Five key changes to social housing laws

In October 2015, NSW Parliament passed the highly contentious Residential Tenancies and Housing Legislation Amendment (Public Housing - Antisocial Behaviour) Act - affecting the rights and obligations of all social housing tenants in NSW, and restricting the capacity of the Tribunal to consider the evidence before it. Strictly speaking, these changes have applied since enactment. But FACS Housing will begin actively using the new rules against public housing tenants from today, having published a new operational policy to guide its decision making in this regard. Community housing providers are expected to do the same in the near future. 

Strike notices are an important component of the new laws

Many of the new rules are highly complex. So The Tenants' Union has put together a guide to the five most important changes for tenants, community advocates, support persons - just about anyone who is not a lawyer - and reproduced it in full here. Any tenants contacted by their housing provider regarding the new laws should also contact their local Tenants' Advice and Advocacy Service for assistance as soon as possible.

1. Strike notices

Social housing landlords can use a system of three ‘strike’ notices. These are letters issued by the landlord to the tenant when the landlord believes the tenant has breached the tenancy agreement, but the breach is not serious enough to terminate the agreement.

A strike notice is only an allegation against the tenant. But if a tenant has received two notices in a 12-month period, the landlord may seek termination of the tenancy from the Tribunal instead of issuing a third strike.

FACS Housing’s policy is to issue strike notices against tenants for alleged antisocial behaviour (for example, hosting a loud party where bottles were thrown onto the street). But the new law allows social housing landlords to issue strike notices for any alleged breach.

Allegation letter

FACS Housing’s policy is to first send the tenant a letter concerning the alleged breach. This letter describes the alleged conduct and provides the date it is said to have occurred. It invites the tenant to attend an interview to discuss the allegation. The tenant should attend this interview, or immediately contact FACS Housing if they are unable to attend at the nominated time. A tenant should take an advocate or support person to the interview.

The law does not require landlords to send an allegation letter, and community housing providers may choose not to.

Warning notice

If FACS Housing decides that the tenant has committed the breach, and the tenant has not received a strike notice in the previous 12 months, it will issue the tenant with a warning. This does not count as one of the strikes required to seek termination of the tenancy at the Tribunal.

The law does not require landlords to issue a warning notice, and community housing providers may choose not to.

Strike notice

If the landlord decides a tenant has committed a breach - and in the case of a FACS Housing tenancy, the tenant has already received a warning notice in the last 12 months – it may issue the tenant with a strike notice. 

The letter must describe the conduct, provide the date it is said to have occurred, and explain why the landlord thinks this was a breach of the tenancy agreement. It must also allow the tenant to write to the landlord to dispute the strike notice and ask that it be withdrawn. Disputing a strike in this way is useful in any later termination proceedings (see 'Termination for three strikes').

Review of a strike notice

If a tenant has written to the landlord to dispute a strike notice, and the landlord has decided not to withdraw it, the tenant may ask for the strike to be reviewed by a separate panel. The landlord must allow the tenant at least 21 days from its decision not to withdraw the strike to ask for a review. The review panel can confirm a strike or require the landlord to withdraw it.

FACS Housing uses the Housing Appeals Committee as its review panel. Community housing providers are expected to do the same.

Termination for three strikes

If tenant has received two strike notices in the previous 12 months, the landlord may issue a notice of termination to the tenant instead of a third strike. This allows the landlord to apply to the Tribunal for orders terminating the tenancy for the three alleged breaches.

The Tribunal may not be able to consider all the evidence regarding strikes one and two when deciding whether to order termination. If the tenant did not write to the landlord to dispute strikes one and two, the Tribunal may be forced to accept that the breaches occurred.

2. Neighbourhood impact statements

Social housing landlords can provide a 'neighbourhood impact statement' to the Tribunal when seeking termination of a tenancy for breach of an obligation under the tenancy agreement. This is a summary of statements made by the tenant’s neighbours about the effect the tenancy has had on them. The Tribunal must consider the contents of a statement when deciding whether to order termination, but does not have to agree with it.

A statement can only be provided after the Tribunal has found that a breach occurred. It cannot be provided as evidence of the breach.

