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Benchmark - Real Estate Cases & Commentary
Tenancy matters
    •  Residential Tenancy Agreement
        -  Where agreement not in existence
            >  Jurisdiction of CTTT
            >  Divorced husband continued to reside in property

Jurisdiction of CTTT 

The applicant sought a refund of his rental bond.

The arrangement had been in the nature of a share house, in which the applicant, as well as another person, had lived in premises leased in the name of the respondent.

There had been no standard form Residential Tenancy Agreement. However, the applicant did give evidence of some relatively informal terms under which he had been permitted to live in the premises.

The applicant said that he lived with the respondent in 2007. He said he had moved out and then moved back in in 2009.

The applicant asserted he paid a bond of $760.00, being four weeks rent.

The critical point was whether there had been a “Residential Tenancy Agreement” between the Applicant and the Respondent, within the meaning of the Residential Tenancies Act 1987 (which had been the applicable legislation at the time). The existence of such an agreement was necessary for the Tribunal to have jurisdiction.

The Tribunal noted that the applicant bears the burden of proving his claim, including proving the existence of the Residential Tenancy Agreement.

The Tribunal noted that the terms under which the applicant occupied the premises were at variance to the standard terms of a Residential Tenancy Agreement. Further, the Tribunal held that the parties could just as easily have intended to create some other form of licence to occupy the premises, such as a lodger arrangement, which did not come within the Residential Tenancies Act.

The Tribunal, after considering all the evidence, was not satisfied that there had been a Residential Tenancy Agreement. Therefore, the Tribunal held that it did not have jurisdiction, and the applicant’s claim failed.

Ng v Wee [2011] NSWCTTT 409

Divorced husband continued to reside in property 

The parties for this case were a divorced couple. The parties had owned a property in St Ives and the husband had owned a unit in his own name at Hornsby. The husband moved to his unit at Hornsby at the time of separation and still lived there at the time of these proceedings.

The Family Court had ordered that the husband transfer the Hornsby property to the wife, and the wife pay the husband certain amounts, including an amount of $1,600.00 per month towards the mortgages on the properties.

The husband continued to live in the Hornsby property, and paid certain amounts to the wife. It was not clear on what basis, or for what reason, these amounts were paid.

The wife applied to the Tribunal. She stated that the husband had been living in the Hornsby property as her tenant, and the amounts that he had paid, although they were inadequate and intermittent, were payments of rent. She sought an order for termination of the residential tenancy and possession, based on rent arrears.

The Tribunal held that the first issue was whether or not there was a residential tenancy agreement between the parties. If there were no such agreement, then the Tribunal would not have jurisdiction to investigate the matter further.

The Tribunal stated it was satisfied that the husband occupied the premises as owner of those premises before the Family Court made its order. The Tribunal was also satisfied that he had remained in occupancy even after the ownership of the Hornsby property was transferred to the wife.

The Tribunal found there was no express residential tenancy agreement between the parties, although the issue then was whether there was an implied residential tenancy agreement. The Tribunal noted that it was clear that a residential tenancy agreement must be more than a mere agreement that a person live in premises, and there also must be an intention to create a legal relationship.

The Tribunal stated that, on the evidence, it could not be satisfied that there was an agreement as to how much would be paid by the husband for living in the property, and that there was therefore no agreement as to what the rent was to be. The Tribunal held that it was not satisfied that there was a residential tenancy agreement between the parties.

The Tribunal therefore held that it had no jurisdiction to hear these proceedings.

Tregaskis v Tregaskis [2011] NSWCTTT 141