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

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

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

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

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

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

Tenants' Union of NSW Xmas Hotline

 phone (02) 8117 3750 

or 

1800 251 101

No holiday cheer for social housing

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

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

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

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

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

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

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

Homelessness and Renting in Sydney

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

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

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

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

Public housing repairs - an inquiry

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

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

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

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

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

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

See the inquiry website for details.

Renting laws in review - the case for change

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

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

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

At the time, Fair Trading said:

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

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

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

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

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

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

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

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

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

The pointy end of unaffordable housing

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

Do I hear 1.5?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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