Tuesday, January 31, 2012
We've had some good times, haven't we?
Like when you made sure that tenant wouldn't have to move out just because she fell a few weeks behind in the rent... because she paid what was owed and the Tribunal order ceased to have any effect?
Or when that other tenant was able to move straight into a new home after his landlord had given him 90 days to move out without a good reason... and he didn't have to give the landlord any notice himself?
How about that time when that landlord changed his mind and decided to sell the place shortly after signing the tenancy agreement... and the tenant was able to change his mind too, moving out during the fixed-term after giving 14 days notice?
Or when that tenant was able to go to the Tribunal for an order that the notice of termination was given in response to the tenant asking for repairs?
Ahh, yes. There sure have been some good times.
But you've disappointed us, too... It hasn't always been smooth sailing.
Because marginal renters still aren't protected by an appropriate law in New South Wales.
Because tenants can be given notices of termination without a good reason... and are no longer able to raise the circumstances of their case before the Tribunal.
Because tenants who pay their arrears can have their tenancy terminated anyway, thanks to a poorly drafted last minute amendment to the Act.
Because tenants thought that if they really needed to, they'd be able break a lease with the certainty of paying an agreed lease break fee... only to be told that they might still have to pay rent until the landlord finds a new tenant.
Because people who live in share-housing, but don't have their name on the lease, might not be protected by the Act at all.
Happy birthday, brave new law...
We know you're only young, but we think you've still got an awful lot of growing up to do.
Sunday, January 29, 2012
In the 1820s, in Tanners Close, just off Edinburgh's West Port, Margaret Hare ran a lodging house. Her husband, William, was, like many of the lodging house's clientele, a labourer, employed digging out the Edinburgh-Glasgow Union Canal (actually, he was Margaret's second husband, and formerly a lodger in the same house).
(a) give him a decent burial - brotherhood of man and all that;
(b) inform the relevant charities - it's their duty to do something; or
(c) get your husband and one of his mates to sell the poor man's corpse to an anatomist for dissection in front of a paying audience?
Margaret Hare choose (c).
So William and his mate, William Burke, another navvy on the canal, filled Donald's coffin with bark and hauled his body over to Edinburgh University, where they found Dr Knox, surgeon and private anatomy lecturer, who happily paid 7 pounds 10 shillings for the body and didn't ask too many questions.
The transaction thus completed, what's a landlord to do?
(a) repent and confess the whole sordid business to the authorities;
(b) try never to think of it, or Dr Knox, ever again; or
(c) consider who amongst your lodgers would make a good corpse for sale?
The Hares choose (c).
Another of the Hares' lodgers, an old miller named Joseph, wasn't dead yet, but he was sick – so William Hare and William Burke plied him with whisky, then suffocated him. Knox paid well for the corpse. With no more likely candidates amongst the lodgers of the house, the Hares began inviting drunks, beggars, prostitutes and other indigents into the house, to be dispatched by Hare and Burke, and their corpses sold to Knox for dissection.
This enterprise came undone in October 1828, when a couple of guests in the house discovered the body of Margaret Docherty, with whom they'd shared a drink just the previous night, stashed under a bed. The police were alerted, but found no corpse at the Hares' lodging house; but when they later called on Dr Knox, there was Docherty's body on the slab, ready for anatomy class.
William Hare was arrested, along with Burke. What's a landlord to do?
(a) confess and pay the price of one's crimes;
(b) exercise one's right to silence; or
(c) do a deal for immunity from prosecution in return for becoming the Crown's principal witness against one's co-accused?
William Hare choose (c).
Faced with Hare's evidence, William Burke confessed, was found guilty and, on this day 183 years ago, taken to the public gallows and hanged. The Hares went free. (But not entirely unpunished. So the story goes, William Hare was shamed, set upon by a mob, blinded and eked out his days as a beggar. As for Margaret Hare - what's a landlord to do? She emigrated to Australia.)
