Welcome to Dubbo, please enjoy your stay...

Earlier this week a scanned copy of a letter started doing the rounds on social media . It was said to be from Family and Community Services, delivered to tenants of the Aboriginal Housing Office in the Dubbo area where the 45th Koori Rugby League Knockout is to be held this weekend.

The letter reads:

As the warmer months of the year approach and with school holidays currently well underway it is timely for Family and Community Services (FACS) Housing Services to remind our tenants about the Good Neighbour Policy, particularly in regard to additional persons and visitors. 

FACS is well aware there are a number of activities scheduled to take place in Dubbo. Some of these are occurring right now, and then there are other activities planned for the remainder of the school holidays. One of these activities is the NSW Annual Aboriginal Football Knockout to be held in Dubbo over the long weekend. 

Please be assured that FACS is very supportive of all activities, in particular the football event. However, we are aware that the football, in particular, brings high numbers of visitors into Dubbo to celebrate the event with friends and family and many stay in social housing properties. 

Having visitors is enjoyable however sometimes it may bring stress particularly if you are unsure of how to manage situations that get out of hand. If we can help in any way please contact your CSO on [number] or if there is an emergency please call the police... 

On the other hand if you are disrupted by neighbours or their visitors please also make contact with your CSO or the police.

Quite understandably, the appearance of this letter raised a few eyebrows at the Aboriginal Tenants Advice and Advocacy Services. Was it real? Where did it come from? And why is it written in such a patronising tone?

We contacted FACS Statewide Housing Services to see if we could get some answers. They confirmed this letter was sent from FACS' Dubbo office to all local Aboriginal Housing Office tenants last week. They also confirmed the local office had received numerous complaints about the letter and had gone into a bit of damage control, liaising with local 'Aboriginal representatives' to explain the thinking behind the letter. We're not exactly sure what this means, but we do know that the Western Aboriginal Tenants Advice and Advocacy Services was kept pretty busy with phone calls from local tenants yesterday.

Local FACS offices have got a bit of form when it comes to sending ill-conceived correspondence en masse to tenants. Long-time readers may recall this little piece of Christmas cheer dropped into the letterboxes of tenants on the South Coast a few years back, which assured local tenants that "rent doesn't stop for Christmas".

Now, it's fair to say that the tone of the letter sent by the Dubbo office is, on the face of it, a little less offensive than the one we saw on the South Coast not three years ago. But given the nature of this particular correspondence - directed at tenants of the Aboriginal Housing Office, in anticipation of an annual event that is run by and for Aboriginal people - we have to look beyond what we see at face value. The Koori Knockout is an annual event, which is held in a different location each year, and this is the first time a FACS Housing Services office has seen fit to circulate such a note to all local Aboriginal Housing Office tenants.

Hopefully it will be the last, because - understandably - it hasn't been very well received. To see just how badly this has been seen by Aboriginal people, check out this post to the 2015 Koori Knockout host's facebook page, and the response it has attracted.

There's a pretty clear lesson for FACS in both of these incidents. If you want to alienate yourself from the communities you're supposed to be serving, just whip up a quick letter and send it around to as many people as you can think of without a second thought.

On the other hand... if you want to engage with local communities to have a genuine dialogue about anticipated concerns arising from events like Christmas or a Koori Knockout in your area, don't just whip up a quick letter and send it around to as many people as you can think of without a second thought. This is true for everyone, but it is especially true for communities who have good reason to be wary of the thinking behind a Government agency's activities towards them.

Instead, consult with key folks in your community about what you want to say, and why you want to say it. Talk to 'Aboriginal representatives' before you send your message out into the world, rather than after the damage is done. They'll tell you if it's going to be wide of the mark, and they might even help you put something worthwhile together.

That's exactly what we did - and we came up with a special edition of the Tenant News. It's published with the Koori Knockout in mind, and it's full of great yarns by and for Aboriginal tenants.

