FUNDAMENTAL LAW AND DUTIES OF TENANTS

The Business School

Due Date: Friday, noon, of Week 8

Angelo is the owner of a caravan park and provides both short term leases and long term leases of on-site caravans. While Angelo has had no problems leasing on-site caravans for a month or two at a time, he is having difficulties finding people who wish to lease an on-site caravan for a period of 12 months or longer.

Angelo leases an on-site caravan to Christie at a weekly rental of $150 for a period of a year. After the expiry of the year, Angelo tells Christie that he needs to increase the weekly rental by $50. Christie tells Angelo she does not think she can afford the increase, and that she has heard of a caravan in another caravan park which may be available for $170 per week. Angelo says to Christie, “I will see what I can do”.

The lease between Angelo and Christie is renegotiated for a further 12 months, but the rent is increased to $200 per week. Angelo, however, enters a verbal agreement with Christie that he will accept $175 per week, and this is the amount Christie pays.

Ever since Christie arrived, she has had a number of loud parties and the tenants in the neighbouring caravans have often complained about the noise. Although Angelo has ignored these complaints for some months, the sheer number he has received has finally forced him to act. Angelo serves a notice on Christie claiming arrears in rent; the difference between the amount stated in the lease ($200 per week) and the amount she had been paying as a result of her oral agreement with Angelo.

Required: Discuss whether Christie is required to pay the arrears in rent claimed by Angelo. Refer to relevant legal principles and case law in your answer.                                 (15 marks)

Ali is one of those who complains. He also signed up for a 12 month period after Christie had been there for around 10 months. Before he signed the lease, he explains to Angelo that he and his family were recent immigrants to Australia from a war zone. He needs somewhere quiet for his children to get over their fright and anxiety from the dangers they had faced while in a refugee camp. Angelo points to a clause in the lease document which says:

“Code of Behaviour:

All our residents are entitled to the respect and consideration of others.

All our residents are expected to behave in a civilised manner at all times and not to pose a nuisance to others.”

He also assures Ali that “all our residents enjoy the peace and quiet.”

Ali has now told Angelo that he will have to leave and find somewhere quieter in which to live. Angelo responds: “I never said it was quiet here, obviously people enjoy peace and quiet but I can’t make them be quiet! If you break your lease you will have to pay me to the end of the year. It says so in the contract you signed.”

Required: Discuss whether Ali is required to pay the balance of the lease. Refer to relevant legal principles and case law in your answer.                                                 (15 marks)

Further Guidance on the assignment

For each part of the assignment (there are two questions to answer) you should do the following:

1. Identify the legal issue or issues that arise in the scenario                             (2 marks)
2. Identify (and justify) the legal principles and cases of relevance                    (3 marks)
3. Apply the law to the facts of the situation (analysis)                                       (8 marks)
4. Offer a conclusion (answer the question posed)                                             (2 marks)

Grades will be awarded on the following basis:

High Distinction:              Excellent ……. 80-100% (24 or above)

A detailed, coherently written, organised assignment that answers the question succinctly.An objective reasoned argument that focuses on the relevant issues of the topic, and is expanded and developed with appropriate examples. Principles of law integrated well into the analysis. Shows evidence of having read relevant texts, journals, and so on and clearly references any authors quoted in the assignment. No or very minor errors of expression.

Distinction:                      Very Good……70-79% (21-23)

Gives a sound analysis with most of the principles of law applied. Principles defined and explained to an acceptable level. Shows a good understanding of most of the principles and integrates them satisfactorily into the analysis. Some good examples given. Lacks the depth of an “A” analysis. Well structured – minor inadequacies. Referencing is good but some minor flaws evident. Mainly logical and coherently organised.Clear and concise and correctly written.

Credit:                             Good….. …….60-69% (18-20)

Analysis is good with most of the main principles identified and applied. The main argument is sustained but may have some weaknesses. Generally demonstrated reading and thinking about the topic. Structured reasonably well and organised in a logical fashion. All sources acknowledged correctly. Generally presented well and with consistent use of terminology, correct spellings and expressions.

Pass:                               Satisfactory…50-59% (15-17)                                                      

Analysis is adequate with a number of the main principles of law identified and applied. Difficulty in sustaining or developing a coherent argument, showing some confusion, but generally demonstrating evidence of reading and thinking about the topic. Structured reasonably well and organised in a somewhat logical fashion. Sources acknowledged. Generally correct expression and spellingwith writing of a satisfactory standard.

