Submission cover sheet
- Name of organisation or individual making this submission
Eastern Area Tenants Service Incorporated
- Authorised delegate/contact person
Chief Executive Officer
Questions on possible options
- Is a 2 December 2019 commencement date for the proposed Regulation and Amendment Act reasonable for industry participants to adjust to the changes? If not, why?
As a front line organisation providing information, advice and advocacy to tenants, we will require time to re-train staff and update resources. We are guided by the comments of the Tenants Union of NSW, on this point as the training and resource provider of the sector.
- Is a mid-2020 date appropriate for commencement of the new minimum standards for rental properties? If not, why?
We do not support a later role out of the minimum standards. We note that while landlords already have the responsibility to provide premises that are fit for habitation under s. 52(1), landlords continue to let out properties with major issues that affect habitability, for example, properties with limited ventilation. Often these issues are not immediately apparent to potential tenants and are not revealed until the tenants have committed to the agreement. It is not uncommon for cases like this to end up in the NSW Civil and Administrative Tribunal. The minimum standards provide extra clarity to s 52(1). Landlords should already be complying with the minimum standards under s 52(1), for this reason, and due to the fact that the minimum standards were passed in October 2018, we do not see any need to delay their application. To delay their introduction would only provide a period of grace to landlords that are already in breach of their obligations under the Act and would be confusing to tenants.
- Are there other terms in the proposed Regulation that should be defined so that their meaning is clear?
- Does the new standard form of tenancy agreement clearly define the rights and obligations of both landlords and tenants?
- Are there other ways that the standard form of tenancy agreement can be improved? If so, how?
In relation to the details of the rental bond, we would like to see the inclusion of words to the effect of a rental bond of .... must be paid by the tenant on signing this agreement. By law, the rental bond must be lodged by the landlord (or their agent) with the Secretary via the Rental Bond Board. This is in accordance with s 162 of the Act. This would reenforce the landlords responsibilities in this regard. We would also submit that the standard form agreement should prescribe that where possible, the strata by-laws should be provided at the same time as the standard form agreement is given to the prospective tenants as best practice. We would like to see a checkbox option as to whether the bylaws are attached to the agreement to encourage this.
- Are there any other terms that should be prohibited from being included in a residential tenancy agreement?
We submit that clauses 51 and 52 in the draft standard form agreement set up the presumption that pets will not be permitted by default. There are no prescribed terms around pets in the Residential Tenancies Act 2010 (NSW), and we would like to see the removal of these clauses. We note that the Strata Schemes Management Act 2016 (NSW) has amended its provisions to reflect more positive societal attitudes around pets. Instead, we would propose amending this section to include a statement to the effect that "the tenant advises that the following pets will be residing at the premises" with space for the type of animal and number to be included. A clause could also be included that states that the tenant agrees that they will notify the landlord in writing within 14 days if there are changes to the number of pets that will ordinarily reside at the premises We also submit that cl. 53 is unnecessary – tenants already have a responsibility to not intentionally or negligently cause or permit damage to the residential premises under clause 16.4. Likewise cls 18.2 and 18.3 provide that the tenant is responsible to leave the premises reasonably clean, having regard to their condition at the commencement of the tenancy. Reiterating these provision in reference to pets sets up an often unfounded fear that allowing pets will inadvertently result in damage to the carpet or pests. We note that there appears to be a typo in the definition section at 5 ‘Other grounds for ending the agreement’. Under grounds for the landlord it states ‘breach by the landlord of information disclosure provisions under section 26 of the Act’. This should be a ground for the tenant, not the landlord and we think it is unnecessary, as general breach by the landlord is already set out.
- Do you agree that these terms should not be excluded or modified by a fixed term agreement of 20 years or more?
Potentially yes. For example, we would anticipate that it would not necessarily be appropriate for a landlord to be able to issue a 30 day end of fixed term termination notice for a tenancy of 20 years, given the length of time that the tenant has lived in the premises. We would argue that a landlord should have to give a longer notice period - no less than 90 days would be appropriate.
- Are there other terms in the Act that should not be excluded or modified in fixed term agreements of 20 years or more?
