Monday, August 27, 2012

Much Debate about Occupancy Agreements

As we mentioned last week, independent MP Clover Moore's Residential Tenancies Amendment (Occupancy Agreements) Bill was the subject of debate in Parliament on Thursday. We took along a little piece of the brown couch and watched our parliamentary process unfold.

Predictably, and a little disappointingly it seems the readership of the Brown Couch does not include many parliamentarians and the opportunity to have the best of both bills was lost, at least for now. However, there were some encouraging signs that there is still room for the Government's own Boarding Houses Bill to grow in to an effective piece of legislation.

Much of the Government's response to the Bill debate centred around two points. Firstly, and unsurprisingly, that the Government's own Bill was their preferred option.

Member for Port Stephens, Mr Craig Baumann mentioned,
"I note that, unlike the very responsible legislation that the O'Farrell-Stoner Government is developing to make New South Wales number one again, this bill has not been subject to public consultation."
He later went on to say,
"The Government's reforms have been tested through a comprehensive consultation process involving key stakeholders. The Government has ensured that the views of both boarding house residents and operators were considered in its reform proposals."

If we'd been given the floor, we might have pointed out that although there has been targetted consultation on the Government's Bill, any views of boarding house residents that have been considered were entirely through the work of various community groups, including the Tenants' Union, to gather those views.

All but one of the government's speakers took the opportunity to point out the 16 years Labor had whilst in government to introduce some reform to marginal renters. Not an unfair point, but not one that had much bearing on the merits of the Bill before the house.

More relevant were the various case studies that Labor members, and Clover Moore read to the house of people who will remain uncovered by any accessible dispute resolution if the Boarding Houses Bill proceeds without amendment. A choice study, as entered into Hansard,
"G and H are Chinese students attending university in regional New South Wales and sharing a room rented from a private landlord. The landlord charges each of them $140 a week for the room plus $84 for internet access and $70 for electricity and a bond. When the landlord informed them that the rent would increase the following week by $45 these Chinese students objected to the increase and queried the amounts they are being charged for internet access and electricity. The landlord told them, "This is the law in Australia. You better get used to it", and he gave them four days notice of termination.

Minister for Disability and Aging. Andrew Constance gave some positive indications that the Boarding House Bill was not yet set in stone. He told the House:
"I will go away and examine it more closely, beyond this parliamentary debate, to see whether it contains elements that could be incorporated in those consultations as they relate to the boarding house reform that we have embarked upon."

"The private member's bill introduced by the member for Sydney extends beyond boarding houses, and I am happy to look at those provisions and engage further with the member."

A particularly impressive few lines, to which we give a resounding "hear hear!":
"I know there are people in the sector who are deadset against this process. I say to them that government—regardless of whether it is Labor, Liberal, Independent or The Greens—must ensure that protections are in place for people in vulnerable situations. I do not think the proposals in this bill are particularly onerous."

"I reiterate that I do not see this being a reason for boarding houses to close."

Much of the discussion was in fact a precursor to the debate on the Boarding Houses Bill. Whilst disappointing that this Bill was opposed, it highlights the value of bills such as Clover's, which while they may not have strong hopes of becoming statute, can stimulate debate and hopefully help to create better law in Government hands.

We'll leave the last line to the Member for Sydney, Clover Moore:
"Home is our respite from the world; it is the place we long for when we are travelling, sick, cold or tired. It is a place where we grow and where we can be ourselves. Having a safe and comfortable home is essential to our wellbeing and is the reason we have laws to protect people's right to live in their home, particularly if they do not own their residence."

In memoriam, we commend the bill to the House.

Saturday, August 25, 2012

Bye and thanks, Adele Horin

Today Adele Horin, reporter and columnist for the Sydney Morning Herald, publishes her last piece for that paper. For almost twenty-five years she's written on issues of social services, welfare, housing, employment relations, family relations, inequality and social justice – all the important stuff.