Fail Level 1 (MN):             Unsatisfactory. 40-49% (12-14)

Analysis shows some understanding but incomplete and inconsistent. Argument is not complete or comprehensive. Some support offered for the argument but inadequate and/or irrelevant. Explanation of the issues and solution is not adequate. Somewhat superficial overall, some attempt to establish a structure but inadequate. Inadequate referencing.

Fail Level 2 (NN)              Poor…………..0-39% (below 12)

Analysis shows little understanding of the problems and few principles discussed. Lacks examples, definitions and explanations in some instances.A superficial, general analysis supplying mainly anecdotal information. Not logically organised. Inadequate referencing and poor expression of concepts.

 SOLUTION

Answer 1

Identify the legal issue or issues that arise in the scenario: Duties of the tenants and rights of eviction to the landlord.

Identify the legal principles and cases of relevance: In the Residential Tenancy Act of 1997 two types of renting agreements have been discussed i.e. the tenancies[1] and the occupancies[2]. Whether a person has a residential tenancy agreement or an Occupancy agreement is dependent upon the type of premises that have been rented and the terms that have been agreed to by the person who is the owner of the property and the one who wis willing to take it on rent. Caravan, mobile homes, hotels, motels, club, educational institute’s campus or any other place as prescribed by regulations is covered by the occupancy agreements and not the residential tenancy agreements.[3]  An occupancy agreement can be a residential tenancy agreement if it is specifically written in the agreement that it is a residential tenancy agreement and if the accommodation is provided by an employer. In an occupancy agreement, the person who lives or stays in the premises and pays money for such staying and living is called the occupant[4] and the owner of the premises is known as the grantor[5]. Whereas in a residential tenancy agreement also known as a lease, the person who lives or stays in the premises and pays money for such staying and living is called the tenant[6] and the owner of the premises is known as the landlord or can also be called as the lessor[7]. A tenancy agreement can be any form either written or verbal.  The person who has taken property on rent has to behave in a certain way that others around him can peacefully enjoy their property; it is his duty to not disturb the peace of the other neighbours.  Section 60 of the Residential Tenancy Act of the 1997 of the Act states that the tenant should not allow his rented premises to be used for any illegal purpose and illegal purpose includes within it nuisance that is he should not allow nuisance in the rented premises. In the case of Malzy V Eichholz [1916] 2 KB 308 it was held that any interference in the life of the neighbour is also considered as nuisance and the landlord can evict the tenant and his guests from entering the premises. Tenant is vicariously liable for the acts of his visitors. Behaviour can be made a ground for ending the tenancy and it states that a landlord can order for eviction of the tenant on the ground of his behaviour. In the case of Smith v Director of Housing (1997) 30 HLR 875 a notice to vacate was served on Mrs Alice Smith. Mrs Smith’s behaviour was not the problem as she was good and taking proper care of the property but one of her visitor hurled abuses on two of the officers and shown knife to them. It was held that tenant is vicariously liable for the acts of the visitor and she was asked to evict the premises. In the matter of Ingram and Ingram v NSW Department of Housing (2002) NSWCTTT 84 it was held by the tribunal that if the landlord fails to quit the nuisance behaviour of one of the tenant and in way permits it then it is interference in the tenancy right of the other tenants. In case rent is increased by the owner and the tenant thinks it to be very high then tenant can get the assessment of the rent done by the Director of Consumer Affairs. Under the Residential Tenancy Act of the year 1997 there are fixed ways to end a tenancy agreement whether the agreement was fixed term or a periodic term. If either the owner or tenant wants to bring an end to tenancy then there should be a reason stated in the notice which is official in nature and the time allowed to vacate the premises also need to be mentioned in the notice. In case the tenant does not vacate the premises then an application can be filed with the Board.  There will be a hearing in front of the Board with both the parties to be given a proper hearing. The Board will take the decision and issue an eviction order. Even after the eviction notice by the Board being served if the tenant does not vacate the premises then the order can be submitted Court of Enforcement.

