New guideline catches CLCs' law reform work

The NSW State Government has indicated that it will implement new guidelines for the State's 40 community legal centres – of which the Tenants' Union is one. The main thrust of the guidelines is about getting legal services to disadvantaged and vulnerable people – which is a big part of what we're all about.

But one of the proposed guidelines is a real worry. It says:

Funding [to CLCs] may not be used for lobbying activities, public campaigning and providing legal advice to activists and lobby groups.

It's a worry becauses CLCs engage in activities that may be said to answer each of these descriptions – and always for the benefit of our clients and the wider public interest. But the guildeline would restrict against it.

For example, the Tenants' Union engages in discussions with members of the State Government, other Members of State Parliament, government officers and industry stakeholders on matters affecting tenants, marginal renters and residents of residential parks. We do so with the purpose of reforming tenancy law and policy for the benefit of our clients and constituents, and we understand from feedback from senior members and officers of the State Government that this assists in the development of good law, policy and practice. But isn't this 'lobbying'?

We also take our proposals for policy and law reform into public forums. A recent example is our work drawing public attention to the need for boarding house sector reform – reform that the O'Farrell Government has enacted and is now in the process of implementing. But isn't this 'public campaigning'?

Finally, in the course of responding to requests from tenants for advice, we from time to time respond to requests from tenants who identify themselves as 'activists'. In all events our advice is objective and directed to resolving the tenant's present problems effectively, efficiently and within the law. Sometimes it is to discourage unlawful activities, or inefficient or ineffective legal proceedings. But isn't this still 'providing legal advice to activists'?

Each of these types of activities is a valuable service to our clients and constituents, to the State Government and to the wider community. But the guideline proscribing 'lobbying activities, public campaigning and providing legal advice to activists' will cause us to reconsider undertaking these activities.

This would cause very substantial practical problems for us: for example, at what point does the making of a submission on law reform become lobbying or campaign, and how do we weed out 'activists' from all the tenants who seek our legal advice? It would also cause a substantial detriment to our clients and constitutents, by reducing the representation of their interests in policy and law reform processes, and to the State Government and the community generally.

If you're worried too, please let the Premier, the Attorney-General, and your local MP know about it.

Window safety: more action needed

A two-year old boy has fallen 13 metres from a flat in Eastwood, in suburban Sydney. He's now in a stable condition with possible internal injuries, in the intensive care unit at Westmead Children's Hospital. We're crossing our fingers for him and thinking of his family.

As the linked article reports, changes to the Building Code of Australia mean that from May this year new buildings must have window-limiting devices installed on windows more than two metres above a surface: that is, locks that can lock open the window at not more than 12.5 centimetres, or bars, or reinforced screens (not flyscreens).

These changes are good, as far as they go – and they go nowhere to addressing window hazards in existing buildings.

Back in 2005, the NSW State Parliament addressed a different threat to life and limb when it passed legislation requiring smoke alarms to be installed in all residences – new and old.  This important safety measure has been implemented throughout the State without any serious hassles.

For the sake of the 40 or so children who fall from residential buildings each year, we should take the same approach to window safety. 

UPDATE 27/3/2013. Jeremy, the boy who fell, is reported to be doing remarkably well. We wish him continued good luck!

Community Housing Registrar's 'Annual Statement of Performance'

The NSW Registrar of Community Housing has recently published its 'Annual Statement of Performance 2012' (ASOP). This document provides a useful account of the state of Community Housing in New South Wales, through analysis of providers' recent engagement and compliance with the Regulatory Code for Community Housing Providers.

We welcome this publication, and look forward to trawling its many pages for information. The ASOP also gives a clear insight into the regulatory approach taken by the Registrar. It will be a useful reference for anyone wanting to raise a concern about the conduct of a Community Housing Provider that is operating within NSW.

But the ASOP highlights a failing within the regulatory system: the regulator finds itself in ongoing dialogue with Community Housing Providers, but is not set up to engage directly with tenants. Tenants may raise issues through a complaints mechanism, and these may or may not have some bearing on the work that the regulator will undertake from there. But on the whole, tenant voices are not a strong feature of community housing as we see it through the prism of regulation.

