Holiday spoilers - who to call for tenancy advice during the break?

That's it from us for another year - we'll be back in 2016 with more on the review of the Residential Tenancies Act and the inquiry into the management of public housing repairs and maintenance contracts. We'll also be keeping an eye on developments concerning the social housing portfolio over on our other blog the Clearing House.

The Tenants Advice and Advocacy Services will also be taking a break, with the majority of services closing between December 21st 2015 and January 4th 2016. Some services will be closed for longer, pushing out until as late as January 11th in some areas.

Battling the dark side on your own - how does Finn make it look so easy?

But because the forces of darkness don't always take a break, we'll be running our annual Christmas Hotline until Wednesday January 6th. An experienced advocate will be available each weekday, excluding public holidays, between 10:00am & 1:00pm and 2:00pm & 5:00pm.

If you need advice about a tenancy dispute during this time, give us a call.

Tenants' Union of NSW Xmas Hotline

 phone (02) 8117 3750 

or 

1800 251 101

No holiday cheer for social housing

Hear ye, hear ye! By proclamation, and just in time for the holiday season, the NSW government's antisocial behaviour laws have commenced.

You can read more about the substance of the changes in our previous briefings, and see them as written in the Residential Tenancies Act 2010.

If you are approached by your social housing provider about anti-social behaviour, don't hesitate to get in touch with your local Tenants' Advice and Advocacy Service. This is a new process for your landlord, and there is a lot to keep an eye on.

There are no more hearings set down for 2015, but these laws can potentially affect all undecided social housing cases that are in the Tribunal at the moment as well as any new matters that may arise in the new year. FACS- Housing NSW has not yet published their policies concerning the use of these new laws for public housing residents, and we also haven't yet seen any policies from community housing providers.

We'll keep you updated as these laws are implemented in the new year.

In the meantime some holiday reading for us all from the Queensland Mental Health Commissioner who commissioned a report on the impact of the three strikes policy implemented in that state in 2013.
The summary of its key recommendations are:

• Better planning to meet social housing needs, provision of alternative housing solutions and monitoring outcomes for tenants with complex needs
• Improved communication with tenants about the anti-social behaviour policy and consideration of additional steps to reduce confusion between “strike” and “breach” processes
• Combining enforcement with prevention, early intervention and rehabilitation support
• Adopting a more systemic approach to supporting tenants with complex needs and integrating with other support services.

Homelessness and Renting in Sydney

This week two reports regarding homelessness, from opposite sides of the world - Sydney and England - were released. We explore today what lessons we can learn and use to inform the Residential Tenancies Act 2010 review.
The most striking aspect of the Sydney survey was that of the 516 homeless people surveyed in the inner city, 65% only needed some short term support and housing they could afford. This means that for many people, the solutions for their homelessness lie in resolving our housing affordability issues.

Meanwhile in the UK government figures were released showing that the biggest single trigger for homelessness across England was insecure private rental. Of the 15 000 households (including single people) across England that identified as homeless in Jul-Sept 2015, 31% had become homeless because an "assured shorthold tenancy" (the equivalent of a fixed-term agreement in NSW) had come to an end and the landlord evicted the tenant.

Whilst the Sydney study didn't ask those kinds of questions, it is not a stretch to consider that a significant number of people experiencing homelessness in NSW are in that position merely because they were not able to access stable, liveable and affordable housing.

One easy way to address the stability of our renting system is a change to the Residential Tenancies Act 2010 to remove the option to end tenancies without grounds, and instead provide an expanded list of grounds. This could include circumstances where the landlord requires the property for another legitimate purpose, or where the property is to be renovated such that vacant possession is required. The question should be: does the landlord’s purpose require the recovery of vacant possession, or could it be achieved without displacing a sitting tenant? Given the potential impact of eviction on tenants - as indicated in these surveys - this question should be taken seriously.
Another way of promoting stability in housing is to ensuring that rent increases take into account affordability concerns, as well as ensuring the increase is justifiable when considering the general cost of living and comparative value of dwellings. Our proposal to require the landlord to bear the obligation to prove an increase is reasonable if it is above the CPI increase will make sure these decisions are fair and reasonable.
To read more about the review and our proposals, check out our quick guide to the review!

