During a Tenancy Policy

1. Background

Tenants can expect the Department of Family and Community Services - Housing NSW to comply with the rights and obligations of a landlord under the Residential Tenancies Act 2010. Housing NSW expects tenants to comply with the terms of their tenancy agreement.

The purpose of this policy is to explain how Housing NSW manages tenancies. The Tenancy Policy Supplement provides further information to support this document.

2. Scope

This policy applies to all tenancies managed by Housing NSW, including Aboriginal Housing Office tenancies.

3. Policy statement

Housing NSW will manage tenancies in accordance with:

• The Housing Act 2001
• Residential Tenancies Act and Regulations
• The terms of the residential tenancy agreement
• Housing NSW policies.

Both the tenant and Housing NSW have rights and obligations under the above Acts, the residential tenancy agreement and Housing NSW policies.

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Paying for rent, water usage and other tenancy charges

Generally, all tenants living in dwellings owned or managed by Housing NSW are required to pay for rent, water usage and other tenancy charges. Housing NSW expects tenants to arrange for prompt payment of their tenancy charges. As rent and water usage is charged on a weekly basis, tenants must pay these charges on or before the due date. Other tenancy charges are payable as they become due. For more information, see the Tenancy Charges Policy.

Looking after the home

Tenants can expect Housing NSW to provide them with a property that is in a reasonable condition. Tenants are expected to take good care of their property, to keep it reasonably clean and to take responsibility for property damage other than that caused by fair wear and tear or the criminal activity of a third party.

Maintenance

Housing NSW provides planned maintenance services to keep its properties in good condition and to ensure consistent maintenance standards across the state. The Housing Contact Centre is the single point of contact for all maintenance issues. Although most maintenance work is carried out using a planned program of works, in certain situations, maintenance will be responded to more quickly. For more information on when Housing NSW will respond more quickly to maintenance issues, go to Situations in which maintenance will be carried out more quickly. For more information on maintenance, see the fact sheet Maintenance Services.

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Improvements

Tenants may want to make changes and improvements to their property. These changes could be major improvements or minor improvements.

Tenants may make minor improvements to their property without getting Housing NSW’s written permission, provided that no Headleasing or Strata Title restrictions apply.

Minor improvements include:

• Installing a picture hook
• Installing child safety locks, and
• Installing telephones.

Major improvements include:

• Building a carport or garage
• Building a pergola
• Installing a rainwater tank

Tenants may make major improvements to their property by:

1. Getting Housing NSW’s ‘in principle’ approval before seeking council approval (where relevant), including confirmation that no Headleasing or Strata Title restrictions apply
2. Where council approval is required, providing Housing NSW with a copy of council’s approval for the improvements
3. Receiving final written permission from Housing NSW before starting any work.

Tenants will be responsible for the cost of constructing and maintaining any minor or major improvements they make. For more information see the Alterations to a Home Policy.

Modifications

Tenants who have an identified need may have their property modified. For example, they may need grip rails in the bathroom or ramp access for a wheelchair.

If it is not economically viable for the property to be modified, or the layout of the home prohibits the required modifications, tenants may be relocated. For more information see the Modifications Policy.

Use of the Property and the Right to Quiet Enjoyment

Housing NSW tenants have the right to quiet enjoyment of their property. Under Section 50 of the Residential Tenancies Act 2010, Housing NSW must take all reasonable steps to ensure that neighbouring tenants of Housing NSW do not interfere with the reasonable peace, comfort or privacy of the tenant in using their property.

Tenants may use their property for any legal purpose that does not breach their tenancy agreement. Tenants may not:

• Use their property for an illegal purpose, such as the manufacture, distribution or selling of illegal drugs
• Cause or allow a nuisance
• Interfere with the peace, comfort or privacy of neighbours
• Smoke in enclosed common areas within Housing NSW properties.
• Allow more people than approved by Housing NSW to live in the property.

Being a Good Neighbour

Housing NSW is committed to a fair and discrimination free living environment for all tenants and will not tolerate harassment or discrimination towards any tenant or tenant group. This includes verbal, physical or any other form of harassment, discrimination or threatening behaviour related to racial, religious, cultural or personal differences.

Tenants have an obligation to abide by the conditions of their tenancy agreement, including being responsible for their own conduct as well as for the behaviour of other occupants and visitors to their property.

Early intervention practices and referral to support services where appropriate can minimise the escalation of disputes between neighbours. However, sometimes complaints have escalated substantially before Housing NSW is notified.