This is a shame, because the true value of our community housing system - and one of the best reasons we can think of for keeping an eye on its landlords - is in its ability to make a difference to tenants.

Download the ASOP in PDF, here.

Multi-generational housing survey

Do you live in rental housing in a household of multiple generations of related adults?

If so, the City Futures Research Centre at the University of NSW wants to hear from you.

City Futures is researching multi-generational households in Australian cities, and they've developed an online survey for you to fill out.

Participants have the chance to win a shopping voucher – but more importantly, everyone who participates will be contributing to what we know about an important aspect of how we are housed.

At the 2011 Census, there were about 58 000 multi-generational households living in private rental housing in Sydney (that's about double the number recorded 30 years previously).

A new housing discourse for NSW Labor?

Last week NSW Labor leader John Robertson convened a Housing Summit, to hear from representatives of business, academia, local government, developers, unions and the community sector about problems in housing supply and affordability (the Tenants' Union was there, and gave a presentation on what we call the real housing supply problem: the lack of affordable rental housing for lower income households).

One of the questions of the summit was: do we need a new housing discourse?

According to many of the summit participants, the main theme of the new discourse has got to be 'density'. They say denser development – particularly in already built-up areas – will produce more housing, and make housing more affordable.

At the Brown Couch we're ambivalent about density. It's true that there are lots of nice flats and terrace houses out there, and that there's some very nice parts of town where flats and terrace houses predominate. But we've also taken too many phone calls from tenants of flats – some of them newly built – where they can hear their neighbour's every movement, and presumably can be heard by their neighbours too. It seems to us that this may not be so much of a problem for higher-income residents who have the cash and the cachet to access all the public spaces of the city and their increasingly commercialised entertainments – but it looms large for those who must look for their recreation at home.

But density is good for affordability – or is it? At first glance, getting more of something (housing) out of a given resource (land) seems consistent with getting it cheaper... but it also means you get less in each unit of housing, and that's a bit of a cheat on affordability. And let's face it, density has been a 'new' discourse for at least 20 years, and over that period our affordability problems have gotten worse. If greater density is to be achieved by restricting development on greenfield sites, and allowing some sites that already have single units of housing to be redeveloped with a multiple of units, you can see how that could push up the price of established land and housing.

And that's the thing: the decisions that push up the price of land and housing. At the risk of never again being invited to a Labor summit, consider the current inquiry of the ICAC into the allegedly corrupt decisions of a former Minister to allow certain land to be used for coal mining – land owned by another Member of Parliament, who stood to reap a windfall of many millions of dollars from the increase in its value.

Naturally, attention has been focused on the allegation of corruption in the decision about what the land could be used for. But really, even if the decision was squeaky clean, the delivery of a windfall to an individual property owner – who has done nothing to earn the increase in value – stinks.

And these windfalls are delivered not just by the decisions of governments, but by 'decisions' of the community. Where a community grows and develops and changes the way in which it arranges its various activities, such that some locations become more sought after and their values increases, those increases come from the growth and development of the community, not the work, effort or skill of the property owner.

Increases in established house prices are unearned wealth. But so many property owners seem to think that they are justified in keeping – or that they have even earned – all the gains. The most that can be said for them is that they were smart to choose to be born at an earlier point in time when they could better afford to buy the land in question.

Here's where we really need a new discourse: a discourse against individual accumulation of unearned wealth from housing; a discourse for returning a larger portion of unearned wealth, via tax, to the community.

Vale Col James

We're very sad to hear that the legendary housing activist and architect Col James has died.

When matters of housing justice and injustice broke onto the public agenda in the 1970s, Col was in the thick of it, as an early member of the Tenants' Union of NSW and Shelter NSW, an adviser to the Builders Labourers' Federation on its green bans, a founder of housing co-operatives and a friend to squatters. He was closely associated with the Block and the Aboriginal Housing Company for all of that organisation's life.

Col was a great teacher, both at the Faculty of Architecture at Sydney University and out in the community organisations with which he worked. A happy fighter, Col's motto was 'make housing a verb.'

