Residential Tenancies Act 2004

Discretion to refuse direction for possession.

118

118.—(1) If the inclusion of a direction in a determination that a party (“the first-mentioned person”) be permitted to resume possession of a dwelling, the subject of a tenancy, would cause hardship or injustice to a person (“the second-mentioned person”) not party to the dispute who is in possession of that dwelling, then the determination may, instead of including such a direction, include—

( a) a declaration that the first-mentioned person was wrongfully deprived of possession of the dwelling, and

( b) a direction that damages of a specified amount be paid by the landlord to that person in respect of that deprivation.

(2) In deciding whether the inclusion in a determination of a direction of the kind firstly mentioned in subsection (1) would cause hardship or injustice to the second-mentioned person, the matters to which regard shall be had shall include—

( a) the length of time the second-mentioned person has been in possession of the dwelling concerned,

( b) any involvement the second-mentioned person may have had in the first-mentioned person being deprived of possession of the dwelling, and

( c) any knowledge the second-mentioned person may have had, before he or she took possession of the dwelling, of the existence of a dispute concerning the right of the first-mentioned person to possession of the dwelling.

(3) The second-mentioned person shall be afforded an opportunity to make submissions with regard to whether a determination should include a direction of the kind firstly mentioned in subsection (1); if necessary, for that purpose, the proceedings concerned shall be adjourned and the second-mentioned person notified of the matter.