There'll be a few printed copies of the Koori Tenant News circulating around Dubbo this week, so keep an eye out for it if you're in town for the Knockout. And it's available to download from our website right now. Let us know what you think!

We reckon it makes for better reading than that letter from the local FACS office.

Top tenant 'mistakes' include knowing the law

Anybody foolish enough to spend time on the internet (you know who you are!) will know we are firmly ensconced in the age of the listicle. Newsworthiness, inanity, and even the number of things listed are irrelevant considerations - 29 Essential Albums Every 90's Kid Owned is what gets the clicks. Indeed, the medium has already reached a higher plane, arriving at the ironic, self-referential listicle.

So with the number of long-term tenants sharply on the rise, it is perhaps no surprise that tenancy law has now entered this brave new world of journalism. Earlier this week, Fairfax Media brought us The 10 mistakes landlords and tenants make.

Next time on The Brown Couch: 27 hilarious but true reasons why Taylor Swift's cat who grew up in the 90's will restore your faith in humanity

The tenant errors nominated do include genuine missteps that often leave renters high and dry - such as failing to provide notice before vacating, or not keeping records of communications with the other side. 

But two 'mistakes' did stand out as somewhat curious:

"Not reporting necessary repairs to the property manager"

"Feeling uncomfortable about asking for changes to the lease upfront"

Self-defeating fools! Of course, tenants are entitled to have repairs for which they are not responsible addressed by the landlord - and tenants are in fact obliged to report damage to premises as soon as practicable after becoming aware of it! And, like most any other contract, the parties to a residential tenancy agreement are free to renegotiate terms. Why oh why - Tell me why! - do tenants work against their own interests in this way? It categorically does not make sense. 

Except, wait...

Could it actually have something to do with the fact that landlords are presently empowered to issue tenants with a notice of termination for literally no reason? And that they can pull the pin at any point - either for the end of a fixed term or with 90 days' notice in a periodic tenancy? Could it be that the Tribunal is required to enforce a valid notice so issued? And that mechanisms for tenants to dispute 'no grounds' notices as retaliatory are notoriously difficult to use?

Of course it does. The threat of arbitrary termination in this manner hangs over the head of every tenant. Renters know their housing is inherently insecure, as our 2014 survey showed. And this naturally influences their approach to landlord-tenant relations. The consequence is that tenants are too often reluctant to enforce basic and fundamental legal rights for fear of putting their landlord offside. It is only too easy for a landlord to be rid of an irritating tenant that insists upon all that he or she is entitled to. And better still, very low vacancy rates mean a replacement will be found almost immediately. 

Perhaps tenants aren't so foolish after all.

It is for these reasons that The Tenants' Union argues for the abolition of no-grounds termination provisions from the Residential Tenancies Act. Instead, we say landlords should have access to an expanded list of legitimate termination grounds, such as needing the property to reside in personally. 

It also goes to show that the media isn't the best source of guidance on where you stand as a renter. For that, you should contact your local tenants' advice service - and of course sign this petition to ensure these vital but underfunded services continue to have the capacity to take your call. 


Read more about the Tenants' Union's opposition to no grounds terminations in our report on five years of the Residential Tenancies Act, available here.

Government's 'antisocial housing' bill amended and passed

The Residential Tenancies and Housing Legislation Amendment (Public Housing - Antisocial Behaviour) Bill 2015 has finally made it's way through the NSW Legislative Assembly. The debate was long, with many MPs speaking about their experience and understanding of antisocial behaviour within social housing communities before putting it to the vote. You can find what your local MP had to say by scrolling through the hansard documents - but be warned, this stretches out to about 80 pages of reading material.

Both the Government and the Opposition tabled some amendments to the legislation - the Government's amendments were agreed to as it passed through the Legislative Assembly; the Opposition will have to rely on the support of the Greens, the Shooters and Fishers, the Animal Justice Party and the Christian Democrats in the Legislative Council. We've had a quick look at the amendments and they're a bit of a mixed bag.

