Changing a tenancy policy

1. Background

Homes NSW tenancies may change for a number of reasons, including:

Homes NSW relocates a tenant to another property for tenancy or portfolio management purposes
mutual exchange with another tenant
Transition of tenancy after a Life event affecting the tenancy, when the original tenant dies or leaves the household as a result of being imprisoned or for health reasons.

This policy outlines the eligibility criteria for changing a Homes NSW managed tenancy. Go to Tenancy policy supplement for more information.

2. Scope

This policy applies to all tenancies managed by Homes NSW, including Aboriginal Housing Office (AHO) tenancies.

This policy does not apply to tenant initiated requests to transfer to another property for example due to:

needing a larger or smaller property
needing a property with different characteristics
breakdown of the household or family.

Go to Transfer policy for more information.

3. Policy statement

Homes NSW will change tenancies in accordance with:

the Housing Act 2001
the Residential Tenancies Act 2010
the Residential Tenancies Regulation 2010
the Procedures Approved by the Minister for Reviews under Section 149 of the Residential Tenancies Act 2010
the terms of the residential tenancy agreement
relevant Homes NSW policies.

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

Relocating tenants for management purposes

Homes NSW has the right to ask any tenant to relocate to another suitable property that:

meets their known housing and locational needs, and
allows continued access to services, and
supports a sustainable tenancy.

This includes tenants who:

are seeking a mutual exchange
have been approved for a tenant-initiated transfer
are under-occupying a property
are paying a Vacant Bedroom Charge
have had their rent subsidy cancelled, are no longer eligible for a rent subsidy and are paying, or is required to pay, full market rent
have a household income over the social housing income eligibility limit.

Homes NSW will only require a tenant to relocate where there is a valid tenancy management or portfolio management reason, including where:

Homes NSW has identified serious neighbourhood disputes or ongoing antisocial behaviour affecting one or more properties or an estate
one or more public housing properties, or an estate, will be redeveloped
the property has been sold or is to be sold
Homes NSW is required to return a headlease property following the owner’s issue of a Notice of Termination
the property is under-occupied
tenants are living in a complex that Homes NSW intends to designate as housing for older people
tenants are living in a modified property that is no longer appropriate for their needs
the property has significant damage or maintenance issues, including termite damage or friable asbestos
the property is required for another operational purpose.

If necessary, Homes NSW will enforce its right to relocate a tenant to another suitable location by taking termination action through the NSW Civil and Administrative Tribunal (NCAT).

Relocating tenants living in Aboriginal Housing Office properties

Homes NSW will work with the AHO to help maintain the tenant’s connection to family, community and Country when relocating an AHO tenant because of:

redevelopment or sale of the property
under-occupancy
antisocial behaviour.

Relocating existing tenants when Homes NSW designates a complex as a Seniors Community

When a complex is designated as a Seniors Community, existing tenants aged under 55 years (or under 45 years for Aboriginal and Torres Strait Islander tenants) may relocate to suitable alternative accommodation within the first 6 months.

Large-scale relocations of whole communities managed by Homes NSW

Sometimes, on behalf of the property owner, Homes NSW undertakes large-scale relocations involving entire communities or public housing areas. In these circumstances, Homes NSW may establish a dedicated project team to manage the relocation process.

For large-scale relocation projects, Homes NSW may establish a community reference group or hold community forums to share information and engage with affected residents. Decisions about whether to establish a group or forum will consider factors such as the scale and complexity of the relocation, the suitability of other communication and feedback channels, and the level of community interest.

Relocating tenants living in properties scheduled for redevelopment

A tenant who relocates due to redevelopment can advise Homes NSW they would like to return to the site once the work is complete.

This means the tenant moves out while the redevelopment takes place and then moves back to the site when the work is finished.

Homes NSW will consider requests on a case-by-case basis and will look at the tenant’s housing needs when making a decision.

Areas available for relocation

Relocating tenants can choose the area they would like to move to. Homes NSW will approve their preferred area unless there is a strong policy or operational reason not to.

