; The Tenure Trick
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The Tenure Trick


  • pg 1
									The Tenure Trick
 Flinders University Law School
    The Australian Dream
     65%                  65%
of Australian
households OWN
their home            .
             (ABS 2007)
       Controls on Owners
• Nuisance actions by neighbours
• Criminal law
• Public health laws
• Environmental laws
• [Planning laws]
           Impact on owners
Most likely:
• Limits on use of property (‘reasonable’)
• Fines
• Orders to do / undo work
• Intrusion by officials

NB: legal action is expensive, uncertain, slow, hard
 to enforce = unlikely in most cases.
Australian renters
27%              27%
           of Australians rent
           their homes

           Young people
           living away from
           family are
           increasingly likely
           to rent (ABS 2006).
 Private Renting: Early Days
  SA Residential Tenancies Act 1978
     = 1st modern Australian renting law.
• Tenant has a right to
           ‘quiet enjoyment’
• Tenant’s
      ‘peace, comfort and privacy’
also respected
        1978: Tenants’ duties
• L has a right to enter (with notice)
• Property: reasonably clean
• No ‘illegal purpose’ use;
• T shall 'not cause or permit a nuisance’
• T shall not cause or permit any
  interference with the reasonable peace,
  comfort or privacy of other (adjacent)
  tenant or the landlord..’ (now s 71)
   Enforcing behaviour, 1978
S 47:
Landlord shall 'take all reasonable steps to
   enforce the obligation of any tenant of the
   landlord in occupation of adjacent
   premises (now s 65)
S 74:
If damage or injury, immediate possession
   may be granted to L
      Impact on tenants
Possible eviction: loss of home
        Public rental: SAHT
Not regulated by the 1978 Act.

• Conditions of Tenancy
• SAHT policy and practice
• Disputes still went to Court.
           1978 - 2000
All States and Territories pass Tenancy
            SA 1991 - 2007
• 1991: SAHT 1st ‘Disruptive tenants’ policy
• 1994: complaints continue to MPs/MLCs
• 1995: Residential Tenancies Act 1995
        – S 90 introduced
        – SAHT now partly within the Act
• 2000: national ‘Housing Reforms’: need-based
  priority lists for public housing
• 2003/4: SARC Inquiry into SAHT : new policy
• 2007: SAHT subject to s 65
         S 90: really radical
Third party eviction applications:
• no obvious legal precedent for this
  – no contractual links to the tenancy
  – no real property links to the interference
  – not just a fine or an order to stop but
    termination of the tenancy: ending the
    tenant's right to occupy: eviction from their
         Radical by design?
• Landlords didn’t use s 47 (now s 65).
• SAHT was not subject to s 47.
• Constituency files were 'full' of complaints
  about tenants (mostly SAHT).
• 'Good' tenants and 'bad' tenants.
• Originally intended only to result in
  landlord enforcement (or ‘injunction’)
  BUT deadlock conference results in s 90.
                Impact of s 90?
Tribunal: starting from scratch: 'nuisance';
  'interested person'; attention to natural justice = evidence
  concerns; building in 'last chance'; requires landlord

RTT caseload doubled 1995-1999. NOT s 90!
S 90 = 2% of caseload; increase = market (Slatter et al 2000)

SAHT: 'successful tenancies' policy 2001-2004:
  reducing evictions; addressing causes; support
  networks; addressing residualisation; eviction is
  absolutely last resort.
Advised neighbouring tenants to use s 90.
      More controls needed?
         2003           • SAHT policy investigated.
Parliamentary Inquiry   • Early data produced.
                        • Case histories heard in
                        • Required: more stringent
                          action from SAHT
                        • Recommended: s 65
                          apply to SAHT
                          [This happens in 2007]
                        • Urgent eviction for
                          SAHT: 2007 (per Minister)
            SAHT responses
• 'Credible threat'
• '3 strikes and you're out'
• 12 months ineligibility for housing
• Bond assistance (into private rental)

• MOUs with Police and Mental Health
• D&D officers; Policy revisions prepared
• very credible threat: 3 strikes = no housing support
   Meanwhile, around Australia
• Private rental shows no similar action of any sort
• But further controls on all tenants' behaviour
  spread through revised tenancy legislation, e.g.:
   – may need permission for guests (NSW)
   – liable for interference to more classes of people over wider areas
• 2003 WA : Acceptable behaviour acknowledgements
• 2004 NSW: Acceptable behaviour agreements
• 2006: Northern Territory introduces ‘s 90’
       (Q’land Bill had no support).

• All over:           Good Neighbour Policies
• Tenure is important: renters lose
• Owners/purchasers are unaffected:
     NB: Strata/community title is controlled
• Young people are likely to be renting
• Or they may live in their relatives’ rented
• Everyone can lose.

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