Wednesday, October 26, 2011

Tenancy culture studies: Housos

Following the premiere on Monday of SBS's long-awaited/dreaded new series, Housos, the Institute of Tenancy Culture Studies convenes a colloquium of the Brown Couch's regular correspondents: Chris, N.C. and Leo.

Chris: Housos depicts life in public housing in suburban Sunny Vale, with Shazza and Dazza and their assorted friends and enemies – notably Franky, played by the show's mastermind, Paul Fenech. We're told by series narrator, pokie-lounge lizard Wazza, played by Ian 'Turps' Turpie, that Franky is the sort of fellow who has very good luck, and very bad luck, while Shazza and Dazza seem more consistently unfortunate. So, in this week's premiere, Dazza attempts to acquire a disability for the purposes of qualifying for the pension, while Franky literally falls into one, after resisting arrest and fleeing from the police, then stealing a fire engine, then sparking a rampage by the local Lebanese gang. (Franky loses it all when he administers an incriminating beat-down on his ex-fiancee's de facto in the Centrelink car park.)

Ostensibly a madcap satire, Housos transcends the conventions of the genre, effecting a shift in the satirical subject from the characters to the viewer. It ridicules not just its characters, but our own recognition of, and implication in, the stereotyping on which the humour depends. In this sense Housos is, so to speak, a post-satire -

No, sorry, I can't go on in this vein. The show is rubbish.
I wish it wasn't. I wanted to have something other than the predictably negative reaction to it, but Housos is so predictable, and so bad, that it deserves the predictable response.

is a tedious rehearsal of old insults and stupid antics. It's just wretchedly unfunny.
What did you think, Leo?

Leo: Housos isn't for the latte-sipping yuppies. Paul Fenech says it's by, for and with the "real people", the ones who are never shown on TV because the rest of us don't like them. Fenech knows his audience, and he plays to them. When his first series, Fat Pizza, started, it was beloved in the first place by the wogs, the young men in cars who've maybe watched Scarface a few too many times, who've listened to Tupac a few too many times.

He's continued this tradition here, along with enough hangovers of the older shows to retain the audience built in Pizza (his one-man revival effort of the word stooge cracking on after more than a decade). Is it a high-brow, intelligent comedy that Oliver Wilde fans will quote to each other as wittily constructed repartee? No, no it's not. This tickles the funny bone with just a little bit of petrol, a little bit of flesh, and a lot of crude humour. That may be exactly what his audience is after.

The gallow's humour of those faced with a horrible reality is often incomprehensible by observers. The Brown Couch has discussed the work disincentives that "Housos" face, the inadequacy of the benefits and the hoops recipients have to jump through. Is it surprising this becomes fodder for comedy? It's a ridiculous situation after all. There seems to be no political will to effect change, and there's no shortage of people willing to decry the residents of Housing as various forms of lazy, undeserving and so on. Maybe that's the way to see this show – it appeals to and deals in the life that the rest of Sydney and Australia don't want to deal with. It's the laughter of the hopeless, perhaps even the voice of the voiceless.

Chris: Oh come on, Leo! Housos employs the same sort of humour as dwarf-throwing, and is probably enjoyed by the same people.

N.C.: Well I'm not too sure about any dwarf-throwing, Chris, but look I agree. It's shaping as a series of predictably unfunny cheap shots and tired insults that have ultimately diminished my opinion of Fenech. I have struggled to find something to redeem him, given the calibre of his previous work Pizza, but I keep coming up short. There is nothing funny or clever about Housos....

It's a misguided piss-take on how 'poor people' live – but it could so easily have been something good. It could have – no, it should have taken a shot at the very bureaucracies that routinely fail to alleviate the kind disadvantage it pokes fun at. During the first episode we saw enough glimpses of incompetent cops, ambivalent Centrelink workers and a dysfunctional public health system to get a sense of just how badly Housos misses the mark. Instead of shining a light on the maze of absurdities and inconsistencies that are inherent within our welfare system – the kind of thing that would make you laugh if it didn't make you cry – we get half an hour of name-calling, money-grubbing, substance abuse, child neglect.... Need I go on?

