Policy
Entitlement
Background
Business Rules
Appealing decisions or actions
Policy
The Consumer, Trader and Tenancy Tribunal is an independent body that resolves disputes between tenants and landlords.
The Tribunal will first try to get the parties to come to an agreement themselves. If that fails, the Tribunal will hear the case and make a decision about it.
The Tribunal can issue Orders that are legally binding.
For more information on this policy, look in Entitlement, Background and Business Rules.
Entitlement
Both the Department and tenants can bring disputes about breaches of the Tenancy Agreement before the Consumer, Trader and Tenancy Tribunal.
Background
The Consumer, Trader and Tenancy Tribunal (CTTT) is an independent decision making body that resolves disputes between tenants and landlords. The Tribunal tries to help the parties work out their own solutions to a problem. If this is not possible, the Tribunal can resolve the dispute by making orders. These orders are instructions that are legally binding and must be obeyed.
When the Department of Housing has a problem with a tenant that it has been unable to resolve through other means, it may apply to the Tribunal for a hearing. Likewise, if tenants have a problem with the Department they may apply to have the matter heard by the Tribunal.
Matters involving amounts over $10,000 cannot be heard by the Tribunal. These matters may be pursued in the Local Court.
How the Tribunal works
The Tribunal will first ask the parties:
- To discuss the matter outside of the Tribunal, and
- To encourage them to come to an agreement.
In some locations the Tribunal supplies mediators to help this process. If this is not successful, a member of the Tribunal will hear the matter.
Most hearings of the Tribunal are carried out informally. Both parties tell their side of the story and present any evidence. No witnesses can be called at an initial hearing.
Either party can request a formal hearing. A formal hearing allows witnesses to be called or subpoenaed and cross-examined. The Tribunal will determine if a formal hearing is appropriate.
The Tribunal will make a decision on the basis of the evidence presented to it. It is essential that Department officers have sufficient evidence before taking a case before the Tribunal.
If the client has a legal representative at the Tribunal, the Department will involve someone from the Legal Services section before proceeding.
Business Rules
Where the Department seeks a Specific Performance Order
If a tenant has breached their Tenancy Agreement we may ask the Tribunal to issue a Specific Performance Order. This is an order that compels the tenant to correct the breach.
We will seek Specific Performance Orders when it is clear that the tenant is continually breaching their Tenancy Agreement. This may be because:
• The rent is in arrears,
• The tenant is causing nuisance and annoyance, or
• For any other breach
These orders can be made under Section 16 of the Residential Tenancies Act. We do not need to issue a Notice of Termination.
Where a tenant agrees to comply with their Tenancy Agreement then the Department may seek to obtain those orders from the CTTT without a hearing, using s 34 of the Consumer Trader and Tenancy Tribunal Act. This will involve seeking the tenant's written agreement to seek the orders by using a 'paper process'. This is more likely to happen in remoter areas of NSW where there are a smaller number of CTTT hearings and it is more difficult for clients to travel to hearings. The orders that can be sought using this process are those:
- requiring the tenant pay their rent and water arrears and to comply with their obligation to pay their rent and water charges as they become due
- that allow the Department to seek to re-list the application for the CTTT for termination and possession orders if the tenant breaches the rent and water charge orders
For more information on 'decisions on the papers' see the FAQs at www.fairtrading.nsw.gov.au/cttt/faq/hearings.html
When the Department seeks to end a fixed term tenancy
When the Department decides not to renew a 3 or 6 month fixed term tenancy, it will issue a Notice of Termination under section 60 of the Residential Tenancies Act. To have a decision reviewed a tenant must request a review in writing within 7 days of receiving notice of the decision not to renew the tenancy.
For more information, see the policy on Appeals and Review of Decisions (EST0015A) and see Types and Length of Lease Policy (EST0208A).
When the Department seeks vacant possession of a dwelling
When the Department of Housing decides to terminate a Tenancy Agreement and take possession of a property, it will issue a Notice of Termination.
If the tenant does not move out we will seek an Order for Possession from the Tribunal. This order compels the tenant to move out and sets a date for the Department to take possession of the property. If the tenant has not moved out by this date we will apply for a warrant to take possession. The warrant allows the Sheriff to gain entry to the property and deliver possession to us.
Where the tenant has breached their Tenancy Agreement
If the tenant has breached the Tenancy Agreement, the Notice of Termination will give the tenant 14 days notice (Section 57 of the Residential Tenancies Act).
In cases where the tenant or another household member has:
- Caused serious property damage, or
- Threatened or injured Departmental staff or other residents
we will apply to the Tribunal for immediate eviction and do not need to issue a Notice of Termination (Section 68 of the Residential Tenancies Act).
If the tenant or another household member has:
- Threatened or abused a staff member in a serious or persistent way, or
- Has intentionally engaged in conduct towards a staff member that objectively is likely to cause that staff member to be intimidated or harassed
We will apply to the Tribunal for immediate eviction. We do not need to issue a Notice of Termination in this case (Section 68A of the Residential Tenancies Act). Section 68A of the Residential Tenancies Act does not apply to Aboriginal Housing Office tenancies.
