I know what the law is...

Suzanna from NSW wants to warn others about Paul Davico of Long Island Marina, Brooklyn NSW.

Access - Suzanna says Mr Davico has no regard for access laws. One time, he came up to the cottage she rented off him and paced until she was off the phone. She had workmen and electricians turning up to the property without notice many times. She says, ‘Not once was I told they were coming, so access laws don't exist for him’.

 

 

Abuse - Mr Davico seemed okay when Suzanna first moved in. He told her numerous times to contact him if anything needed fixing. This changed rather quickly. She says:

It only took him a couple of weeks to become abusive when I indicated the dishwasher didn't work... Then he abused me about not fixing the dishwasher, saying if he knew it didn't work he would have taken it out prior to me moving in. That was the 1st time. He also abused me because some delivery men, who were delivering a new fridge, took off a gate onto the veranda. He didn't even give me a chance to say I was waiting for my tradie boyfriend to come, who would screw it back on.

It ceases to surprise me as to how many women write in and complain about being intimidated by their landlords. Suzanna no longer resides at the property because she didn’t feel ‘safe or comfortable’ there.

Electricity - Suzanna put her foot down when Mr Davico told her she had to pay for electricity. When she moved in, he told her that it was included in the rent. She shared a power supply with a unit down stairs and a bathroom reserved for marina people.

According to Residential Tenancy Act 2010 (NSW), it is the responsibility of the landlord to pay for a shared power supply. Section 38(1) clearly states: A tenant must pay all charges for the supply of electricity at the residential premises if the premises are separately metered. Really, it couldn’t be clearer. We have an email trail because the Department of Fair Trade recommended that she only communicate via email because of his abuse.

Suzanna caught Mr Davico out in a blatant lie. He told her his ‘mate’ had checked the wiring and the problem would be fixed. Mr Davico said:

Barry been and checked the wiring, Brett’s bed sitter and the Ladies toilet does run to the power board on your house. Originally it was only Brett’s place and the power points for your washing machines went to the marina. We have ordered the materials so the Ladies toilet and whatever else associated with it will run to the marina power board. This will be commenced on Thursday/Friday.

Grammatical errors aside, the problem was that Suzanna had been at home all day. No one had turned up to check the wiring. She says:

I have worked from home all day and I thought you should know that your electrician didn’t show up at 2pm as you said. No one came and asked me if they could turn off the power to check it all out, which I presume they would have to do for a check. The independent electrician I used turned the power off and tested the power point in the bathroom downstairs with a device!

She says it took a lot for him to realise ‘he couldn't intimidate me into paying for the shared power supply’. So, the moral of the story is don’t trust your landlord when it comes to shared power supply. Don’t take anyone’s word for it. Electricity is only going up, and paying someone else’s bill is an unnecessary expense.

I have come across this issue before. One guy said his landlord’s electrician friend had bodgied up the meters so that he didn’t have to pay for his own bill. With electricity being expensive as it is – that is theft. Potential tenants need to know what they are getting into. Even if tenants don’t have a choice, at least they will be forewarned and forearmed.

Women in these kinds of situations can’t exactly make use of self-help measures. It is true, female tenants can obtain restraining orders. But that’s if you can get the police to listen to your side of the story. I suspect some women are scared such orders might go against them.

Unfortunately, there is a public perception that all tenants are ratbags. There is only one way to negative this stereotype. And that is to catch them in the act. If you are having problems with your landlord or agent, get your camera out and start filming. I’ll post it, don’t you worry.

 

An Agent’s Perspective: Return of the Swimming Pool

Fairness is really important. The way we go about things is really important. A reader wrote in and told me about what happened to a friend of his. We shall call him Little John. Little John lived in an apartment. The neighbours shared a backyard. Little John was a bit simple. From all accounts, he was a bit of a gentle giant.

One day, he took a neighbour’s clothes off the line. He thought he was doing something really nice for her. The neighbour was highly offended. She called the real estate agency and put in a complaint. The property manager turned up and proceeded to evict Little John. He was upset and angry. He didn’t want to leave his home. It was Christmas and he didn’t have anywhere to go. He slammed the door when the property manager left. The property manager thought she heard a shotgun go off. Within minutes, Little John’s apartment was surrounded by police. And well, you can imagine the rest...

In many situations, tenants are not afforded procedural fairness. I have even heard of cases where tenants turn up at tribunal with reams of evidence and members hand down decisions without even reviewing the paperwork. But I have even been accused of being one-sided and biased. I have been told there are always two sides to a story.