- Do you think that the proposed condition report is easy to use?
Yes. We believe that the proposed condition report is far easier to interpret and complete than the current one.
- Should any other features be included in the condition report to help accurately describe the condition of the premises?
It should be essential that landlords disclose whether premises are insulated, as this is something that tenants are not usually able to determine through inspection of the premises. We would also like to see details regarding the installation, repair or maintenance of significant appliances provided with the premises, e.g. air conditioners, dishwashers, hot water systems included in the section Approximate dates when work last done on the residential premises. Photographs should be included as a standard part of any ingoing/outgoing condition report and should be dated and signed by both parties. Dual flush toilets should be included as a necessary water efficiency measure that the landlord must demonstrate. We would also like to see a reference to the hot water system being in good, working order with no visible leaks. The capacity of the hot water system should be provided on the condition report so tenants can know whether the hot water system is sufficient for their household.
- For the material fact listed under clause 8(f), are there other instances where a landlord could become aware that the property has been used to manufacture drugs?
The fact that a premises was used for drug manufacture may not have been reported to police and or council. Having said this, the potential health risks would make it necessary to disclose that a premises has been used for the manufacture of drugs. We suggest that a clause be added to the effect of or the landlord otherwise becomes aware that the property has been used to manufacture drugs.
- Are the prescribed timeframes for disclosing each of the material facts listed under clause 8, still appropriate? If not, why?
We submit that the time-frames should be guided by industry assessment of potential risk of harm from exposure in each instance. Failing that, five years across all disclosable material facts is preferred.
- Are the proposed material facts listed under clause 8 too broad or too narrow? If yes, why?
They are too narrow.
- Are there other types of material facts that a landlord or landlord’s agent should disclose to a prospective tenant?
We believe that there are other material facts that should be disclosed to a prospective tenant, for this reason, we believe that the material facts listed under clause 8 are too narrow. - If the property is located in a bushfire prone area, whether it is located within the flame zone; - whether the premises contain asbestos or other potentially toxic substances, for example, lead based paint; - Whether the premises has a residual current device (electrical safety switch) and whether it has an earth rod (premises built before 1977) - whether the premises has been built on ground that has been identified as posing a health risk due to contamination - whether the premises is heritage listed;
- Are clauses 9, 10 and 11 still appropriate? If so, why?
Clause 9 should be removed. We are not sure what a renewable energy rebate is and do not know of any social housing tenants that receive this rebate. Clause 10 should be removed. We note that this clause directly contradicts s 38(1)(a) where it is provided that utilities should be separately metered. We are also uncomfortable with the use of the term ‘reasonable’ in this context and how this may fairly be interpreted. Likewise we are uncomfortable in low income tenants being charged reasonable charges for cleaning kitchens or other facilities. If such clauses are to remain, then any methods for determining these charges must remain consistent for the term of the tenancy agreement and the method of calculating the amounts should be advised prior to the tenant entering into the agreement. We do not have issue with clause 11, so long as such changes are set out at the start of the tenancy, including methods of calculating the charges and are charged as separate to rent.
- Are there any other charges that should apply to social housing tenants?
- Are there other water efficiency measures that should be prescribed? If so, why?
Dual flush toilets should be included as a prescribed water efficiency mechanism.
- Is the newly drafted clause 13 appropriate? If not, why?
We believe that clause 13 is appropriate. A tenant should not have to pay access fees for gas when they do not use gas at the premises.
- Do the requirements appropriately balance tenant safety with administrative costs to landlords and agents? If not, why?
We believe that the safety of tenants in rental properties is paramount and that the administrative costs to a landlord in replacing or maintaining a fire alarm are comparatively very low. We consider that it is appropriate that landlords repair a smoke alarm that is not working as soon as possible. We would like to see clause 15(1) reworded to state a smoke alarm that is not working should be repaired no later than 24 hours after the landlord is notified of that fact
- Are there other circumstances where repairs to a smoke alarm should be carried out by a qualified professional? If so, why?
No. not that we are aware.
- Are any of the smoke alarm repair requirements unclear? If so, why?
