Defending an Eviction - Defending a Non-Breach Eviction

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the landlord can apply for a waiver of a defect in the notice (s 59). The tribunal may grant this if satisfied the tenant will be no worse off than they would have been had the notice been correct. Alternatively, the tribunal could correct the defect, so that the tenant gets the correct period of notice (s 83(k)).

If you believe the grounds are incorrect, you would need to have some evidence for the tribunal to consider. For example, if the ground for the notice was that the landlord intends to sell the property and, at the same time, the property is advertised in the To Let section of the paper, this is a basis for the tribunal to require the landlord to prove that the grounds are genuine. If not satisfied that the grounds exist (s 47(1)(a)) the tribunal may refuse to order the termination of the tenancy.

Significant hardship
Another ground for termination is where the landlord can demonstrate that if the tenancy was to continue, he or she would suffer significant hardship (s 50). Notice is not required in this case; the landlord can apply direct to ACAT for a TPO. To defend such an application, you would need to show the tribunal how you would suffer greater hardship if the tenancy was ended than the landlord would suffer if it was not ended.

Retaliatory applications
Under s 57 if you have evidence that the landlord or agent is trying to evict you because you have taken some action to determine and/or assert your rights, you will need to show evidence of the action you took (e.g. details of complaints, statements from complaint or advice bodies). If the tribunal is satisfied on you evidence, the landlord will then need to persuade the tribunal that seeking your eviction was not in retaliation against you for taking this action. If not persuaded, the tribunal must refuse to make a TPO.

Submitting a defence
The documents from the Registry include a form called ‘Statement Contesting/Defending Application’. Instead of using this form you can type or write out your own statement, but it is best to use this heading. The point of this statement is to give a clear and accurate account of your position: why you believe you should not be evicted. You should use numbered points to give the facts or the relevant sequence of events - this is easy to read and helps you to write logically. You do not have to argue the case in the statement of defence - that will happen at the hearing - but the statement must include the key facts on which you will rely.

Wherever possible the statement of defence should be sent to or handed in at the Registry in time for the tribunal member to read it before the hearing and for the landlord to receive a copy.

ACT Civil and Administrative Tribunal 6207 1740

dispute resolution and enforcement of tenancy legislation
www.acat.act.gov.au

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Information supplied courtesy of the Tenants Union of ACT

Further information and advice for ACT tenants can be sourced from

www.tenantsact.org.au