No grounds for limiting reform under COVID-19

This piece was originally published in Parity, Australia's national homelessness publication.

Ben lives in Sydney’s inner west in a share house with three other housemates and his two dogs. He contacted the Tenants’ Union in early May, putting his hand up to share his story with media because he was so frustrated:

‘Our house has been deteriorating for years and the owner has refused to maintain it. In February, the house flooded and a portion of it became virtually unliveable due to flood damage, including black mould. The flooding of the house was entirely preventable, as this problem had been occurring for years every time there was heavy rains, including a major flood in September 2019, and another in late January. We’d reported the problems then. We reported the problem again in February. No tradesperson or expert was sent. The agent claimed the owner was “hard to reach” in the United Kingdom.

We had been trying to negotiate for repairs since the flooding occurred. With the health crisis we added on a request for a rent reduction due to the conditions of the house, as well as some relief because of the impact of COVID-19. We were getting nowhere and started thinking about next steps and applying to the Tribunal to get things sorted. When we finally told the agent we were going to the NSW Civil and Administrative Tribunal, we were handed a “no grounds” termination notice two days later and before we’d had a chance to file our application.

All four current tenants are impacted by COVID-19 and have nowhere to go. I am the head tenant, have two dogs (making renting difficult), no income due to COVID-19, and am not originally from New South Wales (NSW) so have no close friends to call on here for help.’

Since he first shared his story with us two of Ben’s flatmates moved out. The granny flat they had been living in was close to uninhabitable because of the flood damage. They had lost income due to COVID‑19. Receiving the ‘no grounds’ eviction was the last straw. Ben applied to the Tribunal to challenge the eviction as retaliatory, and for a rent reduction because of the flood damage. He is still trying to negotiate a rent reduction through his agent on the basis of his household being COVID‑19 impacted. In the meantime, he is trying to cover as much of the rent as he can. His hearing was last Friday, and he now nervously awaits the Tribunal’s decision.

Recently the NSW Tenants’ Union was contacted by a journalist doing a story on impacts of COVID‑19 on renters, focused on the building up of debts and a looming risk of eviction once the eviction moratoriums start to lift across the country. I told her Ben would be happy to be interviewed. Once she heard more about his story she told me she was interested, ‘but his story is so complex. It might be too much of a distraction and I don’t know I’d do his story justice.’

She was right. It is hard to draw attention to just one issue when there is so much going on: repairs that do not get done, water damage and mould and the health impacts of this, COVID‑19 job loss and hardship, a failed attempt to negotiate reduced rent, a retaliatory eviction, and ongoing anxiety about finding alternative rental housing if the eviction goes ahead – especially with two dogs in the mix. It struck me though, as someone who has been campaigning on renters’ rights and housing justice for a while, that almost every renter’s story gets complicated once you start to unpack it. A case study collected for one purpose inevitably highlights a number of different, yet often intertwined problems in our renting system/s. A call to an advocate for legal advice about a specific dispute, often brings to light a range of other underlying issues.

Similarly, the problems renters have faced during COVID‑19 are not new or necessarily distinct from the ongoing issues renting households were already facing. The COVID‑19 health crisis only highlighted and exacerbated existing inequalities and problems experienced by renters – most acutely, the problems of housing insecurity and the lack of affordable rental housing.

The disparity was particularly apparent as everyone was being told to stay at home and avoid contact as much as possible, while renters were still receiving eviction notices, or facing situations where they had no option but to leave. Even after National Cabinet in late March announced a six month evictions moratorium, the evictions continued, largely because implementation was delayed and the protections introduced were too restricted.

Certainly in NSW the moratorium left many falling through the gaps. In our experience – and we know this is also the case for colleagues in other states and territories – even tenants eligible for moratorium protections often feel ‘forced to leave’. They cannot afford the rent; rent reduction negotiations fail, and if they stay, they will accrue significant debt. Many feel they have no option but to end their tenancies, sometimes facing a significant penalty in the course of doing so. Or renters like Ben, eligible for COVID‑19 protections and wanting to remain in their homes through the health crisis, find their landlords can get around moratorium protections via existing ‘no grounds’ provisions in tenancy law.

No Grounds Evictions

Outside of a pandemic ‘no grounds’ provisions are used unfairly, in cases of discrimination or – as they were here with Ben – by landlords retaliating against a tenant who asserts a right. In NSW, as in most jurisdictions, such retaliatory evictions are very hard to challenge.

Removing ‘no grounds’ or ‘no reason’ eviction provisions from tenancy legislation has long been a focus for housing advocates, and has been a consistent feature in recent and ongoing reviews of tenancy law occurring across the country, although with varying success.

In NSW, the Residential Tenancies Act 2010 was subject to statutory review in 2015, and amending legislation resulting from the recommendations of the review passed through NSW Parliament in October 2018. However, no reforms to address the problem of ‘no grounds’ eviction were introduced despite recognition of the problem by the NSW Government and the widespread agreement on the need for change from housing and tenancy advocates, academics and researchers.¹ Victoria fared better, securing reform to ensure tenants cannot be evicted without cause once their first fixed term agreement expires.

The impact of a ‘no grounds’ eviction and subsequent forced move is profound. There is an immediate and significant impact for households that receive a ‘no grounds’ eviction in terms of household upheaval, emotional stress, and financial strain. The ability of a landlord to evict someone for no reason undermines all other rights provided under current tenancy law. For low income and vulnerable renters in particular, it increases the risk of eviction into homelessness.

‘Security of tenure’ has usefully been defined by Hulse et al as ‘the extent to which households can make a home and stay there for reasonable periods if they wish to do so, provided they meet their obligations.’² ‘No grounds’ provisions fundamentally undermine the security of the tenancy contract. A survey we undertook with Marrickville Legal Centre of over 600 NSW renters in 2018 found 75 per cent of renters reported just the possibility of a receiving ‘no grounds’ eviction deters them from asking for repairs or requesting improvements to their home.³ Renters’ responses indicated many – close to two thirds of those surveyed – live in a constant state of anxiety about the security of their housing. This rose to close to three quarters of renters who had previously experienced a ‘no grounds’ eviction. Feeling secure about housing ensures renters can make ‘a home’ in the places they live. That secure base allows renters to fully participate in their communities, in education and learning and in the workforce.

The pandemic showed us a new way landlords might make use of ‘no grounds’ provisions to evade obligations or other measures in place to protect renters. As stories like Ben’s emerge and again give focus to how these provisions continue to undermine renters’ rights and protections, we hope the NSW Government pays attention. We hope other states and territories, still in the process of reviewing their tenancy legislation, take the opportunity to remove ‘no grounds’ provisions and significantly improve security for people who rent their homes.

Endnotes

1. See NSW Make Renting Fair campaign: rentingfair.org.au; An open letter on housing reform, The Conversation, 25 September 2018, https://theconversation.com/ an-open-letter-on-rental-housingreform- 103825, accessed 18/06/2020
2. Hulse K et al, Secure occupancy in rental housing: conceptual foundations and comparative perspectives, AHURI Final Report No. 170, AHURI, Melbourne 2011, p.1
3. Tenants’ Union NSW and Marrickville Legal Centre, Lives Turned Upside Down — NSW renters’ experience of ‘no grounds’ evictions, 2019, p.6.

For more info on renting in NSW during COVID-19, see our Renters' Guide to COVID-19.