Wednesday, January 29, 2014

NCAT launched

Today the NSW Civil and Administrative Tribunal (NCAT) was formally launched by the NSW Attorney-General, the Hon Greg Smith SC, and the President of NCAT, Justice Robertson Wright.

NCAT has actually been up and running since 1 January, but today was the day the plaque at the registry was unveiled, the cake was cut and the speeches were made.

A common theme of the speeches was access to justice. The first purpose of NCAT, said the Attorney-General, was to improve access to justice by simplifying access to tribunal dispute resolution – there should be no confusion or uncertainty that you'd come to the right tribunal. The President noted the significance for an orderly, just society of the type of dispute NCAT could deal with – highlighting, in particular, disputes about decisions of the State Executive and its officers.

We're hopeful too about NCAT's potential for improving access to justice. And there's one way in particular that NCAT could make a big difference – if it were allowed to resolve disputes about social housing decisions.

These are decisions, for example, about whether a person is eligible for social housing; or what sort of property they might be offered; or whether they are entitled to a rent rebate, and how much; or whether a rent rebate will be cancelled or varied.

These decisions can be a very big deal for people – a rent rebate cancellation, applied retrospectively, can result in an instant debt of tens of thousands of dollars and a termination notice.

They are also decisions that are not dealt with under the Residential Tenancies Act 2010, and so cannot currently be deal with as tenancy disputes by NCAT's Consumer and Commercial Division – even though they may be the underlying problem in a tenancy dispute. So, for example, if a public housing tenant's rent rebate is cancelled, NCAT can hear Housing NSW's application for termination of the tenancy and payment of the arrears, but it cannot hear the tenant's objection to the rent rebate being cancelled in the first place.

Currently, social housing decisions can be reviewed by the social housing landlord that made the decision and, if the tenant is not satisfied with the review, by the NSW Housing Appeals Committee. The HAC has done some good work over the years, but it has significant shortcomings: it has no legislative basis; it cannot make binding orders (only recommendations); and its own decision-making is not always as rigorous or fair as it should.

The lack of appropriate review of social housing decisions is an access to justice problem – and NCAT should be made available to address it. 

Sunday, January 26, 2014

The survival of Redfern

January 26th commemorates the invasion of what is now known as Australia, by British “settlers” in 1788.

For Aboriginal people, this marked the beginning of a long history of dispossession.  The Block, in the inner Sydney suburb of Redfern, has been a place of significance for Aboriginal people for generations, and a newfound home away from home for many dispossessed Aboriginal people for centuries.  Once a ghetto and no-go zone for taxis, Redfern and The Block are now experiencing a wave of popularity as property prices skyrocket and cashed up hipsters and foodies descend on the streets of the once avoided neighborhood.  Recently, homes on the Block’s notorious Eveleigh St have been advertised for rent at up to $1200 per week. With the median rent prices for Redfern sitting at $700 pw for houses and $550 for units, many Aboriginal people are being priced out of the local housing market and once again, find themselves removed from a place of cultural significance with no real choice in the matter.

It seems that the jury is still out on whether the gentrification of Redfern should be viewed as positive or not. Presumably those who are making big bucks out of its development think it’s a fabulous thing for the community, who can now enjoy the wonders of a cafĂ© breakfast of bircher muesli and activated almonds, accompanied (of course) by a v60 pour over of single origin. However without affordable housing in the area, the “community” as it has always been known, will no doubt cease to exist in no time at all. As we have seen time and time again, social housing tenants who have long resided in areas once considered “undesirable” by wider society are easily picked up and moved to new “more suitable” locations when the market and government demand they do so. The notable, and sad difference in the case of Redfern is that today, we commemorate 226 years of dispossession for Aboriginal people, with no end in sight as yet. Long-standing services like the Aboriginal Medical and Legal Services, along with the newer National Centre of Indigenous Excellence operate in the area to service the Aboriginal community. It fits that if the community no longer finds a trip to Redfern convenient, because they’ve been moved out to the suburbs of Sydney to make room for those who can afford the privilege of an inner city lifestyle, those services too, with all their history, will need to make the move.

I encourage those who haven’t already done so, to take a look at the award winning history of The Block developed by the SBS. 

Aboriginal Legal Officer

Friday, January 24, 2014

These are our landlords, and they're doing okay...

Earlier in the week the Institute of Tenancy Culture Studies took a look at what makes a good tenant, from a landlord's point of view. Someone who can pay the rent, and keep the place standing, is usually all that they're after. Just don't get landlords started on the question of rights, because things can get a little heated.

There are some good examples of landlord indignation over on the 'Hack on Triple J' facebook page (we've referred to this once before). But you probably know the sort of thing we mean - especially if you've ever found yourself in conversation with a landlord who has had 'trouble' with a tenant.

