The case of the lost public housing heritage tenancies

NOTE: Due to a change in regulation on 30th October 2015, these exemptions no longer apply to Land and Housing Corporation and Aboriginal Housing Office properties. See here for further details.

... and they didn't even know they were missing.

Strange but true: public housing tenancies in heritage properties are, for most purposes, exempt from the Residential Tenancies Act 2010.

The TU noticed the exemption only recently, while poking around the back of the Residential Tenancies Regulation 2010 – see clause 16. The exemption applies to certain types of landlords – and the NSW Land and Housing Corporation, the public housing landlord, is one of them – where they own certain types of heritage properties: in particular, properties listed as items on the State Heritage Register or a local council's heritage register.

We've pored over the registers and have identified more than 500 affected properties. Some of these are blocks of flats, so the number of public housing tenancies affected will be higher. 

Before we go any further, we should say to affected tenants: don't panic. You're still tenants. You've still got a lawful right to occupy your premises, and legal rights and obligations under the lease you signed with Housing NSW.  We might add: you're still obliged to pay rent, and Housing NSW can still take action to terminate your tenancy and recover possession of the property.

But strictly speaking, the exemption means that neither you nor Housing NSW can resort to the provisions of the Residential Tenancies Act in the event of most disputes about your rights and obligations – including the Act's provisions for dispute resolution through the Consumer, Trader and Tenancy Tribunal. (This means your own applications to the Tribunal would have to go under the Consumer Claims Act. It also means, strictly speaking, that Housing NSW's proceedings for termination would have to go to the Local Court or Supreme Court under the Landlord and Tenant Act 1899!)

And to make things really strange, we say affected tenancies are exempt from the Act 'for most purposes', because it appears that Part 7 of the Act, which contains some special provisions for social housing (like the special terms about water charges and debts, and some special grounds for termination), does still apply to these tenancies, even though the rest of the Act does not. This bizarre result is an accidental effect of the wording of Part 7, rather than a deliberate reservation.

In fact, we're convinced that the whole thing is accidental: the exemption of public housing heritage tenancies is a stuff-up, not a conspiracy. It appears to us the intended targets of the exemption were the handful of tenancies for places like Bronte House, which are let to heritage buffs to restore and occasionally display – not public housing.  Housing NSW was not aware of the exemption until we alerted them to it (and when we discussed it with one of their lawyers, he groaned). Housing NSW has said it'd much prefer all its tenancies to be under the Act, and will not contemplate trying to use the exemption to avoid its obligations.
 
Clause 16 itself provides a simple way of getting exempt heritage tenancies covered by the Act: the parties just have to agree in writing not to be exempt. We continue to correspond with Housing NSW as to the best way of getting exempt tenancies covered.

So, who's affected? From the relevant heritage registers, we count:

• approximately 200 premises in Millers Point and Dawes Point (being premises listed on the State Heritage Register as items of State heritage significance under the Sydney LEP 2012);
• approximately 89 premises in Woolloomooloo (being items of local heritage significance under the Sydney LEP 2012)
• approximately 89 premises in Waterloo (being items of local heritage significance under the Sydney LEP 2012);
• approximately 39 premises in Pyrmont (being items of local heritage significance under the Sydney LEP 2012);
• approximately 36 premises in Glebe (being items of local heritage significance under the Sydney LEP 2012);
• approximately 31 premises in South Granville (being items of local heritage significance under the Parramatta LEP 2011);
• approximately 13 premises in Darlinghurst (being items of local heritage significance under the Sydney LEP 2012);
• approximately 12 premises in Surry Hills (being items of local heritage significance under the Sydney LEP 2012);
• approximately three premises in North Sydney (being items of local heritage significance under the North Sydney LEP 2001);
• premises in the Strickland Buildings, Chippendale (being an item of local heritage significance under the Sydney LEP 2012);
• premises in the Alexandra Terraces, Camperdown (being an item of local heritage significance under the Sydney LEP 2012);
• premises in the former Salvation Army College, Petersham (being an item of local heritage significance under the Marrickville LEP 2011).

Not affected are public housing tenancies in properties that are part of a heritage conservation area on a local heritage register – clause 16 says the property must be a heritage item. Also not affected are community housing tenancies (because a community housing landlord is not a public authority, as required by clause 16).

The properties in Millers Point and Dawes Point are the only public housing properties on the State Heritage Register. You can find your local heritage register up the back (usually at Schedule 5) of your council's Local Environmental Plan: browse among the 'EPIs' (environmental planning instruments) on the New South Wales legislation website by the name of your local government area.

If you have any concerns or queries about the exemption, please contact your local Tenants Advice and Advocacy Service.

For more general information on social housing and heritage, see Shelter NSW's new Shelter Brief: 'Social housing and heritage: implications for repairs, maintenance, modifications and redevelopments'.