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Resources for Aboriginal Community Housing Providers

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2. TENANCY MANAGEMENT

Contents 2. TENANCY MANAGEMENT .................................................................................................................. 1

2.1 Establishing Tenancies ...................................................................................................................... 4

Does my organisation meet the AHO’s minimum requirements? ...................................................... 4

What is the purpose of policies for starting a tenancy? ..................................................................... 5

Purpose ........................................................................................................................................... 5

Principles ......................................................................................................................................... 5

Practice ........................................................................................................................................... 6

Sample information for operational policies ...................................................................................... 7

Starting a tenancy ........................................................................................................................... 7

Signing the tenancy agreement ...................................................................................................... 7

After signing the tenancy agreement ............................................................................................. 7

Rental bond ..................................................................................................................................... 8

Tenant responsibilities .................................................................................................................... 8

Sustaining a tenancy ..................................................................................................................... 10

Sample Letter for Start of Tenancy ................................................................................................... 12

What systems or procedures does my organisation need? ............................................................. 14

Using the residential tenancy agreement ..................................................................................... 14

Supported housing ........................................................................................................................ 14

Signing the tenancy agreement .................................................................................................... 15

Rent at the start of the tenancy .................................................................................................... 15

Property condition report ............................................................................................................. 16

Keys ............................................................................................................................................... 16

Bond .............................................................................................................................................. 16

Tenancy file ................................................................................................................................... 18

Implementation systems .............................................................................................................. 18

2.2 Setting and collecting rents ............................................................................................................ 20

Does my organisation meet the AHO’s minimum requirements? .................................................... 20

Sample information for operational policies .................................................................................... 21

Rent setting, assessing and reviewing .......................................................................................... 21

Name of ACHP gives each tenant information in writing about changes to their rent and the date when the changes will take effect.Rent collecting ............................................................... 23


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Unpaid Rent or other charges ....................................................................................................... 23

Christmas Holiday Rent ................................................................................................................. 23

Sample letters and forms .................................................................................................................. 25

Letter – Notice to Tenant of Overdue Rent .................................................................................. 25

Letter - Notice to Tenant of Overdue Water Charges ................................................................... 26


Rent ............................................................................................................................................... 27

Rent setting – Affordable housing properties .............................................................................. 27

Managing unpaid rent or charges ................................................................................................. 28

Water usage and other charges .................................................................................................... 28

2.3 Tenancy transfer ............................................................................................................................. 30


What is the purpose of policies for tenancy transfer? ..................................................................... 31

Purpose ......................................................................................................................................... 31

Principles ....................................................................................................................................... 31


Transfers & Tenancy reinstatement ............................................................................................. 32

Grounds for transfer or reinstatement ......................................................................................... 33

Exchanging of housing between tenants ...................................................................................... 38

Succession of tenancy ................................................................................................................... 39

Management transfer ................................................................................................................... 40

Sample letters and forms .................................................................................................................. 41

Succession of Tenancy Request Form ........................................................................................... 41

2.4 Ending a tenancy ............................................................................................................................. 44


What is the purpose of policies for ending a tenancy? .................................................................... 45

Purpose ......................................................................................................................................... 45

Principles ....................................................................................................................................... 45

Practice ......................................................................................................................................... 45


Reasons to end a tenancy ............................................................................................................. 46

Absence from property and abandonment .................................................................................. 48

Abandoned goods ......................................................................................................................... 49

Unauthorised occupants (squatters) ............................................................................................ 50


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Termination notice ........................................................................................................................ 51

Section 85 Termination Notice ..................................................................................................... 51

Section 149 Termination Notice ................................................................................................... 52

Deciding to evict a tenant for breaching their agreement ........................................................... 52

NCAT applications ......................................................................................................................... 53

NCAT decision making ................................................................................................................... 53

Ending the tenancy due to non-payment of rent ......................................................................... 54

Using transfers and referrals as an alternative to eviction ........................................................... 55

When a tenancy legally ends but does not end in practice .......................................................... 55

Tenant choice to end a tenancy .................................................................................................... 56

Abandoned property? ................................................................................................................... 56

Useful resources ............................................................................................................................... 57


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2.1 Establishing Tenancies Does my organisation meet the AHO’s minimum requirements?

My organisation has policies on establishing and maintaining tenancies

My organisation ensures policies are consistent with the NSW Residential Tenancies Act 2010

My organisation has systems for monitoring compliance with its policies and relevant legislation

My organisation’s policies are widely disseminated and easily accessible, and available on my organisation’s website

My organisation ensures every tenancy is formalised through a Residential Tenancy Agreement

My organisation gives tenants the opportunity to have a support person present to assist them at the tenancy agreement ‘sign-up’

My organisation talks tenants through the Residential Tenancy Agreement, to make sure they understand their rights and responsibilities, before tenants sign the agreement

My organisation informs a tenant about the organisation’s policies and procedures relevant to their tenancy at ‘signup’

My organisation ensures there are appropriate procedures for signing tenancy agreements with tenants who are under 18 years of age or have disability (such as intellectual disability or mental health issue)

My organisation establishes a tenancy file for every tenant

My organisation gives each tenant a copy of all key documents relating to the tenancy

Before signing a Residential Tenancy Agreement with a tenant, my organisation completes a property inspection and fills out a Condition Report that documents the condition of the property. Photos are useful.

After signing the Residential Tenancy Agreement, my organisation asks tenants to complete and return the property condition report and return it within seven days

My organisation advises tenants in writing how any outstanding property repairs will be completed and by when

My organisation gives tenants a copy of the Condition Report once completed and signed

My organisation adheres to the AHO Build and Grow Rent Policy or the NSW Community Housing Rent Policy.

My organisation has a clear policy on how rents are charged and collected and procedures for lodging bonds

My organisation clearly documents any contact with tenants on the tenant file during the course of a tenancy

My organisation facilitates tenant access to support services for tenants to help them sustain their tenancies such as disability, health, aged care and the Tenancy Advice and Advocacy Services

https://www.legislation.nsw.gov.au/#/view/act/2010/42


https://www.fairtrading.nsw.gov.au/housing-and-property/renting/starting-a-tenancy




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What is the purpose of policies for starting a tenancy?

Purpose

These policies explain how your organisation manages the process for starting a tenancy. The purpose is to:

• describe tenancy conditions that are legal, ethical and appropriate to your organisation’s tenant group and constitution;

• establish a positive and sustainable relationship with tenants;

• inform each tenant of their rights, responsibilities and options; and

• enable effective and efficient administration of the tenancy.

Principles

Some good practice principles to consider when developing your organisation’s policies and practices for starting a tenancy are:

Principle Practices

Legal A written standard residential tenancy agreement is used and all the legal requirements of a landlord are met

Effective Tenancy management policies are comprehensive and appropriately written

Efficient Policies are put into practice using straightforward and systematic procedures

Consistent Tenants and applicants are treated consistently regardless of who they are and the information provided to them is consistent

Responsive Policies allow individual needs to be responded to

Fair and just Tenants and applicants are helped to understand their tenancy rights and their tenancy responsibilities, and how the organisation operates

Confidential The privacy and confidentiality of tenants and applicants is respected at all times and privacy legislation complied with

Equitable and non-discriminatory Tenants and applicants can expect equitable and non-discriminatory

treatment

Professional An honest, courteous and respectful relationship is maintained with all


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tenants and applicants

Competent Workers and management are provided with appropriate information, training and support about the rights and responsibilities of landlords and tenants

Practice

Your organisation’s policies and procedures should take account of your organisation’s location, properties, programs, tenant group and organisational experience.

Your organisation can adopt different practices based on its particular circumstances. Examples could include:

• Signing the agreement at the property rather than in the office, when a tenant has mobility problems and no easy transport route to the office;

• Highlighting different issues for different tenants – for example explaining in greater detail to a tenant who has never rented before, all the implications of the tenancy agreement

• Not charging a bond because the administrative cost has been found to outweigh the amount recovered at the end of problem tenancies

• Providing a minimum set of policies to tenants based on the experience of what information will help sustain tenancies without being ‘information overload’


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Sample information for operational policies

Starting a tenancy

When an applicant accepts a property, the following will be discussed:

• If they would like to bring a support person to help with signing the tenancy agreement and starting the tenancy

• The date for signing the tenancy agreement and starting the tenancy

• The weekly rent payable

• The total amount including 2 weeks rent in advance and bond, to be paid on the day of signing the tenancy agreement. (Depending on negotiations with payment of bond)

Signing the tenancy agreement

Note: It is important the person signing the tenancy agreement understands the responsibilities they are taking on.

At the appointment for signing the tenancy agreement the CEO/Property Manager will explain:

• The tenancy agreement to make sure the applicant understands their rights and responsibilities

• The amount of rent and other tenancy charges such as bond and water charges, and how they are calculated

• How to pay rent and other tenancy charges

• The main policies and procedures of Name of ACHP relevant to the tenancy

The tenancy starts when the tenancy agreement is signed.

After signing the tenancy agreement

Note: The Condition Report is must be completed before the tenant signs the tenancy agreement. It can be useful to take photos as well as filling out the Condition Report.

After signing the tenancy agreement, Name of ACHP will issue the following to the tenant:

• Completed and signed Residential Tenancy Agreement. Two (2) original versions are completed during the lease sign up with the Tenant receiving one (1) version and Name of ACHP retaining one (1) version.

• Two (2) copies of the Condition Report completed by Name of ACHP and ready to be filled out and signed by the tenant

o One (1) copy is to be returned to the CEO/Property Manager within 7 days once the tenant has completed the tenant section.

o One (1) copy is kept by the tenant

• Written confirmation of when and how any outstanding property repairs will be completed


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• Two (2) Set of Keys.

• Rent / Deposit Book if applicable.

• Direct Debit payment details if applicable.

• Copy of the New Tenant Checklist published by NSW Fair Trading

• Name of ACHP Housing and Tenancy Handbook including Complaints and Appeals procedures & Repairs & Maintenance procedures and tradespeople contacts

Rental bond

Note: It is not mandatory for a rental bond to be set or charged. If a rental bond is charged, it must be lodged with the Rental Bond Board in accordance with the Residential Tenancy Act 2010. Under the AHO Guidelines, the procedure for collecting and lodging the bond must be explained in the policy.

A bond equal to four (4) weeks rent is be payable by new tenants.

Name of ACHP discusses the options for paying the Bond with each new tenant. There are a couple of options:

• The full four (4) weeks to be paid at the commencement of the tenancy

• 3 monthly instalments

Tenant responsibilities

Note: Responsibilities must be consistent with the tenancy agreement, your organisation’s policies and the AHO guidelines. Some examples from the Residential Tenancy Agreement are listed as a starting point are below.