If the tone of our account of Burke and the Hares is a little jocular, that's because it's a form of self-preservation: the horror of these crimes is difficult to contemplate. In the course of a year they murdered not less than 16 persons, and subjected them to indignities beyond death, all for filthy lucre. Writers and artists have been fascinated: Burke and the Hares have inspired a Robert Louis Stevenson story, no less than seven films, and numerous mentions in Ian Rankin's tenurially significant Rebus novels.
Indeed, the first poetical response to the crimes was probably that of the trial judge, who sentenced Burke not merely to be hanged, but to be thereafter dissected in the same anatomy theatre as his and Hare's victims. And so he was, with the presiding anatomist writing in blood taken from Burke's head and his flayed skin tanned and tooled into a card case. Burke's bones and skin remain on display in museums in Edinburgh today.
And this whole bloody history sprang from a poor lodger's rent arrears, and the greed lurking in the hearts of two bad landlords.
Thursday, January 26, 2012
"We're here to help," we tell them. "We just need to figure a few things out about the situation. Can you tell us what's been going on…?"
Over the course of two hours a steady trickle of cars roll in to our meeting place, with three or four people piling out of each one. Everyone has something to say - these houses are all falling down … nobody wants to talk to us all the way out here … they keep blaming us for all the problems of the Lands Council … someone told somebody not to worry about the rent until the company sorts out the headlease … we don't even know who the company is anymore …
Thirty years ago these houses were poorly built. Since then there's been a bit of money here, a bit of money there… but not much has been done. Much of it has been given to out-of-town tradies, who tend to breeze in and do half the job before disappearing with the cash. Nobody can be accused of nepotism that way. The houses aren't in such good shape, either.
"Up in town, they're building new houses for Aboriginal people," says Auntie. "They want us all to move up there… but we want to stay here. Down here, we're safe. We know where our kids are. We look after each other."
"Well," we tell them… "There are a couple of things we might be able to do. We'll have to come back tomorrow and talk to a few people one-on-one… go through some of the options and get a feel for what everyone wants to do…"
There's a big bloke - arrived later than the rest and waited quietly in his car for about half an hour. He's finally opened the door and stepped over towards us… "Listen," he says quietly, "we're sick of people coming in here and telling us they're gonna fix things. What are you blokes gonna do that no-one else has been able to up until now?"
It's a good question…
The next afternoon we run into someone from the Lands Council. They've decided not to try for PARS registration, opting instead to headlease all their properties to the AHO. They've got plenty of houses up in town, plus the dozen or so down on the former reserve. But for one reason or another, the houses on the reserve aren't going to be headleased. Everyone down there is going to have to move up to town. The houses down on the reserve are going to be bulldozed. There's simply no money to fix them.
"But," we point out, "Auntie says you're building new houses in town. Can't you spend some of that money on the houses on the reserve?"
Well, no, because the money comes with some pretty heavy strings attached. The only way to get money to fix up the former reserve is to become registered through PARS, and that decision has already been made. It's just not something the Lands Council believes they'll be able to do.
The Lands Council is responsible for everything on the former reserve, too, not just the houses. The roads, the lighting, the water and the sewerage works… everything.
They also have to pay rates to the Local Government, and the rent barely covers it. Even if these houses and all the village infrastructure could be fixed tomorrow, the debt to Local Government would still be crippling.
The Build and Grow Aboriginal Housing Strategy promises better housing outcomes for Aboriginal people in NSW. For the mob on the former reserve, it means being moved off the land…
"I've lived her for fifty years," says Auntie. "I grew up here in an old tin shed and I remember when these houses were built. We thought they were pretty amazing back then, but I'd rather have the old shed back now…"
For earlier Brown Couch commentary on the Build and Grow Aboriginal Housing Strategy, visit this old post.
Sunday, January 22, 2012
(The Owners Corporation meeting could have gone better.)
The NSW State Government would like to know more about your experience of strata laws – so has instigated this online consultation forum.
The Tenants' Union would like to know more, too, particularly if you rent: so please leave a comment in the online consultation forum (we'll be reading), or here on the Brown Couch, or directly to me at the Tenants' Union (chris[underscore]martin[at]clc[dot]net[dot]au).
