Procedures for termination of residential tenancies must be strictly observed no less so than in the case of “serious” breaches involving the use of the rented premises for illegal activity.
But under Residential Tenancies and Rooming Accommodation Act (RTRAA) s 290A the landlord need only “form a reasonable belief” that the home or unit has been so used and there is no requirement that such illegality be proved eg by way of a police prosecution.
Housing Commission tenant Robert Turnbull was given a “notice to leave” – which for a “serious” breach need only allow a 7 day period – after being charged with possession of boxed-up drug lab equipment found on the premises during a police raid in June.
Notwithstanding the absence of a conviction, the Department of Housing wasted no time by also issuing a “first and final strike notice” on 7 July that required him to vacate the unit he had occupied since August 2010.
Turnbull refused, prompting an application by the Department to QCAT that relied on RTRAA s 290A and the police charge as the foundation for its “reasonable belief” of a clandestine activity.
He defended the application on the basis the boxes belonged to someone else; he “was not 100% sure of their contents”; and that the presence of the equipment in the rental unit was not an “activity”.
QCAT ruled on 28 August that he must move on and a further application for a “stay” on 12 September was refused. In the absence of notification required by 22 September that he intended to pursue an application to seek leave to appeal – despite notifying that he proposed to appeal the stay refusal – the proceedings were terminated.
Turnbull then went higher, to the Court of Appeal which ruled it had no jurisdiction.
“No appeal lies to this court from the decision of the adjudicator. Any appeal must be to the appellate division of QCAT.”
As at the date of the Court of Appeal hearing, Turnbull’s prosecution for the alleged offence had not been determined.