Changing a Tenancy Policy

1. Background

Tenancies may change for a number of reasons, including:

• A tenant transfers to another property managed by Housing NSW or a community housing provider.
• A social housing provider relocates a tenant to another property for management purposes.
• A tenant mutually exchanges properties with another tenant.
• A social housing provider grants succession of the tenancy to another household member.

The intent of this policy is to explain the criteria for changing a tenancy based on each of the reasons above. 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, and
• Social housing tenants who request a transfer under Housing Pathways and choose to be housed by a different housing provider to the one they are currently housed with (a ‘cross provider’ transfer). These tenants must meet a common eligibility standard and the public housing transfer eligibility criteria, as detailed below, will apply.

Where a social housing tenant requests a transfer and chooses only to be housed by their existing social housing provider, the transfer policy of that provider will apply.

Where a client applies for tenancy reinstatement, the provider that previously housed the tenant will be responsible for assessing the application, and, if approved, housing the client (unless the original housing provider negotiates a housing agreement with an alternative provider).

This policy does not apply to tenancies managed by community housing providers where the provider is relocating the tenant for management purposes, the tenant seeks a mutual exchange, or where an applicant applies for succession of tenancy. In these cases the policies of the community housing provider will apply.

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3. Policy statement

Social housing providers will change tenancies in accordance with:

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

Both the tenant and the social housing provider have rights and obligations under the above Acts, the residential tenancy agreement and, where relevant, Housing NSW policies.

The social housing provider with whom the tenant is currently housed is responsible for:

• Assessing a tenant’s application for transfer
• Reviewing a tenant’s application for priority transfer
• Facilitating a tenant’s relocation for management purposes
• Assessing a tenant’s application for mutual exchange
• Assessing a client’s application for succession of tenancy

If a social housing tenant is approved for a change of tenancy, when they are housed, their length of lease and other entitlements will be based on the policies of the provider with whom they are housed.

Transfers

The following information applies to tenants who:

• Apply for a transfer, and
• Are currently living in a property owned or managed by Housing NSW and choose to be housed by any social housing provider, or
• Are currently living in a property owned or managed by a community housing provider and choose to be housed by Housing NSW.

Social housing tenants can apply for a transfer to another property if a change in their circumstances makes their existing property or location no longer suitable. When a tenant applies for a transfer, they must:

• Be able to show that their circumstances have changed and that their current property or location is no longer suitable for their housing needs, and
• Be able to show that moving will resolve or improve their current situation, and
• Provide the required documentation or evidence to support their application.

Social housing providers may approve transfers for the following reasons:

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Generally, for a social housing provider to approve a transfer, a tenant must be eligible for social housing, including demonstrating the ability to sustain a tenancy with or without support, and meet the transfer assessment criteria. However, there may be exceptional circumstances where, on a case-by-case basis, a provider will make a decision to approve an application for transfer from a tenant who does not meet social housing eligibility criteria.

Locational need

Housing NSW has a number of high demand allocation areas. Social housing providers will assess a request to transfer to one of these areas against specific criteria, called a locational needs assessment, if the tenant is applying to transfer to a high demand area. For more information, go to Locational Need.

Tenancy charge debts

A tenant can apply for a transfer even if they owe money on their tenancy accounts, including money owed from a former tenancy. However, a social housing provider will not make an offer of alternative housing until the tenant’s current tenancy accounts are up to date, or, if the tenant owes money from former tenancies, they have completely repaid the debt. Exceptions may apply if the tenant’s household can demonstrate an urgent need for transfer.

Relocating tenants for management purposes

The following information applies to tenants of Housing NSW. Community housing providers will relocate tenants for management purposes according to their own individual policies.

However, under the common access system, social housing providers may relocate tenants to a property managed by a different housing provider. Where this may occur, or where multiple dwellings are involved, for example, a redevelopment site, local agreement between social housing providers is required to facilitate cross provider relocations, or to approve a client to return to a redeveloped site.

When can Housing NSW relocate tenants for management purposes?

