A common question that has been circulating in the lead-up to the Residential Tenancies Amendment Act 2020 coming into effect:

Whether a tenancy at a trust-owned rental property can be terminated under s 51(1)(a)?

The current s51(1)(a) requires the landlord to give a 42-day notice to terminate if the owner or any member of the owners’ family intend to move
into the property as a principal place of residence. The amended section increases the notice period to 63 days and requires that the owner/member
of the owners’ family move into the property within 90 days of termination and uses it as the principal place of residence for at least 90 days.

(Two things to note: The section owners not landlords*. The Amendment broadens the definition for ‘member of the landlord’s or owner’s family’.
)

As many rental properties are held by companies or trusts for asset protection and tax purposes, the natural inquiry then is whether tenancies of company-owned
or trust-owned properties are capable of being terminated under s51(1)(a). 

In the case of company-owned properties, the answer is fairly straight forward. A company is a standalone entity that is separate and distinct from its
directors and shareholders. It is incapable of having family members. Tenancies at company-owned properties cannot be terminated under s51(1)(a). 

The same logic does not apply comfortably to trust-owned properties. On a strict interpretation, a trust is a ‘bundle of rights’; rights and bundles are
incapable of having family members so s51(1)(a) should have no place in a trust-owned tenancy. But what about trustees who are beneficiaries and their
family members who are also beneficiaries of the trust? The right answer becomes a lot less clear. 

To complicate the matter more, the Tenancy Tribunal has been inconsistent...