Housing NSW will not intervene in a neighbourhood dispute or investigate allegations unless it is a breach of the tenancy agreement. Additionally, it is not the role of Housing NSW to carry out criminal investigations.

Housing NSW will encourage tenants to try and resolve problems with other tenants themselves, or with the assistance of mediation services. Housing NSW will refer tenants to Community Justice Centres for assistance when appropriate and the parties agree to attend.

Where appropriate, Housing NSW may also seek information from other agencies, such as the NSW Police, about complaints involving breaches of the tenancy agreement. For more information, see the Privacy and Information Sharing Policy.

If Housing NSW is able to substantiate that a complaint is a breach of the tenancy agreement, Housing NSW will take appropriate action against the tenancy. This may include placing a visitor sanction on the tenancy. A visitor sanction requires the tenant to apply for approval from Housing NSW if a visitor wishes to stay at the property for more than 3 days. Housing NSW will tell the tenant in writing if a visitor sanction has been applied and the reason why the sanction has been applied. For more information on visitor sanctions, go to Applying visitor sanctions to individual tenancies.

Housing NSW may also take other actions in accordance with those outlined in the Dealing with a breach of the tenancy agreement section below.

Keeping Pets

Tenants who live in properties owned by Housing NSW may keep pets if:

• The property is suitable for the animal, which may be a companion animal, and
• The pet does not interfere with the reasonable peace, comfort and privacy of neighbours, and
• They comply with any council requirements and the Companion Animals Act. For more information, go to Complying with the Companion Animals Act.

For more information on how Housing NSW considers if the property is suitable for a particular animal, go to Determining if the property is suitable for a certain type of animal. For more information on companion animals, go to Companion animals.

Tenants living in a property that is not owned by Housing NSW will have to refer to, and abide by, the rules set by the owners of the property. They may not be able to keep pets if they are prohibited by the property owners or strata by-laws.

Tenants may not keep:

• Restricted dogs, as defined by the Companion Animals Act
• Dogs that have been declared dangerous by a local council, local court, or under the Companion Animals Act.

For more information on restricted dogs, go to Restricted dogs. For more information on dangerous dogs, go to Dangerous dogs.

If an animal belonging to a Housing NSW tenant causes a nuisance or annoyance to neighbours, or is not suitable for the property, Housing NSW will ask the tenant to remove it within 48 hours. Failure to remove the pet when asked to do so is a breach of the tenancy agreement, and may result in action being taken through the Consumer, Trader and Tenancy Tribunal.

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Running a business from the property

A tenant may run a legal business from their property provided they continue to live in the property and:

• Have the approval of Housing NSW, and
• Have a current public liability insurance policy appropriate to the type of business, and
• Have the approval of the local council and all other relevant authorities.

Where there may be a risk to Housing NSW (as in the case of home-based child care), Housing NSW will ask the tenant to enter into a short deed of agreement that details the terms and conditions of operating the business.

Where a tenant stops complying with any relevant laws and local government regulations that apply to their business, Housing NSW will automatically withdraw its approval to run the business without providing notice to the tenant.

Housing NSW may withdraw approval to run a business at any time where the business causes nuisance or other possible harm to neighbours.

For more information, go to Running a business from the property.

Abandoned vehicles and vehicles causing a nuisance

Tenants and Housing NSW are responsible for taking reasonable precautions to prevent vehicles (including cars, motorbikes, caravans, trailers, and remains of vehicles including parts and accessories) from being left, stored or abandoned on Housing NSW property. For more information, go to When a vehicle is treated as abandoned.

A tenant will be in breach of their tenancy agreement if they, or a member of their household, stores, or abandons a vehicle on public housing common property. For more information, go to When an abandoned vehicle may be a breach of the tenancy agreement.

Housing NSW will investigate the ownership of abandoned vehicles on Housing NSW property. Every effort will be made to contact the owner of a vehicle left on Housing NSW property and provide them with an opportunity to remove it. If the vehicle is not removed, where appropriate, Housing NSW may:

• Seek an order from the Consumer, Trader and Tenancy Tribunal to remove and/or dispose of it, or for the tenant to remove it
• After seeking the advice of Legal Services Branch, remove and store it, or dispose of it according to the relevant circumstances.

Local Councils and the Roads and Traffic Authority (RTA) are responsible for vehicles abandoned on public land.

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Common area smoke free zones

Housing NSW does not allow smoking in enclosed common areas, such as common rooms, shared laundries, stairwells, hallways, entranceways and lift areas within Housing NSW properties. The no smoking ban covers all types of cigarettes, cigars and pipes. By banning smoking in internal common areas, Housing NSW is complying with the standards set by the Smoke-Free Environment Act 2000.