Public housing repairs - an inquiry

It's been awhile since we talked about repairs and maintenance in public housing. The last time we brought it up was way back in 2013, when the Land and Housing Corporation was in the midst of reviewing arrangements with its contractors.

Back then, signs were ominous that change might come - at least in the way the Government procures the work it deems necessary, if not in getting better outcomes from the work itself. We've even heard that their new repair and maintenance contracts were trialled in a couple of different areas, and are set to be rolled out more broadly. But as yet, nothing seems to have come of that. We're hoping to hear from the Land and Housing Corporation soon, with an update on where the process has gotten to.

Of course, in the meantime we've had the NSW Auditor-General's report into making the best use of public housing and we've seen more of a focus on the need to renew the public housing portfolio than to repair it. But thankfully not everyone seems to singing from that particular sheet.

Recently the Legislative Assembly's Public Accounts Committee has called an inquiry into the management of public housing repairs and maintenance contracts. Its terms of reference look useful:

That the Committee inquire into and report on the management of public housing maintenance contracts in NSW, with particular reference to:
a) The current repair status and physical condition of the public housing stock managed by Housing NSW;
b) The costs of maintenance of the current public housing stock, variations in expenditure trends over the previous five years and projected expenditure for the next five years;
c) The nature and administration of maintenance contracts, including private sector arrangements;
d) Methodologies and processes for ensuring consistent public housing maintenance standards across NSW, including quality assurance, effectiveness, efficiency and contract supervision;
e) Statutory obligations on tenants to take care of properties and report maintenance needs in a timely fashion;
f) Measures to meet the special maintenance requirements of aged and disabled tenants;
g) Any other related matters. 

If you're living in a poorly maintained public housing dwelling, now is a good time to put pen to paper to make something of it. Submissions are due on February 5th 2016.

See the inquiry website for details.

Renting laws in review - the case for change

In case you've missed it, our renting laws are under review.

The last time this happened was way back in about 2007. We made a number of recommendations that would improve stability, liveability and affordability for tenants and other renters in New South Wales.

Some of these were ultimately taken up and are working relatively well, or just need a tweak to get them working a little bit better. Others were rejected outright - such as our suggestion to introduce 'just cause evictions', and do away with landlords' ability to end tenancies without a reason.

At the time, Fair Trading said:

The review does not find sufficient justification for NSW to become the first State to introduce "just cause" only evictions. To do so would have serious implications on the rental housing market. In any event, trying to list all valid reasons would be a difficult or impossible task. Landlords should retain the ability to issue notice without stating a reason. However, there needs to be a greater deterrent against the issuing of notices without grounds, when the landlord really wants to end the tenancy because the tenant has allegedly breached the agreement. This is a matter of natural justice, and tenants should have the right to defend themselves against any claim being made.

(... you can read more about that here).

In the aftermath of that review, the law was eventually changed. Not only did landlords retain the ability to issue notices of termination without needing to state their reason, tenants lost the right to prevent eviction by drawing the Tribunal's attention to the circumstances of the case. We made quite a fuss about it at the time - you can read more here.

As was alluded to in Fair Trading's earlier review, the idea that strengthening tenants' rights would have 'serious implications on the rental housing market' is an oft-drawn bow. Even when getting down to the minutiae of rights and obligations, any suggestion that landlords can't simply do what they like with their property - or worse, that they'll have to spend a bit of money in order to manage their investment - leads to cries of foul. This, too, is something we've talked about before - you can read more here.

But the changes that were, and the changes that weren't made to renting laws in the wake of the last review need to be considered in a new light: the residential housing market is no longer what it was.

The proportion of renter households in New South Wales is growing at a faster rate than the population generally. It was 27.5% in 2001, up to 30.1% in 2011. Various data suggests this will have increased again - perhaps quite substantially - when the next Census occurs.

• Tax data shows that between 2009-10 and 2013-14, almost 85,000 properties were added to the New South Wales rental market.
• Lending and finance data from the ABS shows that NSW's landlords borrowed almost $70 billion in the 2014-15 financial year - up from around $51 billion the previous year and $35 billion the year before that - to fund their investment in property.
• Only a small percentage of this borrowed money is used to fund new housing supply - almost all of it goes towards purchasing established homes.
• Vacancy rates have been hovering at around 1.6% for Sydney.
• By comparison, the number of renter households in New South Wales grew by 43,000 between 2006 and 2011 according to Census data.

