Dealing with property as the landlord sees fit

Anyone with a passing interest in tenants' rights will know the biggest issue we face is housing insecurity. It's written into the very laws that claim to give us certainty and stability. Landlords are lawfully entitled to end tenancies without a reason, which completely undermines all the rights that tenants do have. It creates a deep, dark hole for tenants who fear that sticking up for themselves will just unsettle their ability to stay housed.

We know the best way to give housing security to tenants is to get rid of any legal right for landlords to end tenancies without grounds. In New South Wales this means making some changes to sections 84 and 85 of the Residential Tenancies Act 2010. When we try to bring this up in polite conversation we're often chided for our naïveté and told such change would impinge upon a landlord's right to deal with their own property as they see fit. This, we're assured, is just a stretch too far.

Indeed, when Fair Trading NSW kicked off the statutory review of the Act they included some commentary and questions around ending tenancies without grounds:

Commentary: There have been suggestions that 'no grounds' terminations be removed and that the landlord be required to provide a ground for termination from a prescriptive list of possible reasons. This proposal would need to balanced against the view that landlords are entitled to deal with their property as they see fit. 

Question 33: Should landlords be required to provide a reason for terminating a tenancy? If so, what types of reasons should be considered?

... and of the 180 or so responses they received, about half indicated they would like landlords to be required to give a reason to end a tenancy. One in about three responses had nothing to say on the matter, and the remaining one in five said they're okay with the way things are.

One of those who indicated they're comfortable with the status quo was the Law Society of NSW. They said:

Landlords should not be required to provide a reason for terminating a tenancy, provided the landlord complies with the requirements for notice, the landlord should be entitled to deal with the property as the landlord sees fit.

Tsk tsk. Lawyers should know better. There are many, many ways the law intervenes to prevent landlords from dealing in property as they see fit.

But they're also a pedantic bunch, and we know they like to get this stuff right. Our Principal Legal Officer has drawn up a quick guide for any lawyers looking to brush up. Over to you, Counsel...

What about the landlord’s absolute right to possession of the property?

... the landlord should be entitled to deal with the property as the landlord sees fit.*

This “should” statement turns out to be wishful thinking. It was almost true in feudalism. But, the landlord was still subject to the terrible power of the Crown. Not even the Church was safe - see Henry VIII.

In modern Australia all land is held by or of the Crown. This mirrors feudalism, but the whole picture is more complex.

The landlord has limited control of the use of the land. There is much control of what land is used for. There is control of what happens under the surface and in the sky above. For example, the Mining Act 1992 and the Civil Aviation Act 1988 (Cth).

The landlord cannot build anything substantial on the land without approval - Environmental Planning and Assessment Act 1979. Approval of the use of land is controlled by zoning – Local Environmental Plan. Growing certain plants is prohibited – Drug Misuse and Trafficking Act 1985. Some other plants are subject to controls as weeds – Noxious Weeds Act 1993.

The title can be taken away. Our governments can compulsorily acquire private land for various purposes. There is legislation for this at state and commonwealth level. For example:

· Local Government Act 1993, Chapter 8 Part 1
· Roads Act 1993, Part 12
· Land Acquisition (Just Terms Compensation) Act 1991
· Lands Acquisition Act 1989 (Cth)

And by random strangers, by adverse possession – Limitation Act 1969.

The landlord is not entitled to deal with the property as he or she sees fit. The landlord’s entitlements in relation to land are conditional and controlled.

The power the landlord has to evict tenants without a reason is less a power in relation to land than a power over people: a power to cause inconvenience, cost and distress.

No grounds termination is an anomaly. The Residential Tenancies Act 2010 should be amended to require grounds for eviction.

*1 February 2016, Law Society of NSW submission to the statutory review of the Residential Tenancies Act 2010, at 33