Thursday, September 29, 2016

Postcard from Victoria - Pets, Repairs and Airbnb

If you've been paying attention to renting news this year you'll have seen a number of court and tribunal decisions about renting in Victoria getting quite a lot of attention. Here's our roundup of the decisions and what they mean for us here in New South Wales.
Okay, not that Victoria.


In great news for pet lovers, the Victoria Civil and Administrative Tribunal ruled that apartment blocks cannot have a blanket ban against pets. If there is a good reason to disallow a particular pet (keeping an elephant in a studio, for instance) then it is still open for the body corporate to refuse the pet.
As the Tenants' Union of Victoria said: "A blanket ban that says you're not even allowed to own a goldfish is clearly ridiculous."

What it means for us:
Some of the legal working in Victoria's strata legislation and ours is quite similar, so it is possible that similar blanket bans here are not legal. However, we wouldn't recommend running out to bring home a new pet just yet. Even if strata cannot block you, which is still a very big if, your landlord remains the biggest barrier between you and your new best friend. We've written about that side of things quite a lot on here.


Victorian tenants now have the ability to force a landlord to carry out repairs, even if they knew they were moving into a property that wasn't in good repair. Often tenants with little choice are forced to accept substandard accommodation - this decision gives them a little more power. As Victorian Legal Aid's Dan Nicholson said, "Ms Shields had little bargaining power in the market and was desperate to put a roof over her head... no one in Victoria should live in the conditions that Vikki Shields did for five years."
Renovator's delight... Full of character!

What it means for us:
NSW landlords already had the obligation that Victorian landlords now do - the obligation to both provide and maintain the premises in a reasonable state of repair and fit for habitation. There is no validity to the claim some landlords make that you take a property as is.
However, many tenants still live with repairs issues, often for the whole of their tenancy, so what gives?
The reason is fairly simple - many tenants know that a landlord holds a trump card over them. In NSW, as well as in Victoria, landlords can force you to leave without a good reason. In fact without any reason at all, which means that if you push too hard for repairs (and sometimes too hard is not very hard at all!) they can avoid the issue by forcing you to leave. Even being in a lease is no protection if its ending anytime soon. In the meantime, they still haven't fixed the leak keeping you up at night.
Ms Shields in Victoria had little bargaining power and many tenants in NSW feel the same way, with good reason.


There is a lot to talk about with Airbnb, and we'll be doing more over the next few months. Right now, we'll just focus on the two cases this year concerning Airbnb in Victoria. The first, ultimately decided that a tenant is subletting (and therefore in breach of the agreement) if they vacate the premises while the short term guest stays, even if its only for a short period.
The second, determined that the owners corporation of an apartment building cannot have a blanket ban on Airbnb style lets.
'Rent Street' Millers Point

What it means for us:
It is not clear yet what the two rulings mean for NSW residents. We agree with our colleagues in Victoria who said "Tenants should have the right to utilise the property as they wish, so long as they are upholding their responsibilities as a tenant.” However, knowing what those responsibilities are can get a little muddy.
A fairly perverse outcome of deciding that a two or three night stay constitutes a lease is that, much to the chagrin of many currently gleeful property owners, Airbnb guests could potentially claim full tenancy rights under the Residential Tenancies Act. Our Act contains an exclusion for holidayers, but not (for instance) for workers on a short trip.
The inability to have a blanket ruling against Airbnb largely affects the building owners more than tenants, and as it rests upon the particular workings of the strata legislation in Victoria, it may not apply here. If it does, tenants will still need to deal with the issue of whether or not they are subletting and need their landlords permission.

Keeping an eye on what happens in other jurisdictions is often very useful for our own state, but when you read articles in the paper remember that not all states in Australia are the same!

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