Living in a sharehouse? You need an agreement

If you've been hanging out on campus during o-week this year, there's a chance you will have spotted a brochure that looks like this:

These are doing the rounds because in 2011, changes were made to tenancy laws in NSW that affect people living in share housing.
If you rent part of a house or unit from another tenant – and they have a written tenancy agreement with the owner of the premises – then they are your head-tenant.
It is very important that you have a separate written agreement with your head-tenant. Without a written agreement, you will not have the protections of a tenant under NSW tenancy law.
If you are a head-tenant, having a separate written agreement means that the rules are clear and any disputes with other tenants can be resolved formally.
Note that a head-tenant needs written consent from their landlord to sub-let to another person. A landlord must not unreasonably refuse to give consent.

Secure your tenancy

Step 1 – Write up your own agreement. (Click on the sample above to save and run off a copy, or click on this link for a PDF version)

Step 2 – Sign the agreement and give it to your head-tenant to sign. Keep a copy for yourself.
Contact your local Tenants Advice and Advocacy Service if you need further advice.

Tenancy Culture Studies: Withnail and I

Today's subject of study is the 1987 share housing cult film, Withnail and I.

Set at the close of London's swinging 'sixties, Withnail and I is the tale of two flatmates and 'resting' actors, Withnail (Richard E Grant, in the role that made him) '... & I' (that's how Paul McGann's character is referred to in the credits; never called by name in the film itself, he's 'Marwood' in the screenplay, so that's what we'll call him here).

Despairing of unemployment, fuel poverty, chemical abuse and the squalor of their rented London flat, Withnail and Marwood flee the city and connive a holiday at the country cottage of Withnail's appalling Uncle Monty. Country life, however, presents new difficulties for the flatmates, and no respite from their old ones. So they return to the city and their flat, to find their drug dealer asleep in a bed and an eviction notice for rent arrears awaiting them.

From here one of them finally makes a decisive break.

Withnail and I is, so to speak, one of the finest films available to humanity. It's certainly one of the funniest, but it is more than that. Beneath every joke and quotable quote there is something deeper going on. Withnail and I is full of profound and sad truths. And both in its humour and in its sadness it has a lot to say about share housing.

Withnail and I's depiction of share housing rings true for many people. There is, of course, the horrific state of Withnail and Marwood's kitchen sink, and the funny side of getting wasted. But more importantly, Withnail and I truthfully reflects the personal relations that are made in share housing. It can make intense attachments: for Marwood, it is in large part the anxious dependency of the drug-addled. (See how he gets the fear in the cafe in the opening sequence:'... and I can't cope with Withnail? I must be out of my mind. I must go home at once and discuss his problems in depth.') For Withnail, as we find out in the film's achingly sad final scene, the larger part is something else.

As well as their making, Withnail and I also reflects, necessarily, the unmaking of share housing relationships. It is in their nature that they won't last forever. It's a point obliquely made in the comments on the passing of an age by both Monty ('Ah, my boys, we're at the end of an age. We live in a land of weather forecasts and breakfasts that "set in". Shat on by Tories. Shovelled up by Labour. And here we are. We three. Perhaps the last island of beauty in the world.') and Danny the drug dealer ('They're selling hippy wigs in Woolworths, man. The greatest decade in the history of the world is over. And as Presuming Ed here has so consistently pointed out, we have failed to paint it black.'). Indeed, the film's period is a layered metaphor for the share housing experience: ostensibly a time of liberation, it becomes, through its conflicts, injustices, and deprivations, something from which to escape.  

It is also fair to say that there have been more than a few share households that have made themselves a reflection of Withnail and I. The decayed grandeur of the flat's decoration is much imitated, and many of the film's lines have passed into the language of share houses, like Monty Python for a seedier set. But again, the significance of Withnail and I for share housing – in itself, as a film – goes deeper. Referring to the film, or watching it together, is a way for housemates to subtly check or test one another, to see how tolerant or otherwise ('bald', as Danny would say) they are, and perhaps even kick off a great share housing friendship.