But I am an advocate for tenants. I don’t feel any real need to tell the stories of landlords and their agents. Other organisations fill this space. There are so many organisations out there that represent landlords and property managers. This includes, but is not limited to, Landlords Australia, Property Observer, Real Estate Institute of Australia, Property Council of Australia, etc. I think many people feel uncomfortable about telling stories from the perspective of tenants. Well, too bad. That is what we are doing. In the media, stories are usually told from the perspective of landlords. I am challenging the ideology that underpins these narratives.
 

If tenants are asking for a better deal, then landlords and agents should be given a fair go. This year, we awarded the Rotten Realtor Award to Michelle Hetta from Centurion Real Estate. We were genuinely shocked by what we saw on the footage. And we certainly didn’t expect any media coverage. But we are definitely not backing down from anything we said.

However, the rotten realtor recipient has requested that we even up the score a little bit. And we are happy to do that. Here is what she had to say:

Lucan wrote to Kim Webster the then Property Manager asking if he could put up a "portable pool" Kim advised that the owner would not have a problem with this. Kim unfortunately did not ask the owner and therefore written permission to confirm this was never given to Lucan. He went ahead though putting up a "swimming pool" thinking he had been given permission.

Another property manager did an inspection at the property and took photos off the pool and this was sent to the owner. The owner was mortified when she received her inspection report to see a swimming pool on the back lawn along with a metal fence that had been concreted into the lawn. She contacted us to ask what had happened so I contacted Lucan who informed me Kim had given him permission. He forwarded the email that Kim has sent him and I advised the owner.

The owner then asked us to ask Lucan to take the pool down and the fence as it was destroying the lawn. I asked Lucan to take it down and the fence but he refused. I also informed him that the fence did not have council approval nor was any written approval sought from the previous property manager or the owner.

As the tenant did not remove the pool as instructed by the owner we were under an obligation under the Residential Tenancy Act to send a breach to have it removed due to the damage it was causing the lawn. By this time the lawn was now dead and just sand. Lucan refused to remove the pool and he in turn breached the owner. This went to court 3 times and each time the magistrate dismissed the case as the owner had not breached anything.

And this is what I have to say. Cry me a river. A little dead grass. Seriously. I haven’t visited Western Australia as an adult, but I surely know it gets hot as hell there. I live on the other side of the continent and I just endured four days over forty degrees without air-conditioning. And, I am seriously concerned about the judgement of some magistrates. Anyway, if you want further details - just watch the ACA segment.

Naming and shaming is a legitimate and powerful tool. Consumer agencies around Australia, and reputable consumer advocacy groups, such as Choice, use naming and shaming to influence the behaviour of businesses. Occupational health and safety regulators also use adverse publicity, amongst other things, to punish offenders. Landlords and real estate agencies are running a business. Their decisions impact on the lives of tenants and their families.

Michelle Hetta feels that she has been victimised. But the reality is that individuals such as Michelle are working in a service industry. I have seen cameras stuck in tenant’s faces many times, and no-one has been worried about their right to privacy. If agents and landlords are doing the wrong thing, shouldn’t the public a right to know? Consider this. Commercial media, such as A Current Affair and Today Tonight, investigate dodgy tradies. How are landlords and agents any different?

She goes on to say:

I am not in the habit of "strategic moves" to get out tenants and have always worked 100% under the Residential Tenancy Act... I have worked in this industry for 13 years and never ever come across a situation like this. You have to remember as a property manager we are acting in our lessor’s best interest at all times, we are also under instruction from the owner at all times...one-sided story and a witch hunt against myself. I was doing my job, but had been pushed to the limit with the whole thing.

I found this quite interesting. It is true that property managers are agents, and they are required to act in the best interests of the principal i.e. the landlord. But that’s not the whole story. As an agent ‘acts in the shoes’ of the principal, a realtor is responsible for ensuring that the landlord complies with legal obligations.

In most states and territories, realtors are required to exercise reasonable skill and diligence, act with honesty and fairness, and refrain from harassment and unconscionable conduct. Tribunals usually don’t handle complaints against landlords and property managers together. A different body altogether usually handles complaints about property managers. This makes things very difficult. And also, most schemes put the onus on the tenant to pursue complaints. But most tenants are happy to drop their complaint once they are able to move on.

So anyway, I won’t be writing any more posts on the rotten realtor award. I’ve got about a dozen stories waiting for my attention. Watch this space.