Contributing to a statement

Neighbours asked to contribute to a neighbourhood impact statement should be aware that the statement, and the Tribunal proceedings it is used in, may identify them as participants. Although the law requires the landlord and Tribunal to make efforts not to identify participants, it does not guarantee anonymity.

3. Mandatory termination

When a social housing landlord applies to terminate a tenancy for some types of illegal use of the property, damage to the property, and injury to a neighbour or landlord's representative, the Tribunal is now required to order termination of the tenancy if it finds that the conduct occurred. There are limited exceptions for especially vulnerable tenants, and tenants with children who would face hardship if evicted.

These changes are highly complex. The consequences for affected tenants will vary greatly depending on the alleged conduct and the circumstances of the tenant and other residents.

4. Repairs certificates

Social housing landlords can provide the Tribunal with a certificate of costs, when seeking reimbursement for repairs to damage to the property that the tenant caused (or allowed others to cause). The Tribunal must accept the certificate as proof of the reasonable cost of the repairs.

Previously, a tenant could accept responsibility for damaging their property, but argue that the landlord’s costs were unreasonably high.

5. Landlord repossession

When the Tribunal orders termination of a tenancy, it must order that the landlord is to take back possession of the property in 28 days or less (unless ‘exceptional circumstances’ apply). Previously, the Tribunal could order repossession at a later date. 

Let's walk the talk in Waterloo

Today's entry on The Brown Couch is by Julie Foreman, Executive Officer at the Tenants' Union of NSW. 

Last Thursday (February 11), I attended a public meeting on the redevelopment of the Waterloo public housing estates hosted by Jenny Leong MP, one of two Members of Parliament representing the suburb. Over one hundred local tenants attended. Also in attendance was the Social Housing Minister, Brad Hazzard MP, shadow Social Housing Minister Tania Mihailuk MP, and FACS Deputy Secretary Southern Cluster, Paul Vevers. I was heartened by the level of interest and attendance by all stakeholders.

Can the Government balance competing interests and walk the talk in Waterloo?

Tenants expressed anxiety and confusion about the announcement. The following snippets capture the questions and concerns raised:

“Is my home being demolished?”

“When will I be moving?”

“Where will I be moving to?”

“Will I get a like-for-like house when I move?”

"Why do I have to lose my home, my community, my security?"

“I feel like my life will be on hold for the next 5 years."

“How are you going to deal with all the extra parking needed?”

“I am afraid of moving away from my health supports and friends”

“Will you cover my moving costs?”

“Why didn’t you take the last 10 years of consultations into account?”

“You just sprung it on us before Christmas with a flyer under my door!”

The Minister suggested to participants that meetings such as these just scare and raise anxiety. I believe they reflect honest and real concerns.

Unfortunately, the issues raised do not surprise me – they are what I have heard at every gathering (large, small or one on one) of social housing tenants facing or experiencing redevelopment. I heard it in Riverwood, Bonnyrigg, Minto, Claymore, and Ivanhoe. This is not to deny that there are also some tenants who want to move, in the hope of changing their overall circumstances.

What did surprise me was that FACS Housing and the Minister had not anticipated this response, and adjusted their usual announcement process accordingly. The public housing agency has been through this a number of times, and assures us over and over that they have learnt from their mistakes. 

The Minister did assure us at the meeting that he would make sure those affected in Waterloo would be treated sensitively, and be consulted at every step along the way. I am not yet cynical enough to believe that he was just ‘talking the talk’ and not prepared to ‘walk the walk’. That is because Minister Hazzard and Mr Vevers did make some commitments. He agreed that additional supports for tenants would be needed during this period. He agreed that with a local, annual turnover rate of between 8-9% of public housing tenants, those affected by redevelopment works could be rehoused within the area as works progressed. He indicated that he would personally hold regular, local consultations. And he said there would be no rush to relocate tenants. He even committed to answering questions raised at the meeting at a consultation he is to host this week.