(Portrait by Stephanie Brown)

In particular, last year Horin publicised the neglect perpetrated by the licensed boarding house sector, and by the governments that have ineptly monitored it and relied on it to provide substandard accommodation and 'care' to people with disability. 

Horin describes her journalism as like drops of water on rock; in relation to boarding houses, at least, the rock is beginning to shift.

Thanks, Adele Horin, and all the best from the Brown Couch and the TU.

Friday, August 24, 2012

Tenancy culture studies: community housing centres

As well as being the centenary of the public housing system in New South Wales, 2012 is the National Year of Reading, an initiative of Australian libraries to promote basic literacy and a 'reading culture' in every home.

This coincidence got us thinking: what's the first appearance of public housing in Australian literature?

The earliest one we know of is a peculiar one; it's in Ruth Park's tenurially significant 'Poor Man's Orange', first published in 1949. (Another coincidence: today's the 95th anniversary of Park's birth). This novel and its predecessor, the equally tenurially significant 'Harp in the South' (1948), tell of the tribulations of the Darcy family and their neighbours in the rental housing of post-war Surry Hills – housing that was run-down and in short supply. Rent controls were in force, but if a person lost their tenancy, they were in strife.

Through one of her characters, Mr Casement, Park describes ‘the terror of most of the evicted people... that they would be sent to squalid housing settlements where worse slums had been created than any the Council had pulled down’:

‘Them little army huts,’ thought Mr Casement in panic, ‘and people fighting and screaming and banging on walls, and pinching the washing, and Jessie expecting me to go in and tell ’em off. I just ain’t up to it these days.’

Mr Casement is terrified of the 'community housing centres' operated by the NSW Housing Commission in the first two decades of the post-war period. At the end of the Second World War, the Housing Commission came into possession of a number of ex-military sites, which it put to use as temporary accommodation for people in urgent need of housing.

The largest of these sites was an ex-US Army hospital at Herne Bay, where the Housing Commission converted the long hospital buildings to flats by throwing up partitions across their lengths and installing toilets and showers.   

This was not the most comfortable accommodation: those partitions did not extend to meet the pitch of the roofs, so you could hear, smell and, if you stood on a box, see everything that happened in the flat next door. And it was high-density: the Herne Bay centre comprised 1096 flats (with one to six bedrooms each), and housed about 6000 people. (By contrast, the public housing estate that stands on the site today – which includes two high-rise buildings – houses between 2000-3000 people.)

The provision of emergency temporary accommodation for public housing applicants was not the only function of the community housing centres. They also allowed housing officers to observe the conduct of applicants, and check if they maintained regular rent payments and satisfactory standards of housekeeping. Those who didn't (in pretty challenging circumstances) would be evicted, or just crack up and leave, and so would not proceed to an offer of proper public housing. In this way, the community housing centres were a variation on the model of 'experimental colonies' for 'difficult' tenants instituted by Dutch housing authorities in the 1930s, which operated on disciplinarian lines (surrounding walls, 11 pm curfews); these experiments had excited interest, but no formal emulation, in housing authorities around the world.

The accommodation provided by community housing centres reduced over time, as the sites were gradually redeveloped as public housing estates; the last of the 'horror huts' were gone by the mid-1960s. In the case of Herne Bay, the authorities and local citizens sought also to remove the infamy of the community housing centre by renaming the suburb – in 1958, it became Riverwood.

Monday, August 20, 2012

The best of both Bills

This week the NSW State Parliament is set to debate independent MP Clover Moore's Residential Tenancies Amendment (Occupancy Agreements) Bill, which would set out broad occupancy principles for all marginal renters not otherwise covered by residential tenancies legislation. The occupancy principles would deal with important matters such as evictions, repairs, bonds, utility charges and penalty terms; and these principles would be given effect in individual occupancy agreements. Disputes would be resolved by the Tribunal, where parties would have access to a wide range of remedies.

