TENANCY
TIPS:
Defending an Eviction
**
last updated 08/07/09**
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The information below outlines how to represent yourself in the ACT
Civil and Administrative Tribunal to defend an eviction.
See
"Eviction in the ACT" for information about the steps a landlord
must take in seeking to terminate a tenancy.
All tenancies in the ACT are regulated by the
Residential Tenancies Act 1997
(RTA). The terms of your tenancy agreement are set out in the RTA, and are
known as the Standard Terms. References here are to sections in the RTA.
If a landlord wants a tenant
to vacate the premises and the tenant does not do so, the RTA (s 36 - 39)
requires the landlord to apply to the ACT Civil and Administrative Tribunal
(ACAT) for
an
order to terminate the
tenancy.
This order
is
called a
Termination and
Possession Order (TPO). There is
no
other lawful way a
landlord can take possession of a property that you, the tenant, are still
living in.
Why am
I being evicted?
The very first
step a landlord must take if they want to evict a tenant is to give them a
valid written notice to vacate, stating the reason or ground for terminating
the tenancy. However in a ’no grounds’ notice to vacate, the landlord is not
required to give a reason for ending the tenancy outside the fixed term, but
26 weeks written notice must be provided. For details about the eviction
processes see
“Tenancy Tips: Eviction in the ACT”.
The grounds
specified in a notice to vacate may be a breach of the tenancy agreement or
may be some other reason. A common breach is where the tenant is behind in
the rent (this is called ‘rent arrears’ — see
“Tenancy Tips: Rent Arrears”).
How long can I stay in the property?
You are entitled to remain in
the premises until ACAT makes a TPO ordering that the tenancy ends on a
specific date.
So, if you intend to defend
the eviction, you may remain in the premises after the date specified in the
landlord’s
notice to vacate.
If the landlord
applies
to the tribunal,
the hearing
will take place
after the notice period
has ended.
A word of WARNING
If you remain
in the premises after the hearing and after the date specified by the
tribunal in a TPO,
the landlord may seek compensation from you under s 56. This could amount to
rent for the period you remain in premises after the tenancy is terminated,
and the reasonable costs the landlord incurs in seeking a warrant for your
eviction.
The
landlord’s application to
ACAT
When a landlord
applies to ACAT for a TPO, the landlord is called the Applicant and the
tenant is called the Respondent.
When the
landlord's application for the TPO is received by the ACAT registry, they
will send a copy of the whole application to the tenant, including the
tenancy agreement and various letters or other evidence lodged by the
landlord. The registry will also send a Notice to Respondent, which gives
the date and time of the hearing and a date by which the tenant should
submit a defence.
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Defending eviction for breach: what is my defence?
· If
you believe you have
not breached the
agreement in the way the landlord says you have, your defence is obvious -
you need to convince the tribunal that there is no breach and therefore
there is no basis to terminate the tenancy. For example, you have not failed
to pay
rent and the landlord's calculations are incorrect; or the fact that you had
a guest in your home is not a breach of the Standard Terms.
· If
you
have breached the
agreement, your defence may be that you have remedied the breach and there
is no loss to the landlord in the tenancy being allowed to continue. For
example, you missed a rent payment but have now made that up; or you have
now mowed the lawn and removed the rubbish.
· If
you have breached the agreement but have not yet been able to remedy the
breach, your defence may be that you have a proposal for a method and a time
frame in which the breach will be remedied. Eg, you will pay off rent
arrears of $500 by paying an extra $50/week for the next 10 weeks; or you
will mow the lawn within 1 week and remove the rubbish within 2 weeks.
· If
you have breached the agreement but believe that it is a very minor breach,
your defence may be that the breach does not justify eviction. For example,
you have installed a picture hook without the written permission of the
landlord, but this does not undermine the tenancy in any significant way.
Non-breach eviction
Grounds in clause 96
The most common non-breach
reasons for a landlord to end the tenancy are the grounds given in clause 96
of the Standard Terms.
These
grounds will only apply during a periodic tenancy,
not a fixed term. Reasons provided are that the landlord:
· Wants
to move in or wants a family member
or somebody else
close to the landlord
to move into the property (cl 96(1)(a) - (c));
· Wants
to sell the property (cl 96 (1)(d)); or
· Wants
to do major repairs, renovation or
demolish
the property (cl 96(1)(e)).
Posting Clauses
Another reason for the
landlord to terminate may be that the landlord has been posted back to the
ACT for work, and he or she wants to move back in to the premises. You would
need to have an additional term in your lease allowing either party to give
notice to terminate because of being posted to or away from the ACT (s
8(2)). A posting clause may be used to terminate a fixed term tenancy.