So here at the TU we have put together a list to help all of us - tenants, FACS Housing, Minister Hazard, and community organisations - ‘walk the talk’, and thus increase the prospect of sensitive, appropriate and effective redevelopment. Collective learning from research commissioned by FACS Housing, built on consultations over a number of years with tenant groups and the non-government sector, informs the list:

- Acknowledge the strengths and history of the existing community;

- Progressively move people within the estate as new buildings are constructed;

- Undertake a social impact assessment to inform the best plans and processes for tenants and their communities;

- Fund additional supports and independent tenant advice while maintaining funding of existing services and supports;

- Include genuine community empowerment and involvement at appropriate levels;

- Don’t give undertakings that cannot be met;

- Make available past plans or reports on consultations, to enable tenants to participate in informed discussions;

- Make sure communication is clear, regular and takes place in different forms;

- Provide additional training and support to FACS Housing staff tasked with working as relocation officers. This training should include presentations from tenants who have lived through the experience of redevelopment in other areas;

- Undertake ongoing evaluation;

- Follow up and support tenants that have moved;

- Carefully consider allocations to ensure they are appropriate;

- Listen to tenants and treat them with respect! This sounds easy but is anything but if really taken seriously.

Similarly, research and past experiences have provided evidence on practices to avoid – worst practice principles, if you like. So on this note, be sure not to engage in:

- Tokenism in forming partnerships and building community involvement;

- Short-term 'quick fixes'. Good outcomes take time;

- Public representations and narratives of disadvantaged locations, which entrench the problem by exaggerating an area's dysfunction;

- Actions which merely displace the problem. Projects that merely move people to new locations do not solve problems of poverty and disadvantage.

Read more about what the experts say about best and worst practice in redevelopments here.

Paying landlords to borrow more money

Imagine for a moment that a new political party has formed - let's call it the Property & Real Estate Party, or PREP for short. As the name suggests, this is a party for landlords and the people who work for them.

Leader of the fictitious Property & Real Estate Party, Ms Nora Morse

Now let's also imagine that PREP will be fielding candidates in the next federal election, and the Brown Couch has interviewed their leader, Ms Nora Morse, about their headline policy - paying landlords to borrow money so that property prices continue to go up.

BROWN COUCH: So, Ms Morse, thank you for joining us today...

NORA MORSE: Thanks for having me, it's a pleasure.

BC: Can you tell us a little about your plans for the residential property sector?

NM: Well, Couch, it's not just for the property and real estate sectors - our plan is for everybody. What we're proposing to do is to take money out of consolidated revenue and pay it directly to anyone who is well off enough to own houses, to encourage them to keep borrowing and buying more houses. This will be good for property owners because it will make sure there's always new demand for their houses - in terms of both renters and buyers - and it will be good for the banks, because it will keep money cycling through their systems...

BC: Will it be good for tenants?

NM: Well, no... but then things so rarely are. Tell you what, they could buy a house instead... then they could get hold of some of the money we'll be handing out, take it to the bank and buy more houses.

BC: Okay let's talk about that for a minute. How will tenants buy a house if property prices continue to go up?

NM: Well, perhaps the first thing they need to do is stop buying so much coffee. Did you know that if every poor person in the country stopped spending money on coffee they'd be able to save about $15 a week? That's a lot when you think about it over the life of a mortgage...

BC: Hmmmm, yes I suppose it is. But what will become of our barista friend over the road there if he loses all his customers...?

NM: Well, he might have to buy a house so he can get hold of some of your money instead. That's part of the beauty of our plan - we'll be giving away your money so that you don't have to...

BC: Okay, but if he doesn't have a house in the meantime, he'll have to pay rent to someone, right?

NM: Oh, yes, of course. You don't think we're going to let people live in our houses for nothing, do you? I mean, these things don't come cheap. Not even with all the free money we'll be handing out...

BC: The money you'll be handing out to make sure property continues to become more and more expensive?

NM: Exactly! We can't have houses declining in value. Too many people with too many houses have far too much to lose...! No, what we need is house prices to continue to go up, so that people will always want to buy more houses because that's how you can be comfortable in your retirement. By giving away some of your money to landlords we'll simply be encouraging what is already the natural way of all things...

BC: But... as property prices go up, won't that make it harder for people to buy more houses? Even the ones who already own a few?

