Tenancy culture study: Hood's 'Eviction at Hurstville'

Sam Hood was an Australian photographer whose career spanned the late nineteenth century to the middle of the twentieth century, during which Hood did a bit of everything: news, sports, portraits, weddings, funerals. In 1935 he photographed an eviction, and created the subject of today's tenancy culture study.

(Sam Hood (1935) 'Eviction at Hurstville')

It is a subtly powerful image. Without histrionics or sentimentality, the image quietly commands the viewer's attention and directs it to meet the gaze of the evicted woman. You might, after a moment, look elsewhere about the image, and pick up some clues as to the woman's circumstances – the thin cotton dresses, the home-cut hair – but again your attention will be drawn to face her directly, separated by a gulf of decades from the woman, but also face-to-face with the indignity and injustice of eviction.

The woman's eviction was one of about 5 500 for which New South Wales courts made ejectment orders in 1935. As a matter of law and practice, renting then was, in many ways, quite different from renting today. Just under half the population rented (in Sydney, it was just over half). There was no Residential Tenancies Act. It was common at the time for tenancies to be for a period of one week, with the same period of notice for termination.

Over the preceding decades, there had been a number of attempts to reform tenancy law, with mixed results. In 1915, the NSW State Labor Government introduced the Fair Rents Act, which allowed tenants to apply to a magistrate to determine, according to the formula in the Act, the fair rent for their tenancies. In 1920, the Fair Rents Act was amended to prohibit discrimination against prospective tenants who had children; in 1926, it was amended again, to provide for termination on just causes only, such as non-payment of rent, use of the premises for 'an immoral or illegal purpose', or because the landlord required the premises for themselves or a family member.

These reforms didn't last; in 1928, a conservative NSW State Government amended the Act so that it would not apply to new buildings and, by midyear 1933, cease to have effect altogether. We can assume that the woman Hood photographed was evicted for not paying her rent, but as far as the law of the day was concerned, her tenancy could be terminated regardless of the reason.

Another short-lived reform: in 1931, as a response to the drastic deepening of unemployment, rent arrears and evictions in the Great Depression, the State Government (back to Labor again) introduced the Ejectments Postponement Act, which provided for the postponement of evictions where the tenant pleaded that they were impoverished through no fault of their own. It was not wholly effective: apart from the question of making the 'impoverished' argument, tenants could still be required, as a condition of the postponement, to pay compensation to the landlord and, until amendments were passed, the Supreme Court considered that it was not bound by the Act and could continue making ejectment orders. In 1932, the State Government (conservative again) legislated so that by the end of 1935 the postponement provisions would cease to have effect. In any event, they did not prevent the eviction of the woman in Hood's photograph, nor the thousands of others evicted from their homes the same year.

There was one enduring reform from this period: the abolition of landlords' old common law remedy of 'distress', whereby a landlord could enter a rented house and seize the tenant's belongings, to ransom or keep in satisfaction for unpaid rent. Distress had been legislatively chipped away at since the 1890s, and was finally abolished in 1930.

The woman in the photograph, therefore, might have been able to keep such belongings as she had; but she would have had few, bleak options for alternative accommodation. In 1935 there was scarcely any public housing in New South Wales. There was Daceyville, on which work had terminated prematurely in the 1920s, and Millers Point, and a few buildings constructed by the City of Sydney in Pyrmont (Ways Terrace) and Chippendale (Strickland Flats); but even these were for relatively well-paid workers, not poor and homeless persons. For the evicted, there was family, or charity.

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There is, of course, another person in Hood's photograph: the woman's daughter. Her attention is elsewhere, caught by something beyond the frame of the image. We might look beyond the circumstances of the eviction too, to what would lie ahead for her, in terms of her housing.

Soon, renting laws would be reformed again: in 1939, on the outbreak of the Second World War, the NSW State Government resurrected the Fair Rents Act (ironically, it was the conservative government that did it). First under this Act, then under Federal Government war-time price regulations, and then under the Landlord and Tenant (Amendment) Act 1948, tenants were protected by strong legal protections against unfair rents and terminations. By the 1950s, however, by which time the girl in the photograph would have been a young woman, the 1948 Act was being legislatively curtailed, with fewer and fewer premises subject to its controls.

She may have found secure rental housing in public housing. Following the establishment of the NSW Housing Commission in 1942, and the Commonwealth-State Housing Agreement in 1945, the previously meagre public housing sector grew rapidly: to 1956, about one in six dwellings built in New South Wales was built by the Commission.

It's more likely that she would have found secure housing in owner-occupation. The prospect must have seemed dim in 1935, but after 1945 the rate of home ownership leaped, and kept growing until it peaked above 70 per cent in the mid-1960s, as more people whose families had always rented got into home ownership.

They got there on one or more of a range of things: full-employment; war service home loans and other government subsidies to housing finance; a burst of owner-building, particularly directly after the war; sales of rental properties by landlords chaffing under the 1948 Act; and after 1956, a huge program of sales of public housing to tenants and applicants. By the end of the 1960s, when the girl in the photograph had probably settled down with a family of her own, the Housing Commission had sold one-third of all the dwellings it had ever built.

