Tenancy advice over the Xmas break

We're taking a break over the Xmas-New Year period; so are the TAASs, and we hope you get a break too.

From 19 December to 8 January the TU's Xmas Hotline will be in operation each weekday (except Xmas Day, Boxing Day and New Years Day), from 9:30am-1pm, and 2pm-5pm, staffed by experienced tenant advocates from the TAASs. We hope you don't need it.

Tenants' Union of NSW Xmas Hotline

 phone (02) 8117 3750 

or 

1800 251 101

Thanks for reading us this year – in terms of numbers of posts, and numbers of people reading them, it was our biggest year yet. We wish you the best of the season, and we'll see you in the New Year.

National Regulatory System for Community Housing to, er... commence

If your landlord is a Community Housing Provider, chances are you will have heard of the NSW Registrar of Community Housing. The Registrar's job is to make sure that any not-for profit social housing landlord (ie, the Community Housing sector) plays by the rules.

The rules are set out in a document known as the Regulatory Code for Community Housing Providers. Each provider who is assessed as capable of playing by these rules may be included on the Provider Register. Registration is necessary for Community Housing landlords who wish to do business with the NSW Government, so as to receive funding, or other assistance, to offer community housing tenancies to people on the social housing waiting list.

The structure of this system is about to change - the regulation of Community Housing landlords going to go national. As of 1 January 2014, there will be a new National Regulatory System for Community Housing, and a new national Community Housing Register.

You probably won't notice this, much. At least, not unless you have reason to grumble about your landlord because they are not playing by the rules.

Providers who are currently registered under the NSW system will start to be invited to register under the national system in about February. They will not all be invited at once - there is an 18 month window for providers to become registered. The NSW Register will remain open until July 2015. 

Providers who are currently registered in NSW will remain subject to the NSW regulatory code of conduct until they become registered under the national system. Then they will have to follow the new national regulatory code. The national code and the NSW code are similar in many ways, but not in every last detail...

So... for the next 18 months, there will be two regulatory systems, and two regulatory codes, operating concurrently in NSW. They will both be overseen by the NSW Registrar, and tenants and advocates should continue to bring relevant issues from the Community Housing sector to the Registrar's attention.

If you're of a mind to do so, you can contact the Registrar's office directly. But it's always a good idea to speak with an advocate from your local Tenants' Advice and Advocacy Service before you do.

Cuts to community legal centres

The Federal Government announced yesterday that the Community Legal Services Program (CLSP), which funds community legal centres (including the Tenants' Union of NSW), will be cut by almost $20 million over the next four year years.

Funding to other legal assistance services, including Aboriginal and Torres Strait Islander Legal Services and the Legal Aid Commissions run by State and Territory Governments, is also being cut.

Amongst the CLCs, the EDOs and New South Wales's Public Interest Advocacy Centre (PIAC) are singled out for particular cuts: none of these services will receive CLSP funding beyond June next year.

As an exercise in government cost-cutting, this does not make a lot of sense.

The essential work of CLCs is to solve legal problems – problems that would otherwise cause greater cost, to the individuals affected and to the administration of justice.

So, for example, when we're giving advice to tenants who are having a problem getting repairs done, part of the advice is: 'keep paying your rent'.   

This is to keep a repairs problem from also becoming an arrears problem – and, possibly, a tenancy termination problem, and a moving-out-fast/finding-accommodation/risk-of-homelessness/actual-homelessness problem. 

Landlords and governments may be surprised at how often CLCs prevent problems from ending up before the Tribunal, and before the counters of Housing NSW offices.

We know firsthand the value of the work of the EDO NSW and PIAC. 

During the drafting of Shelter NSW's Shelter Brief on 'Heritage and Social Housing: implications for repairs, maintenance, modifications and redevelopments', the EDO was an invaluable source of advice on the law. Heritage protection in New South Wales is largely effected through planning law, and as contentious as planning law is, everyone agrees that it's complicated – bloody complicated! 

Citizens who grapple with this area of the law without expert guidance such as that provided by the EDO can easily make mistakes that are costly for themselves personally, and for the courts that administer proceedings. 

PIAC's work ranges across different areas of the law. In relation to housing, it operates the Homeless Persons Legal Service, which solves legal problems for homeless persons individually – quite often the problems that make them homeless – and helps put the experiences of homeless persons across to government agencies, such as Centrelink and Housing NSW, to improve their service provision.

Without PIAC, the EDOs, and other CLCs, this work would not get done, and these problems would not get solved, to greater cost to vulnerable persons and the whole of the community.

New Fair Trading Minister

Congratulations to the Hon Stuart Ayres, MP for Penrith, who was last week appointed NSW Minister for Fair Trading.

Mr Ayres was also appointed Minister Assisting the Premier on Western Sydney, which has historically been the location of so much of our relatively affordable housing.

(Source: Rent and Sales Report No 105, and special request data)

We look forward to working with the Minister in both his ministerial capacities.

Too much money

Many tenants are frustrated would-be owner-occupiers. In the present housing market, this is what they're up against:

(ABS, 5671.0 Lending Finance, Australia, table 8)

There's never before been so much money lent to would-be landlords, and over the past year or so it has shot up fast. That's the case for all of Australia, and for New South Wales.

(ABS, 5671.0 Lending Finance, Australia (New South Wales), table 19)

This great wave of money is not powering the construction of a whole lot of new houses –

 (ABS, 5671.0 Lending Finance, Australia (New South Wales), table 19)

– instead, it's just swelling house prices and swamping would-be owner-occupiers.

We often talk about the problem of unaffordable housing as a problem of not enough money. Certainly, that's how it will appear to frustrated would-be owner-occupiers, particularly those on low- or moderate incomes (and, we might add, our low-income-earning state housing authorities). And all too often politicians will propose that the solution lies in giving them (the would-be owner-occupiers; not, sadly, the state housing authorities) more money, in the form of First Home Owner Grants.

