Because of her, we can: NAIDOC Week 2018

Here at the Tenants Union, we are lucky to have an incredible network of Tenant Advocates working actively across the state with tenants to help resolve their tenancy issues. They are an incredible bunch of people, who help to keep the wheel of justice running (somewhat) smoothly.

The four Koori Tenants Advice services are dotted across all corners of NSW, with the Western Aboriginal Tenants Advice and Advocacy Service in Dubbo, the Greater Sydney Aboriginal Tenants Service in St Mary’s, the Southern Murra Mia Tenant Advocacy Service in Batemans Bay, and the Northern NSW Aboriginal Tenants Advice and Advocacy Service in Grafton and Newcastle – supported by the Dtarawarra Aboriginal Resource Unit.



These services work tirelessly with Aboriginal and Torres Strait Islander tenants across NSW, managing every range of tenancy issue you could imagine, as well as the intricacies and difficulties that come with the Aboriginal Housing sector.

Each of the services are bolstered by some incredible female tenant advocates, who we are celebrating with our 2018 NAIDOC video, tying into the NAIDOC theme for 2018 being ‘Because of Her, we can’. Some of our advocates are shyer than others about appearing on camera and we couldn’t quite coax them all into filming an interview, but we are very grateful to each of them for the wonderful work that they are doing in supporting and advocating for the rights of all Aboriginal and Torres Strait Islander tenants across NSW.

Thanks to all of the extraordinary women who make up our Koori TAAS network, you are truly remarkable!

Running repairs? The cost of longer term tenancies: part 3

We have written a number of blog posts now on longer fixed term tenancies, and the problems we anticipate if tenants were asked to take on repairs during a tenancy. One example worth considering when talking about longer term tenancies and the possibility of shifting responsibility for repairs is 'protected tenancies'.

Not that many people are familiar with protected tenancies (though we've written about them a number of times on the blog - most recently here and here). Protected tenants are those covered under the provisions of the Landlord and Tenant (Amendment) Act 1948, but there are very limited circumstances under which someone can be recognised as having a protected tenancy. Generally protected tenancies are found in older suburbs where many residents rented until gentrification gobbled up their suburb, or in country towns where no-one worried about paperwork in the good old days. And in practice, protected tenants are older tenants.

There are two key advantages of being a protected tenant. The first is rent control - rents are usually limited to 'fair rents', and will be considerably less than the market rent. The second benefit is stronger protections against terminations. Protected tenants can only be evicted on certain proscribed grounds (and they can't be kicked out for no reason, i.e. a 'no grounds' eviction). This gives them much greater security of tenure than other tenants. They certainly offer benefits far more compelling than anything being put on the table in current discussions around longer fixed term tenancies.

A succession of landlords all flatly refused to do repairs on this protected premises. Water had been pouring through the ceiling just inside the front door for months.

However the significant drawback of protected tenancies is repairs. The Landlord and Tenant (Amendment) Act 1948 is silent on the need for landlords to do repairs or maintenance. What this means is that many protected tenants are older tenants who, on the one hand have been able to age-in-place, but on the other hand live in homes crumbling around them, because their landlord refuses to do any repairs – sometimes in an attempt to force them out.

Recently we spoke with John, a protected tenant who has been living in his home in Randwick since 1978. We asked him about his experience in a protected tenancy and the ongoing issues he has faced around repairs ...

John moved into his unit in Randwick 39 years ago. It was an old Victorian place with rococo ceilings, a spacious feel - it had one large bedroom and a small room at the back - and a nice view over the racecourse.

But it was falling to pieces: “when I moved in the place was dreadful, everything was faulty”. There was no paint on the walls, the floorboards were loose and squeaked as you moved across them, and the lino had holes in it. The kitchen was a wreck. For $40 a week though, John thought he could live with it.

When he moved in John painted the apartment after confirming that the landlord at the time would reimburse him. The landlord never reimbursed him. Thanks to his handiwork over the years the unit is in good condition, but he has had to do a lot of work. He installed a new kitchen and a new heater, has put in carpets, and paid for significant additional repairs to the bathroom: “I’ve invested a bit into this place. The work I’ve done has made it into a nice place, a home for me”.

One of the few ways a protected tenant can get repairs done is to complain to their local council about the disrepair a building is in. Randwick Council under the Environmental Planning and Assessment Act 1979 has ordered John’s landlord to undertake repairs at least a couple of times. Once when the balconies for the unit block were crumbling and had to have work done to ensure the safety of occupants and passers-by. On another occasion they were required to bring in an electrician to attend to electrical faults that were posing significant safety risks for the entire building. John reports that in this instance his then landlord did call in an electrician, but failed to pay them. As a result the electrician refused to finish the work. In general his original landlord refused to do any work on the unit, including structural repairs.

