Policy
Entitlement
Background
Business Rules
Appealing Decisions or Actions
Policy
Succession of tenancy occurs when we agree to transfer a tenant’s right to live in a Department of Housing property to another household member. In most cases the other household member must have been living with the tenant when the tenant leaves.
The tenant is the person who is named on the Residential Tenancy Agreement, and in whose name the tenancy is held. A joint tenancy is where two or more people are named on the Residential Tenancy Agreement. Joint tenancies will occur when applicants apply together and specifically request a joint tenancy, or when an existing tenant applies to convert an existing tenancy.
Succession of tenancy ensures that if you are a household member with a history of satisfactory occupation, and you demonstrate an ongoing need for assistance, then you will not be made homeless or forced to suffer undue hardship as a result of the tenant leaving the property under particular circumstances.
These circumstances are when the tenant dies or is unable to remain in the property for reasons beyond their control, such as hospitalisation, moving to a nursing home or rehabilitation facility, or if they are sentenced to prison. These are the only times we will consider succession.
If the tenant leaves due to a breakdown in the household relationship, your future housing need will be considered under the Family Breakdown section of the Transfers Policy. See also the policy on Transfers (Rehousing) (ALL0160A).
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Application to Aboriginal Housing Office Tenancies
This policy applies to Aboriginal Housing Office tenancies. Additional Business Rules relevant to succession to Aboriginal Housing Office tenancies are included in the ‘Aboriginal clients – succession to Aboriginal Housing Office tenancies’ section of the Business Rules.
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Intent of Policy
Public housing is a scarce resource in high demand so we must ensure that it is made available to those in need. The succession of tenancy policy is not intended to remove people from their home, particularly if they have a long-term association with the dwelling.
Rights of access to Public Housing through succession of tenancy are balanced against the need to make Public Housing available to clients on the Housing Register (previously known as Waiting List), particularly those approved for Priority Housing. Succession will only be approved in cases where the tenant dies or is unable to remain in the premises for reasons of ill-health, disability or imprisonment. The household member applying for succession will have to demonstrate an ongoing need for assistance and have a history of satisfactory occupation. Tenants who vacate their tenancy by choice and have the means to provide for the housing of other household members are expected to do so.
Each application for succession is considered on merit and with reference to the Business Rules of this policy.
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Entitlement
When a tenant dies or is unable to remain in the premises for reasons of ill-health, disability or imprisonment, another household member may apply to succeed the tenancy.
We will consider all relevant factors when making a decision to approve or reject an application for succession.
The decision we give you about your application for succession will be in writing. If we reject the application we will outline the reasons for the decision.
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Background
Succession of tenancy enables a household member of an existing tenancy to be recognised as the tenant in a public housing dwelling. Department of Housing tenancies are exempt from the succession of tenancy provisions in Section 35 of the Residential Tenancies Act. Section 132 of the Residential Tenancies Act provides this exemption.
The succession of tenancy policy outlines the circumstances when we will permit household members to succeed to a tenancy.
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Business Rules
If you meet the criteria and are approved for succession, then you will be offered a tenancy with the Department of Housing. However, the dwelling where you have been living may not be suitable. For example, it may be too large for your household complement, or it may be modified and required for a client with specific needs. In these circumstances, you will be offered another suitable dwelling and, if available, in a similar location. We will ask you to agree to this in writing before granting final approval for succession.
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When to apply for succession?
You should allow the Department sufficient time to consider your application. If the tenant is aware they will be leaving you should apply for succession as soon as possible and preferably at least four weeks before the tenant leaves. We will not consider applications that are lodged more than ten weeks after the tenant has died or left.
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Who may apply for succession?
The eligibility criteria for applicants for succession will differ depending on their relationship with the tenant. However, the following criteria must be met, regardless of the type of relationship.
If you are applying for succession then, unless otherwise specified in these Business Rules, you must be an approved additional occupant of the household. This applies if you were part of the household at the commencement of the tenancy, then vacated and later returned, or if you joined the tenancy after it commenced and have lived there as an additional household member. See the policy on Additional/Unauthorised Occupants (EST0014A).
If the household is receiving a rental subsidy when you apply for succession, we will check that you are included on existing and previous applications for rental subsidies. If you have not been a declared household member, or included on applications for rental subsidies, then we will consider you to be an unauthorised additional occupant and your application for succession will be declined.
