Residential Tenancies Act 1997

On application by a lessor, the ACAT may make a termination and possession order if satisfied that—

a ground for termination exists under the standard residential tenancy terms (other than for a breach of the standard residential tenancy terms); and

the lessor has served a termination notice on the tenant based on that ground; and

the tenant has not vacated the premises as required by the termination notice; and

if the application relates to a termination notice served by the lessor in accordance with a community housing provider termination clause, public housing termination clause, subsidised accommodation clause or temporary housing assistance termination clause—the termination is reasonable and proportionate.

If the ACAT makes a termination and possession order under subsection (1), the ACAT may suspend the operation of the termination and possession order for a stated period of not more than 3 weeks if satisfied that—

the tenant would suffer significant hardship if the operation of the order was not suspended for the period; and

the tenant’s hardship would be greater than the hardship that would be suffered by the lessor if the operation of the order was not suspended for the period; and

it is appropriate to suspend the operation of the order for the period.

For subsection (1) (d), the ACAT must consider the following in deciding whether the termination is reasonable and proportionate:

the history and length of the tenancy;

the functions of the lessor in providing public or subsidised housing, including—

if the lessor is the housing commissioner—the objects of the Housing Assistance Act 2007 and the commissioner’s functions under that Act; and

any funding requirements or contractual obligations on the lessor in relation to the provision of subsidised accommodation; and

the lessor’s interest in the efficient management of public or subsidised housing (including other premises) provided by the lessor; and

the public interest in the efficient management and availability of public or subsidised housing; and

the financial impact on the lessor or owner if the residential tenancy agreement is not terminated;

the conduct of the tenant and the lessor or owner in relation to matters that are relevant to the notice for termination being served on the tenant;

any hardship that the tenant will, or is likely to, suffer if the residential tenancy agreement is terminated, including—

financial hardship; and

difficulties in finding suitable alternative premises; and

any risk of the tenant experiencing a prolonged period of homelessness; and

impacts on the tenant’s physical or mental health;

any other matter the ACAT considers relevant.

In considering whether to make an order under subsection (1), the ACAT must not—

if the application relates to a termination notice served by the lessor in accordance with a public housing termination clause requiring the tenant to transfer to another public housing dwelling—review the housing commissioner’s decision to require the tenant to transfer to another public housing dwelling; or

if the application relates to a termination notice served by the lessor in accordance with a public housing termination clause because the housing commissioner decides to stop giving housing assistance to the tenant—review the housing commissioner’s decision to stop giving housing assistance to the tenant.

To remove any doubt, subsection (4) does not limit the operation of the Human Rights Act 2004, section 40C (2) (b).

In this section: