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Housing

As defined in Chapter 1, people who are homeless may be living on the street, in SAAP accommodation or a refuge, with family or friends, or in a boarding house or caravan park. People at risk of homelessness might be living in private rental accommodation or public housing. Housing-related legal issues vary with accommodation type.

Preliminary analysis of the Law and Justice Foundation’s Legal Needs Survey 2003 indicated that an overwhelming number of homeless people reported that they had had a housing-related legal issue in the twelve months prior to the survey.⁶⁴ These data may reflect Chamberlain and MacKenzie’s notion of the ‘housing crisis career’, in which adults begin to move into homelessness as a result of financial and housing problems, which lead to them losing their accommodation and becoming homeless.⁶⁵

Legal issues relating to housing may essentially be divided between those issues that contribute to a loss of accommodation, and those issues that lead to people having problems regaining stable accommodation once they are homeless. Ideally, legal intervention should occur before people lose their accommodation. However, people may also need legal assistance to regain accommodation.

Housing-related debt

Consultations with stakeholder groups and homeless people for the current study indicated that housing-related debt can contribute to people losing their accommodation and prevent them from regaining it. Debts can arise from rent arrears or from damage to a property, with the accumulation of debt potentially leading to eviction. This can occur in the private rental market, public housing, boarding houses and caravan parks. However, most of the following examples refer to tenants’ relationships with the DOH, perhaps reflecting the experience of those interviewed for this study.

Rent arrears

Some participants reported falling into arrears with their rent as a result of financial disadvantage or loss of income.

When Social Security cut me off the dole, I was made homeless. No money to pay rent. That was it. So luckily for me I went and saw the Housing people and they said … tough luck, bugger off and come back in 12 years’ time.⁶⁶

An older Indigenous woman living in public housing said that she faced eviction because she had fallen behind in rent due when in hospital for a month.

I went down to Sydney for hospital for a while …so I got so far behind. They want me to put $1000 in on Friday and I haven’t got it. So they are going to kick me out.⁶⁷

Damage

Debt arising from damage to a property caused by tenants themselves or by others (including family or friends) is another source of housing-related debt. WLS staff, including domestic violence support workers, commented that they had many female clients with DOH debt arising from damage caused by their partners to the property in domestic violence situations.⁶⁸ The following case study exemplifies this problem. The woman from rural NSW described below was homeless with her three children under the age of seven.

She had left her de facto (who was father of children) two weeks before the baby was born. She was living out of her car staying at several friends’ houses. He had a history of violence to her. One year previously they were living together with their children in a Department of Housing house in another town. He violently assaulted her causing her physical injuries and causing extensive damage to several walls in the house and the door. She fled the home and notified the Department of Housing that she was handing in the keys. At the date of relinquishing her tenancy she had several hundred dollars in arrears. The Department of Housing tenancy agreement listed her and de facto jointly as tenants. She accrued a further one week’s rental debt as she handed her keys in at the beginning of the rental period (and so was liable for the full two weeks’ rental). The Department of Housing assessed the damage to her home at $2000. She had a debt to the Department of Housing of about $3000 (rental arrears and damages/repairs).

She began paying small amounts of this debt during the year. She did not make regular payments but did make lump sums when she had the money—$50 amounts here and there and several $200 one off payments.

After leaving her de facto she approached the Department of Housing for emergency/priority housing. She was advised by the Department of Housing that she could not go back onto the Priority Housing Waiting List until she had substantially repaid her debt to the department. She approached two real estate agents in town to inquire about homes for private rental. They said there were no properties available. The Department of Housing had sent her an ‘Acknowledgement of debt’ form to sign, stating that she accepted the debt and nominating a suitable repayment regime.⁶⁹

Problems arise when people do not notify DOH when another person causes damage to their property, or if they leave their property without notifying the department and other people continue to inhabit the property.

He [teenage son] got straight into the house after I moved out and it was just trashed. So I got a bill there. I just wasn’t thinking straight. I never notified them. I never told them I was moving out.⁷⁰

Damage by others was identified by one caseworker as a particular issue for people going to prison who do not want to lose their DOH property, so they allow their friends or family to live in the property. The tenant is subsequently responsible for any damage done to the property or rent not paid while they were in prison.⁷¹

Outstanding debt

As well as contributing to homelessness, outstanding housing debt was identified as a barrier for people trying to re-access DOH accommodation. To be eligible for public housing a tenant has to “repay, or undertake a formal agreement to repay, any outstanding debts owed to the Department [i.e. DOH]”.⁷² Some housing debts were said by caseworkers to be as high as $6000.⁷³ DOH will negotiate arrangements with tenants to repay rental arrears, which may include paying by instalments. However, one caseworker stated that more recently this had become much harder to do.

But they’re not allowed to access housing again until such time as that debt is paid off. So they can’t live anywhere. They can’t generally work because they can’t present themselves properly to work so how do they end up getting back into the system? So how do we have these laws that allow these things to happen?

Public housing plays a crucial role in the provision of stable accommodation to many financially and socially disadvantaged people. Hence, exclusion from public housing prohibits people from accessing stable accommodation, putting them at direct risk of homelessness.⁷⁴

Renewable tenancy agreements

The NSW Government recently passed the Residential Tenancies Amendment (Public Housing) Act 2004 (NSW) to target ‘anti-social behaviour’ in public housing.⁷⁵

Under the Act, ‘acceptable behaviour agreements’ (ABAs) may be used by DOH to regulate the behaviour of those tenants that it believes are responsible for anti-social behaviour.⁷⁶ Where any other ‘lawful occupant’ of the premises breaches the ABA, the tenant who has signed an ABA is treated as having breached the ABA themselves.⁷⁷ DOH plans to implement these powers once it has drafted its related policy, and trialled ABAs in two geographic areas.⁷⁸

The new laws require that, following an application from DOH, the Consumer, Trader and Tenancy Tribunal (CTTT) must order that the tenancy be terminated in either of two situations:

• a tenant refuses the DOH’s request to sign an ABA⁷⁹
• a tenant cannot prove that a member of the household, or any lawful occupant of the premises, did not seriously or persistently breach the ABA.⁸⁰

Further, even where no ABA applies, the new laws provide extra grounds for the CTTT to grant an application from DOH for immediate termination of the tenancy, such as where the tenant has intentionally engaged in conduct that would be reasonably likely to cause a member of staff to be intimidated or harassed.⁸¹

These laws have the potential to put public housing tenants at greater risk of homelessness. They present particular problems for tenants (and their families) with mental illnesses, acquired brain injuries or intellectual disabilities.⁸² The government envisages that the particular difficulties faced by such tenants will be addressed through support from interagency specialist response teams.⁸³ However the decision not to provide extra funding to staff this initiative has been criticised by one service provider.⁸⁴

Residential tenancy databases (RTDs)

There are several RTDs operating in NSW.⁸⁵ Each are privately owned electronic databases that purport to act as ‘risk minimisation’ services for property managers (including landlords, real estate agents, caravan park owners and boarding house operators). For a fee, property managers can use them to gain access to adverse information about prospective tenants.⁸⁶

RTDs were identified by a number of caseworkers and tenancy workers in this study as a significant barrier to homeless people re-entering the private rental market.⁸⁷ Landlords or real estate agents can place people on these lists and essentially ‘blacklist’ them, whereby other landlords will not rent out properties to listed tenants.

If you end up on a tenant black-list, then you cannot gain accommodation, and then you get back into that problem of falsifying documents to regain some sort of accommodation.⁸⁸

During the course of this research, tenancy workers and other caseworkers commented that there was no legislation governing the use of RTDs, nor were there mechanisms for appealing a decision to place a tenant on a database.⁸⁹ They felt that people were being put on such databases arbitrarily and, “even if an issue was resolved, it was very difficult to get off a database, making it very difficult to secure accommodation”.⁹⁰ Tenancy workers also felt that people were being put on the databases for making complaints to the CTTT, or for personality clashes with real estate agents.⁹¹ In the late 1990s, Boswell and Warren estimated that about 7500 tenants in NSW may be adversely affected by RTDs per year. They also suggest that this number is likely to have significantly increased with the growth of RTDs over the past decade.⁹²

Until recently, residential tenancy databases operated largely unchecked by government regulation.⁹³ However, legislation introduced on 15 September 2004 established a new Rule of Conduct for real estate agents, aimed at making the listing procedures of RTDs fairer.⁹⁴ The legislation limits the reasons for which a real estate agent may list a tenant to situations including where debts are owed by the tenant to the landlord, or where the CTTT has terminated the tenancy because of the tenant’s behaviour.⁹⁵ The new reforms have also set time limits for listings to be retained and improved the process for dealing with disputes about listings. Finally, tenants will no longer be charged up to $4.50 a minute to check whether they are listed on a database.⁹⁶

While the new regulations in NSW fail to prohibit RTDs, they represent improved protection from RTD abuse for many tenants. However, they have been criticised for not going far enough, since they fail to provide tenants with rights which they can seek to have enforced by the CTTT. Further, they do not apply to database users who are not real estate agents, such as private landlords and boarding house or caravan park operators.⁹⁷

Finally, the new restrictions purport to apply only to listings made after 15 September 2004,⁹⁸ leaving the thousands of people who were listed before this date without the protection afforded by this new legislation. However, since the legislation is somewhat ambiguous on this point, there may be grounds for arguing that some of the provisions of the new Regulation also apply to pre-September 15 listings, such as the requirement that tenants have free access to listed information about themselves. It is uncertain how the Regulation will eventually be interpreted.