There's another way of looking at the problem of unaffordable housing: as a problem of too much money burning through the pockets of some sections of the population. Too much borrowed money, facilitated by low interest rates, and sent barreling by our tax policy settings (particularly in relation to capital gains tax and negative gearing) into our housing markets.

What to do about too much money? 

The last thing this problem needs is a First Home Owners Grant. You can lever that grant several times over into more borrowed money to pay for a house, but in a fast-rising market those would-be landlords can lever their own earlier-acquired housing wealth into even greater purchasing power. 

Higher interest rates? That might work, but it would also mean less money for other sectors of the economy that really need it, and a higher price for our already costly dollar. A national housing debt ceiling? Well, maybe something a little like that.

(ABS, 5609.0 Housing Finance, Australia, table 12)

Our finance sector regulators could implement policies of 'macroprudential regulation', which more precisely target the specific problem in our housing markets than interest rates can. These policies might include limits on the size of loans relative to the value of the property to be purchased (ie the loan to valuation ratio, or LVR) – or even relative to the market rent for the property. These policies would restrain the amount of money lent for housing investment. And of course, we should reform our tax regime, to reduce the preferential treatment of housing that incites so much borrowing for housing.

More and more commentators are turning on to macroprudential policy; so should our political leaders.

Queensland tenants services close

A grim update from Queensland, where Tenants Advice and Advocacy Services are shutting their doors.

The temporary funding from the Federal Government - made available as an emergency measure after the State Government defunded them – runs out at the end of December. A spokesperson for Federal Social Security Minister, Kevin Andrews, says funding for tenants services is 'now a matter for the Queensland government.'

By the end of the month, 21 TAASs will be closed down, all of them in regional Queensland. In Brisbane, two services will battle on without TAAS funding, providing limited services through such bits of money as they can raise otherwise.

The Tenants' Union of Queensland, being a funded community legal centre, will also continue to operate, but only from its Brisbane office, and its staff is almost literally decimated, down to about three full time equivalent positions, with further reductions likely to come.

Queensland tenants' bonds generate about $40 million per annum – tenants' money. A fraction – about 15 per cent – went to TAASs, for services just for tenants. Now that money, and more, will go the the Queensland State Government where whatever it pays for will not be just for tenants.

Our thoughts go to our Queensland colleagues who are losing their jobs, and to Queensland tenants who are losing their services.

National Housing Supply Council abolished (find its reports here)

Last month the Federal Government abolished a range of advisory committees, including the National Housing Supply Council.

The reason, according to the Prime Minister:

[The advisory committees'] activities are no longer needed or can be managed within existing departmental resources.

Many of these non-statutory bodies have outlived their original purpose or are not focused on the Government’s policy priorities. As a result, their work is best carried out by the relevant government departments or agencies.

We query how research into housing supply issues is either no longer needed, or not a policy priority, or best carried out by a government that does not have a housing ministry.

A person didn't have to agree with everything about the NHSC's take on housing supply issues to appreciate that it made a strong contribution to public discussion through its data and analysis. You can read how we engaged with its research in our posts on what we call the real housing supply problem – the shortage of affordable rental housing.

In memoriam, we reproduce here our favourite NHSC graph, from its 2010 report, showing the changing shape of the private rental market over recent years. It shows, for three census years, how many properties were let for what rents (the dollar amounts of the rents are adjusted for inflation over the years, so its comparing apples with apples).

Look at the shape of the market in 1996 (the black line), with a big bulge of properties let at fairly low rents (about $150-$200 per week). Now look at the grey line (2001), then the blue line (2006). See how that bulge of low-cost properties has, over the years flattened down, and pushed along the scale of rents. You're seeing how speculator-landlords have been bringing higher value, and hence-rent properties into the rental sector, and letting the low-cost stock drop out of the market, so that what remains becomes scarcer and less cheap.

We'll keep a look-out for an update to the 2011 census.

*

The abolition of the NHSC is disappointing, but the disappearance of the NHSC website, and all its publications, is even more disappointing – if not downright creepy. However, through the marvelous facility of the Internet Archive Wayback Machine, you can still access the archived NSHC website and NHSC publications. 

NSW Fair Trading tenancy dispute resolution service

NSW Fair Trading is promoting a dispute resolution service for certain types of tenancy disputes. If you're a tenant (or a landlord, or an agent) and you've not been able to sort out a problem yourself, you can apply to NSW Fair Trading to conduct mediation between you and the other party.

The mediation might result in a non-binding settlement of the dispute, or it might not settle, in which case you'll have to consider applying to the Tribunal for an outcome (currently the Consumer, Trader and Tenancy Tribunal; from 1 January next year, the NSW Civil and Administrative Tribunal). You'll have to consider applying to the Tribunal if the other party doesn't keep to the settlement they've agreed to, too.

It's good to know that this service is there as an option – one option amongst several. You can also contact your local Tenants Advice and Advocacy Service, who are experienced hands in negotiating with landlords and agents. Even when they cannot negotiate on your behalf can usually give you some handy tips on how best to do it yourself.

And the Tribunal is an option. You should consider applying to the Tribunal, particularly if you've been given the run around by your landlord or their agent for some time. Keep in mind that there are time limits on applications: you've got to apply within three months of becoming aware of a breach; and for some other types of dispute, the time limit is less than that.

And note that the Fair Trading service is optional, not mandatory (a mandatory process, duplicating the Tribunal's dispute resolution role in an inferior way, and complicating access to justice, would not be a good idea). 

Vale Nelson Mandela

We pay our respects on the passing of Nelson Mandela.

Amongst the huge achievements that Mandela made, and made possible, in the realisation of human rights, we'll highlight just one: the right to housing in the South African Constitution.
  
26. Housing

1. Everyone has the right to have access to adequate housing.

2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

Vale Nelson Mandela.

The case of the lost public housing heritage tenancies

NOTE: Due to a change in regulation on 30th October 2015, these exemptions no longer apply to Land and Housing Corporation and Aboriginal Housing Office properties. See here for further details.

... and they didn't even know they were missing.

Strange but true: public housing tenancies in heritage properties are, for most purposes, exempt from the Residential Tenancies Act 2010.

