Legal Advice and Assistance 2017-2018

The Tenants’ Union provides high quality legal advice and assistance to Tenant Advocates, community workers, and tenants. This practice is provided and sustained through direct advice, appropriate legal management & compliance, and professional development of the legal team. We also engage in strategic litigation in order to improve the law for tenants.

Direct Advice to Tenant Advice and Advocacy Services

We provided 1,040 advices to TAASsWe provided 1,040 advices this year to TAASs, almost double the 2016-2017 figure.

The most common areas for advice to TAASs continue to be:

  • Notices of termination
  • NSW Civil and Administrative Tribunal (NCAT) matters
  • Rent
  • Community rules, utilities, site fees, sub-letting, terminations, park owner conduct and Local Government Regulations in residential land lease communities (formerly called residential parks)
  • Repairs, termination, Tribunal, rent arrears, and rent subsidy calculations for Aboriginal TAASs

We provided an additional 65 advices to other community organisations, resident associations, Community Legal Centre solicitors, Legal Aid NSW, Fair Trading NSW and student organisations.

Legal practice management and compliance

We successfully completed the Professional Indemnity Insurance cross check in December 2017 and remain accredited under the National Accreditation Scheme for Community Legal Centres: Phase Two. Regular legal practice meetings, which include case review, and individual supervision provide quality assurance and continued improvement within the legal practice. Legal Practice Policies were updated and applied.

Our solicitors continue to undertake professional development. Areas covered this year included:

  • Professional Indemnity Insurance (PII)
  • Practice Management,
  • Ethics,
  • Family Violence,
  • Privilege,
  • Principle of Legality, and
  • Vicarious trauma

Regular liaison with the housing team at Legal Aid allows for information sharing, strategic litigation and effective referral processes.

Tenants Advice Lines

Our Monday Tenants’ Advice Line continues to operate with the assistance of volunteers. We provided advice or referral to 1,027 callers, about the same as in 2016-2017. The Advice Line keeps our legal and policy staff up to date on issues affecting tenants, flagging emerging systemic issues that require investigation and action. It also provides an opportunity for volunteers to increase their knowledge and skill and provides an employment pathway to Tenants’ Advice and Advocacy Services.

We also provided information and referral on 1,046 occasions outside of Advice Line hours.

Daily hotlines dedicated for boarding house residents and people in custody continue to enable direct access for vulnerable clients. Research clearly demonstrates that having housing available when leaving custody significantly reduces recidivism. Our solicitors are available for transfer of calls from Law Access and the Prisoners Legal Service five days per week in order to improve opportunities for timely advice on renting matters for people in custody.

The Tenants’ Union’s participation in the national community legal centre client survey revealed that over 90% of clients agreed or strongly agreed that the Tenants’ Union listened to their legal problem, helped them understand how to deal with it and would recommend the Tenants’ Union to others.

Strategic litigation cases: highlights

Community Organisation Landlords and no grounds termination

We have assisted in two matters where tenants received no grounds termination notices from their community landlords. One matter was taken to the Supreme Court and is now in settlement negotiations. The other matter is being conducted in NCAT by the local TAAS and is ongoing.

Lynwood

In the last Annual Report we noted Ms Lynwood’s case, regarding use of no-grounds termination by social housing providers. The Supreme Court found that a conflict between two sections of the Residential Tenancies Act resolved against social housing providers being able to use no-grounds termination without the Tribunal having discretion to not evict.

The landlord appealed and the Court of Appeal found (on 24/11/17) that there is not a conflict and therefore no grounds termination is available to social housing providers and the Tribunal must evict tenants by that process.

The judgement is published as Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317.