And at the 2011 Census, almost 40% of renter households were families with children.

The housing market continues to be dominated by investor landlords, and an absence of new owner-occupiers entering the market means more people are renting for longer. The need for stability, liveability and affordability for renters only ever grows in importance.

The pointy end of unaffordable housing

Housing affordability is a very Sydney issue. If you've spoken to any Sydneysider in any capacity throughout the last five years, you might have picked up on this. Coverage of the issue can feel all-consuming, but there’s little denying it is framed by the cost of buying and selling houses. How a cardboard box glued to the ground, that went for thrippence and a stick of gum last time around, fetched seven figures on Saturday. Or, if you think we're just being provocative, how these days a million of your most precious dollars can't even buy an uninhabitable shack, wedged between a wreck and a petrol station on the busiest road in Sydney.

Do I hear 1.5?

National Shelter ventured into the fray this week with a more useful contribution – the release of a quarterly Rental Affordability Index. The accompanying report notes that “focusing on housing affordability through the lens of home ownership does not provide insight into the households that are struggling with housing affordability most – those in the rental market.” And as we've long suggested, it's the private rental market where the real pain of unaffordable housing is felt.

The index will measure the affordability of renting across the nation, with a focus on the cost to low income households.  It leans on the ‘30/40 measure’, “that if housing costs exceed 30% of a low income household’s (households with the lowest 40% of income) gross income, then that household is experiencing housing stress”; risking the ability to pay for basic amenities such as food and water.

And the outlook in Sydney, “the nation’s worst picture” where “almost all renters struggle”, is concerning to say the least. Even the average income household in Sydney is perilously close to the line, needing 28% of its income for rent. But non-family households in the bottom 20% of income have the worst levels of affordability of any group analysed for the report – needing 65% of their income just to rent at 25% below the market rate, making their rent ‘extremely unaffordable’. The results are only marginally better for family households in the same quintile, and households in the bottom 20-40% income bracket.

Interestingly, renting in regional NSW is also unaffordable for both family and non-family households with income in the bottom 40% - though mostly to a lesser extent than in Sydney.

The report also includes a dose of the absurd with its list of five most affordable localities in Greater Metropolitan Sydney. Perhaps the purpose of this particular statistical tidbit is to emphasise that the most affordable choice is to live somewhere else. Because only a statistician would believe that four of the five most affordable locales actually form part of the state capital, ‘Greater’ or otherwise. Black Springs, by far the most affordable suburb in the index, is a fair hike along back roads to bustling Bathurst. Bluehaven and Lake Haven are a hop skip and jump from the shores of Lake Macquarie, whilst Silverdale is adjacent Warragamba Dam. Mount Druitt, in second place, is the only suburb within our city’s bounds to make the cut.

Or perhaps this simply affirms another key finding of the report – that poor rental affordability “is creating a divide in our cities between where the opportunities exist and where households are located.” Indeed most affordable properties for low-income earners are situated west of Blacktown, forty plus kilometres from the CBD. By contrast, the five least affordable localities are far more predictable - a mix of eminent city and harborside locales.

Monitoring, measuring, and comparing housing affordability in this manner is a commendable and overdue contribution to the housing discourse. Whilst it is the only authoritative source of rent data in NSW, the Rent and Sales Report has no affordability focus. And though the picture painted by the initial findings are undoubtedly bleak - for none more so than those struggling in Sydney, - we are heartened by the traction the report has received in the news media and elsewhere. This issue matters to us. We will certainly be keeping an eye on the report's findings, and are confident in its potential to inform and influence the conversation in the months and years to come.   

Let's put a white ribbon on the Residential Tenancies Act

Today is White Ribbon Day, and we swear to stand up, speak out and act to prevent men's violence against women. We do this is by offering a solution to some of the legal complexities that arise when two people live together as co-tenants, and one person is violent towards the other.