Moore's Bill was drafted late last year; now the Government has its own draft Boarding Houses Bill, which would establish a Boarding Houses Register, revamp the licensing regime for licensed boarding houses for people with disability ('residential centers for vulnerable persons')... and set out broad occupancy principles for some – not all – marginal renters (just those living in 'registrable boarding houses'). These occupancy principles would deal with important matters such as evictions, repairs – but not bonds, utility charges and penalty terms; and these principles would not necessarily be given effect in individual occupancy agreements. Disputes would be resolved by the Tribunal, but remedies would be limited – there's no provision in the draft Bill for compensation.

The Parliament – and the people of New South Wales – can and should have the best of both Bills.

The Government should, as we've submitted, amend the draft Boarding Houses Bill – and in particular, amend Chapter 3, which contains all the draft Bill's provisions about occupancy principles.

First, it should provide that Chapter 3 – and only Chapter 3 – applies to all the persons to whom Moore's Bill would apply.

Secondly, it should include in the occupancy principles all of the additional occupancy principles – those about bonds, utilities and penalty terms – from Moore's Bill.

And thirdly, it should make the occupancy principles as effective as those in Moore's Bill, by requiring that they are given effect in individual occupancy agreements and that the usual contractual remedies – including compensation for loss – are available. 

Then we'd have a Boarding Houses Register, a revamped licensing regime for licensed boarding houses, and fair, effective occupancy agreements for all marginal renters.

Oh, that's what law reform dreams are made of.

Tuesday, August 14, 2012

Comment on the draft Boarding Houses Bill (part 3)

The TU has lodged its submission on the draft Boarding Houses Bill; you can read the whole submission on the TU's website. Here on the Brown Couch, we'll discuss the most important recommendations.

One of those recommendations we've already discussed in some detail: the Government should fix the loophole that would exempt dodgy head-tenants – and virtually any boarding house proprietor who makes their premises subject to a residential tenancy agreement. Now we'll discuss four more key recommendations.

1. More renters should be covered by the draft Bill's occupancy principles. (We discussed this briefly, in our initial comments on the draft Bill.) 


Because the draft Bill applies to 'registrable boarding houses', as defined in the draft Bill, it leaves uncovered a wide range of marginal renters who are currently excluded from residential tenancies legislation and subject to the inadequate provisions of the common law of lodging: lodgers in private homes, occupants of shared households, residents of refuges and crisis accommodation, students in halls of residence, etc etc. All these marginal renters would benefit from being covered by the draft Bill's provisions about occupancy principles and occupancy agreements. 

These provisions are  contained in Chapter 3 of the draft Bill; that Chapter (and only that Chapter) should apply wherever a person is granted, for value, a right to occupy premises for a residential purpose for a term or period and the agreement is not otherwise subject to residential tenancies legislation.

2. The occupancy principles should deal with bonds and security deposits. (We discussed this one in our initial comments too). Boarding house residents often pay significant amounts of money in bonds and other security deposits, and often have problems getting their money back. There should be an occupancy principle that limits the total amount of security that may be required to two weeks’ occupation fee, and requires that all bonds and security deposits be lodged with the Rental Bond Board. The Bond Board is already there to safeguard tenants' bonds, so let's use it as a safeguard for boarding house residents' bonds too.

As well as an occupancy principle about bonds, we recommended two more occupancy principles: one about utility charges (they should calculated based on the cost of providing the utility and a reasonable estimate of the resident's use of it), and one about penalty terms (simply, there shouldn't be any penalties or fines in residents' agreements). Each of these things is a present problem in marginal renting; the really big problem, however, is the lack of safeguards about bonds. 

3. Occupancy agreements must be made more effective. We touched on this in our initial comments when we noted that the provisions for the Consumer, Trader and Tenancy Tribunal to resolve disputes about occupancy principles expressly excluded a power to make orders for compensation. This, however, is just one part of a larger problem with the effectiveness of occupancy agreements, as provided for under the current terms of the draft Bill. 