In a nutshell, the Government's amendments will: return discretion to the Tribunal on making termination orders, but only in a very narrow set of circumstances; give tenants a little bit longer to respond to or appeal a "strike notice"; and clarify that an anonymous "neighbourhood impact statement" may only be used to establish the impact of a tenant's breach on neighbours, not whether a breached has occurred.

The Opposition's amendments will: go further on returning discretion to the Tribunal in cases where it needs it to avoid unjust outcomes; give tenants a little bit longer still to respond to or appeal a "strike notice", and clarify that the timeframe for response or appeal is a minimum, not a maximum; allow tenants to make submissions about the details outlined in a strike notice in the Tribunal if circumstances warrant it; ensure tenants are entitled to see a copy of an anonymous "neighbourhood impact statement" if used in the Tribunal; and ensure that not all termination orders relating to social housing tenancies will require vacant possession to be returned within 28 days, but only those to which the bill relates.

We'll consider the amendments in more detail in a later post. Either way the final legislation will be changed in some form or another from its original form. That, of course, is a very good thing. But we're still not convinced this legislation is the right way to tackle antisocial behaviour in communities where social housing tenants live.

The Philosopher, the Economist, and the Prime Minister's Dogbox

While catching up on your weekend reading you might have come across this curious little article from the New Philosopher magazine - The Philosopher's Dogbox - offering a thoughtful discourse on the virtues of renting a home.

Its author, Damon Young, observes the nature of tenant-hood:

A child of the depression, one of my grandmother's favourite slurs is "bludger": a shirker, and idler. It echoes the property equivalent: renter. To lease a home, in this universe, is to be capricious, lazy, and vulnerable. And the last is like a cosmic punishment, to be pushed around by landlords is the penalty for sloth. Those who lose the housing game often end up in flats or apartments, what my grandmother calls a 'dogbox'.

... amid the changing shape of the private rental market:

Many cannot afford mortgages at all - including, to my grandmother's alarm, my wife and myself. Part of a generational trend of falling home ownership, we will never be that couple on the bank advertisements, beaming after bidding. We rent, and we keep shifting as high turnover and prices force us from house to unit, suburb to suburb. And we are now competing with wealthier renters, whose accounts are fat enough for leasing but not for buying. Even with discipline and austerity, virtues my grandmother rightly lauds, we will not be rewarded with her three bedrooms, red bricks, and hydrangea borders. We live well, but our two bedrooms and tiny courtyard are that bestial symbol of failure: the dogbox. (A kennel that costs almost half our household earnings, after tax.) My grandmother's mantra - work hard, save cannily and own early - is sadly anachronistic.

Young then takes us on a tangential journey: through Martha Nussbaum's, Fragility of Goodness, where "no amount of data or prudence can guarantee freedom from suffering - in fact, sometimes this very susceptibility gives existence its preciousness"; to a contemplation of Karl Marx's musings on private property, that "has made us so stupid and one-sided that an object is only ours when we have it..." - allowing us to wonder if perhaps "we no longer identify as owners - successful or failed, canny or imprudent - we are one step away from this emphasis on having."

For the Philosopher, consignment to the dogbox is not without solace, but there is a palpable discomfort in his story. Enter the Economist, who is only too happy to explain. A second article might also have caught your attention over the weekend - Bloomberg's The Threat Coming By Land. It begins with a proposition:

... One of the most pressing economic dangers of the future is getting short shrift: Landlords are eating the world.

Because of course, it is our landlords who are winning the housing game. It is landlords - indeed our mums and dads, and not our Philosopher's grandmother - who have consigned us to the dogbox.