Vale Col James.

Housing NSW amnesty: some points clarified

When Housing NSW announced its amnesty on unauthorised additional occupants, the TU wrote to Housing NSW and sought clarification on a few points. Housing NSW has now responded. Here's what we've been able to clarify.

1. If you're already being investigated.

If Housing NSW is investigating you because it suspects you have an unauthorised additional occupant, you can still be protected by the amnesty. You must disclose your occupants to Housing NSW within the amnesty period; when you do, the investigation will be halted. Make sure you provide all the documents necessary for Housing NSW to work out your rental rebate properly – if you don't, 14 days later the investigation will start up again and you won't be covered by the amnesty.

2. If Housing NSW is already proceeding against you.

If Housing NSW has already done its investigation, made a decision and informed you of the decision, you're too late for the amnesty. Expect Housing NSW to continue to proceed against you (and get advice from a TAAS).

3. Does the amnesty protect against court proceedings?

When Housing NSW cancels a tenant's rental rebate because of an unauthorised additional occupant, it usually treats it as a case of rent arrears, and proceeds against the tenant in the Tribunal, per the Residential Tenancies Act. However, there is another possibility: it can also treat it as a debt, and proceed against the tenant in court, per the Housing Act (at section 57). The amnesty fact sheet and webpage mention only the first possibility, not the second.

Housing NSW confirms that the amnesty protects against both. So, if you're covered by the amnesty, there'll be no Housing Act debt proceedings either.

4. Does the amnesty protect additional occupants?

Under the Housing Act (section 72A), Housing NSW can take debt recovery proceedings against additional occupants as well as tenants.

Housing NSW confirms that where a tenant is covered by the amnesty, it will not take proceedings against the additional occupant either. In Housing NSW's words: 'the Housing NSW Amnesty 2013 for unauthorised additional occupants is all encompassing. HNSW will not pursue or seek to recover debts and/or any incurred interest arising from any related debt pursuant to s57 against the tenant or against any unauthorised occupant per s72A.'

For your info, the whole response is reproduced below.
 

*

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Question:                                                                                                                                             

We are seeking clarification as to the application of the amnesty in situations where Housing NSW already has some information, from other than the tenant, as to an unauthorised additional occupant and has yet to make a decision on the information (that is, cancellation or variation of the rental rebate)

 

Response:                                                                                                                                          

If the Tenant Fraud Unit is already investigating a tenant for an unauthorised additional occupant and the tenant declares the unauthorised occupant during the amnesty, the investigation will halt and the tenant will have 14 days to supply all necessary supporting documentation. If they fail to do this, the investigation will continue.

The Tenant Fraud Unit will conduct investigations after a 3rd party allegation.

The Housing Contact Centre will refer matters to the Tenant Fraud Unit where:

•      The tenant requests an interview.

•      The tenant does not respond within 14 days to a Natural Justice letter. Or;

•      The tenant denies the allegation

They will conduct an initial investigation and refer the matter to the Client Service Team where required.

If the unauthorised additional occupant had not been proven and substantiated before the amnesty period commenced they are protected by the amnesty as long as they come forward and make a declaration during the amnesty period.

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Question:                                                                                                                                                  

Where Housing NSW has made a decision (and may have commenced proceedings arising from the decision).  [will they still be protected under the conditions of the amnesty]

                                                                                                           

Response:

If the Tenant Fraud Unit and the Local Team have completed its investigation, made a decision and have communicated its findings to the tenant the amnesty does not apply and the tenant cannot receive protection from prosecution under the amnesty.

This is no longer an investigation as proceedings have commenced and the tenant is already informed of these proceedings.

 

Question:                                                                                                                           

Housing NSW may seek to recover a retrospectively cancelled or varied rental rebate as a debt, with interest (s 57(4). This course of action is distinct from proceedings in the Tribunal for rent arrears; it is enabled by the Housing Act 2001 (not the Residential Tenancies Act 2010); the proceedings go to court (not the Tribunal); and interest is payable.

We are concerned that the amnesty, which assures that a tenant will not have to ‘pay back rent’, may not preclude proceedings against a tenant under s 57.