Defending a non-breach eviction
In order to defend a
non-breach eviction you would
need to
show that either the notice or the grounds
given were
incorrect.
If what you need is just more
time, it is best to
try to
negotiate with the landlord when you receive the notice
to vacate. A
negotiating point is that ACAT can order the termination of the tenancy but
suspend that order for up to 21 days if satisfied the tenant would
otherwise
suffer significant hardship,
greater than the hardship to the landlord
if the order was suspended (s 47 (2)).
A defence based solely on the
fact that the notice period given is incorrect may not succeed because the
landlord can apply for a waiver of a defect in the notice (s 59). The
tribunal may grant this if satisfied the tenant will be no worse off than
they would have been had the notice been correct.
Alternatively,
the tribunal could correct the defect, so that the tenant gets the correct
period of notice (s 83(k)).
If you believe the grounds are
incorrect, you would need to have some evidence for the tribunal to
consider. For example, if the ground for the notice was that the landlord
intends to sell the property and, at the same time, the property is
advertised in the To Let section of the paper, this is a basis for the
tribunal to require the landlord to prove that the grounds are genuine. If
not satisfied that the grounds exist (s 47(1)(a)) the tribunal may refuse to
order the termination of the tenancy.
Significant hardship
Another ground for termination
is where the landlord can demonstrate that if the tenancy was to continue,
he or she would suffer significant hardship (s 50). Notice is not required
in this case; the landlord can apply direct to ACAT for a TPO. To defend
such an application, you would need to show the tribunal how you would
suffer greater hardship if the tenancy was ended than the landlord would
suffer if it was not ended.
Retaliatory applications
Under s 57 if you have
evidence that the landlord or agent is trying to evict you because you have
taken some action to determine and/or assert your rights, you will need to
show
evidence of the action
you took (e.g. details of complaints, statements from complaint or advice
bodies).
If the tribunal is satisfied on your evidence, the landlord will then need
to persuade the tribunal that seeking your eviction was not in retaliation
against you for taking this action. If not persuaded, the tribunal must
refuse to make a TPO.
Submitting a defence
The documents from the
Registry include a form called ‘Statement
Contesting/Defending Application’.
Instead of using this form you can type or write out your own statement,
but it is
best to use this
heading.
The
point
of this statement is to give a
clear and
accurate account of
your position: why you
believe you
should not be evicted.
You should use
numbered
points to give the
facts or the relevant sequence of events -
this
is easy to read and helps you
to write logically. You do not have to argue the case in the statement of
defence - that will happen at the hearing - but the statement
must include
the key facts on which you will rely.
Wherever possible the
statement of defence
should be
sent to or handed in at the Registry in time
for the
tribunal member to read it before the hearing and for the landlord to
receive a copy.
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What
if I don't lodge a defence?
You may appear at the hearing
and present
a defence,
even if you have not submitted anything in writing beforehand.
However, whilst
it may make no
difference to the outcome, advance notice of your position may result in a
better and more sympathetic understanding on the part of the tribunal member
and a greater willingness to negotiate on the part of the landlord.
Preparing for the hearing
· ACAT
is open to the public and it’s a good idea to sit in on a hearing or two
before your hearing date to get familiar with the place and the
proceedings. ACAT registry has a list of the hearings (daily lists) that
you can use to plan a visit, go to
www.acat.gov.au.
· Find
out how the law supports you in defending the eviction - and how it may
support the landlord in seeking the eviction so you are prepared for the
landlord's arguments.
· Create
a folder for your case, arrange your documents in chronological order
and label them with stick-on flags so that you can quickly find what you
need during the hearing.
· Assemble
your evidence and, if you have any witnesses, make sure they are able to
attend on the day and know where to go.
Assembling your evidence
ACAT is not bound by the
rules of
evidence that apply to
courts, but in order to convince the tribunal member that you should not be
evicted, you need to have reliable evidence to support the statements you
make in your defence. For example, a receipt is evidence that a payment has
been made; a dated photograph is evidence of the condition of the premises;
a statement from a neighbour that there has been no loud music for the last
2 weeks is evidence that you have remedied the breach. (See
“Tenancy Tips: Evidence Checklist for ACAT”).
The things you say yourself at
the hearing are also evidence, so make sure that the statements you are
planning to make are clear and accurate.
Write a list of points you
want to make, and the evidence you have to support each point.
What if I can't attend on
the hearing day?
Although you can appoint
someone to represent you or be your agent in your absence, it is best to
be there yourself to defend an eviction. If you can't attend, phone the
registry and let them know. If you need to get the hearing adjourned to a
later day, try first to get the agreement of the landlord and then write/fax
the registry that the parties have agreed to an adjournment and why.
