: Residential Tenancies Act review

Residential Tenancies Act review

Ned Cutcher
New South Wales

Following a public consultation process and a review of the Residential Tenancies Act 2010 (NSW), NSW Fair Trading released a report in late June 2016.

As a statutory review, there was no imperative for Fair Trading to revisit the policy intentions upon which the Act was based. Despite this, their consultation paper raised questions such as how and why tenancies should be brought to an end, whether current provisions around rent increases are fairly set, and whether the Act strikes the right balance between the interests of landlords and tenants in New South Wales. The Tenants’ Union of NSW (‘TUNSW’) made strong submissions on these points, as did many other organisations and individuals with an interest in tenants’ rights. But these discussions have been left unresolved.

Fair Trading’s report includes 27 recommendations, ranging from the broad to the specific. There are some suggestions of further work to be done before final positions can be arrived at. On all counts, these recommendations are intended to provide clarity and certainty over the Act’s provisions. They do not reflect a shift away from the premises upon which the Act is based – that there is no imbalance of power between landlords and tenants, and that renting is a transitional tenure that people will move on from as they establish themselves in life.

Among the highlights, Fair Trading’s report recommends that:

  • co-tenants should be able to end a tenancy immediately, by giving written notice and producing evidence of domestic violence – but this is limited to a provisional, interim or final AVO; 
  • residential tenancy databases should be prevented from charging tenants a fee to discover any personal listed information they have on record;
  • the question of a landlord’s ‘reasonable diligence’ should be shifted to remedy rather than breach in matters concerning repairs and maintenance;
  • the requirement for landlords to disclose ‘material facts’ prior to entering into an agreement should become an enforceable term of every agreement.

Lowlights include:

  • allowing landlords to photograph the interior of a tenant’s home for publication during a sales campaign;
  • preserving the ‘frequently failed to pay’ provisions in the otherwise useful ‘pay and stay’ rent arrears provisions.

Further work is to be done around possibilities for the regulation of shared housing arrangements, and whether the use of long fixed-term tenancies can be encouraged.

While the report recommends a number of necessary changes to the law, TUNSW regards Fair Trading’s report as a missed opportunity. It is expected that amending legislation will be produced early in 2017; we hope the NSW government will take the time to consider making changes to renting laws beyond those that have been recommended in Fair Trading’s report.

NED CUTCHER is Senior Policy Officer with the Tenants’ Union of NSW.

(2016) 41(3) AltLJ 211
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