The landlord's failure to undertake repairs has been a significant and ongoing problem for John:

I don’t see why I should be responsible for structural defects and electrical problems as a protected tenant. I don’t mind doing the things I can do, but the structural issues ... [should be done by the landlord].

Recently the original landlord who John had entered into his tenancy with sold the building (John reports they bought it originally for 7000 pounds, and when it sold 18 months ago it went for $4.2 million). The new owner tried unsuccessfully to evict John. John attributes his success in fighting the eviction in large part to the excellent support he received from a local tenant advocate from the Eastern Area Tenants Advice Service. The new landlord has subsequently undertaken significant renovations and repairs to all of the other units in the building, but - like John's original landlord - has left John's unit untouched.

When asked if he thought tenants should give up their established rights around repairs to secure a longer fixed term lease in the current private rental market, John was clear:

No, it’s not worth it. Not even if you’re going to rent one of the newer places. I know lots of people in Randwick in these new apartments who have lots of problems. Repairs come up often. The rent that tenants are expected to pay now, the landlord should bloody well look after the place.

Frustration or breach for Lidcombe tenants?

A Lidcombe apartment complex suffered extensive damage to its roof during a storm this week - reports suggest it may be uninhabitable for months. So arose the question of remedies for affected owners and tenants. Whilst compulsory insurance for the strata corporation should ensure owners are covered for 'loss of rent' - that is, alternative accommodation as needed and actual rent forfeited - it may be of no use to tenants.

The roof in question

Our Senior Policy Officer Ned was quoted in Fairfax Media as saying the issue of tenant remedy is "...a tricky one. There's a question about the circumstances under which the tenancy might end, and there's questions around the circumstances under which a tenant might recover costs of damaged furniture and items." 

By way of clarity, such issues may be cause for either 'frustration' of a tenancy agreement, or action arising from a breach of the landlord's obligations under the Residential Tenancies Act 2010.

Section 109 of the Residential Tenancies Act provides that a landlord or tenant may serve the other party with a notice of termination on the ground that the residence has become wholly or partly uninhabitable due to no fault of either party. For example, a residence maintained in a reasonable state of repair may suffer damage due to a thunderstorm. A notice served under Section 109 need not provide any minimum notice period and may be issued in either a fixed term or a periodic agreement. Such action implies no breach of the tenancy agreement by either party, and precludes further discussion about compensation for any loss arising.

On the other hand, section 63 of the Act provides that it is the landlord's responsibility to provide a tenanted residence in a reasonable state of repair. So, for example, a landlord may fail to provide a residence with a roof in reasonable repair, which may only become apparent after a bout of severe weather. This would mean the tenant has suffered a detriment as a result of the landlord breaching his or her obligations - potentially giving rise to not only termination rights for tenants, but also a compensation claim for any economic loss suffered.

To add a further complication - a landlord might try to avoid the obligation by pointing to a strata manager, saying "it wasn't me, it was them". But just as a landlord may be liable, under a residential tenancy agreement, for the defective work of a plumber or electrician with whom they have contracted, so too are they responsible for work carried out by or on behalf of their owners' corporation.

Of course, we don't claim to be privy to the details of the Lidcombe case. But it's worth noting that there is more than one way situations like this may play out. Affected tenants should visit www.tenants.org.au to view our factsheets on storm damage, repairs and maintenance and renting in a strata scheme. For further information tenants can seek free advice from their local Tenants' Advice and Advocacy Service.

Renting laws in review: Tenants’ services

In the months following publication of Fair Trading’s discussion paper for the review of the ResidentialTenancies Act, we have endeavoured to cover some of the most critical topics for discussion. With submissions due at the end of the week, we’ve saved what is unquestionably one of the most important issues until last.

Buried all the way down at question 39, barely a half scroll from the appendix, is a brief description of the Tenants’ Advice and Advocacy Program followed by the question:

“Do the current information, advice and dispute resolution services operate effectively?”

The Tenants Advice and Advocacy Program is partly funded by the interest generated on tenants’ bond monies while deposited with the Rental Bond Board. This funding arrangement is made possible by Section 186 of the Residential Tenancies Act - with the current, triennial round of funding expiring in June 2016.

In recent years Fair Trading has also established an in-house information and voluntary dispute resolution service for both tenants and landlords - a central, statewide service operating out of a single office. 