Another part of the problem lies in the relation between 'occupancy principles' and 'occupancy agreements'. Properly understood, the occupancy principles are supposed to be the broad statements of principle in the legislation, and the occupancy agreements are supposed to be the individual contracts containing all the nitty-gritty detail of terms and conditions – within the broad confines of the principles. The draft Bill says an occupancy agreement cannot contract out of an occupancy principle – so far so good. But it does not say that an occupancy agreement must positively give effect to the occupancy principles. This means that an occupancy agreement could be the barest kind of agreement – 'John Jones may occupy the premises as lodgings for $100 per week' – containing no other contractual terms at all. The occupancy principles would still say that John Jones is entitled to certain things (eg premises is a reasonable state of repair), but this entitlement would not be a contractual entitlement – just a statutory entitlement, the remedies for which are, as noted, limited to what's provided for in the legislation (that is, no compensation). 

Occupancy agreements should give effect to the occupancy principles – and where an agreement does not actually give effect to the principles, it should be taken to give effect to them. And in the event of a breach, residents should have the usual contractual remedies, including compensation for any loss suffered. 

A final recommendation to improve the effectiveness of the occupancy provisions: some of the occupancy principles should also be backed up by penalties (in particular, the principles about written agreement, written receipts, quiet enjoyment and reasonable notice of eviction). As it is currently drafted, Chapter 3 contains no penalties for breach of its provisions at all.

And it should be said – there's already in Parliament a piece of legislation that shows how each of these three recommended improvements could be achieved. If Chapter 3 of the draft Boarding Houses Bill covered the same persons as Clover Moore's Bill covers, and provided for the same occupancy principles as Moore's Bill provides for, and made occupancy agreements as effective as Moore's Bill makes them, it would be a stronger piece of legislation and a landmark reform.

4. Better consumer protection through the Boarding Houses Register. We haven't previously mentioned the draft Bill's new Boarding Houses Register. This would be a list, maintained by NSW Fair Trading, of registrable boarding houses; proprietors would be required to register their premises, or be guilty of an offence if they don't. 

Getting registered doesn't mean the premises are approved for use as a boarding house (this would still be for the local council to decide under planning laws); it just means that the premises are on the list, and that members of the public can see that they are registered.

We support the Register, but it should be made into a stronger measure of consumer protection. In the draft Bill's current terms, the Register would make public the name and address of the premises, and whether the premises is a Tier 1 or 2 boarding house. And that's all. 

This is well and good if you're a neighbour and you suspect the house over the road is an unapproved boarding house: you just check the address against the Register and if it not there, you dob them in to the local council. 

But if you're a prospective resident, or someone helping a prospective resident, you might like to find out a little more, such as the name of the proprietor, and whether there has been any disciplinary action taken against them. The Government Licensing Service provides this sort of information to members of the public in relation to tradespersons and other licensees; the Register should provide the same information – and the same level of consumer protection – to prospective residents of boarding houses.  

Tuesday, August 7, 2012

If it ain't broke...

With over 113,000 tenanted properties, the NSW Government is the single largest landlord in New South Wales - and by no small margin. Managing such a large portfolio of tenancies can't be easy, especially when you consider all that's involved... On the one hand, there's collecting all that rent, and on the other, there's making sure all those houses are kept in good working order. This creates such a tricky combination of tasks that our government has had to develop two teams of specialists just to keep it all under control.

This all started a few years ago, under a different government to the one we have now. Back in October 2008, when Nathan Rees was Premier and David Borger was Minister for Housing, the government's landlord function was split into two - one part to handle housing services (that is, collecting rents and causing evictions), and the other to take charge of asset management (that is, carrying out repairs and maintenance). When our current Premier, Barry O'Farrell, rose to prominence and took charge of government in early 2011, he liked the idea so much that he gave each of these functions its own Minister.