The TU noticed the exemption only recently, while poking around the back of the Residential Tenancies Regulation 2010 – see clause 16. The exemption applies to certain types of landlords – and the NSW Land and Housing Corporation, the public housing landlord, is one of them – where they own certain types of heritage properties: in particular, properties listed as items on the State Heritage Register or a local council's heritage register.

We've pored over the registers and have identified more than 500 affected properties. Some of these are blocks of flats, so the number of public housing tenancies affected will be higher. 

Before we go any further, we should say to affected tenants: don't panic. You're still tenants. You've still got a lawful right to occupy your premises, and legal rights and obligations under the lease you signed with Housing NSW.  We might add: you're still obliged to pay rent, and Housing NSW can still take action to terminate your tenancy and recover possession of the property.

But strictly speaking, the exemption means that neither you nor Housing NSW can resort to the provisions of the Residential Tenancies Act in the event of most disputes about your rights and obligations – including the Act's provisions for dispute resolution through the Consumer, Trader and Tenancy Tribunal. (This means your own applications to the Tribunal would have to go under the Consumer Claims Act. It also means, strictly speaking, that Housing NSW's proceedings for termination would have to go to the Local Court or Supreme Court under the Landlord and Tenant Act 1899!)

And to make things really strange, we say affected tenancies are exempt from the Act 'for most purposes', because it appears that Part 7 of the Act, which contains some special provisions for social housing (like the special terms about water charges and debts, and some special grounds for termination), does still apply to these tenancies, even though the rest of the Act does not. This bizarre result is an accidental effect of the wording of Part 7, rather than a deliberate reservation.

In fact, we're convinced that the whole thing is accidental: the exemption of public housing heritage tenancies is a stuff-up, not a conspiracy. It appears to us the intended targets of the exemption were the handful of tenancies for places like Bronte House, which are let to heritage buffs to restore and occasionally display – not public housing.  Housing NSW was not aware of the exemption until we alerted them to it (and when we discussed it with one of their lawyers, he groaned). Housing NSW has said it'd much prefer all its tenancies to be under the Act, and will not contemplate trying to use the exemption to avoid its obligations.
 
Clause 16 itself provides a simple way of getting exempt heritage tenancies covered by the Act: the parties just have to agree in writing not to be exempt. We continue to correspond with Housing NSW as to the best way of getting exempt tenancies covered.

So, who's affected? From the relevant heritage registers, we count:

• approximately 200 premises in Millers Point and Dawes Point (being premises listed on the State Heritage Register as items of State heritage significance under the Sydney LEP 2012);
• approximately 89 premises in Woolloomooloo (being items of local heritage significance under the Sydney LEP 2012)
• approximately 89 premises in Waterloo (being items of local heritage significance under the Sydney LEP 2012);
• approximately 39 premises in Pyrmont (being items of local heritage significance under the Sydney LEP 2012);
• approximately 36 premises in Glebe (being items of local heritage significance under the Sydney LEP 2012);
• approximately 31 premises in South Granville (being items of local heritage significance under the Parramatta LEP 2011);
• approximately 13 premises in Darlinghurst (being items of local heritage significance under the Sydney LEP 2012);
• approximately 12 premises in Surry Hills (being items of local heritage significance under the Sydney LEP 2012);
• approximately three premises in North Sydney (being items of local heritage significance under the North Sydney LEP 2001);
• premises in the Strickland Buildings, Chippendale (being an item of local heritage significance under the Sydney LEP 2012);
• premises in the Alexandra Terraces, Camperdown (being an item of local heritage significance under the Sydney LEP 2012);
• premises in the former Salvation Army College, Petersham (being an item of local heritage significance under the Marrickville LEP 2011).

Not affected are public housing tenancies in properties that are part of a heritage conservation area on a local heritage register – clause 16 says the property must be a heritage item. Also not affected are community housing tenancies (because a community housing landlord is not a public authority, as required by clause 16).

The properties in Millers Point and Dawes Point are the only public housing properties on the State Heritage Register. You can find your local heritage register up the back (usually at Schedule 5) of your council's Local Environmental Plan: browse among the 'EPIs' (environmental planning instruments) on the New South Wales legislation website by the name of your local government area.

If you have any concerns or queries about the exemption, please contact your local Tenants Advice and Advocacy Service.

For more general information on social housing and heritage, see Shelter NSW's new Shelter Brief: 'Social housing and heritage: implications for repairs, maintenance, modifications and redevelopments'. 

New Tribunal commences 1 January 2014

On 1 January 2014 a significant change will take place in the New South Wales justice system: the NSW Civil and Administrative Tribunal (NCAT) will commence operations, replacing the Consumer, Trader and Tenancy Tribunal and twenty other dispute resolution tribunals and boards.

Work has been proceeding on NCAT all year – you can read more about the background, and where work is up to, here.

The TU has been involved through the State Government's NCAT Reference Group, where we've tried to ensure that the new tribunal will provide tenants at least the same level of access to justice as the CTTT. We're hopeful that it will: most of the provisions about NCAT's Commercial and Consumer Division are familiar from the CTTT, and a few things have been tidied up. For example, a restriction on rehearing proceedings where a warrant for possession has been executed has been tightened up, so that the restriction will now apply just to the termination and possession orders, and other aspects of the proceedings (say, the amount of rent owing) may be reheard (CAT Act, Sch 4, clause 12(2)(b)).

Probably more notable is that 'rehearings' in NCAT will be 'appeals' to an Appeal Panel of NCAT; that parties have a right to have an appeal heard on a question of law (section 80(2)(b)); and that the President of NCAT is a Supreme Court judge (the inaugural President, just appointed, is Justice Robertson Wright).

We're hopeful that these changes lead to better, more rigorous decisions from the Tribunal generally.
 

Three ways to pay, and locked out twice...

