VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Residential Tenancies Division
RESIDENTIAL TENANCIES LIST		VCAT REFERENCE NO. R2024/6592
CATCHWORDS	
Application for possession for the rental provider's parents to move in - determination that a possession order is reasonable but not proportionate. Application dismissed. Section 91ZZA of the Residential Tenancies Act 1997 (Vic).	

APPLICANT	Geoffrey Di Battista	
RESPONDENT	Shiyu Tang and Zhoulin Zhang 	
WHERE HELD	Melbourne	
BEFORE	Member P Tyler	
HEARING TYPE	Hearing	
DATE OF HEARING	10 April 2024
2 May 2024
25 June 2024	
DATE OF ORDER	15 May 2024	
Date of Written Reasons	28 June 2024	
CITATION	Battista v Tang (Residential Tenancies) [2024] VCAT 604	

Order
VCAT finds:
It is not reasonable and proportionate to make a possession order.
VCAT Orders:
The application is dismissed.

P Tyler
Member			

APPEARANCES:		
For the applicant	Mr Zhang and Ms Tang
Mr Qin and Ms Horsley, property managers	
For the respondent	Mr G Di Battista
Mr J Holmes, solicitor	

Reasons
1	On 18 December 2023, the agent for the rental providers served a Notice To Vacate pursuant to s91ZZA of the Residential Tenancies Act 1998 (‘RTA’) on the renter Mr G Di Battista. 
2	The rental providers are Zhoulin Zhang and Shiyu Tang. The Notice stated that possession was required because the parents of Mr Zhang were to occupy the rented premises. The Notice To Vacate complies with the RTA.
3	The renter remains in possession of the rented premises.
4	The Notice To Vacate was followed by an application to the Tribunal on 27 February 2024 seeking an order of possession. 
5	The application contained a claim for compensation but this was withdrawn.
6	In considering the making of a possession order one of the factors to which the Tribunal must have regard is s330 of the RTA which states:
The Tribunal must make a possession order requiring a renter, … to vacate rented premises, …  if the Tribunal is satisfied—
f)	that in the circumstances of the particular application, it is reasonable and proportionate having regard to section 330A, to make a possession order taking into account the interests of, and the impact on, each of the following in making the possession order—
(i)	the residential rental provider, …..
(ii)	the renter, ……
(iii)	any co-tenants or co-site tenants or other residents;
7	Most of the issues referred to in s330A deal with circumstances where there are breaches of the RTA or a lease. These issues are not relevant in this case as there is no evidence that either party has committed any breach of the terms of the RTA or tenancy. In so far as it is relevant to this proceeding, s330A states:
For the purposes of determining whether it is reasonable and proportionate to make a possession order, the Tribunal must have regard to the following—
(j)	any other matter the Tribunal considers relevant.
8	The Tribunal is therefore required to make a decision balancing the effect of a possession order on the rental providers, along with the effect on the renter and those who also reside at the rented premises, in this case, his children.
The circumstances of the rental providers.
9	The rental providers have owned the rented premises since 2018 and entered into a lease with the renter in October 2021. The lease was renewed and the new lease ended in October 2023. Since that time there has been a periodic tenancy.
10	The rental providers purchased the rented premises in close proximity to their home as it was their intention for the parents of Mr Zhang to move from China and take up residence close to the rental providers.
11	The parents of Mr Zhang, do not speak English, are in their 70’s and are in poor health. They are in possession of residential visas.
12	Both rental providers work fulltime. They have two children aged 10 and 8.
13	The rental provider’s home has four bedrooms and there are now three generations of people living there.
14	Because of the ill health suffered by the parents of Mr Zhang it is very difficult to have three generations in the house. Mr Zhang’s father has difficulty sleeping and requires rest time during the day. This creates problems for him with children in the house and the children are restricted in their activities especially when they have friends stay to play or for sleepovers.
15	Ms Tang is clearly finding the current circumstance very difficult with her parent-in-law living with her family on a full-time basis. She says that it is necessary for the children to be taken out of the house on weekends so that the parents-in-law can get the rest they need. For most of the year the house is occupied by the parents of Mr Zhang, other that after school and on weekends. Holidays are difficult times.
16	Although Mr Zhang considers his parents to be living in a safe environment, the rental providers are also concerned that with three generations living under the one roof, his parents are exposed to illnesses potentially brought home by the children and that they are more vulnerable in this regard.
The circumstances of the renter.
17	According to a submission by the renter’s solicitor, the circumstance of the renter are:
a.	He is a 52 year old male. He has two children, a son aged 14, and a daughter aged 16, who reside with him at the property pursuant to a shared custody arrangement with the renter’s former wife on a 50/50 basis.
b.	The renter is currently unemployed. He has been unemployed since around November 2022. Before this time, and during the COVID-19 lockdowns, he was self-employed and worked intermittently doing project management-related work.
c.	His current income consists of a combination of Family Tax Benefits, Rent Assistance and JobSeeker from Centrelink, which totals $1,133.64 per fortnight.
d.	On 1 December 2022, the renter began receiving monthly child support payments from his former wife. However, he has not received any payments since on or around 11 February 2024. 
18	Other relevant factors concerning the renter are as follows:
a.	The renter is not in default of rent payments and there is no allegation that he has been in breach of his duties during the tenancies.
b.	He has made significant improvements to the rented premises and keeps them in good repair.
