VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
RESIDENTIAL TENANCIES LIST		VCAT REFERENCE NO. R2020/23871
CATCHWORDS
Residential Tenancies Act 1997 – ss 548,549,538,258,264 – whether short term stay is occupation by landlord – reasonable and proportionate in the circumstances.	

APPLICANT	Ricky Delaland	
RESPONDENTS
	Jodie Oliver
Kylie Willingham
Dale Willingham	
WHERE HELD	Melbourne	
BEFORE	S. Burdon-Smith, Senior Member	
HEARING TYPE	Hearing	
DATE OF HEARING	14 August 2020	
DATE OF ORDER	14 August 2020	
Date of Written Reasons	28 September 2020	
CITATION	Delaland v Oliver (Residential Tenancies) [2020] VCAT 1289	
Order
The application is dismissed for the following reason:

	The landlord has not proven the grounds for the application.

The agent for the landlord has requested written reasons for this decision in addition to the oral reasons given at the hearing. The Tribunal will provide those reasons within the time required.

S. Burdon-Smith
Senior Member			
APPEARANCES:		
For Applicant	Melinda Counihan	
For Respondents	Jodie Oliver	

Reasons
Background
1	The parties entered into a fixed term tenancy agreement with a termination date of 15 December 2020.
2	On 31 July 2020 the landlord applied to the Tribunal for a termination order.
3	The grounds for the application are that the landlord or the landlord’s dependent are to reside in the property.
4	At the end of the hearing, after I had given my decision, the agent for the landlord requested written reasons. These reasons are provided from my notes and recollection of the oral reasons provided at the hearing on 14 August 2020.
The relevant provisions of the Residential Tenancies Act 1997 as amended by the Covid Omnibus (Emergency Measures) Act 2020.
5	The Covid Omnibus (Emergency Measures) Act 2020 (the Covid Act) introduced Part 16 into the Residential Tenancies Act 1997 (the RT Act). These are temporary provisions providing a new procedure for the termination of tenancies in response to the COVID-19 pandemic. The new provisions apply from 29 March 2020.
6	Section 548 of the RT Act provides that a landlord may apply to the Tribunal for an order terminating the tenancy agreement.
7	On such an application, the Tribunal may make an order terminating the tenancy agreement if satisfied -
a)	as to any of the matters set out in section 549(2), and
b)	that is reasonable and proportionate after considering the matters in section 538.
8	Most relevant to this decision are subparagraphs (h) and (i) and (j). That being whether there is any other order or course of action reasonably available instead of the order and the course of action chosen by the landlord and any other matter the Tribunal considers relevant.
9	Section 549(2)(o) entitles a landlord to seek termination where “the premises are, immediately after the termination date, to be occupied – 
(i)	by the landlord; or
(ii)	in the case of a landlord who is an individual, by the landlord’s partner, 
	son, daughter, parent or partners parent or another person who normally 
 lives with the landlord and is wholly or substantially depended on the 
 landlord.”
The evidence
10	In the course of the hearing it was disclosed that the landlord does not seek to occupy the premises as a residence. The intention of the landlord is to use the premises for holiday purposes for up to three weeks. Thereafter the intention is that the premises will be relet.
11	This information came to the notice of the Tribunal in response to the tenants’ question to the agent asking if the landlord would consider extending the date for termination, and also allow the tenants to enter into a new tenancy agreement with the landlords when the landlords had completed their holiday.
12	The agent disclosed that the landlords were likely to require the premises for three weeks.
Discussion and findings
13	The issue for the Tribunal was whether the landlord’s intentions were consistent with the grounds on which the Tribunal might make a termination order, that being section 549(2)(o) of the RT Act as amended by the Covid Act.
14	The RT Act defines the rights and duties of landlords and tenants of rented residential premises.
15	Section 258 of the Act was the provision previously available to landlords wishing to occupy their rented premises.
16	Under section 264 of the RT Act a landlord or person acting on behalf of a landlord who obtains a possession under section 258 was prohibited from reletting the premises for use primarily as a residence before 6 months after the date on which the notice is given under that section. Section 549(8) of the RT Act states that section 264(1) applies as if that section also included a reference to an order made under section 549 on the basis that the Tribunal is satisfied of a matter in subsection (2)(o). The Act clearly serves to restrict the conduct contemplated by the landlord in this type of application.
17	The significance of section 264 is the expectation that landlords who seek to terminate an agreement on the grounds that they intend to occupy the rented premises on more than short term basis.
18	It is incumbent on the Tribunal to interpret the Act in a way which is consistent with its purposes. The ordinary meaning of “occupy” is to “inhabit” or to “live in”.
19	Given that, was I satisfied that the landlord’s intention was to “live in” the rented premises? Was it sufficient that the landlord intended to stay in the rented premises for a few weeks as a holiday? In my view, a short vacation stay is not consistent with the purposes of the Act and “live in” has a different meaning to “staying in”. A place to live as a residence, is different from a place to stay. Combining these considerations, I concluded that the landlord did not intend to “occupy” the rented premises and that the grounds for termination under section 549(2)(o) were not made out.
20	In the event that I was wrong on that point, I was not satisfied that a termination order was reasonable and proportionate as required by section 549(1)(b). The landlord entered into a tenancy agreement for a fixed term intending to terminate it so that he could use it for a short period over the summer and then relet it. The landlord’s agent’s evidence was that this had occurred previously and was the landlord’s expectation. It was proposed to me to be considered acceptable because the tenants were aware that they would have to leave at the end of the fixed term.
21	However, for the landlord to have the occasional use and benefit of the rented premises, means that the tenants were being required to find new rental accommodation and bear the costs and disruption associated with that. Potentially paying rent for two premises while they relocated, utilities costs and disruption. This placed a disproportionate burden on the tenant. Displacement of the tenants from their home in circumstances where they clearly wished to stay, for the landlord’s holiday purposes, is not reasonable and proportionate, nor consistent with the intent of the RT Act.
22	Finally, there were other options available to the landlord to enable him to have a vacation, without compromising the tenants ongoing security of tenure, such that a termination order was not reasonable and proportionate in the circumstances.
23	For the above reasons I dismissed the application for a termination order.

S. Burdon-Smith
Senior Member