If you are applying for succession you must have had a satisfactory history of occupation within the tenancy for a period of:
- Two years prior to your request for succession, or
- The whole of the tenancy if it is less than two years old.
If you have not had a satisfactory history of occupation, succession may only be approved where the Department is satisfied that you will be able to sustain a tenancy.
You will have a satisfactory occupation if:
- You have not caused nuisance and annoyance
- You have not caused damage to the property or neighbouring properties.
Your application for succession will not be approved if:
- Whilst an occupant of any Department or Aboriginal Housing Office property, you have committed acts of violence, for example, physical attacks or serious verbal threats directed at neighbours or Department staff
- Whilst an occupant of any Department or Aboriginal Housing Office property, you have been involved in illegal activities in that property
- You have been convicted of arson or deliberate damage to any Department or Aboriginal Housing Office property
- You are an unsatisfactory or ineligible former tenant.
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Can sponsored migrants or temporary visa holders apply?
If you are a sponsored migrant and hold a temporary visa, or if you are an asylum seeker holding a Temporary Protection Visa, then you are not eligible for a tenancy in public housing, and your application for succession will be declined. If your sponsorship arrangement breaks down and you are a temporary resident, then you are not eligible to succeed the tenancy.
However, you may be entitled to Emergency Temporary Accommodation and be offered a three-month fixed term tenancy. See the policy Emergency Temporary Accommodation (ALL0070A).
If you are granted a three-month fixed term tenancy, towards the end of the term we will consider any changes to your citizenship circumstances that could make you eligible for further housing assistance.
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Can I apply if the tenant is going to prison?
If you are a member of a household where the tenant has been sentenced or imprisoned for more than three months, then you may apply to succeed the tenancy. Tenants who have been sentenced or imprisoned for longer than three months must relinquish their tenancy if there are no other household members (this does not apply to clients who are serving their sentence through home detention).
If the tenancy is not relinquished and no one applies for succession, then after three months we will commence action to terminate the tenancy.
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Can I apply if the tenant is moving to a nursing home or other form of institutionalised care?
If the tenant moves to institutionalised care (such as a nursing home) for more than six months, then another household member may apply for succession. Otherwise the tenant must relinquish the tenancy.
If neither action is pursued, we will take action to obtain vacant possession of the premises. See the policy on Absence from Dwelling (EST0039A).
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What type and length of lease will I be offered?
If the application for succession of tenancy is approved, the type and length of lease offered to a spouse or a de facto partner depends on the type and length of lease that the previous tenant had before they left the property.
- If the previous tenant had a continuous lease you will also be offered a continuous lease.
- If the previous tenant had a Renewable Tenancy under the Department's Renewable Tenancies Policy you will be offered a continuous lease.
- If the previous tenant had an 18-month interim lease you will be offered the remainder of that lease, unless the succession of tenancy occurs during the lease review period. In this case you will be offered a new 2, 5 or 10 year fixed term lease based on an assessment of your current household circumstances. See Types and Length of Lease policy (EST0208A).
- If the previous tenant was on a 2, 5 or 10 year fixed term lease you will be offered the remainder of that fixed term lease, unless the succession of tenancy occurs during the lease review period. In this case you will be offered a new 2, 5 or 10 year fixed term lease based on an assessment of your current household circumstances. See Types and Length of Lease policy (EST0208A).
- If you have been approved for succession but are a less than satisfactory former tenant or an occupant without a satisfactory history of occupation, then you will be considered for a six month fixed term tenancy initially.
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Other household member(s) including Aboriginal Housing Office applicants who are approved for Succession of Tenancy will be offered a 2, 5 or 10 year fixed term lease, in line with the Types and Length of Lease policy (EST0208A) regardless of the type and length of lease offered to the previous tenant.
If you are a former tenant with unpaid debts and you apply for succession, you will be required to repay any debts from previous tenancies. A payment plan will be negotiated before succession is approved. Outstanding debts from former tenancies form part of a new tenancy agreement and failure to repay or continue repaying former debts until the debt is cleared can jeopardise a new tenancy. See the policy on Housing Former Tenants (ALL0031A).
