Happy anniversary, Tenants' Union of NSW

The very first meeting of the Tenants' Union of NSW was held 40 years ago today, on August 17th 1976. We are now 40 years strong.

Past and present staff and board members of the Tenants' Union,
celebrating 40 years of advocacy

We've been building up to this milestone all year. We launched our celebrations with a BBQ at Northcott Towers, sharing food and cake with good friends and colleagues. We've shared 40 moments from our organisation and our network's history, reflecting on the great work of tenants' advocates past and present. And we've compiled a 40th anniversary bumper edition of the Tenants' News.

On Monday we threw a bit of a birthday bash, including a half-day forum on the future of tenants' rights. We've already shared some of the best bits on Facebook, and we'll be adding a few more over the next couple of days.

Oh, and we've produced a half-hour movie that tells our story. We're really quite proud of it - we'd love for you to check it out.

Happy anniversary, Tenants Union of NSW!

Goodbye from OPTS

From December, the Tenants Advice and Advocacy Program (TAAP) – administered by NSW Fair Trading, using tenants' money – will no longer fund a separate resource service for older tenants, and the Older Persons Tenancy Service (OPTS) will regretfully close its doors.

From OPTS's legendary tenants advocate Dr Robert Mowbray, a final postcard.

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OPTS, along with the Park and Village Service, has received the chop. 

With the loss of OPTS from the TAAP, over 80 years of worker-experience in the community sector may be lost ... and much of this has been in the area of tenant advocacy! But, more importantly, there will be significant gaps left by the chopping of OPTS. NSW Fair Trading advises that TAAP will continue to assist older tenants and park residents, particularly social housing and vulnerable tenants/residents in the same way as previously. But this is nonsense.

Regarding OPTS, what particularly will be missing is support to direct services on older persons issues (for example, dementia, capacity, hoarding), and the complex casework OPTS previously did; for example, with protected tenancies, long-term tenants and older tenants in unusual circumstances. This is a real concern. The changing demographics of renters shows an increasing number of older persons living in the private rental market. Indeed, recent research identifies older, single females in the private rental market as the 'new poor'. Research by the Australian Housing and Urban Research Institute found that renting is no longer temporary but permanent for increasing numbers of people, who have been priced out of the housing market. Indeed, 30 per cent of long-term tenants were aged 45-64. Dr Stone, the researcher, said the potential cost of this older group was a 'policy bomb waiting to go off'!

Direct services generally with no additional funding will not be able to provide the same level of support with complex casework.

Some of OPTS achievements are reflected in a selection of its case studies. Here are some really complex recent matters where OPTS assisted … 

A protected tenant 

Jock has lived in a terrace house in Kirribilli since 1974. The landlord has done little repairs over these years.  Jock paid rent of $300 per week. He contacted OPTS after his real estate agent served a 14-day termination notice, alleging he was 30 months behind in rent and owed $28,000.

OPTS advised Jock that he was a protected tenant and, because his landlord had never lawfully increased the rent, he was liable to pay what he did back when he started his tenancy. Simple arithmetic showed he was in rent credit of over $200,000. Putting this another way, his rent was paid up for another 800 years!

OPTS and his client met with the real estate agent prior to a Consumer, Trader and Tenancy Tribunal hearing. OPTS convinced the agent that the tenant was a protected tenant. The agent withdrew his application.

The owner promptly changed real estate agents and this real estate agent promptly organised a builder’s report which identified works required to bring the property up to scratch. OPTS organised second builder’s and pest controller’s reports and these reports stated that remedial work could be done without the need for Jock to move.  These reports were provided to the real estate agent. Jock sought to settle this matter by proposing repairs being undertaken, regularising a rent increase by signing a ‘17A Agreement’ and a 3-year fixed term lease. In return, Jock would not pursue overpaid rent for the last six years (the maximum period for which he can recover overpaid under the law).

A year later negotiations have led nowhere. The new real estate agent is seeking to have the local government council condemn the house. Council advises that the landlord is known for not doing repairs. Council does not wish to see the tenant out in the street. OPTS has referred Jock to a solicitor for action on overpaid rent and repairs … but Jock is still willing to negotiate a settlement. 