Housing NSW may seek to recover a debt arising retrospectively cancelled or varied rent rebate not only from the tenant, but from the unauthorised additional occupants (s72A). We are concerned that the amnesty which is stated to apply to ‘tenants of public housing or Aboriginal Housing Office properties’, may not preclude s57 proceedings against occupants per s72A.

Response:                                                                                                                                   

The Housing NSW Amnesty 2013 for unauthorised additional occupants is all encompassing. HNSW will not pursue or seek to recover debts and/or any incurred interest arising from any related debt pursuant to s57 against the tenant or against any unauthorised occupant per s72A.

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Source: Amnesty 2013 Fact Sheet - January 2013

If by not declaring an additional occupant the correct rent has not been paid, or there is no longer an entitlement to a rental subsidy benefit on the basis of the additional occupant’s income, under the terms of the amnesty a tenant will not be prosecuted and won’t have to back rent.

The tenant will be advised of their new rent amount and, under the terms of the amnesty, will only pay the new rental amount from the date the additional occupant/s is declared.

If an assessment finds that an additional occupant can’t continue to live in the property, that person will be asked to leave.

If you declare an unauthorised occupant during the amnesty

Housing NSW will:

• not take action to end a tenancy unless there are other reasons to do so, such as rental arrears or anti-social behaviour

• not start proceedings for criminal prosecution or civil action

• not refuse to offer a lease extension at the end of the fixed term lease unless there are other reasons not to, such as no longer meeting the eligibility criteria for public housing assistance.

Only declarations for unauthorised occupants are protected by this amnesty. No other fraudulent activity is covered.

                                                                                                                                                                                                                 

Question:

The 2008 amnesty had an express legislative basis (schedule 1 of Housing amendment (Tenant fraud) Act 2008; thereafter schedule 3 of the Housing Act 2001). We are unable to find a similar legislative basis for the present amnesty: schedule 3 of the Housing Act 2012 refers specifically to the 2008 amnesty. We submit that the Housing NSW Act 2011 should be amended to expressly allow occasional amnesties, in terms set out in a regulation or other instrument issues by the minister or Chief Executive of Housing NSW.

Response:                                                                                                                                        

The amnesty is endorsed by the Minister and therefore the Executive arm of the Government represents a valid open offer by the Government on a particular issue relating to occupancy. There is no certainty that any Regulation however framed will not be subject to interpretative issues or doubts. There is no reason for the Government to renege on any part of the amnesty arrangement as this jeopardises trust in Government, revenue and future amnesties.

The Minister released a Media Release on Sunday 20 Jan 2013. In this she stated “The NSW Government is giving tenants two months to declare all additional occupants. Tenants who do the right thing and declare additional occupants will have their rent adjusted from the date of declaration, and will not be charged back rent”.

In addition all documentation has been endorsed by the Chief Executive Mike Allen.

During this period, tenants will receive protection from prosecution, and any requirements to repay a debt resulting from failure to declare information. 

Housing NSW will apply its usual policy and processes when determining if the additional occupants declared through the amnesty will be authorised to continue living in the property.

Mortgagees, please take note

An interesting snippet in the news last week told us that investors tend to default on a home-loan about 1.5 times more than owner/occupiers do. We can't say we're surprised by this - we often hear about tenants having to fend off the bank when the landlord goes belly-up.

In fact, it occurs so frequently that we've written a factsheet about it - you can find it here. We've also discussed it previously on the Brown Couch.

As it happens, it's a very good idea to familiarise yourself with the process of what we call a 'mortgagee eviction', because the banks (and their lawyers) don't always deliver the right message. All too often we're seeing copies of letters that look like this:

It is a piece of correspondence that is apparently designed to replicate an official notice. It says:

--

NOTICE TO VACATE

1. You are in occupation of the Property.
2. The Mortgagee has not consented to your occupation of the Property.
3. The Mortgagee is now entitled to take possession of and sell the Property.
4. The Mortgagee requests that you vacate the Property by xx/xx/xxxx.
5. If you do not comply with this notice, the Mortgagee will immediately exercise its rights under the mortgage, including its right to take immediate possession of the Property and to sell the Property.
6. The Mortgagee makes no admission that you have any interest in or right to occupy the Property.
7. The Mortgagee reserves its rights, irrespective of your compliance with this notice, to evict you from the Property immediately.