Messrs Hoffman and Redford wonder why the program is up for discussion

The Tenants’ Union is the resourcing body for the 19 Tenants’ Advice and Advocacy Services (TAASs) operating across the State - that is, the organisations that make up the Tenants Advice and Advocacy Program. We also consult regularly will the network on a wide range of policy and legal issues. So we are well placed to say in the strongest possible terms that they offer their clients and communities so much that no one else could.

The basic statistics are impressive in their own right. In the 2013-14 financial year, TAASs provided over 22,000 advices by phone, worked on more than 4600 cases, and appeared at NSW Civil and Administrative Tribunal over 2000 times.

But the true value of the TAASs is in their quality. They are the only services in NSW that provide tailored legal advice and partisan advocacy to tenants. There are no specialised ‘tenancy lawyers’ in private legal practice at all. The network is home to unique skills, knowledge, and experience to be measured in the thousands of hours. There is simply no comparison between such personalised, expert assistance and the general information with impartial dispute resolution provided by Fair Trading.

The work of the TAASs – especially longer form casework and Tribunal appearances - is focused on the most vulnerable. This means all services are dedicated to providing for those in danger of eviction and homelessness. The inherent complexity of such work makes their advice and casework statistics more impressive still.

The TAASs are also distinguished by the manner of their work. Tenants’ advice and advocacy requires a unique approach – blending legal skills with a social worker’s approach to provide tenants with more holistic assistance. Advocates take pride in providing long-term solutions - helping tenants beyond the closure of a case file, linking them up with other groups and services as necessary.

Finally, there is the value of the TAASs as true ‘community’ organisations – local services staffed by local people. This means not just increased affinity with their clientele, but an accumulation of specialised knowledge of the needs of the local renting population. For example, depending on the demographics of the area, a service may devote time to servicing the needs of boarding house residents, international students, Local Aboriginal Land Council tenants, or those who live in residential parks. In between, they also find time to conduct community education programs to serve the needs of their communities.

All of this makes question 39 seem almost redundant. When it comes to the Tenants’ Advice and Advocacy Program, the answer to whether they are operating effectively is a resounding yes. In fact, we campaigned for increased funding for the TAAP program throughout 2015, to ensure that no tenant had to miss out on their services (more about that here).

If you are yet to make your submission to the Residential Tenancies Act review, be sure to mention the extraordinary value of Tenants’ Advice and Advocacy Services. To make a submission, email policy@finance.nsw.gov.au, or follow the instructions here.

Holiday spoilers - who to call for tenancy advice during the break?

That's it from us for another year - we'll be back in 2016 with more on the review of the Residential Tenancies Act and the inquiry into the management of public housing repairs and maintenance contracts. We'll also be keeping an eye on developments concerning the social housing portfolio over on our other blog the Clearing House.

The Tenants Advice and Advocacy Services will also be taking a break, with the majority of services closing between December 21st 2015 and January 4th 2016. Some services will be closed for longer, pushing out until as late as January 11th in some areas.

Battling the dark side on your own - how does Finn make it look so easy?

But because the forces of darkness don't always take a break, we'll be running our annual Christmas Hotline until Wednesday January 6th. An experienced advocate will be available each weekday, excluding public holidays, between 10:00am & 1:00pm and 2:00pm & 5:00pm.

If you need advice about a tenancy dispute during this time, give us a call.

Tenants' Union of NSW Xmas Hotline

 phone (02) 8117 3750 

or 

1800 251 101

Tenants steal the show at Parliament!

This week was an important one for our More Bang for Your Bond campaign.

For over six months, we have been campaigning for an increase in funding for the 19 Tenants' Advice and Advocacy Services operating across NSW. These services are funded with tenants' money, via the interest accumulated by bond monies held by the Rental Bond Board. Much of this interest is retained by the Government in surplus. But tenants' services have had no increase in real terms for over 12 years, despite a 25% increase in the number of tenants in the state over that time. And so the services are now stretched thin, forced to turn back those needing help on a regular basis. So with the backing of over 1500 supporters, we took the campaign to NSW Parliament - formally presenting a petition to bring funding up to speed with the needs of the rental market in 2015.

The presentation ceremony featured speeches from our Executive Officer Julie Foreman, as well as Dr. Geoff Lee MP (Member for Parramatta and Parliamentary Secretary), Jenny Leong MP (Member for Newtown), and David Mehan MP (Member for The Entrance). But by consensus it was our tenant speaker, Milly Morison, who stole the show. Milly's words perfectly capture the experiences of countless tenants across the state, and the vital role played by the service that assist them.

We are grateful to Milly, and proud to republish her speech in full here. 

