Landlord who 'controlled' tenant's domestic life must repay bond, tribunal orders

Sally Xu has been ordered by the ACT Civil and Administrative Tribunal to repay Darcy Mitchell $680.

The tribunal rejected Ms Xu's application against Mr Mitchell's bond for unmet cleaning costs and found her actions while Mr Mitchell was her tenant were "probably unlawful".

Senior tribunal member Allan Anforth found Ms Xu "engaged in a series of unlawful conduct that could have resulted in a sizable award to [Mr Mitchell] had he chosen to pursue that path".

Mr Mitchell entered an oral agreement with Ms Xu in December 2019 to rent a bedroom in a three-bedroom house owned and occupied by Ms Xu for $170 a week.

The tribunal heard the so-called agreement included a four-week notice period for breaking the lease, and the bond was not deposited with the ACT Revenue Office.

The tribunal heard the agreement included complying with house rules, which included not having visitors present without Ms Xu's permission. Ms Xu told the tribunal previous tenants had understood and agreed to the terms.

When Mr Mitchell moved in, he was sleeping in the living room.

Later in December, 2019 Ms Xu told a guest of Mr Mitchell's to leave because the guest did not have permission to be in the house.

In January, Ms Xu's daughter and her partner moved into the living room while Mr Mitchell shifted to one of the bedrooms.

In February, Ms Xu told Mr Mitchell he needed to leave the house for two hours without an explanation. The tribunal heard Ms Xu held an opening to find a buyer for the house during this time.

Ms Xu also told Mr Mitchell she would charge him an extra 40 cents a day for his utility bills because he was the only one in the house who used the fan. The tribunal found imposing separate utility charges was probably unlawful because Mr Mitchell's room was not separately metered.

Mr Mitchell told Ms Xu on February 17 he would break the agreement on February 28. Ms Xu said she would deduct 11 days of rent from the bond for the outstanding part of the four-week notice period.

Mr Mitchell lodged an application with the tribunal on February 21 to seek a full refund of his bond.

When Mr Mitchell tried to leave the house on February 27, Ms Xu blocked access to his room and possessions. An argument between Mr Mitchell's mother and Ms Xu's daughter prompted police involvement.

Ms Xu denied she had changed the locks or locked Mr Mitchell out of the house.

In a statement filed with the tribunal, Ms Xu claimed Mr Mitchell owed $41.50 for cleaning products and $60 for failing to clean three times according to a house roster.

Ms Xu later revised her claim to $140, which included failing to complete an end-of-lease clean.

Mr Anforth said in a written decision published earlier this month Mr Mitchell should have cleaned the room before he left. "But the unlawful lockout by the respondent [Ms Xu] deprived him (and his mother) of the opportunity to do so," he said.

Mr Anforth said he could not accept the agreement was either a formal residential tenancy or occupancy agreement - and was therefore not inclined to award Ms Xu any amount of Mr Mitchell's bond for the unpaid cleaning costs.

Mr Anforth said those agreements guarantee a tenants' right to have access to a premises as a home, considered to the centre of gravity of one's domestic life.

"It is difficult to define the concept of a 'home' with precision, but the present Tribunal finds that the degree of control exercised by the respondent over the applicant's domestic life was bordering on 'parental' and would be offensive to most adult persons to the point that he was not granted the right to use the premises as his 'home'," Mr Anforth said.

Mr Anforth referred Ms Xu to the tribunal's registrar over her assertion she had never deposited a tenants' bond with the ACT Revenue Office.