We've been watching a bit of shift, of late, in the way house price movements are being reported. There's a growing concern that first home buyers are disappearing as house prices heat up, the booming housing market is leaving first home buyers behind, and that a housing crisis has locked out Generation Rent. There's the usual guff about how first home buyers just need to temper their expectations and save up for longer, and even a suggestion today that housing is as affordable as it's been in a decade - although that last article does at least acknowledge that it is investors, and not first home buyers, who are currently jumping in.

It's an interesting dynamic out there. Despite the emerging sense that first home buyers are mostly all goners, houses continue to change hands, and prices continue to climb. Landlords don't seem to be in short supply, and of course nobody who is selling a house can be heard to complain about the price. But this leaves us in a situation where landlords are locking tenants out of home ownership.

They're billing us for it, too.

There are three ways that they do this. The first is pretty obvious - they charge rent. And as the rent is adjusted, always upwards, to increase the cash-flow or maximise a yield, it makes it just that little bit harder for tenants to put a few dollars aside for a deposit to buy.

The second is pretty obvious, too, and it works in a couple of different ways. Chances are, your landlord has purchased your home in order to sell it down the track, at a higher price than that which they paid for it, because that's how speculation works. In order to do this, they'd like for you to aspire to buy it  - or at least one just like it, so that there is a bit of competition for it when they do decide to sell. And when they sell, your aspiration to buy helps them command a higher price; and if you do manage to buy a house one day - whether it's the one you're renting, or one just like it - you might be expected to pay more than your landlord did. You contribute to their capital gain. Sure, it's not like you're handing them the money directly. You might be hanging onto it, saving for that deposit instead, which just keeps getting away from you as house prices continue to rise. We must concede, of course, that you might have decided to stick with renting after all. If that's the case then you're probably not contributing to your landlord's capital gain. In all likelihood it's other landlords who are doing that, while you continue to fork out the rent.

The third way is a little less obvious - but we've talked about it so often on the Brown Couch that we really need not go through it in too much detail again: the tax system. Your landlord might be negatively geared, and they'll definitely be counting on discounts to capital gains tax when they sell. Neither of these things help to reduce the rent or the deposit burden over time - in fact, they actively increase them... Not only that, but they also mean that governments miss out on a whole lot of tax revenue, that they could be collecting to spend for everyone's benefit. That's kind of like landlords taking a little bit out of everybody's annual tax-return, and sticking it under their mattress.

It's bad news for would-be first home buyers, because it locks them out of that certain level of security that home-ownership is seen to provide... and they're locked out again when it comes to their residential tenancy agreements. That, of course, applies to all tenants - not just those who aspire to buy - because landlords are lawfully entitled to end tenancies in New South Wales without any reason.

Let's not forget that our current laws have taken a step backwards in this regard. Prior to 2010 a tenant could argue, in the Tribunal if it came down to it, that a termination with no reason should not be allowed if that was appropriate in the circumstances of the case. This was the result of a 1997 Supreme Court case, known as the Swain decision, where the meaning of the words "in the circumstances of the case" were considered. These words appeared at the relevant section of the old Residential Tenancies Act 1987, but they do not so appear in the current Residential Tenancies Act 2010. Their removal was deliberate and intentional: it was done at the request of landlords and real estate agents. The Real Estate Institute of NSW are only too happy to take credit for this on their website.

Tenants should not accept this. Laws can be changed. And if landlords are to continue to keep would-be home-owners out of the market - requiring them to rent for longer and at higher and higher costs - then the very least they can do is get out of the way of stronger legislative protections for those who make it worth their while.

Asbestos awareness

November is Asbestos Awareness Month.

(The Blue Lamington Drive raise funds for the Asbestos Diseases Research Institute.)

Asbestos is a fibrous mineral with remarkable physical properties – but inhaling the fibres can cause  disability and death (from asbestosis and cancer).

 

Prior to 1987, asbestos was used in a great variety of building products, and used so much that one in three Australian homes still contain it... somewhere. Fibro walls, roofs and fences are what most people think of when they think asbestos, but it's also in brick and weatherboard houses, in the eaves, around the pipes, and under the tiles and floor coverings.

 

Products containing bonded asbestos that are in sound condition are usually safe if left undisturbed. It is when a bonded asbestos product becomes degraded – particularly if it is reduced to powder, through drilling or abrasion – or if the asbestos is in a loose fibrous form, that asbestos fibres can be inhaled and presents a real hazard. 

 

So the standard advice in relation to asbestos products is

• If you don't know whether something contains asbestos, assume it does; and
• Don't cut it! Don't drill it! Don't drop it! Don't sand it! Don't saw it! Don't scrape it! Don't scrub it! Don't dismantle it! Don't tip it! Don't waterblast it! Don't demolish it! And whatever you do... Don't dump it!

As a tenant, you're not likely to be charging around doing renovations and disturbing asbestos yourself, but you should still be asbestos-aware. 

• Report to your landlord any damage to things at the premises, particularly where they contain asbestos. 
• Direct your landlord to NSW WorkCover's asbestos resources page for information on dealing with asbestos safely and legally. 
• Read the TenantsNSW factsheet for more information about your own options. 

Congratulations, NSW tenants

Thanks to a small amount of the interest earned by the government's investment of your bond money, Tenants Advice and Advocacy Services will continue to operate in New South Wales.

The loss of the Parks and Village Service and the Older Persons Tenants Service will hurt these services, as it will hurt the tenants and park residents who have directly or indirectly relied upon their expertise over the years. But the continuation of Fair Trading's Tenants Advice and Advocacy Program - and the TAASs that it funds - gives cause for a momentary cheer.

There's been no increase in the funds available to the program, so TAASs will still be delivering their services at a cost of just three cents a day to each tenant household in NSW. It's money well spent. Despite the tight budgets within which they operate, TAASs do great work. They are local, they're on the ground, and they make a difference in the communities they serve.

