Rabu, 02 September 2009

NT Housing evicts girl, 14, after father dies

There's an appalling story on the Herald's website today: Territory Housing officers evicted a child after her father, the tenant of the premises, died. It's reported that the officers gave the child 10 minutes to pack before changing the locks and boarding up the premises.

Territory Housing has since admitted a 'serious error of judgment' and unreservedly apologised to the child, who will be allowed back in.

Could something like this happen here in New South Wales? Well, 'serious errors of judgment' can happen anywhere, and Housing NSW is not immune from making them. But such an action would be plainly unlawful under New South Wales law.

Here, when a tenant dies their tenancy does not end (nor does a tenancy end when a landlord dies); instead it continues until terminated, usually by a representative of the tenant giving a notice of termination to the landlord and removing the tenant's effects, or the landlord giving a notice of termination or applying to the Tribunal for a termination order (to be fair to Housing NSW, there's quite a few published cases where they have taken this course of action), or some other sort of arrangement by consent of both the landlord and the tenant's representative.

It's different in the NT: at s 82(1)(e) of its Residential Tenancies Act, a tenancy automatically terminates where:

a sole tenant dies without leaving in occupation of the premises a spouse, de facto partner, or dependants, of whose occupation and relationship to the sole tenant the landlord has been notified before the death.

More worrying still, there's a special provision for NT public housing at s 82(2), whereby 'the tenancy is terminated whether or not a spouse, de facto partner or dependant of the sole tenant is left in occupation of the premises.'

Another worry: in 2007, the NSW Office of Fair Trading proposed amendments to the NSW Residential Tenancies Act 1987 that would, amongst other things, provide for the automatic termination of a tenancy upon the death the tenant. The Tenants' Union objected to that proposal at the time; now, as the amending legislation is being drafted (for circulation later this year, we're told), let's hope that our legislators have thought better of that proposal and ensure that a tenant's survivors don't have to worry about summary eviction.