Threats and intimidation

Possession for threats and intimidation

Under the new s 91ZK of the Residential Tenancies Act 1997 (Vic), a residential rental provider may give a renter a notice to vacate if:

‘…the renter or any other person occupying or jointly occupying the rented premises has seriously threatened or intimidated —

            (a)        the residential rental provider or the provider’s agent; or

            (b)        a contractor or employee of a person referred to in paragraph (a).’

Section 91ZK(2) provides that the notice must specify a termination date that is no less than 14 days after the date on which the notice is given.

For information on notices to vacate in general and options to challenge them see Checking notices to vacate.

Equivalent ‘threats and intimidation’ notice to vacate provisions apply to rooming houses (s 142ZD), caravan parks (s 206AS) and Part 4A sites (s 207Y). There is no equivalent provision for specialist disability accommodation (s 498ZX).

What does it mean to “seriously threaten or intimidate”?

Serious threats and intimidation is a new basis for eviction first introduced under the COVID-19 rental laws and continued as part of the 2021 rental reforms. As the provision has newly been inserted into the RTA, there are limited decisions by the Tribunal in respect of this provision and the law is still evolving as to what constitutes “serious threats and intimidation” for the purposes of s 91ZK.

In Eastcoast Housing Association v TUH [2021] VCAT 1269 (Eastcoast Housing), Member Campana found:

‘The words or phrase “has seriously threatened or intimidated” should be given its ordinary meaning. Something that is “serious” must be grave in nature, a “threat” is a direct comment or implication that a person will be physically or mentally harmed and “intimidation” is conduct that frightens or scares a person to fear for their safety. In my view the conduct complained of, whether it be a threat or intimidation, must be to such a degree as being serious enough to warrant the “very summary method of terminating a tenancy”. (Smith v Director of Housing [2005] VSC 46 [20].‘

Member Campana found that conduct of screaming, swearing, slamming doors and telling a housing officer to ‘fuck off’ did not constitute a threat. Further, it was not conduct that could be considered grave or serious enough that it would frighten or give a concern for safety in the context of three housing officers leaving an inspection of the rented premises where they were checking up on the renters to see if they were breaching the tenancy. Member Campana stated that this did not make the conduct acceptable and a second incident might well give rise to a complaint of intimidation.

Ippolito v Piacentini (Residential Tenancies) [2023] VCAT 786 concerned alleged threats to harm the real estate agent. Member Campana found that ‘swearing in front of the agent, telling them to ‘fuck off’, advising them that they will not be permitted entry, and suggesting they will have the door slammed in their face’ did not of themselves constitute serious threats and intimidation. The agent was unable to prove on the balance of probabilities that more serious threats of harm were made.       

In Ippolito, Member Campana found that the word ‘seriously’ in s 91ZK applies to both threats and intimidation. At [6], Member Campana found:

‘It is my view that both the threating or intimidatory behaviour must be serious in nature for there to be grounds to give the notice. A purposive and general reading of “seriously threatened or intimidated”, which lacks any separating punctuation yields to this conclusion. Additionally, had the legislators wanted to apply the requirement of seriousness solely to “threatened” they could have made this clear by placing the word “intimidated” ahead of the words “seriously threatened”.’

Note that the contravention of either one (or both) the requirements to ‘seriously threaten’ or ‘intimidate’ would be sufficient to engage this provision.

Decisions under the COVID-19 rental laws

Relevant decisions in relation to threats or intimidation under the COVID-19 amendments to the RTA include:

• Unison Housing v Perkich [2020] VCAT 1249 (Deputy President Proctor) – this decision considers the standard of behaviour constitutes ‘seriously threatening’ employees and the relevance of ability to control behaviour in relation to the reasonable and proportionate test
• Donaldson v Dore (Residential Tenancies) [2020] VCAT 1325 – this decision considers the level of threatening behaviour required to meet the standard of “serious threatened”
• Unison Housing Ltd v DZ [2020] VCAT 1382 this considers what is required to establish that someone “seriously threatened or intimidated” and finds that Unison failed to establish this based the evidence presented.

Guidance decisions from the New South Wales Civil Administrative Tribunal (NSWCAT) decisions

Section 92 of the NSW Residential Tenancies Act 2010 (NSW) provides for a similar basis for eviction where a tenant or any other person occupying the premises seriously or persistently threatens or abuses, or intentionally intimidates or harasses the landlord, the landlord’s agent, or an employee or contractor of the landlord or the landlord’s agent.