No doubt it's tricky. Imagine borrowing a large swathe of money and parking it in real estate, hoping that over time it will grow into blooming great fields of gold. Deep down you know that the greatest risk to success will be whether or not you can find a tenant. If you can't find one, the bank will send you out backwards, and you'll probably lose the deposit. But if you can find one, they'll have to... *gulp* ... live in your lovely house. What if they scuff up all the carpets? It could end up costing you a fortune!!!

No doubt this particular anxiety is made all the more nerve wracking by the prospect of having to go to the Tribunal if the tenant doesn't just cough up the bond... (good grief, that could take up an entire morning!)

Not to worry - the Real Estate Institute of New South Wales has got your back. In their Real Tenancy Policy, which we discussed on the Brown Couch back in 2010, the REI suggested we'd be better off without all this needlessly complex and prescriptive regulation in the Residential Tenancies Act. By way of explanation, they said:
A would be landlord confronted with a choice between owning a property where recovery of water consumption depended, on the one hand, on agreement between the landlord and tenant, and on the other hand on numerous factors including not exceeding a prescribed rate of water flow from the taps, may think twice about becoming a residential landlord.
The implication was that property investors would turn their backs on New South Wales, and park their investment funds in South Australia or the Australian Capital Territory instead (where the laws are much 'smaller', after all...) This is in keeping with earlier comments, made in their formal submissions to the NSW government while our current renting laws were still in draft (we wrote about this at the time, too):
The NSW property market (upon which the Government is heavily reliant for revenue) must be attractive for both NSW and external investors. 
An investor selects an investment for return, and is not driven by a desire to provide housing.
Interesting observations.

Fast forward to the beginning of 2014. As we noted a little over a month ago, there has never before been so much borrowed money parked in real estate in New South Wales:

... and demand for housing transfers in Sydney, in particular, is being driven by our landlords.

This is not because the regulatory burden has been reduced - we're still operating under the same Residential Tenancies Act that the Real Estate Institute said was needlessly complex and prescriptive, way back in 2010. The same piece of legislation that was supposed to scare all our landlords away, because making properties more water efficient was just too much to ask.

No. It's because of cheap debt and rapidly rising house prices. Prices that rose by almost 15% over the course of 2013, if you're prepared to believe the data. And as we know, an investor selects an investment based on a return...

Perhaps this is something to keep in mind, the next time you're discussing the burdensome world of over-regulation with your poor, poor landlord.

Tuesday, January 21, 2014

Tenancy Culture Studies: Spaced

In this missive from the Institute of Tenancy Cultural Studies, we look at the cult British sit-com Spaced.

Starring Simon Pegg and Jessica Stevenson, who also wrote the series together, Spaced is often considered to be the breakthrough for the team of Simon Pegg, Nick Frost and director Edgar Wright.
The series centres around young singles, Daisy and Tim, who find themselves in a situation many prospective tenants do- they can't find a home, and need to take creative licence in order to meet the requirements for a potential flat. A chance meeting brings them together and they pose as a ‘professional couple’, requiring them to learn a lot about each other in a very short amount of time.

In just 13 episodes Spaced touches on many of our favourite topic- tenants, owners, lodgers, sharehousing, security of tenure and landlords selling.
Much of the plot and humour in Spaced comes from Tim and Daisy trying to avoid being found out as two singles. In NSW, and many Australian states, there is great pressure on tenants to present themselves as perfect- that may well mean not mentioning or outright lying about pets, previous rental history, employment. No one likes being rejected, nowhere more than when trying to obtain shelter for yourself and your family. Does this pressure really make a difference to the industry as a whole- does it really matter to landlords if tenants are in a relationship, own pets, have a party, or like to cook a good curry? We know how real estate agents feel about regulation of their client investors, but the oft repeated claim that too much regulation will lead to disinvestment is not a credible one- the motivations for investing are not so neatly tied to the relationship with tenants, the government or even necessarily sound investing practices.

So in the end, the answer is no- in Spaced, as in life, what matters is that the Tim and Daisy were able to make the rent, and keep the place from falling down. The restriction the landlady had placed upon her potential tenants was unnecessary (and as it eventually turns out, unintended).
We too prefer for renters to be treated as the adults they are- capable of making their own decisions and taking responsibility for the consequences. We've spoken previously about the hurdles some tenants have to jump over in order to find a place, and the way in which usually adult activities (like the decision to own a pet) are regulated by landlords. Spaced is famed for its pop culture references, and we celebrate it today for its tenancy culture references.