Boarding houses

Many homeless people, particularly in inner-city Sydney, live in boarding houses on a medium- to long-term basis.⁹⁹ Because boarders and lodgers are excluded from the protection of the Residential Tenancies Act 1987 (NSW) (by s 6(1)(d) of that Act), boarding house residents lack legislative protection against arbitrary eviction, disputes over payment and other unfair treatment from boarding house landlords.¹⁰⁰ This means that there is no regulation of living conditions, penalties for rent arrears or unfair and arbitrary evictions for people using this type of accommodation. Unsanitary and dangerous conditions, unsatisfactory lock systems on doors, people’s belongings being stolen, exorbitant rent and people’s reluctance to complain about these conditions for fear of being evicted were problems mentioned by participants and tenancy workers interviewed for this study. One participant noted:

The place where I was staying before I moved into this other place, they were charging $120 a week and it was just a pest-infested dive. You know, the place was filthy, the kitchen was filthy … no one was looking after the place so I just moved out. And things got taken out of me room too.¹⁰¹

Another participant had this to say:

It’s a dive. The toilet doesn’t flush, and when it does flush the water runs downstairs into the power box and a roof with a big hole in it. They’ve got smoke alarms that have got nothing in them. $230 a week, it’s disgusting. I felt safe there because I’ve got a partner. I didn’t felt safe there, you know. At night, you can’t lock the door. From the inside you can, from the outside it just unlocks. You pay $230 a week for this two-room nothing. You might as well be living on the street.¹⁰²

One tenancy worker commented:

Repairs are another issue for boarders and lodgers. In fact, repairs are a big issue to them. A lot of boarders and lodgers are too scared to approach boarding house operators about repairs. Since boarders and lodgers do not have tenure, they want to maintain friendly relations with boarding house operators. Also, the physical presence of boarding house operators in the boarding house is relevant. The operators often live on the boarding house premises and collect rent from the boarders and lodgers. To the tenants, the boarding house operators are, therefore, scary figures. Thus, the tenants are too scared to approach the boarding house operators about repairs.¹⁰³

A recent fire audit conducted by South Sydney City Council in 2002 reported dangerous conditions in boarding houses. This audit found that of the 100 boarding houses that underwent a fire inspection, over 95% of these required some degree of upgrading to meet current safety standards.¹⁰⁴

Currently, there is no legislative protection against eviction or the use of penalties for boarding house residents who are late with rent.

Some people pay week-to-week. If they fall behind in their rent, some landlords may be lenient but others will evict them straight away.¹⁰⁵

We stayed in a boarding house on ‘x’ Street. That was about May last year … [partner] went to Housing because he was on the dole at the time and he got three weeks’ rent [assistance] and that got us a room. But the second week he just got sick and we had to spend some of that bond cheque because he could not go up to work and by the third week he got a couple of days’ work and paid our rent but we were still behind because the policy was that for every day you are late with the rent you have to pay an extra $20. So we only lasted there not even a month.¹⁰⁶

Furthermore, bonds required by boarding house operators are not held by the Office of Fair Trading or by any other rental bond board. Hence, landlords can retain bonds without a good reason.

One participant indicated that they would leave if a problem arose to avoid confrontation:

I am usually pretty well alright with landlords. Mainly with rooming houses—I’ve stayed with rooming houses—there’s just been problems, I don’t get along with someone, I’ll complain to management and this fellow’s been there longer than me so management will take his side. Just little things like that. To save confrontation I just move out and start again. It’s just easier to move on. In 22 years I couldn’t count all the addresses I’ve had. I’ve lived in four capital cities. Three capital cities in the last four months alone.¹⁰⁷

The NSW Boarders and Lodgers Action Group (BLAG) has been conducting a long-term campaign for legislative reform to provide protection to people living in private boarding houses. A Boarders Bill has been drafted by BLAG, covering the legal process for eviction, a process for getting back possession of goods, a process for repairs and maintenance and a process for recovery of bond.¹⁰⁸ However, at this stage, the bill has not been adopted.