As a social housing landlord, Housing NSW has the right to ask any tenant to relocate to another suitable property, identified by Housing NSW, that:

• Meets the tenant’s known housing and locational needs, and
• Allows continued access to services, and
• Supports the creation of a successful and sustainable tenancy in the new location.

Housing NSW will only require a tenant to relocate for valid reasons related to the management of a tenancy or the provider’s property portfolio. For more information, go to Relocations for portfolio management purposes and Relocations for tenancy management purposes.

Relocations will apply to any tenant asked by Housing NSW to relocate for management purposes, including a tenant who:

• Has been approved for a transfer
• Is seeking a mutual exchange
• Has a household income that is over the social housing entry eligibility limit. For more information, go to Income eligibility limits.

If necessary, Housing NSW will enforce its right to relocate a tenant to another suitable location by taking termination action through the Consumer, Trader and Tenancy Tribunal.

Aboriginal Housing Office tenants subject to relocation

Housing NSW, as managing agent for the Aboriginal Housing Office, will consult with the relevant Regional Manager of the Aboriginal Housing Office to ensure that affiliation with family and land is supported for Aboriginal Housing Office tenants being relocated for the following reasons:

• Redevelopment
• Under occupancy
• Serious anti-social behaviour.

Relocation from a Housing NSW complex that is designated as a Senior Communities complex

When Housing NSW designates a complex as a Senior Communities complex, tenants who are 54 years and younger (44 years if Aboriginal or Torres Strait Islander) can relocate to appropriate alternative accommodation within the first six months of the complex being designated as Senior Communities. For more information, go to Relocation of younger tenants from Senior Communities properties.

Large-scale relocations of whole communities managed by Housing NSW

Sometimes Housing NSW will undertake large-scale relocations of whole communities, or public housing areas. In this situation, Housing NSW may appoint a project team to manage the relocation process.

When undertaking a larger scale relocations project, Housing NSW may decide to set up a community reference group or hold community forums to provide information. Housing NSW will make a decision to set up a group or forum after considering relevant factors such as the scale or complexity of the relocation process, the appropriateness of other available communication or feedback options and the level of interest from members of the community affected by the relocation.

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Relocation from a property that is being redeveloped

In a situation where Housing NSW relocates a tenant from a property that will be redeveloped to provide social housing, the tenant can express their interest in returning to live at the site after the redevelopment is complete. This would mean relocating the tenant while the redevelopment project is undertaken and then a second relocation to return them to the site when it is complete.

Housing NSW will consider requests from tenants to return after the property redevelopment is complete on a case-by-case basis. Housing NSW will consider the tenant’s housing needs when making its decision. For more information, go to Eligible to request to return to a property after redevelopment and Approval to return to a property after redevelopment.

What areas can Housing NSW relocate a tenant to?

Relocating tenants are able to nominate the area they would like to move to. Housing NSW will approve this area unless there are compelling policy or operational reasons to decline the tenant’s nomination. For more information, go to Restriction and approval of rehousing location.

How will a tenant be relocated?

When Housing NSW relocates a tenant it will:

• Tell the tenant about the relocation
• Interview the tenant to find out their housing and relocation needs
• Give the tenant an individual relocation statement outlining their relocation entitlements
• Confirm that information about the tenant’s housing needs is up to date
• Offer alternative housing to the tenant. Most tenants will receive two reasonable offers of alternative accommodation; however, in some circumstances a tenant may only receive one offer. For more information, go to Relocation offers
• Make final arrangements for the tenant to sign a new tenancy agreement when they accept an offer of alternative housing
• Issue a Notice of Intent to Issue a Notice of Termination if the tenant rejects all reasonable offers of alternative housing and, where necessary, issue a Notice of Termination and apply for termination of the tenancy at the Consumer, Trader and Tenancy Tribunal.

For more information, go to The relocation process.

Assistance with the relocation process

Housing NSW will provide practical assistance to relocating public housing tenants where it is appropriate and necessary for helping the tenant and their household to relocate.