Chris: You know I wanted it to be better, but I'll admit, going into the show I wondered: could this sort of show – given its subject (public housing tenants), given its intended approach (sharp, skewering humour) – ever be funny? And as I watched Housos, desperately wishing I was watching something else, I thought of other similar attempts at humour. Good Times (same subject) was pretty funny, though the approach is a lot more friendly. Andy Capp was occasionally funny (when it wasn't making light of domestic violence), including when it skewered Andy's own conduct. Then I thought of other recent shows, not about public housing tenants, but about other 'little guy' subjects – like Kath & Kim, The Office and, yes, Fat Pizza – which were cruel to their subjects, and funny. They worked because they exposed pretension, vanity and other foibles that all of us recognise, including in ourselves.

As you say, Leo, public housing has ways of making people poor, and to insist that there must be no joking about public housing is to inflict an appalling additional degree of poverty upon public housing tenants. And I'm sure, like you N.C., that the 'situation' of public housing can elicit responses like pretension, vanity, greed, cunning and other human qualities that are the stuff of comedy. So to answer my own question, I think Housos could have been funny – which makes its failure all the more disappointing. If I had to say something nice about it, it would be that the stunts were OK.

N.C.: If you want to see how this subject matter can be dealt with far more sensibly and sympathetically – heck, I'll even go so far as to say humourously – go and track down a copy of the British series Bread. Now there was a household of scheming Housos, who could do whatever it took to stay above the bread-line... and still have you wanting them in your neighbourhood.

Leo: Don't forget the immensely popular UK series Shameless, a comedy-drama that also focuses on a public housing family. Occassionally violent and crude, and yet it clearly connected with a wider audience than just the housing estate dwellers it is based on.

On the subject of the audience: Fenech has created a dedicated following around this brand of humour and I expect a large number of those fans to follow him here. His inclusion of characters very similar to previous shows will certainly help with that. At the same time, he also proclaims that the show is for the people living in public housing. Angry Anderson claims that one third of the cast grew up in housing commission and are simply portraying themselves.

N.C.: I keep thinking to myself, "look it's only been the one episode. Maybe we should reserve our judgement for another couple of weeks. After all, these are the guys who brought us Pizza. When it comes to stinging social satire and holding up a mirror to PC backlash, they've got runs on the board. It's possible that they've got something up their sleeves, and will surprise us next week..." But I'm not sure I really believe that. Because with Pizza you had a bunch of self confessed "ethnics" making jokes about ethnic stereotypes. With Housos they've moved into an entirely new arena, and it's one that they appear far less comfortable with.

Chris: I see next week's show is about Dazza getting Shazza to hospital to give birth – a jesting jab at the feckless fecundity of the poor. Count me out.

N.C.: Certainly they're missing the key ingredient of self-reflection that made Pizza so marketably funny.

Leo: Pizza, at its core, was about sticking it to the stooges – the customers, the boss, the cops, anyone in authority who didn't understand what really mattered to the heroes. The core here is the same, but the range of authority figures has grown as the characters are further down the ladder. That finger-in-the-air attitude has appealed to Fenech's fans for over a decade, I think it will continue here.

N.C.: I'll give it one star.

Chris: Me too. One star. For the stunts.

Leo: The jokes, the stunts and a fair number of the characters could all be lifted directly from Pizza – and that's the way the fans like it. Three stars from me.

Tuesday, October 25, 2011

Spruiker spooked

Washington Irving's short story, The Legend of Sleepy Hollow, in which the Headless Horseman dashes about on autumnal New York nights, is a Halloween favourite.

It's creepily fitting, then, that a week out from the holiday another rider is losing his head.

Terry Ryder, property spruiker, hurls the following pumpkin at the campaign group, Australians for Affordable Housing, in the business pages of The Australian:

SOME activists see property investors as the great enemies of first-home buyers.
Their core belief, unsupported by evidence or logic, is that homes are unaffordable because investors drive up prices.
Australians for Affordable Housing appears to think that nobbling investors will strike a telling blow for first-time buyers: remove negative gearing and increase capital gains tax, and homes will be affordable.
Our own modest attempt at furnishing some evidence and logic about negative gearing's contribution to the high cost of housing can be found here. Ryder, on the other hand, supports his argument by referring to a survey of opinions of first home buyers (conducted by an originator of residential mortage-backed securities) as to whom they're having to outbid.

