I wish to comment as follows on how I believe Victorian law could be improved to create a better situation in Victoria:
Preamble on purpose of enquiry, consultation paper content and Victorian society.
1. Equality landlord vs tenant.
2. Common defects applying to both parties.
3. Other Specific characteristics/situations needing legislation.
4. Other observations and comments.
PREAMBLE:
In many respects I find the consultation paper to be disingenuous and inadequate.
For instance the statistics fail to show housing owned by superannuation / insurance and other corporations or foreigners.
The paper does not identify the quantum and variety of complaints received by the Consumer Affairs nor does it identify the level of failure of complaint to them owing to defective legislation.
Furthermore the paper and questions posed in the discussion are largely creating a landlord vs tenant arena.
I suggest that for genuine comprehensive community input such omissions and obvious directive be eliminated.
I suggest that the current Tenancy situation dates back and arises from English feudal times when all property was owned by an overlord. It certainly ignores the ownership and usage attributed to First Nation's People.
Despite the pretense of a Victorian Charter of Rights to create societal equality within Victoria it is not happening as can be read in both landlord and tenant views expressed in the discussions that have occurred so far.
In simplistic terms I ask what sort of society do the citizens of Victoria want? One of lords and serfs?
The observation is made that the existing Victorian society largely lives in denial of recognition of the fact that it has developed or been turned into a "dog eats dog" society. A society perhaps that has become lost in selfishness, cynicism, racism, false religiosity, avarice, exclusion of rationality and common sense?
Why has it been forgotten that "for one to benefit all must benefit"?
Let us work toward an holistic and homogeneous all inclusive progressive Victorian society that recognises that "a denial of any citizen is a denial of all citizens".
Housing is a prerequisite of a society's existence. Successive governments have failed to enable the replacement of housing stock and also through failure to provide for increasing population have actively created scarcity in order to achieve false inflated market prices.
The argument that the same occurs worldwide merely identifies that much of the world has chosen, as has historically often happened, to follow a false belief and prophets.
1. Equality of landlord vs tenant.
At present it appears that Australian and Victorian law greatly favours the landlord.
The landlord is allowed to offset property rental 'losses' against other income through so called negative gearing. Rented property rates, repairs, agent's fees, insurances, depreciation, legal fees, interest, and maintenance contractors, to list but a few expenses, are all allowed as tax deductions against taxable income.
The tenant's expenses however are not allowed for anything ... other than creating a serf, inequality and false aggrandisement of property owner.
Furthermore the landlord is not required to share capital gains made on the rented property with the tenant. The tenant however is considered to be in an unrecognised unequal onerous partnership with the landlord to curate the property, provide cash flow to service cash expenses and be subject to the whim of the landlord who may decide to sell the property at any time!
I suggest that the Victorian Tenancy Act be amended to ensure that Tenants, even decades after ceasing to occupy and pay rent on a property be entitled to a fair share of capital gains realised on sale of the property.
Existing law does not even recognise that the supply of gas, electricity and water are all modern necessities to enable property occupation particularly considering Victoria's seasonal extremes of climate.
The tenant has to pay for supply of gas and electricity, the landlord seemingly being excused even when the property is vacant.
This is an hidden subsidy, all other Victorians pay on supply charges resulting in subsidy to owners of rented properties who are not required to pay the charge.
The law needs aligning to create equality and justice.
I noted in the discussions that one agent identified that neither landlord nor their agent obtains 'free' representation at VCAT hearings and therefore requested an intermediary mediation resource prior to VCAT hearings.
As agents are supposed to be knowledgeable in the law whereas tenants, particularly the old and very young rarely are, I merely see this proposal as further attempt to disadvantage the tenant.
My experience of Victorian mediation has been that without penalty for failure to comply with mediated agreements and a perjury clause, no matter which party fails to comply with mediation agreements , there is no point to the mediation process.
At least a VCAT magistrate's decision is reasonably conclusive but does have safeguards for challenge. Additionally evidence is taken under oath though I am not sure of or if penalty is administered by the VCAT magistrate. If not the Act should be strengthened.
Tenant representation used to often be through person's appointed by the AG's department who frequently were more professional than the agents. (PACT?)
Funding for them seems to have been withdrawn, again resulting in lack of equality particularly if agents are required to be appropriately qualified prior to being licenced. Additionally as fees paid by landlords are tax deductible whereas the tenant has no equivalent relief or redress there is again a lack of equality in law.
