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The Tenure Trick MICHELE SLATTER Flinders University Law School The Australian Dream 65% 65% of Australian households OWN or ARE BUYING 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. GOVERNED BY: • Conditions of Tenancy • SAHT policy and practice • Disputes still went to Court. 1978 - 2000 All States and Territories pass Tenancy Legislation 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 home Radical by design? NO • 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 interest. 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 submissions • 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 2004-5 • 'Credible threat' • '3 strikes and you're out' • 12 months ineligibility for housing • Bond assistance (into private rental) 2006-7 • 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 So? • 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 home • Everyone can lose.
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