Tenants’ responsibilities include:

• Adhere to the rental payment as per the Residential Tenancy Agreement and maintain rent to be two (2) weeks in advance at all times

• Tenants must pay water usage if appropriate water efficiency measures have been installed to the property. Failure to pay water usage will be included into any rental arrears amounts owed and maybe subject to NCAT proceedings

• Not to use the property for any illegal purpose, or allow someone else to use the property for an illegal purpose

• Not to cause or permit a nuisance

• Not to interfere, or allow others, with the reasonable peace, comfort or privacy of neighbours

• Not to damage, or allow others to damage, the property

• Not to allow more people to live in the property than is permitted by the residential tenancy agreement

• To keep the residential premises reasonably clean


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• To notify Name of ACHP as soon as practical of any damage to the property

• To replace light globes and batteries for smoke detectors on the residential premises. Batteries for smoke detectors must be replaced every year.

• Understanding that Name of ACHP or any person authorised in writing by Name of ACHP may enter the residential premises:

o in an emergency (including entry for the purpose of carrying out urgent repairs);

o if the NSW Civil and Administrative Tribunal orders it;

o if there is good reason for Name of ACHP to believe the premises are abandoned;

o if there is good reason for serious concern about the health of the tenant or any other person on the residential premises and a reasonable attempt has been made to obtain consent to the entry;

o to inspect the premises, if the tenant is given at least seven (7) days written notice (no more than 4 inspections are allowed in any period of 12 months);

o to carry out, or assess the need for, necessary repairs, and/or work relating to statutory health and safety obligations relating to the residential premises, if the tenant is given at least two (2) days’ notice each time;

o to show the premises to prospective tenants on a reasonable number of occasions if the tenant is given reasonable notice on each occasion (this is only allowed during the last 14 days of the lease agreement);

o to value the property, if the tenant is given seven (7) days’ notice (not more than one valuation is allowed in ay period of 12 months) if the tenant agrees.

• Not to alter, remove or add any lock or other security device without reasonable excuse (which includes an emergency, an order of the NSW Civil and Administrative Tribunal, termination of a co-tenancy or an apprehended violence order prohibiting a tenant or occupant from having access) or unless Name of ACHP agrees

• To give Name of ACHP a copy of the key or opening device or information to open any lock or security device that the tenant changes within 7 days of the change

• Not to install any fixture, renovate, alter or add to the property without Name of ACHP’s written permission

• To notify Name of ACHP of any damage caused by removing any fixture attached by the tenant

• To repair any damage caused by removing the fixture or compensate Name of ACHP for the reasonable cost of the repair.

• To pay outstanding accounts (e.g. rental arrears, property damages, removal of furniture and rubbish) in full before vacating the property at the end of the tenancy

• When vacating the property, to:

o remove all the tenant’s goods from the residential premises


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o to leave the property as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy

o to leave the property reasonably clean, having regard to the condition at the commencement of the tenancy

o to remove or arrange for the removal of all rubbish from the residential premises

o to make sure that all light fittings on the premises have working globes

o to return to Name of ACHP all keys, and other opening devices or similar devices, provided by Name of ACHP

Sustaining a tenancy

Note: Under the AHO Guidelines ACHPs must facilitate access to support services to help tenants sustain their tenancies. Types of activities could include providing information about local services such as disability, health, aged care and the Tenancy Advice and Advocacy Services, making referrals or helping local services to understand the needs of tenants. The Foundations for Success guide has helpful information you could include in your organisation’s policies and practices. The information below is provided as a starting point. You will need to adapt this information to align with your organisation’s practices.

As a community organisation, Name of ACHP understands the importance of have good working relationship with government and community organisations to address the extra support needs of our community. Having these relationships ensure that Name of ACHP has adequate and accessible arrangements to ensure those tenants who require additional support needs receive the assistance to maintain their tenancies.

To support tenants Name of ACHP has established a number of local and regional partnerships and meets on a regular basis with the following organisations:

(List all relevant organisations eg government, local community groups, Legal services, TAAS, etc)

A Contact List of these organisations is available for tenants and provided at the time of their tenancy or a tenant may contact the Name of ACHP and be given a general referral for assistance if required.

All partnerships are based on an informal arrangement. The Name of ACHP actively participates in regular meetings and workshops with these support services to improve the coordination of services delivered to the community.

If a tenant requires a referral to one or more of these services, the CEO/Property Manager will make the initial contact on behalf of the tenant. Referrals to these organisations will not be undertaken without the consent of the tenant.

Name of ACHP is about sustaining its tenancies. This can only be achieved through early intervention before a situation becomes out of hand. Name of ACHP encourages its tenants to contact the CEO/Property Manager as soon as possible if they believe that they need help with sustaining their tenancy.

The CEO/ Property Manager monitors support arrangements to confirm they are adequate and reports back to the Board on a 6 monthly basis.


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Tenants are able to comment on support arrangements through the Tenant Evaluation Survey. This survey is undertaken annually and reviewed by the Board. The results are provided within the annual report.

The Board will on an annual basis, review feedback from tenant surveys and review all working partnerships with its support service organisations to ensure they are providing a benefit to Name of ACHP in sustaining its tenancies. This will be documented within the strategic plan/Community Land and Business Plan (remove which is not applicable)


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Sample Letter for Start of Tenancy Housing Guidelines Letter

Dear (Tenant Name)

Welcome to your Name of ACHP house. We particularly request that you take notice of the following points during your tenancy.

Residential Tenancy Agreement Clauses.

Rent Payments – Rent MUST be paid promptly and in advance.

Rent NOT paid affects all of us, and it affects the future of the (Name of ACHP housing program, because funding bodies take into account rental collection when reviewing future allocations and budget submissions.

It is the intention of Name of ACHP housing program to be very strict with respect to rent payments if you have a problem with paying rent, THEN let us know as soon as possible, in writing or verbally.

Failure to do the above could mean that you will:

• Automatically be given an eviction notice if your rent is in excess of four weeks behind.

Use of Premises – you must use the property only as a residence.

Care of Property – you should look after the property as if it were your own. In particular:

• Keep the kitchen and bathroom clean

• Look after the grounds

• Make sure small repairs are done so they do not become big problems

Disturbance - your music and general behaviour must not be such as to cause a disturbance or a nuisance to neighbours.

Condition Report – At the beginning of your tenancy, we will give you a report showing you the condition of your property. Please check this and sign and return it and let us have a copy back within 7 days.

Regular inspections will be carried out throughout your tenancy and the property should be kept in the same condition from the beginning of your tenancy.

Repairs – please notify the Name of ACHP promptly about any repairs that are needed. If you cause any damage, please notify the manager as soon as possible as we may be able to help you with the repair.

Water Usage – The tenant is issued with an invoice every quarter for Water Usage charges. Tenants are responsible for the usage to be paid in full before the next quarter water usage is due. This is a requirement of the Tenancy Agreement. The full costs of water rates are paid by the Name of ACHP


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Termination – If you plan to leave your property, please give us as much notice as possible.

If you stop paying rent you must realise that we will take quick action to ask you to leave. If you break your Residential Tenancy Agreement because of disturbance or damage etc., you may be asked to leave and it may even be decided that you would not be considered for any other Name of ACHP house.

Subletting – If you wish to bring more people into the property than originally agreed, you MUST first obtain PERMISSION from the manager or Board.

Any unauthorised sub-letting will result in IMMEDIATE ACTION to terminate your tenancy.

Please remember if you have any problems, let us know as soon as possible so that we can consider them and help where it is possible for us to assist.

If you have problems with meeting the rent, you should let the manager/Board know before the rent becomes due.


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What systems or procedures does my organisation need?

Using the residential tenancy agreement

The Standard Residential Tenancy Agreement, prescribed by the Residential Tenancies Act contains standard terms that cannot be varied or missed out. These terms apply even if there is no written agreement. We recommend that you use the Standard Residential Tenancy Agreement.

The Residential Tenancies Act allows landlords to add additional terms that are consistent with the Act. They must always be negotiated with, and agreed to by, the tenant. It is advisable to get the wording checked by a tenancy rights expert to make sure the additional term will be enforceable.

If using the Real Estate Institute version of the residential tenancy agreement, be aware that all the printed additional terms reduce tenants’ rights (e.g. a restriction on having pets). Always cross through these terms when they are not required.

In general, it is recommended to avoid additional terms and find other ways to communicate policy decisions or to clarify standard terms, except in the following situations:

• for particular issues related to shared housing; and

• to introduce additional terms that extend tenants’ rights.

Shared housing

It can be helpful to include additional terms for shared housing that cover the use of common areas and landlord access. House rules can also be agreed. Be careful not to go too far in directing tenants behaviour in their own home. Having strict additional terms will blur the important distinction between your organisation’s policies and tenancy law. The standard terms provide adequate protection for tenants and landlords in most situations.

Increasing tenants’ rights

An additional term to give tenants greater privacy, greater security of tenure or better tenancy conditions would increase their legal rights. For example, a Release Clause for fixed tenancies could be included, giving the tenant the option of terminating the agreement early without being penalised, or a clause that you agree to always give the tenant detailed reasons in writing for taking action to terminate a tenancy.

If you include enhanced rights as additional terms in the tenancy agreement, tenants are able to seek enforcement of your organisation’s policy intentions through the NCAT.

Supported housing

There may sometimes be a tension between tenancy law and support practices e.g. an expectation that the tenant agrees to weekly access by the landlord or a support worker.

It is important to make a clear distinction between a support agreement, or other project rules, and the residential tenancy agreement. The tenant, support worker and housing manager must all understand that tenancy rights cannot be taken away.

Accepting support cannot be made a condition of tenancy, and only the landlord, not the support agency (where these are two separate organisations) can take action to terminate a tenancy.


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Support relationships should be clarified and formalised with an agreement between the housing provider and the support agency (if they are two organisations). There also should also be a formal consent form from the tenant and the support agency for your organisation’s records. This form isseparate to the residential tenancy agreement between your organisation and the tenant. Fixed term tenancies that are not renewed when support stops, are more appropriate than making support a condition of either a fixed term or continuing tenancy.

Signing the tenancy agreement

Your organisation needs a good process for making sure the person signing a tenancy agreement understands the responsibilities they are taking on.

• Under the AHO Guidelines your organisation must have procedures for making sure young people under 18 years, and people with a disability that could affect their ability to understand the tenancy agreement (for example, intellectual disability or mental illness) understand the responsibilities they are taking on.

• Under NSW law, a tenancy agreement signed by a young person under 16 years is not legally binding.

• If a person gets services from the NSW Trustee and Guardian, the NSW Trustee and Guardian may be responsible for signing tenancy agreements

Your procedures could involve being ready to spend longer talking to the person about the agreement or ensuring there is an appropriate support person present when the tenancy agreement is signed. Below are some examples of other approaches your organisation could consider adopting:

• Asking young people between 16 and 18 years to bring a trusted adult or support person to the appointment

• Always checking it the person would like assistance from a support person at the appointment to sign the tenancy agreement

• When you know there is a support person, getting the person’s agreement to contact the support person about arranging the appointment to sign the tenancy agreement

• Checking for NSW Trustee and Guardian involvement

• Stopping the appointment to sign a tenancy agreement if you discover the person signing the agreement does not understand the information you are giving them.