NM: Oh, yes, I suppose you could say that. It certainly would be a problem if prices stopped going up, though. People would actually have to start paying off their mortgages instead of just pointing to the balance sheet and saying "I'm rich!" But we'll let the banks sort all that out.

BC: Let's get back to prices always going up... Doesn't that mean that people have to keep borrowing higher and higher amounts to buy houses?

NM: Well, yes... but that's very good for the banks... and that's why we'd like to give more of your money to landlords...

BC: But wouldn't that mean that it will be harder for owner occupiers to compete with them?

NM: Yes, I suppose it would. But you don't actually need to buy a house to live in one - you can live in someone else's. As long as you're prepared to pay the rent, of course. And it's better not to buy houses to live in because they're much more profitable that way... When we're elected we can start paying landlords too, as we're proposing, so it will become even more attractive to own houses not to live in.

BC: But what about the people who can't afford to buy a house to begin with?

NM: Well, like I said, they could make some sacrifices and save up...

BC: Do you think you could put the rent down a little? That might help...

NM: Oh, goodness me, NO! We couldn't afford that! Don't you know how much it costs to keep house prices on a constantly upward trajectory?

BC: What do you mean?

NM: We have to pay the interest, Couch! You don't think the banks are just giving their money away, do you? No, no, no, no, no... giving money away to people who own houses is a role for government, not the private sector!

BC: Can you elaborate a little?

NM: Well, every time a house price goes up, so does the amount someone has to borrow in order to buy it. Interest rates are already at record lows, so there's really no room for the banks to move on this. We're already paying billions of dollars a year to the banks in interest, so you see we can't put the rent down. We wouldn't be able to afford to buy more houses if we did that, and that would be devastating for house prices which of course would not be good for anybody...

BC: Okay. So how would giving money to landlords help here?

NM: Well I'm glad you asked, Couch. Seems we might be finally getting somewhere here. It's very expensive to buy houses, and it's not just the one-off expense of coughing up the deposit for a loan. As I've explained, keeping a house is almost as hard buying one, when it comes to the cost. The interest, Couch! The interest! It's crippling! No clear-minded person would enter into such servitude with a bank unless you paid them to! Which is why we think the government needs to give them more of your money, and that's why we'll be running in the federal election later this year...

BC: Okay, one final question. If house prices keep going up, wouldn't that mean the amount of money government would have to pay landlords would also continue to go up, just like rents?

NM: Yes, well, we all need to make sacrifices for people who own houses, Couch...

BC: Ms Nora Morse, thank you very much for your time today. Best of luck with your campaign.

NM: No Couch, thank you. Now, can I interest you in a tidy three-bedder only a hop, skip and a jump away from local tips and open cut coal mines...? Think of the employment opportunities for your tenants' children!

The significance of Sirius

You may recall our postings on The Brown Couch on 21 November 2015 called 'Get serious about Sirius' and on 4 February 2016 called 'Endgame for Millers Point?'. In the latter article we noted that relocating displaced Millers Point residents to the Sirius Building remains an option for Government, should they choose to pursue it.

You may also recall that the Heritage Council of NSW spent the last quarter of 2015 considering the heritage value of the Sirius building. Well, they have just placed the minutes of its meeting on 2 December 2015 on the Internet. Its members unanimously made a series of recommendations to the Minister for Heritage for the listing of the Sirius Building.

Members noted the association with the Green Ban Movement. The Sirius Apartment Building is an embodiment of the outcome of the Green Bans in The Rocks which also led to the creation of the Heritage Act 1977 and the Heritage Council. They noted the aesthetic significance and rarity in social housing context of the Sirius Apartment Building and the unique circumstances associated with historic events that occurred in this particular place. They noted the site is a rare physical remnant as a purpose-built social housing project in The Rocks area, as other accommodation reused private housing. They discussed each criterion in detail and requested that the historical and association links to the Green Ban Movement be added to the rarity criteria.

