Pop quiz!

Q. You answer the door to a woman who identifies herself as your landlord's estranged wife and co-owner of the premises. Until now, you had no idea such a person even existed. The woman demands entry to the premises.

Do you:
(a) stoutly refuse her entry – she's trespassing; or
(b) pull out the sofa bed – you've got a new housemate.

If you answered (a), good on you for sticking up for yourself, but legally you're wrong. The law says the correct answer, bizarrely, is (b).

(And if your landlord's estranged wife and co-owner looks like settling in for an extended stay, consider investing in a Tent Sofa – yes, they do exist.)

In a case like this, the law says each of the co-owners starts off with a right to possession of the premises (but not to the exclusion of the other), and when one of the co-owners enters into a residential tenancy agreement, that co-owner's right is passed to the tenant – and the other co-owner's right remains with that co-owner. Under the terms of the residential tenancy agreement, the tenant's right is exclusive of the co-owner who granted it, but it is not exclusive of the third party co-owner (it wasn't exclusive in the first place – that is, when it was in the hands of the first co-owner – and it cannot be now).

The third party co-owner's right is not exclusive of the tenant either; but they don't owe the tenant any obligations as far as the tenant's quiet enjoyment of the premises are concerned. Not being a party to the residential tenancy agreement, the third party co-owner cannot terminate it either (nor, for that matter, are they entitled to any of the rent paid by the tenant – that goes just to the co-owner who granted their own right to occupy to the tenant).

This pop quiz scenario has actually occurred once that we know of: the strange, sad case of Catanzariti v Whitehouse, where a landlord's estranged wife and co-owner really did move in with a tenant. (As the Federal Court records, 'initially against [the tenant's] will.' However, the tenant, 'being uncertain of his legal position, agreed to allow her to return to the house and occupy one of its rooms. She made certain re-arrangements to the disposition of the furniture and other chattels in the premises to enable her to do this.) The case ended up in court when these 're-arrangements' went as far as the tenants' sheets and crockery being thrown into the backyard, where the dog got at them. And the Court held: the estranged wife had a right to occupy the premises, and she owed no obligation to the tenant in relation to his quiet enjoyment. (The tenant was awarded some compensation for the damage to his linen and crockery as a matter of tort law – not anything to do with his tenancy).

This sort of thing, it must be said, would be a very rare occurrence, but the precipitating circumstances – that is, a co-owner getting left off an agreement – are probably a lot more common, so the potential for a Catanzariti v Whitehouse-style showdown may be quite widespread. To reduce this potential, the Tenants' Union is asking, in its submission on the draft Residential Tenancies Regulation 2010, recently circulated by Fair Trading NSW, for a requirement that landlords disclose all third party interests in rental premises. We expect that this would not actually result in very many third party co-owners being disclosed – rather, the effect would be that landlords would take greater care to ensure that all the co-owners are included in the tenancy agreement.

The TU will be commenting on more besides that – and to make your own comment, click on that link.

Happy International Tenants Day

Actually, it was yesterday – first Monday in October, same as Labour Day in New South Wales.

International Tenants Day was first declared in 1986 by the International Union of Tenants, which itself has roots in the 1920s.

(The International Union of Tenants)

I hope you had a day of quiet enjoyment, comrades, before turning again to the international struggle for a better deal for tenants.

What not to wear

Here at the Brown Couch, especially during such an auspicious time as Social Housing Month, we like to maintain a quality of discourse somewhat above that of the 'Gossip Girl'-style tittering about fashionable 'celebs' that infests so much of cyberspace.

But when one of our spies at the Tribunal whispered this report to us, we just had to dish, dish, DISH!

Who is the dapper-dressing officer from Housing NSW who attended the Tribunal recently wearing a three-piece, pin-striped, lilac suit, complete with fob-chain and matching hat?*

Debate rages between the Brown Couch's style mavens as to precisely what look this brave soul is attempting to rock. Is he going for 'preppy', after Gossip Girl's own trust-fund bad-boy Chuck Bass?


Or is it the 'Wildean dandy' look?


Or zoot-suited Cab Calloway's 'high-steppin' pimp' look?


Or 'insane criminal genius'?


We await further sightings with bated breath.

In the meantime, this does raise a slightly more serious question: what to wear to the Tribunal?

This is a question that has vexed all sides: tenants, tenant advocates, landlords and landlords' representatives. Your correspondent used to appear regularly in the Tribunal as a tenant advocate and took care to wear a suit and tie (a confession: I even had a 'conciliation tie', in calming tones of blue, green and pink, and a 'hearing tie' of striking gold and red bars); however, for one of my colleagues (a very able advocate on the north coast), getting dressed up for the Tribunal meant putting on a pair of shoes.

I am aware of one instance of the Tribunal rebuking a Housing NSW officer for appearing without a tie; the officer retorted that he considered a tie to be an occupational health and safety hazard – a tenant might strangle him with it, the officer said. Perhaps a self-fulfilling prophesy. I also know of a tenant who proposed to wear to the Tribunal her Sydney Olympics volunteer uniform. For her, the volunteer uniform was a stronger statement of civic engagement than the traditional business suit, and so was appropriate attire as she engaged with the processes of law and justice as represented by the Tribunal.