Violence between co-tenants creates some very difficult legal problems - aside from everything else - including in relation to a residential tenancy agreement. Co-tenants have joint and several liability under a residential agreement, meaning that each person named as a co-tenant is liable for the acts and omissions of the others. If, say, some damage is caused to the property during a violent outburst, the victim of that violence is just as liable as the perpetrator. Similarly, if one co-tenant leaves (perhaps because they are excluded by an interim apprehended violence order) and refuses to pay any more rent, arrears accrue against all co-tenants including those who remain in the property.

Under the old law, which was replaced by the Residential Tenancies Act 2010, this joint and several liability remained until the tenancy was terminated. This usually meant when all co-tenants had moved out and possession of the premises was returned to the landlord. When the current law was written, it introduced new provisions allowing a co-tenancy to end without substantially affecting the landlord/tenant relationship. One person can now get their name "taken off the lease" without any need to end the tenancy and establish a new one between the remaining occupant/s and the landlord.

This is great when people make voluntary decisions about who they want to live with, but that's not often the case where domestic violence is concerned. The law does allow a co-tenant to apply to the Tribunal to end the co-tenancy of another, but the Tribunal can only do so after considering the "special circumstances of the case". And any good Tenants' Advocate will tell you that there's nothing special about violence against women.

The new law also introduced a provision to deal more specifically with domestic violence between co-tenants. A person's interest in a tenancy now ends when a final apprehended violence order is made against them, if it includes an order excluding them from the premises. This is an operation of the law - it does not require an application to a Tribunal, or a letter to the landlord. It simply happens by virtue of the order being made.

But a final apprehended violence order is difficult to obtain. It can take a very long time to procure one, and in the process many co-tenants will stop residing with one another. In circumstances where the co-tenancy can't end by agreement - which is not uncommon where violence against women is concerned - or by an application to the Tribunal, parties remain just as jointly and severally liable while waiting for a final AVO as they would have been under the old law.

This can be easily fixed - all it will take is two small changes to the law. First, the Tribunal should be required to consider only the "circumstances", rather than "special circumstances", when hearing an application to end a co-tenancy. Second, a person in need of protection should be able to apply to the Tribunal to end a co-tenancy on the grounds that an interim apprehended violence order has been made. Such applications should be heard on the papers, without the need for a full hearing that would put a survivor and their assailant in the same room together.

Fair Trading NSW is in the process of reviewing the Residential Tenancies Act, and they ought to be looking at these provisions. Unfortunately their discussion paper makes no mention of domestic violence, other than to note the changes that were brought in with the current law.

That shouldn't stop us from talking about it, and bringing it to their attention.

You can contribute to Fair Trading's discussion paper online by clicking here.

Vale Adele Horin

We're saddened today to read of the passing of Adele Horin, former Sydney Morning Herald columnist and blogger, as tributes flow from colleagues and readers alike.

Horin will be remembered for the things she chose to write about as much as the way she wrote. She gave a voice to issues that might have otherwise gone unspoken in the mainstream media, and her writing was always powerful.

We remember Horin in particular for her contribution to boarding house reform in New South Wales. The political motivation that finally resulted in the Boarding Houses Act 2012 is owed, in some part, to a report published in the Sydney Morning Herald in mid 2011 - Horin's Disturbing tales from behind closed doors.

There remains a great deal of work to do, to ensure the rights of boarding house occupants are protected and enforced in New South Wales. But today we take a moment to reflect on how far we have come, and acknowledge those who have made a difference along the way.

We paid tribute to Horin when she penned her last column for the Herald - a piece called For richer and for poorer, the battle goes on. In looking back over it today, we are again struck by Horin's insight, humility, and her frank ability to express what she saw. She made a few strong points that day. Many of them still resonate.

But that was not her last written word. Horin's last piece of public writing appears on her blog.

... right now dear readers, I’m too sick to continue to write the blog. Maybe I will be able to re-start it again. But if not, I want you to know what a privilege it has been to be part of such a thoughtful community.

Our thanks go to you, Adele Horin, for the part that you've played in giving a voice to that community. Vale.

NSW Government: you can do better than this!