Members reached a unanimous view that the item does meet the criteria at a state level, based on information provided by experts. They agreed to recommend the listing to the Minister for his decision. They resolved that the Heritage Council of NSW:

- Considers that the Sirius Building is of state significance, for its aesthetic and rarity values
- Advises the Minister that the Sirius Apartment Building is of state heritage significance
- Recommends that the Minister direct the listing of the Sirius Apartment Building on the State Heritage Register
- Directs the Heritage Division to work with the Owner to prepare site specific exemptions in accordance with the Heritage Act 1977, for future Heritage Council recommendation to the Minister

The Council has also suggested the building could be "sympathetically" modified for new and mixed uses, so the Sirius Building could be lost to the public housing portfolio, and Sydney's social mix diluted, even if a heritage listing is achieved.

The residents of Millers Point await the Minister's next move.

You can read the complete recommendations here (see Agenda Item 5.2 on pages 6, 7 and 16).

Scotland set to fluff it?

Back in September we saw that the Scottish Government was getting set to move on their 'no-fault' ground for eviction. But as the story develops, it's starting to look like a study in how not to reform renting laws for the better. A number of new grounds to end a tenancy are being considered in Scotland, to replace the "no fault" provision. These include where the landlord intends to sell, move a family member in, or use the property for a non-residential purpose. Termination would be mandatory if these grounds are used.

In commenting on the proposed changes, Shelter Scotland urged the Government to consider a "reasonableness test" to ensure the new grounds for termination would not simply become a tick box exercise for private landlords. And a solicitor from the "independent, community controlled" Govan Law Centre, Mike Dailly, said:

What we will see in Scotland is evictions where landlords 'intend' to move in a member of their family, put the property on the market for sale, refurbish or stop letting. These intentions will guarantee the automatic eviction of tenants, but we all know most of these intentions will never materialise.

We're inclined to agree. From what we've seen, the Scottish proposal gets it wrong on two counts - the grounds for termination are mandatory, and they are too vague.

A good renting law would give landlords a number of reasonable grounds upon which to end a tenancy, while ensuring that tenants can ask a Tribunal to consider both the veracity of the ground relied upon, and whether there are any other circumstances that should be taken into consideration in any specific case. Tribunal orders that terminate a residential tenancy agreement should always be discretionary, even where the grounds for termination are made out. When it comes to ending tenancies the stakes are higher for tenants than for most landlords - it's far more disruptive to have to find a new home than to make adjustments to dealings with property. But, in order for this discretion to be meaningful, grounds for termination should go beyond a mere intention.

The experience of tenants in Tasmania paints a useful picture to illustrate this. The Tasmanian law says a tenancy can end because "the premises are to be sold or transferred to another person". In the Autumn 2015 publication of their newsletter Rent Rant, the Tenants' Union of Tasmania wrote about their provisions:

One ground is that the premises are to be sold. However, what exactly does the phrase ‘the premises are to be sold’ mean? According to one recent decision of the Magistrates Court, the definition includes an intention to sell. If this decision is adopted by all Magistrates there is a range of activities that an owner can engage in to satisfy the requirement that a residential property is to be sold ... In a case recently heard by the Magistrates Court a tenant was served with a notice to vacate and disputed it, as the owner had neither signed a sale contract nor advertised the premises in any way. However, there had been an agreement made with an agent to sell the property for the owner, signed by both owner and agent. They agreed on selling the house vacant. The Magistrates Court subsequently found that the notice to vacate was valid and made an order for vacant possession.

The Tasmanian legislation also gives discretion to a court when making vacant possession orders, around whether the reason for giving notice was "genuine or just". But if the ground itself can be reduced to a vague notion of intent rather than action, it does not lend itself to useful consideration of this discretion.

This contrasts with our own law in New South Wales, which says a tenancy can end "on the ground that the landlord has entered into a contract for sale of the residential premises under which the landlord is required to give vacant possession of the premises" (our emphasis). It also gives the Tribunal discretion, so that if a landlord enters into a sham arrangement for sale - and the Tribunal becomes satisfied of this during termination proceedings before it - the Tribunal could decline to end the tenancy.

