Thursday, December 15, 2011

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.'


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.

Tuesday, December 13, 2011

Welcome, Minister for Housing and Homelessness

Forget the horse-race journalism about which individuals are the 'winners and losers' in the Federal Government's ministerial reshuffle: the important thing is that housing is a winner, with the creation of a new, Cabinet-level portfolio of Housing and Homelessness.

Congratulations to the Minister for Housing and Homelessness, the Hon Robert McClelland.

A Housing Minister in Cabinet is something that housing advocates and their industry counterparts have asked for for years, so it's a very welcome development. (Since the last federal election, we've not had a 'Minister for Housing'; instead, we've had a Minister for Social Housing and Homelessness, who did double time on several other portfolio areas, while housing affordability was one of a hundred other responsibilities given to the hard-working Minister for Water.)

In creating the new portfolio, the Prime Minister stated that she did so 'conscious of the challenge of housing affordability' and sought 'to ensure a stronger focus on this issue in the future.' This statement of renewed priorities is very welcome too.

We might also note that the new Minister, having served previously as Attorney-General, has a legal mind – so we hope he advances the Commonwealth's involvement in tenancy law reform, as recommended by National Shelter and the National Association of Tenant Organisations in the 'Better Lease' report (that's a 1.8M pdf).

Welcome, Minister.

Wednesday, December 7, 2011

Still making sense of sales

Fair Trading NSW has just released its latest edition of The Letterbox - this time it's all about "privacy and access"...

Now, just like in the last issue, the latest Q & A session includes some comments that we're not so comfortable with.
Q: What rights do tenants have when the owner is selling the property and requires frequent access for inspections? Can tenants be asked to leave during inspections?

A: If a landlord wants to sell a rental property, the tenant must be given 14 days written notice before the first property inspection. If the landlord intended to sell the premises but did not inform a new tenant of this fact before the lease was signed, the tenant can terminate the lease with 14 days notice and doesn’t have to compensate the landlord.

Okay. We agree, but we think they've forgotten to include a closing sentence of considerable importance:
"If the landlord had no intention to sell the premises when the tenancy agreement was signed, and only later decided to sell, then once so informed the tenant can terminate the lease with 14 days notice and doesn't have to compensate the landlord."
By way of explanation, we refer to this previous post on The Brown Couch, where we extracted a relevant passage from the CTTT's decision in Kutzner v Kamp (NSWCTTT unreported). We reproduce this passage here again:
The issue for determination is whether in these circumstances the tenants were entitled to give notice of termination under section 100(1)(c) of the Residential Tenancies Act 2010. I am satisfied that it is not a requirement of this provision that the landlord must have an intention to sell the property at the time of entering into the residential tenancy agreement which was not disclosed. It is only necessary for the landlord to have notified the tenant of such an intention during the fixed term without notice prior to commencement of the tenancy. "Disclosure" in the sense used in s100(1)(c) does not mean disclosing what was known to the landlord but rather whether prior notice had in fact been given of the landlord's subsequent decision.

The question arising upon the Tenant being told of the intention to sell, is whether the Tenant had been told at the commencement of the tenancy that this would happen. It is not an answer to say that the landlord did not know then that this would occur.
It is our view that Kutzner v Kamp is based on a correct interpretation of the law.

As has been noted in comments on our earlier posts, and in conversations with tenants' advocates across New South Wales, Fair Trading NSW has sometimes given information to tenants that is not consistent with the decision in Kutzner v Kamp. To that end, it is disappointing, but not surprising, to see the information published today in The Letterbox.

On the other hand, the CTTT's annual report for 2010/2011 includes the following case study on page 35:

Click on the image to enlarge

You can find more information about what to do when the landlord wants to sell here, here and here.

As with all things, if you are not sure about a situation with your tenancy, contact your local Tenants' Advice and Advocacy Service for a chat. You can find their details here.

Saturday, December 3, 2011

Happy 173rd Birthday, Octavia Hill

The nineteenth century was the great age of the reformer, and one of the greats of the age was today's birthday girl, British housing and charity reformer Octavia Hill (1838-1912). She's not much remembered these days, but in her own time she occupied a pedestal similar to Florence Nightingale's; indeed, at the First Australasian Conference on Charity in Melbourne in 1890, the convenor, when asked about the proper organisation of charity, could answer 'oh, the best authorities are St Paul and Octavia Hill.' And her unacknowledged influence persists in social housing tenancy management today.

(Octavia Hill, looking not a day over 130.)

Hill was a reformer in the classical liberal tradition of working upon the 'character' of poor and working people – 'character', in this intellectual tradition, being a kind of mediating substance between the degrading, demoralising circumstances of the modern city and the free will of the liberal subject. Character consisted in habits, particularly of thrift, restraint and duty; these habits applied could build up more character.