Not long ago we held our annual TAAPstar awards ceremony, where we acknowledge the good work that the TAASs do. These awards are hotly contested. The many nominations always inspire us, and remind us of the ever present need for the work that Tenants' Advocates do. Here are some examples:

- New England and Western TAAS assisted a tenant who had arrears in the thousands - the tenant’s mother had been diagnosed with leukaemia and hospitalised in Newcastle. The tenant’s regular trips to Newcastle had left her unable to afford the rent. She was issued with a termination notice, and the landlord had applied to the Tribunal to enforce it. The tenant agreed to vacate the property, but she couldn't afford to pay the arrears in a lump sum. With the support of an Advocate in conciliation, the tenant negotiated with the real estate agent who agreed to a repayment plan of $30 per week.

- South Western NSW TAAS heard from a number of tenants who were being charged by the local Community Housing Provider (CHP) for repairs at the end of their tenancy, including costs that they did not believe they were responsible for. The CHP was adding an 'admin fee' to the bill, which was based on a percentage of the costs claimed. An Advocate represented these tenants at the Tribunal, and the Tribunal did not allow this admin fee at any of the hearings attended. The Advocate wrote to the CHP explaining why they should not charge this fee. The CHP’s solicitor wrote to the TAAS, stating why they believed they could charge this fee. Then with assistance from the Tenants' Union, the Advocate wrote to the Registrar of Community Housing, who engaged with the CHP about whether it was valid to claim this admin fee. As a result of these enquiries, the CHP is no longer adding an admin fee to claims for costs of end-of-tenancy repairs.

- Inner West TAAS was approached by two tenants who had been living in their property for over twenty years. They had recently made a complaint to the landlord about ongoing building works in the unit block. In reply, the landlord issued a hefty rent increase and a no grounds notice of termination. With assistance from the TAAS, they applied to the Tribunal for an order that the termination notice was 'retaliatory'. The landlord withdrew the termination notice, but pressed on with the rent increase. The TAAS assisted in obtaining summonses for the tenancy agreements of every other unit in the block. Those agreements showed what the tenants had suspected – that they were being singled out for a grossly excessive rent increase. The matter went to final hearing and the Tribunal did not allow the rent increase.

The ongoing funding of Tenants Advice and Advocacy Services means that examples like these will continue every day, in every part of New South Wales, for years to come. Congratulations, tenants. It's money well spent.

Boarding house residents in the Tribunal

The first applications by residents under the Boarding Houses Act 2012 have started showing up in the Consumer, Trader and Tenancy Tribunal – and the signs are that the Act's occupancy principles are indeed a welcome measure of justice for residents.

In one case, a former resident (we'll call her 'F') sought the return of her security deposit – the proprietor had kept the lot because F had moved out early. F had initially gotten an order from the Tribunal for its return under the Residential Tenancies Act, but the proprietor got a stay on that order, on the ground that this had been a lodging agreement, so the Act did not apply.

So, with the help of a TAAS advocate, F made out an application under the Boarding Houses Act, arguing that keeping all of the deposit was a penalty – and penalties are prohibited by occupancy principle 3. F and the proprietor came to a mutually acceptable settlement.

In another case, a resident ('G') used occupancy principle 8 – which, amongst other things, limits security deposits to two weeks' occupancy fee – to get a refund of a $100 'key deposit'. This additional impost – sometimes called 'key money' – is an old lurk, long-outlawed in relation to residential tenancies. Now, in G's case, the Tribunal has determined that security for the keys is covered by the two weeks' security deposit, and requiring any additional amounts breaches the limit in OP 8. Order for the refund of the key deposit.

There's nothing extreme about these cases: just good, fair results.

Happy St Homobonus's Day

Today, 13 November, is the feast day of St Homobonus, the patron saint of small business, so let's raise our glasses to all those small business owners who are tenants.*

The Brown Couch is full of admiration for those enterprising souls who have used their creditworthiness not to buy an over-priced house, but instead to fund the development of a big idea into a business that actually produces something new and valuable.

Faced of the certainty that rent must be paid, and the widespread opinion that the way to wealth is to buy and sell houses, taking on the uncertain prospects of a small business takes courage, and we take our hats off to the tenants who are doing it.

And so we make a St Homobonus's Day wish: for trade-exposed tenant-entrepreneurs, here's hoping that the high cost of dealing in the Australian currency goes down; and for everyone, here's hoping that land values are made to shoulder more of the tax burden that currently falls on enterprise and labour.

* And we've only just recovered from celebrating St Hubertus's Day.

International students and housing survey

The Tenants' Union of NSW is conducting a survey of international students and their experiences of housing in Australia. Please spread the word – and the link to the survey!

*

Are you an international student?

Are you happy in your housing?

Do you know your rights? 

We want to hear about your experiences with housing in Australia. 
Your participation will help us better understand and provide support and advocacy for international students on housing issues.

Complete this short survey about housing and go into the draw to win a $50 gift card.


www.tenantsunion.org.au/internationalstudents

About us: The Tenants' Union of NSW is the peak non-government organisation representing the interests of tenants and other renters in New South Wales, Australia.

'Housing as a human right': ATSI Social Justice Commissioner Mick Gooda

We were honored to have the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, speak to tenant advocates at our recent network meeting.

Here's the text of his speech, 'Housing as a Human Right'.

*

It is with respect and gratitude that I acknowledge that we sit today on the lands of the Awabakal and Worimi peoples.

My people are the Gangulu from the Dawson Valley in Central Queensland. On behalf of my Elders I also pay tribute to your Elders, both past and present, for their continued struggle for their country and their culture.

Thank you for the opportunity to speak with you today. The work that you do assisting tenants is challenging. You are often dealing with a range of complex needs that span beyond tenancy law. Your advocacy is crucial for a group of people who often some of the most marginalised in our community.
Today I would like to extend the way you may view your work and some of the tools available to you. The Tenants Union is part of a long tradition of fighting for housing justice, as I understand, going all the way back to 1910. What I want to add to this robust tradition is a human rights approach.

In my mind, all of you here today are human rights workers. Your work helps individuals realise their rights everyday, in particular the right to adequate housing. I will explain further and introduce you to the Declaration on the Rights of Indigenous Peoples as a tool to guide your engagement with Aboriginal and Torres Strait Islander communities.

I will also speak briefly about the campaign for constitutional recognition for Aboriginal and Torres Strait Islander people - one of my key areas of advocacy.