Tenancy Culture Studies: The Young Ones

The Brown Couch has long looked forward to today's entry for Share Housing Month. Brilliant, seminal comedy series The Young Ones was created out of the alternative comedy scene in London in the late 70s, especially the comedians appearing at the Comedy Store and later the Comic Strip. Tenancy is a subject close to the hearts of the creators with the later series' Filthy, Rich & Catflap, and Bottom all centred around flatmates and their relationships.

Adrian Edmondson has spoken before about the basis for the characters being something within them. The Young Ones play upon some fairly ingrained stereotypes of students in share houses and part of the brilliance is, in a very stylised way, that there is truth in the comedy. Some houses, some young people, are raucous, dangerous, pretentious... The Young Ones celebrate this. Many are not, but we all know people who have elements of the characters portrayed here. The other end of the Brown Couch may find this next statement controversial, but this style of comedy is what a previous entry in Tenancy Culture Studies, SBS's Housos, attempts to achieve as well. Enough of that though, it is classic alt-comedy Brits we're interested in here.  

We're not watching the bloody Good Life!

The 4 tenants are all undergrad students at Scumbag College. Our heroes are gloomy hippy Neil, destructive punk Vyvyan, pretentious poet Rik and suave Mike. The relationship between the tenants appears to be a classic co-tenancy- although there are constant tussles around the leadership of the house. With a reckless disregard for each other's property and the house in general you would expect the house not to last more than a few days, but somehow they find the patience to continue to live with each other.

Heeeere's Jerzei!

Despite Vyvyan's destructive streak and the group's generally poor housekeeping, the relationship with their landlord actually seems to be quite friendly. Mr Balowski (and his family) are frequent visitors to the house. In the first episode the boys not only manage to get out of paying the rent, but get rehoused in a new house with Mr Balowski following demolition of their current house. This may say more about Balowski's intelligence and business nous than his generosity but his opening speech suggests that part of the value he receives from these tenants is access to the younger generation.

Joined and severed limbs

Er, jointly and severally liable. Leasing and contract laws have long held the notion that co-tenants are jointly but also individually liable in the eyes of the law for the damage that one may cause to the houses they live in (as well as the unpaid rent!). It seems Neil may well be most hard done by in this situation since he is never shown causing any of the not inconsiderable damage to the premises. If he was to receive advice from a Tenants Advice and Advocacy Service they may well refer him to s102, under which a tenant can sever themselves from a co-tenancy if there are special circumstances. Special circumstances are quite a high bar to reach, and should always be something to get advice on before trying yourself, but given the copious amount of video evidence of the violence perpetrated upon him Neil may well make it.

What do we learn from the Young Ones?

The Brown Couch sees a few lessons we can take from the Young Ones. Firstly, sometimes the relationship with your landlord doesn't have to be based purely on financial concerns. Second, no matter how dysfunctional your share house is, it is possible to get along.

There is another lesson here too - "its funny because it's true". Or is it? Anyone who doesn't have a tale of share-house debauchery from their "student days" surely knows someone who does. Yet we would not find it funny at all if it was happening next door. We laugh at their destruction of property and each other, and their disregard for society's norms because - well, because they are on TV. They aren't next door, and we don't have to deal with these aspirational middle-class kids on a good-times rampage. Given we all have stories to tell from our student days, is it really fair to stick the boot in to today's young people?

Of course, it is entirely possible we're taking it all too seriously and should just sit back and enjoy the sight of a punk losing his head.

Naked in share housing

We kicked off Share Housing Month by talking about the different ways in which you, as an occupant of share housing, can get covered as a tenant the Residential Tenancies Act.

Now we turn to what happens if you're not covered. And in New South Wales, if you're not covered as a tenant under the Act, you're not covered by any other legislation. You're what we call a marginal renter, and you are legislatively naked.

(Share house marginal renters out and about in Sydney. By Spencer Tunick.)