Rent at the start of the tenancy

The important issues about rent at the start of a tenancy are:

• Getting the correct rent on the agreement;

• Being clear with the tenant about how much they must pay towards the rent each rent period – new tenants may like to see a copy of the rent calculation

• Explaining when and how the tenant must make their first payment

How your organisation handles its vacancy management and allocation processes can influence the tenant’s ability to make their first rent payment. When your processes work efficiently the tenant will have more time to arrange the logistics of moving and find the first rent payment.


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Property condition report

The property condition report is the formal record of the condition of the property at the beginning of the tenancy. There must a property condition report for each tenancy agreement, signed by the parties to the agreement.

Not doing the right thing with a condition report will cause problems later on. It is better to take the time to assist tenants with explanations and if necessary do the inspection with them, but not for them.

Sometimes tenants are asked to sign the copy of the report held on file, before they take their copies away to check. This is done as insurance against them not returning a completed copy. This is an unfair practice and it’s a serious breach of the tenant’s rights to use that first copy as evidence of their agreement to the condition of the property at the start of the tenancy. Instead, provide a stamped, addressed envelope and collect any unreturned reports on the next visit.

Time pressures may mean the report is not ready before sign up, or the tenant is asked to sign the landlord’s copy, both situations are a breach an ACHP’s obligations as a landlord. The report must be completed and given to the tenant before or at the time the tenancy agreement is signed.

Keys

Missing or incomplete sets of keys can be a nightmare. Basic rules in dealing with keys at the start of a tenancy should include:

• changing lock barrels to external locks if the keys have not been returned, or there is concern about who may have a copy;

• checking that the set available opens all the locks in the house and that you know which key is for which lock;

• getting a second set cut, and labelling both sets with a code, not the address;

• having the office set signed for when they leave the office; and

• providing the tenant at sign up with a full set of keys and an annotated photocopy, showing which lock each key opens.

Bond

A landlord does not have to charge a bond to their tenant. If a bond is charged it cannot be more than the equivalent of four weeks rent, and it must be lodged with NSW Fair Trading. A landlord is not allowed to charge any other type of deposit (e.g. a key deposit). There are different reasons why your organisation may decide to charge or not charge a bond.

Reasons to charge a bond • To minimise an ACHP’s financial risk

• To improve tenant rent payments and care of properties

• To take every possible step to recoup tenant debts and prevent problems

• For short term tenants and people who are likely to


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move on, like young people, it can be very useful having the bond to pay advance rent or moving costs

• Paying a bond helps young people be responsible and prepares them for paying bonds in private rental.

Reasons not to charge a bond • The administrative costs of administering bonds could

outweigh their value as an offset to bad debts

• It reduces the affordability and accessibility of ACHP housing

• Most bonds paid by tenants are returned to them anyway

• Paying bond on the build and grow rent is too insignificant an amount, and charging bond on the market or property rent seems unfair

• It is not fair to hold a bond when a tenant is in their permanent home.

• It is better to put time into maintaining successful tenancies by other strategies such as information, support, prevention and early intervention

Bond policies vary across ACHPs and other social housing providers. The amount can be set as a fixed sum (say $100), or calculated as a multiple of household rent or the market rent, from 1 to 4 weeks.

Collection may be by instalment (over a fixed number of payments, a period of time, or indefinitely) or as a lump sum (required up front, or when the tenant is able to pay) or it may depend on the tenant’s circumstances.

The requirement to pay a bond can be waived for some tenants or applied consistently to everyone.

Money collected from tenants as bond payments must to lodged with NSW Fair Trading in line with periods specified in the Residential Tenancies Act, 2010. These periods are summarized in the table below:

Situation Time period for lodgment

The tenant pays the whole bond at the beginning of the tenancy agreement

With 10 working days after bond payment is paid

The tenant pays the bond in instalments. All installments are paid within 3 months of the first instalment being paid

With 10 working days after the total bond is paid

The tenant pays the bond in instalments. It takes the tenant more than 3 months to pay

Payments received during the first 3 months must be lodged at the end of the 3 months (or 10 days after the last instalment if this is


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the full bond by instalment later). Later payments must be lodged every 3 months until the bond is fully paid

Rental Bonds Online

ACHPs can choose to register to use NSW Fair Trading’s Rental Bond Online service by filling out the ‘Agent’ application form.

Registering for Rental Bonds Online means your tenants have the option of paying their bond online directly to NSW Fair Trading, instead of paying it to your organisation. Rental Bonds Online can be used for all bonds including those paid in instalments.

It is always the tenant’s choice whether they use Rental Bonds Online or pay the bond directly to your organisation.

Tenancy file

Files and data base records should be created before, or immediately after, the sign-up.

These records include a database record, a rent record, a tenant file and a property file.

The tenant file includes documents relating to the establishment of the tenancy such as:

• The signed residential tenancy agreement

• Signed photocopy of keys handed to the tenant

• Signed copy of the Condition Report. The tenant is required to return one (1) of their copies to the ACHP within 7 days.

Records of any contact with the tenant during the tenancy are kept on the tenant file

Implementation systems

The systems particularly relevant to the implementation of the Residential Tenancies Act by an ACHP are:

• A housing management database to hold the records of your tenants and your properties. This can be used to generate lists and summary information about tenancies

• A tenant rent-management system – ie rent collection method, rent payment records, rent arrears management

• The way tenant and property files are organised and stored, and how they are kept up to date

• Internal office communication such as dealing with phone calls and mail, operational decision making, work planning, record keeping about actions and events, communication about relevant issues

• Policies and procedures including for starting and ending tenancies, dealing with tenancy breaches, internal reporting, and accountability to management/ the Board in


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these areas.

• Ensuring the principles for good practice at the start of the tenancy are reflected in other organisational policies. Important areas to check are:

o confidentiality;

o fact sheets and other information for tenants and applicants

o delegations

o staff development and training.


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2.2 Setting and collecting rents Does my organisation meet the AHO’s minimum requirements?

My organisation adheres to the AHO Build & Grow Rent Policy or the NSW Community Housing Rent Policy

My organisation has a policy on setting, assessing and reviewing rent levels, including a formula on how rent levels are determined, taking into account rent affordability for tenants and financial viability for the ACHP

My organisation ensures there are systems for monitoring compliance with the organisation’s policies and relevant legislation

My organisation ensures policies are widely disseminated and easily accessible and available on the organisation’s website (if applicable)

My organisation clearly explains to tenants (verbally and in writing):

o what the rent is

o why it is needed

o how rent is set and reviewed

o who pays for water, sewerage and utilities

o how rent and non-rent charges can be paid

o what will happen if rent is not paid on time

My organisation encourages and assists tenants with applying for Commonwealth Rent Assistance (CRA)

My organisation encourages and assist tenants in applying for direct rent deduction schemes e.g. direct debit though bank accounts or Centrepay

My organisation has policies about income reviews and rent increases and ensure that they are clearly explained to tenants

My organisation has policies for dealing with rent and non-rent arrears and ensure that they are applied consistently, reliably and fairly

My organisation has procedures in place for monitoring tenant rental payments, to enable early intervention through ongoing contact with the tenants and working to negotiate repayments where possible

When charging for water use, my organisation ensures water charges are made in line with the Water Usage Charging: Ministerial Guidelines for Aboriginal Community Housing Providers

https://www.humanservices.gov.au/individuals/services/centrelink/centrepay/using-service

https://www.aho.nsw.gov.au/download?file=547140



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Rent setting, assessing and reviewing

Note: Under the AHO Housing Services Policy Framework your organisation must apply the AHO Build and Grow Rent Policy or the NSW Community Housing Rent Policy. If your organisation manages Affordable Housing it must apply the rent settings in the NSW Ministerial Guidelines for Affordable Housing

Name of ACHP calculates rent based on the property or market rent of the property, the tenant’s household and the housing program. The highest rent that any tenant can pay is the property or market rent.

Many people living in Name of ACHP properties are eligible for Commonwealth Rent Assistance (CRA) to help make their rent affordable. Name of ACHP encourages all tenants to find out from Centrelink if their household is eligible for CRAand to apply for CRA if they are eligible. Please talk to us if you need help with CRA.

1. Build and Grow Rent Policy

Name of ACHP asks tenants to pay a household rent determined by family type. The weekly household rents are aligned with CRA payments to keep them affordable.

Household rent – calculations by family type

Family Type Weekly Household Rent*

Single $149.97

Single 1 – 2 children $184.45

Single 3+ children $198.08

Couple $181.97

Couple 1 – 2 children $222.32

Couple 3+ children $235.95

Single (Newstart) $120.01

Single (Share) $150.25

*Valid from 21 March 2018 to 20 September 2018

The table below shows the weekly household rent and estimates the amount of CRA and then shows the amount a tenant would be paying out of their own pocket.

Family Type Weekly Household Rent*

Estimated weekly CRA*

Estimated out of pocket amount*

Single $149.97 $67.40 $82.57

Single 1 – 2 children $184.45 $79.17 $105.28

Single 3+ children $198.08 $89.39 $108.69

Couple $181.97 $63.50 $118.47

Couple 1 – 2 children $222.32 $79.17 $143.15


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Couple 3+ children $235.95 $89.39 $146.56

Single (Newstart) $120.01 $44.94 $75.08

Single (Share) $150.25 $67.69 $82.56

*Valid from21 March 2018 to 20 September 2018

[insert if relevant to your organisation - As Name of ACHP continues to implement the AHO Build and Grow Rent Policy, existing tenants will be transitioned to income based rent (community housing rent) after two years of paying rent under the Build and Grow Rent Policy.

Name of ACHP reviews and updates household rents every six months to keep rents in line with AHO policy and Centrelink payments. Name of ACHP uses the AHO rent calculator to calculate the household rent. The calculator will also estimates the CRA for eligible tenants [insert if relevant to your organisation - and, if tenants are on a capped rent, it calculates the out of pocket increase]. Name of ACHP gives each tenant information in writing about changes to their rent and the date when the changes will take effect.

If the household rent is higher than the property or market rent for the property Name of ACHP will charge the property rent instead. Name of ACHP reviews and sets property rents for its properties [insert information about how often your organisation reviews property or market rents]. When updating property or market rents, Name of ACHP [insert information about how your organisation decides on property or market rents. Examples could include: using the FACS Rent and Sales Report or using information provided by the AHO].

Name of ACHP gives each tenant information in writing about changes to their rent and the date when the changes will take effect.

2. Community Housing Rent Policy

Note: ACHPS can choose to apply the Community Housing Rent Policy instead of the Build and Grow Policy. The Community Housing Rent Policy is an income based rent policy. It allows your organisation to charge a higher rent for households with higher incomes. But it also involves more work to set and review rents. As with the Build and Grow Policy, the property or market rent sets the maximum rent that can be charged for the property.

Name of ACHP sets the rent based on the property or market rent for the property then calculates a rent subsidy to keep the rent affordable. The subsidy is calculated on the tenant’s household income. The minimum rent for the property is 25% of a household’s assessable income plus 100% of the household’s CRA. The maximum rent is the property or market rent for the property.

Name of ACHP is guided by the FACS Community Housing Rent Policy when deciding what income is assessable and the percentage of that income that should be contributed to rent.