The article continues:

There is a growing concern that wealth inequality has skyrocketed, and that capital income accounts for a growing share of the economic pie. This was the theme of Thomas Picketty's "Capital in the Twenty-First Century." But although we usually think of "capitalists" as they were defined by Karl Marx ... we forget that land also is a form of capital, which means landlords (and homeowners) are capitalists, too. ... It is land, not corporate capital, that has been responsible for the the lion's share of the increase in capital's share of income.

The article goes on to argue that land taxes make good economic sense because they promote productive use of land, and stabilise its value so that its cost does not draw money away from its productivity. (If this sounds familiar - it should: the Brown Couch has long said that land tax is the fairest tax on earth). But its reference to landlords as capitalists is what interests us today.

Quite aside from his casual reference to Marx that draws us promptly back to the Philosopher's critique, in acknowledging property as capital the Economist reminds us of a key foundation on which modern housing policy is built: the idea that ownership is akin to permanence, and permanence means stability. In the face of the raging battles between capital and labour that marked the opening decades of the 20th century, "every spadeful of manure dug in, every fruit tree planted, converted a potential revolutionary into a citizen" (Neville Chamberlain, 1920).

Patrick Troy explores the implications of this for Australia in his 2012 book Accommodating Australians, where he discusses the development of the first Commonwealth State Housing Agreement (at pages 90-92). It's worth extracting here at length as, aside from the substantive point it serves to highlight, it provides some useful background for the state of housing policy today:

The initial reaction of the Opposition to the Commonwealth State Housing Agreement was almost apathetic. Little was said in criticism of the agreement, the Opposition aiming its fire at the issue of industrial unrest in the building industry. The Leader of the Opposition, Robert Menzies, was at his most perfunctory in his comments on the Bill. Certainly, there was little political point in assailing a national housing project at a time of demonstrable need, but strangely the Opposition did not try to exploit the controversial aspects of the Commonwealth Housing Commission report, particularly nationalisation of land. The Commonwealth State Housing Agreement would have cleared the Parliament with largely bipartisan agreement but for one extraordinary political misjudgement. 

The notion that by some mystical process home ownership transformed a working man into a 'little capitalist' was not new. A real estate agent, Richard Stanton, had expressed the rudiments of the concept to a housing inquiry as early as 1913: "A working man can come to us (to buy a house) and be treated just as if he were a capitalist".

The notion of 'little capitalist' had been often used by conservative politicians to deride the housing priorities of Labor governments, as in this description by a Conservative MP of the establishment of a State Housing Commission in New South Wales by a Labor government: "The Government now brings in a measure that will improve the housing system and sooner or later create a number of small capitalists". (Cater 1941)

Neither side of politics had established a monopoly on unequivocal support for home ownership. Some non-Labor politicians had supported the interests of landlord investment in rental housing and had shown a tendency to sneer at the home-owning pretentions of lower income earners. Others strongly favoured home ownership as a source of social stability. A number of Labor politicians had asserted the interests of tenants exploited by the private rental market, and advocated greater home ownership as a remedy. Others were strong supporters of low rental public housing. These were not clearly drawn ideological positions but the Commonwealth State Housing Agreement debate was to produce a marked hardening of partisan battlelines on the issue of home ownership. 

During an otherwise unexceptional speech in the Committee stages a government supporter, Dr Gaha, proposed a scheme to use child endowment payments as a means of amortising the costs of home ownership, basing his argument on well-worn themes of home ownership increasing satisfaction and stability. He went on: 

"In this way we would make the average worker a capitalist and that is our only solution to Communism in this country. If this scheme now before us has any weakness at all, it is its failure to enable the occupant to become the owner of his own home."

Replying to points made during the debate, [Minster for Postwar Reconstruction] John Dedman tried to refute Gaha's argument but his frank expression was pounced on by Mr Larry Anthony, a senior member of the Country Party and an accomplished parliamentary tactician. The critical exchange is as follows: 

DEDMAN: The Commonwealth Government is concerned to provide adequate and good housing for the workers; it is not concerned with making workers into little capitalists. 