Smoking is allowed inside the private areas of residential units, townhouses, villas or houses.

People living in the home

Visitors

Tenants may have visitors stay with them at their property. A visitor is a person who is temporarily staying with the tenant for a period of up to four weeks (28 days). If a tenant wants their visitor to stay for longer than 28 days, they must apply for the visitor to be approved as an additional occupant.

Additional occupants

An additional occupant is any person that the tenant allows to live in their property who is not already listed as a household member.

If a tenant does not apply for permission for the additional occupant to stay, Housing NSW will consider that person to be an unauthorised occupant. If a tenant has unauthorised additional occupants living in their property, they will be breaching the terms of their tenancy agreement and Housing NSW may take action under the Residential Tenancies Act 2010 or the Rent Subsidy Non-Disclosure Policy.

Housing NSW will assess all applications for additional occupants. If Housing NSW approves an application for an additional occupant, the new person will become an approved member of the tenant’s household. Housing NSW will re-calculate the rent subsidy based on the new household income. If an additional occupant wants housing in their own right, they will need to apply for it separately. For more information on the assessment criteria for approving applications for additional occupants, go to Approving additional occupants.

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Being away from the property

Public housing is a scarce resource and a valuable asset for those in need. Housing NSW maximises the benefit gained from this resource by making sure that properties are used as homes and not left vacant for long periods.

How long can a tenant be away from their property?

When Housing NSW provides a property for a client, they are expected to live in it. Tenants must obtain approval from Housing NSW to be away from their home for more than six weeks, even if other people will be staying in the home while the tenant is away. When a tenant applies to be away from their property, Housing NSW will ask the tenant for the date that they expect to return. For more information, go to Approving an absence from the dwelling.

Housing NSW may approve acceptable absences for up to six months. For more information, go to Acceptable absences. Housing NSW will not approve absences of more than 12 months in total over a five year period.

There are some additional requirements for tenants who are incarcerated or who are going into a nursing home. For more information, go to Tenants going to prison and Tenants going into a nursing home.

The tenant may apply for an approval to extend the absence beyond six months where there are unusual circumstances, for example medical conditions which require regular treatment at a location that cannot be accessed from the tenant’s home.

If a tenant is away without approval, or has stayed away for longer than the time Housing NSW approved, Housing NSW may decide to:

• Charge market rent from the time the tenant’s absence is discovered, or from the date the approval expired
• Terminate the tenancy.

Care of the property while the tenant is away

The tenant must appoint an agent to act on their behalf while they are away. The agent must be over 18 and could be another household member, a family member, friend, support provider or solicitor. The agent must inspect the property regularly and maintain it to the standard stated in the tenancy agreement. If the agent is not currently a member of the household and wants to live in the property while the tenant is away, they must apply to become an authorised additional occupant.

Although the tenant must appoint an agent for the time they are away, the tenant is still legally responsible for meeting their obligations under the tenancy agreement. Any breaches that occur while the tenant is away may result in Housing NSW taking action in the Consumer, Trader and Tenancy Tribunal.

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Contact with tenants and access to the property

Housing NSW makes regular contact with its tenants. This enables Housing NSW to maintain its properties and help to sustain tenancies.

Housing NSW will contact tenants aged over 60 years of age (or 45 if Aboriginal) at least twice per year. Tenants under 60 years of age will be contacted at least once per year. Housing NSW will consider contact to be confirmed if there has been contact with any authorised member of the household. Contact may be made in various different ways, for example, by phone, by home visit and by carrying out maintenance.

If Housing NSW has any reason to believe that the tenant’s well being is at risk, and the tenant cannot be contacted, Housing NSW will contact the next of kin, if known. Where the next of kin cannot be contacted, Housing NSW will contact the police and request that they immediately enter the property.

Housing NSW may visit a tenant’s property for one or more of the following reasons:

• A client service visit. For more information, go to Client service visits. Visits will be conducted within eight weeks of a new tenancy starting and then as needed. For more information on new tenancies, go to New tenancies
• Smoke alarm inspections. These are completed every 12 months
• Property Assessment Surveys. These will be undertaken at least once every two years to assess the condition of the property and identify any maintenance issues
• On request from the tenant for emergency or responsive maintenance
• Planned maintenance visits. These will be carried out from time to time, as necessary.
• On request from the tenant to discuss tenancy issues
• Fire risk inspections. Fire risk factors, such as hoarding, blocking of exits and disabling of smoke alarms will be taken into account when deciding whether to inspect a property
• Asset Dwelling Service. This will be conducted every 12 months.