c.	He has applied for many alternative rental properties and attended many inspections, without success.
d.	His children attend school located in close proximity to where he lives and engage in after-school activities.
19	An issue that significantly affects the renter is the state of his mental health. He has been diagnosed with a Major Depressive Disorder and this is affecting his ability to work. He is seeking treatment from three sources, his general practitioner, a psychologist and a counsellor.
20	All treating professionals have indicated that, if an order was made requiring him to vacate his current residence, it would have a significantly detrimental effect on him. He needs stable accommodation.
21	The renter has applied for accommodation through the public housing sector and has been told there is a waiting list of approximately two years.
22	In considering the impacts of a possession order on the parties I will firstly assess what is reasonable in the circumstances of this case.
23	The rental arrangement between the parties has been subject to written leases the last of which ended in October 2023. The renter first became aware that the rental providers wanted possession when they made an application to the Tribunal in August 2023, although this application failed. There is no evidence to suggest that the renter was given to believe that any further lease would be offered. Since October 2023 the tenancy has been on a periodic basis.
24	The rental providers have made a valid application which is under consideration in this proceeding.
25	The legislation contemplates the right of a rental provider to regain possession of the rented premises in circumstances where family members are moving into occupation of them.
26	In this instance the rental providers purchased the rented premises for the specific purpose of them being occupied by Mr Zhang’s parents and rented them to the renter until such time as his parents obtained the relevant visas. The proximity to the residence of the rental providers was a significant reason for the purchase of that particular property.
27	Taking into account these factors I consider it reasonable that a possession order be made.
28	In considering what is proportionate in these current circumstances, I have taken into account the following:
a.	In addition to the factors considered in respect of reasonableness, the rental providers and their fellow residents namely, the two children and Mr Zhang’s parents are now living under to one roof in a household comprised of three generations. The needs of the parties differ. Mr Zhang’s parents are in poor health and require a peaceful environment and this impacts the children’s lives in respect of their restricted use of their home. The children often had to be taken away from the house during weekends and their ability to have friends stay is limited.
b.	There is reasonable concern that Mr Zhang’s parents may have greater exposure to illnesses the children may bring home from school.
c.	It was evident during the hearing that having Mr Zhang’s parents in the house was putting considerable strain on Mrs Tang, their daughter-in-law, and this is understandable.
29	On the other hand, the house has four bedrooms and Mr Zhang’s parents’ bedroom is on the ground floor.
30	Mr Zhang gave evidence that his parents had a safe place to stay with his family.
31	In respect of the effect that a possession order would have on the renter I consider the following issues to be relevant.
32	If a possession order was made there is a reasonable prospect that the renter would become homeless. Since becoming aware of the rental providers’ intention of seeking possession the renter has, within the limits of his mental and emotional capacity, been making a considerable effort to find other accommodation for himself and his children. 
33	His efforts in this regard have been rather futile because he is unemployed and without the ability to demonstrate an income stream to support the payment of rent. His inability to find alternate accommodation because of his lack of an income has been confirmed by the agents for the rental providers who also believe that he cannot afford accommodation in the general area.
34	He suffers from a significant mental illness for which he is seeking treatment and support from his general practitioner, a psychologist and a counsellor. All three practitioners are of the view that if the renter is evicted from his house, it would cause his mental condition to deteriorate.
35	At present he has a co-parenting arrangement with the mother of the children. It is most likely that if he was to lose the house he would become homeless and his children would not be able to stay with him. This would also detrimentally affect his mental health condition.
36	The renter has applied for public housing and has been told that it could take up to two years for a house to be allocated to him.
37	The renter is unable to stay with other family members.
38	The expectation is that the renter’s current treatment will assist his recovery to the extent that he will be able to find employment which in turn will enable him to find suitable alternate accommodation, but this will take time.
39	Having regard to the above considerations I find that a possession order would have a significantly more detrimental effect on the renter than on the rental providers.
40	I am of the view that all parties are adversely affected by the current circumstances but the RTA requires me to determine what is both reasonable and proportionate. Although the legislation is not specific in this regard, I consider it implicit that the Tribunal is required to refuse a possession order if the effect of such order has a more adverse effect on the renter than on the rental providers.
41	For the reasons above I consider that it is reasonable to make a possession order, but, on balance, I do not consider such an order would be proportionate having regard to the likely adverse effect on the renter and his children. 
42	Given that a possession order would not be reasonable AND proportionate the application for a possession order is refused and the proceeding dismissed.

P Tyler
Member