How will a tenant be relocated?

When Homes NSW relocates a tenant, it will:

tell them about the relocation
interview them to find out their housing and relocation needs
give them an individual relocation statement outlining their relocation entitlements
confirm the information it holds about their housing needs is up to date
offer alternative housing
issue a Notice of intention to issue a notice of termination at the same time as the final offer
issue a Notice of termination and apply for termination of the tenancy at NCAT, where a tenant does not accept the final offer
arrange to have them sign a new tenancy agreement.

Most tenants will receive two reasonable offers of alternative accommodation, however in some circumstances a tenant may only receive one offer.

Go to Tenancy policy supplement for more information.

Homes NSW will:

provide practical support for a relocating public housing tenant and their household, where it is appropriate and necessary to help them relocate
assess each tenant's situation on a case-by-case basis and make a decision based on their individual circumstances
help the tenant establish a tenancy in the new location that is likely to be successful and sustainable
work with the tenant to identify support services to assist them in their new location, make referrals to services with the tenant’s consent and encourage the tenant to follow up these referrals
consider transferring an equivalent level of amenity to the new property, where a tenant has made approved alterations.

Tenants relocated for management purposes may apply for reimbursement for approved alterations if the alteration cannot be removed and the new property does not have comparable alterations or amenities. This does not include swimming pools.

If a Homes NSW tenant is relocating 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 a case-by-case basis.

Number of offers for a tenant relocating for management purposes

Tenants who are being relocated for management purposes will, in most cases, receive up to two offers of housing.

In exceptional circumstances, Homes NSW may decide to make one offer of alternative housing to tenants who are being relocated for management purposes.

If a Homes NSW tenant rejects all reasonable offers of alternative social housing, Homes NSW will carry out a final check of the offer(s) made to the tenant. The reason is to determine whether the offer(s) were aligned with all known housing needs and the tenant's individual relocation statement.

If a Homes NSW tenant is under-occupying their property and rejects a first reasonable offer of alternative social housing, Homes NSW will carry out a final check to confirm that the offer was aligned with the tenant’s known housing needs.

Homes NSW has the legal right to terminate a tenancy on the grounds that it has made an offer of alternative social housing under Section 148 of the Residential Tenancies Act 2010.

Processes that Homes NSW must follow when relying on Section 148 to terminate a tenancy, including the review processes, are listed in Sections 149 and 150 of the Residential Tenancies Act 2010 and in the Procedures approved by the Minister for reviews under Section 149 of the Residential Tenancies Act 2010.

Final offers of alternative social housing will be made under Section 149 of the Residential Tenancies Act 2010 and a Notice of intention to issue a notice of termination will be given to the tenant at the same time the final offer is made.

Go to Tenancy policy supplement and Matching and offering a property to a client policy for more information.

Reviewing an approved relocation for management purposes

Homes NSW will review relocations for management purposes every 6 months, or sooner if new information indicates the tenant’s housing needs or circumstances have changed.

Following a review, Homes NSW may change the priority of a relocation for management purposes to take account of any differences in the level of urgency of the tenant's circumstances.

Homes NSW will assess the degree of urgency when a tenant must be urgently relocated for management purposes.

Type and length of lease

If a tenant is relocated to a community housing property and approved to return to public housing as part of the same relocation process, Homes NSW will offer the same lease type as their previous public housing tenancy.

If a tenant is relocated to a property managed by a different housing provider, the lease type and term will be offered in line with that provider’s policy.

Homes NSW offers leases of different types and lengths after a change of tenancy, depending on a tenant's circumstances. Go to Tenancy policy supplement for more information.

Paying rent after relocation

Homes NSW tenants who relocate to another property managed by Homes NSW will:

have their eligibility for a rental subsidy reassessed, for tenants who receive a rental subsidy, or
pay the market rent for the new property, where the tenant does not receive a rental subsidy.

