Agents get real (part 3)

Here we conclude our review of the Real Estate Institute's 'Real Tenancy Policy', its new statement on tenancy law reform. We got stuck into them last time for some silly arguments they made about the new Act, which was disappointing for us, because they started so well with a strong statement on the physical, psychological and social importance of the human right to housing.

Now, the REI's third and final point. As previously, the REI's blue, we're black.

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[3] Proper resourcing of dispute resolution facilities

REINSW appreciates the role of the Tenancy and Social Housing Divisions of the Consumer, Trader and Tenancy Tribunal in providing access to relatively efficient and cost-effective dispute resolution facilities. Such facilities are vital to the effective operation of the residential rental market in New South Wales.

Well said: the REI's appreciation of the Tribunal is appropriate and much more reflective of reality than the assertion that you hear so often from landlords that the Tribunal is inefficient or helpful only to tenants. As the REI's comment indicates, landlords are in fact a major beneficiary of the Tribunal system; in fact, they are the major beneficiary, with landlord applications to the Tribunal outnumbering those of tenants by a factor of six.

And it is quick, too: on average, the Tribunal gets applications on for hearing 24 days after lodgement, and about three-quarters of all applications are finalised at or before the first hearing.

REINSW is concerned however about some aspects of the existing dispute resolution regime.

It is likely that given the additional compliance obligations under the 2010 Act the volume of applications will increase, with the attendant danger of lengthier delays between application and determination. There is already a tacit omission [sic] in s 88(4) of the Residential Tenancies Act 2010 that current delays are hindering landlords obtaining swift outcomes in the Tribunal.

It is true that the 2010 Act does provide that tenants may apply to the Tribunal for resolution of disputes in relation to things that the 1987 Act does not: for example, where a tenant asks to sublet a spare room and the landlord unreasonably refuses consent. But we don't expect a boom in tenant applications.

On the other hand, there is the potential for a boom in landlord applications in relation to rent arrears, because of new s 88(4). Under the 1987 Act, a landlord may serve a 14 day notice of termination on the ground of rent arrears, and then apply for termination orders - once the 14 days are up. Under s 88(4) of the new Act, a landlord will not have to wait - they'll be able to apply at the same time as they serve the notice (the Tribunal, however, will have to wait until the 14 days are up before it puts on a hearing). Section 88(4) is something that the landlords and agents have been asking for. It has the potential to create an awful lot of useless work for the Tribunal in taking applications and listing matters for hearing when in fact so many matters will never go that far, because on receiving the notice the tenant will pay up.

It's a bit rich to blame any expansion in the Tribunal's workload on 'additional compliance obligations', when a provision of the agents' own asking poses a much bigger source of applications - and useless ones at that.

(Indeed, given the current housing affordability crisis it is likely that the number of applications will increase simply by virtue of the growing number of tenanted properties).

(Hmm... so it doesn't look like landlords will be fleeing the market after all.)

The Tribunal must have necessary additional personnel and other resources to meet growth in demand for its services.

The commitment of additional resources must extend to rural and regional New South Wales. Anecdotal evidence suggests that unacceptably lengthy delays exist in some parts of the State in having matters listed for determination.

More resources for the regions is something we can get behind. A particular problem in rural and regional areas is the venues. All too often the Tribunal uses the rooms of the Local Court, and many tenants, especially Aboriginal tenants, just won't go to a hearing held in a court room.

There has been some disquiet in the industry about apparent inconsistencies in decisions made by different Tribunal members on some of the more common categories of disputes. Such inconsistencies create uncertainty in the sector. One way of minimising the possibility of those uncertainties arising is for more decisions to be available online. Another would be for an increased use of Chairperson’s Directions. Still another would be to allocate tenancy matters to a specialised panel of Members with particular expertise in the area (indeed, it may be appropriate to reinstate a separate Tenancy Tribunal as was the case prior to the formation of the CTTT).

Here's a couple of other things we are happy to support. Where the Tribunal gives written reasons for a decision, it makes them available on austlii, and we'd like to see more of this. And a specialist residential tenancy tribunal is something we've always supported.

And that's it. As we said at the outset of our review, it's generally a more sober contribution to tenancy law reform than previous REI postures. Some of the arguments are flawed, and some are just not backed up by evidence or analysis, but there's also a few things on which we might agree and that initial recognition of the human right to housing is promising.