Mike Butler: Tinkering with boarding house law

Less than one year after passing the Residential Tenancies Amendment Act 2010, the social services select committee of the current National Party-led government, which handled it, wants to tinker with boarding house law in response to a briefing on homelessness in New Zealand.

Housing Minister Phil Heatley showed his bias when he told NZPA he strongly supported the move. "I'm still suspicious that there is a number of large boarding house operators out there who are housing people in unhealthy and unsafe conditions, and I think it's important that if that's the case they are flushed out."

He said the committee would be able to look at the wider issue, including health, not just housing, and recommend any regulatory changes needed. "At the moment, as minister of housing, we've acted on the residential tenancies side of it, but I'm also interested in the condition tenants are living in, which is not covered by the Residential Tenancies Act, and also building compliance."

So why target boarding houses that provide accommodation, to deal with homelessness, an issue for people lacking accommodation? Is this a bid to force boarding house operators to house homeless people, which they already do, or is it an attempt to appear to be doing something about a social problem while actually making the problem worse?

I have operated a small boarding house for 14 years, I put in several submissions, both written and oral, before the Residential Tenancies Amendment Act 2010 was passed, and I have seen the act in action.

The central principle of any rental accommodation is that of “quiet enjoyment”. Every tenant is entitled to the quiet enjoyment of the premises, without interruption by the landlord or another tenant. Neither the landlord nor the tenant may cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant and of every other tenant.

Noise and disruption is commonly associated with alcohol consumption. Noisy, disruptive tenants always have to move out otherwise the quiet, co-operative tenants will have no other option but to move on and the boarding house operator is left with a house full of problem tenants. Disruptive drinkers will continually face eviction until they run out of options and find themselves homeless.

Some drinkers choose to be homeless because living rent-free they have more to spend on booze.

Another large group of problem tenants are those with mental health issues. The presence of a person in the next room who is constantly carrying on a conversation with an invisible person, or persons, wrecks the possibility of “quiet enjoyment” for other residents. Psychotic behaviour brings the fear of the possibility of a sudden attack. The appearance of a large number of mentally disturbed people in the community resulted the closure of government-run, live-in, psychiatric hospitals a number of years ago.

Accommodation providers have an additional uncompensated role of mental health worker, and, in case of violence or criminal behaviour, police officer. Dealing with disruptive drinkers and occasional psychotic behaviour comes on top of the day-by-day cleaning and monitoring rents.

I am curious to see how this select committee seeks to deal with homelessness by tinkering with the boarding house section of the Residential Tenancies Amendment Act, which made aspects of running a boarding house more difficult.

For instance, this select committee set up a process for landlords to terminate a tenancy for non-payment of rent that gave the tenant 10 days to pay any arrears and an extra two days notice to end the tenancy. Before the act covered boarding houses, if a tenant did not pay, he or she could not stay.

The extended 12-day process for evicting non-payers means that the minimum bond would have to be two weeks, so that the bond could cover the two weeks’ lost rent. This in turn made rent-bond advances from Work and Income more costly since a bond equivalent to at least two weeks’ rent was required. And since all bonds of two weeks or more must be lodged with the Department of Building and Housing, paperwork increased for that department. With boarding house bonds held by a government department, refunds of bonds after a dispute would need to go through the already pressured Tenancy Tribunal.

This is how one poorly thought-out clause chosen despite expert advice to the contrary multiplied the costs to the government while shielding an army of serial non-payers from the consequences of their actions.

In the current tinkering, the select committee seeks to protect vulnerable tenants. To do this there would have to be some definition of what constitutes “vulnerable”. The word, according to a dictionary, means is exposed to the possibility of being attacked or harmed, either physically or emotionally. In many cases, the actual vulnerable people in a boarding house would be the co-operative, quiet, paying tenants at risk of harm by the disruptive, noisy drinkers and unexpected outbursts of closet psychotics.

Logically, measures would be required to prevent boarding house operators from accommodating potentially dangerous people next to quiet, law-abiding tenants. Sadly, the reverse is true. Every day there are numerous government employees up and down the nation trying to house potentially dangerous people, such as visibly deranged people from the local psychiatric unit, or police trying to bail an offender. The only person protecting the vulnerable, law-abiding tenants is the landlord.

Usually, the law-abiding tenants carry on their lives almost invisibly in any rental accommodation, often only having contact with the landlord at the beginning and end of the tenancy, and on inspections. It is only when problems arise that landlords and tenants are in each other’s faces, and look to the letter of the law. It is almost as though the law is there to protect the miscreant from the consequences of his or her deeds or misdeeds. With a detailed and lengthy eviction process, any landlord who makes a wrong step will end up in the naughty corner.

If a detailed and lengthy process is created to deal with so-called vulnerable people, it is likely the disruptive, noisy drinkers and psychotics will be defined as the vulnerable ones, the act would require special care, they would become expensive to accommodate, and therefore more likely to remain homeless.

A better idea would be to introduce a two-week trial period for marginal tenants. If the tenancy does not work out in the trial period, the tenancy would end. Landlords want tenants and tenants want accommodation. It would be in the interest of both parties to make such a tenancy work, similar to the 90-day employment trial period.. Housing New Zealand staff members know how difficult it is to evict a flats tenant on grounds of disruptive behaviour, as the case of the women with Mongrel Mob partners in Farmer Crescent, Lower Hutt, has shown.

If there already is an accommodation shortage, the other likely consequence is that as legislation makes boarding houses increasingly difficult, private operators will turn to a more profitable industry, and accommodation options will become increasingly scarce and expensive.

Numerous government agencies rely on private accommodation providers but the current government is enacting legislation that is squeezing operators. Go and figure that out!

Submissions are sought, with the deadline of June 24, 2011, either online using the Parliament website (https://www.parliament.nz/en-NZ/OnlineSubmission/#captcha) or in writing via snail mail. This blog has been forwarded as my submission.