Name of ACHP reviews and updates rent subsidies every six months to keep rents in line with changes in Centrelink payments and other household income.

Name of ACHP reviews and sets market rents for its properties each year. When updating property or market rents, Name of ACHP [insert information about how your organisation decides on property or market rents. Examples could include: using Rental Bond Board data, FACS Rent and Sales Report, using information provided by the AHO].

https://www.facs.nsw.gov.au/resources/statistics/rent-and-sales/dashboard


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Name of ACHP gives each tenant information in writing about changes to their rent and the date when the changes will take effect.Rent collecting

The viability of services provided by Name of ACHP depends on rent collected from tenants. The rent collected funds the repair of our rental properties and pays costs such as rates, insurances and services.

Name of ACHP offers a number of rent payment options [select or add the ones that are relevant for your organisation]

:Deduction from Centrelink payments (Centrepay). This is the easiest option for tenants. Once the deduction is set up, there’s nothing more to do.

• Automatic payment from the tenant’s bank account. This is an easy option for tenants, although it’s important to remember to keep enough money in the bank account.

• Direct debit to the nominated bank account. This is an easy option for tenants, although it’s important to remember to keep enough money in the bank account.

• Cash at the office.

Tenants who pay rent via direct debit or automatic payment are provided with a rent statement every (month, bi monthly, quarter). The rent statement includes rent received by Name of ACHP, rent period, and rental and water arrears if applicable.

Name of ACHP issues a rent receipt to all tenants who make cash payments.

Name of ACHP reviews rent payments and arrears regularly, including [monthly, bi monthly, quarterly] reports to the Board.

Unpaid Rent or other charges

Name of ACHP recognises tenants can be faced with financial difficulties during their tenancy. When this occurs, Name of ACHP aims to intervene before the situation gets out of hand. This can include contacting tenants about unpaid rent or water charges quickly so the amount owing stays low, agreeing to staged repayment arrangements for unpaid rent or water charges, helping tenants to apply for CRA or enroll in Centrepay, and making referrals to local services.

Tenants are encouraged to contact the CEO/Property Manager quickly if financial difficulties that will affect the payment of rent or other charges arise. This makes it easier for the CEO/Property Manager to help before the amount of money owing gets too high.

Payment of rent is a requirement under the Residential Tenancies Act, 2010 and the tenancy agreement. If problems with payments are not addressed Name of ACHP applies to the NSW Civil and Administration Tribunal to get orders for the tenant to pay the rent, or to end the tenancy.

Christmas Holiday Rent

Note: As many tenants are financially stretched during the Christmas holiday period, it can be useful to have a system for paying extra rent in advance. ACHPs have flexibility to decide if they have a Christmas Holiday Rent system and the details of how the system works.


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A tenant can opt to pay an extra ($) amount per week/fortnight to cover the rent over the eight (8) week period. A tenant will have their rent payments put on hold from the (date) to (date). Rent payments can then either continue after this date as per normal, or the tenant may wish to continue this rent arrangement.

Under the Residential Tenancy Act 2010 a tenant must pay and maintain rental payments 2 weeks in advance. A tenant will be considered in arrears if rent is unpaid more than 14 days after the due date, Name of ACHP must attempt to contact tenant in person or by writing to resolve any rental arrears issues. It is imperative that Name of ACHP monitors and keeps accurate records of all their tenants rent received.


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Sample letters and forms

Letter – Notice to Tenant of Overdue Rent

Dear (Tenant(s) name)

This letter is to confirm that as of the date of this letter, you are in $ (amount) rent arrears for the period (period of rent arrears).

Non or incomplete/partial payment of rent is a breach of your Residential Tenancy Agreement.

It is also a breach of Name of ACHP Housing and Tenancy Policy.

In accordance with our rent arrears policy you are now required to pay the full amount immediately or contact our CEO/Property Manager on ( insert contact details) to discuss and enter into a payment plan.

Failure to address your rent arrears by not:

• paying in full immediately

or

• making a satisfactory arrangement (within the current rental period) to pay in instalments

or

• making an instalment arrangement, then breaking it, will result in) commencing steps or application to the NSW Civil and Administrative Tribunal (NCAT) to resolve the matter by:

• applying for a Specific Performance Order or

• applying for an order of Termination to terminate your tenancy .

Please can you contact me on (phone number) if you require further information. We look forward to resolving this matter as soon as possible.

Sincerely

(Your name)

Property Manager Officer

Name of ACHP


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Letter - Notice to Tenant of Overdue Water Charges

Dear (Tenant(s) name)

This letter is to confirm that as of the date of this letter, you owe $ (amount) in water arrears for the period (period of ).

Non or incomplete/partial payment of water is a breach of your Tenancy Agreement.

It is also a breach of Name of ACHP Housing and Tenancy Management policies.

In accordance with our water arrears policies you are now required to pay the full amount immediately or contact the CEO/Property Manager Officer on ( insert contact details) to discuss a payment plan.

Failure to address your water arrears within the current period could result in being issued, Notice by the landlord to tenant to remedy a breach of a tenancy agreement/ termination notice.

Should there be difficult circumstances for your arrears you can contact CEO/Property Manager and request a written agreement be entered into for re-payment of the arrears over longer period.

Failure to address your water arrears by:

• paying in full immediately

or

• making a satisfactory arrangement (within the current rental period) to pay in instalments

or

• making an instalment arrangement, then breaking it, will result in commencing steps or application to the NSW Civil and Administrative Tribunal (NCAT) to resolve the matter by:

• applying for a Specific Performance Order or

• applying for an order of Termination to terminate your tenancy

Please can you contact the CEO/Property Manager if you require further information. We look forward to resolving this matter as soon as possible.

Sincerely

(Your name)

Property Manager Officer


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Rent

Under the AHO Housing Services Policy Framework (page 7), ACHPs must have ‘a published policy on setting, assessing and reviewing rent levels, including a formula on how to determine rent levels’. This means your organisation is responsible for communicating to tenants and applicants how rents are calculated for the different housing programs offered by your organisation.

The highest rent your organisation can charge is market rent (also known as property rent). This is the rent that your property would attract if it was rented through the private rental sector. Market rent can often be difficult to estimate. There may not be properties similar to those of your organisation on the private rental market in the areas where your properties are located. Or your properties may be located in an area where there are no private rental properties to compare to at all.

To solve this problem, the AHO suggests ACHPs use the FACS Rent and Sales Report which is published quarterly on the FACS website at https://public.tableau.com/profile/facs.statistics#!/vizhome/RentandSales/Rent

If there is no ‘market rent’ in a location to compare to, the AHO can provide a market or property rent amount. This is for areas in remote and very remote NSW, isolated discrete community and some outer regional Local Government Areas.

Rent setting – Affordable housing properties

Under the AHO Housing Services Policy Framework, rents for Affordable Housing must comply with the NSW Ministerial Guidelines for Affordable Housing. These guidelines are flexible about the rent setting approach so long as three requirements are met:

• Households on very low or low incomes pay no more than 25%-30% of their gross income in rent

• Rent levels are set to both maximise income from CRA and take advantage of GST rulings by the Australian Taxation Office (ATO)

• Enough rent is collected to cover property and management costs, including the repayment of any debts

This means ACHPs can decide to charge Household or Community Housing Rent Policy.

Where a tenant or household member:

• is not eligible for Centrelink benefits, for example, because they are in custody, or

• enters a nursing home, rehabilitation centre, respite care, refuge (or other safe place) and is required to pay for that accommodation,

An ACHP must charge the minimum amount of rent, $5 per week.

Tenants must substantiate all claims for the minimum $5 rent. This rent applies for no longer than six (6) months.

If your organisation owns or manages Affordable Housing, it needs to have a good system for deciding how to set the rents. It also needs to make sure information about setting and

https://public.tableau.com/profile/facs.statistics#!/vizhome/RentandSales/Rent


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reviewing Affordable Housing rents is included in policies, fact sheets and verbal information given to tenants.

Managing unpaid rent or charges

Having good systems for identifying if a tenant has stopped or reduced their payments is very important. It is much easier for a tenant to catch up if the amount they owe is small.

Here are some examples of procedures and systems an ACHP can use to manage unpaid rents and charges:

• Regular checks: Detect unpaid rent or charges at the earliest possible time through good record keeping and regular monitoring of rent accounts.

• Early intervention: Check about the unpaid rent or charges with the tenant as soon as possible. If there is a mistake in the rent records is best to find out about it quickly. If the rent records are correct, it’s best to raise the unpaid rent or charges with the tenant as early as possible. Examples could include, talking to the tenant, sending an SMS message, visiting the tenant to see if everything is OK.

• Appropriate responses: Be constructive. Explain the seriousness of the arrears, use the NSW Civil Administration Tribunal, (NCAT) supportively to assist tenants recognise the seriousness of their arrears, make repayment agreements through the NCAT so there is a record.

• Use positive strategies: Such as incentives, persuasion, reminders, support, agreements, direct debit. Strategies that financially disadvantage, harass or deny natural justice to tenants are not effective in the long run.

• Clear policy guidelines applied consistently: Have clear policy guidelines for dealing with unpaid rent and charges for example, making clear the aim is to sustain the tenancy but also being clear about when your organisation will take action through the NCAT.

• Apply policy guidelines consistently: For example, if your organisation has a procedure to check all rent payments fortnightly, make sure you check all tenancies. If your organisation has a procedure to talk to every tenant with unpaid rent straight away, make sure you talk to every tenant straight away.

• Understand your role: ACHPs and tenants both have rights and responsibilities under the tenancy agreement. Support workers provide services that help a tenant live independently and sustain their tenancy. Tenants have a right to receive the best possible service from their housing provider and their support worker(s) without conflict of interest.

Water usage and other charges

ACHPs have the flexibility to decide whether to recover water usage costs from their tenants.

If an ACHP charges tenants for water usage, it must comply with the Water Usage Charges Ministerial Guidelines for Aboriginal Community Housing Providers.


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Under the Residential Tenancies Act 2010, an ACHP must provide a copy of the Water Usage Charges Ministerial Guidelines for Aboriginal Community Housing Providers free of charge to any tenants upon request.

Under the AHO Housing Services Guidelines, the ACHP must always explain to tenants who pays for water, utilities and sewerage.


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2.3 Tenancy transfer Does my organisation meet the AHO’s minimum requirements?

My organisation has a policy for tenancy transfer that clearly explains:

o eligibility for transfer

o grounds for transfer

o evidence requirements criteria for assessing the urgency of a transfer

My organisation has a policy for tenancy reinstatement that clearly explains eligibility for reinstatement

My organisation has evidence requirements [for tenancy reinstatement]

My organisation has criteria for assessing applications for reinstatement

My organisation encourages tenants who want to transfer out of area to contact a local Housing Pathways Provider to check their eligibility to be placed on the Housing Pathways Waitlist


My organisation ensures that policies are widely disseminated and easily accessible, and available on the organisation’s website

My organisation ensures there is a policy for relocating tenants for management purposes that clearly explains:

o how the relocation will happen

o if there is any financial assistance with the relocation

o number of offers under management purposes

o rejection of offers for relocation

My organisation has a policy for mutual exchange that clearly explains:

o eligibility criteria

o evidence requirements


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What is the purpose of policies for tenancy transfer?