Housing NSW will assess each tenant’s situation on a case-by-case basis and make a decision based on the individual circumstances of the tenant. Housing NSW’s aim is to help the tenant establish a tenancy in the new location that is likely to be successful and sustainable. Also, where the tenant has brought additional amenity to their current property, Housing NSW will consider transferring this level of amenity to the new property. If a Housing NSW tenant is transferring to a property managed by a community housing provider, any transfer of amenity to the new property will be negotiated with the community housing provider on an individual case-by-case basis. For more information, go to Assistance with the relocation process.

Housing NSW will also work with the tenant to identify any support services that they may require in the new area, make appropriate referrals to those agencies and encourage the tenant to follow up on referrals.

Rejection of reasonable offers

If a Housing NSW tenant rejects all reasonable offers of alternative social housing, Housing NSW will undertake a final check to confirm that the offer(s) made to the tenant took into account all of their known housing needs and were consistent with the entitlements set out in the tenant’s individual relocation statement. For more information on reasonable offers, go to the Matching and Offering a Property to a Client Policy.

Housing NSW has the legal right to terminate a tenancy on the grounds that it has made an offer of alternative social housing. This legal right is set out in Section 148 of the Residential Tenancies Act 2010.

The processes that Housing NSW is legally required to follow when relying on Section 148 to terminate a tenancy, including the review processes, are set out in Sections 149 and 150 of the Residential Tenancies Act 2010.

Section 149 also requires the Minister for Housing to publish procedures for reviews under Section 149 of the Residential Tenancies Act.

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Mutual Exchange

The following criteria only apply to tenancies managed by Housing NSW. It does not apply to tenancies managed by community housing providers. Community housing providers will manage applications for mutual exchange in accordance with their own individual policies.

What is a mutual exchange?

A mutual exchange is where one tenant exchanges properties with another tenant. It provides a way for public housing and Aboriginal Housing Office (AHO) tenants to move to a location they prefer, or to obtain more suitable accommodation.

Mutual exchanges can only occur between tenancies managed by Housing NSW. This means that, provided the eligibility criteria are met, a tenant of Housing NSW or the Aboriginal Housing Office:

• Can mutually exchange with another Housing NSW or Aboriginal Housing Office tenant
• Cannot mutually exchange with a tenant of a community housing provider.

Finding a property to exchange

Housing NSW provides a computer matching service to help public housing and AHO tenants find and contact other public housing and AHO tenants living in homes that are suitable to mutually exchange. An exchange may involve more than two tenants. The time taken to find a match depends on the availability of tenants in the desired location who want to exchange. There is no charge for this service.

When Housing NSW finds a match, it will notify each tenant and send them a letter containing the name, phone number and address of the other tenant. The tenants then make their own arrangements to view each other’s homes. Tenants are under no obligation to accept an exchange and can reject an alternative home without penalty.

Additionally, tenants may also advertise or arrange an exchange themselves (although Housing NSW must approve the exchange before it can take place). Tenants cannot offer financial or other incentives to encourage other tenants to exchange. If Housing NSW becomes aware that incentives of any form are involved, it will not approve the exchange.

Assessing a request for a mutual exchange

If the tenants agree to exchange, they must notify their local Housing NSW office. Housing NSW will advise tenants in writing whether it has approved or declined their application for mutual exchange. For more information, go to Criteria for approving a mutual exchange.

Housing NSW must approve a mutual exchange before the tenants move. If they move before approval is given, they may have to return to their previous dwellings. Moving without approval is a breach of the tenancy agreement.

What happens when Housing NSW approves a mutual exchange?

Tenants must sign a new tenancy agreement for the new home. They sign at the same time, preferably in the same office. Tenants are responsible for arranging keys and for paying their own removal costs. If Housing NSW has approved a tenant for a transfer, Housing NSW will take them off the NSW housing register when the mutual exchange is finalised.

Tenants who exchange into a headleased or Public Equity Partnership property cannot buy the property or carry out any modifications or additions.

Succession of tenancy

The following criteria only apply to tenancies managed by Housing NSW. It does not apply to tenancies managed by community housing providers. Community housing providers will manage applications for succession of tenancy in accordance with their own individual policies.

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What is succession of tenancy?