Milly's speech:

Thank you all for coming today. I would like to take a moment to thank the Tenant’s Union of NSW and the network of Tenants Advice and Advocacy Services throughout NSW, for all the help that they have given me during my time as a renter.

I would like to give you a bit of background as to why I am so grateful for their help. A couple of years ago I was renting a house directly through the owner. We were on a periodic agreement when the owner fell ill and required the house back. He wanted to give us two weeks’ notice to vacate, so of course, we panicked. Finding a house in the Sydney rental market is challenging under the best of conditions. I called my aunt who told me about the Tenants Union, so I gave them a call. The friendly gentleman on the phone gave me some advice and told me there was more detail on their website. There I found a wealth of information and Factsheets, which I have been using as my essential manual ever since. The information contained told me the minimum required notice was 30 days. Armed with this information I was able to negotiate with the owner so we weren’t going to end up homeless, which was a real possibility as I had just quit my job and my housemate was a casual waitress.

In our next house we needed additional housemates to cover the rent. The new tenants did not want to be on the lease, and I wanted the extra rooms set up as short term leases. The tenants.org.au website helped me set-up sub-lease agreements and provided a sub-lease template. It helped me to navigate the nitty gritty details and maintain a positive relationship with the real estate agent. With the help of the Tenants Union everyone was looked after and no one got the raw end of the deal.

When I moved out of that house I transferred the tenancy to the two remaining housemates and again, the information provided by the Tenants Union was invaluable. They wanted to have their dog on the lease and at first the owner refused, but we were able to write a letter using information provided in the Companion Animals Taskforce submission that changed the owner’s mind. They were allowed to have the dog and I was able to move out.

Most recently I was living in a house and I had a falling out with my co-tenant. I gave her my four weeks’ notice but things got ugly very quickly and she refused to return my bond. The Rental Bond Board holds the bond for the whole house and don’t return portions of the bond to individual tenants. If one tenant leaves it needs to be negotiated between the two parties. So it felt that she suddenly had control of all my money. My local Tenants Advice and Advocacy Service walked me through, step by step, how to communicate with the real estate agent, how to behave in such a way that I was in the right, when I should give my keys back, what to do about a condition report and documenting the house upon exit. TAAS gave me all of the tools that I needed to get my bond back and because of their handholding I was able to successfully retrieve my money without having to take it to the tribunal.

Throughout my experience as a renter, a tenant, a share house mate, I have needed the assistance of the Tenants Union and the TAAS and I have regularly called upon their support in all of those sticky situations. I have used the Factsheets for all those niggles and I watch with interest their advocacy for tenants’ rights.

Mine is not an uncommon story. My rental history is a cardboard cut-out experience shared by many other renters around NSW. I have trouble imagining how people manage these issues without the support of the Tenant Union and Tenants Advice and Advocacy Services and I cannot state strongly enough how vital they have been as my aids through the rental world.

Fair Trading's review of the Residential Tenancies Act also asks for comments on how interest on tenants' bond money should be spent. Let them know directly here!

Top tenant 'mistakes' include knowing the law

Anybody foolish enough to spend time on the internet (you know who you are!) will know we are firmly ensconced in the age of the listicle. Newsworthiness, inanity, and even the number of things listed are irrelevant considerations - 29 Essential Albums Every 90's Kid Owned is what gets the clicks. Indeed, the medium has already reached a higher plane, arriving at the ironic, self-referential listicle.

So with the number of long-term tenants sharply on the rise, it is perhaps no surprise that tenancy law has now entered this brave new world of journalism. Earlier this week, Fairfax Media brought us The 10 mistakes landlords and tenants make.

Next time on The Brown Couch: 27 hilarious but true reasons why Taylor Swift's cat who grew up in the 90's will restore your faith in humanity

The tenant errors nominated do include genuine missteps that often leave renters high and dry - such as failing to provide notice before vacating, or not keeping records of communications with the other side. 

But two 'mistakes' did stand out as somewhat curious:

"Not reporting necessary repairs to the property manager"

"Feeling uncomfortable about asking for changes to the lease upfront"

Self-defeating fools! Of course, tenants are entitled to have repairs for which they are not responsible addressed by the landlord - and tenants are in fact obliged to report damage to premises as soon as practicable after becoming aware of it! And, like most any other contract, the parties to a residential tenancy agreement are free to renegotiate terms. Why oh why - Tell me why! - do tenants work against their own interests in this way? It categorically does not make sense. 

Except, wait...

Could it actually have something to do with the fact that landlords are presently empowered to issue tenants with a notice of termination for literally no reason? And that they can pull the pin at any point - either for the end of a fixed term or with 90 days' notice in a periodic tenancy? Could it be that the Tribunal is required to enforce a valid notice so issued? And that mechanisms for tenants to dispute 'no grounds' notices as retaliatory are notoriously difficult to use?