If you have good reason for
being unable to attend, the tribunal may order an adjournment, even if the
landlord opposes it. You would need to provide the tribunal with a medical
certificate or some other evidence of incapacity to attend.
What if the hearing goes
ahead without me?
If you do not turn up at the
hearing the tribunal has several options under s 44, however it is not
likely to adjourn the matter. If the landlord argues against adjournment and
the member is satisfied that the landlord has grounds for eviction, the
hearing is likely to go ahead and orders made
in your absence (s 44(2)(d)).
If you do not agree with these
orders when you receive notice of them, you can apply to have them set aside
(s 56(c)). The member can decide to rehear your application, but it would be
essential that you could satisfy the member on 2 matters:
· Why
you did not turn up to the first hearing, and
· Why
you should not be evicted.
Hearing procedures
When your case is called, you
need to be ready to go into the hearing room and take your place at either
the left or right side of tables (neither side is particularly designated
for tenants but you may find that some landlords or agents have a preferred
side). The tribunal member sits in the centre, with an assistant who takes
notes and ensures the proceedings are tape-recorded.
ACAT procedures are set out on
their website. The ACT Civil and Administrative Tribunal Act 2008 says that
it must be as simple, quick, inexpensive and informal as is consistent with
achieving justice (s 24).
Generally the member will
introduce him/herself and invite the parties to introduce themselves. The
landlord or agent, being the applicant, will usually go first, with their
case for eviction. The tenant will then present their case against
eviction. Each party should have the opportunity to question the evidence
of the other.
It is useful to make notes of
the points the landlord makes so that you can counter his/her arguments and
answer any incorrect or misleading statements.
The member can ask questions
and make comments at any point in the proceedings. You should have an
opportunity to summarise your case before the member makes any orders.
The member may briefly adjourn
the hearing and
suggest
the parties meet outside the hearing room to negotiate a settlement. If the
parties come to an
agreement,
the tribunal can make
orders
by consent.
Be very cautious about what you agree to as once the tribunal makes this
order, you are bound by it.
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Orders
The tribunal’s orders are
binding on the parties. The member may:
· Dismiss
the landlord’s application and order that the tenancy is to continue; or
· Where
the breach is rent arrears, issue a conditional termination order (s 49(4))
that the termination is suspended on certain conditions (e.g. that the
tenant repay rent arrears, in addition to rent, by instalments or within a
certain time); or
· Issue
an unconditional termination order, but delay the date by which the tenant
is to vacate for up to 21 days; or
· Issue
an unconditional termination order effective immediately
Unconditional
orders will either state that if the tenant fails to vacate, the landlord
can apply to ACAT registrar for a warrant for eviction, or that the order
itself is effective as
a warrant (s 39).
Conditional orders
Under conditional orders if
the tenant fails to comply with the conditions, the landlord can apply for a
warrant of eviction (s 42A). The
tenant will be
notified of the landlord’s application, and the
matter will then be listed for
hearing. The tribunal
may
either
allow or dismiss the application for warrant. The tribunal will dismiss the
application if the
member is satisfied that the tenant has complied with the conditional
orders. In practice, the tribunal may also
dismiss the
application if the
member is satisfied there are compelling reasons for the tenant’s failure to
comply with the orders.
Warrant of eviction
The warrant is issued by the
ACAT registry and authorises the police to ensure that the landlord gains
vacant possession of the premises. The warrant will specify the day and
time the eviction will take place, and the police must give the tenant at
least 2 days notice of that day,
unless the landlord can show there are special circumstances that justify
eviction without such notice (s 40).
What if I disagree with the
tribunal orders?
Tribunal orders can be
changed (s 56(c)), but this would need to be on the basis that there has
been some change in your circumstances since the orders were made. For
example, you could ask the tribunal to reduce an arrears repayment amount
because your income has reduced or you have other debts to repay.
The tribunal may also set
aside orders if satisfied that those orders were based on evidence that
was fraudulent.
A decision can
be appealed through the internal ACAT process or the Supreme court.
You should seek legal advice before taking such a steps.
Don’t ignore tribunal orders
It is not wise to ignore the
tribunal’s orders. If you fail to comply with an order, the tribunal can
order you to pay a fine of up to $5,000.
If you fail to vacate by the
date the ACAT ordered the tenancy to end the landlord can seek compensation
for their reasonable costs in
having
a warrant issued and executed
(s 56).
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This
is a summary of your rights and responsibilities.
If
you have a specific problem, you should seek more detailed advice.
The
information provided is based on the current state of tenancy law and
details may change.
Tenancy
Tips © 2009 Tenants' Advice Service
The support of the ACT Government through the Dept. Justice
& Community Safety is gratefully acknowledged
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