New strata rules and you

Starting 30 November 2016, there will be some significant changes to the laws affecting tenants living in strata blocks. That's actually a lot of us - more than half of all people living in strata in NSW are tenants.
You can read more about the changes here, but what are the big changes that will be of particular interest to tenants? As is often the case with legislative reform, it's a mixed bag. Here are the ups and downs of four big changes which will affect tenants.

Pets

Considering the futility of life without strong tenancy rights

The model by laws will now be much more pet friendly. The default position will be that pets are allowed so long as the pet owner is responsible for the animal.
This is only the default for new by-laws. Existing strata schemes will need to vote to adopt the change, and even new strata schemes can choose not to use it - and maintain an anti-pet stance.
Of course no matter what the strata scheme decides, currently your landlord still has the ability to put a no-pets clause in a residential tenancy agreement. There is still a long way to go before tenants might make grown-up decisions about pets for themselves.

Washing

Hang me out to dry, you wrung me out, too too too many times

Good news - hanging your washing up on your balcony will no longer be a breach of the by laws, so long as it's not hanging over the balcony railings. Again, this only applies to strata schemes which adopt the new by laws.

Over occupancy

We won't take up too much room!

One of the interesting changes is the ability for strata schemes to limit the number of people who can live in the premises to no more than two adults per bedroom.
By extension, tenants will have clearer protections against strata schemes arbitrarily deciding to cancel key cards with the introduction of this by law removing one of the dodgy reasons some strata schemes have used to lock tenants out of their homes.
It's important to remember that vulnerable tenants who are being forced into overcrowded accommodation may not actually have much of a choice in these matters. That's not to say strata should allow overcrowding, but it is important that it is the exploitative landlord who is penalised by their breach rather than their vulnerable sub tenants. It is not clear in the new law that this will always be the case.

Tenant representation

Whiskers thought he was fitting in well
at his first strata committee meeting

There are two aspects of the new legislation that let tenants have something of a say in their strata community. Any tenant will be entitled to attend any meeting of the owners corporation (except during discussions of financial matters), though they won't be allowed to speak or vote.
In strata schemes where more than 50% of the lots have tenants, the tenants will be able to elect a tenant to represent who can speak, but not vote, on their behalf. How effective this will be at ensuring the majority of the strata community is heard remains to be seen.

Mythbusters: Boarding House Edition

'If the prostitutes and criminals don't get you, the ice addicts, deviants, and bums surely will. Why just look at them now, the usual suspects leering at you from their den of ill repute - or 'boarding house', which I do believe is the technical term:

"We'll get ya!"

I assume they paint the boarding house walls in the style of a police lineup to save time. Save yourself while you can - run to the hills (district)!'

Or so went the dominant view surrounding the application for construction of an eight-room boarding house in Cromer, on Sydney's Northern Beaches. Warringah Council's Development Assessment Panel granted development approval last week despite an overwhelmingly predictable backlash. Approximately 800 individuals made submissions to council regarding the development. According to The Sydney Morning Herald, just 0.12% - that is, one - of the submissions were supportive of the project. The record shows those 799 dissenters included Social Housing Minister The Hon. Brad Hazzard MP, Warringah Mayor Michael Regan, and the Principal of a neighbouring primary school. 

The following comments are not attributable to any of those persons, but do give an idea of the flavour of much of the opposition:

"Most [boarding houses] are filled with ice addicts, heroin junkies, paedophiles and jail birds. Please stop this from happening asap [sic].."

"Not only because there is no control over who will be living there (paedophiles???) but also because the children might be exposed to drug/alcohol related problems."

Clearly, these are serious numbers and very serious allegations. So how could the Cromer boarding house have been granted approval? Does it evince a disregard for community safety and interests? Perhaps a sign of arrogance - hubris even? The undue influence of property developers? Or could the opposition campaign be extraordinarily misguided in multiple respects?

Lock in D for the full million, Eddie. It is difficult to know where to start in debunking the opposition to what should be an entirely uncontroversial development.

But let's start with what exactly has been approved. As Warringah Council's report on the development application provides, the Cromer project may be categorised as a 'new generation boarding house'. Earlier this year, the Australian Housing and Urban Research Institute ('AHURI') released a discussion paper which defines the term. And the truth is less than earth shattering: "blocks of small 'studio apartments' or in some cases one-bedroom apartments with separate bathroom and kitchenette". And those undesirables? According to AHURI, they are largely a mix of professionals, students, and shift workers, often paying in the vicinity of $400 a week in rent.