Succession of tenancy occurs when Housing NSW agrees to transfer a tenant’s right to live in a property owned or managed by Housing NSW, including Aboriginal Housing Office properties, to another household member. In most cases, the other household member must have been living with the tenant when the tenant leaves.

Succession of tenancy enables a household member of an existing tenancy to be recognised as the tenant in a public housing dwelling. Housing NSW tenancies are exempt from the succession of tenancy provisions in Section 75 of the Residential Tenancies Act 2010. Section 75(4) of the Residential Tenancies Act 2010 provides the exemption.

If the tenant leaves due to a breakdown in the household relationship, Housing NSW will consider the other household member’s future housing need under the Family Breakdown section of Transfers.

If a tenant is prohibited from having access to a Housing NSW property under an Apprehended Violence Order and the order does not affect an additional occupant, Housing NSW can consider transferring the tenancy to the additional occupant under Section 79 of the Residential Tenancies Act 2010 provided they are eligible for social housing assistance.

Succession of tenancy does not apply between different housing providers. For example, a public housing tenant cannot succeed to a community housing tenancy.

Eligibility criteria for succession of tenancy

Public housing is a scarce resource in high demand so Housing NSW must ensure that it is made available to those in need.

The eligibility criteria for applicants for succession of tenancy will differ depending on their relationship with the tenant. However, there are also a number of common eligibility criteria, regardless of the type of relationship. For more information, go to Common assessment criteria and Specific assessment criteria.

Applicants should apply for succession as soon as possible and preferably at least four weeks before the tenant leaves. Housing NSW will not consider applications submitted more than ten weeks after the tenant has died or left.

Housing NSW will only approve succession 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. When tenants vacate their tenancy by choice and have the means to provide for the housing of other household members, Housing NSW expects them to do so.

When deciding whether to approve a succession of tenancy, Housing NSW will balance the rights of access to public housing through succession of tenancy against the need to make public housing available to clients on the NSW housing register, particularly those approved for priority housing.

Housing NSW may ask a client approved for succession of tenancy to move to a more suitable property

When Housing NSW approves an applicant for succession of tenancy, it will offer them a tenancy. However, the property the person is living in may not be suitable. For example, it may be too large for the household complement, or it may be modified and required for a client with specific needs. In these circumstances Housing NSW will offer the approved applicant another suitable property in a similar location, if available. Housing NSW will ask the applicant to agree to this in writing before granting final approval for succession of tenancy.

What happens to the accounts of the former tenant when Housing NSW approves succession?

Succession of tenancy creates a new tenancy with a new tenancy agreement. Housing NSW cannot pass on the debts of the former tenant to the new tenant. If a tenant dies, Housing NSW will write off any amounts they owe. If any of their accounts are in credit, Housing NSW will pay the money to their estate. If a tenant leaves the home, Housing NSW will treat any money they owe as a vacated account.

What happens when an applicant is not eligible for succession of tenancy?

If an applicant is not eligible for succession of tenancy, they can apply for public housing. If Housing NSW recognises that the applicant has a priority need, it will assess their eligibility for priority housing. Applicants may also be eligible for assistance to help them start a private rental tenancy.

If the tenant has left the property and Housing NSW decides to regain possession of the property because it has declined succession and the remaining household members have not vacated, Housing NSW will obtain an Order of Possession from the Consumer, Trader and Tenancy Tribunal (CTTT). Any application made to the CTTT will clearly state Housing NSW’s reasons for seeking to terminate the tenancy and obtain vacant possession. In these cases, the principles of natural justice and procedural fairness will guide Housing NSW.

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Managing urgent situations for a tenant being transferred or relocated for management purposes

Following the approval of a priority transfer application or when a tenant is being relocated for management purposes, social housing providers will also undertake an assessment of the urgency of the tenant’s need to move out of their current property or location. This assessment will generally occur in three situations:

1. When considering an initial transfer application
2. If the tenant’s situation becomes worse after having been approved for a transfer, or
3. When a social housing provider must move a tenant being relocated for management purposes as a matter of urgency.