If the tenant pays market rent at the current property, is not eligible for a rental subsidy and will pay more at the new property, Homes NSW will consider limiting the additional rent the tenant is expected to pay.

Where Homes NSW relocates a tenant to an alternative property managed by a different housing provider, the tenant's rent will be assessed in accordance with the policy of the individual provider.

All community housing providers calculate rent in accordance with the Community housing rent policy.

Paying a rental bond after relocation

Homes NSW tenants who relocate to another Homes NSW managed property may be required to pay a bond in accordance with the Rental bonds policy.

A Homes NSW rental bond will not be transferred from an existing tenancy to a new tenancy. Homes NSW will claim the bond for any outstanding charges, and any remaining bond credit on the former tenancy after the claim process has been finalised will be refunded by NSW Fair Trading to the tenant. A new bond will then be applied to the new tenancy, if applicable.

Tenant initiated transfer on the grounds of under-occupancy

Under-occupying a property is when a tenant has more bedrooms than they are entitled to for their household size. Tenants can apply for a transfer to a smaller property. Go to Transfer policy for more information.

When a tenant requests a transfer due to under-occupancy and rejects their final reasonable offer of alternative social housing, a Vacant Bedroom Charge will be applied to their tenancy.

A tenant approved for a transfer on under-occupancy grounds or who is paying a Vacant Bedroom Charge may be relocated if a property is required for tenancy or portfolio management purposes.

What is a mutual exchange? (Homes NSW managed properties only)

A mutual exchange allows two public housing tenants to swap homes. It helps tenants in properties managed by Homes NSW to move to a different location or find a home that better suits their needs.

Mutual exchanges are only permitted between tenancies managed by Homes NSW, including those managed for the AHO.

Headleasing is a time limited response to specific and assessed housing need, which must be maintained and revalidated, and may not align with the circumstances of another tenant. Mutual exchange involving headleased properties will generally be declined.

Finding a property to exchange

Homes NSW provides a service to notify public housing tenants of potential matches between tenants who wish to mutually exchange, where:

an exchange may involve more than two tenants
the timeframe cannot be estimated
there is no charge
there is no obligation to accept an exchange
an exchange can be rejected without penalty.

If a match is found, Homes NSW gives each tenant the other’s contact details. Tenants can then choose to make their own arrangements to view the property.

Tenants can also advertise or arrange this themselves and apply to Homes NSW for approval to exchange.

Tenants cannot offer financial or other incentives to encourage other tenants to exchange. If Homes NSW becomes aware that incentives of any form are involved, it will not approve the exchange.

Assessing a request for a mutual exchange

Homes NSW must approve an exchange in writing before tenants move. Moving without approval is a breach of the tenancy agreement.

Go to Tenancy policy supplement for more information.

What happens when Homes 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 Homes NSW has approved a tenant for a transfer, Homes NSW will remove them from the NSW Housing Register when the mutual exchange is finalised.

Tenants who exchange into a head leased or Public Equity Partnership (PEP) property cannot buy the property or carry out any modifications or additions.

Tenants approved for a mutual exchange may be required to pay a bond in the new tenancy if tenant damage charges of $500 or more in a single instance is substantiated and applied to the vacating tenancy.

Transition of tenancy

Transition of tenancy is only applicable for Homes NSW managed properties (including AHO properties managed by Homes NSW).

Transition of tenancy is when an authorised household member or other eligible person connected to the household applies to take over the tenancy after one of the following Life Events Affecting a Tenancy has occurred. These events are strictly limited to where a head tenant has:

died, or
left the property as a result of being imprisoned, or
left the property due to health reasons, for example has entered a nursing home or an institutionalised care facility.

Clients are not eligible to apply for Transition of tenancy if:

a Life Event Affecting a Tenancy has not occurred, and/or
they are not an authorised member of the household.