But firstly, let me start by giving you an outline of this position that I currently occupy, the Aboriginal and Torres Strait Social Justice Commissioner, and a snapshot of my agenda.
2013 marks the 20th year since this position came into being as a result of the Native Title Act, the Royal Commission into Aboriginal Deaths in Custody and a HREOC Inquiry into racial hatred. Previous Social Justice Commissioners are Professor Mick Dodson, Dr Bill Jonas, Dr Tom Calma and Ms Zita Antonios.

The Social Justice Commissioner role has some statutory duties. I’m required to provide to the Australian Parliament an annual Social Justice Report and I also provide a report on Native Title. I’m also required to:

• review the impact of laws and policies with regard to Aboriginal and Torres Strait Islander peoples
• promote an Indigenous perspective on issues and 
• monitor the enjoyment and exercise of human rights of Aboriginal and Torres Strait Islander Australians.

But in a real sense, I’m handed these general directions and it’s up to me to sort out my priorities in terms of how I do what the legislation requires of me.

As Social Justice Commissioner I have only six staff, so I quickly realised that it would be unrealistic to pick even one of the myriad of challenges facing Aboriginal and Torres Strait Islander peoples - housing, health, education to name a few and expect to fix it by January 2015.

I believe that fixing these issues will require the intergenerational commitment of the whole nation.

After listening and accepting the reality of the limitations of this position compared to the enormity of the task confronting us, at the centre of my priorities is the belief that we need to firstly develop stronger and deeper relationships between Aboriginal and Torres Strait Islander peoples and the rest of the Australia.

Secondly, we need to develop stronger and deeper relationships between Aboriginal and Torres Strait Islander peoples and all levels of government.

Thirdly, we need to develop stronger and deeper relationships between ourselves as Aboriginal and Torres Strait Islander peoples

I believe human rights are one of the most powerful tools to help build good relationships.

Let me be honest, I have worked in Indigenous affairs for all of my professional life and when I was approached about this position as Commissioner I was hesitant at first because I didn’t see myself as a human rights activist. But as one of my closest colleagues pointed out, you can’t work in Indigenous affairs without being a human rights activist. Working on Indigenous issues means that you are working with human rights day in and day out.

One of the main challenges I face as Social Justice Commissioner – and the Australian Human Rights Commission faces more generally – is communicating to the Australian public what ‘human rights’ mean in practice. Human rights are not just abstract concepts that exist in documents such as treaties, conventions and declarations alone.

Human rights provide governments with a set of minimum legal standards which must apply equally to all people. A human rights framework provides parameters – universally agreed parameters – for a society to foster dignity and equality of all citizens. And equality means substantive equality – equality in outcomes, not just in writing.

Fortunately, most Australians are lucky enough to take human rights for granted. But for those rights to be realised by Aboriginal and Torres Strait Islander people, additional support and focus is often required.

So what does this mean in your daily work?

You may not be as familiar with the United Nations Declaration on the Rights of Indigenous Peoples.

The Declaration was adopted by the General Assembly of the United Nations in 2007 and is the foundation document in human rights for all Indigenous peoples.

The Declaration contains a number of key principles underpinning the rights it protects. Those key principles can be summarised as:

• First, self-determination
• Second, participation in decision-making and free, prior and informed consent
• Third, respect for and protection of culture
• Fourth, non-discrimination and equality.

The Declaration also contains specific guidance around housing. Article 21 provides that Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including housing.

Article 23 of the Declaration states that Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, Indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic

I am sure you are all familiar with the human right to adequate housing. The right to an adequate standard of living, including housing, is found in Article 25 of the Universal Declaration of Human Rights. Article 11 of the International Covenant on Economic, Social and Cultural Rights, to which Australia is a party, recognises the right to adequate housing and commits state parties to take appropriate steps to ensure the realisation of this right and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.

I think these Articles are very important because they acknowledge two areas of concern in terms of Aboriginal housing.

Firstly, the impact of discrimination in housing. I am thinking, for instance, of the work that you do assisting with people who have faced racism in terms of tenancy.

Secondly, the Declaration recongises the importance of Aboriginal and Torres Strait Islander people’s being involved in the decisions around housing, especially through Aboriginal housing organisations. Aboriginal and Torres Strait Islander housing organisations can be an important model of self determination. That is, putting our communities in control of the decisions that affect them.

The Declaration is also clear about the role of government in the progressive realisation of rights, such as the right to adequate housing. We all know the Aboriginal housing stock is often run down and inadequate in both remote, rural and urban areas. Governments have a responsibility to improve this situation.

So, once again, how can you use the Declaration in your work?

I think if you keep coming back to those four principles I just mentioned- self- determination, participation in decision-making and free, prior and informed consent, respect for and protection of culture and non-discrimination and equality you get a good idea about the what this means in practice.

I challenge people from all walks of life to apply these four principles to the work they do with Aboriginal and Torres Strait Islander people.

It might be as simple as making sure Aboriginal and Torres Strait Islander people are involved in your decision making and actively consulted about your services. It might be seriously considering some of the cultural barriers that make accessing your service challenging for Aboriginal and Torres Strait Islander people and then developing a plan to address this. It might be thinking of a way you can celebrate the vibrancy and resilience of Aboriginal and Torres Strait Islander culture in your community.

These are just ideas, ultimately, what I am saying is that putting the Declaration into practice is not a program of work, nor is it a tokenistic checklist. It is an approach. It requires attitudinal shift, self reflection and the willingness to actively listen and engage with Aboriginal and Torres Strait Islander peoples.

At the big picture level, another way to advocate for Aboriginal and Torres Strait Islander is through the campaign for recognition of Aboriginal and Torres Strait Islander people in the Australia Constitution.

A referendum to include Aboriginal and Torres Strait Islander peoples in the Constitution is an opportunity to redefine our national identity based on recognition, respect and inclusion and to change the role of government in Aboriginal and Torres Strait Islander peoples’ lives.

