Aboriginal Housing Victoria - Response to the Heading for home Residential Tenancies Act (RTA) Review Options Discussion Paper
Paper Part A: Overview
1.Policy objectives
Aboriginal Housing Victoria (AHV) supports the proposed policy objectives for the RTA, as outlined on page 26 of the Options paper.
2.Modern terminology
AHV notes that the terms “landlord” and “tenant” are established terms with legal authority,but that some stakeholders may consider the terms to be gender specific and potentially negative. However, AHV, but does not have strong views on the need to change (or retain) the terms.
Part B: Starting and maintaining a tenancy
3.Application of the RTA and lease lengths
Application of the RTA and lease lengths
AHV agrees in principle with the option of extending lease periods beyond 5 years, and maintaining RTA coverage, together with tenant options to extend fixed term leases. However, as 5-year leases are available now, and yet rarely entered into, it is difficult to see how introducing options for longer leases will result in any real change in practice. It is not necessarily in the interest of landlords to enter into leases beyond 12 months and given the demand for private rental accommodation this is unlikely to change.
4.Rights and responsibilities before a tenancy
Unlawful discrimination against applicants and tenants
AHV recognises that it can be difficult to prove cases of discrimination by landlords and/or agents, particularly as there is a generally a number of potential applicants for vacant rental properties. We also recognise the limits of practical redress, when the property has already been let to someone else. However, costs/damages can potentially be awarded to applicants. Providing information on unlawful discrimination, including actions applicants can take to seek an investigation of any complaints about discrimination sends the right message to all parties. Similarly direct references to the EOA in the RTA provides tenants with some recourse in the event that they consider action by the landlord to be motivated by racial, gender or other forms of unlawful discrimination. Proposed RTA provisions will need to include reference to EOA exemptions for housing agencies providing housing to specific client groups, eg, aged, disabled, or Aboriginal people.
Privacy and use of tenancy application information
The principle of protecting privacy of applicants and tenants is strongly supported. Should applicants have evidence that landlords/agents have used their information for another purpose, the option to seek compensation at VCAT should be available, so that landlords/agents recognise that there are potential penalties for failing to protect the privacy of applicants.
AHV strongly supports prohibiting a fee to provide a tenant with a copy of their listing on a tenancy database. AHV can see no reason why VCAT should not have the power to make orders to amend or remove a listing.
Disclosure of information to tenants
Requiring disclosure of particular information about a property is consistent with consumer law requirements. Disclosing the items of information as listed in option 4.6 is supported as these are all issues that will have a significant bearing on the suitability of the property for the tenant. It is difficult to identify any circumstances where a prohibition on false, misleading or deceptive representations would by “unduly burdensome” for landlord and agents.
Details of landlord for legal proceedings
It is not clear why these options are provided as alternatives rather than stand alone options, as they're not mutually exclusive. During the course of a tenancy the landlord's contact details may change and there is little incentive for unscrupulous landlords to provide current contact details when orders have been made against them. Given that landlords have access to the contact details of tenants, it is difficult to justify that tenants should not have the landlord's contact details because their safety and privacy must be protected. In the event that a landlord has legitimate reasons to not release contact details to the tenant, these reasons can be raised at the VCAT hearing and a determination made accordingly.
5.Rights and responsibilities during a tenancy
Standard tenancy agreement
Key respective rights and responsibilities of landlords and tenants should be included in a standard tenancy agreement (including those subject to breach of duty notices). Blacklisted terms identified in Option 4.10 should be included in a comprehensive tenancy agreement. AHV can see no reason why a contracting out offence should not be introduced. The status quo for maintaining current processes for enforcement of additional terms is AHV’s preferred option. If a new standard tenancy agreement is to be more comprehensive, along the lines outlined in the Options paper there should be little necessity for additional terms.
Breaches of duty
Option 5.2B is preferable in terms of successive breaches, as it allows for the landlord to take more timely action, particularly if successive breaches occur within the 14-day period (eg, ongoing nuisance). This can create considerable problems for social housing landlords as there is often an expectation by neighbours that we should/can take more immediate action to require tenants to remedy breaches. More timely applications for VCAT compliance orders would give a stronger message to tenants of the need for compliance than simply issuing another breach notice.
As a principle, AHV supports additional duty provisions, in line with other issues raised in the Options paper, eg unlawful discrimination, misleading representations and these should be subject to the breach of duty process.
