The landlord in the case is the NSW Land and Housing
Corporation. The tenant was convicted of cultivation and supply of
The landlord sought to terminate the lease under section 91 of
Residential Tenancies Act, which permits the Tribunal to issue
a termination order if the tenant uses the premises for the
manufacture, sale, cultivation or supply of a prohibited drug.
In this case, there was no evidence that the tenant used the
premises for the manufacture, sale, cultivation or supply of
cannabis, however a large quantity (12kg) was found at the
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 why the Tribunal exercises its discretion in favour
of the Tenant included:
the tenant's history of illness and mental illness;
the tenant's history of drug abuse; and
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 demonstrates the difficulty a landlord can have in
evicting tenants because of behaviour - even when the behaviour is
Part of the case discussed the extra provisions in Part 7 of the
Residential Tenancy Act - which relate to Social Housing Tenancy
Agreement. This part now applies to registered Community Housing
Providers. Sections 143, 148 and 152 provide a Community Housing
Provider with some additional grounds to terminate a residential
tenancy agreement (although the Tribunal may refuse to grant
termination orders based on the same reasons as above).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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