In/formal housing - is more formality the answer?

This is the text of an address I gave to the Housing Theory Symposium 2019 on 30th May. Thank you to the organisers, Dr Jathan Sadowski whose tweet is linked below and Dr Sophia Maalsen, for the invitation. For those who were in the room, there may have been hesitation, repetition or deviation from these written notes which I have not adjusted to reflect.

The 2019 Housing Theory Symposium on in/formalism is in full swing! We have a brilliant keynote session with housing advocates @LeoPatRoss and @shelternsw, with @Planosopher launching a policy report on housing informality and vulnerability. pic.twitter.com/mnnhyHvsv8

— Jathan Sadowski (@jathansadowski) May 30, 2019

Thank you for inviting me to speak today. I’d also like to acknowledge that we have gathered on unceded lands of the Gadigal and pay my respects to elders past and present, and extend those respects to any Aboriginal or Torres Strait Islander people in the room. It’s significant we are meeting in National Reconciliation Week whose theme is Grounded in Truth – a demand for a truth-telling that will allow all the people of this land to move forward together.

Australia has historically and continues to be adept at ignoring the suffering of people who it doesn’t really consider full citizens, and even furthering injustice through that wilful ignorance. While incomparable to the racially motivated horrors of Australian-Aboriginal relations, people who rent their homes – especially at the fringes of the private rental sector – suffer shades of this ignorance and lack of truth-telling – or perhaps, a lack of listening to the truth being told. Like water, and like housing, truth can be hard to grasp.

I’m to sketch out the housing landscape - I’m going to take a pretty broad view of that brief and sketch out some thoughts on how we have forgotten many people who rent their home.

An important part of how we construct informal housing is the support of the state for it. A property owner has the full weight of government seeking to enforce their right to housing, and profit.

Renters live under a patchwork of protections. The most formal tenants have legislated contracts, though with significant scope for customisation and therefore uncertainty and informality. There are some penalties where landlords fail to comply with the terms of the Act, but these are practically never applied.

So while landlords retain the weight of government to enact evictions and recover money, the vast majority of enforcement of the Act by tenants is by tenants. And where they do seek to enforce rights, they are subject to eviction, whether actual or the merely the possibility, in retaliation. The only real moderator of behaviour is the market - the risk of vacancy. An unreliable mechanism to be sure.

This is the best case scenario. Once you leave the Residential Tenancies Act, you may be covered by the Boarding Houses Act. You may be covered by the Australian Consumer Law if your landlord is considered to be in business. You may be covered with very little protection by the Landlord and Tenant Act of 1899. A very small number are still in rent-controlled premises under the amendment in 1948. But many, even tens of thousands are covered by no legislative scheme at all.

But should we simply seek to formalise?

Many of you would be familiar with the Commonwealth Housing Commission quote from the 40s:

“We consider that a dwelling of good standard and equipment is not only the need but the right of every citizen – whether the dwelling is to be rented or purchased, no tenant or purchaser should be exploited for excessive profit.”

We have fallen a long way from the promises of those early housing policies, as imperfect as they might have been. But I wanted to remind us all that much of the work of the CHC was in slum-clearances. This was absolutely the informal housing of its time and it is striking the similarities to much of the informal housing we’re seeing today and I know will be in some of the upcoming presentations.

Public housing at arguably its peak was often built on formalising the informal. While we might say it was necessary because of the conditions of that informal housing, we also should acknowledge that sometimes the people living in the slums weren’t able to access the public housing that replaced it because it was too expensive. Formalising the informal does not always achieve what we might assume.

There’s a few more examples I’d like to touch on in this vein.

A few years ago, if you wanted to travel the world on the cheap you could do a hostel or if you knew people in the area you might be able to couchsurf. Famously, that is the origin story of Airbnb. We are watching as it evolves from an informal activity to commercial and now becoming embedded in the legal system.

Over the last 25-30 years we’ve seen community housing groups evolved from local activists and social workers responding to community needs (and government neglect) to bureaucracies embedded very much in the formal structures, utilising heavy-handed state powers to manage their tenancies and gradually losing the local, responsive nature which was the basis for many people’s support for growing the sector.

Share-housing, what some may argue is the highest form of informal housing in Australia at least, where people report forming lasting friendships and de-facto families as they step in to adulthood, is also becoming commercialised through companies like Cocoon turning the sharehouse life into a curated experience - for a price.

Boarding houses, another long-standing sector which floats between the edges of formal and informal housing, is transforming - real estate agents increasingly manage who enters the house blocking some people who have relied on the sector for years. Emerging models like the micro-apartments known as new-gen boarding houses, build-to-rent, iglu, urbanest, all arguably take different features of boarding houses at different times in their history and seek to formalise them.

But we still have a problem - so how do we address it? I’d suggest that what was missing in 1940s, and is still missing now, in all the housing types I’ve mentioned is centring the needs and desires of people living in these homes. More than infrastructure, housing is an essential service. Like water, electricity, government has an obligation to ensure housing gets to people where, when and how they need it.

Like water, if we do not get the supply of housing right, it will get to people in uncontrolled ways, providing too much to some and preventing others from getting enough. Along the way, some of it might get tainted and become unhealthy, unsafe. There will always be luxury water, sold in little bottles. But if we ensure cheap tap water continues to flow then those who need it will never go thirsty.

Residential Tenancies Act in review - positive change, and more of the same...

Today the Minister for Innovation and Better Regulation, the Hon. Victor Dominello MP, tabled a report in Parliament outlining the findings and recommendations of the statutory review of the Residential Tenancies Act.

On the floor of parliament today - the review of the Act sees the light of day

It's a bit of a mixed bag, but it contains no big surprises. There are 27 recommendations - some specific, some broad, and some suggesting there's more work to do before reform options can be put forward. Disappointingly, these reflect some of the most important issues - security of tenure, and the coverage of the Act for people living in shared rental housing.

On the other hand, the report recommends a suite of changes that would make it easier for victims of domestic violence to leave a co-tenancy, and ensure they cannot be held liable for damage caused by a violent co-tenant. For this, the authors of the report should be congratulated.

Of the remaining recommendations, most could be described as positive - sensible, even - but there are a couple in there that we might prefer disappeared quietly.