A successful referendum will encourage reconciliation among all Australians and can enable practical improvements to the lives of Aboriginal and Torres Strait Islander peoples. Reforming the Constitution will also provide an opportunity for all Australians to acknowledge and be proud of our histories and cultures that existed – and continue to exist – before the Constitution was written.

In February we witnessed a historic step toward a referendum when the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Act of Recognition) was passed unanimously through Federal Parliament. The Act of Recognition provides acknowledgement of Aboriginal and Torres Strait Islander peoples’ unique place as Australia’s first peoples. It also prescribes that a review will be commenced considering proposals for constitutional change, their likely levels of support in the community and likelihood of success. This report must be completed by 27 September 2014 and tabled in parliament within 15 sitting days.

The Act of Recognition is a welcome development but it is only a first step. I urge the Government to build on the work of the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples (Expert Panel). The recommendations acknowledge the need to couple recognition of Aboriginal and Torres Strait Islander peoples as Australia’s first peoples with reforms to address the provisions of the Constitution which permit, enable or anticipate racial discrimination.

The success of constitutional reform lies in the hand of every day Australians and the ability to organisations like yours to join this campaign. A public education campaign is being run by Reconciliation Australia.

At the moment, before we know what the referendum question will be, the aim is to try and build popular support and momentum across the community.

If anyone here is looking for resources to do your own bit of community education and campaigning, ANTaR has put together some very useful material on their website and I highly recommend you take a look. The You Me Unity website was established by the Expert Panel specifically as a tool for engaging the public on constitutional recognition. It continues on as a space for this public conversation and also hosts useful educational material. Recognise also have a very informative and engaging website.

There is a long way to go on constitutional reform. But I believe in the innate decency of the Australian people to walk with us on this next important stage of our national journey towards reconciliation.

I want to finish by saying your work helping people secure their housing helps meet some of our most fundamental human rights. I thank you for your work and your time today.

Where's the value in the Australian housing system?

The TU sends N.C. away to the Australian National Housing Conference, figuring that he'll be inspired by Australia's pre-eminent housing policy thinkers, and he comes back more cynical than when he started out! Curse you, Australian housing system!

 

Well, it has been a tough year for housing policy. Scarcely a word on housing from the two major parties at the election, and no dedicated Minister for Housing in the new Federal Government. A series of interest rate cuts that might have helped finance productive investment have instead stimulated speculators to just throw money at houses (Sydney prices are up by more than 11 per cent for the year, with half of all finance approvals going to landlords). Meanwhile, Prime Minister and de facto Housing Minister Tony Abbott observes:

if there’s a strong market for flats and for houses, that’s a good thing, not a bad thing. Don’t forget... that if housing prices go up, sure that makes it harder to get into the market, but it also means that everyone who is in the market has a more valuable asset.

Let's get back to basics. This 'more valuable asset': where's the added value? It's the same house, producing the same amount of housing services – shelter – as it did before. 

What are most people going to do with their more valuable asset? Live in it. Some might sell it, but then only go and buy another more valuable asset to live in. Some of those who have more valuable assets than they can live in might sell and spend the proceeds on consumption. Some might double-down their bet and buy another more expensive valuable asset. And those who own a more valuable asset suitable for development – and thereby actually produce more housing – might hang onto their valuable asset and see where these increases in value take them without actually doing anything productive.  

'More value' would be the building of a better mouse trap, or a bionic eye, or a new dwelling, or producing a new or better service – something new or better that adds to the utility and comfort of human beings. 

What we've got now is little more than the swapping about of title certificates, lubricated by debt; meanwhile, there's a bit less of the productive investment that might have produced things capable of paying down our debts, and rather more inequality of access to the product of housing assets, shelter.

If inspiration was needed, perhaps we should have sent N.C. to the Tenants Advice and Advocacy Program meeting after all. 

As well as the usual practical stuff (seminars on the rules of evidence, file management best practice, the Aboriginal Housing Office's 'Build and Grow' Strategy, etc), TAAS advocates heard a cracking speech given by Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, on housing as a human right. TAAS advocates are human rights workers, said Commissioner Gooda, and he urged them to keep using the law, education and community engagement to advance housing justice. 

We also farewelled sadly the Older Persons Tenancy Service and the Park and Village Service, which were cut by NSW Fair Trading in the present funding round of the Tenants Advice and Advocacy Program. There was, however, some consolation in reflecting on the contributions that each of these services have made to justice for individual tenants, law reform for tenants generally, and the immense store of skill and knowledge in the TAAS network.

TAASs solve housing problems and keep people housed – and, by extension, help their participation in work and education, and in family and community life. They provide a truly valuable service.

A new way home? The National Housing Conference 2013

Last week, while many of my colleagues in the Tenants Advice and Advocacy Program were gathering for their annual Regional Network Meeting in Newcastle, I hopped on a plane to check out the 8th National Housing Conference in Adelaide.

The National Housing Conference is convened by the Australian Housing and Urban Research Institute and is generally considered the prominent meeting of minds on all things housing in Australia. Representatives from numerous Australian governments, universities and other academic institutions, finance corporations, community organisations and housing providers gather for several days to hear of and discuss the latest developments in housing related research and policy.

These are my thoughts based on the sessions I attended and, to be fair, the prejudices of my position. I'm interested to hear from others who might have a different take on the conference. I'm also interested to hear from others who were not at the conference - I'm sure there are countless doers and thinkers within the housing realm who were not in attendance.

***

I approached the conference with equal measures of skepticism and pessimism, knowing that there are a great number of challenges faced by housing policy workers across Australia, and probably always will be. Of course, these challenges pale into insignificance when compared to the standard daily experience of low income 'consumers of housing' - those for whom housing policies manifestly fail. But it is hard to shake the sense that if only 'someone' could talk this or that department into acting on the right advice, even just once, then we could take a step towards a better, fairer housing system...

