Commonwealth Bank of Australia v Montebello & Anor

The Issue

An application for possession of a rented property by a mortgagee Bank was dismissed because the Bank addressed the Notice to Vacate to "The Occupier (s)" instead of to the Tenant.

What Happened?

The owner of a rented property defaulted on payment of a mortgage. The Bank was entitled to exercise a power of sale. As the Bank did not know the identity of the Tenant, it addressed the Notice to Vacate to "The Occupier (s)".

The Tribunal found that, although being the "standard practice" of banks to address unknown tenants as "the occupier", it was "bad practice". The Tribunal dismissed the application for a possession order on the basis that the Bank had not complied with the statutory requirement to address the Notice to Vacate "to the tenant", pursuant to Section 319 of the Residential Tenancies Act.

It remains open as to whether using the words "to the tenant" would be sufficient, or whether the tenants' names are required to be specifically listed. Although not being a question before the Senior Member, it was suggested that a name would be required.

Practical Tip

If assisting in the issue of a Notice to Vacate, be sure to address it to the Tenant(s) and include their names. Anything less is technically "not valid".

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The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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