Tuesday, January 17, 2012
Here's the TU's comment on the Bill.
The Tenants’ Union of NSW (TU) supports the Residential Tenancies Amendment (Occupancy Agreements) Bill 2011 (the Bill) introduced by the Member for Sydney, Clover Moore, and commends it to other Members of Parliament.
The Bill would implement much-needed law reform in relation to marginal renting. It would do so in a sound and balanced way that is fair to marginal renters (‘occupants’) and accommodation providers (‘grantors’).
Marginal rental accommodation includes:
• boarding houses;
• lodgements in private residences;
• refuges and crisis accommodation;
• residential colleges; and
• most share housing arrangements.
Marginal renting is currently excluded from mainstream residential tenancies legislation. It is instead subject to the common law of lodging, which has changed little since the nineteenth century and is inconsistent with current community expectations as to housing rights and standards. Dispute resolution is also deficient: most marginal rental disputes are excluded from the jurisdiction of the Consumer, Trader and Tenancy Tribunal (the Tribunal), and dispute resolution through the court system is not a practical option.
The Bill reflects the ‘occupancy agreements’ model of law reform implemented by the Australian Capital Territory in amendments made in 2005 to its Residential Tenancies Act 1997 (ACT). The ACT’s amendments are widely regarded as a success and the occupancy agreements model has been recommended by the NSW Government’s Interdepartmental Committee on Reform of Shared Private Residential Services (the IDC) as its preferred approach to law reform. The NSW Legislative Assembly’s Social Policy Committee has also recommended, in the report on its Inquiry into International Student Accommodation in NSW, that the NSW Government consider implanting legislation for occupancy agreements.
The Bill’s provisions are fair and balanced. It would provide for ‘occupancy agreements’ between occupants and grantors where residential tenancies legislation does not otherwise apply.
These agreements would reflect the 12 ‘occupancy principles’ in the Bill, which set out the entitlements of occupants and grantors in a general way, without prescriptive detail. This level of detail would be left to individual occupancy agreements, and any standard occupancy terms that may be made by regulation. This means the occupancy principles would have a flexibility that is appropriate to the wide variety of rental arrangements covered by the Bill.
Occupants and grantors could apply to the Tribunal to resolve disputes relating to an occupancy agreement. Grantors would not need to apply to the Tribunal for termination of occupancy agreement, but an occupant could apply for orders where they disputed a termination. This is a balanced and effective regime for resolving disputes and dealing with terminations.
The Bill would define an ‘occupancy agreement’ as ‘an agreement under which a person grants to another person for value a right to occupy specified residential premises as a residence (whether or not with other persons)’ (s 186B(1)). The Bill illustrates, without limiting, the definition with a list of persons and rental arrangements at s 186B(2), and then limits the definition with the qualifications at s 186B(3).
We submit that the general definition, the illustrative list, and the qualifications, are all sound. They provide for appropriately broad coverage, while ensuring that agreements already subject to residential tenancies legislation remain subject to the respective legislation.
The Bill would provide for 12 occupancy principles: nine are adopted from the ACT’s legislation, one with a substantial change; three are innovations. We submit that all are sound.
The general scheme of the principles is that they would be reflected in the content of occupancy agreements, which would include:
- terms to the effect of the occupancy principles;
- terms to the effect of any standard occupancy terms prescribed by regulation, provided they are consistent with the occupancy principles; and
- additional terms, provided they are consistent with the occupancy principles and standard occupancy terms.
This scheme is sound and appropriately flexible to the wide variety of rental arrangements covered by the Bill.
We extract and discuss each of the principles below (the text and numbering is per the Bill; the subheadings are our own).
State of repair
(a) an occupant is entitled to live in premises that are:
(i) reasonably clean when the occupant moves in, and
(ii) in a reasonable state of repair, and
(iii) reasonably secure,
This principle does not prescribe absolute standards in relation to the physical conditions and state of repair of the premises. We submit that what is ‘reasonable’ in relation to cleanliness, the state of repair and security will vary according to the type of rental arrangement and the individual case, including the amount of rent paid. The principle would appropriately balance the respective interests of grantors and occupants.
