A Waramanga couple whose home extension saga dates back to the mid-1970s may soon be the first Canberrans to have their residential lease revoked for failing to comply with its conditions since ACT self-government in 1988.
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If and when the blow falls Paul and Monica Gerondal will join what is, at most, a handful of people who have had their occupancy rights revoked for breaching lease covenants since Territory land titles were first created 89 years ago.
The Gerondals have been fighting a running legal battle with the former National Capital Development Commission and, since 1988, the ACT government over their failure to complete a partially constructed extension to their home and to clean up the block in Yambina Crescent for almost four decades.
Both are now elderly, frail and in ill health. Friends have said Mrs Gerondal's health in particular is very poor.
Caroline Ambrus, a friend and supporter who has worked with the couple for years on a succession of bids and appeals to have ACT government action against them brought to a halt, says they are being victimised for standing up for their rights.
The Gerondals are also in dispute with the Eurobadalla Shire Council on the south coast over a bid to recover up to $450,000 in clean up and legal costs related to a block of land they own at Bingie near Kelly's Lake.
They could not be contacted for comment.
Ms Ambrus said the ACT Planning and Land Authority is seeking to terminate the lease on the Waramanga block because the Gerondals had failed to remove a "bamboo garden" and hadn't completed the extension they originally lodged a planning application for in 1975.
"ACTPLA's power to terminate leases should not be invoked to resolve a longstanding dispute or to assert its authority over minor matters," she said.
ACT property rights are based on Crown leases, not freehold title as was the case in the scenario outlined in the hit movie The Castle. This was done deliberately to facilitate future development given Canberra was the national capital.
The ACT's Environment and Sustainable Development Department would not confirm it was attempting to revoke the Gerondal's lease. ESDD did not deny the claim however.
"Whilst there is no indication of activity on the (Waramanga) site, the planning and land authority has been working within the applicable law to achieve a resolution in this matter," a spokeswoman said. "ESDD cannot comment further on the nature of that activity at this stage."
The Department did say that under the Planning and Development Act (2007) a lessee was given an opportunity to provide a submission as to why the lease should not be terminated; that submissions were then considered and a decision made.
"A financial institution holding the mortgage over the property is by law informed by the ESDD when termination action is taken," the spokeswoman said.
"The finance provider makes their own judgment about whether to exercise their right to terminate the mortgage."
The Gerondals have previously said they had to borrow to pay out $70,000 in legal costs awarded against them to the ACT government some years ago. It is not known if the property is mortgaged.
In the event the lease is terminated, or the land surrendered voluntarily, compensation may be payable.
"Within certain parameters a lessee may be entitled to a financial payment for compensation for loss of the lease (an amount equal to the purchase price or market value whichever is the lesser of the two amounts) and may also be entitled to compensation for improvements on the land," the ESDD spokeswoman said.
"Corporate knowledge within the government indicates that a lease or leases were terminated in the Bruce area in the 1970s however records are not available to confirm this. Academic texts and other government reports suggest terminations since the leasehold system began in 1924 but, again, this is prior to self-government and may not be limited to breaches of lease covenants."
The ACT government has "formally commenced in the past to terminate a Crown Lease for failing to comply with orders and similar grounds under planning laws," ESDD said.
"However, the formal registration of the termination of a Crown Lease with (the) Land Titles Office has not taken place."
This can be because the lessees have complied with the order, the termination has not progressed due to legal proceedings or because a financial institution has stepped in to claim the land as the mortgagee in possession.
Registration of termination is necessary for the termination of the Crown Lease to take effect, the spokeswoman said.