Tenants may be visited more regularly where an intensive tenancy management approach is required for tenants who are experiencing difficulty in maintaining their tenancy.

Housing NSW will conduct all inspections in accordance with the requirements of the Residential Tenancies Act, 2010, including giving seven days written notice prior to a visit, or two days to undertake necessary repairs. Visits may be made at any time, with the consent of the tenant. For more information, go to What tenants can expect of Housing NSW staff when arranging and conducting client service visits.

If the tenant refuses access to the premises for Housing NSW staff or contractors after the required notice has been given, Housing NSW will apply to the Consumer, Trader and Tenancy Tribunal for an access order. This grants Housing NSW the right to enter the tenant’s property.

Dealing with a breach of the tenancy agreement

Housing NSW will work with tenants to ensure they meet their obligations under their tenancy agreement. However, where a tenant has breached their tenancy agreement, Housing NSW may:

• Negotiate a reasonable repayment arrangement, if the breach relates to non-payment, or late payment of tenancy charges
• Negotiate an arrangement for the tenant to stop breaching their tenancy agreement
• Apply for a Specific Performance Order from the Consumer, Trader and Tenancy Tribunal
• Issue a Notice of Termination
• Apply for an order of Termination and Possession from the Consumer, Trader and Tenancy Tribunal.

The Consumer, Trader and Tenancy Tribunal

The Consumer, Trader and Tenancy Tribunal (CTTT) is an independent decision making body that resolves disputes between landlords and tenants. The CTTT tries to help the parties work out their own solutions to a problem. If this is not possible, the CTTT can resolve the dispute by making orders. These orders are legally binding and must be obeyed.

When Housing NSW has a problem with a tenant that it has been unable to resolve, it may apply to the CTTT for a hearing. If a tenant has a problem with Housing NSW, they may also apply to have the matter heard by the CTTT.

The CTTT will make a decision on the basis of the evidence presented to it. Housing NSW must have sufficient evidence before taking a case to the CTTT.

Specific Performance Orders

A Specific Performance Order from the Consumer, Trader and Tenancy Tribunal orders a tenant to correct a breach of their tenancy agreement.

Specific Performance Orders may be sought under Section 16 of the Residential Tenancies Act 2010, without first issuing a Notice of Termination. For breaches relating to the payment of tenancy charges, Housing NSW will generally apply for an order under this section when one or more of the following applies. The tenant has:

• An arrears history that indicates a pattern of not maintaining arrangements.
• Not provided acceptable reasons for not maintaining an arrangement.
• Refused to enter into a reasonable repayment arrangement.
• Not responded to reasonable attempts by Housing NSW to contact them.
• Not presented or been available to discuss their arrears.

For breaches other than the payment of tenancy charges, Housing NSW will generally apply for an order under this section when one or more of the following applies. The tenant has:

• Not previously breached their agreement.
• Agreed to stop or rectify the breach.

Housing NSW may also apply for a Specific Performance Order after a Notice of Termination has been issued and the tenant has not vacated. Generally, Housing NSW will apply for these orders instead of an order terminating the tenancy when:

• The breach relates to tenancy charges and the tenant has agreed to a reasonable repayment arrangement, or
• The tenant has agreed to stop or rectify the breach, and
• The tenant does not have a chronic history of arrears or other breaches.

Notices of Termination

A Notice of Termination for a breach of the tenancy agreement is issued under Section 87 of the Residential Tenancies Act 2010. A Notice of Termination requires the tenant to vacate the premises on a specific date because they have breached their tenancy agreement.

Housing NSW will issue a Notice of Termination where one or more of the following applies. A tenant has:

• Not responded to reasonable attempts by Housing NSW to contact them.
• Not presented or been available to discuss the breach of their tenancy agreement.
• A history of breaching Specific Performance Orders.
• Refused to enter into, or not maintained, an arrangement to stop or rectify the breach.
• Not complied with an order issued by the Consumer, Trader and Tenancy Tribunal.
• Committed a serious breach of the residential tenancy agreement justifying the issue of a Notice of Termination.

Under Section 88(3) of the Residential Tenancies Act 2010, a Notice of Termination issued to a tenant for non payment of rent must advise the tenant that if the debt is repaid in full or an agreement satisfactory to Housing NSW is made, the tenant will not have to vacate the premises.

