Catch 22 for protected tenancies

The NSW Government, in an effort to reduce red tape, may be about to create a Catch 22 which could result in the eviction of elderly people from homes they have lived in for decades.

The Government is reviewing the Landlord and Tenant (Amendment) Act 1948, the legislation governing 'protected tenants'. This Act applies to a significant number of tenants in NSW. The last estimated number of protected tenants was between 600 and 1,400 in 2011. However, it is impossible to estimate accurately.

Protected tenancy leases became unavailable on 1 January 1986, but existing leases could continue.

The Act is an old piece of legislation that provides rent control and protections from evictions. By definition, these tenants are old and vulnerable. If the protections of the Act are weakened, these tenants are likely to face hardship, possibly homelessness.

The Government has tried to weaken this Act a number of times before, most recently in 2011.

The Government is proposing to incorporate the Act into the Residential Tenancies Act 2010. They are also proposing to create a register of protected tenants. But there are problems with this.

The first is that the Act is written in complicated, old fashioned legal language, which will be very difficult to translate to plain English and incorporate into the new Act.

This means that some key protections would likely be lost in translation.

The second problem is that the Government wishes to implement a register of protected tenancies and give tenants twelve months to register. This is where a Catch-22 kicks in: the Government can't notify protected tenants to register, because the Government doesn't know who they are. They have no register.

Protected tenants are likely to not know that they fall under the protected tenancies legislation or they are likely to miss the general announcement in the media that they need to register within a mandatory period of twelve months.

As a result, very few protected tenants are likely to register. Does this mean that if a tenant is not registered, they are no longer protected?

CPSA's submission to the review takes the position that the Landlord and Tenant (Amendment) Act 1948 should simply continue. Protected tenancies will continue to disappear gradually through natural attrition.