Asbestos in premises 

OPTS tested Section 52(3) of the Residential Tenancies Act 2010 that covers landlord’s complying with statutory obligations relating to health and safety of residential premises. The tenant had been living with asbestos fibres since March 2013. The asbestos roof was breaking down and fibres were falling into the premises because there was no ceiling. The tenant stayed with friends from this date and did not pay rent from that time. OPTS relied on the Division of Local Government's ‘Model Asbestos Policy for NSW Councils’. OPTS argued the asbestos policy is sub-ordinate legislation with powers under Sections 33A and 159 of the Local Government Act 1993.

A copy of OPTS submission was sent to the landlord’s solicitor before the formal Tribunal hearing. He stated the landlord would negotiate an agreement. Consent orders were made that 12-weeks rent be waived until the tenant formally vacated, the tenant’s $750 asbestos report be paid for, whole rental bond be paid back and tenant’s removal costs be covered. 

A Court of Appeal decision revisited 

For some time OPTS has been assisting a group of people who, many years ago, bought their houses but ever since have paid rent for the ground on which they stand. In this case, Lithgow Valley Colliery Company, a mining company, owned land and allowed its workers to build houses on its land. These houses subsequently were transferred to relatives or sold to others. In 2000 the Colliery sold the land to a developer (Ceedive) who sought to evict residents. 

The Court of Appeal decision in the case of May v Ceedive Pty Ltd [2006] NSWCA 369 (15 December 2006) held that the buildings were fixtures and the ‘ground rent’ agreements were agreements for the lease of ‘premises’. The Court further held that this meant that residents who had ground rent agreements and ‘bought’ their houses prior to 1 January 1986 may be tenants covered under the provisions of the Landlord and Tenant (Amendment) Act 1948.  

Recently OPTS assisted Brendan, a resident in a similar situation, whose parents ‘purchased’ their house but not the land in the 1950s. Following the death of his mother, Brendan became what is known as a 'statutory protected tenant'. Nevertheless, the owner served him a termination notice under the 2010 Act, citing the death of the tenant. OPTS represented Brendan in three hearings of the Consumer, Trader and Tenancy Tribunal. Prior to these hearings it sought advice from a barrister in the May v Ceedive case, which became the basis for the submission to the Tribunal. The questions before the Tribunal were whether the premises are covered by the Landlord and Tenant (Amendment) Act 1948 and whether sections 83A and 83C of that Act apply. The decision on the first question flows from the decision of May v Ceedive. The decision on the second question relates to an occupant becoming a 'statutory protected tenant' following the death of the tenant. The respondent was successful on both accounts.

Housing NSW and heritage property 

An elderly couple contacted OPTS because they required major repairs, including replacement of the roof, to their heritage-listed cottage – built in the 1850s, now owned as public housing by the NSW Land and Housing Corporation (LAHC). OPTS sought to negotiate directly with LAHC who advised that they would do temporary repairs until the place becomes unlivable. At that point in time, Housing NSW will provide an alternate residence for the tenants. OPTS obtained pro bono assistance from a heritage architect who provided a report and a barrister who drafted a letter and agreed to represent the tenants in any proceedings in the Land and Environment Court. Immediately after receipt of that letter, NSW LAHC advised that they already had agreed to replace the roof! Work on a new roof was completed a few months later. The tenants are thrilled. 

A hoarder 

Margy is nearly 80 years of age. Last year her friend rang OPTS stating that sheriff officers were evicting Margy the next morning. Two workers from OPTS attended the premises just before the sheriff officers were due. Clearly, Margy was a hoarder. She wouldn’t allow OPTS into her unit … the unit, the foyer and her unregistered car were chock-a-block with all manner of things.

Shortly afterwards the sheriff officers arrived and then the police. After prolonged negotiations, on the instructions of the sheriff officers, the police removed Margy from her premises. They allowed her to pull together a few possessions to take with her. Over many weeks OPTS negotiated with the owner’s solicitor moving some of her possessions to a storage facility. Much was placed in a skip. Her car was towed away.

Margy organised alternative accommodation at a local backpackers hostel. She started bringing things back to her room. This made it difficult for others who were sharing the room.  She was finally asked to leave and the manager of the backpackers hostel found her a room in a boarding house.

It was clear Margy was neglecting her health and she had difficulty making day-to-day decisions. OPTS organised support through a Boarding House project attached to a neighbourhood centre. Both liaised with a local community care team who made application to the Guardianship Tribunal and a guardian was appointed. The guardian organised for Margy to be admitted to the hospital for a health check and assessment, with the intention of moving her to an aged care facility where she will receive the appropriate care.

