A damning report (‘the Report’) by the University of NSW’s Human Rights Clinic titled ‘No Place Like Home’ has found a lack of student housing and a tight market allows landlords to exploit a lack of knowledge about legal rights, resulting in international students in Sydney falling victim to financial exploitation.
SHARE HOUSING GONE WILD
If you have ever looked at flatmates.com.au or advertisements up on gumtree.com.au or even Facebook share housing groups, you would have noticed a substantial amount of ‘share’ rooms up for rent throughout the CBD. This means people are going beyond living in a share house; they are sharing rooms with strangers. Sometimes one can see rooms are filled with bunk beds like a hostel. These are probably over legal capacity.
THE STORY
The Report highlighted there is a presence of “dodgy landlords who are overcharging on bonds, suddenly increasing rents and refusing to maintain legal paperwork”, as published by SBS. It was said by Maria Nawaz, the lecturer and clinical supervisor at the legal clinic, that “many international students pay money up front to unverified landlords they find online”. The law does not work well to assist international students who arrive in Sydney and find themselves in a place much worse than advertised or other things going wrong, such as repairs not being done or there being a presence of mould. Problems identified by the included landlords demanding a larger bond or more rent in advance than allowed by the law or imposing sudden rent increases or excessive utility charges. The data came from responses by focus groups of international students at several universities across Sydney, interviews with legal service providers and university housing advisors and analysis of data from the Kingsford Legal Centre UNSW between October 2017 and April 2018.
THE LAW
Some relevant sections of the law include:
Section 41 of the Residential Tenancies Act 2010 (NSW) (RTA) – Rent Increases
(1) The rent payable under a residential tenancy agreement may be increased only if:
(a) the tenant is given a written notice by the landlord or the landlord’s agent specifying the increased rent and the day from which it is payable, and
(b) the notice is given at least 60 days before the increased rent is payable.
(2) This section extends to an increase in the rent payable under a residential tenancy agreement on renewal of the agreement as if the increase were an increase during the term of the agreement.
Section 159 of the RTA – Payment of Bonds
(1) A landlord, landlord’s agent or any other person must not require or receive from a tenant or another person a rental bond of an amount exceeding 4 weeks rent under the residential tenancy agreement for which the bond was paid (as in force when the agreement was entered into).
Section 64 of the RTA – Urgent Repairs to Residential Premises
(1) A landlord must, not later than 14 days after being given a written notice from the tenant, reimburse the tenant for the reasonable costs of making urgent repairs to the residential premises.
For more information about your rights as a tenant, the Tenants Union of NSW has a wealth of resources on their website including very useful factsheets. Here is their page on repairs and maintenance.
ARE THESE LANDLORDS CRIMINALLY LIABLE?
Yes, they could be charge with fraud/obtain benefit by deception.
A person who, by deception, dishonestly obtains property belonging to someone else, or obtains a financial advantage or causes a financial disadvantage, is guilty of fraud.
Section 192E of the Crimes Act 1900 (NSW) covers the majority of conduct falling under the general umbrella of “fraud”:
(1) A person who, by any deception, dishonestly:
(a) obtains property belonging to another, or
(b) obtains any financial advantage or causes any financial disadvantage,
is guilty of the offence of fraud.
Maximum penalty: Imprisonment for 10 years.
(2) A person’s obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property.
(3) A person may be convicted of the offence of fraud involving all or any part of a general deficiency in money or other property even though the deficiency is made up of any number of particular sums of money or items of other property that were obtained over a period of time.
(4) A conviction for the offence of fraud is an alternative verdict to a charge for the offence of larceny, or any offence that includes larceny, and a conviction for the offence of larceny, or any offence that includes larceny, is an alternative verdict to a charge for the offence of fraud.
In this context of deception by landlords, the ‘property’ obtained would be the money being paid to them in the form of a bond or excessive rent.
The offence is an indictable offence, but can be dealt with in the Local Court if: (1) The amount that is the subject of the financial advantage does not exceed $100,000 (2) The Magistrate considers the charge appropriate to be dealt with summarily; and (3) The accused consents– (this is something you should seek advice from an expert criminal lawyer on).
The nature and penalties of this type of offending was considered in the case of R v Brown (Unerp), 1/8/94, NSWCCA. General deterrence is an important consideration upon sentencing offenders for this crime. Other relevant factors include: the amount of money involved, the duration of the fraud, whether the offender occupied a position of trust when the fraud was committed, whether there was any sophistication in the method employed to defraud, and the motive behind the offending.
To read more about this offence, check out our dedicated page here.