Tenant Opposes Application for Possession Order
RFY v ACV (Residential Tenancies) [2021] VCAT 865 (4 August 2021)
The residential rental provider applied for a possession order on the basis of unpaid rent. The tenant opposes the same arguing that Regulation 14 of the COVID-19 Omnibus (Emergency Measures) Transitional Regulations 2021 together with the repealed Residential Tenancies Act 1997 s 542 operates such that the tenant has a COVID-19 reason for failing to paying rent on time. The Court referred to the Residential Tenancies Act 1997 ("RT Act") in making an order.
Facts:
On 26 April 2021 the residential rental providers ("RRPs") sought from VCAT a possession order to regain occupancy of the rented premises they had rented to the tenant under a residential tenancy agreement which commenced in 2015 (the Agreement).
The tenant allegedly owed over 14 days’ rental to the RRPs. The tenant asserts that Regulation 14 of the COVID-19 Omnibus (Emergency Measures) Transitional Regulations 2021 (Transitional Regulations) and through it the repealed section 542 of the RT Act applied such that she was deemed not to have breached the Agreement and so owed significantly less than the RRPs claimed.
At the 30 June hearing, the RRPs, represented by the real estate agent, continued to seek possession of the rented premises on the basis that unpaid rent arrears was $13,872.
The tenant submitted VCAT should dismiss the application because of Regulation 14 and that the RRPs were estopped from seeking possession due to their alleged conduct permitting the tenant to assume that the RRPs had agreed to a rent reduction. The tenant submitted that VCAT could order a repayment plan maintaining the tenancy instead.
Issues:
I. Whether or not it is reasonable and proportionate to make a possession order.
II. Whether or not the tenant breached her term.
III. Whether silence by the residential rental provider, in response to the renter’s rent reduction proposal binds the residential rental provider.
Applicable law:
Residential Tenancies Act 1997 ss 330, 330A, 331, 537 (repealed), 542 (repealed) - defines the rights and duties of residential rental providers and renters of rented premises.
Residential Tenancies Act 1997 s 91ZM - provides that on the first, second, third and fourth occasion of non-payment of rent, the residential rental provider may give a notice to vacate under this section to the renter and if the renter pays the unpaid rent on or before the termination date in the notice, the notice is of no effect. If the renter does not pay the unpaid rent on or before the termination date in the notice, the residential rental provider may apply to the Tribunal for a possession order.
Interpretation of Legislation Act 1984 (Vic) - provides that where a subordinate instrument or a provision of a subordinate instrument is repealed or amended or expires, lapses or otherwise ceases to have effect, the repeal, amendment, expiry, lapsing or ceasing to have effect of that subordinate instrument or provision shall not revive anything not in force or affect any previous operation, right, penalty, or investigation under that Act or provision.
Residential Tenancies Act 1997 s 542 - provides that a tenant or landlord, who would have breached a term of a tenancy agreement or a relevant duty provision, is taken not to have breached the term or provision if the tenant or landlord was unable to comply with, or it was not reasonably practicable for the tenant due to a COVID-19.
Analysis:
The tenant did not pay the unpaid rate given on the Notice to Vacate.
The application was made by the RPPs on 26 April 2021, after the termination date, with over $13,872 owed, the breach of the tenant is not trivial. As opposed to the tenant's assertion that a possession order cannot be made due to not having received a notice regarding the RRPs disagreeing with the requested rent reduction, the tenant still had an ability to contact the real estate agent to ask why she had not received a response.
The application of Regulation 14 of the Transitional Regulations means that despite the repeal of section 542 of the RT Act any breaches of section 60(2) of the RT Act by the tenant (during the relevant period), are taken not to have occurred because at the time, due to a COVID Reason (namely mental illness), the tenant was unable to comply with, or it was not reasonably practical for the renter to comply with section 60(2) of the RT Act. The tenant has a long history of punctual full payment of rent. She submitted that she paid as much rent as she could, given her COVID related circumstances, however the provisions which provide the tenant protection due to COVID reasons do not conclude regulation 14 together with the repealed section 542 operating such that where the tenant has a COVID-19 reason for not paying rent, the renter does not owe the rent, but rather prevent eviction and create an opportunity for the tenant and landlord to enter into discussions on rent relief.
The silent acceptance of an offer is generally insufficient to create any contract. The objective theory of contract requires an external manifestation of assent to an offer. After a reasonable period has elapsed, silence is seen as a rejection and not an acceptance of the offer.
Conclusion:
The Court ordered that the tenant must vacate the rented premises by 3 September 2021. At the request of the person who obtained the possession order and on payment of the prescribed fee, the principal registrar of VCAT must issue a warrant of possession to be executed within 14 days after the date of issue. Failure to vacate the rented premises by 3 September 2021 will entitle the residential rental provider to request the principal registrar to issue a warrant of possession. The tenant may then be forcibly vacated from the rented premises by a police officer or an authorised person carrying out a warrant of possession. The Court further concluded that the apparent lack of successful communication from the real estate agent to the tenant about the growing rent arrears, does not tip the balance in favour of the tenant.