ANTHONY: In other words, it is not concerned with making them homeowners. 

DEDMAN: If there is any criticism which may be directed against the policies of past governments supported by the present opposition; it is this: too much of their legislative program was deliberately designed to place the workers in a position in which they would have a vested interest in the continuance of capitalism. This is a policy which will not have my support at any rate."

What followed is a superb case study of the use of parliamentary forms for maximum political exploitation. Anthony moved quickly to amend the schedule of the Bill to insert a provision that would have allowed a tenant to buy a dwelling on rental purchase terms after three years of occupancy. In a series of highly effective political speeches, Anthony ... excoriated the government for discouraging home ownership. Anthony expressed the nub of the Opposition attack: 

"The minister for Postwar Reconstruction said the legislation to enable workers to own their own homes would create a lot of little capitalists and that would retard the onward march of socialism. That was a most extraordinary statement. Does it mean that the policy of the present government is to discourage home ownership?" 

This approach was in harmony with the evolving Liberal-Country Party philosophy of dismantling wartime controls and encouraging individualism and private enterprise. Opposition speakers were able to contrast socialism, controls and denial of home ownership with individualism, free enterprise and home ownership, expressed in a ringing credo by Archie Cameron: 

"I believe in private ownership of property. I believe in the freehold principle. I believe that a man is entitled to make certain things his own. I believe that persons who acquire property will take greater care of it than tenants will take care of property which they rent." 

Although the government was able to use its parliamentary majority to defeat the writing of home ownership into the legislation, and although the Opposition accepted the main thrust of the Commonwealth State Housing Agreement, the dimensions of the housing debate were changed utterly by Dedman's statement. The Opposition parties were able to paint Labor as resolute opponents of home ownership and to pledge themselves to optimum home ownership. Dedman protested feebly that he would welcome the day when every head of a family throughout Australia owned his own home, but the damage had been done.

By the time the next government - lead by Robert Menzies - came to renew the Commonwealth State Housing Agreement, Dedman and Anthony's 'little capitalists' had been usurped by a forgotten middle class. But the theme of property ownership remained, and the sale of state owned rental housing became a feature of housing policy for many years to come.

But as the Philosopher reminds us, the rate of Australian home ownership is in decline. And as the Economist would have us say, it is the landlords who make it so. To understand this, we need look no further than the path on which Menzies has taken us: the forgotten people - aka the Philosopher's grandmother - bought their homes, then grew old and comfortable within them on a modest pension. Their children bought homes for themselves, too, but they didn't want to just be comfortable as they got old... They wanted to maintain the higher standards to which they were accustomed. The pension was not enough, and to rely on such welfare was contrary to the individualism and freedom that had become our national mantra.

So they bought extra homes. Homes they didn't need; homes that would increase in value over time - allowing them to generate income through rental revenue and price appreciation. And because public housing was being sold off, and more of it was not being built, governments developed tax incentives to encourage more and more of these children of the forgotten people - our mums and dads - to invest in housing. Or, more specifically, to invest in second-home ownership, so that their children and their neighbours' children could move into cheap rentals while toiling and saving for a home of our own.

In the end, they became little capitalists. And for them, as the Economist alludes, this path was a good one. For their children, it was not so much.

Today Australia has a new Prime Minister. We congratulate the Member for Wentworth on his not-so-sudden ascension to high office - this man who once famously claimed to know what it was like to live in a rented flat. To have as our Prime Minister a person who understands the dubious self-loathing that comes with consignment to the dogbox is no small thing. But it remains to be seen what this will mean for anyone who remains so consigned.

In his victory speech Turnbull claimed his would be a "thoroughly liberal government, committed to freedom, the individual and the market". His Deputy, Julie Bishop, gave an express tip of the hat to Robert Menzies and the values he instilled within the Liberal Party. So will a government lead by Turnbull and Bishop get back to work on the dream of a home-owning Australia, and wind back the tax incentives that are producing instead this nation of landlords? Or will they continue along the path their predecessors have set, and maintain that the only thing standing between you and liberation from the dogbox is a good job that pays good money?