Housing NSW will serve Notices of Termination in accordance with Section 223 of the Residential Tenancies Act 2010 which states that the Notice should be:

• Delivered to the tenant personally at their Housing NSW dwelling.
• Delivered to a person over 16 years of age at the tenant’s Housing NSW dwelling.
• Delivered in an envelope addressed to the tenant left in the mailbox at the tenant’s Housing NSW dwelling.
• Sent via facsimile to the tenant’s fax number.

Orders of Termination and Possession

An Order of Termination legally ends the tenancy on a certain date. An Order of Possession sets a date by which the tenant must vacate.

Housing NSW will apply for an Order of Termination and Possession where:

• A Notice of Termination has been issued and the tenant has failed to vacate the property, and
• The tenant has failed to comply with orders issued by Consumer, Trader and Tenancy Tribunal, and
• The tenant has refused to rectify the breach, for example, the tenant has refused to repay their arrears, and
• All other steps to sustain the tenancy have failed, or
• The breach is so serious that termination is warranted without the issue of a Notice of Termination.

If a tenant fails to move out of the property by the date in the possession order, Housing NSW will apply for a Warrant of Possession for the NSW Sheriff’s Office to evict the tenant.

Under Section 89 of the Residential Tenancies Act 2010, an order of termination or warrant of possession no longer applies if a tenant fully repays the debt owed or enters into an arrangement satisfactory to Housing NSW.   Despite this if the tenant has had an ongoing history of rental arrears Housing NSW  may decide to  make an application under Section 89(5) of the Residential Tenancies Act 2010 to the CTTT for an order of termination and an order to proceed with eviction proceedings,.

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Lease reviews

Apart from tenancies with continuous tenancy agreements, all tenancy agreements offered by Housing NSW are for a fixed term. For more information, go to Type and length of leases offered.

Housing NSW will review the tenancy before the fixed term ends to decide:

• If the tenant is still eligible for Housing NSW managed housing, and if so,
• What type and length of lease extension the tenant should be offered, and
• If the current property is appropriate to the needs and size of the household.

The assessment criteria for lease review include a number of factors, including property ownership and income. For more information, go to Assessment criteria for allocating the length of lease. The types of property and income that Housing NSW assesses at lease review are the same as those used to assess social housing eligibility and rent subsidies. For more information, go to Assessable income and assets and Non-assessable income and assets. The income limits at lease review specify the maximum income (before tax) that a household can earn and be eligible for a lease extension.

For more information, go to Lease reviews.

When Housing NSW completes a lease review, it will write to the tenant to advise them of its decision.

When a tenant is eligible for a lease extension

If the tenant is assessed as eligible for a lease extension, Housing NSW will offer a further lease. The length of lease will be based on the household’s needs. The lease extension commences when Housing NSW issues a Section 142 notice advising the tenant that Housing NSW has extended the term of their lease for a specified period. The notice is issued after the current tenancy ends and becomes part of the new tenancy agreement. Tenants will not be required to sign a new tenancy agreement.

When a tenant is not eligible for a lease extension

If the tenant is assessed as ineligible for a lease extension, Housing NSW will not offer an extension to the lease and the tenant must move out of the property when the current lease ends.

Tenants who are not eligible for a lease extension may be eligible for transition assistance to help them make the move from public to private rental or home ownership. For more information, go to Transition assistance.

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Factors that may impact on a lease review decision

In some circumstances Housing NSW may offer a 2 year lease extension to tenants who exceed the income limits at lease review and who demonstrate a severe and continuing need to stay in public housing. For more information, go to Exemptions.

Where an adverse change in household circumstances occurs after lease review, Housing NSW may reconsider the decision not to offer an extension of a lease. For more information, go to Change of circumstances after lease review.

4. Legislation and compliance

Housing NSW manages tenancies in accordance with the provisions of the Residential Tenancies Act 2010 and the Housing Act 2001.

5. Further information

Appeals and review of decisions

If a tenant disagrees with a decision Housing NSW has made, they should first discuss their concerns with a Client Service Officer. The next step, if they still believe Housing NSW made the wrong decision, is to ask for a formal review of the decision. For information on how reviews work, the tenant can ask the Client Service Officer for a copy of the fact sheet Reviewing Decisions, or read the Client Service Delivery and Appeals Policy.

Tenants cannot appeal decisions made in relation to maintenance, being a good neighbour, removal of pets and abandoned vehicles, access to the property and breaches of the tenancy agreement. These issues will be managed through the Consumer, Trader and Tenancy Tribunal.

A tenant cannot request a review of a decision in relation to the length of lease offered after Housing NSW has issued a notice under Section 142 of the Residential Tenancies Act.

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