Of course it does. The threat of arbitrary termination in this manner hangs over the head of every tenant. Renters know their housing is inherently insecure, as our 2014 survey showed. And this naturally influences their approach to landlord-tenant relations. The consequence is that tenants are too often reluctant to enforce basic and fundamental legal rights for fear of putting their landlord offside. It is only too easy for a landlord to be rid of an irritating tenant that insists upon all that he or she is entitled to. And better still, very low vacancy rates mean a replacement will be found almost immediately. 

Perhaps tenants aren't so foolish after all.

It is for these reasons that The Tenants' Union argues for the abolition of no-grounds termination provisions from the Residential Tenancies Act. Instead, we say landlords should have access to an expanded list of legitimate termination grounds, such as needing the property to reside in personally. 

It also goes to show that the media isn't the best source of guidance on where you stand as a renter. For that, you should contact your local tenants' advice service - and of course sign this petition to ensure these vital but underfunded services continue to have the capacity to take your call. 


Read more about the Tenants' Union's opposition to no grounds terminations in our report on five years of the Residential Tenancies Act, available here.

Ignored NFP bill deserves our attention

Despite its sexy ‘bear pit’ moniker, few would argue that much of what happens in NSW Parliament is decidedly unfashionable, and ignored by the majority. Didn’t catch debate on the Impounding Amendment (Unattended Boat Trailers) Bill 2015 earlier this week? Thought not.

The legislature’s private members bills, we suggest, exist squarely within this vacuum. But one that made its way into Hansard in recent weeks has certainly piqued our attention.

Tales from The Lost World of private members bills…

On June 26 2015, Shadow Attorney-General Paul Lynch introduced the Non-Profit Bodies (Freedom to Advocate) Bill. As its straight shooting title suggests, the bill would ensure state funding agreements with not for profit bodies cannot include clauses restricting the recipient from advocating on law and policy issues. It bears a very strong resemblance to a Federal Government Act from 2013, covering Commonwealth-Not For Profit funding agreements. We endorsed that measure as “very good for the quality of our democracy”, for reasons also captured in Lynch’s second reading speech on the NSW Bill:

“A strong, innovative, independent not-for-profit sector is essential to getting government policy right and building a fairer community.”

More particularly, as the resourcing body for Tenants’ Advice and Advocacy Services in New South Wales, the Tenants’ Union exists in symbiosis with those front line organisations. Those are very much the kind of services whose work the bill intends to protect. And their capacity to engage in systemic advocacy can undoubtedly complement and enhance our own. Indeed, many TAAS services have played an active role in the discourse surrounding the Residential Tenancies and Housing Legislation Amendment(Public Housing - Antisocial Behaviour) Bill 2015 - providing submissions, explaining the impact of the proposed reform to Members of Parliament, and liaising with colleagues elsewhere in the community sector. The ongoing More Bang for Your Bond campaign – a joint initiative of the TU and tenants’ services – is another fine example of the work we do together.

Regrettably, the Bill met an untimely fate in the Legislative Assembly. In outlining the Government’s opposition to the Bill, Attorney General Gabrielle Upton described it as predicated on a “false and misleading” premise. The Attorney General further opined:

“We are notional trustees for [funding] dollars, and that responsibility means that they must go to the areas of greatest need where they can make the greatest difference to the lives of the people in our community…Those principles specifically seek to ensure limited funds for public legal assistance are directed towards legal representation, casework, and advice for disadvantaged and vulnerable people.” 

But this is, in our network’s experience, a false dichotomy. Our systemic advocacy work is always informed by the experiences of renters as revealed through advice, casework, and representation. Moreover, we see campaigning for improved laws and policies affecting renters, and engaging in client work to ensure best outcomes under the current regime, as pursuits of the same end – in the Attorney General’s words, ‘making the greatest difference to the lives of the people in our community.’ This is only possible through both systemic and client advocacy. Not to mention the quality of the investment. As the ALP’s Jo Haylen noted in the same debate, not-for-profits 

“provide critical services to our most vulnerable across every sector in the community…According to the Australian Bureau of statistics they contribute $43 billion to Australia’s gross domestic product and engage more than 4.6 million volunteers each year.”

Nonetheless, it follows that a legislated freedom to advocate is likely not to come to be for our sector in this 56th Parliament - the Bill banished to footnote status in its history.

But we continue to support its content as vital to ensuring maximum effectiveness for the tenancy network, and indeed the state's non-profit sector as a whole.