Wednesday, November 25, 2015

Let's put a white ribbon on the Residential Tenancies Act

Today is White Ribbon Day, and we swear to stand up, speak out and act to prevent men's violence against women. We do this is by offering a solution to some of the legal complexities that arise when two people live together as co-tenants, and one person is violent towards the other.

Violence between co-tenants creates some very difficult legal problems - aside from everything else - including in relation to a residential tenancy agreement. Co-tenants have joint and several liability under a residential agreement, meaning that each person named as a co-tenant is liable for the acts and omissions of the others. If, say, some damage is caused to the property during a violent outburst, the victim of that violence is just as liable as the perpetrator. Similarly, if one co-tenant leaves (perhaps because they are excluded by an interim apprehended violence order) and refuses to pay any more rent, arrears accrue against all co-tenants including those who remain in the property.

Under the old law, which was replaced by the Residential Tenancies Act 2010, this joint and several liability remained until the tenancy was terminated. This usually meant when all co-tenants had moved out and possession of the premises was returned to the landlord. When the current law was written, it introduced new provisions allowing a co-tenancy to end without substantially affecting the landlord/tenant relationship. One person can now get their name "taken off the lease" without any need to end the tenancy and establish a new one between the remaining occupant/s and the landlord.

This is great when people make voluntary decisions about who they want to live with, but that's not often the case where domestic violence is concerned. The law does allow a co-tenant to apply to the Tribunal to end the co-tenancy of another, but the Tribunal can only do so after considering the "special circumstances of the case". And any good Tenants' Advocate will tell you that there's nothing special about violence against women.

The new law also introduced a provision to deal more specifically with domestic violence between co-tenants. A person's interest in a tenancy now ends when a final apprehended violence order is made against them, if it includes an order excluding them from the premises. This is an operation of the law - it does not require an application to a Tribunal, or a letter to the landlord. It simply happens by virtue of the order being made.

But a final apprehended violence order is difficult to obtain. It can take a very long time to procure one, and in the process many co-tenants will stop residing with one another. In circumstances where the co-tenancy can't end by agreement - which is not uncommon where violence against women is concerned - or by an application to the Tribunal, parties remain just as jointly and severally liable while waiting for a final AVO as they would have been under the old law.

This can be easily fixed - all it will take is two small changes to the law. First, the Tribunal should be required to consider only the "circumstances", rather than "special circumstances", when hearing an application to end a co-tenancy. Second, a person in need of protection should be able to apply to the Tribunal to end a co-tenancy on the grounds that an interim apprehended violence order has been made. Such applications should be heard on the papers, without the need for a full hearing that would put a survivor and their assailant in the same room together.

Fair Trading NSW is in the process of reviewing the Residential Tenancies Act, and they ought to be looking at these provisions. Unfortunately their discussion paper makes no mention of domestic violence, other than to note the changes that were brought in with the current law.

That shouldn't stop us from talking about it, and bringing it to their attention.

You can contribute to Fair Trading's discussion paper online by clicking here.

1 comment:

  1. Makes sense to me. It would be good if this could happen on documents without a hearing even ifthe AVO does not include exclusion from property. There are courts who are reluctant to eclude from property as this may make one of the parties homeless. Orders that say not allowed to raise voice etc are pretty much useless, the victim would likely still want to go.
    As a survivor of DV I would have been very hesitant to take my ex to court so we did not have to share a property, done on papers would have been good.


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