If there is sufficient risk to the tenant or members of their household, a housing provider will give transfer applicants the same priority on the NSW housing register as priority housing applicants.

Reviewing an approved transfer application or relocation for management purposes

To ensure that a transfer application or relocation continues to reflect the tenant’s current housing situation, Housing NSW will coordinate the review of priority transfer applications and relocations for management purposes:

• Every six months, or
• When new information from either the tenant or Housing NSW prompts a review.

Following a review, a provider may change the priority of an approved transfer or relocation for management purposes to take account of any differences in the level of urgency of the tenant’s circumstances. A provider will close a tenant’s transfer application if they no longer meet the eligibility criteria for a transfer.

Where a transfer applicant is transferring within the same social housing provider, the review will be undertaken in accordance with the relevant provider’s transfer policy. However, where a transfer applicant is seeking a cross provider transfer, the review will be undertaken in accordance with the public housing transfer policy.

Number of offers for a tenant being transferred, or relocating for management purposes

Generally, tenants who have been approved for a transfer will receive two offers of alternative accommodation. If a social housing tenant rejects two reasonable offers, their social housing provider will remove their name from the NSW housing register. For more information, see the Matching and Offering a Property to a Client Policy.

Social housing tenants who are being relocated for management purposes will, in most cases, receive two offers of alternative accommodation. In exceptional circumstances, Housing NSW may decide that it will make one offer of alternative housing to its relocating tenants. For more information, see Relocation offers.

Type and Length of Lease

Where a social housing provider relocates or transfers a tenant to an alternative property managed by a different housing provider, the tenant will be offered a type and length of lease in accordance with the individual provider’s policy.

Where Housing NSW relocates a tenant to a property managed by a community housing provider and also approves that tenant to return to public housing as part of the same relocation process, Housing NSW will offer them the same type of lease as their previous public housing lease.

Housing NSW offers leases of different types and lengths, depending on a client’s circumstances. For more information, go to Changing a tenancy – Type and length of lease offered after changing a tenancy.

Paying rent after changing a tenancy

Where a social housing provider relocates or transfers a tenant to an alternative property managed by a different housing provider, the tenant’s rent payable will be assessed in accordance with the individual provider’s policy.

For tenants of Housing NSW who are relocated or transferred to another property managed by Housing NSW:

• If they receive a rent subsidy, Housing NSW will calculate the rent for the new property in the same way as for the current property. This may result in a change to the amount of rent paid if there have been recent changes to the household income or number of people in the household. For more information, see the Charging Rent Policy.
• If they pay the market rent, Housing NSW will ask the tenant to pay the market rent for the new property. In the case of a public or AHO tenant who is relocated for management purposes, where the market rent for the new property is higher than the market rent currently paid by the tenant and they are not eligible for a rent subsidy, Housing NSW will consider limiting the additional rent the tenant is expected to pay.

For tenants of community housing, the community housing provider will calculate the rent in accordance with the Community Housing Rent Policy.

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4. Legislation and compliance

Social housing providers change tenancies in accordance with the provisions of the Residential Tenancies Act 2010 and the Housing Act 2001.

If Housing NSW decides to relocate a tenant for management purposes, it still reserves its right at all times to issue a notice of termination of a residential tenancy agreement if there have been breaches of the residential tenancy agreement. This proviso applies to ensure Housing NSW can comply with its legislative obligations as well as its contractual obligations under the residential tenancy agreement.

5. Related documentation

• Tenancy Policy Supplement
• Procedures Approved by the Minister for Reviews under Section 149 of the Residential Tenancies Act.
• Charging Rent Policy
• Client Service Delivery and Appeals Policy

6. Further information

Appeals and review of decisions

If a client disagrees with a decision a social housing provider has made, they should first discuss their concerns with a staff member from the provider that made the decision. The next step, if they still believe the social housing provider 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 housing provider for a copy of the fact sheet Reviewing Decisions, or read the Client Service Delivery and Appeals Policy. This policy applies to applicants for public, community and Aboriginal housing.

Tenants cannot appeal a decision to decline a transfer to a specific property.

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