Bad Behavior

On the 14 May a letter arrived at Weblight Studio claiming “Housing NSW and our maintenance trade made several attempts to advise you that we require access to your property and you have not responded to these requests.”

Grown with love in Barbara’s Garden

The letter goes on to say that they will give two days notice and require access to the property on the 23rd of May. Now that they claim to have been unable to get entry the The Residential Tenancy Act 2010 allows them to use a locksmith to force entry and give less or no warning.

This claim of being unable to gain entry after a reasonable approach confused Stephen who is the proprietor and artist at Weblight Studio. He spent the morning of the 16th May 2018 phoning the Family and Community Services housing section as well as MNI Electrospark who supply the maintenance contractors and seem to own the apartment complex.

Initially staff were very polite and helpful but that tailed off as time went by and he asked when the contractors had been refused reasonable requests to enter the apartment. He was transferred from staff member to staff member. He had at least one hang up in his face. That person demanded Stephen tell him what rank or position the housing persons he had already spoken to held. As nobody normally gives their position during these phone cals Steve simply asked if there was anyway to tell and informed the questioner that he didnt know what position that person held either. The guy hung up!

The story emerged that housing and the contractors at MNI Electrospark were saying Weblight Studio had refused three legitimate attempts by contractors to access the apartment. As far as Stephen knew he had been compliant with any written requests to access the apartment in the time demanded by the Tenancy Act and there were no outstanding or refused legitimate entry attempts. Several times when he had allowed entry either the police had turned up alone and wondering where the staff they been supposed to escort were, or nobody had come, so it was very confusing.

As suggested in the last post on this site the representative who had been in the apartment on the twentieth had told Steve he would report that he had not been allowed in. During the phone calls on the 16th of May one of the staff Stephen spoke alluded to the fact that entry had been refused and even stated that the contractor had felt threatened. When Steve happily explained he had full video of the time the contractor arrived, the time he was in the apartment, and some very high quality footage of his back as he heads off up the driveway complaining and quoting some fanciful legislation about video recording on sites that are people’s homes.

The story changed at this point as the staff scrabbled to protect their comrade. They claimed that there had been two attempts at entry and one entry where the staff member felt insulted by the cameras and had left. The two claimed attempts at entry had not been explained so Stephen asked when they happened and what form they took.

A member of the contractor team had come to the door of the apartment at a random time and, without any announcement,  had left a sliver of paper somewhere on or near the apartment. They claim he did that once on the 24th January and again on the 30th of January. Stephen has never seen these papers nor does he know to expect them but he made it clear to the phone staff he would not be allowing entry by random visitors. There had been seven attempts by unknown people to enter the apartment in one week alone! There had been many during the weeks before the camera began recording all visitors. All without record or mention by housing.

The reason they only claim two is that to admit to any more is to confess to engaging in considerable harassment. On the days they mention Stephen was either too ill to come to the door or not at home. These are not legitimate attempts to gain access under The Residential Tenancy Act 2010

Steve does not allow entry by random visitors because it is an abuse of his right to privacy. He also cannot identify most people’s faces when they are not in a known context so he never knew who was demanding entry. It is a part of the frontal lobe injuries he suffered. Constantly arriving at the door and demanding entry, be it one or several people, is a form of abuse which is increased by the Family and Community Services’ knowledge of Stephens severe complex PTSD and the distress it causes him.

Further complaints are in the pipeline.

He is often ill during the night and medication he takes for his heart and diabetes and pain cause him to sleep during the day. He rarely answers unexpected attempts to get his attention while in a deep sleep.