I was disappointed to learn from the discussions that neither landlords nor agents can obtain satisfaction under criminal law for wilful property destruction.
Equally it used to be if someone stole from you they were charged with theft.
It seems however that a landlord or agent neglecting for more than seven days to tell you that you have overpaid rent or failing to record and return advance rent payment on termination of a lease is not guilty of theft.
How strange therefore that tenants are evicted for arrears even if they have paid a bond of one month's rent and have not damaged the property.
The Act needs amendment sooner than later.
2. Sadly I cannot say that I have found the Victorian Consumer Affairs to have done anything when formal complaint has been made other than result in agents trying to evict me.
I also do not recall them passing identified deficiency of law onto the Attorney General for rectification.
This not only suggests a biased agency but also an ineffectual one that has been proscribed from serving the whole of society.
I believe that at least two of my rental complaints were never resolved and that another one of a trader using bait advertising did not result in prosecution but was, I was informed, put into the 'let's wait for 29 more complaints before we do anything' basket. -
I wish the police would do the same when I am found to be speeding or breaking other law in their jurisdiction!
That such actions were either vexatious or contrary to the Tenancy Act speaks badly of the quality of agents who brought the actions.
I therefore suggest that all agents being paid by owners be appropriately qualified and licensed - not merely unregistered self important agents of the hectoring, intimidating, bullying nature identified by some of the participants in the discussions and experienced in Victorian life.
I totally agreed with a suggestion that Victorian law recognise the stress caused by either tenant or landlord through malicious or vexatious action and that redress of the lack of damages to compensate for reduced longevity through the unnecessary stress and awarded by the VCAT magistrate be promptly legislated to enable it to readily occur.
3. Specific characteristics/situations needing legislation.
I wish to make three comments - one relating to older tenants, one to mobile home dwellers and one to the homeless.
I again preface all with my comment that " to disadvantage one Victorian citizen is to disadvantage all ".
Elderly tenants require protection.
That evidence is now emerging of increased homelessness amongst the elderly is not only identifying the failure of successive governments to serve all Victorian citizens but also a loss of societal value.
In my opinion that the Victorian government not long ago legislated that a retirement home can only be classed as such if a tenant has paid an entry fee or key money was a total sellout to avaricious minds wishing to dispossess the elderly of their savings.
That there existed entry fee free retirement villages operated by philanthropic organisation having higher ideals than those advocating the change in legislation in cahoots with those who legislated it says much for the better quality of Victorian society aspired to and implemented by a few.
Furthermore that not even local council who had it recorded and advertised it as a retirement village nor the Tenants induced into renting in such dwellings were informed of the change until long after the event occurred also says much for the underhanded secrecy employed. Not even the local consumer affairs people were aware of the change until many months after it was brought to their attention through a complaint which also resulted in the revelation that the Government internet records were long out of date.
The lack of an effective watch dog also bodes ill for Victorian society if the Federal government signs the secretive Trans Pacific Partnership agreement which it is reported will override Australian and State legislation if it interferes in corporate profit making irrespective of Australian legality.
The elderly are vulnerable in many ways and not only through the Tenancy Act. The Tenancy Act needs to recognise this fact as well as all Victorian legislation.
Sadly my only experience of a caravan dweller was an eighty year old woman who only had one lung and needed oxygen from a tank at night. She had lived in a council owned caravan park for twenty or more years. Her deceased husband had maintained the grounds until his death a year or two previously. When the 13 year drought broke and flooding occurred in town it was not her caravan and annexe that council protected with a wall of sandbags. Oh no, that could not be done by council which merely sand bag walled every overpriced McMansion that lay in the flood zone.
The old woman was forced out of the caravan park because of the fecal contamination of the flood water leaving its bacteria on the canvas of her annexe as well as the caravan park ground. Initially she was placed in a motel. After three weeks the daily hundred or so dollar cost was deemed too expensive so she was placed in a one room unit of what had been a retirement village. She told me that she was instructed by the agent not to talk to the other residents.
Despite the agents receiving complaints for several years that the complex should be declared tobacco smoke free, the agent and, if ever notified, owner never did so. In fact I have been told that it still has not been declared to be a smoke free zone despite being still mainly occupied by elderly people. That a mentally deficient man living next door to the one room flat suddenly decided that he would sit outside the flat chain smoking may not have contributed to her death a week or so later. However I am sure that it did not help her breathing or last days of life.
