Residential Tenancies Disputes

Residential Tenancy

Published Thu, 02 Jul 2015 14:17:40 +1000 Content

To access Applications/Forms for this section, please click here.

ACT CIVIL & ADMINISTRATIVE TRIBUNAL RESIDENTIAL TENANCIES INFORMATION SHEET

RESIDENTIAL TENANCY NOTICES

(Please Note these notices are examples only and meant for guidance only and are not prescribed forms. The user must make sure the form is appropriate for their matter before using it)

Notice to Remedy - Issued by Tenant

BACKGROUND

The ACT Civil and Administrative Tribunal (ACAT) commenced on 2 February 2009. Previously, residential tenancy disputes were determined in the Residential Tenancies Tribunal.

JURISDICTION

The ACT Civil and Administrative Tribunal is an independent body, which has exclusive jurisdiction to hear and determine all matters arising from private and public residential tenancy and occupancy agreements under the Residential Tenancies Act 1997 (the Act).

CONSTITUTION OF THE ACAT

The membership of the ACAT consists of the General President, Appeal President, Presidential Member and a number of sessional non-presidential Members. All members are appointed by the Attorney General.

TYPES OF RESIDENTIAL TENANCY APPLICATIONS

There are two types of applications a person may make to the ACAT about residential tenancy matters.

1. Application for Endorsement

An application for endorsement of additional or inconsistent terms to a lease should be lodged when a lessor (or their agent) and a tenant enter into a new tenancy agreement and the parties agree to additional terms being included in the agreement that are inconsistent with the prescribed terms. The prescribed terms is a schedule included at the end of the Residential Tenancies Act 1997. It contains 100 standard terms that should be included in all leases in the ACT. (Examples of clauses that need to be endorsed include Defence Posting Clauses and No Pet Clauses).

Where the ACAT has not endorsed an inconsistent term, it cannot be relied upon in any hearing before the ACAT.

A copy of the proposed lease, the prescribed terms and proposed additional clause should accompany lodgement of an application for endorsement. An application for endorsement does not attract a filing fee. Applications are generally decided on the papers included in the application - if more information is required, the Tribunal will inform the parties in writing.

It should be noted that an application for endorsement must be agreed to and signed by both the lessor and the tenant/s. Any evidence indicating fraud or undue influence may render the application void.

2. Applications for the Resolution of a Dispute

A dispute arising out of a Residential Tenancies Agreement can be lodged with the ACAT by either the landlord or the tenant. Examples of some applications commonly sought include applications:

  • by a tenant for the termination of a tenancy agreement;
  • by a lessor for a termination and possession order;
  • by a lessor for an order for the payment of rent arrears;
  • by a tenant for a stay of an eviction;
  • by a tenant for an order for compensation and/or reinstatement for      wrongful eviction;
  • by a lessor for an order for compensation where a tenant abandons a      premises before a fixed term tenancy agreement expires;
  • by either party for a review of a rental rate increase;
  • by a tenant for a reduction in the rental rate payable and      reimbursement of the rent paid.

An application may be, but is not limited to, the disputes referred to above.

MORE INFORMATION ABOUT APPLICATIONS

All applications are subject to a filing fee. The size of the fee depends on the nature of the dispute. Information about fees is available on the ACAT website or at the ACAT.

A kit providing all the information and forms necessary to lodge an application, is available at the ACAT. An electronic copy is available on the ACAT website or can be obtained by email from the ACAT staff.

Upon receipt of an application, the Registrar will assess the best way to process the matter. It may be the matter is referred for mediation, or alternatively, be set down for hearing before a Registrar or ACAT member. In any event, the ACAT will endeavour to resolve the dispute within 14 days of service of the application on the other party.

Written notice of the process adopted will be sent to each party as soon as possible after lodgement. The notice will also include the date and time and location set for the conference or hearing. A full copy of the application will be sent to both parties. Any confidential information should not be included with your application.