So don't believe the hype. The Cromer development is a largely ordinary apartment block, set to be inhabited by an 'ordinary' cross section of the community. 

Somebody please think of the children!

But even if the project better resembled a more traditional boarding house, the 'addicts and criminals' claim would not hold water. As the AHURI report states, traditional boarding houses are indeed home to "some of society's most excluded and vulnerable individuals...". But the assumption that vulnerable residents bring danger and degradation is simply not borne out. 

Just look at Cromer itself. According to Fair Trading's Boarding Houses Register, its postcode of 2099 is already home to two such boarding houses. The neighbouring postcodes of 2098 and 2100 also contain one each. And there are likely more still, as the AHURI report notes: "...there are strong grounds for believing that the actual scale of NSW boarding house provision is understated by the Fair Trading register...the numbers registered with Fair Trading as at August 2014 were considerably fewer than those formally approved to operate as boarding houses by the council concerned." 

The reality is that the people the campaign so fears will move in are already living in and around Cromer, possibly in considerable numbers. And yet the sky has resolutely failed to fall. Fear and loathing inspired by the vulnerable of our community is simply wasted. 

Finally, the notion that a development application should be refused on account of objections such as those raised in this matter does not concord with how planning law works. Broadly, a development application is assessed according to its compliance with technical and dispassionate criteria, such as height limitations and permitted use. Subjective contentions such as those raised by the opposition here do not get a look in. This quote from the NSW Land and Environment Court, relied upon by the panel in approving the Cromer project, puts it best: "The consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions...there must be evidence."

So forget the hysteria, loud as it may be, and rest easy. This development will not send Cromer to hell in a hand basket. Indeed, this has all happened before, as the seemingly prophetic words of a boarding house proprietor quoted in the AHURI report make clear:

"When [council] has the notification period...all hell breaks loose. There's a residents' action group that's formed, there's agitation from them, you'll have 40 people come to the Council meeting, all throw their arms up, 'there'll be derelicts here, there'll be drug dependents, etc., not in our back yard, get rid of it. Make sure you refuse Mr Council and Mr Mayor and make sure it goes away'."

Far from devastation, the Northern Beaches are as safe as boarding houses. 

Welcome to Dubbo, please enjoy your stay...

Earlier this week a scanned copy of a letter started doing the rounds on social media . It was said to be from Family and Community Services, delivered to tenants of the Aboriginal Housing Office in the Dubbo area where the 45th Koori Rugby League Knockout is to be held this weekend.

The letter reads:

As the warmer months of the year approach and with school holidays currently well underway it is timely for Family and Community Services (FACS) Housing Services to remind our tenants about the Good Neighbour Policy, particularly in regard to additional persons and visitors. 

FACS is well aware there are a number of activities scheduled to take place in Dubbo. Some of these are occurring right now, and then there are other activities planned for the remainder of the school holidays. One of these activities is the NSW Annual Aboriginal Football Knockout to be held in Dubbo over the long weekend. 

Please be assured that FACS is very supportive of all activities, in particular the football event. However, we are aware that the football, in particular, brings high numbers of visitors into Dubbo to celebrate the event with friends and family and many stay in social housing properties. 

Having visitors is enjoyable however sometimes it may bring stress particularly if you are unsure of how to manage situations that get out of hand. If we can help in any way please contact your CSO on [number] or if there is an emergency please call the police... 

On the other hand if you are disrupted by neighbours or their visitors please also make contact with your CSO or the police.

Quite understandably, the appearance of this letter raised a few eyebrows at the Aboriginal Tenants Advice and Advocacy Services. Was it real? Where did it come from? And why is it written in such a patronising tone?

We contacted FACS Statewide Housing Services to see if we could get some answers. They confirmed this letter was sent from FACS' Dubbo office to all local Aboriginal Housing Office tenants last week. They also confirmed the local office had received numerous complaints about the letter and had gone into a bit of damage control, liaising with local 'Aboriginal representatives' to explain the thinking behind the letter. We're not exactly sure what this means, but we do know that the Western Aboriginal Tenants Advice and Advocacy Services was kept pretty busy with phone calls from local tenants yesterday.