See more:

• Part 1 - When Agents Screw up
• Part 2 - Tactics Agents Use to Screw Tenants

 

 

 

Safety in the Home: The Law

Potential exposure to carbon monoxide poisoning is indicative of a much wider problem. In no state or territory is there an explicit general right to safe and healthy premises. In this instalment, I will look at how the law fails tenants. If you’re not interested in the law, then go ahead and skip this post – I won’t be offended.

Some states and territories touch on safety. One approach is to require landlords to comply with statutory obligations relating to the health and safety of the premises. For example, section 52(3) of the NSW Act states that, ‘A landlord must comply with the landlord’s statutory obligations relating to the health or safety of the residential premises’. Note how the provision specifies legislation rather than regulations.

Section 42(2) of the WA Act is similar. It provides ‘lessors must comply with all requirements in respect of buildings, health and safety under any other written law insofar as they apply to the premises’. It does not specify what these laws are. It does not detail any requirements. This would be preferable so that tenants actually know what their rights are. A tenant should not have to be an expert in council law to understand their rights. When I have time, I will take a sqiz at council laws.

Another approach is to require landlords to ensure there are no breaches of health and safety laws at the start of the tenancy. Section 185(2) of the Qld Act states that the lessor must ensure at the start of the tenancy that ‘the lessor is not in breach of a law dealing with issues about the health or safety of persons using or entering the premises’. But what about problems that crop up during the tenancy?

The NT Act is similar. Section 47 prohibits a landlord from offering or entering into a tenancy agreement unless the premises meet all health and safety requirements specified under an Act. I would really like to know how this is policed and enforced in practice. And I really don’t think renters have the power to have demand safety measures in the current rental market.

In Victoria, a tenant has a right to terminate the tenancy agreement if the premises are unsafe. But I’m not actually sure this is the remedy most tenants actually want. I’m sure they would rather repairs to be carried out so they don’t have to move. The landlord can then lease the premises again without rectifying any defects. In this jurisdiction, it is notoriously difficult to obtain repairs.

The ACT was on the right track. In 2011, the Greens introduced a bill based on minimum housing standards. It would have facilitated the right to healthy and safe premises. But the government negatived the implementation of a of minimum standards scheme. It took the view that ‘direct costs’ imposed on landlords would pass on the costs of improvements or stop renting out properties. The argument is simply unsound. Businesses bear costs imposed by government regulation as a matter of course. And secondly, the government regulates safety in the workplace, and it is otherwise considered legitimate for business to bear such costs.

In Tasmania, a bill enshrining minimum housing standards has been approved by the Tasmanian Parliament. The proposed minimum standards include:

• Weatherproof and structurally sound premises
• Council approved toilet, washbasin, and a bath and/or shower with hot and cold water
• Adequate natural or artificial light in every room
• At least one fixed heating device in the main living area
• Adequate ventilation in the premises

But the Commissioner of Tenancies may grant exemptions for some or all of these standards. And some standards will not come into force for three years.

The law has abandoned the safety of tenants and their families. In all jurisdictions, the protection offered to tenants is weak at best. There’s loads of wriggle room. We should start looking at some kind of licensing system. If a landlord can’t prove premises are safe, they should not be allowed to lease it. Simple as that, really. 

PS. I am less than impressed with South Australia. I did not find one single mention of safety in its residential tenancy law.

I am Woman: Hear Me Roar

This is my second instalment on safety in the home. In my last post, I talked about the deaths of two young boys who succumbed to carbon monoxide poisoning. Vanessa Robinson, the mother of Tyler and Chase Robinson, has been agitating for law reform. She wants mandatory servicing of all gas appliances, and carbon monoxide alarms to be fitted in all Australian homes.

I started investigating. And I found very little to comfort me. The incident occurred four years ago. There was some noise. There were calls to introduce carbon monoxide detectors on a mandatory basis. Even the ABC thought they would be made compulsory. But it seems they were wrong. In 2012, the Standing Council of Energy and Resources agreed state and territory governments were to assess awareness of the issue, and implement new measures. This is ridiculous. Public awareness is a good step. But it is not going to protect people. Barry Ward comments:

Whilst I understand the cost benefit analysis, you are misguided if you believe this decision will help prevent further deaths or serious injuries which are totally underestimated at present (ask ESV). It has been proven that awareness alone will not greatly change the status quo and to think this decision is even close to being BEST PRACTICE is an insult to the industry and the people who have lost their lives and those who will. Once again the most vulnerable and poorest in our community i.e., those people in rental properties and government housing are left with no choice but to live with their families in properties with gas appliances untouched for years.