Now, whatever problems this may have solved for government (and no doubt they'll have a list of these), it's created a huge problem for their tenants: getting repairs done is no longer seen as a function of 'tenancy management'. These days, repairs are thought of as 'asset management'.

This, we suggest, is not quite right.

As a landlord, the NSW Government has a legal obligation to maintain its tenanted properties in a reasonable state of repair. This obligation comes from section 63 of the Residential Tenancies Act 2010, and it is not negotiable.

Their tenants - just like every tenant in New South Wales - should be careful not to cause damage to the property, and must notify their landlord of any damage that does occur. These obligations come from section 51 of the Residential Tenancies Act 2010, and they are not negotiable.

As a landlord, the NSW Government must not interfere with their tenants' reasonable peace, comfort and privacy. This obligation comes from section 50 of the Residential Tenancies Act 2010, and it is not negotiable. It has been said by the Consumer, Trader and Tenancy Tribunal that the failure to carry out necessary repairs can amount to just such an interference.
So, both tenants and landlords have a role to play in keeping houses in good order. Tenants must tell landlords when something needs to be fixed, and landlords must see to the fixing in a manner that is sensitive to the tenant's occupation of the premises.

But as you can imagine, with 113,000 tenanted properties on the books, the NSW Government thinks it would be foolish to just sit back and wait for tenants to tell them about damage before making any plans for repairs and maintenance. Instead, they send someone out to look at each property every once in awhile, to make note of its condition, and determine what maintenance work might be needed in order to keep the place in good nick... This, we suspect, is what 'asset management' is really all about.

But when some part of your house breaks, and it's not already on the list of things to be fixed, getting it repaired can be a nightmare. If you tell your Client Service Officer (aka your 'tenancy manager') about the problem, they'll tell you there's nothing they can do. They'll ask you to talk to someone else about it, and they'll take no part in organising the repair. They wont be the one to book the contractor to come out and look at the job, and they wont be the one to tell you how and when the repair will be done. They're also not the person to call if the contractor doesn't show up, or to complain to if the repair isn't done properly.

But here's the kicker - because they are your tenancy manager, they will be the one you take to the Consumer, Trader and Tenancy Tribunal if you need to get a repair order. Of course, since they've played no part in your repairs saga up until that moment, they will probably have no idea what you are talking about.
* * *
Evidently, we're not the only ones who have noticed repairs and maintenance is causing issues for tenants of Housing NSW.

Back in March the Member for Balmain in the NSW Parliament, Jamie Parker, raised concerns about the state of Housing NSW properties in his electorate, and more recently, he raised a number of questions in parliament with Greg Pearce, the Minister for Finance and Services*. It is Minister Pearce's department that bears the responsibility for repairs and maintenance of the government's rental housing portfolio, and his responses were somewhat illuminating.

In truth, the Minister was given 30 days to come up with his answers, but we like to think of this conversation happening in real time. That way, we can allow ourselves the indulgence of the occasional interjection from the Brown Couch. We imagine it going something like this:

PARKER: - For each local office area of Housing NSW, what is the average waiting period between a tenant calling the maintenance line and an officer of Housing NSW attending the property to inspect?
- What is the average waiting period between a repair being deemed urgent and the repair being carried out?
- What is the average waiting period between a repair being deemed non-urgent and added to the planned program of works, and the repair being carried out?
- Once repairs are added to the planned program of works, is any consideration given to the length of time the tenant has been waiting for the repairs to be carried out?