Risk of unfair eviction should be avoided by the need to be able to provide strong evidence of the seriousness of breach(es), in circumstances where landlords are seeking to obtain a termination/possession order, without having previously sought and been granted a compliance order.
Pets in rented premises
As AHV does not apply bonds to tenancies, we have no comment to make on an appropriate amount for a pet bond.
AHV supports the option of a “no pets” clause being unenforceable if it is unreasonable, along with the list of criteria to be considered. In many ways the existing provisions around tenant obligations can apply regardless of whether the household includes a pet. That is, the tenant is liable for any damage to the premises (regardless of whether the damage is caused by another member of the households, a visitor or a pet). This is also the case with nuisance breaches.
Subletting and assignment
AHV strongly supports the statement in the Options paper that it is reasonable for a social housing landlord to withhold consent to sub-let or assign because it would disadvantage people on the waiting list. Landlord consent should always be required in these circumstances, regardless of whether the tenant is receiving a financial benefit from the arrangement. As AHV would rarely provide consent and would not require an assignment fee should consent be provided, we have no preference in relation to options assignment fees
6.Rights and responsibilities at the end of a tenancy
Lease break costs
The RTA needs to provide some protection for vulnerable tenants who are more likely to experience chaotic lives that directly impact on their capacity to maintain fixed term leases. Common law principles are currently applied by VCAT so codifying these principles will provide greater clarity to landlords and tenants.
Optional lease break feeclauses are not supported as this does not provide for consideration of circumstances of both parties, eg, capacity of landlords to quickly re-let properties may vary across metro and rural locations.
Existing provisions significantly disadvantage vulnerable tenants who may need to leave a property urgently and cannot wait until the matter is heard at VCAT (assuming tenants even understand that they must seek a VCAT determination in these circumstances).
Severe hardship and special circumstances
Applying the special circumstances provisions as outlined in Option 6.5 is strongly supported. While 14 days notice may be difficult for some low income tenants, ending a tenancy with no notice may cause some hardship for landlords. At least two weeks notice provides some buffer to enable property to be re-tenanted.
Goods left behind
The NSW model is not supported. Storage for 14 days only is too short for tenants vacating the property for urgent/crisis reasons, eg family violence. Similarly storage of "high value" goods requires landlords to make decisions about monetary value of goods above or below $500. Removal of requirement to publish prescribed notices in newspapers and a notice of auction is strongly supported, as is the flexibility to sell goods by any method of sale. Streamlining CAV assessment process to enable better self-assessment is supported, as long as landlords who follow the self-assessment guidelines are not subject to successful claims for compensation from former tenants.
7.Bonds and rent
Bonds
AHV does not charge bonds and if changes to maximum bond amounts are limited to high value rental properties, these changes are unlikely to impact on low income, vulnerable tenants.
The need for landlords to substantiate any claims against the bond at VCAT or in a prescribed dispute resolution process is supported, along with the option for tenants to return to the property to undertake further cleaning in order to avoid a bond claim by the landlord, as discussed in section 8.3.
Rent increases
A move from a minimum of 6 months to annual rent increases is supported as it more appropriately reflects current practice and gives greater certainty to tenants. Disclosure of rent increases in fixed term tenancies is supported for the same reason. If landlords find this too restrictive, one option would be to shorten the period of the fixed term.
Rent payment methods
Given availability of electronic funds transfer, the option of a fee-free payment method for tenants should pose no problem for landlords. If agents choose to use third party collectors, because it reduces their administration costs, they should meet the cost of third party collectors, not pass these cost on to tenants.
Chances are remote that requiring landlords to accept Centrepay will have unintended adverse consequences, and these should be outweighed by the advantage of receiving rent payments on a regular direct-debit basis.
Rent bidding
The RTA should regulate rental bidding because low income vulnerable tenants face significant barriers in successfully applying for private rental properties, with Aboriginal tenants facing the added barrier of discrimination. Requiring landlords/agents to advertise at a fixed price and to refuse rental bids above an advertised price is supported on the basis that it at leastremoves one barrier, and makes the process transparent for all parties.
8.Property condition
Property condition reports
Five business days after moving in is considered a reasonable time for tenants to complete the report, as it will allow time to identify issues that may only be apparent once the tenant is living in the property. Proposed trigger points for condition reporting are supported in principle,but completion of new condition reports as part of periodic inspections and when a lease is transferred to another member of the household should be optional rather than mandatory. Tenants should be given the option to sign a new condition report under these circumstances but both parties may agree that the condition of the property has not changed sufficiently to warrant an updated condition report. More detailed condition reports are not necessary but provision of additional free text would allow either/both parties to make further comments as necessary.