If you have been approved for succession but are a less than satisfactory former tenant, or an occupant without a satisfactory history of occupation, then you will be considered for a six month fixed term tenancy initially. This also applies to people seeking succession to Aboriginal Housing Office tenancies. Unsatisfactory former tenants are not usually eligible to be housed as additional occupants. See the policy on Additional or Unauthorised Occupants (EST0014A).
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Succession to a spouse
If you are the tenant’s spouse (ie. married), you will be granted succession if:
- You are a citizen of Australia or permanent resident, and
- You demonstrate you are married to the tenant, and
- You are an approved member of the household, and
- You are currently residing in the dwelling, and
- You are declared on the rental subsidy, if the household is in receipt of a subsidy.
You are entitled to succession even if you have temporarily moved away for reasons related to the illness of the tenant, care of an ill person or your own ill-health. You must provide evidence that your temporary absence was due to these reasons. You are not required to meet the public housing income eligibility limits or asset eligibility criteria for public housing.
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Succession to a de facto partner
If we accept that you are the de facto partner of the tenant, you will have the same right to succession as a spouse – see Succession to a spouse.
Where an applicant for succession claims to be the de facto partner of the tenant, we must verify that the relationship is de facto. We base our verification on the NSW Property (Relationships) Act 1984. This Act gives important rights to de facto partners when settling private property and other assets.
The Act defines a de facto relationship as a relationship between two adult persons, of the same or opposite sex, who:
- Live together as a couple; and
- Are not married to one another or related by family.
The Act gives additional property rights to adults who have been in a de facto relationship for two or more years.
To verify your relationship we consider such information as Centrelink income statements, our record of when you joined the tenancy and the local team’s knowledge of the history of your tenancy.
When it is difficult to determine the nature of your relationship, an appropriate officer may ask to interview you. If you have provided the information we have asked for and there has been a reasonable amount of inquiry, yet staff are still in doubt as to the defacto status of the relationship, the benefit of the decision will go to the client.
If we do not accept that a de facto relationship exists, then you may apply for succession on the basis of being a household member other than the spouse or de facto partner.
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Succession to household members other than the spouse or de facto partner
If you are a household member other than the spouse or de facto partner you are eligible for succession if:
- You meet the eligibility criteria for public housing. See the policy Eligibility for Public Housing (ALL0030A), and
- You are currently residing in the dwelling as an approved member of the household, and
- You have been a member of the household for a continuous period for at least the previous two years, or three quarters of the tenancy if the tenancy is less than two years old at the time of the tenant’s departure, and
- You appear on the rental subsidy if the tenant is in receipt of a rental subsidy, and
- You are not an unsatisfactory or ineligible former tenant see the policy on Housing Former Tenants (ALL0031A).
While two years is the standard minimum length of time that you must have belonged to the household (or three-quarters of a shorter term tenancy), there may be occasions when we will accept a shorter period of time.
You and one or more other adult household members can apply to succeed the tenancy jointly. See the policy on Sign-ups (EST0017C).
If you are a minor aged 16 or 17 years, you may be granted succession if you demonstrate that you are able to care for yourself and can meet the terms of the Tenancy Agreement. See the policy on Minors and Housing Assistance (EST0017A).
If you are a carer, succession will not be granted if you have maintained your own accommodation, separate to that of the tenant’s dwelling, regardless of whether it is in the public or private rental market.
If you have relinquished a Department tenancy to act as a carer to another person, then succession to that tenancy may be granted even if you have not been part of that household for the past two years.
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Succession to the legal guardian or custodian of minors
We will grant succession if you agree in writing to live in the dwelling and continue to provide care for the children.
If you do not meet the eligibility criteria for public housing we may grant succession if:
- You have been formally granted custody/guardianship of the children; and
- It is in the best interests of the children; and
- You can demonstrate that no alternative accommodation is available that is suitable for the care of the children.
In such circumstances it may be necessary for us to liaise with the New South Wales Department of Community Services to ensure that this is the best option for the children involved.
If you have applied for custody of children, we may grant you succession on condition that you agree in writing that, if your custody application is not successful, you will relinquish the tenancy.
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Vacating Without Notice/Abandonment
If a tenant vacates without notice, then any remaining household members will be assessed according to the family breakdown guidelines of the Transfers Policy. See Transfers (previously Rehousing) policy (ALL0160A).