There is no indication of how and when the report's recommendations will be progressed.

We'll start getting into the detail of it as soon as we can. In the meantime, we extract the key part of the report's executive summary:

The major area where amendment is needed is in relation to the protections in the Act for victims of domestic violence. The review recommends a number of amendments to make it easier for victims to either leave a violent home or end the tenancy of a violent co-tenant without financial penalty, and to avoid being penalised for damage caused by domestic violence. 

The review also explores the issues of security of tenure and protections for occupants of share households. These issues featured heavily in submissions from tenants' advocates and the review recommends further work on these topics. 

The review also recommends minor amendments in the areas of:

• pre-tenancy disclosure requirements

• condition reports

• interest paid on bonds

• Rental Bonds Online

• water and utility charges

• repairs

• alterations

• break fees

• tenancy databases and

• electronic service of notices and signatures

For a copy of the full report, see here.

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.

Happy anniversary, Residential Tenancies Act - part 3

Here on the Brown Couch we're still celebrating the 5th anniversary of the Residential Tenancies Act 2010's passage into law - even though it's been more than a month since the actual date. We're excited because this anniversary means the Act must now be reviewed, and while it does have some good parts we reckon it needs more than just a tune-up.

It's a bit of a fixer-upper...

We started our celebrations with a look at the policy objectives or the Act, and we discussed how the New South Wales rental market has changed over the last five years. As it happens, there's a whole lot more of it... more tenants, more rent, more landlords, more debt, more high prices, more tenants, more rent - you get the picture. Now this might come as a surprise to some, such as those who suggested the market might dry up if, for example, landlords had to install water efficiency measures before passing on water usage costs to tenants. But it's no surprise to us.

And it's no surprise that tenants aren't doing as well as others out of it, either, given the architects of the Act set out to 'balance' the interests of those looking for wealth in the rental market with those who live in it. If such a balance is possible, or even desirable, it hasn't been achieved, and the New South Wales rental market remains a dangerous place to live. This can be fixed.

When the Act is reviewed, this question of balance needs to be revisited. Increased investment amid rocketing house prices over the last five years should give the NSW Government an incredible amount of comfort that shoring up the position of tenants will have no impact on landlords' appetite for more. Landlords will always occupy a position of relative power in their relationships with tenants - they own the property, they call the shots. Our renting laws should be designed to protect tenants from the careless, reckless or deliberate exercise of that power to their detriment, at the same time as ensuring they take responsibility for their own detrimental acts or omissions within this relationship. That's less about balance, and more about acknowledging how the power imbalance actually works.

There are a couple of key points where the Residential Tenancies Act completely fails to do this, and these should be the focus of its review. Most notably, the Act allows landlords to end tenancies without a reason, which makes the rental market extremely insecure for those who live in it. It also makes tenants very wary about how and why they approach landlords on questions of repairs and maintenance, or whether a rent increase is justified, or perhaps even how often they've been coming around to check up on the place...

The Tenants' Union says we should make ending tenancies without a reason a thing of the past. This will be very easy to do, by replacing the 'no grounds' provisions in the Act with a number of grounds on which landlords might genuinely need to end a tenancy. The question should be whether the landlord has a valid purpose that genuinely requires the property to be vacant, because displacing an established household should require nothing less than a good reason.

Then there are the provisions about repairs and maintenance. Currently, the law lets landlords off the hook too easily for failing to carry out repairs. Tenants can observe this in two ways: first, when they try to get repairs done; and second, if they try to end their tenancy because repairs are unsatisfactory. The problem is that landlords can avoid their repair obligation by showing they have acted with 'reasonable diligence' - which may sound fair enough on a first reading, but what it does is actually not fair enough at all. It moves the question of what the landlord has done to repair something away from the question of what else they could be doing, and places it instead within the question of whether there is a need to fix something at all. The Tenants' Union says this can be made better by moving the 'reasonable diligence' considerations to the question of remedy, rather than breach, when a tenant asks for repairs.

And of course, there are issues around how and when landlords can increase rents. We've been involved in quite a bit of talk about these issues of late, as have others. The law allows landlords to increase rents almost at will, leaving it up to tenants to put the brakes on rent hikes by showing them to be excessive. The Tenants' Union says this is not reasonable, as it is more often the case that landlords will have access to the kind of information needed to show such a thing. Instead, landlords should be required to show that a proposed increase is not excessive, if it is to exceed the consumer price index. For proposed increases that are below this index, it could remain up to tenants to show how they are excessive.

There are several other aspects of the legislation that should be given a seriously close look during the course of the coming review. These include the coverage of the Act, which expressly excludes a number of renters on the basis of the type of accommodation they rent, or the kind of agreement they have - and for most of these marginal renters there is no other statutory regime to give them consumer rights, or giving the Tribunal jurisdiction to mediate disputes with their accommodation providers. Included in this category are a growing number of share-house residents who might believe themselves to be tenants - and for whom the substance of their agreement with a head-tenant may give rise to such a belief - only to be left out of the Act because they have not committed to their agreement in writing. This needs to change.

Finally, there are the new provisions that regulate the use of residential tenancy databases. These are generally good, but they have left a few small gaps that need to be plugged so that database operators can't continue to exploit them. In particular, the definition of a residential tenancy database is too narrow; there needs to be a requirement to prove debts if they are to be the reason for a database listing; and database operators need to be discouraged, with penalty terms, from charging excessive fees to tenants who ask to see their listing.

Of course, after watching it, working with it, and living with it for nearly five years we know that many other parts of the Act could use a little attention. We've recently produced a detailed report outlining where we think more changes should be made, which you can download and share from our website.

The coming review is an opportunity for tenants and advocates to talk loudly about what we know - the big stuff, and the small stuff too. This opportunity may not come around again for some time, so let's make the most of it.

Let's make sure these questions continue to be asked: what do we like about our current renting laws? What needs to change? How do we bring about the kind of Residential Tenancies Act we want for New South Wales, where we live?

Life in a share house: from personality clashes to great parties

By way of introduction to today's article, a mini entry into the Institute of Tenancy Culture Studies. Many years ago the Sandman character shared his wisdom about living in a sharehouse, presenting a view of sharehouse living in line with the raucous, chaotic lifestyle portrayed in other Tenancy Culture Studies entrants like The Young Ones, or a possible future article, He Died with a Felafel in his Hand.