PEARCE: The completion timeframes for specific works orders are prioritised based on their urgency or risk category:
- Urgent - 4 hours: immediate threat of danger or threat to security, such as electrical danger, gas leak, sewer choke into a common area, internal flooding.
- Priority 1 - 24 hours: threat to safety needing prompt attention, such as no lighting within dwelling, inoperative smoke alarm, external flooding.
- Priority 2 - 48 hours: certain essential items not working, such as hot water systems, heaters in cold climates.
- Priority 3 - 72 hours: other essential items not working, such as stoves, common area washing machines/driers, external doors or toilets.
- Responsive work - 20 days: within 20 working days from the date of issue as stated on the relevant work order.
- Planned maintenance: based on whole of Land and Housing Corporation asset portfolio standards that targets properties most in need of repairs. Once works are added to the planned maintenance program, work is packaged according to priorities.

OUR INTERJECTION: Thank you, Minister, and yes, we've read the fact-sheet too. We know what you'd like to happen, but, given the opportunity was there, it would have been good of you to give a bit of an insight into what really happens...

PARKER: How many Housing NSW properties are currently on the planned program of works?

PEARCE: As of 30 June 2012, there were 3079 properties on the planned program of works.

OUR INTERJECTION: Seriously? Out of 120,000 or so properties? That seems a little low. But hang-on... June 30 2012 was the end of the financial year - we can't help but wonder if this figure doesn't reflect the real state of need for repairs.

PARKER: How many Housing NSW properties are currently unoccupied because they are not considered fit for habitation?


OUR INTERJECTION: Oh, nicely taken, Minister! We know that in 2010-11 you had 120,380 properties and 113,023 tenancies because we looked at your latest annual report. Which means you have a few properties to spare. While we can accept these might not be vacant because they are 'not fit for habitation', we're still left wondering if any of them are in need of repair.

PARKER: Of all the Housing NSW properties leased to new tenants in the previous 2 years, how many have since required responsive repairs or scheduled maintenance?

PEARCE: From 1 July 2010 to 30 June 2012, the NSW Land and Housing Corporation has carried out scheduled or responsive repairs on 23, 345 properties with new tenants.

OUR INTERJECTION: Wow. That seems like a lot. It's around 19.5% of your total portfolio. It's also about four times the number of new tenancies you entered into in the 2010-11 financial year (again, taking figures from your latest annual report. We'll check back again to compare this when the 2011-2012 report is released). But how many of those were scheduled, and how many were responsive?

PARKER: - In the financial years 2010-11 and 2011-12, how many Housing NSW properties were subject to CTTT orders for repair?
- Once subject to a CTTT repair order, what is the NSW Land and Housing Corporation process for ensuring repairs are carried out (eg are they placed on the program of works?)
- What is the timeframe in which the NSW Land and Housing Corporation complies with CTTT orders for repair?
- How many CTTT orders has the NSW Land and Housing Corporation complied with within the timeframe ordered?
- How many CTTT orders has the NSW Land and Housing Corporation failed to comply with within the timeframe ordered?
- In the same period, how many CTTT matters in which orders had been made were re-listed on the grounds that the NSW Land and Housing Corporation had failed to comply with those orders?
- Where the NSW Land and Housing Corporation has failed to comply with the timeframe ordered by the CTTT, what was the average length of time that the NSW Land and Housing Corporation actually complied?
- In the financial years 2010-11 and 2011-12, what was the value of compensation the NSW Land and Housing Corporation was ordered to pay to Tenants under CTTT orders for failing to repair (including economic loss, non-economic loss and rent reductions)?
- Has the Chairperson of the CTTT referred matters of non-compliance with CTTT repair orders to the Commissioner for Fair Trading for investigation and possible prosecution?
- What has been the outcome of the matters referred to the Commissioner for Fair Trading?

PEARCE: Refer to the Social Housing Division section of the Consumer, Trader and Tenancy Tribunal Annual Report.

Okay, here's what that report tells us:

- In the last reporting period there were 69 applications made for repairs across all social housing types.
- There were 578 total applications made by tenants across all social housing types.
- There were 29 applications for ‘renewal’ and 163 applications for ‘rehearing’, with 104 rehearings granted. There is no breakdown of data according to the type of matter concerned, or who applied for rehearing.
- The number and nature of orders made is not recorded, and no information is given regarding referrals for non-compliance.
In fact, if you ask the CTTT they will tell you that they do not keep statistical records on outcomes of hearings. The best place to obtain such information would be from the records of the NSW Land and Housing Corporation itself.