If she is still alive today, the girl would be in her 80s. If she's like most 80-year olds, she'd still be living at home (at the Census, about one in five persons aged 80 and over were in aged care facilities and other non-private dwellings) and if still at home, the chances are very strongly that its owned by her or her family: about 88 per cent of those aged 80 and over live in owner-occupied housing. About seven per cent of 80 year olds live in social housing; just 4.5 per cent rent privately (of whom a small handful – a few hundred – are still covered by the 1948 Act).

The more things change.... For some time now, particularly for young households, home ownership rates have been declining. Public housing is in a spiral of decline so severe that it is undermining the continuing viability of the system. Today, almost 26 per cent of the population rents privately, and the proportion is growing (it's up 30 per cent on the proportion of privately renting just 15 years ago). For 25 years we've had a Residential Tenancies Act, but landlords can still give tenants termination notices without grounds. In 2012-13, the Consumer, Trader and Tenancy Tribunal issued 3 703 warrants to evict tenants.      

A sesquicentenary of recaption

The year is 1861. The place: stately Burghley House, ancestral seat of the Marquess of Exeter. The grand house and magnificent grounds are usually a balm to Brownlow Cecil, the 2nd Marquess, but today his lordship is in high dudgeon.

A poacher has been trespassing on his grounds again, filching his lordship's rabbits.

(Dead Hare and Partridges, by Jan Weenix)

Word reaches Mr Higgs, the Marquess's faithful servant, that the poacher is selling the rabbits in a local pub. With another of the Marquess's men, Mr Higgs is dispatched to the pub; the scoundrelly poacher has already departed, but one of his customers, a Mr Blades, is still there – with the dead rabbits. A fight ensues; Mr Higgs emerges with the prize – the dead rabbits – but he and his fellow servant are subsequently sued for assault by Mr Blades.

'Not to worry, Mr Higgs', says the court, 'you were merely exercising your master's ancient common law remedy of recaption. There's no liability for assault. Judgment for the defendants.'

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We couldn't let the year pass by without noting that it is the sesquicentenary of Blades v Higgs [1861] ER 693; (1861) 10 CB 713, that seminal case on the law of recaption: that is, the ancient common law self-help remedy of taking from someone, including through the use of reasonable force, something that lawfully belongs to you.

You might ask: what (on earth) does this have to do with tenancy? Does it mean that tenants who have been evicted can forcibly recapture their goods from their ex-landlords?

Well, the short answer is 'no'. Even if Blades v Higgs was admirably straightforward, the whole of the caselaw on recaption is old, complicated and inconsistent. Furthermore, in the most recent development in the law, the case of Toyota Finance Australia Ltd v Dennis [2002] NSWCA 369 (which involved – sign of the times – a car finance company and a pie van, rather than a marquess and his dead rabbits), the NSW Court of Appeal declined to follow Blades v Higgs, and restricted forcible recaption to where the wrongful possession was wrongful from its inception (and a landlord who finds themselves in possession of a former tenant's uncollected goods has not taken them wrongfully).

There is, however, a deeper connection between Blades v Higgs and tenancy law in present-day New South Wales.

For you see, Brownlow Cecil, the 2nd Marquess, had a son, William Alleyne Cecil, the 3rd Marquess -

(Note the dead rabbit worn under the chin)

- and the 3rd Marquess had a daughter, Lady Catherine, who married one Henry de Vere Vane, the 9th Baron Barnard -


- and great-great-great-great-great-grandson of the statesman of the English Commonwealth, Sir Henry Vane the Younger.


As such, Baron Barnard was also the third-cousin thrice-removed of Sir Henry Vane-Tempest, the 2nd Baronet Vane-Tempest of Wynyard, from whom descended...



...the Vane-Tempests of Condoblin, New South Wales, the respondent landlords in Rosberg v Vane-Tempest, an important case on the law relating to goods left behind after termination of a tenancy. In that case, the landlords unlawfully disposed of goods belonging to the applicant tenant, who did not seek to forcibly recapture the goods, but instead applied to the Tribunal for compensation. Despite the advocacy of legendary Koori advocate Cecil See, the Tribunal held that under the Residential Tenancies Act 1987, as the law then was, the Tribunal lacked the power to make orders for compensation for goods left behind and unlawfully disposed of.

For the TU and the TAASs, this became an important point of law reform – one that was achieved with the passage of the Residential Tenancies Act 2010, which expressly provides that the Tribunal may make an order 'requiring the landlord to pay compensation for goods disposed of by the landlord or landlord’s agent otherwise than in accordance with this Division' (s 134(1)(a)).

Or so it seemed. Now, developments in holiday law mean that awards of compensation for non-econonic loss – and many cases about goods left behind are about their sentimental, non-economic value – are subject to the thresholds and limitations of the Civil Liability Act 2002, which would have the practical effect of ruling out compensation in these cases altogether.

So the work of law reform continues. We'll be at it again next year, which also promises anniversaries even more auspicious than that of Blades v Higgs. Early in the new year it'll be the first anniversary of the 2010 Act, and we'll be having a close look at how it is going. And 2012 is the centenary of the Housing Act 1912, and hence the public housing system in New South Wales. We'll celebrate and otherwise observe it here on the Brown Couch.

Until then, best wishes for the season.