The Tribunal's own enabling legislation provides that the proceedings before the Tribunal are to be 'determined in an informal, expeditious and inexpensive manner' (Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 3(c)). This is not really meant as a style tip, but it does indicate that expensive, formal attire is not necessary. Our advice is: neat and tidy.

* This is a rhetorical question. We know full well the identity of the officer and it will not be disclosed here.

...and now we return to our scheduled content

It would be remiss of us to allow an entire Social Housing Month to pass without a single reference to Community Housing ... and given the lack of attention we've paid to it so far on the Brown Couch, it's high time we gave it a run. Besides, there's an awful lot going on at the moment.


For instance, about 3000 government managed properties are being transferred from HNSW into the hands of various Community Housing Providers (CHPs). In some cases even ownership of properties is being handed over, allowing some CHPs to do their own wheeling and dealing (as long as it's done in accordance with recent amendments to the Housing Act). This is great news for the sector, because it increases management portfolios and gives providers access to finance ... and potential for independent development and growth. Well, so goes the theory.

Of course it would be a disaster for the Government if, after handing over a whole bunch of their properties, the community housing sector fell apart. Given the rate of growth and the additional responsibilities some providers are expected to take on, that's not so far fetched. Thankfully, our clever politicians have already thought about this, and have devised a cunning plan. To make sure it doesn't all end in tears, a new 'Regulatory Code for Community Housing Providers' now applies to all CHP who receive Government assistance (such as funding or housing stock). To make sure all CHPs religiously follow the Code, the Government has created the office of Registrar of Community Housing, to keep an eye on things.

Established in May 2009, the Registrar was given two years to make sure all affected CHPs are properly registered. In order to register (and hang on to their government assistance), CHPs are required to meet the Code's 8 performance criteria - these are mostly about sound money management and good corporate governance, but 'fairness and resident satisfaction' also gets a mention. Once registered, CHPs must continue to meet these expected standards. If they don't, the Registrar can cancel their registration and force them to give back government funding and/or housing stock.

The two-year registration phase will soon be up, so the focus is now shifting to compliance. In fact, the Registrar has just released a draft 'Compliance Framework' for consultation. It outlines a risk based approach to compliance, suggesting a scheme of regular and ad hoc compliance reviews, with a range of triggers for an unscheduled review. To have your say on the proposed Compliance Framework, you'll need to get your comments to the Registrar by November 10th 2010. Download the document for more information.

The Commonwealth Bank controversy

A quick distraction from Social Housing Month - you may have heard mention recently of some controversy about a document put together by the Commonwealth Bank for the purpose of reassuring its overseas backers that Australia doesn't have a housing bubble, no no everything's fine, keep giving us your money. A number of commentators have pointed out some serious problems in the bank's arguments and evidence – serious enough that it makes you wonder if the effect of the document might be the opposite of that intended.

(The Commonwealth Bank)

This post is just to bring together some links:

• Here's the CBA document in question (download);
  
• Here's Money Morning's Kris Stace on the problems with the CBA's evidence;
• Here's David Llewellyn-Smith (co-author, with Ross Garnaut, of The Great Crash of 2008) on the problems with the argument;
• Here's the ABC with an overview of the controversy, a defence of the CBA by its own Craig James, and some further criticism of the evidence and arguments courtesy of Morgan Stanley's Gerard Minack (whose own recent piece on house prices and affordability makes a good deal more sense than the CBA's).

NSW Govt reconsidering public housing rent increase for pensioners

Further to our recent post on Housing NSW eyeing off that $30 increase in the pension: the Brown Couch's colleagues at the Older Persons Tenants Service have received advice from Housing NSW that the NSW State Government is reconsidering whether it will include the $30 increase in rent rebate calculations. They'll let us know what the Government decides.

Pensioners and others in private rental, keep shelling out as usual.

Smoke alarms

You've probably heard already of the terrible story from earlier this week of the four-year old boy who died following a house fire in Kelso, near Bathurst.

Some media report that a smoke alarm in the house was broken and awaiting repair by the family's landlord, Housing NSW.

We make no comment on the accuracy of those reports, or on the actions of the parties involved. For the rest of us, it may be an opportune time to be reminded of the rules about smoke alarms.

1. Smoke alarms - you've got to have them. All residential premises (indeed, all buildings in which persons sleep) must have smoke alarms installed. It's the law. If you're a tenant, it's also a term of your tenancy agreement: ie the landlord will have smoke alarms installed and maintained. You need smoke alarms on each storey of the premises, and they need to be near the bedrooms.

2. If a smoke alarm is broken, get it fixed. If you're a tenant, tell the landlord to fix it. If they won't, or won't do it urgently, get a tradesperson yourself to fix it (as an urgent repair) and tell the landlord to reimburse you. Or apply to the Tribunal for an order directing the landlord to fix it.

If a smoke alarm has a flat battery, it's your responsibility to replace it. If you physically cannot replace it, it's then the landlord's responsibility to replace it - tell them to do so.

3. If a smoke alarm is not broken, don't break it. Disabling a smoke alarm (eg taking out the battery), except in the course of doing repairs to it, is an offence. It is also very stupid.

For more details, go to NSW Fire Brigades' web pages, or the TU's factsheet.