Timeframe to apply

Household members (clients) must inform Homes NSW of the Life Event Affecting a Tenancy as soon as possible. If they wish to apply for a 6 month provisional lease and Transition of tenancy, an authorised household member must complete and lodge Parts A and B of the Transition of tenancy application within 10 weeks of the Life Event Affecting a Tenancy occurring.

Household members are not eligible to request for Transition of tenancy outside of this timeframe. Homes NSW may consider extending these timeframes, if the client demonstrates extenuating circumstances. For example, difficulty ending the previous tenancy despite having made genuine efforts or a medical condition or disability which made it difficult to lodge an application within the timeframe.

If deemed eligible, clients will be issued a 6 month provisional lease while they are being assessed for Transition of tenancy. If deemed eligible for Transition of tenancy, the applicant will be offered a continuous lease.

Where a client is approved for a 6 month provisional lease or Transition of tenancy, a bond may be required if the client applying for a Transition of tenancy had tenant damage charges of $500 or more in any former tenancy within the past 6 years.

If deemed ineligible for a 6 month provisional lease or Transition of tenancy, all household members must leave the property. Homes NSW will seek termination of the tenancy and an order for possession of the property under the Residential Tenancies Act 2010.

Number of applications per household

Homes NSW will only approve one Transition of tenancy request per household. Homes NSW will consider each client's eligibility to determine who is approved for a 6 month provisional lease and Transition of tenancy.

In general, a spouse or de facto partner of the tenant who is 55 years of age or older, or a formal or informal carer of children or young persons will be granted a 6 month provisional lease and Transition of tenancy ahead of other household members.

Situations where Transition of tenancy, including a 6 month provisional lease, does not apply

Transition of tenancy is not available in the following situations:

If the tenant leaves due to domestic abuse, a breakdown in the household relationship; or an application is submitted to NCAT under Section 79 of the Residential Tenancies Act 2010 (e.g., following an Apprehended Violence Order). In these cases, Homes NSW will assess the other household member's housing needs under the Family breakdown/separation section of the Transfer policy.
If a tenant ends their tenancy by choice, Homes NSW expects all household members to leave the property. Household members may apply for housing assistance through Housing Pathways.
Between different housing providers. For example, a public housing tenant cannot be granted Transition of tenancy for a community housing tenancy.
If a tenant leaves a joint tenancy, Homes NSW will consider the housing needs of the tenant who left under the Transfer policy.
If a tenant is being re-signed to a new tenancy after their tenancy has been terminated by NCAT
People assessed as ineligible for social housing as high risk registered persons.

Situations where Transition of tenancy will not be approved

Tenancies managed by Homes NSW are exempt from the Recognition of certain persons as tenants provisions under Section 77 of the Residential Tenancies Act 2010.

Homes NSW will not approve a 6 month provisional lease or Transition of tenancy if:

the tenancy has not been relinquished by the tenant or the tenant’s legal representative
the tenancy has not been approved to be taken over upon receipt of a death certificate, where a tenant has died without a will and the estate is not being managed by the NSW Trustee and Guardian
the tenancy has not been formally ended under the Residential Tenancies Act 2010 within a reasonable timeframe, usually 6 weeks
while an occupant of any Homes NSW managed property, including an AHO property, the client committed acts of violence, for example, physical attacks or serious verbal threats towards neighbours or Homes NSW staff and/or associates
if, while an occupant of any Homes NSW managed property, including an AHO property, the client was involved in illegal activities in that property
the client has been convicted of arson or deliberate damage to any Homes NSW managed property, including an AHO property
the client is an unsatisfactory or ineligible former tenant.

In these cases, Homes NSW will use its rights under the Residential Tenancies Act 2010 to seek termination of the tenancy and an order for possession of the property.

Common eligibility criteria for Transition of tenancy

All clients requesting Transition of tenancy must meet the following eligibility criteria:

are an Australian citizen or permanent resident, and
agree in writing to relocate if the current property does not match their assessed housing requirements, and
except for formal and informal carer of children or young persons living in the property, be an approved additional occupant of the household or included on applications for rent subsidies, and
have had a satisfactory occupation within the tenancy, or otherwise satisfy Homes NSW that they will be able to sustain a tenancy, and
are eligible to remain in social housing.