Purpose

These policies explain how your organisation manages when a property no longer meets a tenant’s housing needs. The purpose is to:

• explain the situations when your tenants can ask to move to a different property

• explain the situations when your organisation can ask a tenant to move to a different property

• maintain a positive and sustainable relationship with tenants

• inform each tenant of their rights, responsibilities and options

• enable effective and efficient administration of the tenancy.

Principles

Some good practice principles to consider when developing your organisation’s policies and practices for tenancy transfer:

Principle Practices

Legal All the legal requirements under the Residential Tenancies Act are met

Effective Tenancy transfer policies help your organisation to respond to changes in tenants’ housing needs

Efficient Policies are put into practice using straightforward and systematic procedures

Consistent Tenants are treated consistently regardless of who they are and the information provided to them is consistent

Responsive Policies allow individual needs to be responded to

Confidential The privacy and confidentiality of tenants is respected at all times and privacy legislation complied with

Equitable and non-discriminatory Tenants can expect equitable and non-discriminatory treatment


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Transfers & Tenancy reinstatement

Name of ACHP tenants can request a transfer to another property if their housing needs change.

When a tenant applies for transfer they must [select the options relevant for your organisation or add as required]:

• met the eligibility criteria for Name of ACHP housing assistance

• be able to show their circumstances have changed and their current property or location is no longer suitable for their housing needs

• Be able to meet the transfer assessment criteria for one of the following grounds:

o At immediate risk

o To meet the needs of a child to return from out-of-home care, or to help prevent children from entering out-of-home care

o Medical condition and/or disability

o Serious and ongoing harassment

o Employment

o Compassionate grounds

o Severe overcrowding

o Family breakdown/separation

o Tenancy re-instatement

o Moderate overcrowding

• Fill out the transfer application form and

• Be able to provide information to support their application if requested

All applications for transfer are approved by the Board.

Name of ACHP treats transfers on the following grounds as priority transfers [select the options relevant for your organisation or add as required]:

o At immediate risk

o To meet the needs of a child to return from out-of-home care, or to help prevent children from entering out-of-home care

o Medical condition and/or disability

o Serious and ongoing harassment

o Employment

o Compassionate grounds

o Severe overcrowding


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o Family breakdown/separation

o Tenancy re-instatement

Name of ACHP also helps tenants who need to move to a different property or location to find other ways of meeting heir housing needs. For example, by helping tenants to contact Housing Pathways providers to check their eligibility for housing through Housing Pathways.

Grounds for transfer or reinstatement

[select the options relevant for your organisation or add as required]

At immediate risk

The personal safety and/or mental health of a tenant or a household member is at risk. These situations include but are not limited to:

• Domestic violence.

• Child abuse or neglect.

• Assault.

• Sexual assault.

• Neglect.

• Threatening behaviour.

• Torture or trauma.

Tenants need to show that:

• The risk is serious and ongoing.

• The risk means they cannot remain in the current dwelling and/or location beyond a medium length of time.

• The property and/or location significantly increases the risk and reduces their safety.

• Apart from transferring, there are no practical steps that can be taken by the tenant’s household to lower or remove the risk.

• Moving will help or resolve the situation and remove or significantly decrease the risk.

Medical condition and/or disability

In relation to the medical condition and/or disability of a tenant or household member, tenants will need to show that:

• The medical condition and/or disability is permanent or likely to be permanent, and

• The current property and/or location no longer meets their housing need, or

• Relevant household members no longer have the capacity to access necessary medical and/or therapeutic services from their current property for such reasons as:

Restricted mobility of relevant household members.


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• Restricted capacity of those members to use transport.

• Frequency of their necessary visits to medical and/or therapeutic services, and

• The necessary medical and therapeutic services will be available from potential alternative locations, and

• They do not have the capacity to remain in the property or location beyond a medium length of time, and

• Moving will assist in the management of the medical condition and/or disability.

Harassment

Harassment refers to a wide range of offensive behaviour. It refers to unacceptable behaviours that are threatening or disturbing. Harassment includes:

• Verbal abuse

• Threats

• Intimidatory behaviour

• Vilification

• Property damage

Tenants will need to show that:

• The harassment is serious and ongoing, and

• They have attempted to resolve the harassment themselves, with any necessary assistance and support, and

• Their current property and/or location significantly increases the risk of harassment, and

• The harassment means they cannot remain in their current dwelling and/or location beyond a medium length of time, and

• Moving will help to resolve the situation and remove or significantly decrease the harassment.

Employment

A tenant can apply for a priority transfer due to the tenant or their partner gaining employment, or changes to the tenant’s or partner’s current employment. A tenant must show that the:

• Tenant or their partner are currently unemployed and have been offered a job in or near the area to which they need to move, or

• The tenant or their partner are not in full time employment and are required by their employer to move in order to keep their job, and

• The employment is in a location that is impractical for them to travel to from their existing location, and


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• Employment is long term and is at least three days work per week. In some circumstances, such as where there are medical factors or care of dependents, the minimum number of working days may be reduced to two.

Compassionate grounds

There are a number of compassionate grounds social housing providers will consider. These include:

• Being closer to a family member who needs their care.

• Being closer to support networks which are not covered by the medical, disability or other factors described above, such as counselling services for refugees, child abuse services, family support services, rehabilitation services, Home and Community Care services, cultural services or educational services (specialised schools).

Tenants are asked to:

• Show why they need to move, and

• Provide information about the family member needing care, or

• Provide information about the services the tenant or the family member requires.

Severe overcrowding

Severe overcrowding may arise as the result of:

• Reunited family

• An award of custody of children

• Marriage

• The birth of a child or children

Severe overcrowding includes:

• An adult or couple sharing a bedroom with a person aged over three years.

• Four or more children sharing a bedroom.

• Three or more unrelated adults sharing a bedroom.

Severe overcrowding can also occur if children currently sharing a bedroom now need their own bedroom because of a specific need such as:

• A disability or special medical need.

• Severe behavioural problems.

• Children of different sexes sharing a room and one of them reaches puberty.

Tenants must prove that the severe overcrowding is the result of one of the above reasons and explain why the current property is unsuitable.


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Family breakdown/separation

If there is a serious breakdown in a family relationship, social housing providers may consider providing separate accommodation for the member who has left the property. A serious breakdown in a household relationship includes:

• Separation or divorce between a tenant and spouse or de facto partner.

• Irreconcilable problems between:

o A tenant and their child or children; or

o A tenant and their parent or parents.

In the case of divorce or separation the spouse or partner who has moved out will need to prove that:

• The spouse was a member of the household, or

• The de facto partner was a member of the household on a continuous basis for two or more years, and

• The spouse or partner was on the housing provider’s records as having lived in the property, and

• The spouse or partner is eligible for social housing, and

• The spouse or partner applied for a transfer within six months of moving out of the property.

In the case of a family breakdown the child or parent of the tenant will need to prove that:

• They are a permanent, satisfactory member of the household ie they are listed on the housing provider’s records as living in the property on a continuous basis for two or more years and have had a satisfactory occupation within the tenancy for that period;

• They are eligible for social housing; and

• They have declared their income to the housing provider and it is recorded in a rent subsidy (if the tenant receives a rent subsidy).

If a tenant is prohibited from having access to a social housing property under an Final Apprehended Violence Order (excluding an interim AVO), they can submit an application to the NSW Civil and Administrative Tribunal under Section 79 of the Residential Tenancies Act 2010 to have the tenancy transferred to them, provided they are eligible for Name of ACHP housing.

Tenancy reinstatement

Tenancy reinstatement can apply to former tenants who vacated their property because:

• They were under duress, or

• They had to move into a residential care facility (including a psychiatric hospital, rehabilitation centre, hostel, nursing home) either voluntarily or under a court order, or


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• They were placed into a custodial facility, or

• Of the care needs of the tenant, a member of their household or a family member.

To be eligible for tenancy reinstatement, former tenants must prove that:

• They meet the eligibility criteria for Name of ACHP housing, and

• They meet the criteria for priority transfer, and

• They vacated under duress, vacated to a residential care or correctional facility, or vacated because of care needs, and

• They made an application to their housing provider within six months of vacating the former property, or

• In the case of custodial sentences not longer than three years, they can also apply within six months of their release from custody.

Former tenants with custodial sentences longer than three years are not eligible for tenancy re-instatement.

Duress means having to vacate the property due to a critical incident and, under the circumstances, the decision to vacate was reasonable.

For example:

• Escaping domestic violence.

• Escaping harassment.

• Removing themselves or a household member from being at risk.

Admittance to a supported care facility might include a refuge, rehabilitation centre, hospital, or respite centre.

Tenants may need to vacate their property due to:

• Serious medical/disability incident related to the tenant or a household member.

• Serious medical/disability incident related to a family member and/or relative.

When assessing the decision to vacate the property, Name of ACHP will consider the following as applicable to particular situations:

• Was it reasonable for the tenant to vacate without notice, and

• The urgency of the need to vacate without notice, and

• Did the circumstances of the incident force the tenant to vacate without notice, and

• Did the tenant consider options other than vacating, and

• Whether the tenant previously contacted their housing provider about their situation, and


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• Did the housing provider ask the tenant to relinquish their tenancy because they were going into residential care or into a correctional facility, and

• Could the decision to vacate have been delayed, and

• Was it a reasonable decision under the circumstances.

Moderate overcrowding

Moderate overcrowding is when there is an increase in the size of the household which results in the household having fewer bedrooms than they would otherwise be entitled to, but the overcrowding is not severe.

Examples of moderate overcrowding are:

• Three children sharing a bedroom.

• An adult or couple sharing a bedroom with a child under three years of age.

• Two unrelated adults sharing a bedroom.

Out-of-home care

Where a client, or a member of their household needs safe and secure accommodation to have a child returned from out-of-home care or to help prevent children from entering out-of-home care, They must demonstrate that a priority housing status is required to meet the needs of a child.

Exchanging of housing between tenants

Mutual exchange is a voluntary process and can only occur between tenants of Name of ACHP

Tenant’s wishing to swap must complete a Mutual Exchange Form with the party they wish to exchange with.

All costs of relocating are the responsibility of the tenants.

The Board will process the application and place it on a register, BUT the Board must approve the swap.

Acknowledgement of being placed on the register will be sent in writing to the applicants within 14 days of receiving the application.

