Housing

During a Tenancy Policy

Policy Last Amended: 24 March 2017

1. Background

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

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

2. Scope

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

3. Policy statement

FACS will manage tenancies in accordance with:

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

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

Paying for rent, water usage and other tenancy charges

Generally, all tenants living in dwellings owned or managed by FACS are required to pay for rent, water usage and other tenancy charges. FACS 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 FACS 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. For more information see the Tenant Repair Costs Policy.

Maintenance

FACS provides planned maintenance services to keep its properties in good condition and to ensure consistent maintenance standards across the state. The Maintenance Line  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 FACS will respond more quickly to maintenance issues, go to Situations in which maintenance will be carried out more quickly. For more information on maintenance, go to the Maintenance and repairs to your home fact sheet.

Alterations to a Home

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

Tenants may make minor alterations to their property without getting FACS’s written permission, provided that no Headleasing or Strata Title restrictions apply.
Minor alterations include:

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

Major alterations include:

  • Building a carport or garage
  • Building a pergola
  • Installing a rainwater tank
  • Installing a swimming pool
  • Installing personal mobility equipment

Tenants may make major alterations to their property by:

  1. Getting FACS’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 FACS with a copy of council’s approval for the alterations
  3. Receiving final written permission from FACS before starting any work.
  4. Notifying FACS upon completion of the work.
  5. Provide any Compliance Certificates to FACS.

FACS will not approve a swimming pool of any capacity or kind to be erected in a common area.

Tenants will be responsible for all costs of associated with installing, maintaining and removing any alterations 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 Disability Modifications Policy.

Being a Good Neighbour

FACS 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 FACS is notified.

FACS 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 FACS to carry out criminal investigations.

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

Where appropriate, FACS 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 FACS is able to substantiate that a complaint is a breach of the tenancy agreement, FACS 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 FACS if a visitor wishes to stay at the property for more than 3 days. FACS 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 Apply a Visitor Sanction Procedure.

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

Use of the Property and the Right to Quiet Enjoyment

FACS tenants have the right to quiet enjoyment of their property. Under Section 50 of the Residential Tenancies Act 2010, FACS must take all reasonable steps to ensure that neighbouring tenants of FACS 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 antisocial behaviour
  • Interfere with the peace, comfort or privacy of neighbours
  • Smoke in enclosed common areas within FACS properties
  • Allow more people than approved by FACS to live in the property.
FACS manages antisocial or illegal behaviour in accordance with the FACS Antisocial Behaviour Management Policy.

Pets

Tenants who live in properties owned by FACS 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 FACS 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 FACS 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 FACS tenant causes a nuisance or annoyance to neighbours, or is not suitable for the property, FACS 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 NSW Civil and Administrative 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 FACS, 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 FACS (as in the case of home-based child care), FACS 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, FACS will automatically withdraw its approval to run the business without providing notice to the tenant.

FACS 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 premises.

Abandoned vehicles and vehicles causing a nuisance

Tenants and FACS 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 FACS property. For more information, go to When a vehicle is treated as abandoned or is causing a nuisance.

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 a vehicle may cause a breach of the tenancy agreement.

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

  • Seek an order from the NSW Civil and Administrative 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

FACS does not allow smoking in enclosed common areas, such as common rooms, shared laundries, stairwells, hallways, entranceways and lift areas within FACS properties. The no smoking ban covers all types of cigarettes, cigars and pipes. By banning smoking in internal common areas, FACS 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

Under the terms of their tenancy agreement a tenant must advise FACS within 28 days of any change of household membership.

If a tenant fails to advise FACS within 28 days of a change of household membership, FACS will take the appropriate action against the tenant under the Residential Tenancies Act 2010 and/or the Rent Subsidy Non-Disclosure Policy.

Authorised additional occupants

If a tenant wants a person to become an authorised additional occupant in their FACS property they will need to submit an Application for an Additional Occupant form for consideration by FACS.

An authorised additional occupant is any person that the tenant has applied for and received approval from FACS for that person to reside in the property.