--

But the grounds upon which a demand of this kind - for a tenant to surrender a property to the mortgagee - are spurious. In fact, acting in compliance with a notice like this one could land you in a spot of bother. If the landlord comes good with their mortgage payments before the mortgagee obtains an actual order in the Supreme Court - entitling them to possession, enforceable by a Sheriff - you could be pinged for abandonment of your tenancy.

These faux 'notices' are nothing new, but the Tenants' Advice & Advocacy Services are currently observing a worrying increase in their use. If you find one in your mailbox, please give your local TAAS a call for a quick chat before deciding what to do. Don't be bluffed.

Our Principle Solicitor, Mr Grant Arbuthnot, has noted this increase with dismay. He has drafted, and asked us to make public, the following notice to mortgagees:

Housing NSW's amnesty: a leap of faith?

Since the announcement of Housing NSW's amnesty for unauthorised additional occupants, we've received a few questions about it from tenants, advocates and community workers.

These are people who have had unhappy prior encounters with Housing NSW and its bruising way of dealing with people accused of 'rental rebate fraud'. So their biggest question is: what's the legal basis of the amnesty? What's to stop Housing NSW from turning around and using the information I give them against me?

(Indy contemplates the amnesty)

The answer is: the amnesty does not have a clear legal basis. And there's nothing in the law we can point to and say with certainty prevents Housing NSW from proceeding against you despite the amnesty.

But, we hasten to add: we're not discouraging you from using the amnesty. On the contrary: we urge you to consider it. Generally speaking, we reckon it's much, much more likely that you'll get busted by not disclosing your unauthorised additional occupant and getting found out by Housing NSW some other way, than by disclosing and having Housing NSW renege on the amnesty.

Some background. Back in 2008, Housing NSW ran a similar amnesty on 'rental rebate fraud'. The 2008 amnesty, however, had a clear basis in law: it was expressly mentioned in a schedule to the delightfully-named Housing Amendment (Tenant Fraud) Act 2008, which provided for start and finish dates for the amnesty and stated that Housing NSW could not take certain proceedings against tenants who disclosed under its terms.

By contrast, the present amnesty has no legislative basis. There's been no new legislative provisions made specifically for the present amnesty, and the provisions for the 2008 amnesty cannot be used again now (because of the way the start and finish dates are provided for). And there's nothing in the Housing Act 2001 that allows Housing NSW to declare amnesties from time to time.

We think there should be, and have asked the NSW State Government to consider introducing legislation to provide for amnesties from time to time, on terms set out in a Regulation or some other instrument published by the relevant Minister or Chief Executive of Housing NSW.

For the present amnesty, though, you will have to take Housing NSW at its word, as represented in its amnesty fact sheet and webpage, and the public statements of the Minister for Family and Community Services and the Chief Executive of Housing NSW.

 

We urge you to consider it. If you have any queries or concerns, please speak to your local TAAS. 

Tenants advocates: they're not just lawyers...

In a recent post we highlighted the work of all the lawyers and law students employed in the State-wide network of Tenants Advice and Advocacy Services. As N.C. observed, the TAASs employ many non-lawyers, too.

And how! A quick ask around the network reveals that your tenants advocates come from fields as diverse as community work, social work, science, IT, adult education, early childhood education, horticulture, acupuncture and optical dispensing, as well as the law. There's also several former and current small business owners, a couple of former union organisers, two journalists, two pilots, a tour guide, a travel writer, a publisher, a classical musician, a cabinet maker and a locksmith. A number of advocates have worked on the other side of the landlord-tenant relationship in social housing; another trained as a real estate agent before deciding to use her powers for good.

What TAAS workers have in common is an expertise in residential tenancy law and practice that is unmatched by most legal practitioners.  Plus that diversity of knowledge and experience means they can often come up with some lateral thinking to get around problems too.