However, todays' real guest appearance is Glyn Mather, Residential Parks Project Officer at the Tenants' Union of NSW. Glyn looks a bit more seriously into the experience of living in a sharehouse. She shared accommodation for more than twenty years in about a dozen places and talked to several other people with different experiences.

You’re a student and you’re living in shared accommodation of some kind, probably because that’s what you can afford. There are problems and frustrations but also great benefits that mean you might decide to keep living like this for many years.

As someone who survived a variety of shared accommodation styles, I was interested to hear about other people’s experiences. I spoke to seven people who had shared for between six months and twenty years, in two to ten places.

It turns out that they were quite positive about sharing. Brian for instance said it meant that, “You could be sharing in a nice house instead of living in a poky bedsit.” They had met difficulties but generally these were outweighed by the benefits.

The most frequent problem raised was getting the bond back when leaving. Almost everyone I spoke to had stories to tell of either losing the bond or having to fight to get it back. Rhys put it this way: “They sting you at the end about the bond.” The best way round this is to make sure the ingoing condition report clearly lists the damage existing when you move in – this is well worth arguing about if necessary – and take photos of any damaged areas.

Personality clashes are also a concern, and “people’s personal habits” as Ed put it – but don’t be alarmed. There are indeed horror stories of people causing disruption and even fear in households, but those people usually end up moving out of the household. Remember though that you can contact the police or mental health services if you are concerned for your safety.

No-one felt they properly understood their rights as tenants, except for Milly who had sought out information, “because they kept our bond and wanting to know our rights after that.” When people strike problems they tend to discuss them with friends and family.

There is plenty of anecdotal evidence for payment of bills as a source of conflict and Ed said that, “there’s always someone who doesn’t pay on time.” This can be especially problematic if it’s your name on the utility account since you are then liable for any debt. Although leases are often done in multiple names, this is rare for utility accounts. There is little legal recourse here so the best approach is to establish a clear agreement from the beginning about how the bills will be shared, for example everyone could put in a certain amount each week or divide the bill equally when it is due.

The behaviour of landlords and agents may be an important factor in your life. For my sample there were two main sources of annoyance. One was interference, such as landlords turning up unannounced even though they are obliged to give notice. The other was maintenance, as Sara put it: “The property maintenance and repair were pretty sloppy in both places.” Brian had found that, “quite often the landlord wants to do it themselves and it’s not the best.” A further problem Milly raised related to a situation where each person paid their rent separately to the agent: “The real estate agent couldn’t keep track of it and we had no control over monitoring it inside the house.” 

Unless the situation becomes extreme, in all these cases the main solution is to hold your ground with the landlord or agent – you are entitled to live in a place in a reasonable state of repair, and have reasonable peace, comfort and privacy.

So far it all sounds like doom and gloom! But everyone I spoke to said the reduction in rent made share housing worthwhile overall as well as the capacity for pooling resources (such as electrical appliances) and the sharing of housework.

Then there are the social benefits such as “companionship” and “great parties”. People said, “it’s a lot of fun when it works”, “it’s like having an extended family”, “I get to expand my circle” and “meet new people”. There’s a great deal of pleasure in sharing our lives with others, not just co-residents but their friends too.

So find out your rights, establish ground rules for cleanliness, bills and the like, and test out the people you might live with before you begin if you can. But remember, “When it works it’s just fantastic, I wouldn’t have it any other way” as Rhys said.

For more info, check out the Redfern Legal Centre’s share housing survival guide: sharehousing.org and Factsheet 15, Share Housing, at tenants.org.au.

Is my share house a boarding house?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Queensland tenants asked to share public housing

More social housing news, this time from north of the border. Queensland public tenants have received a letter from the State's new Housing Minister, Bruce Flegg, alerting them to a 'crisis' in public housing: 'under-utilisation'.

According to the Minister, more than 8 700 public housing properties have two or more spare bedrooms, while 30 000 persons wait on the housing register. 'Such under-utilisation cannot be allowed to continue', Minister Flegg says.

Accordingly, the Minister proposes transferring tenants to smaller properties... or instituting 'voluntary shared housing arrangements'!

Getting people off the waiting list and into social housing is great, but not when it is done by asking those who are on just the next rung of the ladder to wriggle over a bit. It also overlooks the great untapped reservoir of housing that exists in the spare rooms of owner-occupiers.

This is where the greatest 'under-utilisation' happens, as the Australian Bureau of Statistics shows in its Housing Occupancy and Costs survey.

(Source: ABS (2011) 'Housing Occupancy and Costs 2009/10', Table 14. Click on the image for a better view.)

In fact, of all the tenure types, public housing tenants 'under-utilise' their housing the least – even less than private renters. Meanwhile, almost 90 per cent of owner-occupiers without a mortgage, and over 82 per cent of owners with a mortgage, have one or more spare bedrooms.

And of course, there's lots more owner-occupiers than public housing tenants. By our count of the ABS data [that is, the Housing Occupancy rates and the correct households data from the Census], Australia's 5.2 million owner-occupier households have between them not less than 8 million spare bedrooms.

Perhaps Housing Ministers should consider writing to the nation's owner-occupiers and ask them to take in a social housing applicant.

Or, if they prefer, that they contribute a little more money in tax – say, a land tax that applies to land for owner-occupied housing – to fund a social housing system that grows at least in line with demand for it.

The 'S10 Project'

In late February we reported that the Tenants Advice & Advocacy Services were getting involved university O-Week activities to raise awareness about what has become known as the 'S10 Project' - named after section 10 of the Residential Tenancies Act 2010:

"10 - A person who occupies residential premises that are subject to a written residential tenancy agreement, is not named as a tenant in the agreement and who occupies the premises together with a named tenant is a tenant for the purposes of this Act only if:

(a) a tenant under that agreement transfers the tenancy to the person or the person is recognised as a tenant (see Part 4), or

(b) the person is a sub-tenant of a tenant under a written residential tenancy agreement with that tenant."

Section 10 means that if you live in a sharehouse, you need to get your agreement in writing.