It seems that in their desperation to harass and intimidate with their power to ignore human decency and the law, housing have taken incidents that actually show their harassment and turned them into a reason to attack the tenant’s rights within the legislative boundaries of the Tenancy Act. Excepts of the Residential Tenancy Act 2010 (NSW) will be at the end of the post so you can see what is being alleged without slogging through the data in the middle of the story. At the end of that will be the relevant section of The Surveillance Devices Act 2007 (NSW) 

You should be aware that when the government finds itself challenged to uphold sections of these acts it often changes them to suit the aberrant case of the government and by the closest thing to stealth they can manage. Check before you rely on these and even then they can change while you prepare a document

The Residential Tenancy Act 2010 NSW. Part 3. Division 2. Part 50
(as per the official government website)

Tenant’s right to quiet enjoyment
(1)A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head
landlord) to that of the landlord.
(2) A landlord or landlord’s agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. Maximum penalty: 10 penalty units.
(3) A landlord or landlord’s agent must take all reasonable steps to ensure that the landlord’s other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises.
(4)This section is a term of every residential tenancy agreement.
(These clauses are important and magnified when viewed through the spectrum of the tenant’s physical and mental health situation and the requirements of The Anti-Discrimination Act 1977. NSW )
The Residential Tenancy Act 2010 NSW. Part 3. Division 4. Part 55.
55 Access generally by landlord to residential premises without consent
(1) A landlord, the landlord’s agent or any other person authorized by the landlord may enter residential premises during a residential tenancy agreement without the consent of the tenant, and without giving notice to the tenant, only in the following circumstances:
(a)in an emergency,
(b)to carry out urgent repairs,
(c)if the landlord, landlord’s agent or person has made a reasonable attempt to obtain entry with consent and has reasonable cause for serious concern about the health or safety of the tenant or any other person that the landlord,landlord’s agent or person believes is on the residential premises,
(d)if the landlord forms a reasonable belief that the residential premises have been abandoned,
(e)in accordance with an order of the Tribunal.
(2) A landlord, the landlord’s agent or any other person authorized by the landlord may enter residential premises during a residential tenancy agreement without the consent of the tenant, after giving notice to the tenant, only in the following circumstances:
(a)to inspect the residential premises, not more than 4 times in any period of 12 months, if the tenant has been given not less than 7 days written notice each time, (NB with the entry on the twentieth this is the second time in a month of actual entries.)
(b) to carry out or assess the need for necessary repairs (other than urgent repairs) to, or maintenance of, the residential premises, if the tenant has been given not less than 2 days notice each time,
(c) to carry out, inspect or assess the need for work for the purpose of compliance with the landlord’s statutory obligations
relating to the health or safety of the residential premises, if the tenant has been given not less than 2 days notice each time,
(d)to value the property, not more than once in any period of 12 months, if the tenant is given not less than 7 days notice each time
(e) to show the premises to prospective tenants, a reasonable number of times during the period of 14 days preceding the termination of the agreement, if the tenant is given reasonable notice each time,
(f) if the landlord and tenant fail to agree under section 53 to show the premises to prospective purchasers, not more than twice in any period of a week, if the tenant is given not less than 48 hours notice each time.
(3)This section does not apply to any part of premises to which the tenant does not have the right of exclusive occupation.
(4)This section is a term of every residential tenancy agreement

The Surveillance Devices Act 2007 NSW

 

1.3. Use of Optical Surveillance Devices as per the Smartsafe website

An ‘optical surveillance device’ means any device capable of being used to record visually or observe an activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment. Common examples: handheld devices such as mobile phones and tablets with a camera, cameras, binoculars, ‘spy cameras’.

When is it an offense to use an optical surveillance device

Generally, if the installation, use or maintenance of an optical surveillance device involves:

  • entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle; or
  • interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object,

it would be an offence to knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity.

Common scenarios:

  • It would be an offense for a person to break into his ex-partner’s house or enter her property without her consent to install a surveillance camera.
  • It would be an offense for a person to break into his ex-partner’s vehicle to install a surveillance camera.

When can an optical surveillance device be used

As long as the installation, use or maintenance of an optical surveillance device does not involve the unauthorized entry onto/into a premise or vehicle or unauthorized interference with a vehicle or other object, it is not an offense under section 8 of this Act.

Common scenario:

  • A person may generally install surveillance cameras on their property. 

However, the use of the surveillance cameras might be in contravention of other laws – for example, it would be a criminal offense for a person to install a surveillance camera in the bathroom of his own home to film a person getting in and out of the shower, knowing that the person has not consented to being filmed in such a way. For relevant criminal offenses, please see the Legal Guide to Relevant Criminal Offences.

Where can I find this information in the Act?

See sections 4 and 8 of the Act.