Hill's particular innovation was to work upon the habits of character through the landlord-tenant relationship. She described her philosophy in evidence given to the 1885 Housing Royal Commission:

The people's homes are bad, partly because they are badly built and arranged; they are ten-fold worse because the tenants' habits and lives are what they are. Transplant them tomorrow to healthy and commodious homes, and they would pollute and destroy them. There needs, and will need for some time, a reformatory work which will demand that loving zeal of individuals which cannot be had for money, and cannot be legislated for by Parliament.

Thanks for the 'love', Octavia! Hill pursued her 'reformatory work' by managing tenancies for poor households, on a ‘five per cent philanthropy’ basis, in houses owned by private landlords and her own supporters. Bernard Bosanquet, a contemporary and supporter, described Hill’s techniques as proceeding on ‘the simple but not familiar idea that a landlord has a moral duty to his tenant’:
The system consists in the employment of trained women as agents and rent-collectors, who manage the property as any decent owner ought to manage it, but with a good deal of individual supervision…. [I]t is absolutely indispensable for the houses of people who have lost the habit of living in comfort and cleanliness.

Hill and her workers attended to repairs and improvements, and in return insisted on payment of the rent strictly as it fell due – less for any commercial reason than for the lesson in thrift it taught her tenants. And Hill knew her tenants: in particular, she used the practice of collecting rent directly from tenants at their premises to insinuate a surveillance of character into their households, by inquiring after the circumstances of household members and giving advice and warnings.

This work, Hill insisted, was to be done by women only – ‘ladies must do it, for it is detailed work; ladies must do it for it is household work’. Her system was, in effect, a new application of the technique of the ‘lady visitors’ developed earlier by charitable organisations in almshouses, workhouses and asylums, and Hill herself explicitly articulated the disciplinary power of her techniques with classical liberal reformism:

It is a tremendous despotism, but it is exercised with a view of bringing out the powers of the people, and treating them as responsible for themselves within certain limits… you cannot get the individual action in any other way that I know of.

This 'tremendous despot' did not establish a formal organisation through which to conduct her system of management – it is estimated that she managed about 2 000 tenancies at the time of her death, and her workers managed more in their own schemes – but several Octavia Hill Societies were established in Europe and North America, and in 1916 her workers established the Association of Women House Property Managers. At the time, Hill’s methods of individual visiting, questioning and advice were accepted as the state of the art in reformist tenancy management, as well as being taken up more widely in the emerging field of social work.

In other respects, however, Hill's vision for housing reform was overtaken by events. She refused to countenance the public provision of housing or housing subsidies – corrosive to the character of the poor, you know – so she did not have a direct hand in the development, at the close of the nineteenth century, of the first public housing schemes. On the contrary, these schemes where much more influenced by the vision of Ebenezer Howard and the Garden City reformers, and questions of physical form, rather than tenancy management. (Hill backed the wrong pony on female suffrage too – she was opposed to it.)

But Hill's method was still a ready resource for the growing housing authorities, so over the twentieth century the very personal aspect of Hill’s method became something of a minor theme in social housing practice. In Britain and around the world, housing officers would continue to perform intensive investigations into the circumstances of applicants and tenants, and counsel them in the correct uses of their dwellings and surrounding spaces. At New South Wales's own Erskineville estate, built in the 1930s by the NSW Housing Improvement Board, a genuine English woman housing officer was employed, in the words of Pix magazine, for ‘the delicate task of choosing the families most suitable…. Miss Margaret Ratcliffe, housing manager, investigated all their personal problems, individual requirements and visited their homes to see for herself under what conditions they were living’. Decades later, the NSW Housing Commission's field manual would instruct housing officers to 'observe sleeping arrangements when visiting the premises in connection with arrears reports, etc, and take appropriate action when irregularities are found.'

And this scrutinising, moralising, 'despotisic' theme in social housing tenancy management continues today. Ironically, it is in the operation of Housing NSW's income-related rent rebate system – which Hill would have deplored – that some of the strongest expression of this theme can be found. Under the rental rebate system, tenants are required to seek their landlord's 'approval' for any additional occupants, and keep the landlord apprised as to the amount and source of each of their household members' income. And when it comes to actually paying, rent in public housing has, as in Hill’s system, a moral significance. If anything, this moral significance is heightened by the fact that they are not economic rents. In a sense, the rent rebate system objectively and precisely accounts for each tenant’s need and inability, adjusts their legal liability accordingly, and what is left is the tenant’s responsibility. Where tenants fail in their responsibility in this regard, their own culpability is emphasised. What starts out as a system for administering to people's needs ends up as a regime for policing their domestic diligence and honesty.

Many happy returns, Octavia Hill.