Today, Patrick from NorWest Lincs (the TAAS who advise and assist tenants across north and north-western Sydney...) has dropped by to discuss some of their contributions to the S10 Project with us on the Brown Couch:

"NorWest Lincs contacted 3 Universities & 3 TAFE Campus' during the initial mail-out period for the project, capturing "O" week when all the students attend for enrolment at TAFE & Uni. During this period we handed out 21 posters & 550 flyers which were gladly received by all our contacts. We contacted the Student Welfare Departments, International Student Welfare Departments & Student Representative bodies.

This resulted in 3 formal follow-up Community Education Sessions, one session was with new International Students at Macquarie University with an attendance of 40+ students, North Sydney TAFE with Early Settlement Students with 25 in attendance & Hornsby TAFE Early Settlement Students with 55 students in attendance.

Overall this was an AWESOME response considering the short period of time in which we had to contact the institutions & arrange for the flyers & brochures to be distributed.

The Student Welfare Department at Macquarie University also spoke of the S10 Project in their opening address to 3 other groups of 50 students & included the brochures in their information bags. We have been invited to attend at the half yearly intake, to speak again to the students attending from overseas, as this was very well received & we have already received 2 referrals since this Community Education session."

Well done NorWest Lincs, and thanks Patrick for this excellent rundown.

The Project continues.
Get in touch with your local TAAS if you'd like more information about your rights in shared rental housing.

Share house post script

We wound up share housing month in 2012 with a reminder that you need to get your share-house agreement in writing - because without a written agreement you may not have the protections of a tenant under NSW tenancy laws...

This message has been doing the rounds on university campuses from one end of NSW to the other, due to the tireless efforts of the Tenants' Advice & Advocacy Services and the student representative bodies at our various tertiary institutions.

But we know that share houses are not always student houses.

If you rent part of a house or unit from another tenant, who
- has a written tenancy agreement with the owner, and
- lives in the property with you
then you need to get your agreement in writing in order for renting laws to apply to you in NSW.

Get your agreement in writing, and avoid the horror of having no rights as a tenant.

Ask any fan of the UK TV series Being Human:
living in a share-house doesn't always have to be a horror story

Contact your local Tenants' Advice and Advocacy Service, or visit www.tenants.org.au for more information.

Living in a sharehouse? You need an agreement

If you've been hanging out on campus during o-week this year, there's a chance you will have spotted a brochure that looks like this:

These are doing the rounds because in 2011, changes were made to tenancy laws in NSW that affect people living in share housing.
If you rent part of a house or unit from another tenant – and they have a written tenancy agreement with the owner of the premises – then they are your head-tenant.
It is very important that you have a separate written agreement with your head-tenant. Without a written agreement, you will not have the protections of a tenant under NSW tenancy law.
If you are a head-tenant, having a separate written agreement means that the rules are clear and any disputes with other tenants can be resolved formally.
Note that a head-tenant needs written consent from their landlord to sub-let to another person. A landlord must not unreasonably refuse to give consent.

Secure your tenancy

Step 1 – Write up your own agreement. (Click on the sample above to save and run off a copy, or click on this link for a PDF version)

Step 2 – Sign the agreement and give it to your head-tenant to sign. Keep a copy for yourself.
Contact your local Tenants Advice and Advocacy Service if you need further advice.

Tenancy Culture Studies: Withnail and I

Today's subject of study is the 1987 share housing cult film, Withnail and I.

Set at the close of London's swinging 'sixties, Withnail and I is the tale of two flatmates and 'resting' actors, Withnail (Richard E Grant, in the role that made him) '... & I' (that's how Paul McGann's character is referred to in the credits; never called by name in the film itself, he's 'Marwood' in the screenplay, so that's what we'll call him here).

Despairing of unemployment, fuel poverty, chemical abuse and the squalor of their rented London flat, Withnail and Marwood flee the city and connive a holiday at the country cottage of Withnail's appalling Uncle Monty. Country life, however, presents new difficulties for the flatmates, and no respite from their old ones. So they return to the city and their flat, to find their drug dealer asleep in a bed and an eviction notice for rent arrears awaiting them.

From here one of them finally makes a decisive break.

Withnail and I is, so to speak, one of the finest films available to humanity. It's certainly one of the funniest, but it is more than that. Beneath every joke and quotable quote there is something deeper going on. Withnail and I is full of profound and sad truths. And both in its humour and in its sadness it has a lot to say about share housing.

Withnail and I's depiction of share housing rings true for many people. There is, of course, the horrific state of Withnail and Marwood's kitchen sink, and the funny side of getting wasted. But more importantly, Withnail and I truthfully reflects the personal relations that are made in share housing. It can make intense attachments: for Marwood, it is in large part the anxious dependency of the drug-addled. (See how he gets the fear in the cafe in the opening sequence:'... and I can't cope with Withnail? I must be out of my mind. I must go home at once and discuss his problems in depth.') For Withnail, as we find out in the film's achingly sad final scene, the larger part is something else.

As well as their making, Withnail and I also reflects, necessarily, the unmaking of share housing relationships. It is in their nature that they won't last forever. It's a point obliquely made in the comments on the passing of an age by both Monty ('Ah, my boys, we're at the end of an age. We live in a land of weather forecasts and breakfasts that "set in". Shat on by Tories. Shovelled up by Labour. And here we are. We three. Perhaps the last island of beauty in the world.') and Danny the drug dealer ('They're selling hippy wigs in Woolworths, man. The greatest decade in the history of the world is over. And as Presuming Ed here has so consistently pointed out, we have failed to paint it black.'). Indeed, the film's period is a layered metaphor for the share housing experience: ostensibly a time of liberation, it becomes, through its conflicts, injustices, and deprivations, something from which to escape.  

It is also fair to say that there have been more than a few share households that have made themselves a reflection of Withnail and I. The decayed grandeur of the flat's decoration is much imitated, and many of the film's lines have passed into the language of share houses, like Monty Python for a seedier set. But again, the significance of Withnail and I for share housing – in itself, as a film – goes deeper. Referring to the film, or watching it together, is a way for housemates to subtly check or test one another, to see how tolerant or otherwise ('bald', as Danny would say) they are, and perhaps even kick off a great share housing friendship.