The criteria to be entered in the register are;

• Both tenants must agree to pay the set rent for the property they transfer to

• Both tenants meet the funding guidelines of the property they want to move in to

• The properties are both in reasonable condition

• Tenants will not be over or under occupying the house they have applied to move into and the house matches the tenants needs

Entry on the register does not give the tenant authority to move into the property. The transfer will not actually occur until;


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• Both tenants rents are up to date (the tenants will be given an opportunity to bring their rents up to date prior to the swap)

• Utility accounts, e.g. water (which are the responsibility of the outgoing tenants) have been finalised and/or transferred

• Any tenant damage identified has been repaired. It is the responsibility of the outgoing tenant to arrange and pay for the work

• Any other repairs (e.g. due to fair wear and tear) have been organised by the property officer (See Repairs and Maintenance Policy)

• The Board has signed off on all approved repairs to both properties

• Condition Reports have been completed for ending the old tenancy and beginning a new tenancy

• New Residential Tenancy Agreements have been completed for both properties

Succession of tenancy

Any requests for succession of tenancy must be put in writing to the Board.

A Succession of Tenancy Request Form (see Sample letters and forms) will be provided to the resident to complete and return to the property officer.

The following criteria apply:

The tenant passes away and...

Situation Succession to...

Residing Aboriginal spouse Succession to spouse

Residing non-Aboriginal spouse, no children residing

Decision for Board – based on community acceptance of non- Aboriginal spouse

Residing non-Aboriginal spouse, Aboriginal children residing

Succession to be negotiated between Board, and family

Aboriginal children only residing Succession to be negotiated between Board, and guardian of children

The tenant leaves due to family breakdown and...

Residing Aboriginal spouse Succession to spouse

Residing non-Aboriginal spouse, no children residing

Board to apply to tribunal for vacant possession (90 days’ notice to vacate)

Residing non-Aboriginal spouse, Aboriginal kids residing

Succession to be negotiated between Board, and family

All other circumstances not dealt with in this policy will be negotiated and determined by the Board.


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In the event of death of a tenant, the rental account will be finalised and any credits will be forwarded to the nominated immediate family member. Any outstanding debts owing will be paid out of the Bond.

Management transfer

Note: Section 149 of the Residential Tenancies Act, 2010 allows social housing providers including ACHPs to terminate a tenancy on the ground that a tenant has been offered an alternative social housing property. This section includes detailed requirements for internal reviews that must be completed before a termination notice can be issued, and minimum time to be given in the Termination Notice.

Name of ACHP can ask a tenant to move to another property managed by Name of ACHP. This is called a management transfer. Name of ACHP uses management transfers to make the best use of its properties to help people in housing need.

Name of ACHP can ask a tenant to transfer in the following situations [select the options relevant for your organisation or add as required] circumstances:

• Under occupancy

• Severe overcrowding

• The property configuration is not suitable for the tenant

• Neighbourhood disputes

• Portfolio management such as sale of a property or need to do extensive repairs

Name of ACHP can ask a tenant approved for transfer or mutual exchange to do a management transfer.

Name of ACHP will offer the tenant an alternative property that meets their housing and location needs and it will also help with the financial costs of moving [include if relevant for your organisation]. Name of ACHP will encourage the tenant to move voluntarily, however It will take action through the NCAT to end the tenancy if necessary.


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Sample letters and forms

Succession of Tenancy Request Form

Name of ACHP SUCCESSION OF TENANCY REQUEST FORM

THIS FORM IS CONFIDENTIAL. THE INFORMATION YOU SUPPLY WILL ONLY BE USED FOR THE PURPOSE OF BEING HOUSED WITH Name of ACHP IN ACCORDANCE WITH THE PRIVACY LEGISLATION REQUIREMENTS.

APPLICANT

Name of Tenant

Name:

Number and Name of Street: ___________________________________________

Suburb: _______________________________________Post Code: ___________

Home No: Mobile No: Work No:

Emergency Contact Person’s Information

Name: Phone No:

Please list the people in order who you are nominating for succession

Name:


Suburb: _______________________________________Post Code: ___________

DOB Relationship to you

Income (per fortnight)

$


Name:


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Suburb: _______________________________________Post Code: ___________



$


Name:


Suburb: _______________________________________Post Code: ___________



$


Name:


Suburb: _______________________________________Post Code: ___________



$


All other circumstances not dealt with in this policy will be negotiated and determined by the Board.

Once you have completed this form, please mail or fax to:

Address Details

Fax:


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OFFICE USE ONLY

Date Received: ______/_____/_____

Staff Name: ___________________________

Signature: ____________________________

Preliminary Decision: ENDORSED/DECLINED Date:_____/_____/_____

Approved at Board meeting Date: _____/_____/_____

Motion:____________________________________________________________________________________________________________________________________________________________

Moved: By:__________________________________Seconded:__________________________


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2.4 Ending a tenancy Does my organisation meet the AHO’s minimum requirements?

My organisation has a policy for ending tenancies, including the use of S85 of the NSW Residential Tenancies Act 2010 (90 day no grounds terminations)*


My organisation ensures policies are widely disseminated and easily accessible, and available on the organisation’s website

My organisation allows tenants to stay in a property as long as they comply with the conditions of the Residential Tenancy Agreement

My organisation takes steps to end the tenancy when a tenant initiates termination of the tenancy including

o finalising the rent account

o calculating any outstanding tenant debt including rent arrears, water charges, tenant damage

My organisation refers to the condition report to conduct a joint property inspection with the tenant before they leave

My organisation gives the tenant the opportunity to do any cleaning or minor repairs to the property before leaving

If applicable, my organisation obtains a signed agreement from the tenant on repairs the tenant is responsible for and how payment for these repairs will be made

My organisation ensures that the tenant signs a repayment agreement to assist with debt recovery if there are outstanding debts and the tenant is responsible

My organisation gives tenants a reasonable timeframe to vacate the premises

My organisation follows due process, starting with NCAT action, when eviction is necessary

My organisation ensures that communication with the tenant is documented when ending a tenancy, including where eviction is necessary

My organisation follows procedures outlined in the NSW Residential Tenancies Act 2010 in order to recover possession of the property and deal with abandoned goods when a tenant abandons a property


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What is the purpose of policies for ending a tenancy?

Purpose

Ending a tenancy policies should:

• outline the range of circumstances in which a tenancy ends, and the different approaches required in each of these circumstances

• specify the legal parameters for ending tenancies, and when tenants will be offered better than their minimum legal rights

• ensure that housing management and administration tasks at the end of a tenancy are carried out fairly, effectively and efficiently.

Principles

Housing providers who implement good practice end of tenancy policies will:

• take active steps to maintain tenancies whenever possible

• adhere to their legal obligations as a landlord

• be sensitive to individual circumstance in deciding to end a tenancy and in the process of ending a tenancy;

• facilitate natural justice for their tenants (access to information, access to reasons for decisions, access to review of decisions, privacy)

• be efficient with the administration of the process and with record keeping at the end of a tenancy

Practice

The way your organisation deals with the end of a tenancy should:

• work within the requirements for landlords legislated by the NSW Residential Tenancies Act 2010

• comply with Registration requirements

• provide a service to your tenants that takes account of recognised good practice in housing management and client service


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Reasons to end a tenancy

Tenant ends the tenancy

There are times when a tenant may want to end their tenancy. For example, to move to a property managed by a different landlord. A tenant can end their tenancy by giving Name of ACHP a written notice called a Termination Notice.

A Termination Notice must:

• be in writing

• give the address of the premises

• be signed and dated

• allow the required period of time. For tenants this is usually 21 days plus time for postage but it can be longer or shorter depending on the circumstances.

• give the exact date on which the tenant intends to move out (i.e. do not use words such as ‘by’ or ‘on or before’ in the notice)

• give the reason for ending the agreement, unless it is a situation where the tenancy agreement does not require a reason to be given.

Name of ACHP ends the tenancy

There are several situations where Name of ACHP will take steps to end a tenancy for example:

• if a tenant breaches their tenancy agreement and does not address the issues causing the breach. Some examples of tenancy agreement breaches are:

o not being up to date with the rent or other tenancy charges

o Not informing Name of ACHP of any changes in household composition or the number of people living in the property.

o anti-social behavior

o damaging to the property

o using the property for illegal activities

o sub-letting the property

In this situation, Name of ACHP will issue a Termination Notice for breach of the tenancy agreement.

• If Name of ACHP believes the tenant has abandoned the property. In this situation Name of ACHP will apply for to the NCAT for an order ending the tenancy, and for repayment of any debts to Name of ACHP that are owing.

• If Name of ACHP wants to do a management transfer and the tenant does agree to move to an alternative property that meets their location and housing needs. In this situation Name of ACHP will issue a Termination Notice under Section 149 of the Residential Tenancies Act, 2010.


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Name of ACHP will apply to the NCAT for a Order to end the tenancy if the tenant does not address the reason for the Termination Notice before the notice period ends.

In exceptional circumstances and as a last resort, Name of ACHP may decide to issue a Termination Notice under Section 85 of the Residential Tenancies Act, 2010. Name of ACHP will only do this in situations of [insert relevant situations eg. serious breach of the tenancy agreement such as extreme violence or damage to the property, if alternative properties offered as part of a management transfer have been repeatedly rejected etc]. And only when other attempts to terminate the tenancy by issuing a Termination Notice for breach of the tenancy or under Section 149, including seeking Termination Orders from the NSW Civil and Administrative Tribunal (NCAT), have failed.

The decision to issue a Termination Notice under Section 85 of the Residential Tenancies Act, 2010 must be approved by the CEO/Board of Name of ACHP. Before approval is granted it must be demonstrated that all alternative options have been exhausted.

End of tenancy process

Name of ACHP follows the same end of tenancy process regardless of the reason for termination of the tenancy or whether the tenant or Name of ACHP gives the Termination Notice. Name of ACHP will:

• Finalise the rent and other accounts up to the date the tenancy will end

• Conduct a final inspection of the property, with the tenant if possible, to fill out the property condition report. This inspection will be conducted shortly before the tenancy ends or within 24 hours of the tenant vacating, depending on what is practical for the tenant and Name of ACHP.

• Give the tenant [insert the option used by organisation: eg a reasonable opportunity/ state number of days/ state how length of time is decided] to do any cleaning or minor repairs identified at the final inspection.

• Raise any necessary repair orders and add them to tenants account if the repairs are not considered ‘normal wear and tear’

• Close the rent account when the tenant vacates the property

• Read the water meter and reconcile the last water usage account from the Shire Council and add any unpaid usage to the tenants account

• Reconcile the tenants accounts, using the date the tenant left, to make sure there are no amounts outstanding for repairs, rent or other charges. Calculate any outstanding debt.

• Explain the arrangements for any debt recovery action it plans to take to recover unpaid rent or other debts.

• Issue a letter to the tenant requesting payment in full of the debt. If tenant’s whereabouts are not known, the letter may be sent care of any known family members. Name of ACHP will also send letters to the last known address of the tenant in case Australia Post is sending mail to a forwarding address

• Keep a record of all paperwork relating to ending the tenancy.

• Keep former tenant files in the office for a minimum of seven (7) years.


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Bad debt recovery

A ‘bad debt’ is money owed to Name of ACHP by a former tenant within the last six (6) years. Name of ACHP will attempt to recover all bad debts through the following process:

• Seek an arrangement with the former tenant

• Tribunal Order

• Local Court – Sheriff

• Debt recovery services

Former tenants with bad debts may not be considered for future housing. However Name of ACHP may consider allowing a former tenant to be included on the waiting list, if a payment arrangement is put in place to repay outstanding debt. This decision is made on a case by case basis only.

