: NSW housing law reform

NSW housing law reform

Thomas Mortimer
New South Wales

Spring has been a busy period in NSW housing law. Perhaps most prominent was the Residential Tenancies and Housing Legislation Amendment (Public Housing – Antisocial Behaviour) Bill 2015 (‘the Bill’). This was introduced into parliament without prior consultation, and was the subject of concerted efforts from community organisations and legal bodies to have it withdrawn or substantially modified.

The Bill was assented to on 22 October, with some amendments, and is expected to commence in early 2016.

Its wide-ranging provisions will diminish the NSW Civil and Administrative Tribunal’s (‘NCAT’) decision-making capacity, and profoundly impact the lives of many social housing tenants. Most notably, the Bill will require the Tribunal to terminate a social housing tenancy in most instances where it finds the residence has been used for an illegal purpose. At present, NCAT may consider all circumstances in this deliberation.

 

The Bill also establishes a system of ‘strike notices’, issued by social housing providers to tenants who commit minor breaches of their tenancy agreements. The provider may issue a notice of termination instead of a ‘third strike’ within 12 months, and the Tribunal’s ability to consider evidence of strikes will be diminished in termination proceedings. (For further details, see Chris Martin’s Brief ‘One Strike Evictions’, in this issue.)

The NSW parliament also passed major reforms to strata law, in a dual package of bills.

Of the two Bills passed, the Strata Schemes Development Bill 2015 has attracted the most controversy. This will allow a strata scheme to wind up with the agreement of 75 per cent of lot owners. At present all must approve. This will allow lot owners in more valuable suburbs to force the vulnerable and elderly into reluctant sales or redevelopment, without sufficient recompense to buy back into the area.

The Strata Schemes Management Bill 2015 has been less contentious. Many of its reforms are positive for tenants who live in strata schemes. For example, in schemes where more than half the lots are rented, tenants will be able to elect a committee representative — albeit to a non-voting role. However, while lot owners will be able to challenge harsh, unconscionable, or oppressive by-laws at NCAT, this option will remain unavailable to tenants.

The package passed on 27 October and is awaiting assent.

The long awaited Residential (Land Lease) Communities Act 2013 (NSW) was enacted on 1 November 2015. This represents comprehensive change to the regulation of residential parks, affecting both site owners and renters. For instance, site fee increases must now be written into site agreements, or increased no more than once a year.

Finally, on 29 October 2015, NSW Fair Trading published a discussion paper on the Residential Tenancies Act 2010 (NSW) (‘the Act’) — the primary instrument regulating the landlord-tenant relationship in NSW. This is part of a statutory review to determine ‘whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives’.

The paper notes that the changes canvassed are neither exhaustive nor indicative of government policy. But many areas for discussion have already been identified as key areas of concern by tenants’ advocacy groups. Perhaps most important is the capacity of landlords to terminate a tenancy without grounds. This power destabilises all tenancies, as it discourages tenants from enforcing their rights. To rectify this power imbalance, it should be replaced with an expanded list of grounds for termination.

The discussion paper also raises the issue of adequate protection for sub-tenants – an important conversation given sub-tenants without written agreements are excluded from the Act in most cases.

Reforms to bolster privacy protections and limit rent increases are also mentioned.

Submissions are open until January, and a report is to be tabled in Parliament before 17 June 2016.

THOMAS MORTIMER is a Policy Officer at the Tenants’ Union of NSW.

(2015) 40(4) AltLJ 285
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