The New South Wales Government is currently reviewing our own renting laws, and the Tenants' Union is calling for the removal of terminations without grounds. Our position includes the expansion of grounds for termination, along with the retention of tenants' ability to test grounds for termination in the Tribunal. Grounds need to be specific, along the lines of the NSW current renting law's ground that the property is for sale. Grounds need to be contestable, such that a tenant is given the opportunity to request evidence in relation to the landlord's actions. And where appropriate, the Tribunal needs to be able to decline to make termination orders even where the grounds are made out.

We might now be looking to Scotland as an example of how not to proceed. On this point, we'll give the last word to the Govan Law Centre:

We had really hoped the Scottish Government would have listened to the advice of the Scottish Parliament's Committee, which had carefully considered evidence from a wide range of tenant bodies, homelessness charities and advice agencies, and cautioned against these mandatory grounds of eviction. Sadly they have sided with the interests of private landlords; and of which many elected members are.

313,000 people MPs should listen to instead of the Property Council of Australia

This week we saw a not-at-all veiled threat from the Property Council of Australia to Members of Parliament in marginal seats. That threat was very simple: don’t touch negative gearing, or we will do you in the next election.

Pearl from the Property Council wants to get paid.

“That’s enough voters to swing all of these seats eight and half times over, a big political risk to take with people with a lot at stake.”

“Australians already pay $72 billion a year in property taxes – and property owners don’t want government’s hands reaching even deeper into their pockets.”

-Property Council Chief Executive Ken Morrison

We’d like to provide those MPs with some other people who might easily sway an election, though they’ll win their vote with kindness and good public policy. We've some suggestions on our policy platform for social housing, and affordable housing across NSW and the nation.

(Note - we give no guarantee as to the accuracy of the Property Council's data on votes needed, but the bits we've added have come from the 2011 Census records...)

Social housing tenants- easily more than enough to change these results.

Private Renters- unsurpisingly, many more private renters than negatively geared investors!

In just these 20 seats there are 312,978 people the government could listen to instead of the Property Council of Australia when deciding housing policy. We'd also point to our own affordable housing recommendations and those of National Shelter.

In the media release and subsequent articles we also saw a couple of tired tropes trotted out – first:

"There are 840,000 Australians with taxable incomes below $80,000 a year who are negatively geared."

That may well be true, but it's meaningless. We’ll refer the Council back to this excellent piece from Michael Janda, who examines the claim that it is Australians with taxable incomes below $80,000 a year who mostly benefit from negatively gearing - essentially, they're able to reduce their taxable incomes by claiming a whole bunch of tax deductions, through schemes like negative gearing!

The AFR article also suggests the Property Council will argue negative gearing “keeps a lid on rental costs and house prices” - which is interesting, given that in our 5 year report on the Residential Tenancies Act 2010 we found that rents have risen much faster than landlords' costs (where negative gearing is most likely to have an impact). Perhaps the Council could pass the message along to its constituents that they are supposed to be holding back on rent increases? It appears to have been lost in the mail.

Endgame for Millers Point?

For the last couple of years the residents of Millers Point, Sydney have faced an uncertain future. Recent developments point to an emerging clarity, although not for the better.

On 19 November 2015 we said:

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.

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?

At 3 February 2016, 314 of the 398 tenancies within properties marked for sale by the NSW Government have been vacated. Of the remaining 84, 70 are public housing tenants who deal directly with Housing NSW, 5 are community housing tenants and 9 are tenants whose properties are managed by a real estate agent.

At the time that applications closed for the 28 properties referred to above, 21 applications had been received. In the week ending 29 January 2016 letters of offer were sent to 19 of these applicants. If the offers are accepted and with two of the properties currently occupied, then 22 of the properties will be taken up. No decision has been made regarding the remaining 6 properties. Successful applicants will have the opportunity to visit a display unit established in one the properties to choose their furnishings.

Many of the older people in Millers Point did not make an application for one of these properties, despite their having been withdrawn from immediate sale, because of their particular needs and the ongoing detrimental effect on their health posed by a forced relocation. The reasons for this are simple: these properties are unsuitable to older folk. Most are small, one bedroom apartments. Many have internal stairs. For those at the corner of Kent and Argyle Street, to put out the washing is a major hassle. It would requires leaving their unit and walking to a common area down a sloped footpath in the street.