In fact, in terms of legislated rights and remedies, share house marginal renters have it even worse than other sorts of marginal renters, such as those living in boarding and lodging houses. This is because the operators of boarding and lodging houses are generally in business, and as such their boarding and lodging contracts are covered by the Consumer Claims Act 1998. This gives boarders and lodgers, as 'consumers' of boarding and lodging services, some recourse to the Tribunal for remedies to do with the payment of money or supply of services (but nothing about notice periods, how terminations are done, written agreements and receipts, and other important aspects of their housing).

But share housing is generally run on a subsistence basis, and your typical head-tenant is not 'in business'.

This means you are subject to the common law of lodging only – and we say 'subject to', not 'covered by', because the common law is less a covering than a chill breeze that discomforts and diminishes the unfortunate, uncovered lodger. It comes virtually unchanged from the nineteenth century, and its essential principle is caveat emptor – let the buyer beware. The terms of common law lodging agreements ('licences') are those the parties agree to; in practice, this means they are what the grantor says is on offer, take it or leave it.

Legally speaking, then, a twenty-first century share house lodger might as well be living in a nineteenth century common lodging house. (Hopefully not this one; but the scene in this one may be appropriate to our metaphor.)

We need a decent, basic legislated regime for renters who fall outside our current residential tenancies legislation. We've proposed the occupancy agreements model, along the lines of the Australian Capital Territory's legislation, and independent Sydney MP, Clover Moore, has introduced a Bill for such legislation into the NSW Parliament. 

This legislation would cover all otherwise uncovered renters, including share house lodgers, and, as a cover-all, it's pretty basic – but it also provides for the making of more detailed provisions for specific classes of occupancy agreement by subsequent regulations. It is, to stretch our metaphor to breaking point, a simple bathrobe thrown about the naked marginal renter, with the prospect of something better fitting – indeed, tailor-made – to come. 

But at least until we get this sort of legislation in New South Wales, keep trying as best you can to get covered by the Act.

Tenant participation in strata schemes?

Should tenants have a role in the operation of strata schemes? A vote in some aspects of an owners corporation's business? Or just a right to be heard? Or should we go the whole way and have 'residents corporations', rather than 'owners corporations'?

We've posed the question of tenant participation in strata schemes in the online discussion about reforming New South Wales strata laws. Join the discussion!

Judgement Day in the Tribunal

Some non-share-housing-related news: an eagle-eyed tenant advocate has spied this case, in which the Tribunal terminated a tenancy because a tenant quoted the Bible at their landlord.

The offending sermon was delivered in the context of a dispute about a less-than biblical flood that had occurred at the rented premises. In an email to the landlord, the tenant suggested that they look up the Book of Jeremiah, chapter 18 verses 18-23, and Psalm 35 verse 6, as a 'really good fit' for the landlord and their associates.

(The prophet Jeremiah, as depicted by Michelangelo)

The landlord did so, and was particularly struck by Jer 18 v 21, which reads:

So give their children over to famine; hand them over to the power of the sword. Let their wives be made childless and widows; let their men be put to death, their young men slain by the sword in battle.

On the basis of this and certain other alleged incidents, the landlord applied directly to the Tribunal  under section 92(1)(b), which allows the Tribunal to terminate a tenancy (without a prior notice of termination) where the tenant has intentionally engaged in conduct that would be reasonably likely to cause the landlord (or certain others) to be intimidated or harassed.

And the Tribunal made the termination order. It should be said, the Tribunal did hear evidence about those other alleged incidents – and heard evidence from the tenant about the landlord having a go at him – but the evidence about all those incidents was disputed, and it was on the basis of the emailed scriptures alone (which the tenant admitted, and regretted, he had sent) that the Tribunal made its determination.

Your correspondent is not a biblical scholar, but on referring to the Good Book (copies of which are to be found in every Tribunal venue, for the purpose of taking sworn evidence) it appears to me that the story of Jeremiah is that of a prophet who delivered unwelcome prophesies to his people, who responded by making false accusations against him, to which in turn Jeremiah responded (not in so many words), 'well you can all go to blazes.'

One might interpret it, therefore, both as the lament of one who has delivered unwelcome information, and a story about the wrongfulness of giving false evidence.