PARKER: What measures has the NSW Land & Housing Corporation taken in relation to these referrals to improve their compliance failures? What quality control processes does Housing NSW have in place to ensure that repair works are carried out to an adequate standard?

Staff of Housing NSW attend hearings at the Consumer, Trader and Tenancy Tribunal initiated by public housing tenants. If an order for maintenance is made by the Tribunal, Housing NSW liaises with NSW Land and Housing Corporation, Department of Finance and Services, to arrange for the maintenance to be scheduled and completed within the timeframe set in the Tribunal order.

OUR INTERJECTION: That's not what we've heard, Minister. In fact, we're aware of numerous examples of the NSW Land and Housing Corporation failing to comply with CTTT repair orders, and we've discussed many of these with officers in your department.

PEARCE: The Maintenance Services for Residential Properties (MRP08) contract with multi-trade contractors governs quality of repair works ensuring work complies with the contracted specifications and standards. The contract also covers auditing procedures.

PARKER: What processes does Housing NSW have in place to allow tenants to have works assessed or rectified if the repair works are not carried out to an adequate standard?

PEARCE: Tenants call the Housing Contact Centre to have works assessed and rectified. The Centre will contact and request the contractor to rectify the issue or refer the matter to the Land and Housing Corporation to undertake a technical inspection.

PARKER: For each local office area of Housing NSW, how many properties and in how many instances has Housing NSW had to raise identical or near identical work orders for the same repair?

PEARCE: From 1 July 2010 to 30 June 2012, there have been 39,142 recalls for work previously carried out by contractors. The majority of this work was carried out at no cost to Land and Housing Corporation unless work was found to be unrelated to the initial fault.

OUR INTERJECTION: Just... Wow. 39,142 recalls in 24 months. That’s an average of 1630.9 recalls each month. Or 53.5 recalls a day. Wow.

PARKER: Does Housing NSW have guidelines to regulate the engagement of subcontractors by companies contracted to carry out repair works?

PEARCE: Yes. MRP08 regulates sub-contractor induction by requiring:
- Contractors to complete criminal checks to ensure sub-contractors are of a fit and proper character.
- Sub-contractors to comply with the Land and Housing Corporation Code of Conduct and applicable legislative requirements.
- Currency of contractor insurance.
- Contractors and sub-contractors to be relevant licensed trades persons under NSW Fair trading licensing requirements.
- Compliance of contractors and sub-contractors with Land and Housing Corporation contractor documents and manufacturer instructions.
- Head contractors to be responsible for the work of all sub-contractors.

PARKER: Since 1 July 2010 has Housing NSW or NSW Land & Housing Corporation taken any action against a company contracted to carry out repairs for failure to comply with the terms of their contract? If yes, what aspects of the contract did the company⁄s fail to comply with? If yes, what was the action taken? If yes, on how many occasions has action been taken?


PARKER: For each Housing NSW local office area, what is the estimated cost of carrying out all repairs currently on the planned program of works? Is the budget for repairs and maintenance allocated according to local office areas? If yes, what is the budget for each Housing NSW local area office for repairs and maintenance for 2011-12 and 2012-13 financial years? If no, how is that budget allocated?

PEARCE: Estimated maintenance costs are attributed to maintenance contract areas which are not related to local office areas or regional boundaries.

OUR INTERJECTION: Indeed, Minister? Yet another complication for tenants whose repairs do not go according to plan...?

PEARCE: The 2012-13 budget allocation across all designated areas in NSW is $210.2 million for planned and responsive maintenance and a further $194.5 million to upgrade social housing properties. The budget allocation for planned capital maintenance and upgrading is based and prioritised on known maintenance liability, undertaken from regular property condition surveys.