At the time of going to hospital her room in the boarding house had become chock-a-block with all manner of things … After thorough assessment in hospital Margy moved to a low care facility in the inner west. 


But not all of OPTS cases are so complex...  

A quandary about water bills 

OPTS has a protected tenant in her 80's who's been in hospital for three months and now finds the landlord has failed to pay the water bill. Sydney Water has disconnected the water supply and this will delay her return home.  (As a protected tenant she is not liable for water usage charges.) Section 62 of the Sydney Water Act 1994 allows her to pay the outstanding bill (including reconnection charges) and count it as rent.

But how does she make this payment, because Sydney Water no longer has a physical location that anyone can visit in order to pay bills? She can't pay it at the Post Office without knowing the Account Number and Sydney Water will not give it to her because she is not the customer. She can't pay it over the telephone unless she has a credit or debit card which she doesn’t have. OPTS discussed this with officers of Sydney Water who were apologetic but said they were unable to do anything.

OPTS resolved this quandary by using its own credit card and paying the amount over the telephone.  The tenant reimbursed OPTS with a cheque.

(Postscript: The tenant has now returned home to running water and rent paid many months in advance with her rent! The landlord is refusing to collect letters sent by ‘Registered Post’ stating that the payment to Sydney Water is rent.) 

Jim can now use his washing machine 

Jim is an older bloke who lives in a social housing property in a rural northwestern town.  He had been living in the property for nearly a year and had no key to the power box in the laundry so he could use the washing machine. Also, there was only one garbage bin for four units.  OPTS was contacted by the local hospital regarding Jim after they learned of his situation. Jim suggested to his neighbour that he also contact OPTS because he had exactly the same problems. OPTS made representations on behalf of both clients to the Housing NSW office and the Housing NSW Contact Centre.  Some 10 months after OPTS first contacted Housing NSW, things finally moved. Jim reports he and his neighbor are now using the washing machine and have extra garbage bins.  

OPTS’s legacy

OPTS’s casework has made a profound impact on the lives of many older renters.  But its legacy is more than just its casework. It developed an expertise second-to-none on ‘protected tenancies’ and long-term tenant matters. Its accumulated knowledge on protected tenancies is recorded in a revised guide to protected tenants that will be used by workers with TAAS. It has also produced a CD that provides an oral history of protected tenants in New South Wales. Over many years it has also resourced the network of TAAS on older persons issues, such as dementia, capacity to make decisions, and hoarding. 

A postcard from the Older Persons Tenants Service

We like getting mail at the Brown Couch, especially when the sender is legendary tenants advocate Dr Robert Mowbray... and doubly especially when the subject is the excellent work of the Tenants Advice and Advocacy Services. Robert points out that it is now over 100 years since this sort of work first began in New South Wales:

Tenancy services existed as early as 1910 when the New South Wales Rent Payers Association acted as advocates for tenants in early cases before the Fair Rents Court.

(No harpies! An election dodger c 1910)

Contemporary tenants' services only appeared in the 1970s due to the fillip provided by the Commonwealth Government’s Commission of Inquiry into Poverty. The Tenants' Union of NSW emerged in 1976 and has played a crucial role in lobbying for tenants. From its establishment it built up a network of tenants' services, initially relying on volunteers.

In 1986 the NSW Department of Housing funded a Housing Information and Tenancy Services Program. In 1994 NSW Fair Trading refunded a revamped program now called the Tenants’ Advice and Advocacy Program.

The need for tenants' services in 2011 is as great now as it was one hundred years ago, as tenants get pushed from pillar to post, with a shrinking private rental market and landlords extracting very high rents. 'Affordability' and 'housing stress' are now words in our lexicon.

To illustrate his point, Robert has kindly provided a 'postcard' from the Older Persons Tenants Service, noting some of the cases that he and his fellow tenants advocates have been conducting recently.

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Hello from OPTS.... let's take a look at some of the cases that crop up on a typical day at a Tenants Advice and Advocacy Service.

First, an update on an OPTS client, Arthur, an elderly tenant in the southern suburbs who has developed dementia. Arthur's family had moved him to a nursing home, but forgot to place a stop on rent payments from his bank account to the real estate agent and these continued for many months. After the threat of legal proceedings against the real estate agent, combined with a complaint to NSW Fair Trading, the real estate agent has refunded the full amount overpaid, which was around six and a half thousand dollars. Apparently the real estate agent had re-allocated the account number to another landlord at another address, who never queried getting two lots of rent for the same property!

