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.