Exclusive: analysis finds lease termination cases where abuse suffered by tenant is framed as ‘nuisance’ breach

This article is more than 1 year old

This article is more than 1 year old

Social housing landlords are evicting low-income domestic violence survivors because the abuse they suffer can be considered a “nuisance” breach under existing tenancy laws, a new study has found.

In one shocking case, a disabled woman was evicted despite a tribunal noting she had been assaulted by her partner two weeks before the hearing.

Researchers from two universities analysed lease terminations data, nearly 100 state tribunal and court decisions, as well as case studies from housing providers to assess the impact on the nation’s most vulnerable tenants.

They found women in social housing bore the brunt of “hard expectations” to “control the misconduct of male partners and children” who were either abusive, or had committed petty crimes, according to the Australian Housing and Urban Research Institute (Ahuri) study, released on Thursday.

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Social housing tenants were far more likely to face termination applications than those in the private market. In Victoria and NSW, public housing authorities applied to state tribunals to terminate around 5,000 leases each year, data collected by the researchers showed.

Chris Martin, a social housing expert at the University New South Wales, said the most concerning cases uncovered were those where domestic violence was “framed as a nuisance for which the tenant is responsible” because of “blunt instrument” laws.

‘Distressing’, ‘wretched’ evictions

In a 2017 case, Victoria’s public housing authority evicted a woman with an acquired brain injury and a cognitive disorder from her home of nine years.

The woman appealed, telling a tribunal much of the “evidence presented related to her partner … over whom she had no control”. She told the tribunal he had hit her “two weeks” before the hearing.

But the department successfully argued the “yelling, screaming, making loud noises, fighting and using threatening and abusive language” represented a “nuisance” breach.

The tribunal noted disruptive behaviour on behalf of the tenant, but also upheld breaches where she was the victim of abuse. That included an incident where her partner was “making threats of violence towards the tenant”.

Martin said the case would have been “distressing” for all involved, including the housing officers.

In another “wretched case”, NSW authorities evicted an Indigenous single mother whose boyfriend was accused of making 20 small ($10-$20) marijuana deals in the backyard.

The woman, a survivor of domestic violence from a previous relationship, was not charged, co-operated with police and ended the relationship.

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But a tribunal said it was powerless to exercise discretion, and having found an “illegal use” of the premise, evicted the mother and her children.

Landlords can terminate leases when tenants have breached what are called “prescribed terms”, such as “nuisance” or “illegal use”. In most states, tenants must not “permit” offences by others, including visitors, and are given “three strikes”.

Women were regularly held responsible for a partner’s behaviour, one advocate said, “because providers often sign up only one person as the named tenant, and often women are the ones filling out the paperwork”.

Leo Patterson Ross, a spokesman for the National Association of Tenant Organisations, said providers should take a “good hard look” at whether polices to support violence survivors “translate into practice on the ground”.

Children evicted into homelessness

Other findings included that tenants had their alcohol and drug treatments disrupted by a zero-tolerance approach to substance abuse breaches, while children were usually only a “marginal consideration” in the cases reviewed.

“Children are evicted into homelessness as a result along with their parents,” said Martin, who called for “the best interests of the child” to become a “paramount factor” in terminations proceedings.

Nearly half of the cases reviewed by the researchers involved people abusing drugs or alcohol, and social housing landlords – particularly those run by the government – almost uniformly took a zero-tolerance approach.

New laws in Victoria let tenants apply to a tribunal to invalidate lease terminations within 30 days where domestic violence is a factor, though Martin said the process would still be problematic for vulnerable people.

Changes in NSW protect tenants from being held responsible for property damage that occurred during domestic violence, though “other breaches (e.g. nuisance) caused by a perpetrator may still be grounds for termination”, the report said.

Generally, public housing authorities took a tougher approach than community housing providers, which are run by non-profits.

One Victorian community housing landlord exhibited an “enthusiastic” framing of domestic violence as a “breach of tenancy agreements”, while WA’s public housing authority was accused of taking a “victim-blaming” approach, the study said.

Martin said tribunals and courts nationwide should have more power to exercise discretion and consider domestic violence factors in decisions.

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In WA, tenants can now ask a court to have a domestic violence perpetrator removed from a lease, among other reforms passed recently.

Helen Nys, of the WA Department of Communities, said tenants were not “held responsible for incidents in which they were victims of domestic violence”.

“Where both the victim and perpetrator of domestic violence are legal tenants, the department will consider the appropriate action under the new provisions of the RTA,” she said.

A spokeswoman for NSW’s FACS department said it would review the report and consider its recommendations.

The government had programs and measures in place to “combat domestic and family violence and deal with its consequences”, she said.

A Victorian DHHS spokesman said evictions were considered an “option of last resort” and that family violence victims were helped by being transferred to new or temporary accomodation.