- How much notice should a tenant give a landlord to carry out repairs to a smoke alarm, given the need to repair it urgently?
We believe that the safety of tenants in rental properties is paramount and that the administrative costs to a landlord in replacing or maintaining a fire alarm are comparatively very low. We consider that it is appropriate that landlords repair a smoke alarm that is not working as soon as possible. We would like to see clause 15(1) reworded to state a smoke alarm that is not working should be repaired within 24 hours after the landlord is notified of that fact on the basis that research indicates that there are 24 hour services available that can repair/replace fire alarms.
- Do you agree that the prescribed list of minor alterations is reasonable? If not, why?
No. We believe it should be expanded. Additions that we would like to see include: - hand rails and bars; - non slip tape; - non permanent ramps; - any other non-permanent alteration as prescribed by a treating medical professional to assist an occupant of a premises with a disability. We are currently seeing tenants with disabilities accessing NDIS funding that may extend to the provision of physical aids in the home. We would like to see the Residential Tenancies Act 2010 (NSW). Renters may be disadvantaged in accessing funding for equipment they require if the landlord withholds consent for these alterations. We appreciate that major alterations should always be subject to the landlords approval. we would also like to see the provision for the addition of minor alteration to the property for the purposes of security, such as the installation of additional security devices such as locks and security screens, sensor lighting or security alarm systems. We feel that such alterations would be of particular benefit for the victims of domestic violence who choose to stay within their properties. We would like to see tenants permitted make minor alterations to properties related to the keeping of animals, including the installation of dog/cat doors and non permanent containment mechanisms, such as cat enclosures. and lastly, that tenants are able to make minor alterations to flame zone or flood prone premises as prescribed by accident and emergency authorities including the Rural Fire Service (RFS), Fire and Rescue NSW (FR NSW) and the State Emergency Services (SES).
- Do you agree with the list of alterations where consent may be conditional on having the work carried out by a qualified tradesperson? If not, why?
We have no problems with these works being done by a qualified tradesperson.
- Are there other types of minor alterations that should be prescribed, including measures to further improve accessibility for elderly or disabled tenants?
Please see our comment above regarding additions generally. We would like to see any minor alteration that is related to improving accessibility for older or disabled tenants permitted without the consent of the landlord, provided that the tenant can demonstrate a need for these alterations.
- Do you agree with the list of exceptions? If not, why?
Whilst we appreciate that there will be instances where external conditions may impact on a tenants ability to do minor alterations, we believe that there is no need to include this clause, and we are confused as to some of the categories of premises where alterations will not be permitted, for instance, we would anticipate that minor alterations in relation to mobility may be of great value to tenants living in a retirement village premises. We would prefer that there are no blanket exclusion relating to specific types of premises and note that 66(2) allows a landlord to refuse consent if there are grounds to do so.
- Are there any other situations where clause 17 should not apply?
No, for the reasons set out above.
- Do you have any suggestions on how the wording and layout of the declaration form could be improved?
The declaration is overly wordy. We feel that persons using the form will struggle to read all of the content and we note that the standard medical consult is 15 minutes. We would hope that the declaration would be kept as simple as possible, whilst still providing all relevant information required to complete the form. We would suggest that a secondary resource explaining the purpose of the declaration and how to fill it out would be much better. We also believe that education and training may go some way as to familiarising relevant practitioners on how to complete the declaration. We would also suggest that the form be subject to review by the medical profession for their input, if it is not already provided as part of this enquiry. We are concerned about the warning statement. We believe that this statement may discourage medical practitioners from completing the form. We note that medical practitioners are of a class of persons normally able to witness statutory declarations and would suggest that the terminology regarding false and misleading statements for statutory declarations should be the starting point for the warning section of the declaration. We do endorse the inclusion of the paragraph stating that it is not an offence to make a declaration based on information that the practitioner believed to be true at the time of making the declaration. We would like an explanation as to why a phone number is required to be provided for the tenant seeking to terminate the tenancy provided on the declaration. We also do not understand why it is relevant for the medical practitioner to disclose whether the child is wholly or partially dependent on the tenant for support and believe this clause should be omitted. We note that the term support is ambiguous (emotional, physical, financial?). The class of relationships between the tenant and the perpetrator is too broad. We would suggest that this section be simplified to read something as follows: I am satisfied that the tenant and the domestic violence offender are or were (select the descriptions that apply): a) in a domestic relationship (inc spousal/defacto, relatives, or kin); b) in an intimate personal relationship whether or not the relationship is of a sexual nature; c) living in the same household (this includes either by formal arrangement or otherwise); The section in which the practitioner is required to fill out either part A or part B in the declaration is too wordy and difficult to interpret. We would suggest simplifying it to simply state words to the effect of: (name) the tenant/dependent child of the tenant (circle which is applicable) has experienced/is experiencing domestic violence by the person named in question 1 of part 3 (the perpetrator) for the period (date) to (date). We also note that it is more usual to circle applicable terms rather than cross them out.