 

Ninety public housing tenants remaining in Millers Point received letters on Monday, 16 November 2015, with an offer to stay in the historic suburb by swapping their current homes for other non-heritage apartments: 24 of which are one bedroom properties, one is a two bedroom property and three are three bedroom properties. But there is a catch. Altogether only 28 apartments are on offer. Not everyone can stay. 'It's Sophie's choice,' said Chris Hinkley of the Millers Point community working party, and a resident for 44 years. The letter states that residents not relocated to one of the 28 properties will be moved out of Millers Point. Minister for Social Housing Brad Hazzard said it was a 'massive shift for the government', which had previously declared all tenants would be evicted and their public housing homes sold. Read more here.

However, the letter to residents states that the Government is proposing to 'defer', rather than 'withdraw', the sale of these properties. This poses the question as to the Government's future intentions. Are these properties to become part of a land bank with a view to their future sale?  What security of tenure does this provide to those residents who move in?

On 2 September 2015 the General Purpose Standing Committee No. 2. of the NSW Legislative Council called for submissions to its 'Inquiry into elder abuse in New South Wales'. Submissions closed on Sunday, 15 November 2015. The Tenants' Union lodged a submission.  It argued that, although elder abuse is generally between two individuals of unequal power where there is an expectation of trust, elder abuse also may be a systemic problem, with a government through its policies also being the instigator of such abuse. And it asserted that this is what is happening at Millers Point. It asked that the final report of the Standing Committee include a recommendation that the NSW Government allow remaining older residents of Millers Point to age-in-place in their current housing. This submission was submitted on 13 November 2015 and subsequently published by the Standing Committee. You can read it here.

NSW Government: you can do better than offer just 28 apartments to the remaining 90 tenants! At Millers Point you coveted your neighbours house (read more here). And you made a motzer (read more here)! By the Minister's own admission, the cottages in Millers Point have been a 'goldmine' for the government, such as 18-20 Munn Street which recently sold for $5.5 million.

NSW Government: give the remaining older residents a proper choice, not 'Sophie's choice' ... and this includes aging-in-place in their current housing. Then perhaps sell some of their houses if this remains your plan. But why not retain some of the units within the Sirius Building and workers cottages to maintain a semblance of a social mix ... so that Millers Point does not become an enclave for the wealthy?

Also, why not construct a new apartment building on vacant land at Millers Point, as originally proposed. In March 2014 The Sydney Morning Herald reported that the battle for Millers Point's long-term public housing residents to stay was lost when former finance minister Greg Pearce was sacked. In 2013 the Land and Housing Corporation had received heritage office approval to construct a building at Millers Point to accommodate up to 140 long-term residents. The housing department was preparing to lodge a subdivision application for the building. But two days after Mr Pearce lost his ministry in August 2013, the housing corporation was transferred from Finance into the control of Community Services Minister Pru Goward and she favoured removing all public housing from Millers Point. Read more here. Indeed its own consultant, Cred Community Planning, recommended that some of the funds from the sale of homes in and around Millers Point be used to build new social housing properties nearby, especially for elderly residents, adding that they may experience 'ongoing negative impacts of stress and poor health outcomes'. Read more here. The site of this proposed building remains vacant.
 

This needs to happen now, because the New South Wales Government appears to be clearing the decks in Millers Point and removing the final barriers for obtaining vacant possession of all the remaining properties. On top of the announcement by Minister for Social Housing Brad Hazzard, offering some residents the right to stay in two rows of apartments, two other events have just occurred, perhaps not coincidental. Firstly, Clause 16 (1) of the Residential Tenancies Regulation 2010 was amended on 30 October 2015 to exclude heritage properties owned by New South Wales Land and Housing Corporation and the Aboriginal Housing Office from heritage properties exempted from the operation of the Residential Tenancies Act 2010. Read more here. Secondly, nine of the remaining tenancies in Millers Point are managed by a real estate agent. And a number, if not all of these, were issued with 90-day 'no-grounds' notices of termination at the beginning of last week on the instructions of the New South Wales Land and Housing Corporation. 

Re-opening the case of the lost public housing tenancies

Two years ago, as the historic suburb of Millers Point was finally being eyed off by a state government desperate for revenue, the Tenants Union noticed that due to that very history, many of the properties being eyed off were exempt from the Residential Tenancies Act, and from the jurisdiction of the New South Wales Civil and Administrative Tribunal.