Tenancy Culture Studies: The Young Ones

The Brown Couch has long looked forward to today's entry for Share Housing Month. Brilliant, seminal comedy series The Young Ones was created out of the alternative comedy scene in London in the late 70s, especially the comedians appearing at the Comedy Store and later the Comic Strip. Tenancy is a subject close to the hearts of the creators with the later series' Filthy, Rich & Catflap, and Bottom all centred around flatmates and their relationships.

Adrian Edmondson has spoken before about the basis for the characters being something within them. The Young Ones play upon some fairly ingrained stereotypes of students in share houses and part of the brilliance is, in a very stylised way, that there is truth in the comedy. Some houses, some young people, are raucous, dangerous, pretentious... The Young Ones celebrate this. Many are not, but we all know people who have elements of the characters portrayed here. The other end of the Brown Couch may find this next statement controversial, but this style of comedy is what a previous entry in Tenancy Culture Studies, SBS's Housos, attempts to achieve as well. Enough of that though, it is classic alt-comedy Brits we're interested in here.  

We're not watching the bloody Good Life!

The 4 tenants are all undergrad students at Scumbag College. Our heroes are gloomy hippy Neil, destructive punk Vyvyan, pretentious poet Rik and suave Mike. The relationship between the tenants appears to be a classic co-tenancy- although there are constant tussles around the leadership of the house. With a reckless disregard for each other's property and the house in general you would expect the house not to last more than a few days, but somehow they find the patience to continue to live with each other.

Heeeere's Jerzei!

Despite Vyvyan's destructive streak and the group's generally poor housekeeping, the relationship with their landlord actually seems to be quite friendly. Mr Balowski (and his family) are frequent visitors to the house. In the first episode the boys not only manage to get out of paying the rent, but get rehoused in a new house with Mr Balowski following demolition of their current house. This may say more about Balowski's intelligence and business nous than his generosity but his opening speech suggests that part of the value he receives from these tenants is access to the younger generation.

Joined and severed limbs

Er, jointly and severally liable. Leasing and contract laws have long held the notion that co-tenants are jointly but also individually liable in the eyes of the law for the damage that one may cause to the houses they live in (as well as the unpaid rent!). It seems Neil may well be most hard done by in this situation since he is never shown causing any of the not inconsiderable damage to the premises. If he was to receive advice from a Tenants Advice and Advocacy Service they may well refer him to s102, under which a tenant can sever themselves from a co-tenancy if there are special circumstances. Special circumstances are quite a high bar to reach, and should always be something to get advice on before trying yourself, but given the copious amount of video evidence of the violence perpetrated upon him Neil may well make it.

What do we learn from the Young Ones?

The Brown Couch sees a few lessons we can take from the Young Ones. Firstly, sometimes the relationship with your landlord doesn't have to be based purely on financial concerns. Second, no matter how dysfunctional your share house is, it is possible to get along.

There is another lesson here too - "its funny because it's true". Or is it? Anyone who doesn't have a tale of share-house debauchery from their "student days" surely knows someone who does. Yet we would not find it funny at all if it was happening next door. We laugh at their destruction of property and each other, and their disregard for society's norms because - well, because they are on TV. They aren't next door, and we don't have to deal with these aspirational middle-class kids on a good-times rampage. Given we all have stories to tell from our student days, is it really fair to stick the boot in to today's young people?

Of course, it is entirely possible we're taking it all too seriously and should just sit back and enjoy the sight of a punk losing his head.

Naked in share housing

We kicked off Share Housing Month by talking about the different ways in which you, as an occupant of share housing, can get covered as a tenant the Residential Tenancies Act.

Now we turn to what happens if you're not covered. And in New South Wales, if you're not covered as a tenant under the Act, you're not covered by any other legislation. You're what we call a marginal renter, and you are legislatively naked.

(Share house marginal renters out and about in Sydney. By Spencer Tunick.)

In fact, in terms of legislated rights and remedies, share house marginal renters have it even worse than other sorts of marginal renters, such as those living in boarding and lodging houses. This is because the operators of boarding and lodging houses are generally in business, and as such their boarding and lodging contracts are covered by the Consumer Claims Act 1998. This gives boarders and lodgers, as 'consumers' of boarding and lodging services, some recourse to the Tribunal for remedies to do with the payment of money or supply of services (but nothing about notice periods, how terminations are done, written agreements and receipts, and other important aspects of their housing).

But share housing is generally run on a subsistence basis, and your typical head-tenant is not 'in business'.

This means you are subject to the common law of lodging only – and we say 'subject to', not 'covered by', because the common law is less a covering than a chill breeze that discomforts and diminishes the unfortunate, uncovered lodger. It comes virtually unchanged from the nineteenth century, and its essential principle is caveat emptor – let the buyer beware. The terms of common law lodging agreements ('licences') are those the parties agree to; in practice, this means they are what the grantor says is on offer, take it or leave it.

Legally speaking, then, a twenty-first century share house lodger might as well be living in a nineteenth century common lodging house. (Hopefully not this one; but the scene in this one may be appropriate to our metaphor.)

We need a decent, basic legislated regime for renters who fall outside our current residential tenancies legislation. We've proposed the occupancy agreements model, along the lines of the Australian Capital Territory's legislation, and independent Sydney MP, Clover Moore, has introduced a Bill for such legislation into the NSW Parliament. 

This legislation would cover all otherwise uncovered renters, including share house lodgers, and, as a cover-all, it's pretty basic – but it also provides for the making of more detailed provisions for specific classes of occupancy agreement by subsequent regulations. It is, to stretch our metaphor to breaking point, a simple bathrobe thrown about the naked marginal renter, with the prospect of something better fitting – indeed, tailor-made – to come. 

But at least until we get this sort of legislation in New South Wales, keep trying as best you can to get covered by the Act.

Australians for Affordable Housing Budget Statement

Australians for Affordable Housing have today launched their Budget Statement for this year, calling on the Federal Government to address housing stress where it is hurting most – in rental housing.

And partly because it is Share Housing Month – and partly because it is where the housing stress numbers are worst – let's look more closely at the situation of students and job-seekers. 

