Senin, 23 Juli 2012

Comment on the draft Boarding Houses Bill (part 2)

The TU and the Tenants Advice and Advocacy Services have been poring over the draft Boarding Houses Bill 2012, circulated recently by the NSW State Government. We posted some initial comments here; now that we're getting into the detail of the draft Bill, here's a further comment.

We said previously that the relatively narrow coverage of the draft Bill was a major concern; but there's another problem with the draft Bill's coverage. The draft Bill would not apply to boarding premises that are subject to a residential tenancy agreement under the Residential Tenancies Act 2010 (or for that matter, the Landlord and Tenant (Amendment) Act 1948) (clauses 5(3)(b) and 35(2)(a)). This appears to us to be a potentially fatal defect in the draft Bill, for two reasons.

First, there are many premises let in lodgings that are subject to a residential tenancy agreement... between the owner and a head-tenant, who does the lettings (sometimes without the owner knowing about the lettings). A great many lodging arrangements for international students operate on these lines. The Government has indicated that it intends to address these arrangments; on its present terms, however, the draft Bill would not.

Secondly - and this is even more important - just about any boarding house proprietor could avail themselves of this exclusion and step out of coverage of the draft Bill, just by granting a residential tenancy agreement for the premises to an associated company or other person (or they could do it in reverse, transferring ownership of the premises to a company and then granting a residential tenancy agreement to themselves). They could then let the premises in lodgings and run it as they always have, but the tenancy agreement would shield them from the application of the provisions of the draft Bill.

We think the defect is an unwitting one - but it needs to be fixed. And it can be fixed easily: just specify that the draft Bill's provisions relating to occupancy principles do not apply to residential tenancy agreements or leases under the 1948 Act.

We'll keep poring over the details, and posting further comments, until submissions on the draft Bill close 10 August.