Condition of property at the start and end of a tenancy
As mentioned previously, the option for tenants to return to the property, to clean or repair any damage that may be subject to a bond claim by the landlord is supported, as often costs to hire a contractors to undertake cleaning and rubbish removal can be prohibitive. The clarification of cleanliness and good repair as outlined in Option 8.8 is also supported as a reasonable, common sense approach, which identifies the relevance of age and character of properties, together with fair wear and tear.
Locks and security devices
AHV does not support the fitting of deadlocks in social housing, given the risks posed to aged, disabled and vulnerable tenants in the event of a fire. We consider that the requirement to fit locks and other security devices to ensure the property is reasonably secure is sufficient to meet landlord obligations.
While landlords may be prepared to provide additional security in certain circumstances (AHV does so for family violence victims, for example) requiring landlords to provide additional security such as lockable screen doors and sensor lighting is not supported. Mandating additional security is likely to mean that costs are passed on in increased rents and may not be suitable and/or desirable for specific properties or tenants. For example, sensor lighting can be unsuitable in higher density developments.
Minimum standards
Adoption of minimum standards of safety and amenity is supported in principle. However, as mentioned above, introducing such standards is likely to result in increased rents at the lower end of the market (i.e., those properties that are more likely to fail to meet current standards). This will have a direct impact on low-income tenants who can least afford increased rents. Suggest minimum standards should be just that; focussing on safety and basic amenity rather than energy efficiency, so that the vast majority of properties will comply without the requirement for significant retrofitting.
AHV would also question whether fly screens on all external windows, and window coverings in bedroom and living areas represent minimum standards.
The period of transition for landlords to bring properties to minimum standards will depend on the final definition. If it is limited to basic safety and amenity standards a twelve month implementation period would be reasonable.
Clarification of responsibility for certain maintenance
In the case of smoke alarms, AHV recognises that the landlord has responsibility for ensuring that a working smoke alarm is installed at the time of tenancy commencement. During the tenancy the tenant should be responsible for regularly checking that the alarm is working and for reporting any non-functioning of the smoke alarm to the landlord. The requirement for a landlord to also test the alarm every six months during the period of the tenancy seems unreasonable, and may be viewed by tenants as an unnecessary intrusion by the landlord/agent.
The development of maintenance guidelines by Director CAV is supported - these should include responsibility for cleaning gutters and removal of vermin/pest infestation (tenant responsibility if infestation is due to failure to maintain the premises in clean condition; landlord responsibility if related to the structure/standard of the premises). The option for landlords and tenants to agree to different maintenance arrangements should be retained to meet individual requirements.
Landlord consent for certain modifications
There needs to be an agreed definition of a minor modification. The Options paper raises issues such as adhesive tape on walls, use of energy lightbulbs or possibly some new plants in the garden as potential "minor modifications". AHV would question the inclusion of such items as meeting the definition of minor modifications, and therefore requiring landlord consent. Minor modifications should be limited to those fixtures or changes to the property that require some level of workmanship or skill in order to meet safety and amenity standards, and avoid any damage to the property, eg installation of handrails, energy efficient tapware, furniture anchors.
While use of a suitably qualified person to undertake these works would minimise risks to the property, AHV still supports the need for landlord consent, so that the landlord is informed about the modification and can opt to use their own tradesperson as long as this is does not incur additional costs for the tenant.
Payment of connection services
AHV strongly supports extending the option to apply a service charge to community housing operators. We also support the right of tenants to dispute the imposition of a supply related charge in social housing, including the amount to be imposed.
Clarification of damage and fair wear and tear
AHV supports any additional clarification of definitions and consideration of depreciation within the RTA, together with CAV guidelines in relation to "fair wear and tear".
Reasonable timeframe for repairs
Use of a dispute resolution service rather than referral to VCAT is strongly supported as Aboriginal tenants (private and social housing) are more likely to participate in a process which does not take place in a "court" setting.
AHV is concerned that requiring social housing landlords to pay a "maintenance bond" when these landlords do not seek bond from tenants, will have an adverse impact on their financial viability, given the number of relatively large number of properties own/managed by community housing agencies. AHV also considers that extending the list of urgent repairs should only occur after careful consideration of implications of same - the list must continue to be limited to genuine health and safety issues.