According to AAH, more than 70 per cent of Austudy and Youth Allowance recipients, and more than 60 per cent of Newstart recipients, are in housing stress – that is, they pay more than 30 per cent of their income in rent, even after Rent Assistance is added to their (very low) incomes. And this means serious proportions of people skipping meals and going without health and dental care in order to pay the rent.

(Click on image for a better view)

In response, AAH proposes (as have we, and as did the Henry Review) an increase in the maximum rate of Rent Assistance. AAH proposes $25 per week, which, as you can see, would achieve a modest reduction in the number of persons in housing stress. 

More importantly (and this isn't shown in the numbers), an increase in the maximum rate would most help those in the most acute housing stress – even if it doesn't get them out of housing stress altogether. This might mean the difference, so to speak, between eating beans and not eating at all.

That's the demand side; on the supply side, AAH calls for an Affordable Housing Growth Fund, to continue what the stimulus only started: the rebuilding of the social housing system after years of neglect and decline.

And as the national media turns its attention to what the RBA will do to interest rates, it's the best affordable housing plan you'll read all day....

Share Housing Month

February is traditionally the time of year when many new share houses start up – and many existing share houses get a new lease on life as new housemates move in. And it's Share Housing Month on the Brown Couch, too.

(Share housing)

Whether you're just starting out or are an old hand, it's a good time to think about getting your house in order – particularly to make sure that your share house arrangements are covered by the Residential Tenancies Act.

If you're on the tenancy agreement with the landlord of the premises, you're covered. If you're not, consider doing one of the following:

• Get a written sub-tenancy agreement. A sub-tenancy is where you have an agreement with someone who is a tenant of the premises. This person (the 'head-tenant') is your landlord, and you're their tenant. It is most important to GET THIS AGREEMENT IN WRITING – if it's not in writing, it's not worth the paper it's not written on. This is a new rule for share housing (see section 10 of the Residential Tenancies Act 2010, now one year old), but it applies to share houses that have been around longer than that, so if you're a sub-tenant on the basis of a handshake a couple of years ago, things have changed. Get your sub-tenancy agreement in writing – it doesn't need to be the many-paged thing landlords and agents use. Try this one the Tenants' Union has prepared. 
• Get a co-tenancy created. A co-tenancy is where you and your housemates are jointly the tenants of the premises, on equal footing (that is, no 'heads', no 'subs'). Keep in mind you're also jointly and severally liable – the landlord can hold any one of you liable for debts or damage caused by any or all of the others.  You can get a co-tenancy created by entering into a new agreement with the landlord with all your names on it; alternatively, an existing tenant can transfer a share of their tenancy to you. Either way, you should get the landlord's consent, and get the arrangement in writing.
• Get recognised as a tenant in your own right. If the population of your share house has turned over so much that no-one currently living there is on the agreement with the landlord, you should try to get a tenancy in your own right. Do this by asking the landlord or agent for a new agreement, or apply to the Tribunal for an order recognising you as a tenant and vesting a tenancy in you.

And you're good to go! Enjoy!

Share house mix-ups: getting the house in order...

Pinky rented a house of straw, but it fell down, so he moved in with Perky.

Perky's place was a little more substantial but, being made of sticks, it couldn't really withstand the extra wear and tear that an additional occupant brought upon it. It fell down, too. So Pinky and Perky set off to find somewhere new to live.

Their Great Uncle Porky had just scored a nice, new 3 bedroom brick veneer number out in the 'burbs, so they loaded up the wagon and made a bee-line for the boondocks.



At first, Porky wasn't all that sure about letting Pinky and Perky move in - after all, there was an unexplained gap in their rental references that stretched all the way from 1971 to 2008. But he did have all that extra space, and he really couldn't say no to the kind of money they were offering. After some brief but robust negotiation he had a couple of extra keys cut, and told them to chose their rooms. They all lived happily ever after.

Or did they? Borne of the Depression era, Porky could never quite understand the sheer excesses of his freewheelin' flatmates. After a few too many arguments and excuses about why the rent was late and the fridge was empty, Porky realised that he'd had enough. He packed his bluey, and humped it.

This left everyone with a bit of a problem, because Porky did not transfer his tenancy to either Pinky or Perky, and he did not obtain the landlord's consent to sub-let the premises before they moved in (see this previous Brown Couch post for more on this). Legally, Porky is still the tenant, but nobody knows where he is. The occupants, Pinky and Perky, have no legal relationship with the landlord - in fact he probably doesn't even know who they are.

Thankfully, this has never really been a practical concern, because Pinky and Perky took Porky's departure to heart. They've really pulled back their reckless ways, and getting the rent paid on time has been their number one priority since the day Porky left; and the landlord - being one of those strong silent types - has never seen fit to worry about the place as long as the rent keeps coming in...

But then one day, the landlord sold the place, and a new landlord came along. This new landlord wanted to know who his tenants were, and when he couldn't find their names on the lease, or any evidence of the tenancy being transferred, he threatened to huff, and puff, and to blow the house down.

Thankfully for Pinky and Perky, the Residential Tenancies Act 2010 offers a solution. Section 77 allows an occupant to apply to the Tribunal to be recognised as a tenant, if the original tenant no longer occupies the premises. (This specific provision is in similar terms to section 35 of the Residential Tenancies Act 1987 - now repealed - so it is likely that the Tribunal will be guided by any decisions made with reference to that section).

But, theoretically, the landlord could just establish a new agreement with Pinky and Perky anyway - if he wanted to. This is based on the assumption that Porky's tenancy has been terminated by abandonment or repudiation (section 81(4) of the 2010 Act), so a new agreement can be entered into. A sensible landlord would, of course, obtain Tribunal orders about the abandoned tenancy before entering into a new agreement, to avoid complications if Porky in fact has other ideas (say Pinky and Perky had lied about his disappearance in order to oust him as the tenant - but he'd really only been at his brother George's house for a few weeks).

None of this is particularly new either - the same arguments would equally have applied under the 1987 Act, and the old case law on abandonment should still have some value. The 2010 Act does set out some of the things the Tribunal may consider before deciding whether or not the tenancy has been abandoned (section 106), whereas the 1987 Act did not, but these are the sorts of things that the Tribunal tended to consider under the 1987 Act anyway.