Local FACS offices have got a bit of form when it comes to sending ill-conceived correspondence en masse to tenants. Long-time readers may recall this little piece of Christmas cheer dropped into the letterboxes of tenants on the South Coast a few years back, which assured local tenants that "rent doesn't stop for Christmas".

Now, it's fair to say that the tone of the letter sent by the Dubbo office is, on the face of it, a little less offensive than the one we saw on the South Coast not three years ago. But given the nature of this particular correspondence - directed at tenants of the Aboriginal Housing Office, in anticipation of an annual event that is run by and for Aboriginal people - we have to look beyond what we see at face value. The Koori Knockout is an annual event, which is held in a different location each year, and this is the first time a FACS Housing Services office has seen fit to circulate such a note to all local Aboriginal Housing Office tenants.

Hopefully it will be the last, because - understandably - it hasn't been very well received. To see just how badly this has been seen by Aboriginal people, check out this post to the 2015 Koori Knockout host's facebook page, and the response it has attracted.

There's a pretty clear lesson for FACS in both of these incidents. If you want to alienate yourself from the communities you're supposed to be serving, just whip up a quick letter and send it around to as many people as you can think of without a second thought.

On the other hand... if you want to engage with local communities to have a genuine dialogue about anticipated concerns arising from events like Christmas or a Koori Knockout in your area, don't just whip up a quick letter and send it around to as many people as you can think of without a second thought. This is true for everyone, but it is especially true for communities who have good reason to be wary of the thinking behind a Government agency's activities towards them.

Instead, consult with key folks in your community about what you want to say, and why you want to say it. Talk to 'Aboriginal representatives' before you send your message out into the world, rather than after the damage is done. They'll tell you if it's going to be wide of the mark, and they might even help you put something worthwhile together.

That's exactly what we did - and we came up with a special edition of the Tenant News. It's published with the Koori Knockout in mind, and it's full of great yarns by and for Aboriginal tenants.

There'll be a few printed copies of the Koori Tenant News circulating around Dubbo this week, so keep an eye out for it if you're in town for the Knockout. And it's available to download from our website right now. Let us know what you think!

We reckon it makes for better reading than that letter from the local FACS office.

Striking back

 Another week goes by, and we draw ever closer to Parliament’s consideration of the Government’s controversial Residential Tenancies and Housing Legislation Amendment (Public Housing - Antisocial Behaviour) Bill 2015. The Government's order of business suggests it may even come before the Legislative Assembly again this afternoon. 

We dissected its contents as a whole in a recent edition of The Brown Couch, but want to have a longer-form look at one section in particular.

Clauses 154B, 154C, and 156A of the Bill allow housing providers to issue ‘strikes’ to tenants for breaches of a tenancy agreement. The issuing of three strikes may permit the landlord to seek termination through the Tribunal. In short, a tenant may be evicted for a series of breaches that, if taken alone, would not be sufficient to justify termination under the current law.

Struck out to Housing? Better hope you still can take your bat and go home…

It is notable that the ‘three strikes’ system is not the NSW Government’s own invention. Most prominently, Colin Barnett’s West Australian Government implemented a similar scheme in May 2011, and Campbell Newman’s Queensland followed through with its own version in July 2013.

As both are relatively recent developments, and available reporting on outcomes appears inconsistent, it is difficult to draw conclusions in the absolute. But data and third party analysis that has emerged from both states seriously undermines key claims being made by our Government about the efficacy of the strikes system elsewhere in the Federation.

Geoff Provest MP has spoken on behalf of the Government in Parliamentary debate on the Bill so far. Perhaps fresh from a quick look over the border from his seat on the Tweed, he had this to say on the 'three strikes' system on August 5:

“I am buoyed by the experience of Queensland and Western Australia where more than 80 per cent of first strikes do not progress to a third strike. I have taken the liberty of speaking to some providers in the community housing sector and those who have experience in the Queensland system believe that this is appropriate legislation that is easy to understand and that produces real results.“

First, how does the statistical aspect of Mr. Provest’s claim stack up? In narrow isolation, the claim about progress to third strikes is meeting its mark. The West Australian Equal Opportunity Commission’s ‘A Better Way’ report indicates that, between May 2011 and April 2013, 1705 first strike notices were issued to public housing tenants. 234 of those, or 14%, proceeded to a third strike. In Queensland, UQ’s Institute for Social Science Research paper on social housing clients with complex needs found that, in the 2013-14 financial year, 1277 first strike notices were issued, and 51, or 4%, proceeded to third strike.