PARKER: For each Housing NSW local office area, how many projects are currently on the planned program of works?

PEARCE: As of 30 June 2012, there were 3079 work orders for planned works across all maintenance contract areas.

OUR INTERJECTION: So 3079 properties on the list, and 3079 work orders? Each property gets just one thing fixed, then? Also, as we said before, we'd be interested to know if this figure is affected much because it was recorded at the end of the financial year. We wonder if this figure fluctuates much from month to month?

For each Housing NSW local housing area, what is the average length of time between a work being placed on the planned program of works and the work being completed?

See my response to your first questions.

…and see our response to that response.

* You can find the transcript of this Q&A session in the NSW Hansard papers (you're looking for questions # 2494, which start on page 2357 - and you will note that the questions were in fact asked of the Treasurer on the Finance and Services Minister's behalf).

Friday, August 3, 2012

No cause for no-cause evictions - part 2

You will recall that a no-cause eviction happens when a landlord terminates a tenancy without grounds - that is, a notice issued subject to section 85 of the Residential Tenancies Act 2010. In the past, if a tenant overstayed such a notice, they could wait for the landlord to make an application to the Consumer, Trader and Tenancy Tribunal for a possession order, and implore the Tribunal to consider the circumstances of the case before deciding their fate. Under the Residential Tenancies Act 2010 that's no longer possible - the Tribunal must make orders for possession if the landlord seeks to end the tenancy without grounds. You can read more about that in a recent post on the Brown Couch.

It's been almost a year since we last talked about community housing providers and no-cause evictions. There have been a couple of developments since then and the issue is worth revisiting.

Not long ago, the Community Housing Division - that's the part of Housing NSW that gives community housing landlords most of their properties to rent out to eligible people - released their updated Community Housing Access Policy. Now, this is important, because community housing providers are supposed to follow this policy as a condition of receiving those properties (or other government assistance, as the case may sometimes be...)

... and here's what the updated Access Policy says about terminations:

Community housing providers must have fair and transparent processes in place to determine the termination of any resident agreement or a residential tenancy agreement under the Residential Tenancies Act 2010. This must include a process to advise residents and tenants about the circumstances in which a resident agreement or residential tenancy agreement may be terminated.
Following a decision to terminate a residency agreement or a residential tenancy agreement, a community housing provider must issue, in writing, a notice to the resident or tenant explaining the termination and setting out a reasonable timeframe for the resident or tenant to vacate the premises. The termination of a residential tenancy  agreement must be accordance with appropriate provisions under the Residential Tenancies Act 20102.

Fair and transparent processes, which must include advising tenants about the circumstances in which their agreements may be terminated, and giving a written notice explaining a termination... That's great news, right? It looks as though ending tenancies without grounds is not allowed anymore, if you are a Community Housing Provider. Hooray!

But the policy adds a footnote. It says:

Community housing providers should not routinely terminate agreements under S85 of the Residential Tenancies Act 2010 as this section of the Act does not require a tenant to be given reasons for termination and does not afford the tenant recourse to the CTTT. Only in exceptional circumstances should a provider use S85 given the other provisions of the Act and the provider should document a process which includes an internal review by the provider prior to the decision to terminate under S85.

Wait a minute - providers should not routinely use section 85 notices? Only in exceptional circumstances???

Uh-oh... Did someone just give a 'green light' to the termination of these social housing tenancies without grounds after all?

We certainly hope not. But we couldn't help but notice a sudden spike in their use shortly after this updated policy was published.

The big question, of course, is what is an exceptional circumstance?

... and of course, we have a ready made response: circumstances are exceptional if they are not reasonably foreseeable, and could not otherwise be dealt with under the Residential Tenancies Act.

We wonder if Community Housing Providers, or the Community Housing Division itself, will take a similar view?