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Applicants for succession who are recently released from prison
If you were recently released from prison or institutionalised care, and you used to live in the tenancy, you must meet the eligibility criteria for succession indicated previously in this policy. Your application will be assessed on its merits, but will not be declined on the basis that you were not living with the tenant while in prison or institutionalised care. Factors we will consider are the likelihood of you residing in the household if you were not in prison or institutionalised care, your tenancy history and your ability to otherwise meet your housing need.
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Aboriginal Welfare Board dwellings
If the tenant has been living in an Aboriginal Welfare Board dwelling, succession may be granted to you as a descendant of the original occupants even if you have not been living in the dwelling. If you are applying for succession, you must meet all other eligibility requirements for public housing.
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Aboriginal clients – succession to a Department of Housing tenancy
We may grant succession to you if you are an Aboriginal client who was not a member of the tenant’s household at the end of their tenancy. We will consider this if you are the tenant’s child or the tenant was active in your upbringing, you have grown up in the dwelling and you have a long-term association with the dwelling and the area. If you are applying for succession on this basis, you must still meet all other eligibility requirements for public housing.
Where we propose to decline your application for succession to a Department of Housing tenancy, we may ask the Aboriginal Housing Office to comment on this proposal. This is consistent with our aim to make culturally appropriate decisions concerning Aboriginal people.
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Aboriginal clients – succession to an Aboriginal Housing Office tenancy
We may grant succession to you if you are an Aboriginal client who was not a member of the tenant’s household at the end of their tenancy. We will consider this if you are the tenant’s child or the tenant was active in your upbringing, you have grown up in the dwelling and you have a long-term association with the dwelling and the area. If you are applying for succession on this basis, you must still meet all other Aboriginal Housing Office eligibility requirements.
Where we recommend that succession of an Aboriginal client to an Aboriginal Housing Office tenancy be declined, we must refer this decision to the Chief Executive Officer of the Aboriginal Housing Office for review before it is finalised.
All requests for succession to an Aboriginal Housing Office tenancy from a non-Aboriginal client must be referred to the Chief Executive Officer of the Aboriginal Housing Office.
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Succession to unauthorised additional occupants
Succession will not be granted to you if you:
- Are an unauthorised additional occupant; or
- Are not listed on the rental subsidy and the tenant is in receipt of a rental subsidy.
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Succession to Appointed Agents
Tenants who intend being absent from their home must appoint an agent to care for the property while they are away. See the policy on Absence from Dwelling (EST0039A).
Succession will not be granted to appointed agents unless they are already another household member, or they are the tenant’s spouse or de facto partner.
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Dealing with the tenant’s accounts
Succession of tenancy creates a new tenancy with a new Tenancy Agreement. The debts of the former tenant cannot be passed onto you as the new tenant.
If a tenant dies, any amounts they owe will be written off. If any of their accounts are in credit, the money will be paid to their estate.
If a tenant leaves the home, any amounts owing are treated as a vacated account. See the policy on Vacated Accounts (REN0026A).
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Unsuccessful applications for succession of tenancy
If you are not eligible for succession to the tenancy you can apply for public housing. If we recognise you may have a priority need, then we will offer to assess your eligibility for priority housing. See the policy on Priority Housing (ALL0040A).
You may be eligible for assistance with establishment costs to help you start a private rental tenancy, such as payment of the bond. See the policy on Rentstart (RES0010A).
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Consumer, Trader and Tenancy Tribunal
If the tenant has left the property and we decide to regain possession of the dwelling because succession is declined and the remaining household members have not vacated , we will obtain an order for possession from the Consumer, Trader and Tenancy Tribunal (CTTT). Any application we make to the CTTT will clearly state our reasons for seeking to terminate the tenancy and obtain vacant possession. The principles of natural justice and procedural fairness will guide our actions in these cases. See the policy on Consumer Trader and Tenancy Tribunal (REN0020A).
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Appealing Decisions or Actions
If a client disagrees with a decision the Department has made, they should first discuss their concerns with a Client Service Officer. The next step if they still believe we made the wrong decision is to ask for a formal review of the decision. For information on how reviews work, the client can ask the Client Service Officer for a copy of the fact sheet ‘Reviewing Decisions’, or go to our web site www.housing.nsw.gov.au to read the Appeals and Review of Decisions (EST0015A).
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