But crucially, the UQ report also has this to say on the proportion of first strikes that escalate to third:

“Until the policy has been in operation for a full two-year period, it will not be possible to indicate the proportion of first strikes that result in subsequent strikes in any one year. Further, no comparative data is available on the frequency of recurrence of strikes and breaches. It is therefore too early to tell if strikes have been effective in changing tenant behaviour.”
(Our emphasis)

The Western Australian report similarly noted:

“…it is difficult to extrapolate from statistics of this nature a clear and direct link between a policy and its deterrent effect, especially in the absence of any comparison data of the frequency of incidents of disruptive behaviour before the policy was implemented.”

In this regard, we might also suggest that a decline of frequency between first and third strikes may be attributable to a great number of factors – not least tenants that have never breached, and will never breach, their agreement with a degree of regularity that would result in the issue of a second or third strike notice. Therefore, strike notices cannot definitively be shown to induce modification of tenant behaviour. One might also conclude that the system weeds out those capable of dealing with the convoluted procedures surrounding the issue and acceptance of strike notices, leaving those with the most complex needs vulnerable to eviction at strike three.

The Government's assessment, as put by Mr. Provest, also fails to account for other important figures available to date.

For one, the UQ report states that complaints against Queensland public housing tenants increased by a massive 37.5 per cent (to 5463) between July 2012-June 13 and July 2013-June 14 – the latter of which included the first ten months of the three strikes policy. This is certainly alarming, given our concern that the scheme simply induces tenants to complain about neighbours they may be feuding with, rather than attempt to resolve differences by other means.

Moreover, the impact of the policies upon indigenous tenants has been markedly disproportionate across both states. An investigation into the WA system conducted by the ABC found that, from May 2011 to December 2014, 82 of 137 tenants terminated under the scheme were indigenous. And in Queensland, the UQ report notes that indigenous households were “extremely over-represented” in receiving multiple or serious strike notices in 2013/14; 47.7 per cent of 369 relevant households were indigenous.

Finally, whilst legislation that is ‘easy to understand’ is perhaps a subjective matter, we have no hesitation in declaring that Mr. Provest is most optimistic with this aspect of his assessment. The regime established in the Bill is clearly very complex, and almost certain to lead to increased workload, and therefore expenses, for the Department of Family and Community Services. Take a look for yourself here, at Clause 154C, and draw your own conclusions.

The wedding that stopped a suburb...

The Brown Couch joins the growing list of Sydney's finest tabloids in congratulating Salim and Aysha Mehajer on their recent nuptials. From all accounts, it was a cracker of a party.

Congratulations, Salim and Aysha.

Not only did they draw a significant crowd on their special day, they seem to have captured quite a bit of attention on the social pages as well. Unfortunately, not everybody saw the happy event for what it was. In fact, one social commentator within the broad circle of your correspondent's acquaintance was heard to say something akin to "I was almost ready to believe this was an ad for another season of [Paul Fenech's TV trash-masterpiece] Housos". Oh, touché!

But the link is not as tenuous as it might at first appear. Indeed, the sort of cavorting and carrying on that seems to have been the hallmark of the Mehajer wedding - with reports the event included closing off an entire street and threatening to tow neighbours' cars if they were parked in the way - is just the kind of thing many 'Housos' would simply love to be able to do. But of course, they can't, because of a general prohibition on tenants engaging in the kind of behaviour that would interfere with the peace, comfort and privacy of their neighbours (at section 51 of the Residential Tenancies Act); along with the specific provision that requires extra scrutiny of social housing tenants, to ensure their tenancy has no serious adverse effects on the neighbourhood (at section 152).

But evidently, Salim and Aysha are not Housos. With the kind of wealth on show at their wedding on the weekend, they'd be hard pressed to meet the eligibility criteria on income alone. So they're far more likely to get away with the occasional street party indulgence without it costing them the right to remain in their home - which is something we've discussed before.