On 1 February 2016 residents who had not applied for one of the properties received a letter from Family and Community Services stating it will commence making 'formal offers of alternative accommodation outside Millers Point area as defined in the Department of Family and Community Services relocation policy' and 'the practice of making informal offers of properties will now end'. This implies that Housing NSW is about to invoke the procedures spelt out in Sections 148 to 151 of the Residential Tenancies Act 2010. This the part of the Act which spells out the process that a social housing provider must follow if they wish to evict a social housing tenant who refuses to move to alternative housing. To date few social housing landlords have utilised this provision in the Act. Is this the endgame?

The sale of housing stock has been a goldmine for the government. Indeed, by the end of 2015, the NSW Government had raised $116 million from the sale of 47 out of the 250 Millers Point properties set to go under the hammer. Far more than expected.  Read more about the $3b sell-off here, courtesy of the Sydney Morning Herald... and for the NSW Government's own link on Millers Point, click here.

The NSW Government remains intransigent on providing the remaining older residents a real choice, which would allow ageing-in-place for residents in their current homes. The alternative, which is supported by the residents, is retaining some of the units within the Sirius Building and workers cottages to maintain a semblance of a social mix. After all, that's part of the recognised value of the Miller's Point community.

You will recall that the Tenants’ Union’s submission to the NSW Legislative Council’s ‘Inquiry into Elder Abuse in NSW’ in November 2015 argued that what has been happening to older people in Millers Point can be seen as a form of elder abuse. You can read more here.

Again we say: NSW Government, you can do better than this!

Postscript: On 12 April 2016 residents received a further letter from Family and Community Services which again spoke of making a 'formal offer'. 

Frustration or breach for Lidcombe tenants?

A Lidcombe apartment complex suffered extensive damage to its roof during a storm this week - reports suggest it may be uninhabitable for months. So arose the question of remedies for affected owners and tenants. Whilst compulsory insurance for the strata corporation should ensure owners are covered for 'loss of rent' - that is, alternative accommodation as needed and actual rent forfeited - it may be of no use to tenants.

The roof in question

Our Senior Policy Officer Ned was quoted in Fairfax Media as saying the issue of tenant remedy is "...a tricky one. There's a question about the circumstances under which the tenancy might end, and there's questions around the circumstances under which a tenant might recover costs of damaged furniture and items." 

By way of clarity, such issues may be cause for either 'frustration' of a tenancy agreement, or action arising from a breach of the landlord's obligations under the Residential Tenancies Act 2010.

Section 109 of the Residential Tenancies Act provides that a landlord or tenant may serve the other party with a notice of termination on the ground that the residence has become wholly or partly uninhabitable due to no fault of either party. For example, a residence maintained in a reasonable state of repair may suffer damage due to a thunderstorm. A notice served under Section 109 need not provide any minimum notice period and may be issued in either a fixed term or a periodic agreement. Such action implies no breach of the tenancy agreement by either party, and precludes further discussion about compensation for any loss arising.

On the other hand, section 63 of the Act provides that it is the landlord's responsibility to provide a tenanted residence in a reasonable state of repair. So, for example, a landlord may fail to provide a residence with a roof in reasonable repair, which may only become apparent after a bout of severe weather. This would mean the tenant has suffered a detriment as a result of the landlord breaching his or her obligations - potentially giving rise to not only termination rights for tenants, but also a compensation claim for any economic loss suffered.

To add a further complication - a landlord might try to avoid the obligation by pointing to a strata manager, saying "it wasn't me, it was them". But just as a landlord may be liable, under a residential tenancy agreement, for the defective work of a plumber or electrician with whom they have contracted, so too are they responsible for work carried out by or on behalf of their owners' corporation.

Of course, we don't claim to be privy to the details of the Lidcombe case. But it's worth noting that there is more than one way situations like this may play out. Affected tenants should visit www.tenants.org.au to view our factsheets on storm damage, repairs and maintenance and renting in a strata scheme. For further information tenants can seek free advice from their local Tenants' Advice and Advocacy Service.