Evidence and logic? Riiight.

The argument itself is a strange one too. Ryder says that it's not investors (we call them speculators) who are pushing up prices, it's other owner-occupiers. We might agree up to this point: as we've noted previously, the tax preferencing of owner-occupied housing is at the heart of house price inflation.

But then Ryder makes an abrupt about-turn: he says that to 'attack Australians who buy rental properties' is to 'undermine the financial base of 70 per cent Australians' [ie those who own a house].

Sounds like those speculators have been pushing up prices after all. Good thing too, says Ryder: there's a 'strong national interest in having people invest in this way.'
There's heavy pressure on people to plan for a self-funded retirement, given the stress our ageing population is placing on the taxation and welfare systems.
Let's be clear: as an investment strategy, negatively geared property speculation is not 'self-funded'. It is 'funded' by a greater fool coming along to pay more for the property than the speculator paid (being the price paid to the person from whom they bought it, and interest to the bank from which they borrowed the money) – and every other tax payer who foots the public services bill that the negatively geared speculator is allowed to cast aside.

In fact, about $6 billion worth of the 'stress our ageing population is placing on the taxation and welfare systems' comes precisely from 'having people invest this way'!

Ryder wheels about again. Too bad, he warns:
There are limited options. Buy shares or buy real estate. Superannuation alone won't cut it.
No, actually, just buying real estate won't cut it (particularly if, as Ryder says, the population is ageing – are there going to be enough greater fools to buy all the property?). Here's another option: put your money (or, if you're game, your credit-worthiness and some borrowed money) to something that makes more than it costs. Something productive.

A final pass by Ryder:
The anti-property voices in the community not only wish for a big devaluation of our homes but are lobbying government to make it happen.
It's an extraordinarily irresponsible stance...

No, actually, encouraging people to think that they can fund their retirements by unproductive speculation in real estate on the basis that prices will keep going up has a much greater claim on 'extraordinary irresponsibility'.

For a much more sensible discussion of the issues than provided by Ryder, follow this link to a recent piece by Australians for Affordable Housing spokesperson, Sarah Toohey.

Well done, Australians for Affordable Housing: you've got at least one spruiker spooked.

Friday, October 21, 2011

Maintaining relations and tenants' alterations

By now we expect you will have received and devoured the latest edition of Fair Trading NSW's monthly e-newsletter on all things residential tenancy, The Letterbox. If you haven't already done so, now is as good a time as any to sign up to have it delivered straight to your inbox.

Each month The Letterbox undertakes to answer questions from tenants and landlords about a particular aspect of NSW's renting laws. We were particularly interested in the current issue, because it covers alterations to premises. We were rather hoping that Fair Trading would mention some of the likely implications for tenants and landlords of the coming rollout of the National Broadband Network... Alas, they did not.

But we did get an interesting little snippet that's caused a bit of a stir over here on The Brown Couch. The Q & A session provides:

What responsibility does the landlord have during the tenancy to maintain alterations made by the tenant?

None. Unless the landlord agrees otherwise, the tenant is responsible for the cost of installing and maintaining any fixtures they add to the premises.

On the face of it, we can't be so sure.

The common law of property says that once a tenant affixes an item to real property it forms part of the 'landlord's inheritance', until such times as it is properly removed by the tenant (ie according to a set of developed rules) [Bain v Brand (1876) 1 App Cas 762]. Put simply, a tenant retains a limited right to remove a fixture that they have added, but while ever it remains affixed it is the property of the landlord.

The Residential Tenancies Act 2010 does not include anything that would unambiguously displace this common law principle, and it offers no clear guidance on the maintenance of tenants' fixtures.

The Act does set out some pretty clear rules about how and when a tenant can install or remove a fixture. Included in these rules are provisions that state:

66(4) A fixture installed by or on behalf of the tenant, or any renovation, alteration or addition to the residential premises by or on behalf of the tenant, is to be at the cost of the tenant, unless the landlord otherwise agrees.

67(3) Despite subsection (1), a tenant is not entitled to remove a fixture without the consent of the landlord if the fixture was installed at the landlord’s expense or the landlord provided the tenant with a benefit equivalent to the cost of the fixture.

