Wednesday, October 5, 2016

Just give me one good reason - why tenancy laws need to change

On Monday Jacob Saulwick asked the question, when should landlords be allowed to evict tenants? He shared the story of Penny, who had been in her rented home for five years when she received a termination notice in the mail. She wasn’t give a reason.

Under current tenancy legislation, renters in NSW can still be told to leave their home for no reason - the landlord can simply issue a ‘no grounds’ termination. But Penny was pretty sure she knew the reason: the email from the real estate agent informing her she was being evicted came in response to a request she’d sent them for repairs to be done before a proposed rent increase.

There’s always a reason for ending a tenancy, just not always a good one.

If landlords can end a tenancy without having to provide a reason, tenants are left with very few avenues for challenging an unfair eviction. This means tenants never know how long they can expect to be able to stay in a house. It also means that many don’t feel like they can ask for repairs to be done or complain about excessive rent increases or other problems that come up. They worry they’ll get kicked out for being ‘annoying’ tenants, and there will be no way to hold their landlord to account. They are right to worry - we know it happens.

Tenant advocates regularly hear from tenants who have received a notice of rent increase with a ‘no-grounds’ notice of termination in the same envelope, inviting them to choose which one they prefer. We get contacted by tenants who have taken their landlord to the NSW Civil and Administrative Tribunal (the Tribunal that deals with tenancy disputes) over repairs or a rent increase or some other matter and then received a ‘no-grounds’ notice of termination some time soon after. We even know of one occasion where a real estate agent served a ‘no-grounds’ notice of termination in the lifts on the way out of the Tribunal; and another where an agent drafted a ‘no-grounds’ notice of termination and handed it to the tenant before the Tribunal member had finished delivering a decision on an application for repairs.

There is a provision within existing tenancy legislation concerning ‘retaliatory evictions’. This section of the Residential Tenancies Act is supposed to protect tenants from getting kicked out because they tried to assert their rights. Unfortunately it is notoriously weak. There are only around ten reported decisions where the Tribunal has been asked to consider whether a notice of termination was retaliatory – and all but one of these was decided in favour of the landlord. We know of one tenant who received a ‘no-grounds’ notice of termination less than two weeks after the Tribunal found that an earlier notice was retaliatory.

If a tenant doesn’t do the right thing there are already provisions for landlords to end a tenancy, for example where there are problems with the rent being paid. The problem is that many landlords find it easier to end a termination via ‘no grounds’ terminations, taking away the tenant’s right to defend themselves and dispute the basis for termination if they are accused of a breach. A tenant about to lose their home should be provided with a reason, and they should have some way of challenging this if they need to.

So how can this be fixed? The solution is quite simple – get rid of the provisions within current tenancy legislation that allow landlords to end tenancies without giving a specific reason. Instead an expanded list of grounds could be provided - for example if a landlord needed to move back in – that allowed tenants to go to the Tribunal to test the reason for eviction if they believe it to be disingenuous. This would mean that landlords with a genuine reason to end their tenancy could do so, but tenants would have greater security.

One good reason to leave your home, surely that is not too much to ask?



5 comments:

  1. Well written. Unfortuately, in my humble opinion, the laws are being made by people who live in their own homes, not by tenants. Unless people have had to live with lack of repairs, rude real estate agents/landlords and choosing between big rent increases or moving, yet again, they are unlikely to fully understand the pressure, financial or emotional, that tenants face to keep a home and not just a house.
    Again, unfortunately, these people making the decisions often have little idea how hard it can be to find a property (taking time off work to look), raise the necessary bond (can not transfer bond between tenancies and it won't be released until the tenant has gone anyway)and cover all the moving costs including but not limited to removal truck, elctricity and gas connections and possible time off work.
    The disruption to the family can be far worse, especially if it means children changing schools, yet again, or extending long commutes for work.
    Once a property has been rented to someone it becomes a business, it is no longer the family home or whatever. It is seldom that you make a decision in business without a valid reason, why should evicting your tenant be any different. Have the courage to say why, dont hide behind the 'I don't have to tell you' bush. Landlords should be accountable, just like tenants have to be.

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    1. You're absolutely right, the impacts are financial, personal and social and they are significant. Evictions affect the individual, but also the broader community. We'd love to see more landlord accountability on this too (i.e. that landlords are required provide a genuine reason that can be tested at Tribunal if a tenant would like to challenge it). Thanks for your feedback, Jemima@TU

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  2. I find myself in this exact position right now. I insisted on some repairs being done at my last inspection on 6/10. We had broken tiles, since Feb, repeatedly asking for them to be fixed. Vermin in leftover debris from a fence being replaced .. cause it kept falling over. Garden debris piled up in 4 piles in the front yeard, from trees the landlords brother/brother in law had cut down, rats and/or mice in them, they actually asked me ... if it was rats or mice, does it matter, its vermin! An unsafe outdoor electrical socket that sparked... which we ended up putting bright red tape over. Phone sockets in rooms that didnt work, making it impossible to use internet in those rooms, since wireless also doesnt work in this house, or works very badly because its thick brick, it just didnt work. We asked for a window that has never closed to be fixed, and when i say never, we have lived here for 5 y ears, its never worked, they were aware of it, we had to put a huge fridge in front of it for safety so nobody could climb through it. We asked for the remnants from a fence they had replaced, and left the old one behind in some neat piles of garbage, and some not so neat piles to be removed. We had got rid of most ourselves, but could not remove the sheets of fencing, the huge wooden posts, or the cement posts with metal frames sticking out. Most of the smaller stuff we had got rid of. It also had vermin living in it. We did not have this problem before, the fence was done at least 6 months back, same as the garden debris out the front. Both there for at least 6 months. I cant remember what else i asked for, but i did insist on them doing these things, or at least telling us if they were not going to (because some of these t hings we had asked for before, and they werent done, and they never informed us of anything). Our old lease ran out on 6/10 the same day as the inspection. Our new lease started 7/10, i got a phone call on the 12/10 from agent telling me the owner wanted us out in a month, i said no way i could be out by then, the agent said she would inform the owner he had to give us 60 or 90 days notice, she phoned me the next day 13/10 and said owner had changed mind, we could stay while they did minor repairs. We received another call on the 20/10 telling us the owner had decided to terminate our lease after all and we would receive it in writing, which we did on the 20/10 telling us to be out by the 9/1 but giving us no reason. I informed them by email next day that by law, they had to give me a reason for 60 days notice, or no reason for 90 days notice, they emailed me a Form 3 stating a specific reason, and in the letter with it said the owner was doing major renovations. But I had spoken with the owners brother/brother in law after i had the first and 2nd call on 12 and 13/10, when he came to do some repairs on the tiles, and i told him we'd been asked to leave, then told its ok and could stay, and that i was glad , and he told me that the owners had received an official looking letter from the real estate agency, regarding repairs, and they thought i was being too picky. so i know why im having my lease terminated. It's retaliation. By the way, the tiles the tiles still arent fixed, now its a gaping hole where they used to be.

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    1. Thanks for sharing this - it's an incredibly frustrating thing to have happen. We've heard from many tenants about their experiences of unfair evictions after posting this blog and sharing Penny's story. If you are interested in our documenting and potentially sharing your story, please feel free to get in touch with us. You can email me (Jemima) at jemima.mowbray[at]tenantsunion.org.au. Thanks again, Jemima@TU

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  3. "We received another call on the 20/10 telling us the owner had decided to terminate our lease after all and we would receive it in writing, which we did on the 20/10 telling us to be out by the 9/1 but giving us no reason. " I am sorry, i meant to type 25/10 as the date we received the written termination.

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