- Should the exemptions provided for in clauses 19-26 continue to apply? If not, why?
In relation to clause 19, we do not see why NSW Land and Housing Corporation and Aboriginal Housing Office should not permit the lodgement of rental bonds with Rental Bonds Online. We would imagine that this process may in fact make the process of receiving bond payments from social housing tenants easier. In relation to clause 22, we see no practical reason why heritage premises owned by the Crown, Public Authority or a Council should be excluded from the RTA. We submit that to exclude such premises prevents persons living in these premises from being able to guarantee that they have access to properties to live in that are safe, clean, habitable and secure - that should be the paramount consideration. It also puts these persons at risk of rent increases and eviction. If there are concerns relating to the impact rights to repairs or maintenance may have on heritage building, it is noted that repairs provisions under the RTA state that the age of the property is to be considered in terms of the repairs and maintenance requirements. This might be read to imply that limitations on the scope of repairs or maintenance may be appropriate in the case of heritage buildings. In relation to s. 23 we do not have sufficient information on the nature of St Patricks Estate to comment. In relation to s. 24, we do not believe that a difference should be made between tenants with a life tenancy and tenants where the tenancy is for a lesser term, we do not see any practical difference in terms of the interest vested in either party. We are concerned that tenants under life tenancies have limited abilities to access legal remedies in instances of breach and may be forced to live in premises that are poorly maintained or not maintained at all. In this respect, we see life tenants having many of the same limitations as protected tenants - who we know often are forced to live in premises in severe disrepair with no recourse. We share the concerns of the Tenants Union of NSW and seek to have life tenants included under the RTA. In relation to s 25, we do not see why students living in accommodation that is principally used as a residential college should not be able to access rights under the RTA if they are able to demonstrate they meet the definition of a tenant. We are aware of instances where students live in self contained units, that would be otherwise covered under the RTA. We note also that custom built university accommodation has evolved over the years - accommodation used to resemble something more akin to a boarding or lodging situation, and we appreciate that when this was the case, inclusion under the RTA would not have been appropriate. We submit that as student accommodation has evolved, it is no longer appropriate to exclude a class of residence that covers a diverse range of accommodation types. We would also submit that students who are residents of such premises can and are hit with a number of arguably unfair costs which would not be permitted under the RTA. These costs can include monetary penalties for minor breaches of agreement, the requirement to pay out lease terms if vacating early, whilst they also do not have the same protections to recover bonds, be repaid overpaid rent etc. We would like to see this exemption removed. Lastly in regards to s. 26, we do not in principal object to this, provided that both parties agree to this.
- Is the new exemption provided by clause 27 appropriate? If not, why?
We do not believe that this is appropriate. New provisions have been introduced requiring certain classes of social housing tenants to pay bonds, and the issue of damage to properties when tenants vacate either to transfer to an alternative social housing premises or when exiting the private housing market is a significant one. If the Tribunal is of the opinion that a condition report does not accurately represent the state of the premises, then there should be capacity for the Tribunal to order amendment of the condition report. In saying this, we note that the condition report is the key piece of evidence in bond claim matters at NCAT and is taken prima facie as being indicative of the condition of the premises.
- Is the new exemption provided by clauses 28 appropriate? If not, why?
