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Residential Tenancies in the Australian Capital Territory

Written by Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

In the Australian Capital Territory (ACT) residential tenancy disputes are dealt with by the ACT Civil and Administrative Tribunal (ACAT).

The laws that govern disputes about residential tenancies in the ACT are the Residential Tenancies Act 1997 (RTA) and the ACT Civil & Administrative Tribunal Act 2008.

The person who files an application is referred to as the Applicant, and the other party as the Respondent.

In the Australian Capital Territory residential tenancy disputes are dealt with by the A.C.T. Civil and Administrative Tribunal (ACAT)

Residential leases in the ACT

All leases in the ACT should include the ‘prescribed terms’, which are set out in the RTA. Unlike some of the other States and Territories, in the ACT, if both the lessor and the lessee agree to include an extra term or a term that is inconsistent with the prescribed terms, they may do so by getting ACAT to approve the terms. This is done by way of an Application for Endorsement.  If terms are not approved by ACAT, they cannot be relied on in the event of any later hearing before ACAT.

A copy of the proposed lease and the prescribed terms and the proposed additional clause are lodged at ACAT together with the Application for Endorsement. The tenant(s) and the landlord must agree to and sign the Application for Endorsement.

Applications are usually decided just on the papers included in the application. However, if more evidence is needed, the Tribunal will make a written request.

Applications for Resolution of a Dispute

A number of disagreements may arise under a residential tenancy agreement which may result in either party lodging an Application for Resolution of a Dispute.  These include:

  • tenants defaulting in rent payments
  • orders for termination of the lease and
  • rent reduction.

When an application to resolve a dispute is filed, the Registrar will decide whether to refer it for mediation or to set it down for hearing before a Registrar or ACAT member. Parties may be referred to a pre-hearing conference, in which case a written notice advising the date, time and location for the conference or hearing and a full copy of the application will be sent to both parties.

The Registrar will try to assist the parties to resolve it and will work out how long the hearing will take. An interim order can be made lasting until the final hearing if the party seeking it would be disadvantaged or harmed if it were not made. Consent Orders can be made if the matter settles at the conference, and is not to proceed further.

Procedures at ACAT

A person may be represented at the hearing by a lawyer or an agent, or they may appear on their own behalf. If they are unable to appear in person then arrangements can be made for a teleconference. Costs are usually not awarded in ACAT unless one party has caused an unreasonable delay in the proceedings.  

At the hearing, the applicant and the respondent will be asked if they want to add anything further to what has been presented in their application or defence, and then the Tribunal will usually hear the matter straight away. If the respondent does not appear, orders can be made in their absence.

Within 7 days of the hearing the parties will receive a written notice setting out the terms of any order made.

Orders that can be made

ACAT may make a variety of orders, including:

  • an order terminating a tenancy agreement
  • an order granting a termination of  lease and possession order
  • an order for the payment of rent arrears
  • an order for a stay of eviction.

Failure to comply with Order

If a party does not comply with an order, ACAT may direct a penalty of up to $5,000. Orders made by ACAT are registered in the Magistrates Court, which means that orders can be enforced through the procedures of that Court.

If a termination and possession order is made and the tenant does not leave on the date ordered, the ACAT can issue a warrant for the police to evict the tenant and anyone residing in the premises giving them two days’ notice. An application for a warrant of eviction can be made if a conditional termination and possession order is breached. ACAT will list the matter for a hearing within a week and the tenant will have an opportunity to respond to the application.

Matters outside ACAT’s jurisdiction

Some disputes regarding residential tenancies in the ACT will not fall within ACAT’s jurisdiction. ACAT cannot make any orders for payment of compensation or of work value which is above the sum of $25,000. If a tenant or landlord wishes to claim over that amount, they should seek recourse to the ACT Magistrates Court, which has jurisdiction to hear claims for amounts of up to $250,000.

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