Now the case of Hilda, a tenant of a social housing provider in Western New South Wales, who sought our help to recover $2,500 overpaid rent. After a letter plus reminders over a number of months, the social housing provider has written back acknowledging double payments because, in bureaucratic language: ‘We were installing a new computer system. The retrospective subsidies created in the new system duplicated actions taken in the old system just prior to the implementation of the new system’.

A case under the Landlord and Tenant Amendment Act 1948 – Maria lived in a small cottage on the Lower North Shore for over 60 years, and with her now-deceased husband raised their family there. Maria is a protected tenant under the 1948 Act, but that legislation is silent on the issue of repairs. Nevertheless, Maria asked for some essential repairs and in response received a ‘Notice to Quit’. The house timbers had become riddled with white ants, so we organised a builder’s report and this advised that the house was fix-up-able without the need for Maria to vacate. However, Maria has decided to negotiate a settlement payment in return for her giving vacant possession.

Another protected tenant, Shirley, lives with her son in a beachside cottage owned by her local government council. Her landlord applied to the Fair Rents Board, asking that it set a fair rent on the property. There have been very few fair determinations across New South Wales in recent years. However, Council were unable to pull together the necessary documentation. (Remember ‘Yes, Minister’ and ‘the floods of 1967’.) After three hearings of the Board, we're negotiating a new rent through a deed to be signed by both parties, which also will comply with the requirements of the legislation.

Bob and Beryl have rented a flat over a shop front on the Northern Beaches for 27 years. The landlord has done his little repairs over the years and the flat needs a good coat of paint. But when the hot water system broke down, Bob sent a letter to the real estate agent asking for it to be fixed. The next day he was served with a termination notice. The landlord's story is that he intends to refurbish the flat. Bob and Beryl have stayed put and so the real estate agent has taken them to the Consumer, Trader and Tenancy Tribunal. Bob was prepared to defend the matter on the grounds of a retaliatory application and his and the landlord’s circumstances, but we had to advise him that there was no certainty that the Tribunal Member would dismiss the landlord's application, even if it ruled that the application was retaliatory. The Tribunal still might give more weight to the landlord's intention to refurbish the flat, given its age and condition. If this was the case it might only give Bob and Beryl 90 days to leave (this being the statutory minimum for long leases under the new legislation). Besides, even if the Tribunal had dismissed the landlord's application, the landlord may have re-applied for the same orders at any time or increased rent upon 60-days' written notice. Bob and Beryl feared that any rent increase would make their rent unaffordable and thus force them out, given that their current rent is substantially below market rent. So, in the end, the parties have settled, with Bob agreeing to give vacant possession some six months down the track.

Isabelle and Claude are both in their seventies. Claude faces hefty medical bills because of emphysema. They have been renting their current house on the South Coast for nine years and have a long association with the area. Recently they received notice of a hefty rent increase of $55 per week. They cannot afford the new rent. And then they were told that the property is to be auctioned. They received a no-grounds termination notice. Isabelle seized the initiative and approached the owner of a holiday house a few blocks away. She asked whether he would be interested in renting. The owner said that he didn’t want to rent to strangers, but he’s would consider renting to her. But first he’d need to finish some building work. Isabelle said that that would be OK … let’s hope it works out, because it would take years for Isabelle and Claude to re-establish a network of friends in a new area and, also, Claude needs to be close to his specialist.

Kris has only just moved into social housing. His landlord has provided him with a copy of his residential tenancy agreement and a condition report, the landlord's part of which is clearly fudged, with all squares marked 'Y' saying everything was rosy, including for one non-existent room! We're seeing a lot of this sort of thing. In total there were 45 discrepancies and eight matters requiring immediate attention ... although, overall, the premises were in good shape. OPTS has asked the social housing provider to re-do its part of the condition report. We're also looking at recent changes to the law in New South Wales – both under the new residential tenancy legislation and the Australian Consumer Law – that may give redress to a tenant in this situation. Hopefully that won’t be necessary here.

The injustices and anomalies that occur in the lives of tenants who seek advice and help from OPTS all get fed into the policy development activities of the Tenants Union, so that in the long term tenants get a modicum of justice from the system. The day is never dull at a tenants’ service…

Too right, Robert. Thanks for the postcard, and thanks OPTS for everything it does for older tenants in New South Wales. (Thanks also to Shelter NSW, which has previously published some of Robert's case studies in its newsletter, Around the House.)