PRE-HEARING CONFERENCES

In appropriate cases, the Registrar may conduct a pre-hearing conference. The objective of the conference is to:

  • define and limit the relevant issued in dispute;
  • ensure that the parties have used all their endeavours to resolve      the dispute;
  • actively assist the parties to resolve the dispute; and
  • assess the time likely to be required for any hearing.

If a consent agreement between the parties is reached at the conference, the terms of the agreement are lodged with the ACAT. If the matter is not resolved at the conference, the Registrar will then refer it to an ACAT member for consideration.

IMPORTANT NOTICE: Under section 55 of the ACT Civil and Administrative Tribunal Act 2008 the ACAT may, by order, make a decision in accordance with agreed terms without holding a hearing, or without completely dealing with an application at a hearing if a hearing has begun.

HEARINGS

Applications are listed for hearing depending on the issues in dispute. It is possible the matter will be listed for conference before a deputy registrar, or hearing before an ACAT Member or the Registrar. All hearings are recorded and parties will receive written notice advising the date, time and location of the hearing.

At hearing, the ACAT will invite the parties to add anything further to what they have already presented in their application or defence, and except in exceptional circumstances, proceed to hear and determine the matter there and then.

WHAT HAPPENS IF A PARTY FAILS TO ATTEND A PRE-HEARING CONFERENCE OR HEARING?

If a party to the dispute fails to attend a conference or hearing, the ACAT may:

  • order that the matter be again set down for hearing;
  • take such other steps before the conference/hearing proceeds, as      the ACAT directs;
  • adjourn the proceedings;
  • if the party is the applicant - dismiss the application;
  • if the party is the respondent - make orders in favour of the      applicant.

If both parties fail to appear, the ACAT may dismiss the application.

DO PARTIES HAVE TO BE LEGALLY REPRESENTED?

A person appearing at a hearing may be represented at the hearing by a legal practitioner or an agent, or they may appear on their own behalf.

IMPORTANT NOTICE: Costs are rarely awarded in the ACAT and usually only in cases where one side has caused an unreasonable obstruction or delay in proceedings.

WHAT ARE THE OPTIONS IF A PARTY IS NOT REPRESENTED BUT IS UNABLE TO PHYSICALLY ATTEND THE PROCEEDINGS?

Where a party is unavailable to attend a conference or hearing, arrangements can be made for a teleconference. This is done by telephone hook-up. Parties should contact the ACAT prior to the conference or hearing to enable appropriate arrangements to be made.

PROCEDURAL POWERS & ORDERS OF THE TRIBUNAL

Procedural Powers of the ACAT

The ACAT has wide ranging powers. These are specified at Division 6.1 of the ACT Civil and Administrative Tribunal Act 2008. These powers include the power to make an interim order, if it believes the party applying for the interim order would suffer disadvantage or harm if the Order was not made.

Orders

The ACAT may make a variety of orders. Some orders which are commonly made include:

  • an order terminating a tenancy agreement;
  • an order granting a termination and possession order to have effect      as a warrant of eviction;
  • an order for the payment of rent arrears;
  • an order for a stay of eviction;
  • an order for compensation and/or reinstatement for wrongful      eviction;
  • an order for compensation where a tenant abandons a premises before      a fixed term tenancy agreement expires;
  • an order accepting, declining or partly accepting a rental rate      increase;
  • an order reducing the rental rate payable;
  • an order refunding rent already paid as compensation;
  • such other order as the ACAT considers appropriate.

IMPORTANT NOTICE: The ACAT shall give each party to a hearing written notice setting out the terms of any order made within 7 days of making such an order.

WHAT IF A PARTY FAILS TO COMPLY WITH AN ORDER OF THE TRIBUNAL?

Where a party fails to comply with an order of the ACAT, the ACAT may, if appropriate, order a person to pay a specified amount (not exceeding $5,000.00) to the Territory.

A money order or non-money order made by the ACAT is, by force of section 71 of the ACT Civil and Administrative Tribunal Act 2008, taken to have been filed in the Magistrates Court for enforcement on the day the order is made. This means that the enforcement process takes place in the Magistrates Court using its usual procedures.