What the 2010 Act does that is really new is something that mixed-up share house occupants ought to be immediately aware of. Under section 95, the landlord can give any occupants (ie anyone who isn't a tenant of the landlord directly) 14 days notice requiring them to vacate the premises, if the tenant no longer resides at the premises and the tenancy has been terminated. As we've already seen, the tenancy could theoretically have been terminated by abandonment, even though the ex-flatmates of the former tenant remain in residence.

Any occupant of a shared rental house who is not the landlord's tenant should therefore seek advice on how to be recognised as a tenant, in order to obtain the protection of a residential tenancy agreement. This will be a lot harder to do once the landlord decides to move you on, and will entitle you to 90 days notice of termination (unless you breach the agreement) instead of 14 days notice to vacate. Contact your local Tenants' Advice & Advocacy Service if you think this might apply to you.

But there's another good reason for cleaning up share house mix-ups. Pinky and Perky may in fact be Porky's sub-tenants with all the rights and obligations provided by the 2010 Act, because of a qualifier in section 10 - the Act's exclusion to share house occupants without a written sub-tenancy agreement doesn't apply where the named tenant resides elsewhere. In other cases, occupants may be sub-tenants subject to a written residential tenancy agreement with the now absent head-tenant.

In such circumstances, a 14 day notice to vacate may provide the landlord with a lawful opportunity to bring the occupation of premises to an end, but it wont end the sub-tenancy agreement... Sub-tenants who are evicted without proper notice may have a legitimate grievance against the head-tenant, and may be entitled to compensation because their quiet enjoyment of the premises has been interfered with.

When co-tenancies end

Last time we talked about the law as it relates to comings and goings in share housing; this time, it's just plain goings. In particular, if you're a co-tenant – that is, you and one or more other persons are both tenants under the same agreement – and you want to sever ties with your housemate/s, the new Residential Tenancies Act 2010 makes some important changes that are worth knowing about.

To help illustrate the changes, let's refer to a co-tenancy with two co-tenants, Will and Cate.

(Will Wales and Cate Middleton – a share house romance.)

Without putting the mozz on real-life Will and Cate, let's pretend Cate wants out. She might physically move out but, until the commencement of the new Act, ending her legal liability was not so easy. In fact, under the old 1987 Act, there was no straightforward way for a co-tenant to unilaterally terminate his or her liability while another co-tenant stayed put. True, under the old law Cate could transfer (assign) her co-tenancy to her erstwhile housemate, or to some new person moving in, and get them to indemnify her in the event of loss, but all these things would require the consent of all the parties and hence a degree of co-operation that is all too often absent when co-tenants split up. Cate could even go as far as giving a notice of termination to the landlord, but if Will dug his heels in and didn't move out, there would be no vacant possession given to the landlord and the tenancy – and Cate's liability – would continue.

That was the old Act; the new Act, fortunately, includes s 101, which allows Cate to give 21 days' notice to both the landlord and Will, and then move out, with her tenancy terminating on the date on the notice, while Will's continues. Note that this does not apply during the fixed term of an agreement – Cate and Will are legally stuck with one another for the fixed term – but after that, if Cate's partnership with Will ends, so too can her liability as a co-tenant. She can also require Will to pay her, within 14 days, her share of the bond (s 174).

Here's a twist: what if Cate wants to end the co-tenancy, but also wants to stay put – that is, she want Will to be put out? The new Act provides for that too. Under s 102, a co-tenant may apply to the Tribunal for an order 'terminating the tenancy of the co-tenant or another co-tenant under the residential tenancy agreement' (my emphasis).

Does this mean that disputes between housemates about whose turn it is to wash up might now be prosecuted as termination proceedings in the Tribunal? We think not: s 102(2) qualifies the Tribunal's power by providing that it 'may make an order under this section if it is of the opinion that it is appropriate to do so in the special circumstances of the case' (my emphasis). So, something special is required before the Tribunal will make such an order. The TU has already heard of a likely case in what we believe is probably the first use of s 102: it's being brought by a woman whose ex-husband agreed to be a co-tenant to help her get the tenancy, but now he wants to move in to the premises with her. With respect to the Tribunal, there's a good argument that these amount to 'special circumstances'. Still, it will be interesting to see where the Tribunal draws the line.

Here's hoping no 'special circumstances' disturb the happy union, forged in share housing, of real-life Will and Cate. Cheers, kids!

Share housing - comings and goings

Apologies - for the first 10 days of Share Housing Month, the Brown Couch has rather resembled the typical share housing kitchen sink, remaining untouched while your correspondents wait for one another to make a move on it. Expect a flurry of activity soon.

Now let's consider another aspect of share housing life – the comings and goings of housemates – and how these are dealt with under the new Residential Tenancies Act. As with the question of whether you're covered, the new Act makes important changes to the law relating to coming and going.

(The Secret Life of Us. By the end of the fourth series, only Kelly and Simon the barman were left.)

A typical share house might start out with a couple of persons who have a tenancy agreement with the landlord (let's call them Alex and Evan), to whom are added one or more persons who don't (Kelly, and others). We'll use variations on this example to consider a couple of ways of coming and going under the new Act:

Subletting
As discussed last time, one way for Kelly to take occupation with all the rights and responsibilities of a tenant (rather than a mere lodger) is if she is a sub-tenant under a written residential agreement with Alex and Evan (s 10(b)). This is called a subletting.

To pull-off a lawful subletting, Alex and Evan will need the consent of the landlord (s 74). Because Alex and Evan are remaining at the premises and just subletting a spare room – what the Act refers to as a 'partial' sublet – the landlord must not unreasonably refuse consent (s 75(2)). The Act helpfully indicates what might be a 'reasonable' refusal (s 75(3)): in particular, where the sublet would result in overcrowding, or where Kelly is listed on a tenancy database. If the landlord refuses consent and Alex and Evan believe it is unreasonable, they can apply to the Tribunal to resolve the dispute (s 75(4)).

As a sub-tenant, Kelly still has no contractual relationship with the landlord: her contractual relationship is with Alex and Evan. They are, legally, Kelly's landlord.

Transfers
Next thing you know, Alex is moving out and Evan and Kelly are looking for a new housemate (and they find one: Marnie). They could do another sublet, but Alex is not interested in being landlord to a couple of sub-tenants in a place where she no longer lives. Instead, Alex might consider a 'transfer' of her tenancy to Marnie.

