Responses to Fair Trading's discussion paper are due by the end of today, January 29 2016. If you haven't yet made a submission, we strongly encourage you to send one in now!
Making a submission couldn't be easier - all you need to do is send an email to policy@finance.nsw.gov.au saying why you think our renting laws should promote greater stability, liveability and affordability for tenants.
And while you're at it, why not drop in a line or two in support of our submission?
Cheers!
Hi Ned. i'm interested in reading the TU submission - but there doesn't seem to be an actual link on the blog. jenny.
ReplyDeleteHi Jenny - the word 'here' is a hyperlink. Otherwise you can use the full link which is http://www.tenantsunion.org.au/publications/papers-submissions/170-residential-tenancies-act-2010-review-submission.
DeleteCheers,
Ned.
Hi Ned, I just read your submission. Good work. I am wondering why you didn't put in a submission to strengthen Section 115 Retaliatory evictions, where the Tribunal is given the power to still effect a termination notice even if the landlord has been found to be retaliatory. I would have thought that TU might have been a stronger advocate here for tenants. Especially in light of that even if there is provision made in the Act to give Grounds for termination, in what way is the Grounds going to be policed? It's all well and good for the landlord to say that they are going to move into the property but what is stopping them from not carrying that out? Cheers Tee
ReplyDeleteHi Tee, thanks for the feedback.
DeleteOur submission deals with this in response to question 38, beginning at page 45 I've extracted it, below.
Cheers,
Ned.
"38 – Are there any other termination issues that the Act could better address?
Retaliatory evictions
Section 115 of the Act is said to provide the check and balance against landlords ending tenancies for bad reasons. It allows the Tribunal to consider a landlord’s motivation for issuing a notice of termination, and refuse to make a termination order if it finds the notice retaliatory.
As noted in the discussion on termination without grounds, the retaliatory eviction provisions do not always dissuade landlords or agents from using them for bad reasons.
Indeed, in yet another example we are aware of, a tenant received a no-grounds notice of termination less than two weeks after the Tribunal found that an earlier notice was
retaliatory. As can be seen in the results of our 2014 Affordable Housing Survey, these provisions do not give tenants a great deal of confidence in asserting their rights.
It is telling that section 115 does not appear to be relied upon very frequently in the Tribunal. Perhaps this is because the Tribunal has, on the whole, taken a cautious approach when considering the section. There are around ten reported decisions where the Tribunal has been asked to consider whether a notice of termination was retaliatory – all but one have been decided in favour of the landlord.
With such a paucity of cases, it is difficult to say the law is settled on retaliatory evictions.
The Tribunal is yet to produce a consistent series of decisions outlining the themes at play in these matters. Several decisions turn on landlords’ potential other motivations, one refers to the proximity in time between the tenant’s and landlord’s actions, and in one case
the Tribunal sees it as a discretionary power that it would decline to exercise even if it found the notice retaliatory. Notably, there is only one reported decision after 2013.
It appears that where tenants are referring to section 115 at all, they are doing so in the most clear-cut of cases. But we’re also aware that retaliatory termination applications are often not proceeding to hearing in the Tribunal. These matters frequently result in termination orders by consent, because conciliators advise this is the preferable outcome
when ‘the relationship between landlord and tenant has broken down’. This is not in keeping with the ‘balancing of interests’ objective of the Act – such as it is – and is a poor
reflection of our state’s housing system.
Our proposal to amend sections 84 and 85 would resolve any question of landlord motivations for ending tenancies. If a landlord may only end a tenancy on specified grounds there will be a much reduced role for the Tribunal in deciding what lies behind the decision to issue a notice of termination. It will be a matter of determining whether the
landlord’s need to recover vacant possession can be firmly established, and that they are not merely masking their true grounds.
In any case, with the law as it currently stands, section 115 should be reviewed and strengthened, so it can be put to better use by tenants."
Great answer, thanks Ned. I missed that part in the submission.
ReplyDeleteI don't suppose you have any links to the reported decisions on retaliation termination notices please? We are due at the tribunal soon, after requesting repairs (on receipt of a rental increase notice) and a subsequent 90-day notice to terminate on no grounds -according to agent the landlord wishes to move back into property, but no response about the repairs. Any case law links you have to share would be appreciated very much. Cheers
No problems, cheers. But what a crummy thing to have to deal with!
DeleteTry a "note up" search on section 115 through the Austlii website:
1. Visit www.austlii.edu.au
2. Select "NSW consolidated Acts"
3. Click "R" and find the Residential Tenancies Act 2010
4. Scroll and click section 115.
5. Click on the "note up" link towards the top of the page.
This will return all the reported decisions that refer to section 115. Some of them will be more relevant than others.
Best of luck with the hearing.
Ned.