(b) the grantor is entitled to set reasonable rules that the occupant will be required to comply with and an occupant is entitled to know the rules of the premises before moving in,
This principle does not prescribe any rules, nor does it prescribe the matters about which rules may be made. It requires that rules be ‘reasonable’, which will vary according to the type of rental arrangement (for example, a women’s refuge might reasonably set a rule prohibiting male visitors at any time, whereas a women’s residential college might reasonably set a rule prohibiting male visitors from staying overnight). It also requires that the occupant be entitled to know the rules before moving in. This is fair to both occupants and grantors and would help prevent disputes.
Written agreements and receipts
(c) an occupant is entitled to the certainty of having the occupancy agreement in writing,
(d) an occupant is entitled to be given a written receipt for the payment of any money to the grantor,
Principle (d) is an innovation (the ACT occupancy principles are silent as to receipts). We submit that it, and principle (c), reflects basic expectations on the part of consumers and sound business practice. Provision of written agreements and receipts is not onerous and helps prevent disputes.
Quiet enjoyment and access
(e) an occupant is entitled to quiet enjoyment of the premises,
(f) a grantor is entitled to enter the premises at a reasonable time on reasonable grounds to carry out inspections or repairs and for other reasonable purposes,
We note that principle (f) does not prescribe a period of notice or grounds, but does require that the grantor’s entry take place at a ‘reasonable time’ and on ‘reasonable grounds’, each of which may vary according to the type of rental arrangement. It and principle (e) appropriately balance the respective interests of occupants and grantors.
(g) an occupant is entitled to reasonable notice before the grantor increases the amount to be paid for the right to occupy the premises and is entitled to know before moving in how much notice will be given,
This principle is substantially different from the corresponding ACT occupancy principle about rent increases, which prescribes six weeks’ notice. The present principle does not prescribe the period of notice for a rent increase, but does require that notice be given, that the period of notice be reasonable (which would vary according to the type of rental arrangement) and that the period of notice is set out before the occupancy agreement begins. We submit that this is appropriate to the general scheme of the occupancy principles, and appropriately balances occupants’ and grantor’s respective interests.
Prohibition of penalties
(h) an occupant is not liable to pay a penalty or fee for breach of any term of the agreement or any of the rules of the premises,
Like principle (d), this principle is an innovation (the Act occupancy principles are silent as to penalties). From our experience, penalty clauses are a common problem in marginal renting, especially for international students, whose agreement often include exploitative penalties and charges for ending their agreements during semester. The principle would appropriately address the problem.
(i) a grantor is entitled to charge for the use of a utility, provided that the amount charged is determined according to the cost to the grantor of providing the utility and a reasonable measure or estimate of the occupant’s use of the utility,
Like principles (d) and (h), this principle is an innovation (the ACT occupancy principles are silent as to utilities charges). The present principle would allow grantors to pass on the cost of utilities, including where an occupant’s use of utilities is not separately metered, but would prevent exploitative or unfair charges (such as exorbitant charges for internet access – a problem frequently reported by international students). The principle would appropriately address the problem and balance the respective interests of grantors and occupants.
Termination and eviction
(j) an occupant is entitled to know why and how the occupancy may be terminated, including how much notice will be given before eviction,These two principles would allow grantors to terminate occupancy agreements, and evict persons remaining in occupation after termination, without applying to the Tribunal. Principle (j) does not prescribe grounds for termination, nor the period of notice of termination. However, an occupant would be entitled to know how and why the agreement is being terminated (principle (j)), and the period of notice would have to be ‘reasonable’ (principle (k)), which would, we submit, vary according to two sets of factors. First, ‘reasonable notice’ may vary according to the reason for termination (for example, if it is because the occupant has been violent to the grantor or another occupant, the period might be very short indeed; if it is because the grantor is selling the premises, the period might be relatively long). Secondly, it may also vary according to the type of rental arrangement (for example, if the agreement is being terminated because the premises are being sold, ‘reasonable notice’ may be shorter in the case of an ordinary boarding house than in the case of a licensed residential centre for people with disability (LRC)).