Social housing tenants, on the other hand, are not so lucky. They are about to be subject to even further restrictions on their ability to annoy their neighbours, with the introduction of 'strike notices' a key feature of the Residential Tenancies and Housing Amendment (Public Housing - Antisocial Behaviour) Bill 2015 that is currently before the NSW Parliament. Strike notices will allow social housing landlords to end tenancies because of behaviour that is actually not so bad as to justify the termination of a social housing tenancy agreement. Annoy your neighbours three times in a year, and you're gone.

The moral of this story is that street parties can be fun, but clearly they're not for everyone.

Who are the people in your neighbourhood?

We care very deeply about our homes. They are our sanctuary - that one place in the world where we can be assured of safety, security, peace and well-being. Where we can be our own masters, answerable to no-one. Our home is our castle - impervious and impenetrable. It has been this way since time immemorial...

Predjama's castle, Slovenija

But it's more than that.

We live and die in our homes. We sleep and we dream. We grow up, we raise our kids, we see and hear many of the things that make us who we are. In our homes, we can choose which parts of the world may come to us... and when we go out into the world it is to our homes that we will return. Our home is our context. It helps to shape us and to prepare us for what lies ahead. It enables us to establish routines, and helps us to stay in control.

Of course, our homes exist in a context all of their own - the neighbourhood. And we can't always choose our neighbours.

There is an uneasy relationship between the idea of complete mastery of one's domain, and the need to be getting on with your neighbours - especially when we don't all see eye to eye on questions of lifestyle. Put simply, this is where control and no-control will often meet head-on. As we turn to more high density housing in our cities' most populated areas, we can see the challenges of this relationship coming to the fore.

Newcastle Herald columnist Jeff Corbett wrote yesterday about the impacts of noisy neighbours on a family's ability to enjoy their home. "Should we have more protection from councils and police of our right to enjoy our home?" he asks. "Have your homely rights been challenged?" In getting to this question, Corbett tells the story of a Merewether couple who are forced to endure their neighbour's distasteful music until all hours of the morning. Oh, and of course, these neighbours are young tenants.

Says Corbett: "NSW Fair Trading recommended seeking the managing property agent to remind the tenants of their obligations under the lease, which didn’t work, and the landlord is happy to keep the young people paying a high rent for a dilapidated house."

Lucky for some, unlucky for others. We'll come back to this in a moment.

But in the meantime, it demonstrates a point. You can perhaps be the master of your entire neighbourhood, not merely your own domain, if your neighbours happen to be tenants.

The Residential Tenancies Act imposes obligations on tenants as neighbours that mortgagors and owners can not be subjected to. As a matter of contract with the landlord, tenants must not interfere with the reasonable peace, comfort or privacy of their neighbours. This means that the right to occupy a home as a tenant could, in theory, be terminated by a landlord who has had sufficient pressure brought to bear on him by the tenants' neighbours. (We hasten to add here: they'd also need some pretty strong evidence).

Mortgagors and owners, on the other hand, are not subject to contractual obligations concerning how their behaviour might affect neighbours. Their observance of good neighbourly behaviour must be with regard to such things as the torts of nuisance and trespass, and in some cases - such as noise - statutory requirements. But failure to observe such behaviour will never directly result in the loss of their right to reside in their home.

The pecking order is not hard to see. While a person's home may well be their castle, owners trump tenants. Owners can behave with a certain level of impunity in their homes. Tenants, not so much...

But what of Corbett's story of the landlord who is happy to keep those noisy tenants on? The idea that a landlord would rather keep a dilapidated house full of young tenants paying high rent, than terminate the tenancy due to noise complaints, does strike a chord. But the simple truth is they could easily rent it out again, in just as poor condition, for the same weekly rent or more, to the next group of tenants who come along. Many landlords and real estate agents would have absolutely no qualms with this, and it happens often enough.

Now, while we've been discussing all of this on the Brown Couch, there's been another conversation going on over at the Flat Chat Forum. Of concern is the idea that social housing tenants are being housed in head-leased units in strata. There seems to be an assumption - at least on the part of some forum members - that social housing tenants will bring with them a certain type of behaviour that is not conducive to the more communal nature of life in strata.

As we increase the density of our housing, so too we increase the diversity of those living in close proximity to one another. But it serves nobody to make assumptions about how a particular cohort is likely treat its neighbours.

Anyone is capable of behaving badly. The thing is, though, those who own their home are more likely to get away with it...

Who are the people in your neighbourhood?