In the decision of Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128 at [29]-[35] the NSWCAT Appeal Panel held that “seriousness” for the purpose of the provision is an objective test to be decided on the facts before the Tribunal and stated:

Whether the conduct of the appellant was such that it “seriously” threatened or intimidated the employees should be assessed by objectively considering that conduct and applying the ordinary understood notion of “serious”. If resort is to be had to dictionary definitions to help to understand that meaning, then the Appeal Panel agrees with the appellant’s submissions that ‘grave’ and ‘concerning’ are more appropriate to the definition of seriously in the context of the legislation (at [35])

In the decision of Huang v Sinclair [2017] NSWCAT 9, NSWCAT found that the tenant had engaged in conduct that seriously threatened, abused and intentionally intimidated and harassed the landlord through the tenant’s conduct of persistently banging the internal doors and walls of the premises (where the landlord also resided), using vulgar and abusive language on numerous occasions and shouting loudly and threateningly. The tenant also threatened violence against the landlord.

NSWCAT stated that the words under such provisions are ordinary English words and are to be interpreted and applied giving their ordinary meaning.  ‘Serious’ in this context means grave or concerning; ‘threaten’ means words and actions that harm, hurt, insult, humiliate, degrade and frighten; and ‘intimidate’ means words and actions that frighten, menace, terrify or overbear, for reasons that may include in an effort to make a person behave in a particular way or achieve a particular result.  Whether behaviour will amount to this type of conduct will depend on an objective assessment of the circumstances.

In another NSWCAT decision of NSW Land and Housing Corporation v Kanoun [2016] NSWCATCD 85, the Tribunal found that a single incident where the tenant accelerated a motor vehicle towards the landlord before slamming on his brakes to an abrupt halt was menacing and terrorising enough to amount to conduct that ‘seriously threatened’ the landlord. That matter however was heard in the absence of the tenant and so the Tribunal heard no conflicting evidence or submissions.

Defending a possession order application

Notices to vacate for threats and intimidation are not ‘immediate’ notices, and 14 days must pass after the issuing of the notice before the residential rental provider can apply to the Tribunal for a possession order.

The Tribunal can only make a possession order if (s 330(1)):

• a residential rental provider was entitled to give the notice to vacate (and the notice has not been withdrawn); and
• it is reasonable and proportionate (as defined in s 330A) to make the possession order, taking into account the interests of the residential rental provider, the renter, any co-renters and any neighbours who have been affected or may be affected by the acts of the renter.

In applying the reasonable and proportionate test, the Tribunal must consider (amongst other things) whether any other order or course of action is reasonably available instead of making a possession order: s 330A(h). In making that assessment, it is important to consider the Tribunal’s power under s 332A in threats and intimidation applications to dismiss the possession order application and make a compliance order on its own motion if it considers it reasonable and proportionate and appropriate to do so.  The compliance order may require the renter to remedy the breach and to refrain from committing a similar breach. See Compliance Procedures. Care should be taken in arguing this as a reasonable alternative to eviction as it may create difficulties for a renter at a later stage if they should breach the compliance order.

Director Guidelines and the Reasonable and Proportionate Test

In respect of notices to vacate for threats and intimidation, the Tribunal must also consider any guidelines issued by the Director of Housing when determining whether to grant a possession order supported by a notice to vacate under this s 91ZK (s 330(3) of the RTA). Failure to take into account the Director’s Guidelines may amount to a failure to take into account relevant considerations and constitute an error of law.

Retaliation

A notice to vacate given under s 91ZK for threats and intimidation is of no effect if it was given in response to the exercise or proposed exercise of rights under the RTA: s 91ZZI(3).

Section 91ZZI(3) is very similar in wording to the former s 266(2) RTA.  That section provided that certain types of notice to vacate (issued under the former ss 261 and 263) were of no effect if given in response to the exercise or proposed exercise of rights under the RTA. The Tribunal typically adopted a very strict reading of the words “under this Act” to mean that it was necessary to prove that the notice was given in response to a positive exercise or proposed exercise of rights under the RTA and found that this did not include the exercise of appellant rights under the Victorian Civil And Administrative Tribunal Act 1998 (Vic) arising from the RTA, or rights under the Charter (see Gillen v Zullaphella Pty Ltd (Residential Tenancies) [2016] VCAT 1735 and Gholinezhad v YWCA Housing (Residential Tenancies) [2017] VCAT 996. It is likely a similar approach will be taken in respect of s 91ZZI(3).