Where the tenant has not breached their Tenancy Agreement
There are some circumstances where the Department may seek vacant possession even though the tenant may not have breached their Tenancy Agreement. These include:
These include:
- When a tenant on a 12 month, 2, 5 or 10 year fixed term lease is not eligible for a lease extension (Section 63B)
- Where the Department gives 60 days Notice to end a continuous tenancy (Section 58)
- Where the Department gives 14 days Notice to end a fixed term tenancy agreement (Section 60)
- When a tenant is offered, and rejects alternative social housing (Section 63F)
Section 63B – Tenant not eligible to reside in social housing
Under Section 63B of the Residential Tenancies Act <insert link to section 63B of the Act>, the Department has the right to give a Notice of Termination on the grounds that a tenant is not eligible to continue living in social housing. The decision to issue a Section 63B Notice of Termination follows a lease review assessment where a tenant has been assessed as not eligible for an extension to their lease. The lease review assessment must be carried out in compliance with the requirements set out in the Residential Tenancy Act.
Issuing a 60 day Notice under Section 58
In circumstances where the tenant has not breached the Tenancy Agreement the Notice of Termination will give the tenant 60 days notice (Section 58 of the Residential Tenancies Act). The Notice will also give the reason for terminating the tenancy.
Section 58 of the Residential Tenancies Act will be used by the Department as a last resort and where reasonable steps to encourage the tenant to comply with Departmental policy have failed. Principles of natural justice and procedural fairness will guide the Department’s actions in all cases. We will establish which version of the tenancy agreement the tenant has signed, and wherever possible pursue the matter as a breach of the agreement.
The Department will ensure that the tenant is;
- Wherever possible given reasonable opportunity to comply with policy,
- Encouraged to explain their circumstances and provide material which supports their case so that the Department can give adequate consideration to the tenant’s circumstances,
- Given an opportunity to negotiate an alternate solution which can meet the needs of both parties,
- Able to understand the reason for the Department’s proposed action to terminate the tenancy and how they can appeal this decision.
When a tenant on a 3 or 6 month fixed term lease is not eligible for a lease extension (Section 60)
When the Department decides not to renew a 3 or 6 month fixed tenancy lease, it will issue a Notice of Termination under Section 60 of the Residential Tenancies Act giving tenants 14 days notice. The decision to issue a Section 60 Notice of Termination follows an assessment of the tenant’s eligibility to remain in public housing. To have a decision reviewed a tenant must request a review in writing within 7 days of receiving notice of the decision not to renew the tenancy. For more information, see the policy on Emergency Temporary Accommodation (ALL0070A) & Housing Former Tenants (ALL0031A).
Section 63F – Tenant rejects offer of alternative social housing
The Department uses this Section to ensure the best use of public housing.
The Department may do this through:
- redevelopment,
- demolishing or upgrading homes, or
- Relocating tenants whose circumstances have changed resulting in the household not making full use of the premises, such as underoccupying a dwelling or not needing a modified dwelling.
In these circumstances, reasonable alternate offers of housing are made to encourage tenants to relocate. See Relocating Tenants for Management Purposes (EST0038A) for more information.
If the Department issues a Notice of Termination under the Relocating Tenants for Management Purposes (EST038A) policy, it will do so under Section 63F of the Residential Tenancies Act, giving tenants 14 days notice.
When a tenant has breached a Department policy
When the Department wants to act on breaches of policy that may not be enforceable through some versions of the tenancy agreement such as:
Tenants seeking orders against the Department
Tenants may apply to have a matter heard before the Tribunal if they believe that the Department has failed to meet its obligations under the Tenancy Agreement. Usually, this is related to a maintenance matter.
Tenants may also apply to the Tribunal to seek an order against an excessive increase in rent. However, only tenants paying full market rent or who have had their rental subsidies cancelled can seek a hearing about excessive rent increases. See the policies on Market Rent (REN0040A), Rental Subsidies (SUB0044A) and Rental Subsidy Fraud (SUB0045A).
There may be an excessive rent increase if:
- The amount the tenant is asked to pay increases, or
- Goods, facilities or services are removed or discontinued.
The Department will provide evidence to respond to all claims brought against it at the Tribunal.
Appealing decisions or actions
Tenants and the Department can appeal to the Consumer Trader and Tenancy Tribunal to vary or set aside orders it has made. The Registrar must be satisfied that there are sufficient reasons to change the original order. For example, the existing order may be inappropriate if new information has come to light. (Section 110 of the Residential Tenancies Act.)
An application should be made within 14 days of the original order, or within 14 days of the order being received (if the party was not present at the original Tribunal hearing).
Other avenues of appeal are available to clients for non tenancy matters. See the policy on Appeals and Review of Decisions (EST0015A).
Nothing in this policy affects the legal rights of the landlord or the tenant before the CTTT.
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