Last week, as reports of the first official notices of termination for Millers Point residents come in, we discovered that Housing has closed that exemption- making the job of removing residents somewhat easier.

You can read more about the exemption in the original blog post, and its implications in a Shelter NSW briefing paper- both of which will now require some amendment to be current, but are still very good documents of the situation at the time.

Back then, we alerted Housing NSW and their legal team to this exemption and they were unaware of the issue. We figured it created as many problems as it solved for the residents, and would have increased the cost of any disputes beyond the reach of most of the people affected- except for HNSW's legal team.

That said, we are disappointed this change came without notice or consultation from FACS Housing. If not for the vigilant eyes of tenant advocates, residents of these properties may not have seen the change before relying on the regulation as it had been until only a few days ago. Government should be open and transparent in its dealings, particularly when it comes to the dealing of land. Changing the legal status of hundreds of vulnerable people is not something that should happen in the dark, tucked away down the back of the Government Gazette.

Tenants steal the show at Parliament!

This week was an important one for our More Bang for Your Bond campaign.

For over six months, we have been campaigning for an increase in funding for the 19 Tenants' Advice and Advocacy Services operating across NSW. These services are funded with tenants' money, via the interest accumulated by bond monies held by the Rental Bond Board. Much of this interest is retained by the Government in surplus. But tenants' services have had no increase in real terms for over 12 years, despite a 25% increase in the number of tenants in the state over that time. And so the services are now stretched thin, forced to turn back those needing help on a regular basis. So with the backing of over 1500 supporters, we took the campaign to NSW Parliament - formally presenting a petition to bring funding up to speed with the needs of the rental market in 2015.

The presentation ceremony featured speeches from our Executive Officer Julie Foreman, as well as Dr. Geoff Lee MP (Member for Parramatta and Parliamentary Secretary), Jenny Leong MP (Member for Newtown), and David Mehan MP (Member for The Entrance). But by consensus it was our tenant speaker, Milly Morison, who stole the show. Milly's words perfectly capture the experiences of countless tenants across the state, and the vital role played by the service that assist them.

We are grateful to Milly, and proud to republish her speech in full here. 

Milly's speech:

Thank you all for coming today. I would like to take a moment to thank the Tenant’s Union of NSW and the network of Tenants Advice and Advocacy Services throughout NSW, for all the help that they have given me during my time as a renter.

I would like to give you a bit of background as to why I am so grateful for their help. A couple of years ago I was renting a house directly through the owner. We were on a periodic agreement when the owner fell ill and required the house back. He wanted to give us two weeks’ notice to vacate, so of course, we panicked. Finding a house in the Sydney rental market is challenging under the best of conditions. I called my aunt who told me about the Tenants Union, so I gave them a call. The friendly gentleman on the phone gave me some advice and told me there was more detail on their website. There I found a wealth of information and Factsheets, which I have been using as my essential manual ever since. The information contained told me the minimum required notice was 30 days. Armed with this information I was able to negotiate with the owner so we weren’t going to end up homeless, which was a real possibility as I had just quit my job and my housemate was a casual waitress.

In our next house we needed additional housemates to cover the rent. The new tenants did not want to be on the lease, and I wanted the extra rooms set up as short term leases. The tenants.org.au website helped me set-up sub-lease agreements and provided a sub-lease template. It helped me to navigate the nitty gritty details and maintain a positive relationship with the real estate agent. With the help of the Tenants Union everyone was looked after and no one got the raw end of the deal.

When I moved out of that house I transferred the tenancy to the two remaining housemates and again, the information provided by the Tenants Union was invaluable. They wanted to have their dog on the lease and at first the owner refused, but we were able to write a letter using information provided in the Companion Animals Taskforce submission that changed the owner’s mind. They were allowed to have the dog and I was able to move out.

Most recently I was living in a house and I had a falling out with my co-tenant. I gave her my four weeks’ notice but things got ugly very quickly and she refused to return my bond. The Rental Bond Board holds the bond for the whole house and don’t return portions of the bond to individual tenants. If one tenant leaves it needs to be negotiated between the two parties. So it felt that she suddenly had control of all my money. My local Tenants Advice and Advocacy Service walked me through, step by step, how to communicate with the real estate agent, how to behave in such a way that I was in the right, when I should give my keys back, what to do about a condition report and documenting the house upon exit. TAAS gave me all of the tools that I needed to get my bond back and because of their handholding I was able to successfully retrieve my money without having to take it to the tribunal.