Concerns were expressed about the effectiveness and cost of carbon monoxide detectors. But they are mandatory in many other countries. The position of the Tyler & Chase Foundation is that detectors are effective when they are used in conjunction with regular servicing of fuel-burning appliances. So I thought to myself, why has this happened? What has nothing been done? I was looking at one forum. One landlord complains:

And they want to charge me $150 to put one of these things. They have also hinted at annual maintenance costs to service. What the hell? Is this thing actually REQUIRED by law? I don't have one in my own house.

It’s because of whingeing landlords like this we need regulation. I’m sure bosses said the same thing when work health and safety laws were introduced in ye old England. That’s not to say all landlords are the same. I was quite relieved when I saw this comment:

I've been looking at outdoor gas fireplaces this week and in my research have come across quite a few articles reporting deaths from CO poisoning. After reading these stories I want a CO detector for my house - For properties with gas heating, I see it as just as important as a smoke detector.

Carbon monoxide poisoning has fallen through the cracks of a fragmented housing system. It is a national disgrace that tenants, and women and children, are being let down by our government like this. It’s just not good enough. In my next instalment, I will look at how residential tenancy laws fails tenants when it comes to safety.

 

 

Postscript. I contacted Landlords Australia for comment. No reply.

See More:


‘Carbon monoxide detectors to become mandatory’, ABC News, 3 March 2011

 

Safety in the Home: I am Woman

Generally speaking, our society takes safety pretty seriously.  This can only be a good thing. But when it comes to safety in the home...well, the crickets couldn’t be louder.  As I have pointed out before, this vacuum disproportionately affects women and children. Women are more likely to stay at home doing housework or caring for children. I would like to say our society has evolved, but statistics from the ABS tell otherwise.

On 29 May 2010, a young mother woke from a sound slumber. She felt sick. She went and checked on her two young boys Tyler and Chase, aged six and eight years old respectively. They were deceased. It wasn’t until autopsies were carried out that it was realised the boys had passed away from carbon monoxide poisoning. The police’s initial reaction was to blame Vanessa. Her shoulder was dislocated when she was thrown into the paddy wagon. Tenants who write to me often say the authorities do not listen to them.
 

 

Carbon monoxide is toxic, colourless, odourless, and tasteless gas. An expert tested the heater and found it was emitting extremely high amounts of carbon monoxide. A thick layer of built-up soot prevented the heater from working properly. The heater would have worked properly if it had been cleaned. It had not been serviced for about ten years. Energy Safe Victoria recommends that open-flued appliances be checked every two years. All the details are in the coroner’s findings.

This family had lived in a rental property. The real estate agency had recommended that there be a regular service of gas and electrical appliances. The coroner found, as a matter of fact, that the failure of the landlords to comply was ‘regrettable’ but ‘there was nothing to alert them to any problem with the appliance’. Magistrate Heffey went on to say that there was nothing to suggest that they would not have responded appropriately. And further, any member of the community would not have been aware of the dangers presented by an unserviced gas service.

The coroner made a number of recommendations. One of her recommendations was that the consumer booklet – Renting a Home: A Guide for Landlords and Tenants – be redrafted. Amongst other things, she said:

1. Tenants should be informed as to the safety of gas appliances
2. Tenants should request to have gas appliances checked

I was overcome by  anger and sorrow as I read the coroner’s recommendations. It was a very conservative judgment. The sad thing is that the deaths of these two young boys was entirely preventable. Magistrate Heffey puts the onus on tenants when she suggests it is their responsibility to ask for evidence that the heater has been serviced. But why should safety be the tenant’s responsibility? It seems to me that the coroner is really out of touch with community expectations. It just doesn’t sound like she has a good understanding of challenges tenants face during their tenancy.

At a bare minimum, rental houses should be safe and habitable. Tenants have a right to expect rental homes to be safe. In many cases, tenants are happy just to have their application approved. In the usual course of things, tenants are not going to rock the boat by requesting checks on things like heaters. Nor will they ask for clauses to be inserted into the rental agreement. Leases are usually presented to tenants on a ‘take it or leave it basis’. In the United Kingdom, landlords are legally required to service heaters on rental premises every year. Last year, a UK landlord was jailed and fined for risking the lives of his tenants.

Magistrate Heffey could have recommended law reform. She could have recommended the introduction of a general statutory right to safety, and the implementation of strong enforcement mechanisms. But she did not do that. And really, it’s quite easy to carry out an investigation of potential hazards. It’s done all the time in workplace. It goes by the name of occupational health and safety.