TAASs give free, confidential information and advice to tenants only (you've paid for it – TAASs are funded from a small portion of the interest earned on tenants' monies lodged as bonds and in agents' accounts), so if you've a question or problem about rental housing, please give your local service a ring.
  

Is my share house a boarding house?

With the Boarding Houses Act 2012 partly commenced, share house residents might be wondering: is our share house a boarding house under the Act?

The answer is: maybe. It depends on how many people live there, the legal relations between them and... the furniture at the premises. (Yes, the furniture. All will be explained below.)

The Boarding Houses Act applies to 'registrable boarding houses', as defined by the Act. Registrable boarding houses come in two types: 'general boarding houses', and 'assisted boarding houses'.

For share house purposes, you don't need to be concerned with assisted boarding houses. If your share house going to be covered at all, it will be as a general boarding house.

To be a general boarding house, your share house has to tick EACH of the following four boxes.

First, it must fit the definition of 'boarding premises' (at section 4 of the Boarding Houses Act). Boiled down, this means premises that are the principle place of residence for one or more lodgers.

So, if at least one person in the house is a lodger (not an owner; not a tenant; not a child, partner, visitor or guest staying free of charge), and it's their principal place of residence, the premises are boarding premises.

(This first part of the test is pretty easily satisfied: lots of share houses would tick this box. It's the second and third parts that narrow things down.)

Second, the premises must provide beds for five or more residents, not counting residents who are proprietors (or managers, or relatives of proprietors or managers).

Leased premises, where the tenant lets in others as residents, can be a boarding house – in which case the tenant is the proprietor. As proprietor, this tenant (or tenants plural, if there's more than one of them on the lease) doesn't count towards the five-residents threshold.

Also, note that it's beds for five or more residents, so if a house that's set up to sleep five persons has a vacancy, it can still fit the definition – you don't actually need five warm bodies in the house at any given time, and a general boarding house doesn't cease to be one just because there's a vacancy.

(Many share houses will flunk this part of the test: most are not set up for five residents, particularly when you don't count anyone who's on the lease with the owner.)

Third, as indicated above, five or more residents must be provided with beds.

In the Boarding Houses Act's definition of a general boarding house, the premises provide the beds. If you've brought your own bed to the premises, it appears you don't count towards the five-residents threshold.

(Lots of share houses will flunk this part of the test, too. On the other hand, particularly in the overcrowded, exploitative part of the market, it is common for premises to be set up with bunks, to facilitate the overcrowding – so these places may be registrable boarding houses.)

Fourth, five or more residents provided with beds must pay for their accommodation.

The Boarding Houses Act says the payment must be a 'fee or reward', so it doesn't necessarily mean money – so it's possible (but unusual) for the deal to be that you pay your way by providing services to the proprietor. But if you're staying there free, you don't count towards the five-residents threshold.

(Most residents of share houses pay their way – but sometimes there are people staying for free, so it's worth keeping in mind that they don't count towards the threshold.)  
 
Here's the four-part test summarised:

1. the premises are the principle place of residence for one or more lodgers; and
2. the premises are set up for five or more residents, not counting proprietors, such as anyone on the lease with the owner; and
3. the premises provide beds for five or more residents (again, not counting proprietors); and
4. five or more residents provided with beds (again, not counting proprietors) pay to reside at the premises.

If your share house passes the test, it's a registrable boarding house, and the proprietor will need to register it with NSW Fair Trading. Also, if you don't have residential tenancy agreements under the Residential Tenancies Act 2010, you'll have occupancy agreements and be covered by the occupancy principles set out in the Boarding Houses Act when the relevant parts commence a little later this year (date to be announced).

If your share house is not a registrable boarding house, you won't be covered by the Boarding Houses Act – so no occupancy agreements or occupancy principles for you! Also, you may not be covered by the Residential Tenancies Act either – so no residential tenancy agreement, and probably no access to the Consumer, Trader and Tenancy Tribunal for you! – unless you and your housemates get your affairs in order.

As always: if you've any questions, please contact your local TAAS.