Absence from property and abandonment

Tenants may apply to be away from their dwelling and return to it later. A tenant can be absent from their property for up to six (6) weeks without approval from Name of ACHP.

Name of ACHP may approve an absence of up to twelve (12) weeks, provided there is a valid reason for the absence and arrangements have been made for rent and the care of the dwelling.

Name of ACHP decides a property is abandoned if the tenant (who has signed the Tenancy Agreement) has been living away from the property for over eight (8) weeks, and their absence was not approved by Name of ACHP.

Acceptable reasons for absence include:

• Caring for sick or frail family members;

• Sorry business;

• Hospitalisation, institutional care, nursing home care or rehabilitation;

• Escaping domestic violence, harassment or threats of violence;

• Holidays;

• Employment, education and training.

Name of ACHP will not approve repeated absences relating to holidays and employment/training. Absences of more than twelve (12) months in total over a five-year period will not be approved.

Name of ACHP will consider other requests for repeated or extended absences and make decisions according to the circumstances. Tenants can apply for an extended absence relating to medical conditions or returning to their homeland and dealing with “sorry business”.


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During the absence, the tenant is legally responsible for the tenancy agreement regardless of any informal arrangements made. Any breaches of the Tenancy Agreement may result in tribunal action.

Abandoned properties

If the residential premises appear to be abandoned by the tenant, Name of ACHP may apply to the NSW Civil and Administrative Tribunal (NCAT) for an Order to have the property declared abandoned. Once such an Order is given, the tenancy is ended from the date specified on the Order.

Name of ACHP or its authorised agent must present evidence to the Tribunal to support its claim that the property has been abandoned. This may include statements from witnesses, notices of disconnection of electricity, telephone or gas, empty premises.

Indicators of abandonment of premises:

• Inactivity in the rent account, non-payment of rent for a period of six (6) weeks and no response to a series of attempts to contact tenant

• A tenant not living at the premises / or residing at a separate property (whether connected to the Name of ACHP or otherwise)

• The premises appear abandoned

• Uncollected Mail

• Overgrown grounds

Name of ACHP can also ask a tenant who abandons a residential premises to pay compensation to for any loss to Name of ACHP (e.g. loss of rent) caused by the abandonment. Name of ACHP should take all reasonable steps to minimise any loss. If steps are not taken by Name of ACHP to avoid the loss, compensation for that loss may not be recoverable.

Abandoned goods

If goods are left behind in a property after the tenancy has ended, Name of ACHP may remove and store them in a safe place pending disposal or collection in accordance with the Residential Tenancy Act 2010.

Perishable Goods

Name of ACHP will immediately remove and dispose of perishable items left behind in a property at the end of a tenancy.

Disposal of Non-Perishable Goods (other than personal documents)

Name of ACHP may dispose of goods (other than personal documents) in accordance with the Residential Tenancy Act 2010 (Section 130).

If a former tenant fails to collect or make arrangements to collect goods within 14 days of a notice disposal been given or a further period that may be agreed. Then Name of ACHP may sell goods or dispose of goods in a lawful manner. Name of ACHP must keep records of all goods disposed of in accordance with the Residential Tenancy Act 2010 (section 130).


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If Name of ACHP sells goods left behind in a property it must pay the sale proceeds to the former tenant or other person if requested to do so by the former tenant or other person entitled to possession of the goods. Name of ACHP may deduct an occupation fee calculated in accordance with Section 132 of the Residential Tenancies Act, 2010 and the reasonable costs of the sale from the proceeds.

Unauthorised occupants (squatters)

The tenant is to be the legal occupant of the premises at all times.

If an unauthorised occupant (squatter) refuses to vacate a property the Board will:

• Access if the squatter is eligible for housing and request for a housing application to be completed.

• Consider the application for housing;

• Provide a Residential Tenancy Agreement


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Termination notice

The requirements for issuing and serving a Termination Notice are set out in the Residential Tenancies Act, 2010. A Termination Notice issued to a tenant must:

• be in writing

• state the address of the premises

• be signed and dated

• allow the required period of time

• give the date on which the tenant is requested to move out (i.e. do not use words such as ‘by’ or ‘on or before’ in the notice)

• give full details of all breaches (if any) or reasons for ending the agreement

• include a statement that information about their rights and obligations can be found in the tenancy agreement.

The notice can be posted or given personally. A notice cannot be stuck to or put under a door. If the notice is sent by post at least four (4) working days (not including the day the notice was sent) should be added to the amount of notice, to allow time for the notice to be delivered. The notice period is counted from the day after the notice is served.

Section 85 Termination Notice

ACHPs should only terminate agreements under S85 of the Residential Tenancies Act (‘No Grounds Termination’) as this section of the Act:

• denies the tenant natural justice (fairness) by putting them in a position where they do not know the reason for their tenancy being terminated and cannot dispute the reason for the decision.

• limits the ability of the tenant to contest termination of their tenancy at the NCAT.

ACHPs must make all attempts to avoid ‘No Grounds Termination’. ACHPs must acknowledge that a Section 85 notice is a last resort available within the RTA and should only be made in rare and exceptional circumstances. These circumstances should be clearly defined by the ACHP.

Every effort should be made to sustain the tenancy. All other avenues with the NCAT in relation to termination of the tenancy must have been exhausted and procedural fairness and tenant rights maintained.

ACHPs should keep good records of decisions to pursue a ‘No Grounds Termination’ including:

• Documented evidence that all other avenues for termination of the tenancy through the NCAT have been pursued.

• Documented processes that allow for internal and external review, prior to the decision to terminate the tenancy.


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Section 149 Termination Notice

Section 149 of the Residential Tenancies Act, 2010 allows social housing providers including ACHPs to terminate a tenancy on the ground that a tenant has been offered (and not accepted) an alternative social housing property.

There are several processes required before a Termination Notice can be issued under Section 149 of the Residential Tenancies Act, 2010. These are outlined in Section 149 and summarised below:

• The landlord must advise the tenant in writing that it intends to issue a Termination Notice under Section 149 - before issuing a Termination Notice.

• The notice letter must explain why the ACHP want the tenant to move to an alternative property

• The notice letter must state that within 14 days of receiving the notice the tenant can request the ACHP review its decision to issue the notice. It must also include information about how the tenant can request an appeal.

• The notice letter must state that the tenant is entitled to make arguments to the ACHP (verbally or in writing) as to why the existing agreement should not be terminated.

• If the tenant requests a review of the decision, the ACHP must review the decision and consider any arguments made by the tenant.

• After the review, the ACHP must either: issue a Termination Notice, advise the tenant in writing that it has decided not to issue a termination notice, or offer a different property to the tenant as the alternative social housing property.

Deciding to evict a tenant for breaching their agreement

ACHPs have a duty to maintain communities, properties and the viability of their organisation, as well as individual tenancies.

People can’t always be prevented from acting in ways that ultimately are against their own interests. If you have made every reasonable attempt to explain the implications of certain actions and behaviour, and to minimise their occurrence and impacts by using negotiation, conciliation, mediation and incentives. And these fail, then using eviction to resolve the situation is justifiable, and stops harm being caused to others and to the organisation.

The Consumer and Commercial Division of the NSW Civil and Administrative Tribunal (NCAT) acts as the decision maker in the eviction process. Only the NCAT can evict a tenant. If there is any doubt about the fairness of an eviction, the NCAT may be quite tough on ACHPs and find in a tenant’s favour.

A termination notice issued because the tenant has breached their residential tenancy agreement must specify a date that is at least 14 days from the date the notice is given. The NCAT assumes notices that are posted will take 4 working days to arrive. If the notice is posted, you must add 4 working days to the termination date to take into postage into account.

If a tenant has not moved out by the expiry of a Termination Notice, then apply to the NCAT for an Order terminating the tenancy and an Order of Possession within 30 days. Tenants can only be physically removed from the premises by a Sheriff with a Warrant of Possession from the NCAT.


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NCAT applications

Applications for NCAT can be downloaded or lodged online at http://www.ncat.nsw.gov.au/Pages/cc/Applications/ccd_forms.aspx

The NCAT website also contains a range of resources that will help you fill out NCAT applications and prepare for hearings. A particularly useful page is the ‘How to prepare for hearing’ page at http://www.ncat.nsw.gov.au/Pages/going_to_the_tribunal/preparing_for_your_hearing/preparing_for_your_hearing.aspx

NCAT decision making

When any matter is considered by the NCAT will first check that:

• a tenancy agreement exists

• the Termination Notice was properly served

• the person representing the organisation has authority to act in the matter.

If satisfied on these three counts, two conditions must then be met before it will grant an Order of Possession:

• reasonable grounds for possession

• reasonable to end the tenancy

Reasonable grounds for possession

It is up to landlords to substantiate the grounds for possession and provide evidence for how they meet the requirements of the Act. When seeking a termination order because the tenant has breached the agreement, your organisation must present evidence showing how the tenant has breached the agreement. For example, if the breach is due to unpaid rent, you would have evidence confirming the current rent, records of rent paid by the tenant and copies of any letters sent to the tenant about their unpaid rent. If the breach is due to property damage you would have evidence of the condition of the property before the damage, evidence confirming the current condition of the property, and information about the cost of repairs (eg. quotes).

This can be particularly hard in cases of anti-social behavior and may involve convincing neighbours that to provide information is not ‘dobbing in’; or it may involve enabling people who do give evidence to feel safe. This is not easy, but it can help if everyone concerned is clear about their rights and responsibilities, the range of actions a landlord can legally take and how the legal processes work.

Reasonable to end the tenancy

Even if there are adequately substantiated and legal grounds for ending a tenancy, the NCAT may not consider it reasonable to do so. NCAT members are obliged to consider the ‘circumstances of the case’ and the relative hardship for the tenant, the landlord and the neighbours in ending or not ending the tenancy. This means the NCAT will consider questions such as:

http://www.ncat.nsw.gov.au/Pages/cc/Applications/ccd_forms.aspx

http://www.ncat.nsw.gov.au/Pages/going_to_the_tribunal/preparing_for_your_hearing/preparing_for_your_hearing.aspx



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• whether the tenant has a history of breaching their tenancy agreement, and if so, the kinds of breaches that have occurred

• the steps taken by the tenant to address the breach that has lead to the NCAT application

• the steps taken by your organisation to alert the tenant to the breach and encourage them to address it

• whether other events have occurred during the tenancy that are relevant to making a decision about the application to terminated the tenancy

It is best to ensure that there are adequate grounds and that it is reasonable under the circumstances to seek a Possession Order before applying to the NCAT. At the NCAT hearing it is important to present documents and other evidence to confirm the breach and the actions your organisation took to encourage the tenant to address the breach before applying to the NCAT.