These provisions could be interpreted to displace the common law - but for this to be so we'd need to accept a broad definition of the word "cost". If it refers to ongoing costs of upkeep, as well as the one-off cost of installation, then Fair Trading's contention about maintenance responsibilities of tenants' alterations could hold true. But this may be a bit of a stretch, because neither of these provisions contemplate the ongoing maintenance of a fixture - they deal only with installation and removal.

The Act also sets out the landlord's repair obligations - in which the definition of residential premises includes:

everything provided with the premises (whether under the residential tenancy agreement or not) for use by the tenant (s62).

Perhaps this definition displaces the common law, by excluding tenants' fixtures from the definition of 'residential premises'. If this is so, then the landlord's repair obligation would not extend to tenants' fixtures, because the obligation is to maintain the residential premises, as defined to exclude anything the landlord has not provided, in a reasonable state of repair. Accepting this exclusion would require a narrow take on the phrase "provided with the premises" - that is, an alteration made by the tenant, with the landlord's consent, would have to be seen as something that was not "provided with the premises". It is not clear that this interpretation could be universally applied to every conceivable set of potentially relevant circumstances.

There is one thing we can be sure of. The Act says:

63(3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant’s breach of this Part.

Clearly, a tenant who alters premises without first obtaining the approval of the landlord cannot expect the landlord to help out with repairs and maintenance of that alteration...

But what of the tenant who does obtain the landlord's approval? Indeed, how will a landlord respond to a request to alter premises if they believe they may be liable for its upkeep?

The key message from all of this, it seems, is to make sure you reach a complete agreement with your landlord before you make any alterations to your premises. In particular, be clear from the outset whether you intend to one day remove the fixture, or to leave it behind at the end of your tenancy. Because if you are to ultimately make a gift to your landlord, it would be wise to factor in and reach agreement as to who will be responsible for the ongoing upkeep of your alteration during the course of your tenancy.

Which really brings us back to The Letterbox Q & A.

Unless the landlord agrees otherwise, the tenant is responsible for the cost of installing and maintaining any fixtures they add to the premises.

This may simply be a case of Fair Trading taking an optimistic view of the law as it stands. Sure, it's easy to explain, but we bet it's even easier to sell to all those landlords who cried foul when the idea of "no unreasonable refusal for minor alterations" was first raised. If it is as simple as all that, we'll be surprised. Then again, perhaps we're just being picky.

Regardless, it's always a good idea to be clear on what you're agreeing to whenever you set out to alter the status quo.

Tuesday, October 11, 2011

Tenancy Culture Studies: Let's Lynch the Landlord

The Institute of Tenancy Culture Studies welcomes guest lecturer, Wazdog (aka 'The Illawarra Wheeler'). Wazdog has plied his trade as a Tenants' Advocate with the Illawarra and South Coast TAAS for more than half a decade. Also a renowned commentator of all things musical in his hometown, Wazdog occasionally branches out and mixes business with pleasure...

Today, Wazdog kicks off the conversation with a look at The Dead Kennedy's iconic anti-hit 'Let's Lynch the Landlord'.

Throughout history, music has been used to express the concerns of the common wo/man. From the subversive work songs of the African American slaves in the nineteenth century to the heavy metal/rap fusion of Rage Against the Machine, musicians have attempted to connect with their audience with lyrical themes they can relate to. No better example of this exists than perhaps the great traditional folk song 'Worried Man Blues' popularised by The Carter Family in the 1930's and later the dust-bowl balladeer Woody Guthrie. A simple chord progression is supported by the simple but effective lyric "It takes a worried man to sing a worried song."

Not surprising then that popular music is littered with landlord and tenant references. The struggle of the working man against the greed of land-owners has been the inspiration behind many a song. But few are as abrasive and confrontational as Dead Kennedy's 'Let's Lynch the Landlord'.

Fronted by the outspoken prankster Jello Biafra, the band courted controversy in the early-80's with their cover-art offending future Presidential candidate Al Gore's wife Tipper, prompting the establishment of the Parents Music Resource Center (PMRC) - the group responsible for all those 'Parental Advisory' stickers slapped on albums deemed unsuitable for minors.