Only time will tell.

Whose price is right?

Domain, the bible of Sydneysiders who attend dinner parties in journalists' imaginations, recently released another piece of high conversation fodder - its price data tool. This allows you to search nearly any address in Australia for information on its estimated rent and sale value, as well as its history on the market. It was presumably constructed using the mass of property sales data the NSW Government pledged to release earlier this year.

It certainly has novelty value. Search your friend's place. Search your neighbour's place. Search Kirribilli House. And did you know the tiny inner city terrace your correspondent's mum bought for thruppence and a rusty nail in the 80s could now get you a medium size island?

Rent this charming sandstone mansion with 180-degree city views for only $1140 a week (estimate)!

But beyond snooping, renters should note that the Domain tool, and the clones we're sure are in the pipeline, could change the issues relevant to rent increases.

This Leichhardt two bedder provides a fine example. The property history shows that it was let for $550 a week as recently as July 2015. As one might expect for a property that is a fixture on the rental market, this is the end point of steady increases in recent years. The current price is $80 higher than in 2012, $100 above the 2010 mark, and a full $175 more than the going rate back in the Bronze Age of 2007.

So $550 is a reliable marker for current market rent, right? 

Wrong - at least according to Domain. The price tool estimates with "high confidence" that the going rate should in fact be $650 per week. This is based not on data concerning the property itself, but on advertised rent prices for similar properties elsewhere in Leichhardt.

So if a hypothetical tenant's hypothetical landlord were to issue a rent increase of $100 per week, citing the price tool as evidence of a property being rented at well under market value, would our hero be advised to dispute the increase as excessive? There are of course a great many variables this scenario cannot consider.

But it does raise interesting questions. Isn't 'market value' just the price a consumer is willing to pay, rather than what a vendor is hoping to collect? If so, the fact this property has consistently gone onto the rental market, and is currently fetching $550, suggests that this is indeed market rent. Or is the whole of market picture, suggesting a similar place in the same suburb goes for $650, in fact a more reliable guide to 'true' value?

There are also obvious problems with Domain's use of advertised rather than actual rents in coming to its figure of $650. There is absolutely nothing to suggest the agents of the inner west were able to obtain the advertised prices on the properties used to calculate the price tool's estimate. This is something we've discussed in earlier conversations on the the Brown Couch.

These may well form the parameters for landlord-tenant deliberations and confrontations to come. For what it's worth, we think our tenant stands on solid ground. But a result the other way is not out of the question, particularly if the case winds up at a Tribunal hearing. These are notoriously difficult for tenants to win, and the Residential Tenancies Act affords Members substantial leeway to come to their own conclusions about what is and is not relevant in contemplation of an increase. 

As we've noted elsewhere, the Minister responsible for Fair Trading is required to undertake a review of the Residential Tenancies Act 2010 this year. We believe the rules around dispute of rent increases as excessive need reform. Particularly relevant to our hypothetical is that the evidence burden for rent increase matters is always on the tenant, who must show that the disputed increase is in fact excessive. We say that where an increase exceeds the CPI - as would be the case in our scenario - the burden should be on the landlord to show that the increase is not excessive. This would put our tenant on much safer ground, and prevent increases of dubious merit from happening.

We note finally the the price tool may also struggle outside the confines of the city, though for different reasons. With far less data, both area and property-specific, available for regional housing, it's not hard to see that the program will produce estimates based on very little information. This is likely to produce further anomalies and inconsistencies, and therefore arguments of its own. 

Read the Tenants' Union's full submission on reform to rent increase provisions here.