My interest is in how current housing related research and thinking might be of benefit to tenants, and particularly to tenants in the private rental market. That is, after all, where the bulk of people on low incomes turn for their housing. For that matter, it's increasingly where many people on moderate or high incomes turn for theirs, too. But the more I looked for signs of recognition that the driving force behind our housing crisis is a series of assumptions - that we must deliver financial independence to the relatively well-off by offering incentives to acquire assets that perpetually increase in value - the harder it became to imagine holistic housing policies ever seeing the light of day in this country. All I got were the usual platitudes - how can we arrest the decline of home ownership in Australia? If we can't do this, how can we build more social housing? How can we get 'markets' to take care of the lot, so that we don't have to dip into consolidated revenues? Because it's pretty clear that our governments do not want to pay for housing. (A recurring theme of the conference - occasionally a good suggestion or question came from the floor, where it was met with the usual response: "the political will is not there...")

Perhaps I'm being too hard on the conference... perhaps I should just accept that housing is expensive, and will remain so while ever so much of our economic growth is reliant on its value going up and up and up. The only landlords represented at this conference came from the not-for-profit housing sector; and these 'social' landlords seem to believe they have just as much of an interest in rising asset values as any other speculative investor. The more they're worth on paper, the more cheaply they can buy their next batch of money, the more they can invest in 'affordable housing'.

Maybe that's okay if it means more properties can be rented out to more people down the track at affordable rates, if only we can get our policy settings right in the meantime? Or maybe that's just the kind of paradox that's got housing policy in such a tangle from the start. If that's what we're prepared to accept, then we end up in a very difficult place indeed: the only way that we can deliver affordable housing is to rely on housing becoming more expensive.

But it's not surprising that amateur 'mum and dad' investors were nowhere to be seen. Perhaps it seems naive to even mention this - after all, they're not exactly an organised cohort and their 'consumption' of housing is not really consumption at all - they merely park money there, hoping that it will multiply and expand. Any interest they might have in housing policy is likely to be an afterthought - something to worry about if the market doesn't deliver the kinds of returns they might have been hoping for. Amateur landlords are unlikely to bring much of use to a conference about housing.

The irony is that we need them to. If we're looking for market based solutions to a housing affordability crisis then we need to take a closer look at what the markets are doing. It's no good to simply discuss what we'd like our markets to look like, if only we could... I don't know... if only we could talk this or that department into acting on the right advice. We need to bring these players to the table, to engage with them, to hear from them and learn from them as much as to try to convince them that the part they play in our housing system carries just a hint of social responsibility.

... because right now our markets are not delivering affordable housing. They are delivering wealth to those who are able to buy in. And those who take this option on that basis - and let's face it, that's pretty much every property owner there ever is, was and will be - are making it ever more difficult for others to even consider the option a valid one. This applies to social housing landlords who want to use their growing wealth for social good, as much as it applies to slumlords, amateurs and everyone in between.

The good news is that markets are delivering expensive homes to tenants just as much as they are to owner occupiers. It's just that they do so on very different terms. If we are prepared to accept that this is simply the way of all things, then so be it. But if that's how it is then let's put some thought into what it means for the interests of tenants, and what we might come to expect...

... and if we're not prepared to accept that, how do we build the case for change, given neither governments nor markets are ready to deliver?

Strata reform: early signs

Some early signs of the NSW State Government's new strata laws are reported today in the SMH, including new model by-laws that allow pets, and 'encouragement for tenants' participation in apartment block affairs.'

Without any further detail, it is difficult to say anything definite about these prospective reforms, except that they look to be heading mostly in the right direction.

In particular, a more liberal approach to pets would be welcomed by many people living in strata. We think a model by-law that allows pet-ownership is a good start, but more is needed to really secure people's freedom of choice in the matter. Strata legislation should prohibit and invalidate by-laws that restrict the keeping of pets without regard to the circumstances of each case.

Also, our residential tenancy laws should be reformed too, to prevent landlords from imposing their own unreasonable restrictions on pet-ownership.

As for tenant participation in strata governance, we think this would be done most appropriately by distinguishing by-laws about the conduct of residents from the other affairs of owners corporations, and giving tenants a say – and a vote – on them. 'Conduct by-laws' would include by-laws relating to keeping pets, smoking, playing music and making noise, and the use of common areas and facilities. Giving all strata residents a say in these matters is not only fair; it may also mean more effective governance.
  

Public housing 'moderate income' rent rates clarified... with maths!

Brown Couch reader and mathematician, 'H', issues a quiet 'ahem' following our recent discussion of Housing NSW's 'moderate income' rent rates and their punishing marginal effect. (Just in time for today, the feast day of St Hubertus of Liege, patron saint of mathematics).

(St Hubertus ponders public housing rent policies) 

We said that the moderate income rates (25-30 per cent, on a sliding scale, applied to all income) could be expressed as a marginal rent rate of 50 per cent; that is, 50 cents in each additional dollar earned in the moderate income range goes to Housing NSW in additional rent. Says H:

It's true to say that the average marginal rent rate over the moderate income range is 50 per cent. But there's not a constant marginal rent rate for all the range; the marginal rate varies by up to five per cent either side of the average. The marginal rate at the bottom of the 'moderate income' range is 45 per cent; at the top, it's 55 per cent.

H presents his proof in four pages of graphs and algebra, including a bit of differential calculus. He explains:

Below the moderate income range, the rent you pay increases as a function of the amount of your income increasing, and nothing more; on a graph, this a straightforward straightline function with a constant gradient (in other words, a constant marginal rate of increase). But in the moderate income range, the rent you pay increases as a function of both the amount of income increasing, and the rent rate increasing. That's two orders of increase; so the function is a quadratic, with no constant gradient.

Quite so! It is proven: the marginal rent rate in the moderate income range varies between 45 per cent and 55 percent, the average marginal rent rate being 50 per cent.

Adds H:

It might be nice if public housing rent rates could be presented as constant marginal rates, like the ATO's income tax rates. It would be nice because it would be clearer for everyone; but on the other hand, a system of marginal rates starting at 25 per cent, jumping up to 50 per cent, then down to 30 per cent is something that no policy maker in their right mind would purposely come up with.

Thank you, H, and happy St Hubertus's Day, one and all.