That the Tenancy Act, other Victorian laws and their administration fail to give any redress in such situation to an elderly, homeless woman is inditement of the inadequacy and failure of Victorian laws and their administration. I request they be corrected to enable prompt rectification of such inhumane behaviour.
When some years ago a local charity ran a stunt to try to obtain donations to run a cunning plan to give the homeless an address to enable them to obtain Federal help in housing, I wrote a proposal that presented an alternative to create permanent housing on a large scale for the homeless. This plan enjoined them in the construction of the housing. A style of housing that is used the world over by a large proportion of the earth's population - mud brick or adobe housing.
The proposal was sent to the local mayor, the CEO of the charity begging for funds, the local Victorian MP and the Prime Minister of Australia.
Needless to say none acknowledged receipt of the letter let alone replied. I did however the next day following delivery receive a visit from two plain clothes police officers accusing me of assault. After suggesting that they were at my door as part of a witch hunt one of them thought it appropriate to verbal me in earshot of neighbours with "don't do it again". Victorian society! Needless to say I complained to the local police inspector who stated that he and his officers believed that I had not assaulted anyone. I never received an apology however.
The validity of that adobe dwelling concept still holds good.
4. There is little point in having law on any matter if it is not properly administered and uniformly upheld. The concept of one law for some, another for others very much applies and is just about evidenced every day.
However what is very evident is the fact that it has become not only harder to afford a lawyer and here I note that the Trans Pacific Partnership is reported to make the burden of the cost of lawsuit one to be carried by a country's citizens not the wealthy international company bringing the lawsuit. Tenants and landlords, who are living entities forming society, in the main do not receive the advantage of taxpayer funded specialist lawyers to prosecute or defend their cases.
Furthermore like Medicare costs where not all expenses of health are reimbursed by the fund the same occurs in court with legal fees awarded against a party.
Fair enough in the health arena if you wish to pay for a recognised superior surgeon, however in the legal arena defending simple rights...?
No registers however exist to rate tenants, landlords, agents, lawyers or even surgeons. If they did would the equality shown in the bait advertising / speeding fine example prevail? - One defect and you are in if a tenant, 30 if you are a landlord?
Buyer beware is an ancient principle largely no longer recognised in these times of warranty and compulsory rectification of defect.
Society however has moved on and is no longer one solely based upon the buying and selling of goods. The greater part of life and economy is now based upon service such as that provided by landlords, their agents, lawyers, government agencies etc..
Please let's have proper representation available to all people not just the rich and 'well' connected or international corporations.
Hopefully Victoria will remove itself from blind acceptance and copying of what has been historically created or copied from other defective societies.
The above submission has been hastily prepared on a small mobile telephone with predictive texting. I therefore request the right to not only correct such occurrences after the deadline date but to also add to the submission as further information and thought arises.
End initial submission - re -edited 11/08/2015.
Further to my initial submission six days ago I wish to add the following points:
1. The Act fails to offer guideline or direction to allow tenants the same benefit afforded to owner occupiers with respect to permanent property improvements. Within this category I include such things as solar panels, national broadband or gas connection, external window blinds, in ground swimming pools or spa, floor coverings, tennis court, landscaping etc.
All add value to a property. A standard means of calculating reimbursement to a tenant at the end of a lease will simplify matters.
I suggest that cost of asset less tax rate depreciation reduction of value over the period of the lease is one equitable means of calculation.
2. Long term leases.
Many tenants but particularly the elderly who require in their last years a security of tenure not only to enable them peace of tenure but also the removal of the stress which reduces their longevity.
I therefore suggest that provision be made that 5x5x5 leases not only be recognised but become common place.
I also suggest that it should be legislated that any lease being terminated early by a landlord should necessitate the landlord to pay for removal costs. It should also be recognised that moving whether voluntary or forced is one of life's most stressful events resulting in poor outcomes for health and /or longevity.
3. VCAT limitation on amounts that can be awarded are totally inadequate and should be lifted to $500,000.
The VCAT magistrate should be required to advise either party of the availability of such compensation for any breaches that he determines.
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May health, peace and fulfilment be your constant companions on life's journey.
Richard J. Newby