Taken from their 1980 debut album Fresh Fruit for Rotting Vegetables, 'Let's Lynch the Landlord' expresses a sentiment that many tenants in NSW feel, though thankfully few act upon.

Throughout the song Jello details problems with his tenancy. It's the usual smorgasbord of tenancy complaints: lack of running water, inadequate heating, a leaking roof, an oven that smells like a death-camp, disturbance from neighbours (ironic coming from a man who's made a career out of disturbing the peace), vermin, unauthorised access, and - the pièce de résistance - an excessive rent increase.

To remedy the problem, Jello urges his flatmates (along with his audience) to attack the landlord, mob style.

Now, I'm not too familiar with tenancy law in San Francisco circa 1980, but in NSW circa 2011 such a response to a poorly maintained property could see you lose your tenancy and quite likely attract criminal charges.

Though street justice is oft times tempting in a landlord/tenant relationship, the reality is that Jello would do better to seek a remedy through appropriate dispute resolution processes. In NSW this is the Consumer, Trader & Tenancy Tribunal (CTTT) - the arbitrator for tenant/landlord disputes in NSW.

All the matters raised in Jello's ode to his landlord may be dealt with in the CTTT, usually without the spilling of blood.

Taking matters into his own hands however, will only see Jello's problems worsen, as the landlord (if s/he survives the lynching) could apply straight to the Tribunal, seeking an order for termination due to injury to the landlord by the tenant.

And if the landlord was successful then poor old Jello would need to find himself a new pad for him and his punk buddies to hang out in. Of course, if convicted of assaulting the landlord, Jello may even find that his new pad comes courtesy of Her Majesty and that the phrase "unauthorised access" takes on a whole new meaning.

Thursday, October 6, 2011

Strata Wars (feat. @MyFlatChat)...

We recently spotted a tweet from @MyFlatChat that said "Tenants can take Owners Corps to Fair Trading and CTTT over common property. They're 'interested parties' under Act" - along with a link to a brief discussion about repairs to a noisy lift that had taken place over on the Flat Chat forum.*

We entered into a bit of a dialogue over this because we don't think tenants in strata units should be taking an Owners Corporation to the CTTT over repairs - they should be taking the landlord instead!

Perhaps we should explain...

Owning a strata unit means sharing many things with others - like walls, guttering, walkways, stairs... essentially anything that is "common property". When one of these things wants fixing, it's up to all the owners to pitch in and make good.

The mechanism by which this happens is the "Owners Corporation" - once known as the "Body Corporate" - and the rules by which this sometimes disparate group are made to play nice are found in the Strata Schemes Management Act 1996. The Owners Corporation is, quite simply, the owners in committee... and being required to talk to each other on a regular basis is seen as a good way to keep the peace, and have the place running smoothly. And everybody can be happy.
Well, it's a good theory.

We really must stress that there are ways of making an Owners Corporation far more complicated than the rather naive picture we've just painted - and no doubt our mates over at Flat Chat can tell you more about that. But, on our simple analysis, what happens when things don't work out?

The Strata Act sets out a process for the resolution of strata scheme disputes in the Consumer, Trader & Tenancy Tribunal. It involves, in the first instance, mediation. If that doesn't work, the matter can progress to adjudication. If adjudication doesn't satisfy the disputing parties, they can appeal to the Tribunal, where the matter can be determined and orders can be made. Each of these things will cost you over $70.

Now, technically a tenant, who is not an owner, can take an Owners Corporation to the Tribunal over repairs to common property, because they are considered an "interested party" under the Strata Act. But when you look at what's involved in the strata division, why would you when there is a sensible alternative?

Compare the above process to that for tenancy disputes - you apply for a hearing in the tenancy division - for $36 - and you get one... and even if you have to have a crack at a conciliation conference in the meantime, if you can't settle the matter you will usually get your hearing pretty soon after.

"Aha!" I hear you say... "but if it's common property, then that's a strata issue, and you can't take the Owners Corporation into the tenancy division of the Tribunal. That place is strictly for landlords and tenants! Have you lost your mind?"

Well, no, actually. Of course, you'd be correct in saying you can't sort out strata issues in the tenancy division, but you've got to admit, it is an ideal place to take a tenancy dispute.