Ending the tenancy due to non-payment of rent

Sections 88 and 89 of the Residential Tenancies Act include specific requirements for ending tenancies due to the non-payment of rent. These requirements are:

• the rent must have been in arrears for at least 14 days when the Termination Notice is given

• the termination notice must state that the tenant is not required to vacate the property if they pay all the rent owing, or agree to and comply with a repayment plan with your organisation

• the NCAT must not issue an order terminating the tenancy if the tenant has paid all the rent owing or agreed to and fully complied with a rent repayment plan with your organisation.

• any termination order, possession order or warrant for possession made solely on the basis of unpaid rent becomes unenforceable if the tenant has not moved out AND has paid all the rent owing, or agreed to and fully complied with a rent repayment plan with your organisation

• your organisation is responsible for advising the NCAT (and the Sheriff if a warrant of possession has been issued) if the tenant has paid all the rent owing, or agreed to and fully complied with, a rent repayment plan

The aim of these requirements is make sure tenancies are not unfairly ended due to unpaid rent when the tenant has paid, or made a commitment to pay, the money owed.

However, landlords including ACHPs often encounter situations where rent is often paid late and commitments to repay rent owing are repeatedly broken. In this situation, your organisation can decide to apply for a finding under Section 89(5) that the tenant has frequently failed to pay rent. It the NCAT makes this finding, the tenant cannot stop the termination of their tenancy by paying the money they owe.

To ask for a finding under Section 89(5) your organisation must do 3 things:

• state in the Termination Notice its intention to seek a finding under Section 89(5) that the tenant has frequently failed to pay the rent


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• when filling out the NCAT application include in the list of orders requested, a request for a finding under Section 89(5) that the tenant has frequently failed to pay rent

• provide evidence at the hearing that convinces the NCAT to make a finding under Section 89(5) that the tenant has frequently failed to pay rent.

Using transfers and referrals as an alternative to eviction

If there is a lack of evidence to get an Order of Possession, then negotiation with the tenant can be a better option. Your organisation may decide to take steps to end the tenancy by making offers of rehousing or assistance with housing elsewhere.

Some examples of when this might arise are:

• When witness statements are hard to get or won’t stand up in the NCAT. Rehousing the tenant to a different property or location may permanently solve the problem. Such action can be seen as ‘rewarding’ tenants who have breached their agreement, but offering to move them away from the problem could equally be viewed as ‘one last chance’, even though your organisation may think they were the ‘cause’ of the problem.

• Sometimes tenancy management problems stem from tenancy management mistakes, misunderstandings or lack of adequate information. These may lead to inappropriate allocations and unworkable tenant mixes. Although technically a tenant may be in serious breach, and eviction may be justified, look for ways of maintaining the tenancy with your organisation. This can be done by ending the particular tenancy that is the problem and starting another tenancy, particularly when allocations decisions have had a critical bearing on the sustainability of a tenancy.

• A vulnerable tenant, for example a person who has a mental health problem, may be considered by the Tribunal to face greater hardship if the tenancy ends, than your organisation will face if the tenancy continues. A decision to involve a support agency and an advocate to assist the tenant in making a successful move to another property, will be more productive than seeking an Order of Possession that is refused.

When a tenancy legally ends but does not end in practice

If your organisation is successful in getting an Order of Possession to evict a tenant then the tenancy has been legally ended. If your organisation is later successful in reaching an agreement with the tenant to remedy the breach, a new tenancy agreement is needed.

The tenant must sign a new agreement, and your organisation should seek Money Orders within the 30 day time limit for rent arrears and for debts from the previous tenancy. Former debts and rent arrears cannot be considered as breaches of the new tenancy and cannot be shown on the rent account for the new tenancy. It is possible, however, to ask for an Order that rent arrears and other debts be paid in instalments, concurrent with rent payments for the current tenancy.


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Tenant choice to end a tenancy

A tenant may decide to leave for a variety of positive or negative reasons.

• They may want to move to another housing tenure or another location (e.g. they are buying their own house, moving in with a partner, taking up a job in another area).

• They have accepted an offer of rehousing (e.g. in your organisation or with another social housing landlord).

• They want to avoid the tenancy responsibilities (e.g. repayment of rent arrears).

• They are dissatisfied with the service or the housing (e.g. the current property is too small or it needs modifications; or requests for rehousing have been refused).

When a tenant leaves because of dissatisfaction with your organisation’s service or the property, this may be because that person has unrealistic expectations about what can be provided, or it could be your organisation is not doing everything to maintain tenancies.

It is helpful to find out why exiting tenants are leaving by having an end of tenancy survey form or exit interview.

Written notice is an important protection for a landlord and a tenant. It may on occasions seem an unnecessary formality, but it is very important to encourage tenants to put their notices in writing.

Tenants can withdraw written notices before they leave. The landlord may be placed in a very difficult position, if possession is taken of a property and the tenant then returns and there is no written notice. A tenant in this situation can apply to the Tribunal for compensation for an illegal lock out.

Abandoned property?

There can be ‘grey’ areas where assumptions or lack of rigour in procedures result in an unintentional denial of tenants’ rights. A common example is identifying and dealing with an abandoned property. It is not always obvious that the tenant has gone, and the tenant could claim illegal lock out, or illegal entry, if your organisation wrongly takes possession. The mistake could be made because of not thinking through a situation, or because of making a judgement about how someone should live. For example, do not assume abandonment just because there is no fridge, there are few clothes or little furniture, and the place is a mess.


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Useful resources General

Aboriginal Housing Office, Housing Services Policy Framework https://www.aho.nsw.gov.au/download?file=544340

Aboriginal Housing Office, Housing Services Guidelines https://www.aho.nsw.gov.au/download?file=544333

NSW Department of Family and Community Services, Foundation for Success: Guide for Social Housing Providers https://www.aho.nsw.gov.au/download?file=547146

National Regulatory System Community Housing, Evidence Guidelines http://www.nrsch.gov.au/__data/assets/file/0008/288224/D_Evidence_Guidelines.pdf

Residential Tenancies Act, 2010 https://www.legislation.nsw.gov.au/#/view/act/2010/42

Establishing tenancies

FACS Housing, Starting a Tenancy Policy https://www.facs.nsw.gov.au/housing/policies/starting-tenancy-policy

NSW Fair Trading, Rental Bonds Online http://www.fairtrading.nsw.gov.au/rentalbondsonline

NSW Fair Trading, Being a Landlord http://www.fairtrading.nsw.gov.au/ftw/Tenants_and_home_owners/Being_a_landlord.page?

Rent and water

Build and Grow Rent Policy Factsheet https://www.aho.nsw.gov.au/download?file=573797

Build and Grow Rent Calculator https://www.aho.nsw.gov.au/download?file=573799

NSW Department of Family and Community Services, Rent Report https://public.tableau.com/profile/facs.statistics#!/vizhome/RentandSales/Rent

NSW Department of Family and Community Services, NSW Community Housing Rent Policy, 2015 https://www.facs.nsw.gov.au/download?file=333282

Housing Pathways, Social Housing Eligibility and Allocations Policy Supplement, Part 7: Assessable Income and Assets, https://www.facs.nsw.gov.au/housing/policies/social-housing-eligibility-allocations-policy-supplement#hi

NSW Affordable Housing Ministerial Guidelines https://www.facs.nsw.gov.au/download?file=332789

Water Usage Charges Ministerial Guidelines for Aboriginal Community Housing Providers https://www.aho.nsw.gov.au/housing-providers/water-usage-charging




http://www.nrsch.gov.au/__data/assets/file/0008/288224/D_Evidence_Guidelines.pdf


https://www.facs.nsw.gov.au/housing/policies/starting-tenancy-policy

http://www.fairtrading.nsw.gov.au/rentalbondsonline

http://www.fairtrading.nsw.gov.au/ftw/Tenants_and_home_owners/Being_a_landlord.page



https://public.tableau.com/profile/facs.statistics#!/vizhome/RentandSales/Rent

https://www.facs.nsw.gov.au/download?file=333282

https://www.facs.nsw.gov.au/housing/policies/social-housing-eligibility-allocations-policy-supplement#hi

https://www.facs.nsw.gov.au/housing/policies/social-housing-eligibility-allocations-policy-supplement#hi

https://www.facs.nsw.gov.au/download?file=332789

https://www.aho.nsw.gov.au/housing-providers/water-usage-charging


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Centrepay https://www.humanservices.gov.au/individuals/services/centrelink/centrepay

Commonwealth Rent Assistance https://www.humanservices.gov.au/individuals/services/centrelink/rent-assistance

Tenancy transfers

FACS Housing, Tenant Transfers Policy https://www.facs.nsw.gov.au/housing/living/move-swap-transfer/tenant-transfers

FACS Housing, Mutual Exchange Policy https://www.facs.nsw.gov.au/housing/living/move-swap-transfer/mutual-exchange

FACS Housing, Relocating Tenants for Management Purposes Policy https://www.facs.nsw.gov.au/housing/living/move-swap-transfer/relocating-tenants-for-management-purposes

Difficult tenancies

NSW Federation of Housing Associations, ‘Anti-Social Behaviour’ http://www.communityhousing.org.au/resourcebank/services-a-resource-bank/resource-bank/Information-and-resources/Housing-Management/Anti-Social-Behaviour/

Department for Communities and Local Government (Uk), Housing Guide: Guide on Effective Rent Arrears Management https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/7834/151801.pdf

NSW Civil and Administrative Tribunal (previously known as the CTTT)

NSW Federation of Housing Associations, ‘CTTT Tools’ http://www.communityhousing.org.au/resourcebank/services-a-resource-bank/resource-bank/Information-and-resources/Housing-Management/CTTT-Tools/

NSW Civil and Administrative Tribunal (NCAT) http://www.ncat.nsw.gov.au/

Making applications http://www.ncat.nsw.gov.au/Pages/apply_to_ncat/apply_to_ncat.aspx

Fees and Charges http://www.ncat.nsw.gov.au/Pages/apply_to_ncat/fees_and_charges/fees_and_charges.aspx

Going to the Tribunal http://www.ncat.nsw.gov.au/Pages/going_to_the_tribunal/going_to_the_tribunal.aspx

Preparing for Hearing http://www.ncat.nsw.gov.au/Pages/going_to_the_tribunal/preparing_for_your_hearing/preparing_for_your_hearing.aspx

https://www.humanservices.gov.au/individuals/services/centrelink/centrepay

https://www.humanservices.gov.au/individuals/services/centrelink/rent-assistance

https://www.facs.nsw.gov.au/housing/living/move-swap-transfer/mutual-exchange

https://www.facs.nsw.gov.au/housing/living/move-swap-transfer/relocating-tenants-for-management-purposes

https://www.facs.nsw.gov.au/housing/living/move-swap-transfer/relocating-tenants-for-management-purposes

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/7834/151801.pdf

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/7834/151801.pdf

http://www.ncat.nsw.gov.au/

http://www.ncat.nsw.gov.au/Pages/apply_to_ncat/apply_to_ncat.aspx

http://www.ncat.nsw.gov.au/Pages/apply_to_ncat/fees_and_charges/fees_and_charges.aspx

http://www.ncat.nsw.gov.au/Pages/going_to_the_tribunal/going_to_the_tribunal.aspx



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