Meanwhile, Psalm 35 v 6 ('Let their way be dark and slippery: and let the angel of the LORD persecute them') can be read as a general, all-purpose, old-fashioned curse.

With respect to the Tribunal, it has in this case applied a pretty low threshold to what sort of conduct constitutes intimidation and harassment. We've all come across individuals with eccentric ways of communicating, and we should be expected not to feel afraid of them without substantial cause. We shouldn't stereotype 'scripture-quoting' with 'gun-toting'.

And with respect to the drafters of the Act, perhaps s 92(1)(b) needs to be looked at. A similar provision existed in the 1987 Act, but it applied only to social housing landlords. The 2010 Act extends it to all landlords; this case is an ill omen for its use.

Australians for Affordable Housing Budget Statement

Australians for Affordable Housing have today launched their Budget Statement for this year, calling on the Federal Government to address housing stress where it is hurting most – in rental housing.

And partly because it is Share Housing Month – and partly because it is where the housing stress numbers are worst – let's look more closely at the situation of students and job-seekers. 

According to AAH, more than 70 per cent of Austudy and Youth Allowance recipients, and more than 60 per cent of Newstart recipients, are in housing stress – that is, they pay more than 30 per cent of their income in rent, even after Rent Assistance is added to their (very low) incomes. And this means serious proportions of people skipping meals and going without health and dental care in order to pay the rent.

(Click on image for a better view)

In response, AAH proposes (as have we, and as did the Henry Review) an increase in the maximum rate of Rent Assistance. AAH proposes $25 per week, which, as you can see, would achieve a modest reduction in the number of persons in housing stress. 

More importantly (and this isn't shown in the numbers), an increase in the maximum rate would most help those in the most acute housing stress – even if it doesn't get them out of housing stress altogether. This might mean the difference, so to speak, between eating beans and not eating at all.

That's the demand side; on the supply side, AAH calls for an Affordable Housing Growth Fund, to continue what the stimulus only started: the rebuilding of the social housing system after years of neglect and decline.

And as the national media turns its attention to what the RBA will do to interest rates, it's the best affordable housing plan you'll read all day....

Share Housing Month

February is traditionally the time of year when many new share houses start up – and many existing share houses get a new lease on life as new housemates move in. And it's Share Housing Month on the Brown Couch, too.

(Share housing)

Whether you're just starting out or are an old hand, it's a good time to think about getting your house in order – particularly to make sure that your share house arrangements are covered by the Residential Tenancies Act.

If you're on the tenancy agreement with the landlord of the premises, you're covered. If you're not, consider doing one of the following:

• Get a written sub-tenancy agreement. A sub-tenancy is where you have an agreement with someone who is a tenant of the premises. This person (the 'head-tenant') is your landlord, and you're their tenant. It is most important to GET THIS AGREEMENT IN WRITING – if it's not in writing, it's not worth the paper it's not written on. This is a new rule for share housing (see section 10 of the Residential Tenancies Act 2010, now one year old), but it applies to share houses that have been around longer than that, so if you're a sub-tenant on the basis of a handshake a couple of years ago, things have changed. Get your sub-tenancy agreement in writing – it doesn't need to be the many-paged thing landlords and agents use. Try this one the Tenants' Union has prepared. 
• Get a co-tenancy created. A co-tenancy is where you and your housemates are jointly the tenants of the premises, on equal footing (that is, no 'heads', no 'subs'). Keep in mind you're also jointly and severally liable – the landlord can hold any one of you liable for debts or damage caused by any or all of the others.  You can get a co-tenancy created by entering into a new agreement with the landlord with all your names on it; alternatively, an existing tenant can transfer a share of their tenancy to you. Either way, you should get the landlord's consent, and get the arrangement in writing.
• Get recognised as a tenant in your own right. If the population of your share house has turned over so much that no-one currently living there is on the agreement with the landlord, you should try to get a tenancy in your own right. Do this by asking the landlord or agent for a new agreement, or apply to the Tribunal for an order recognising you as a tenant and vesting a tenancy in you.

And you're good to go! Enjoy!