: Residential tenancies law reform in New South Wales

Residential tenancies law reform in New South Wales

Chris Martin
New South Wales

The new Residential Tenancies Act 2010 (NSW) commenced on 31 January 2011. The first major revamp of the State’s residential tenancies legislation in more than 20 years, it includes a number of positive innovations.

Residential tenancy databases are, for the first time, subject to a strong regime of regulation. The new Act prescribes the circumstances in which a person’s name and other information may be listed on a database, and timeframes for the removal of listings — including a maximum period of three years. Listed persons are entitled to be informed of the listing, and may apply to the Consumer, Trader and Tenancy Tribunal for orders that inaccurate, out-of-date or unjust listings be removed. The new provisions apply in relation to new listings and, from 1 May 2011, to current listings that were made before the Act’s commencement.

Domestic violence in tenancies is addressed specifically to provide better protection and options for survivors. Now, a final apprehended violence order (‘AVO’) which prohibits a tenant from having access to premises also has the effect of terminating that tenant’s tenancy. Tenancies of any other tenants or co-tenants remaining at the premises are not affected, and any remaining non-tenant occupants can apply to the Tribunal to have a tenancy vested in them. Alternatively, an AVO may be grounds for the remaining co-tenants to terminate the tenancy agreement — including during a fixed term, and without compensation to the landlord.

Rent arrears proceedings are now subject to what is becoming known as the ‘pay and stay’ principle: if the tenant pays the arrears in full, or pays in accordance with an agreed repayment plan, termination proceedings will cease — even where the Tribunal has ordered termination of the tenancy and execution of a warrant of possession is pending. This will encourage tenants who are the subject of proceedings to use available money to pay arrears rather than the costs of moving out and starting a new tenancy. A late amendment to the Act qualifies this principle by providing that the Tribunal may make termination orders despite the provisions if the tenant is ‘frequently’ in arrears.

The new Act makes some retrograde changes. In proceedings by landlords for termination without grounds, the Tribunal now must terminate, whereas previously it could decline to make a termination order, having regard to ‘the circumstances of the case’. These circumstances are now relevant only to the setting of the date for the return of possession, and not to whether the tenancy should be terminated at all.

In another worrying change, landlords will be required to hold goods (other than personal documents) left behind by former tenants for just 14 days, whereupon the goods may be disposed of or destroyed without regard to their value. Because these circumstances usually arise where the tenancy has ended in crisis — such as where the tenant has been hospitalised – vulnerable tenants may face devastating losses where they are too poor, sick or disorganised to remove their goods in time.

The new Act also leaves some tenancy legal problems unaddressed. As indicated above, the new Act retains ‘without grounds’ terminations by landlords, which make rental housing unnecessarily insecure and undermine many of the rights otherwise provided to tenants. A comprehensive set of reasonable grounds for termination should have been prescribed instead.

Also left unaddressed are the numerous categories of renters, boarders, lodgers, occupants of refuges and crisis accommodation, and students in residential colleges, who are not covered by the Act or any other residential tenancies legislation. These marginal renters remain subject to common law lodging licences, with little effective protection against poor housing conditions, summary rent increases and evictions. The ACT’s ‘occupancy agreements’ legislation, which provides for some basic, non-prescriptive occupancy principles and dispute resolution, is a sound model for marginal rental reform.

The new Act will be of interest beyond NSW, particularly Tasmania and WA, whose governments are currently conducting reviews of their respective pieces of legislation. The Act is broadly on the same model as the so-called Bradbrook model, first recommended in the course of the Commonwealth’s Poverty Inquiry in the 1970s, and enacted with considerable variation by all states and territories since then.

CHRIS MARTIN is the senior Policy Officer with the Tenants’ Union of NSW.

(2011) 36(2) AltLJ 132
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