(k) an occupant must not be evicted without reasonable notice,
We note that in Mercury Advisory’s ‘Report on targeted consultations for the reform of the boarding house sector’ (the Mercury report), commissioned by the IDC, boarding house operators were concerned particularly about termination and eviction. In particular, the consultants reported that
LRC and Unlicensed Property owners would like to see some protection for owners and other residents, with ability to evict disruptive residents immediately in line with “typical house rules”. … At present there seems to be some confusion about what they can and can’t do in relation to evicting.
The Bill accommodates this interest, and would clarify confusion around the process for termination and eviction. The principles would appropriately address the problems of terminations without reasonable notice, and uncertainty around how terminations may be effected, and balance the respective interests of grantors and occupants.
(l) a grantor and occupant should try to resolve disputes using
reasonable dispute resolution processes.
This is a sound principle, supported by the Bill’s provisions in relation to the Tribunal.
In our experience, bond disputes are common in marginal renting, especially in relation to international students, where they are so common that we suspect that some operators treat bonds as part of their ordinary revenues, regardless of whether they actually have a legitimate claim.
The Bill would limit the amount of bond payable by an occupant to the equivalent of two weeks’ rent, and require that the grantor lodge the bond with the Rental Bond Board. These provisions would appropriately balance the respective interests of grantors and occupants. They also make efficient use of the already existing systems of the Rental Bond Board.
Currently, disputes arising from marginal rental contracts are excluded from the Tribunal’s Tenancy Division, but some applications by marginal renters may be heard as consumer claims under the Consumer Claims Act 1998 in the General Division. Whether such a claim may be made depends on whether the accommodation provider is carrying on a ‘business’ for the purposes of that Act, which is not always clear or straightforward. We note that accommodation providers cannot apply in the Tenancy or General Divisions.
The Bill would amend the existing provisions of the Residential Tenancies Act 2010 (RTA) relating to the powers of the Tribunal to additionally provide that the Tribunal could hear disputes and make orders on the application of grantors, occupants, former grantors and former occupants. Section 190A would provide that applications could be made by any of these parties in relation to a breach of an occupancy agreement or a breach of an occupancy principle. Sections 186G(5) and 187(1)(k) would provide that applications could be made respectively in relation to the payment of bonds and the return of goods left behind after termination. In making a decision on an application, the Tribunal would be required to give effect to the occupancy principles (s 189A). As we noted in our discussion of occupancy principles (j) and (k), there would be no requirement for a grantor to apply to the Tribunal in order to terminate an occupancy agreement, but an occupant who disputed a termination (because, for example, reasonable notice had not been given, or because the basis of the notice was defective (say, termination for rent arrears where the occupant was actually paid up to date)) could apply to the Tribunal for orders resolving the dispute.
These provisions would establish a clear jurisdiction in the Tribunal for the resolution of disputes arising from occupancy agreements, for the benefit of both grantors and occupants. Section 189A would provide appropriate guidance to the Tribunal in its decision-making and ensure that the occupancy principles are given effect.
We make the following suggestions with a view to enhancing the operation of the provisions of the Bill.
Standard terms for LRCs
Section 186E would provide for regulations about occupancy agreements, including standard occupancy terms (provided they are consistent with the occupancy principles). We suggest that upon passage of the Bill, the Government should develop, as a matter of high priority, a set of standard occupancy terms for licensed residential centres for people with disability. We would welcome working with the Government, operators, residents and other advocates in a process of consultation on possible standard occupancy terms for LRCs.
The Bill provides that the Tribunal can hear disputes, and make orders, about uncollected goods (that is, goods left behind at the premises by a former occupant after termination of an occupancy agreement) (s 187(1)(k)). It does not, however, include an occupancy principle relating to uncollected goods and so would leave this matter to individual occupancy agreements and the common law of bailments.