Apply the law to the facts of the situation: There is a residential tenancy agreement between Angelo the Owner of the caravan and Christie which has been renewed and the rent has been agreed to be increased which is different in the written agreement and in the verbal agreement. Rent agreement can be either written or verbal or both so in this case both the agreements are valid and Christie has to pay the rent which has been agreed to in the verbal agreement and secondly the same rent was accepted by the Owner for many months that means there is an implied consent to only that much rent. Angelo can get his premises vacated as Christie is creating nuisance through loud parties for the neighbours and the owner.  Angelo can get the premises vacated but cannot claim the difference of the rent between the amount stated in the written agreement and the amount that was agreed to by verbally.

Conclusion: Angelo cannot claim the arrears in the rent from Christie as verbal agreement is as valid as a written agreement.

Answer 2

Identify the legal issue or issues that arise in the scenario: Quite enjoyment of property on lease.

Identify the legal principles and cases of relevance:  The Residential Tenancy Act 1997 states that a landlord should take proper steps to make sure that the tenant is having the quite enjoyment of the premises that he has taken on rent. [8]  Tenants have the right to quite enjoyment of their property on rent. When the neighbours are disturbing and infringes in this right of quite enjoyment then the suffering tenant can make a complain to the owner and upon such information owner should take proper steps to ensure the behaviour of the disturbing tenant to be rectified so that others can enjoy their property for which they are paying so much rent. The covenant to quite enjoyment of property has been given a lot of significance of the courts and it is treated as a breach of the important and crucial term of the lease agreement. This breach can lead for a tenant to elect to treat the tenancy agreement as terminated but it is required that the tenant give a notice of such vacation to the owner of the property. It is also necessary that the reason be stated in the notice as well as a proof be provided to prove disturbance to quite enjoyment of  the property as one or two incidences of nuisance are not enough to say that there is disturbance top quite enjoyment. A balance need to be drawn between the rights of the owner and that of the tenant. Sometimes the disturbance to quite enjoyment is so much that it becomes really difficult for  the tenant to carry on any more in the premises than in those cases he can immediately vacate the premises without legally breaking the lease agreement but only upon serving the notice on the owner. It is also permitted that the tenant can knock on the doors of the court to get the court pass an order which will restrain the owner from recovering compensation from the tenant.

Apply the law to the facts of the situation: It is specifically mentioned in the lease agreement that the residents of the caravan park always behave in a civilized manner and respect the peace and quiet of others. Moreover it is stated in the law of residential tenancies that quite enjoyment of the rented property is the right of all tenants. Ali specifically mentioned his requirement for peace and quiet to Angelo as he was coming from a war zone and needs a quiet and peaceful place for his children so that they can overcome the fear and anxiety that the children faced while they were in the refugee camp. There are a lot of loud parties taking place in the caravan park because of which Ali is not able to find peace for himself and his children so his request to Angelo that he wants to vacate the premises so that he can find peace and quiet for his children and himself at any other place. He is also not required to make the payment for the remaining period of lease as there is termination of tenancy because of hardship and there is clear violation of the legal provision of the quite enjoyment to property and the condition as stated in the lease agreement. In such question of nuisance it is important to prove that disturbance is such that it is actually causing discomfort to the tenant. In the matter of Crump v Lambert (1867) L.R. 3 Eq. 409 it was held that in matters of nuisance it is important for how long the person suffered such nuisance. If the nuisance is going on for 20 years and the person has suffered it that way then it is presumed that he has become so much used to that nuisance that now he cannot live without that nuisance in his surroundings. Law also states that the person need not suffer because of the enjoyment of the others as enjoyment of one can be nuisance to the others. The terms of the lease agreement need to be followed in their true spirit and if not followed appropriately then it will be considered as a breach of contract.

Conclusion: Ali can vacate the premises in order to find peace and quiet at any other place and Angelo cannot claim from him the rent for the remaining period of the tenancy agreement.

References

Books

1. Niall , M & Holuigue, N  1998 The Residential Tenancies Act-An Overview
2. Matthew Graves 2007, Australian Administrative Law ,Cambridge University Press

Legislation

1. The Residential Tenancy Act 1997

Legal Authorities

1. 1.               Ingram and Ingram v NSW Department of Housing (2002) NSWCTTT 84
2. Crump v Lambert (1867) L.R. 3 Eq. 409
3. Smith v Director of Housing (1997) 30 HLR 875
4. Malzy V Eichholz [1916] 2 KB 308

Others

Australian Legal Information Institute, viewed on 19^th may 2012, http://www.austlii.edu.au/

LD07

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