Women and children should expect and demand safety in the home. It’s not that much to ask. We should be looking after the safety of mums and the kids in the home. And just so you know, symptoms of carbon monoxide poisoning include nausea, headache, and fatigue. And be careful – don’t assume your landlord is thinking about the safety of you and your family. In my next instalment, I will be looking at what happened to proposed laws about mandatory servicing and detectors.

Housing is a Human Right

Quite recently, I posted a comment on everyone’s favourite social media to the effect that housing is a human right. The response I got surprised me. One person commented rental properties are just an investment. And that started me thinking...Are private rentals a means to an end? Or are they an end in themselves? I think the answer would differ depending on your perspective. It is my view that the market mechanism is simply a way of delivering houses for people. It’s about people, people.

It saddens me that the motherland, England, has more of a human rights culture than what we do. But it starts with awareness. So I am going to tell you why housing is about human rights. Australia has ratified the International Covenant on Economic, Social and Cultural Rights. Out government has made a legal and moral commitment to the rights set out in this treaty.

Article 11 enshrines the right to adequate housing. It is the right to live somewhere in security, peace and dignity. Everyone has the right to adequate standard of living such as housing and the continuous improvement of living conditions. It does not make a distinction between owners and renters. In 2006, the Special Rapporteur on Housing found that Australia had failed to progressively realise the right to adequate housing given it is a wealthy and developed country.

Australia has also ratified the International Covenant on Civil and Political Rights. Article 6 provides that everyone has a right to life. This right is violated in situations where a tenant is injured or dies because a landlord has not provided safe and secure premises. This occurred a few years ago when two young children died from carbon monoxide poisoning. The landlord had failed to carry out a safety check on a faulty unserviced heater. The mother is currently campaigning to have carbon monoxide detectors installed in all rental properties. Australia should implement a regulatory scheme that explicitly protects tenants from threats to health and safety, and that it operates effectively in practice to ensure tenants are not placed at risk.

 

The International Covenant on Civil and Political Rights also provides for the right to freedom of thought and expression. Check out articles 18 and 19. Google is free. Residential tenancy laws usually cover alterations and additions. In Victoria, tenants are not permitted to install any fixtures or make any alterations, renovations or additions to the premises without the landlord’s consent. See section 64 of the Residential Tenancies Act 1997 (Vic).

But tenants usually want to express themselves by altering or adding to their home. They like to like to hang posters, pictures, or paintings on the walls. We’ve all heard of the ‘blue-tack Nazis’ who make bond claims where hooks or sticky has been used. But shouldn’t we all be free to express ourselves? Should only property owners be allowed to hang this year’s calendar, pictures of their grandchildren, or their favourite Monet painting?

Article 17 of the International Covenant on Civil and Political Rights provides no one shall be subjected to interference with privacy, family and home. I’m sure everyone has an intuitive understanding of privacy. It is the ‘right to be left alone’. It would cover information about a tenant’s immediate surroundings. There is a clear link between privacy and the home. It is a zone of personal intimacy and family security. A person does not have truly privacy if they cannot have an intimate relationship with their home. I know I’m getting a bit academic, but stick with me.

People are genuinely disconcerted that they are legally required to open up their home to strangers seeking to buy or rent their home. This often happens when the landlord decides to sell or re-let the property. I wouldn’t want strangers poking around in my cupboards, would you? You might find some skeletons lying around. A jokester would have a lot of fun in this kind of situation. Imagine people finding fake cadavers or blow-up dolls. I can see videos like this going viral on U-Tube. Tenants getting their own back...priceless!

Kristen has dobbed in Karen Gravenall from Handle Realty. Kristen says:

Whilst conducting rental inspections Karen took photos of personal effects (top of tall boy with jewellery, top of dining table, my daughters underwater!). These photos are designed to monitor property maintenance but personal property made it into most of these photos. She generally bullies us and makes us feel like scum for being renters and not home owners. I am currently going through a government agency to look at breaches of privacy. We moved out the house early (still paying rent) as we were just so uncomfortable being there.

The other issue is that tenants are not compensated for the time spent preparing the house for inspection. I don’t think this is fair. And really, with all the stress and bustle of moving house, it’s a big ask to schedule this kind of thing in. My understanding is that landlords and agents prefer to hold open houses while the tenant is in occupancy so that the property is let as quickly as possible. The time the house is left vacant is thereby minimised. I don’t think open houses in these kinds of situations should be permitted

So there it is folks, housing is about human rights. People live in houses. Houses are not just an investment.