Where approval is given to an additional occupant, FACS will reassess any rent subsidy based on the new household income effective from the date the additional occupant commenced residence in the property.

For more information on the assessment criteria for approving applications for additional occupants, go to Approving additional occupants.

If an authorised additional occupant wants housing in their own right, they will need to apply for it separately.

Unauthorised additional occupants

If a person is residing in a FACS property and FACS has not given approval for the person to be an authorised additional occupant, FACS will consider that person to be an unauthorised occupant. This includes circumstances where the tenant has made application for an additional occupant and FACS has declined that request.

If a tenant has unauthorised additional occupants living in their property, they will be in breach of the terms of their tenancy agreement and FACS will take the appropriate action under the Residential Tenancies Act 2010 and/or the Rent Subsidy Non-Disclosure Policy.

Visitors

Tenants may have a person stay as a genuine short term visitor at their property. To be regarded as a visitor the person must provide evidence acceptable to FACS that he or she permanently resides at an alternative address. Such evidence might include a current driver’s licence, identity card, current Centrelink statement and/or utility bills in that person’s name.

Any person who visits a FACS property for any length of time and who cannot provide evidence acceptable to FACS that they permanently reside at an alternative address is considered to be an unauthorised additional occupant and FACS will take the appropriate action against the tenant under the Residential Tenancies Act 2010 and/or the Rent Subsidy Non-Disclosure Policy.

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Notification of change of household circumstances

Tenants must advise FACS in writing within 28 days of any change to the income or assets of any household member. FACS will then re-calculate the rent subsidy based on new household income.

Being away from the property

Public housing is a scarce resource and a valuable asset for those in need. FACS 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 FACS provides a property for a client, they are expected to live in it. Tenants must obtain approval from FACS 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, FACS will ask the tenant for the date that they expect to return. For more information, go to Approving an absence from the property.

FACS may approve acceptable absences for up to six months. For more information, go to Acceptable absences. FACS 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 FACS approved, FACS 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 FACS taking action in the NSW Civil and Administrative Tribunal.

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Contact with tenants

FACS Housing makes regular contact with its tenants and uses various methods to contact clients e.g. telephone, letter, face to face and via electronic means such as email and SMS. This enables FACS to maintain its properties and help to sustain tenancies.

FACS 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. FACS will consider contact to be confirmed if there has been contact with any authorised member of the household. Contact may be made in various ways, for example, by phone, by home visit and by carrying out maintenance.

If FACS has any reason to believe that the tenant’s wellbeing is at risk, and the tenant cannot be contacted, FACS will contact the next of kin, if known. Where the next of kin cannot be contacted, or has not had contact with the tenant, neighbours may be contacted immediately. If no one has seen the tenant recently and there are concerns for a tenant’s safety and wellbeing, FACS will contact the Police and request that they immediately enter the property.

If the tenant is known to have been recently contacted or seen by their next of kin or neighbours, FACS may gain access to the property without the tenant’s consent utilising Section 55 of the Residential Tenancies Act 2010 with the assistance of a locksmith. In some situations, FACS will obtain an access order from the NSW Civil and Administrative Tribunal.

FACS 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
  • An Annual Compliance Assessment is carried out in all FACS managed properties. These are required by law under the Residential Tenancies Regulations 2010 and are completed every 12 months. Tenants must provide access to the property when the inspections are requested. If the tenant has not provided access to the property, FACS may gain access without the tenant’s consent and without a Tribunal access order. The Annual Compliance Assessment services smoke alarms and also involves the contractor undertaking a visual inspection of the property including the: internal paint, external paint, floor finishes, kitchen, bathroom, roof, windows and fencing.
  • To conduct a Maintenance Program Work Assessment (MPWA).
  • Some properties may be scheduled for Property Assessment Surveys (PAS), which will assess the condition of the property.
  • On request from the tenant for emergency or responsive maintenance
  • Where FACS is concerned for the health and safety of any household member
  • If emergency repairs are required
  • 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

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

Access to a property

FACS 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 maintenance. Visits may be made at any time, with the consent of the tenant. For more information, go to What tenants can expect of FACS staff when arranging and conducting client service visits.