The information in this section applies to the majority of Transition of tenancy applicants. Transition of tenancy consists of two parts, A and B.

Part A: Provisional lease – all clients

Homes NSW will offer a 6 month provisional lease to eligible authorised household members that request Transition of tenancy who:

were part of the household prior to the date of the Life Event Affecting a Tenancy,
make the request within the required timeframe provided they meet the criteria for provisional leases set out in the Types and Length of Lease policy.

People who are not authorised additional occupants will be required to move out of the property but may apply for other housing assistance through Housing Pathways.

Part B: Transition of tenancy

Homes NSW will consider the information in Part B of the Transition of tenancy application and determine if the household is eligible for Transition of tenancy. Homes NSW will first assess if the client meets the common eligibility criteria for Transition of tenancy set out above.

Homes NSW will either:

approve Transition of tenancy and grant a continuous lease when the provisional lease ends, or
decline Transition of tenancy. When this occurs, all household members must leave the property. Homes NSW will seek termination of the tenancy and an order for possession of the property under the Residential Tenancies Act 2010.

Transition of tenancy for Aboriginal and/or Torres Strait Islander clients

The information in this section applies to:

Aboriginal and/or Torres Strait Islander clients residing in public housing who are eligible for Aboriginal housing, products and services
clients residing in an AHO property.

Homes NSW will consider information in Part B of the Transition of tenancy application and determine if the household is eligible to continue living in an AHO property managed by Homes NSW.

Homes NSW will grant Transition of tenancy if:

the client meets the common eligibility criteria set out above, and
they are eligible for Aboriginal housing, products and services

Go to Social Housing Eligibility and Allocations policy supplement for more information.

Homes NSW and the AHO may consider applications for a 6 month provisional lease and Transition of tenancy on a case-by-case basis for:

Aboriginal and/or Torres Strait Islander clients not part of the household

Go to the Tenancy policy supplement for more information.

Before declining an application for Transition of tenancy for an Aboriginal and/or Torres Strait Islander person in a Homes NSW property, Homes NSW may seek advice from the AHO.

Where Homes NSW recommends declining Transition of tenancy for an Aboriginal client in an AHO property, the decision must be referred to the AHO for review prior to finalisation.

Transition of tenancy for young people

If the client is a young person aged 16 or 17 years, they may be granted Transition of tenancy if they demonstrate they are able to care for themselves and can meet the terms of the tenancy agreement.

Go to Eligibility for Social Housing policy for more information.

Accounts of the previous tenant

Homes NSW cannot pass on the debts of the former tenant to the new tenant when there is a change of tenancy and a new tenancy agreement is signed. If a tenant dies, Homes NSW will claim the rental bond (if one exists) for any money they owe, before writing off any remaining debts. If any of their accounts are in credit, Homes NSW will pay the money to their estate. If a tenant leaves the property, Homes NSW will claim the bond (if one exists) for any money they owe, and then treat any remaining debit or credit as a vacated account.

Requirement to move to a different property

As part of the Transition of tenancy request, Homes NSW assesses whether the property meets the client’s housing needs.

If the property does not match the client's housing needs they must relocate to a suitable property, when one becomes available.

If the client does not agree, Homes NSW will enforce its right to relocate the tenant under the Residential Tenancies Act 2010.

Appointed agents

Homes NSW will not approve Transition of tenancy to appointed agents unless they are already authorised household member, or they are the tenant's spouse or de facto partner and the tenant has relinquished the tenancy.

Go to the During a tenancy policy for more information.

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 Homes 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 provision applies to ensure Homes NSW can comply with its legislative obligations as well as its contractual obligations under the residential tenancy agreement.

5. Related documentation

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 Appeals and reviewing decisions fact sheet or read the Appeals policy.