Wednesday, January 15, 2014

Assisting the authorities with their inquiries: part 2 - the TU's Housing Affordability Survey

At the Brown Couch, we're often hearing from tenants who are having a hard time. Primarily through our connection to the local Tenants' Advice & Advocacy Services, but also our presence on Facebook and Twitter, we have an excellent insight into the kinds of tenancy problems that the people of New South Wales run into - and, as much as is possible under our relevant laws, how they can be solved.

Less often, we hear from folks who are not having any specific trouble, but who have something general to say for the sake of promoting the interests of tenants, and improving our lot.

In fact, every tenant has something to contribute - to help us with our work, and to ensure our work remains relevant - just by telling us how you're getting on.

We kicked off the year by mentioning two separate government inquiries into housing affordability, and asking you to help inform our submissions by sharing your stories and experiences as a tenant in NSW.

Yesterday, we launched a short Housing Affordability Survey.

Your answers to these 20 quick questions will make sure our understanding of the impact of housing costs on tenants across New South Wales remains well and truly on the money. If you've not already done so, please take the survey, and share the link with your friends.

We're a bit overwhelmed with the response so far... A huge thank you to everyone who has already taken a look. But, you know - the more the merrier. Please make sure all your friends take the survey too!


Tuesday, January 14, 2014

Five years on the Brown Couch

The Brown Couch has been running five years this month, and we've decided to celebrate with the blog-equivalent of a cobbled-together TV clip-show.

Here's five favourite posts, nominated by a panel of long-time Brown Couch readers:

Thanks for reading.

Monday, January 13, 2014

NCAT begins - new fees, new time limits

As the new year began, so did the new 'super-tribunal' – the NSW Civil and Administrative Tribunal (NCAT). Tenants and landlords should find that it is mostly the same as the old Consumer, Trader and Tenancy Tribunal. Mostly....

New fee for NCAT appeals

Some key differences. If you think the Tribunal's got a decision wrong, you no longer apply for a 'rehearing'; instead, you can make an appeal to the Tribunal's Appeal Panel. Appeals on questions of law must be heard; for appeals on other grounds, you'll need to convince the Tribunal that you've suffered a substantial miscarriage of justice, either because the decision is not fair and equitable; or it's against the weight of evidence; or there's evidence available now that was not reasonably available at the hearing. These factors are familiar from rehearings in the old CTTT.

Less familiar is the fee for appeals – $317 – which is about an eight-fold increase on the CTTT's fee for rehearings. (Before NCAT commenced, the TU suggested, unsuccessfully, that the fee for appeals in residential proceedings should be the same as the fee for applications: $38).

Alternatively, if you think the Tribunal got it wrong specifically because you weren't there to put your case, you can apply for the decision to be set aside or varied. The fee for this application is $78.

If either fee is too much for you, consider asking the Tribunal Registrar to waive the fee – you'll have to show that there are 'special reasons' for doing so.

The time limit for making an appeal is 14 days from the date of the decision, or the date of your receiving a written statement of reasons for the decision. The time limit for applying for a decision to be set aside or varied is seven days from the date of the decision.   

Time limits for other sorts of applications to NCAT mostly remain the same, because most time limits are specified in the Residential Tenancies Act or Regulation. However, for applications without a specified time limit, NCAT sets its own: 28 days from when you became entitled to make the application. These applications include applications by occupants to be recognised as a tenant, applications for rent reductions because facilitiers have been withdrawn, and applications for declarations as to whether the Residential Tenancies Act applies to an agreement.

We think imposing a 28-day time limit on these applications could lead to some unreasonable or harsh results, so will be recommending to NSW Fair Trading to specify more reasonable time limits. Until then, make sure you when you make one of these applications that you ask the Tribunal for an extension of time if you're outside the 28 days.

Monday, January 6, 2014

Assisting the authorities with their inquiries

... and we're back. Happy New Year, Brown Couch readers.

It's a busy start to 2014, with two separate government inquiries into housing being conducted. The Tenants' Union will be making submissions to both.

The first is the inquiry of the NSW Legislative Council Select Committee on Social, Public and Affordable Housing. We expect our submission will focus on the problems caused by the failure of social housing supply to keep up with demand, and particularly the inefficient, perverse and destructive outcomes of trying to address the imbalance through evermore tightly rationed access to social housing, such as through reviews as to eligibility and higher rent rates for moderate income earners, tough rules for succession and tough rules for staying on the waiting list.   

The second is an inquiry into 'affordable housing' by the Senate Economics References Committee. Because this a Commonwealth-level inquiry, we expect our submission will focus on the bigger picture of affordability problems across the housing system, and how our tax and finance settings make these problems worse.

You can help inform our submissions by sharing with us your own housing experiences – whether that's in dealing with the complexity and perversity of an increasingly meaner, not-necessarily leaner social housing system, or in trying to get housed affordably in the private market – by leaving a comment here on the Brown Couch, or on our facebook page.