We are uncomfortable with the idea that a social housing tenant should be responsible to pay any charges for essential services beyond usage costs. We do not support the inclusion of this provision and we believe that it will cause un-neccessary hardship to tenants on limited incomes.
- Is the new exemption provided by clause 29 appropriate? If not, why?
Variations on the basis of a rental rebate calculation are as a direct result of information provided by a tenant or an investigation that may be independently conducted if the landlord has reason to believe that the rent rebate has been inappropriately applied. It is possible if a rental adjustment is made, for the tenant to find themselves in a position where they could be issued with a termination notice. We do not support the position that a tenant could, in theory, have their rent rebate readjusted overnight without some period of notice or a mechanism for a payment plan if there is a resulting debt.
- Is the new exemption provided by clause 30 appropriate? If not, why?
We do not support this provision. A tenant does not have a direct relationship with strata, but the landlord does have a responsibility, when put on notice by a tenant, to attend to repairs and maintenance at the premises. This is established in the case of Bhandari v Laming  NSWCATAP 224. We would anticipate that such a provision would allow the landlord to shirk this responsibility and force the tenant into the difficult position of attempting to pursue urgent repairs to smoke alarms through the body corporate. Again, health and safety of the tenant is of paramount importance here.
- Is the exemption provided by clause 31 appropriate? If not, why?
We believe that social housing providers, including HNSW should have identical responsibilities in relation to repairs and maintenance of residential premises as private landlords. It would be unfair to social housing tenants to not be able to access the same rights to repair, reinforcing societal prejudices towards social housing residents as second rate citizens. We note that many social housing properties are in a state of disrepair and that social housing providers can struggle to undertake repairs as required under the RTA. We would submit that this is a result in a severe underinvestment in housing maintenance by successive governments. Government apathy in relation to maintaining aging stock should not impact on the ability of a tenant to live in a premises that is in a reasonable state of repair and maintenance. At the same time, currently one of the only ways that a tenant can force a social housing provider to do repairs is through NCAT orders, including orders for rent reduction for withdrawal of services. In practice, outside the scope of NCAT there are a number of solutions that are regularly arrived at, when repairs are considered to be too costly or extensive to perform, including relocation of tenants to alternative premises. NCAT remains at this point, the most appropriate, impartial mechanism for determining when repairs are required, the scope of said repairs and the reasonable scope of time needed to complete said repairs. We would not support this clause.
- Are the timeframes for making applications to the Tribunal adequate? If not, why?
- Is the jurisdictional limit set for rental bond and other matters adequate? If not, why?
We support the increase in jurisdictional limits as prescribed by the Tenants Union of NSW - being no more than $20,000 for claims other than bonds and remaining at $30,000 for bonds.
- Are there any unintended consequences in prescribing a cumulative amount where an order is made with respect to both a rental bond and another matter?
We endorse the comments made by the Tenants Union of NSW in relation to this question. The NSW Civil and Administrative Tribunal is intended to resolve disputes quickly and expediently. Within the Consumer and Trader Division there is no requirement for parties to be legally represented. Introducing larger jurisdictional limits would up the stakes and we would anticipate that the informal and accessible nature of the Tribunal would be jeopardised. We also do not believe that increases to the extent proposed in the draft regulations is necessary. Our service operates in one of the most affluent areas of Sydney. Notwithstanding that, we have never encountered claims coming close to the proposed figures, for bond or otherwise.
- Should an interest rate on rental bonds still be prescribed? Why?
Yes. Interest in bonds funds a range of invaluable services including the Tenants Advice and Advocacy Program (TAAP). In our experience we find that tenants respond positively to to learning that the interest from bond is utilised in this way. We note that tenants can opt to have the interest paid out to them if they wish. We would also note that it is appropriate that the interest from tenants money i.e. bonds - be reinvested into a service that provides information, advice and advocacy to them.
- Are the prescribed savings and transitional provisions appropriate?
- Are any other savings or transitional provisions required?
- Are the changes to penalty amounts in the proposed Regulation appropriate?
We support the submissions of the Tenants Union of NSW on this point, but add that the penalties are seldom, if ever, enforced to our knowledge. we would like to see penalties applied more consistently in instances of breach.