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Criminal tenant successfully appeals eviction

14 March 2014 Staff Reporter

A dispute between a tenant and the state Land and Housing Corporation has ended up in the Court of Appeal, and may set a new precedent for removing tenants with ‘behavioural’ problems.

The tenant was convicted of cultivation and supply of cannabis, after which the landlord (NSW Land and Housing Corporation) sought to terminate the lease under section 91 of the Residential Tenancies Act.

This would permit the tribunal to issue a termination order if the tenant uses the premises for the manufacture, sale, cultivation or supply of a prohibited drug.

However, the tenant argued that despite 12 kilograms of marijuana being found at the premises, there was no evidence the tenant used the premises for the manufacture, sale, cultivation or supply of cannabis.

The tribunal did not grant the termination order, but instead ordered the tenant not to permit the premises to be used for any illegal purpose, and gave the landlord the option to have the matter re-heard if the tenant did not comply with that order.

The tribunal's decision was overturned at the district court, but reinstated at the Court of Appeal.

The Court of Appeal found that the tribunal had discretion as to whether to issue the termination order or not.

The reasons the tribunal exercised its discretion in favour of the tenant included:

  • the tenant's history of illness and mental illness;
  • the tenant's history of drug abuse;
  • the tenant's undertaking (as part of her bail conditions) to reside in the premises; and
  • to give the tenant an opportunity to show she could complete her medical treatment and rehabilitation program.

The case has demonstrated the difficulty any landlord can have in evicting tenants due to behaviour - even when the behaviour is criminal.

Criminal tenant successfully appeals eviction
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