If the tenant refuses access to the premises for FACS staff or contractors after the required notice has been given, FACS may apply to the NSW Civil and Administrative Tribunal for an access order.

In some situations, including emergencies, urgent repairs, required inspections or where there are concerns for the health and safety of any household member, FACS may access a property without the tenant’s consent and without an access order. Section 55 and 57 of the Residential Tenancies Act 2010 outlines where this can occur.

Dealing with a breach of the tenancy agreement

FACS will work with tenants to ensure they meet their obligations under their tenancy agreement. However, where a tenant has breached their tenancy agreement, FACS 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 NSW Civil and Administrative Tribunal
  • Issue a Warning or Strike Notice for antisocial behaviour
  • Issue a Notice of Termination
  • Apply for an order of Termination and Possession from the NSW Civil and Administrative Tribunal.

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The NSW Civil and Administrative Tribunal

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

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

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

Specific Performance Orders

A Specific Performance Order from the NSW Civil and Administrative Tribunal orders a tenant to correct a breach of their tenancy agreement.

Specific Performance Orders may be sought under Section 187 of the Residential Tenancies Act 2010, without first issuing a Notice of Termination. For breaches relating to the payment of tenancy charges, FACS 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 FACS to contact them.
  • Not presented or been available to discuss their arrears.

For breaches other than the payment of tenancy charges, FACS may 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.

FACS may also apply for a Specific Performance Order after a Notice of Termination has been issued and the tenant has not vacated. Generally, FACS 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.

Strike Notices

Strike Notices are for breaches of the tenancy agreement where substantiated incidents of antisocial behaviour have occurred.  Strike Notices are issued under Section 154C of the Residential Tenancies Act. Where two Strike Notices and a Notice of Termination have been issued within a 12 month period, FACS may apply to NCAT for termination of the tenancy.

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.

FACS may issue a Notice of Termination where one or more of the following applies. A tenant has:

  • Not responded to reasonable attempts by FACS to contact them.
  • Not presented or been available to discuss the breach of their tenancy agreement.
  • A history of breaching Specific Performance Orders.
  • Received two Strike Notices and a further substantiated incident of antisocial behaviour has occurred within 12 months.
  • Refused to enter into, or not maintained, an arrangement to stop or rectify the breach.
  • Not complied with an order issued by the NSW Civil and Administrative 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 FACS is made, the tenant will not have to vacate the premises unless the Tribunal makes a termination order on the basis that the tenant has frequently failed to pay rent on time.

FACS 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 FACS dwelling.
  • Delivered to a person over 16 years of age at the tenant’s FACS dwelling.
  • Delivered in an envelope addressed to the tenant left in the mailbox at the tenant’s FACS 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.

FACS 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 NSW Civil and Administrative 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, FACS 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 FACS.

However, if a tenant has frequently failed to pay rent FACS may decide to request the application for the termination be heard under Section 89(5) of the Residential Tenancies Act 2010. This section allows the NCAT to make an order of termination and issue a warrant of possession that takes effect even if the tenant later repays the debt.

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Lease reviews

Apart from tenancies with continuous tenancy agreements, all tenancy agreements offered by FACS are for a fixed term.

In most situations, FACS will review the tenancy before the fixed term ends to decide:

  • If the tenant is still eligible for FACS 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.

For more information, go to Types and Length of Lease Policy.

4. Legislation and compliance

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

FACS Housing will send electronic communications to clients in accordance with the Spam Act 2003.

5. Related documentation

6. Further information

Appeals and review of decisions

If a tenant disagrees with a decision FACS has made, they should first discuss their concerns with a Client Service Officer. The next step, if they still believe FACS 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 Appeals and 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 NSW Civil and Administrative Tribunal.

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

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www.facs.nsw.gov.au