The TU is working with Clover Moore’s office on amendments to clarify how uncollected goods may be dealt with. We suggest that the matter may be dealt with by regulations under the provisions of the Bill; alternatively, the procedures under the Uncollected Goods Act 1995 (UGA) could be made to apply. This would require an amendment to the Uncollected Goods Regulation 2011, which currently provides that the procedures of the UGA are not available where the RTA applies (cl 4). We submit cl 4 could be amended to exclude occupancy agreements from the operation of the exclusion of the RTA, hence placing them with the operation of the UGA.
The Bill makes no provision for penalties in the event of breach of its provisions (for example, where a grantor does not give a written agreement or written receipts, in breach of principles (c) and (d), or fails to lodge a bond, in breach of s 186G(1)).
We are working with Clover Moore’s office on amendments to introduce appropriate penalty provisions to enhance compliance with the provisions of the Bill. In particular, we suggest making provision for penalties of up to 20 penalty units for breach of ss 186D, 186F and 186G(1) and (2). This would be appropriate and consistent with similar provisions elsewhere in the RTA (specifically, ss 22, 159(4) and 162(5)).
Saturday, January 14, 2012
THE era of big, new public housing estates is over, according to the state's Finance Minister - with the O'Farrell government to pursue new public-private partnerships to redevelop NSW's biggest estates to include a mix of public and private housing.
The paper quotes Finance Minister Greg Pearce:
''It's finished. It's a proven failure, it's a proven failure in other parts of the world. It just creates cycles of disadvantage and it can't be managed,'' he said.
The era of big new public housing estates really ended in the 1980s, with the completion of the last of the large 'Radburn' estates, such as Rosemeadow and Ambervale in western Sydney. (If you want to put a single date on it, the era ended 1 January 1985, when the old NSW Housing Commission was abolished and replaced by the Department of Housing. According to Frank Walker, the Housing Minister at the time, one of the new Department's first achievements was to stop building large estates.)
And ever since, Housing Ministers from both sides of politics have proclaimed that the estates are 'a failure', a 'failed social experiment', etc etc. Meanwhile, closer to the ground, the DoH (lately restyled Housing NSW) has set about improving, regenerating, renewing and 'de-Radburnising' the estates, and in the course of which has conducted hundreds of community consultation sessions in which the estate form and, in particular, 'Radburn' is condemned, almost ritualistically: the dread beast sliced to pieces in powerpoint slides, and community members inculcated in how to scrutinise the estate as a text of 'broken windows', 'indefensible spaces' and crimes waiting to happen.
It's true that the estates have more than their share of problems, and that there may be benefits to particular areas, and to the social housing system generally, from a program of redevelopments; but it is also true that many people make their homes on the estates, and raise their families there... and indeed make a success of it.
So it's important to be respectful of the estates as peoples' homes, both in the planning and conduct of redevelopments, and in talking about them generally.
Perhaps its time to declare the end of the era of declaring the end of the era of large public housing estates.
Thursday, January 12, 2012
Monday, January 9, 2012
Grab your diaries and keep a place for these upcoming events:
First, the TU and Shelter NSW are holding a seminar, 'What's the Rent?', to discuss the possible futures of social housing rent policies and Commonwealth Rent Assistance. As we've noted before, there are a number of fronts of pressure bearing on the current state of rental assistance policy, and it's time for tenants and their advocates to start thinking about what sort of policy they'd like to see in the future.
'What's the Rent?' is a half-day seminar on Wednesday 15 February, 9 am- 1 pm, at the Sydney Mechanics' School of Arts, Pitt St Sydney. Cost is $45 (waged) and $20 (unwaged); registration closes 1 February.
Next up is Shelter's very popular 'Housing Economics for Non-Economists' lecture series, covering everything from matters of planning, tax, affordability and supply to the political economy of housing. The series comprises four lectures on consecutive Monday afternoons , starting 5 March (4 pm -6 pm). Cost is $150 for the series, with some 'scholarships' available; registration closes 24 February.
Contact Shelter NSW through those links for more information and to register. See you there!