Housing and Tenancy

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Possession for illegal use

 

For public housing, sections 250A and 250B of the RTA allow the Director of Housing to give a notice to vacate if a tenant commits certain drug- related offences or prescribed indictable offences on the rent premises or in a common area. The section broadens the power to issue notices to vacate by removing the connection between the illegal act and use of the premises.

What happens for drug-related offences in public housing?

Section 250A(1) of the RTA covers certain drug-related offences. The Director of Housing may give a tenant a notice to vacate if, either on the rented premises or in a common area, the tenant has illegally-

(a)    Trafficked or attempted to traffick a drug of dependence; or

(b)   Supplied a drug of dependence to a person under 18 years of age; or

(c)    Possessed a preparatory item with the intention of using the item for the purpose of trafficking in a drug of dependence; or

(d)   Possessed, without lawful excuse-

          (i)     A tablet press; or

          (ii)   A precursor chemical; or

(e)    Cultivated or attempted to cultivate a narcotic plant.

Definitions of some of these terms can be found in the Drugs, Poisons and Controlled Substances Act 1981.

 

Practice tip

 

It is worth noting that section 250A of the RTA:

  • only applies the landlord is the Director of Housing.
  • only applies to tenants (as opposed to residents). The legislation does not cover circumstances where the tenant is alleged to have ‘permitted’ the relevant conduct by a third party.
  • applies to offences that occur either on the rented premises or any common areas provided for the use of tenants.

 

 

What happens for indictable offenses in public housing?

Section 250B(1) creates the possibility that the Director of Housing may issue a notice to evict for prescribed indictable offences. As of July 2010, there are no such prescribed offences, but practitioners should consult the Residential Tenancies Regulations.

Possession for illegal use of premises

Under section 250(1) of the Residential Tenancies Act 1997:

A landlord may give a tenant a notice to vacate rented premises if the tenant has used the rented premises or permitted their use for any purpose that is illegal at common law or under an Act.

What is illegal use of premises?

Section 250 of the RTA does not talk about illegal conduct in isolation. Instead, it connects two separate ideas:

(1) use of the premises, and

(2) for an illegal purpose. Considerable thought has been given to the way in which the word "use" interacts with 'illegal purpose'

Have other decisions considered this matter?

IMPORTANT: fact situations cases referred to below may now fall under section 250A of the RTA because they relate to drug cultivation and drug trafficking. Despite this, these decisions remain relevant to the extent they clarify the issue of ‘illegal use of premises’ as referred to in s 250(1).

 

McAuliffe v CTTT

 

In McAuliffe v CTTT [2004] NSWSC 824 (McAuliff) the Court undertook to examine the phrase "use of the premises for an illegal purpose." In this case it was found that the plaintiff had established a hydroponics system for the purposes of cultivating cannabis for personal use. It was noted that the hydroponic set had light sources together with a fan and irrigation system. In arguing to overturn the possession order the plaintiff relied upon comments made by Pigeon J IN R v Rintel:

I would, however, see some limitation in the meaning of the verb "to use" when it is used in the context of land... If one is having a bath, then the bath itself is being used for that purpose. Ordinary speech would indicate that the bathroom is also being used for the same purpose... However I do not consider that it would normally be said, in ordinary speech, that the land on which the bathroom is situate is being used for the purpose of having a bath. If, therefore, the scales are used in a room for weighing, the scales are being used but I do not consider it could be said, if that was the only operation, that the land was being used. One of the factors to consider is that the act of weighing can be performed anywhere and does not need any particular place...'

In construing "use", Master Harrison states in McAuliff that:

The word "use" is not defined in the RT Act. The word "use" should be given its natural and ordinary meaning. The ordinary meaning of the word "use" is utilization or employment for or with some aim or purpose - Shorter Oxford English Dictionary. The Macquarie Dictionary definitions of "use" include "to put into service", to "avail oneself of", "to exploit to one's own end" and "to apply to one's own purposes".'

Despite adopting a strict definition of 'use' the plaintiff was nevertheless found to have used the premises for an illegal purpose. Ultimately the Court overturned the possession order made by the Tribunal on the basis that in exercising its discretion it had arrived at a 'harsh and plainly unjust' result.

 

The TP decision

 

In Director of Housing v TP [2008] VCAT 1275 (the TP decision), VCAT made a number of comments in relation to the issue of whether the premises had been used for an illegal purpose.

At paragraph 32 the Member stated that it is 'helpful to think about the continuum. It is clear from the cases that the question of whether or not it can be said that premises have been used for an illegal purpose depends on the circumstances of the illegal activity or action, not just on whether illegal activity occurred. If the rented premises are central and essential to the illegal activity, they are being used for an illegal purpose.'

In the TP decision the Tribunal applied the concept of a continuum of illegal use to a number of examples. At paragraph 32 the Member stated that 'At the far end of the continuum, the presence of a visitor on the premises who happened to have a flick knife or an ecstasy tablet in his or her pocket does not constitute illegal use.' The Member also suggested that illegal use would not exist where tenants use the protection, anonymity and shelter provided by rented premises in order to commit violence against others.

 

The TK decision

 

In this decision the Director of Housing sought to evict a tenant on the basis of 3 separate instances of drug trafficking:

  1. A police operative met and purchased heroin from the tenant at the stairwell just outside rented premises of the tenant
  2. The tenant met a covert police operative at the door of his flat and after receiving $180 he handed the operative a silver foil containing heroin.
  3. The tenant met the covert police operative on the 5th floor of the apartment building (where the rented premises were located) and purchased heroin.

VCAT also noted that a search warrant was executed at the premises and no scales or drug paraphernalia were found on the premises. In ruling on whether these circumstances amounted to illegal use of premises, Deputy President Lambrick stated:

'I am persuaded that it is not sufficient that the premises are merely the scene of the commission of the crime. There must be a deliberate use of the premises for the illegal purpose. There must be some real connection between the use of the rented premises and the illegal activity alleged. It is not sufficient that there be a passing connection to the rented premises. The purpose of the legislation is not to re-punish tenants for crimes they commit, but to prevent rented premises from being used for a purpose that is illegal...'

The Deputy President also stated that 'I have not been persuaded that s 250 is restricted to circumstances where the use of the premises is an essential element of the offence.'

 

 

How should 'illegal use' be applied?

Certain decisions of VCAT have interpreted section 250 of the RTA as a broad provision that permits eviction on the basis of a minimal connection between illegal activity alleged and the premises

There has not been a judicial finding in relation to section 250 of the RTA. The Clinic considers that the intention and wording of section 250 is not satisfied in such circumstances. In our view, this section requires a connection between the illegal use and the premises as an element of the offence. It would not be sufficient for the premises merely to be the scene of an act preparatory to an illegal activity, or for the location of the act to have nothing to do with the illegal activity, beyond merely being the scene of its commission.The Clinic considers the word 'use' should be given its natural and ordinary meaning. 'Use' should be interpreted to require "to put into service", to "avail oneself of", "to exploit to one's own end" and "to apply to one's own purposes".


[2004] NSWSC 824, this decision was made in context of proceeds of crime legislation

Director of Housing v TK (VCAT reference R2010/11921) at p 92

Ibid, at p93

See eg, Director of Housing v Joseph Shanmugam 14 August 2009, Director of Housing v Simmons, Director of Housing v T (Residential Tenancies) [2009] VCAT 1732

Schneiders and Sons Limited v Abrahams (1924) 1 KB 301, Majala Pty Ltd v Elias [1949] VLR 104