Issues with Commonwealth Rent Assistance

Family and Community Services (FACS) Housing estimation of Commonwealth Rent Assistance (CRA) is still an issue for tenants of the Aboriginal Housing Office (AHO). We have been assisting two AHO clients. One client has experienced difficulty and cost for years and cannot get clear guidance from FACS Housing or Centrelink. A Housing Appeals Committee application has been filed and heard. The decision was not in our client’s favour and deemed that there had been no error with the CRA. We have now lodged Freedom of Information and Government Information Public Access (GIPA) requests to both Centrelink and FACS Housing to obtain the client’s file and try and reconcile the differences and where the errors have occurred. We are in the process of collating and comparing the results of those two requests.

Residential Land Lease Communities

We have assisted in two matters regarding electricity charges in residential land lease communities. In Elizabeth and Michael Hood v Harley Kismet Pty Ltd NCAT found the level of supply to be 40 Amps and the Service Availability Charge (SAC) was therefore 70% of the daily SAC as prescribed in the Residential Land Lease Communities Regulations 2015. A refund was ordered to be paid to the home owners.

The operator appealed the decision and the TU took on the clients from local TAAS and represented them at the Appeal Panel. The Appeal Panel dismissed the application and lifted the stay in its decision of 31 May 2018.

Following the dismissal of the appeal the operator attempted to force the home owners to accept an upgrade of their electricity supply. When this was unsuccessful the operator contravened the orders of the Tribunal and continued to charge the SAC at 100%. The TU referred the operator to the NSW Fair Trading compliance team and assisted the home owners to re-list the matter at NCAT.

Silva Portfolios Pty Ltd t/as Ballina Waterfront Village v Margaret Reckless

This matter was heard by NCAT in June 2017 and is an important case regarding electricity usage charges under the Residential Land Lease Community Act 2013. The key point for determination was the meaning of section 77(3) of the Act. The difference is between the operator profiting from the sale of electricity or recovering the cost of electricity consumed by the home owner.
The home owner successfully appealed the Consumer and Commercial Division decision with the Appeal Panel decision handed down on 3 April 2018. The operator then sought leave of the Supreme Court by filing a Summons to appeal the decision of the Appeal Panel. The case was heard in the Supreme Court of NSW on 17 August 2018.

On 4 September 2018 Justice Davies handed down his decision dismissing the operator’s appeal and amended Summons. This decision provided clarity about the meaning of section 77(3). On the proper construction section 77(3) of the Act means that an operator is not entitled to charge a home owner any more than the operator has been charged for the supply or use of the electricity consumed by the home owner. The operator was ordered to pay the home owner costs in this case.

David Dodge
Land Lease Community resident David Dodge

The matter of David Dodge v Hacienda Caravan Park Pty Ltd concerns home owner David Dodge (pictured), who has lived at a Land Lease Community for more than eight years, without the benefit of a written agreement. David was successful at NCAT in obtaining orders per section 26(4) Residential Land Lease Community Act 2013 that they be provided with a written site agreement in standard form by the operator. The operator unsuccessfully appealed the decision of the Tribunal to the Appeal Panel, asserting that the home owners are covered by the Holiday Parks (Long-term Casual Occupation) Act 2002. The decision was handed down on 8 May 2018.

A Summons commencing an Appeal was filed by the operator with the Supreme Court on 5 June 2018. There have been 4 directions hearings before a Registrar and the matter is listed for hearing in the Supreme Court of NSW on 4 December 2018.

In the last Annual Report we reported on TriCare (Hastings) Ltd t/as Hastings Point Holiday Park. These matters may set the tone for future change of use compensation disputes in Land Lease Communities. Compensation when the dwelling is not for removal is covered by section 141 of the Residential Land Lease Communities Act and has not been litigated before. The last two matters were heard by NCAT at the end of May 2017. The issues included the valuation of the homes as if the change of use were not to occur. The reserved decisions were handed down in August 2017. Final compensation orders for the residents were satisfactory at $170k and $145k respectively. Costs were settled between the parties. The decisions is published as Allen & Anderson & Byng v Tricare (Hastings) Ltd & Tucker v Tricare (Hastings) Ltd [2017] NSWCATCD 72 (9 August 2017).

 

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