SA Supreme Court upholds decision to eject tenant due to failure to keep premises clean

The court rejected a proposed "clean up"

SA Supreme Court upholds decision to eject tenant due to failure to keep premises clean

In a recent tenancy dispute, the SA Supreme Court has affirmed an order for repossession of a residential property due to the tenant’s failure to keep the premises clean and in good tenantable condition.

In Miroslawski v Housing Choices SA [2023] SASC 162, the applicant Miroslawski sought leave to appeal to the Supreme Court against a decision of the South Australian Civil and Administrative Tribunal (SACAT). The decision, made by a senior tribunal member, pertains to an order to possess a residential property in Windsor Gardens.

The dispute began when the landlord, Housing Choices SA, served the tenant, Miroslawski, with a notice of breach, citing failure to maintain cleanliness and hygiene in the premises. The tribunal granted possession to the landlord.

Miroslawski’s grounds of appeal touched on various aspects, including the absence of a provision to extend compliance time, a miscalculation in the time required for decluttering, and the alleged preventable distress caused to the tenant.

The SA Supreme Court noted that the tenancy began in 2016, and the tenant was obliged to “keep the premises and any surrounding area clean and in good tenantable condition, free from vermin and free from refuse.”

In March, the landlord served the applicant with a notice of breach and sought vacant possession of the premises. The breach specified within the notice was the “failure e to remove hard refuse and other rubbish, including food scraps from inside the property. Failure to comply with the tenant’s obligations by keeping the premises reasonably clean, tidy, safe and hygienic.”

The tribunal ultimately found it was appropriate to make an order for possession in favour of the landlord, given the extent of possessions, accessibility issues, cleaning issues, and hygiene issues. The court explained that the notice of breach and the failure to remedy the breach meant that the tenancy had been terminated. The breach was, in any event, serious enough to justify vacant possession.

The senior tribunal member found that in 2020, the property had been in ‘appalling condition in terms of the amount of rubbish and belongings in the house. He described the condition of the property as “filthy, appalling and unhygienic, inside and out.”

The applicant, a 76-year-old individual, faced health challenges, including a history of strokes and heart disease. He said he would be homeless if his application for review failed. The applicant regarded some alternative accommodation options as less than ideal. The court emphasised that he was settled in his desire to remain on the premises. Nevertheless, the court noted that a social worker had expressed a “high degree of confidence that suitable accommodation could be found within six weeks.”

The court noted that the overriding principle in deciding whether to grant permission to appeal from SACAT to the Supreme Court is “always the interests of justice.” Further, the court said that ordinarily, permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration. The court also pointed out that since SACAT is a specialist tribunal with particular expertise in determining tenancy disputes, it must give substantial weight to its findings.

Ultimately, the court declined to grant permission to appeal. The applicant sought the reinstatement of his tenancy and advanced a “clean-up proposal.” The senior member of the tribunal considered two options. The first option was to uphold the decision under review. The second option was to set aside the decision and make what the senior member described as a “staged clean-up order.”

The Supreme Court found it was unclear how realistic the clean-up proposal was. While the court found that the applicant was genuine in his promise to clean, there are likely limits to what could be achieved. The court noted that the applicant made improvements in the past but were short-lived. The court concluded that a year or so clean-up process is not desirable. A shorter time frame is not likely to be achievable.

The applicant also argued that anxiety, stress, and insecurity could have been avoided by reinstatement of the tenancy. However, the court said this was not a matter that the senior member overlooked. The senior member noted that the applicant had been diagnosed with depression and anxiety and noted the submission that an uncertain future could contribute to his health problems.

The court concluded that when all the material was considered, it was not reasonably arguable that the decision of the tribunal’s senior member was not the correct and preferable decision when it was made.

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