTTT made was for payment of rent for the 21-day notice period required by Section 59.

Conwell v Manning [2010] NSWCTTT 324

Reliance on conduct of landlord regarding end of tenancy 

The landlord of a residential tenant issued a 60-day “no grounds” notice of termination of the tenancy asking for vacant possession by 30 January. The tenant in turn gave his own 21-day “no grounds” notice that he would vacate by 23 December. The tenant vacated on 8 December.

The tenant had paid rent until 23 November and admitted he owed rent until 8 December. The landlord claimed a further two weeks’ rent, until 23 December.

The Tribunal found that the tenant was entitled to rely upon the conduct of the landlord’s agent, who performed the final inspection and from whom the tenant understood that the tenancy had come to an end and no further rent would be payable after that date. The tenant was ordered to pay two weeks’ back rent (for the period 23 November to 8 December). The landlord was unsuccessful in recovering its claim for back rent from 8 December to 23 December.

Bribosia v McQuillen (Tenancy) [2009] NSWCTTT 297 (2 June 2009)