If a termination and possession order is made and the tenant fails to vacate the premises on the date ordered, the ACAT will, upon application from the lessor, issue a warrant authorising the police to evict the tenant and anyone residing in the premises upon giving two days notice.

If a conditional termination and possession order is breached, the lessor may apply to the ACAT for a warrant of eviction. On receiving such an application the ACAT registrar must list the application for a hearing within a week of having advised the person to whom the conditional termination or possession order is directed.

The ACAT is required to state that an application for warrant of eviction has been made, the time and place for the hearing of the matter and that the person should seek legal advice if they wish to continue living at the premises.

CAN A PARTY SEEK A REVIEW OF OR APPEAL A DECISION OF THE TRIBUNAL?

A party can request written reasons for the decision of the ACAT within 14 days of the date of the order. A party to an ACAT hearing may appeal to the ACAT Appeal President on a question of law or fact from a decision of the ACAT in the first instance. Appeals must be instituted no later than 28 days after receipt of notice of the order, unless the Appeal President allows for an extension of time. Appeal forms are available from the ACAT website and from the Tribunal registry. A fee applies to applications for appeal.

IMPORTANT NOTICE: When written reasons for decision are requested from the ACAT, a copy of those reasons are posted in full on the ACAT website.

WHAT PARTIES CAN EXPECT FROM STAFF OF THE ACAT

The ACAT has a responsibility and a duty to those who approach it to facilitate dispute resolution which is quick, simple and inexpensive.

Parties can expect the staff of the ACAT to provide a timely, efficient and sensitive service to all users accessing the ACAT. Staff of the ACAT will also provide assistance with applications and advice regarding the preparation of relevant documents.

ACAT staff are unable to offer legal advice or inform parties of their legal rights and obligations. If a party requires legal assistance or advice, the staff of the ACAT are able to refer parties to the relevant services where such guidance can be sought.

CONFIDENTIALITY

ACAT hearings are open to the public unless, for exceptional reasons, the ACAT is of the opinion that the proceedings should be closed. The staff however, are unable to provide information concerning matters being processed unless the requesting person is a party to the proceedings.

WHAT WE WOULD LIKE FROM YOU

To assist the ACAT in disposing of matters in a timely, cost effective and efficient manner; please remember to:

  • ensure that your application is completed in full with the nature      of the dispute clearly identified;
  • attach your statement and all relevant documents and material to      your application;
  • if represented, provide the name and contact details of your solicitor      or agent;
  • advise staff of times and dates that you or your representative may      not be available for any conciliation process or hearing;
  • if you are unable to attend personally and you are not represented,      advise with regard to telephone contact details; and
  • if you are defending an application, provide a written statement      addressing all the issues mentioned in the application at least 3 days      before the hearing and ensure that any other documents you wish to rely      upon are accompanied with your defence.

CONTACTS

Further information on the ACAT can be obtained by contacting:

The Deputy Registrar

ACT Civil and Administrative Tribunal
ACT Health Building
Level 4, 1 Moore Street
Canberra City ACT 2601

Telephone (02) 6207-1740
Facsimile: (02) 6205-4855

Website: www.acat.act.gov.au
Email: tribunal@act.gov.au

For information regarding rental bonds, inquires may be directed to:

ACT Office of Rental Bonds

Physical Address
255 Canberra Avenue, Fyshwick ACT

Postal Address
GPO Box 158, Canberra City ACT 2601

Business Hours
9.00am to 4.30pm Monday to Friday

Telephone: (02) 6207-1178
Facsimile: (02) 6207-1181

Website: http://www.ors.act.gov.au/…

For further advice regarding legal rights and obligations, parties may wish to contact:

Canberra Community Law

21 Barry Drive
TURNER ACT 2601

Telephone: (02) 6218-7900
Facsimile: (02) 6257-4801

Website: canberracommunitylaw.org.au

Tenants Advice Service

21 Barry Drive
TURNER ACT 2612

Telephone: (02) 6247-2011 (Between 10am-11.30am each day. Leave details to receive a call-back)

Check Twitter: @tuact

Website: www.tenantsact.org.au