Throughout my experience as a renter, a tenant, a share house mate, I have needed the assistance of the Tenants Union and the TAAS and I have regularly called upon their support in all of those sticky situations. I have used the Factsheets for all those niggles and I watch with interest their advocacy for tenants’ rights.

Mine is not an uncommon story. My rental history is a cardboard cut-out experience shared by many other renters around NSW. I have trouble imagining how people manage these issues without the support of the Tenant Union and Tenants Advice and Advocacy Services and I cannot state strongly enough how vital they have been as my aids through the rental world.

Fair Trading's review of the Residential Tenancies Act also asks for comments on how interest on tenants' bond money should be spent. Let them know directly here!

Renting laws in review: inspections and privacy

At over fifty pages in length, and posing 42 questions, Fair Trading's paper for the review of the Residential Tenancies Act 2010 provides broad scope for discussion. In the coming weeks and months, we will be highlighting some of the topics that interest us most here on The Brown Couch. Today we are looking at a landlord's right to access a property without the tenant's consent. The paper asks:

24. Are the notice periods for carrying out inspections appropriate?

25. Should the number of inspections allowed per year be reduced for long term tenants? If so, how long should a tenant have continuously occupied the same premises to be classified as a 'long term tenant'?

26. Are any additional protections needed for tenants and landlords regarding inspections and privacy?

Is current NSW law around access and inspections of a rental property... elementary?

The law allows a landlord to enter a residence without the tenant's permission (or even presence) to carry out a general inspection, perform necessary maintenance, get a valuation, and show the property to prospective buyers or new tenants. Tenants are entitled to different forms of notice depending on the purpose of the visit - for example, a landlord must give seven days' notice in writing before a general inspection. There are no strict limits on the maximum number of visits overall, but there is a cap of four general inspections in any 12 month period.

The use of different notice requirements and caps on visits does complicate things at first glance. But once you unpack everything it's quite straightforward, as the table in our fact sheet on the subject shows. But is this simplicity actually problematic? Parties frequently differ in their view of what is appropriate or necessary when the landlord comes around. And whilst the Act does contain rules regulating the conduct of the landlord during inspections, they are less than comprehensive.

Photography and video recording is one common ground for disagreement. In particular, a landlord's agent will often want to document a residence for the purpose of advertising it to potential buyers or replacement tenants. As the discussion paper notes, this represents a privacy and safety concern for many tenants - particularly when the photos or recordings reveal their identity, or valuable belongings. It's easy to see where the agent is coming from; an empty property is hardly going to catch the eye the cutthroat world of the online real estate pages. But should it really be incumbent on the tenant to assist a landlord in a process that will result in an end to their tenancy?

Though tenants enjoy a fundamental right to peace, comfort and private enjoyment, the Act fails to address the issue of photography and video recording directly. Moreover, that general protection can be difficult and expensive to enforce. A tenant would need to convince the Tribunal that the proposed photography or recording would amount to a breach of their peace, comfort, or private enjoyment; and obtain an order safeguarding that right. This would typically require attendance at both a conciliation and a hearing.

What's more, given such an inspection is likely to occur within a short window of opportunity - probably within the 14 day notice period of a landlord's intention to sell - a tenant would almost certainly require an urgent hearing to make sure the matter goes before the Tribunal in time to prevent the apparent breach. Urgent hearings are provided at the Tribunal's discretion only, and there are no formalised means of requesting one. It's not difficult to see why most people don't bother.

The Act is also vague in establishing the basic rules for inspections to show a property to potential new tenants. Here, a landlord must provide reasonable notice, and conduct no more inspections than is reasonable in the 14 days before the tenancy ends. But there is nothing to guide parties on just what is 'reasonable' in these circumstances. And a tenant would have to jump through the same legal hoops as those outlined above to obtain an order restricting the landlord where either party's notion of 'reasonable' is not in accordance with the other. What's more, given a tenancy does not technically end until vacant possession is returned to the landlord, and not the date specified in a notice of termination, determining which are the 'last 14 days of the tenancy' can be decidedly tricky. It is always unclear when the landlord becomes entitled to arrange such inspections.