Scotland to move on 'no-fault' ground for repossession

While we wait for the statutory review of the Residential Tenancies Act 2010 to formally commence in New South Wales, we couldn't help but notice this recent snippet from the Scottish Government's programme for 2015-16 (find it on page 71 of this download)

The Private Tenancies Bill will increase security of tenure for tenants while providing appropriate safeguards for landlords, lenders and investors. This is part of the Scottish Government’s broader approach to reforming the private rented sector to make it a more professionally managed and better regulated sector, that provides good quality homes, and is attractive to those who want to live, work and invest in it. Specifically, the Bill will: 

• Introduce a Scottish Private Rented Tenancy to replace the current Assured system. 

• Remove the ‘no-fault’ ground for repossession, meaning a landlord can no longer ask a tenant to leave simply because the fixed-term has ended. 

• Provide comprehensive and robust grounds for repossession that will allow landlords to regain possession in specified circumstances. 

• Provide more predictable rents and protection for tenants against excessive rent increases, including the ability to introduce local rent controls for rent pressure areas. 

• Create a more streamlined, clearer to understand tenancy system that is fit for the modern private rented sector.

Now, without the benefit of the Bill in all its detail, all we can say is - what a great bunch of ideas! In fact, some of these are not so different from those we've suggested in our recent report on our own legislation. From our report:

The most significant way the Act undermines tenants’ housing choices is by allowing landlords to end tenancies without grounds. Section 84 of the Act allows a tenancy to be terminated with only 30 days notice at the end of a fixed term, and section 85 allows a periodic tenancy to be terminated with 90 days notice, without requiring a specific reason. Landlords do not need to prove or even justify their reason for termination – they simply hold the right to end tenancies on their say so. 

Put another way, tenants can be made to move – at considerable personal and financial cost – without a good reason. Or, as is more likely, for a bad reason, because there is always a reason to end a tenancy. These provisions become landlords’ trump card, and tenants are acutely aware of this. In our 2014 Affordable Housing Survey, 77 per cent of respondents said they had put up with a problem, or declined to assert their tenancy rights, for fear of an adverse consequence. 

But it’s not just a question of whether tenants will baulk at raising concerns with a landlord. It is a common occurrence for tenants to receive a notice of rent increase with a no-grounds notice of termination in the same envelope, inviting them to choose which one they prefer. Nor is it unusual for tenants who take their landlord to the Tribunal, on matters of performance of residential tenancy agreements, to receive a no-grounds notice of termination some time thereafter. We are aware of one occasion where a real estate agent served a no-grounds notice of termination in the lifts on the way out of the Tribunal; and another where an agent drafted a no-grounds notice of termination and handed it to the tenant before the Tribunal member had finished delivering a decision on an application for repairs. 

The ‘termination without grounds’ provisions affect more than just whether tenants can make informed choices about where they will live, and for how long. They serve as a constant reminder to tenants that their hold on property is tenuous, and only ever at the will of the landlord. They actively undermine the objective of ensuring tenants are empowered to enforce their rights. 

The TU proposes a change to the Residential Tenancies Act 2010 to amend sections 84 and 85 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 affected without displacing a sitting tenant? Such a question should be subject to rigorous oversight by the New South Wales Civil and Administrative Tribunal, and the Tribunal should have discretion to decline to make termination orders where appropriate. This discretion should be available to the Tribunal even where a landlord’s grounds for termination are made out, in circumstances where the tenant’s need to remain in occupation outweighs the landlord’s need to recover possession. 

This expansion of grounds would be in addition to those that already appear in the Act, such as the tenant being in breach of the residential tenancy agreement (for fixed term and periodic tenancies) and where vacant possession is a condition of sale (for periodic tenancies). We note this would build upon and improve the model in the Tasmanian Residential Tenancy Act 1997.

... and, we now note, our proposal is in keeping with the Government of Scotland's programme for 2015-16. If the NSW Minister for Innovation and Better Regulation - who has responsibility for Fair Trading as part of his portfolio - doesn't act quickly on this one, he might just be playing catch-up before too long.