If you're a tenant in strata, it should be your landlord who takes the Owners Corporation to task over repairs to common property. It is, after all, your landlord who has the relationship with them, not to mention a longer-term interest in the success of the strata scheme. Tenants can ask nicely for repairs (and should do so in writing), but when it comes to turning the screws on a recalcitrant Owners Corporation through a legal process, things are best left to the landlord.

If the landlord doesn't get on your side, then they're in breach of obligations to you under your residential tenancy agreement. On that basis, you can take them into the tenancy division of the Tribunal. Among other things, you can ask for an order that they take the Owners Corporation to the strata division - or at least begin the process by commencing mediation.

... and that's how you get your lifts fixed. For more information on renting in strata, see the TU's factsheet. As with all things, get advice from your local TAAS before taking your matter into the Tribunal.

*Nb - the comments on the Flat Chat forum have been updated following our Twitter conversation with @MyFlatChat.

Tax forum ends

... but we'll have to wait a little while to see what endures after the delegates go home, the chairs are packed and the data projectors are turned off.

For now, this anecdote from the Herald's Peter Martin serves as a nice ending – the People's Economist, David Koch, propounds an end to negative gearing.

NEGATIVE gearing was already on the nose when ''Kochie'' delivered his verdict.
Property manager Eddie Kutner of Central Equity Ltd had just finished putting the case for the rule that allows investors to write off losses made on rental properties against other income before selling the property and pocketing a capital gain taxed at only half their marginal rate.
It was "a responsible part of providing accommodation, a very defensible proposition".
David Koch, the finance journalist and Sunrise host, was at the summit as a community representative.
"Negative gearing on an unproductive asset? Does it just go on for time immemorial or is it time to actually put some limits on it - to say, OK for the first five years, but if it's not producing an income after that why are you there?
"It's done purely for the attraction of letting the taxman pay half. I'm not saying get rid of it all together, but there's got to be a limit - it just can't go on forever."
Mr Australia had spoken. No one returned to the topic.

Well said Kochie!

Keep an eye on TaxWatch for developments.

Wednesday, October 5, 2011

Tax forum continues

Wish you were there? Then try the live video stream!

If, on the other hand, yesterday's links have left you hankering for more good sense on tax reform, try Saul Eslake's recent's lecture, 'Australia's Tax Reform Challenge' (that's a 150K download) for the Australian Parliamentary Library.

(Saul Eslake)

In it you'll find a clear statement of some basic principles of taxation, and a cracking critique of Australia's mad negative gearing provisions.

Tuesday, October 4, 2011

Tax Forum begins

The National Tax Forum begins today: let's hope housing is front and centre in the discussion. It certainly has been in the media, with some very good pieces on last night's 7:30 report, and today on 'The Drum', as well as in last week's Herald.


The Irvine piece on land tax, in particular, moved Brown Couch reader and legendary tenants advocate, Dr Robert Mowbray, to write to us and second our motion that it be made required reading for anyone interested in housing justice.

And as Robert points out, this is not just about affordability – land tax reform would also go a long way to helping achieve greater security for tenants. This is because security is not just of matter of what the law says about the termination of tenancies by landlords (and as N.C. has recently discussed, our laws still say landlords can give termination notices without disclosing any grounds for termination whatever); it is also a matter of the structure of the rental market and the investment strategies of landlords.

The structure of the Australian rental market is distinctive for absence of large institutional investors, and the dominance of individual landlords who own one property only. These are the so-called 'mum and dad investors' – or 'amateur speculators', as they are known around here. And because land tax is levied on the total value of land holdings above a certain threshold, it strongly favours these small-holding players above large-holding institutions.

And what are these small-holding players playing at? They're after capital gains, and this means being able to sell when it suits them, including into the market for owner-occupied housing. And this means being able to readily oust a tenant and regain vacant possession of the property.

Across Australia, residential tenancies legislation reflects the basic structure and strategy of the amateur speculator-dominated market. And it, in turn, reflects our tax system.

Monday, October 3, 2011

International Tenants Day

It's 3 October, which means...

Happy International Tenants Day!

(Beautiful 2011 poster by our Swedish comrades)

When's International Landlords Day, you might ask. Why, it's every other bloody day of the year.

Enjoy the long weekend!