There is also the question of notice, and how it must be given. A landlord is required to provide a tenant with written notice of some types of inspections but not others, but a failure to 'put it in writing' is common cause for conflict in all types of legal disputes. Parties with conflicting interests tend to remember conversations unfolding in the manner that suits them best.

Finally, there's the question of whether this is even necessary for all tenants. As the discussion paper succinctly notes, "It has been suggested that in order to strengthen the rights of tenants who have resided at the same premises for a number of years (‘long term tenants’), the number of inspections allowed per year should be reduced." Certainly, reducing the number of general inspections allowed for tenancies that have withstood the test of time would allow long term tenants to better enjoy their right to peace, comfort and private enjoyment.

As you can see, there's much to discuss on inspections. We'd love to know your thoughts as well. How has the law concerning inspections and privacy worked for you over the last five years? What changes could be made to make them better?

Fair Trading wants to hear from you, too - you can make a submission to to the review of the Residential Tenancies Act 2010 to help them understand just how these laws are treating you in your part of New South Wales.

Speak up, be heard!

"Landlords have a right to ensure their investment is protected and can generate reasonable returns. Tenants are entitled to suitable housing and reasonable rights to enjoy their home and not be evicted without prior notice."

So begins Fair Trading's discussion paper as part of the statutory review of the Residential Tenancies Act 2010.

Let's just let that sink in for a minute.

Landlords have a right to a protected investment that generates wealth.

Tenants are also entitled to rights, but nothing beyond the point of enjoying their home while they have one. The risk in the rental market, it seems, is all theirs.

People who live in rented homes deserve better than this. Not being evicted without proper notice is nice - but not being evicted without a proper reason is what we should be entitled to.

The number of people who live in rented homes is growing, and their profile is changing.

In our recent report on the Act, we pointed out that the proportion of households who rent in New South Wales has been steadily increasing for at least a decade. In 2001, 27.5% of private dwellings were occupied by renter households. In 2006 it was 28.4%, and in 2011 it was 30.1%. There are no signs that this trend is reversing - the population of renters in New South Wales is growing faster than the population in general.

We also know that the composition of renter households has changed over time. More people are renting for longer, and more and more families with children are making their homes in the rental market. In 1981, the proportion of Australian renter households who were families with children was around 26%. In 2011 it was closer to 40%.

Fair Trading's discussion paper also notes the changing profile of the NSW rental market:

Historically, renting has been viewed as a short-term housing option - a stepping stone to home ownership. Today, people are renting for longer. According to figures from the Rental Bond Board, in the last ten years there has been a 7.2% increase in the number of tenancies lasting longer than 3 years. A corresponding decrease of 5.2% was recorded for tenancies of less than 6 months.

These statistics paint a clear picture - more people are renting for longer in New South Wales.

But pointing out the statistics doesn't always get us very far. If we are to challenge the view that tenants are merely entitled to enjoy their homes while they have them - rather than feel some basic level of security within them - then we need to do more than recite statistics.

Tenants need to find their voice.

Download and read Fair Trading's discussion paper. Circulate it amongst family and friends. Talk about it. Think about it. Respond to it.

Let them know you're out there. Let them know that you are a person, not a statistic. Let them know what you think of renting in New South Wales. Your experience is valuable.

Fair Trading has set up an online form where you can answer some or all of the questions they've raised in their paper - find it here.

Reaching tenants with other languages

Ensuring everyone knows their tenancy rights is very important to us. With funding from the Law and Justice Foundation of NSW last year we released a spiffy new set of tenants’ rights factsheets translated into nine community languages that are common amongst renters in NSW.

The new factsheets can be found at the Tenants’ NSW website, right on the front page in the left most column. You can jump directly to your community language of choice and view an html version of the information or download a pdf copy.

If you or anyone you know wants to know about their rights and obligations as a renter in NSW and can read one of the following languages:

• Arabic
• Chinese (simplified)
• Chinese (traditional)
• Farsi
• Japanese
• Korean
• Spanish
• Thai
• Vietnamese

Why not download a factsheet and give have a look!