A transfer - or 'assignment', as the old Act called it - is different from subletting, much in the way that 'duplicate' is different from 'cut and paste'. While subletting creates a new agreement between Alex & Evan and Marnie, a transfer takes the rights that Alex enjoys under her's and Evan's agreement with the landlord and gives those very rights to Marnie, such that Alex does not have them anymore. Under the old Act, there was a problem with assignment: Alex could assign the benefits of the contract, but not it burdens, so if things later went wrong the landlord could still sue Alex. The TU is not yet sure whether the new Act's provisions about 'transfers' clear up this problem, so it's probably a good idea if you're doing a transfer to also arrange for an 'indemnity' to be signed between you (ie Alex) and the transferee (ie Marnie). See a Tenants Advice and Advocacy Service for more about this.

In another respect, transfers are similar to sublets: you need the landlord's consent to lawfully do one. Likewise, if it's a partial transfer - ie just Alex's tenancy rights are being transferred, while Evan remains - the landlord must not refuse consent unreasonably.

A final word on sublets and transfers. Say Alex and Evan were going to move out together (and didn't we all hope they would?). They might consider either subletting or transferring the whole of their tenancy to Kelly (that is, not just a 'partial' sublet or transfer). To do either, they will need the landlord's consent – and this time, the landlord may refuse unreasonably (s 75(1)) and there's no recourse to the Tribunal. In other words, the landlord may refuse to hear any suggestion of a whole sublet or transfer out of hand ('I'm not listening, I can't hear you, la la la') or refuse for a daft reason (doesn't like the colour of Kelly's socks) or simply not give a reason at all. If, however, the refusal is discriminatory (eg doesn't like the colour of Kelly's skin, or her gender, or that she's a young person, etc), Kelly might have a complaint under State or Federal anti-discrimination legislation.

Share Housing Month - are you in or out?

Ah, February: the bright summer sun; the shrill of cicadas in the trees and the click of leather against willow on the cricket grounds; the smell of cut grass and fresh paint as landlords get ready for the turnover of rental properties at the start of another academic year (ha!). At the Brown Couch, it's Share Housing Month.

(Share housing.)

At the last Census, about nine per cent of all renter households were, in the ABS's terms, group households. That's about 3 per cent of all households, which seems, to be honest, surprisingly small. But it seems that way because share housing looms so large in tenancy culture and, indeed, in life generally. Social life runs on share housing stories. For so many of us, share housing was the place where we learned – sometimes painfully – our first lessons as adults in when to trust, when to risk it, how to love, and how to hate.

*

The first order of business for Share Housing Month is the new Residential Tenancies Act 2010 (NSW), which commenced yesterday, 31 January 2011, and the question of whether you, the share house occupant, are covered by the Act. The new Act makes some important changes to the law in this regard, particularly where – as is often the case in share houses – an occupant does not have a written tenancy agreement with the landlord or with another occupant who has a written tenancy agreement with the landlord.

To illustrate the changes, we'll use a very simple example of a typical share house of two persons: Ernie, who has a tenancy agreement with the landlord, and Bert, who does not.

(Share house occupants, Ernie (at left) and Bert.)

In the old 1987 Act there was no express mention of share housing, and whether a share house occupant was covered by the Act depended on the nature of the arrangements in their particular share house. In our example, Ernie would clearly be covered (he's a tenant of the landlord). Bert might be covered: possibly as a sub-tenant of Ernie; possibly as a sub-tenant of some other person on the agreement with Ernie (I don't know, let's say Elmo) who has since moved out. Or Bert might not be covered: he might be merely Ernie's lodger.

In the absence of a written agreement that sets out Bert's status, the question of whether Bert is a sub-tenant (covered by the Act) or a lodger (not covered) would be determined by a variety of factors, such as whether Bert has a lock on his room (tends to show he's a sub-tenant), whether Ernie supplies meals or linen, or performs services like cleaning (tends to show Bert's a lodger), or whether Ernie sets 'house rules' or otherwise controls the premises (lodger).

The new Act changes that. It makes answering the question simpler – at the expense of excluding many share house occupants from the Act. See s 10 on 'shared households':

10 Application of Act to occupants in shared households

A person who occupies residential premises that are subject to a written residential tenancy agreement, is not named as a tenant in the agreement and who occupies the premises together with a named tenant is a tenant for the purposes of this Act only if:

(a) a tenant under that agreement transfers the tenancy to the person or the person is recognised as a tenant (see Part 4), or

(b) the person is a sub-tenant of a tenant under a written residential tenancy agreement with that tenant.

So, to use our example, Bert's covered if he has a written residential tenancy agreement with Ernie (s 10(b)) (or if Ernie's former co-tenant Elmo transferred his share of the tenancy to Bert (s 10(a)). Otherwise, Bert's not covered, regardless of those other factors.

In almost all of the share house arrangements we at the TU have dealt with, there are no written agreements between occupants. This will have to change, if share house occupants want to be covered by the Act.

Note, however, some qualifications on s 10.

First, it applies only where the premises are subject to a written residential tenancy agreement. So if Ernie's tenancy is on the basis of a handshake with the landlord and nothing more, s 10 does not apply, and Bert's status will be determined according to the old tests. There would be a few share houses like this, especially where the landlord is a family friend or relative of one of the occupants, or where a landlord has said to a mate, 'move in and see what you can do with the place,' and the mate starts running it as a boarding house. These occupants might still be excluded as lodgers, but not by operation of s 10.

Second, s 10 applies only where a share house occupant occupies 'together with a named tenant'. In other words, if Ernie does not occupy the premises (maybe he just pops in from time to time), Bert's status will be determined by the old tests. This sort of arrangement is becoming quite common: a person rents a house or flat, doesn't live in it themselves but lets it out to students – often international students – who are stacked several to a room. As above, these occupants might be lodgers and excluded for that reason, but not because of the s 10 test.

Perhaps the most positive way to view s 10 is as an opt-in provision. If you're an occupant in a share house – whether a new share house or one from way back before the new Act commenced – consider making a written agreement with your fellow occupants in order to get in on the Act.