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Contents (2010 - 42)
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Residential Tenancies Act 2010 No 42
Current version for 7 July 2017 to date (accessed 21 August 2017 at 16:40)
Part 7 Division 5
Division 5 Termination of social housing tenancy agreements
Subdivision 1 Eligibility ground
143   Termination notice may be given on ground that tenant not eligible for social housing
A landlord under a social housing tenancy agreement may give a termination notice to the tenant on the ground that the landlord has determined, as the result of an assessment carried out under this Subdivision, that the tenant is not eligible to reside in the class of social housing premises to which the agreement applies (the eligibility ground).
144   Eligibility assessments of social housing tenants
(1)  In carrying out an assessment of the eligibility of a tenant under a social housing tenancy agreement to reside in the class of social housing premises concerned, the landlord is to apply the criteria approved by the appropriate Minister for the purposes of this section.
(2)  Any such criteria may differ from the criteria used to assess a person’s eligibility to commence residing in that class of social housing premises.
(3)  The criteria used for the purposes of an assessment must not relate to whether or not the tenant has complied with any term of the agreement.
(4)  The landlord may request the tenant to provide any information that is reasonably required to enable the landlord to determine whether the tenant meets the criteria for the purposes of an assessment under this section.
(5)  If the tenant refuses to provide any such information to the landlord, the landlord may determine, without further inquiry, that the tenant is not eligible to reside in the class of social housing premises concerned.
(6)  In the case of a fixed term agreement, an assessment may not be carried out earlier than 6 months before the end of the fixed term.
(7)  The criteria referred to in this section are to be made publicly available.
(8)  A copy of the criteria is to be provided, on request, to any tenant under a social housing tenancy agreement free of charge and to other persons either free of charge or on payment of reasonable copying charges.
145   Review of decision to give notice on ground that tenant not eligible for social housing
(1) Notice to be given before termination notice Before giving a termination notice to a tenant under a social housing tenancy agreement on the eligibility ground, the landlord is to advise the tenant of the decision to do so by notice in writing.
(2) Right to review A notice given under this section must:
(a)  contain particulars of the reasons why the tenant is no longer considered eligible to reside in the social housing premises, and
(b)  state that the tenant may apply to the landlord for a review of the decision within 30 days after the notice is given and give particulars of how such an application may be made, and
(c)  state that the tenant is entitled to make representations to the landlord in writing, or (if the tenant wishes) orally, as to why the agreement should not be terminated.
(3)  The tenant may, in accordance with the notice:
(a)  apply to the landlord for a review of the decision, and
(b)  make representations in writing, or (if the tenant wishes) orally, to the landlord as to why the agreement should not be terminated.
(4)  If the tenant applies to the landlord for a review under this section, the landlord is to review the decision, in accordance with any procedures approved by the appropriate Minister for the purposes of this section, and consider any representations made by the tenant.
(5) Decision of landlord following review After the review is carried out, the landlord may:
(a)  give a termination notice on the eligibility ground, or
(b)  advise the tenant, by notice in writing, that the landlord has decided not to give the termination notice.
(6) Procedural fairness taken to have been observed If the landlord complies with this section, the landlord is taken to have complied with any rules of procedural fairness required to be observed by the landlord before giving a termination notice to the tenant on the eligibility ground.
146   Time periods to be observed in giving termination notice on ground that tenant not eligible for social housing
(1)  A termination notice of a social housing tenancy agreement is not to be given by a landlord to a tenant on the eligibility ground before the later of the following:
(a)  the end of the 30-day period within which the tenant may apply for a review under this Subdivision of the decision to give the termination notice,
(b)  the end of any such review carried out in respect of that decision.
(2)  The termination notice must specify a termination date:
(a)  in the case of a fixed term agreement—that is on or after the end of the term of the fixed term and not earlier than 60 days after the day on which the notice is given, or
(b)  in the case of a periodic agreement—that is not earlier than 60 days after the day on which the notice is given.
147   Termination by Tribunal on eligibility ground
(1)  The Tribunal must, on application by the landlord under a social housing tenancy agreement, terminate the agreement on the eligibility ground if it is satisfied that:
(a)  any notice required to be given, or any review required to be carried out, was given or carried out in accordance with this Subdivision before giving the termination notice on the eligibility ground, and
(b)  a termination notice has been given in accordance with this Subdivision, and
(c)  the landlord has determined, as a result of an assessment under this Subdivision, that the tenant is not eligible to reside in the class of social housing premises to which the agreement applies.
(2)  In deciding whether or not to make an order, the Tribunal is not to review the eligibility of the tenant to reside in the class of social housing premises to which the agreement applies.
Subdivision 2 Alternative premises ground
148   Termination notice may be given on ground that tenant offered alternative social housing premises
A landlord under a social housing tenancy agreement may give a termination notice to the tenant on the ground that the landlord has offered to enter into a new social housing tenancy agreement with the tenant in respect of alternative premises to the premises the subject of the existing social housing tenancy agreement (the alternative premises ground) and the tenant has failed to accept, or has rejected, the offer.
149   Review of decision to give termination notice on ground that tenant offered alternative social housing premises
(1) Notice to be given before termination notice Before giving a termination notice to the tenant on the alternative premises ground, the landlord is to advise the tenant of the decision to do so by notice in writing.
(2)  The landlord may make the offer to enter into a new social housing tenancy agreement and give notice of the decision at the same time.
(3) Right to review A notice given under this section must:
(a)  contain particulars of the reasons why the landlord wishes the tenant to move to alternative premises, and
(b)  state that the tenant may apply to the landlord for a review of the decision within 14 days after the notice is given and give particulars of how such an application may be made, and
(c)  state that the tenant is entitled to make representations to the landlord in writing, or (if the tenant wishes) orally, as to why the existing agreement should not be terminated.
(4)  The tenant may, in accordance with the notice:
(a)  apply to the landlord for a review of the decision, and
(b)  make representations in writing, or (if the tenant wishes) orally, to the landlord as to why the existing agreement should not be terminated.
(5)  If the tenant applies to the landlord for a review under this section, the landlord is to review the decision, in accordance with any procedures approved by the appropriate Minister for the purposes of this section, and consider any representations made by the tenant.
(6) Decision of landlord following review After the review is carried out, the landlord may:
(a)  give a termination notice on the alternative premises ground, or
(b)  advise the tenant, by notice in writing, that the landlord has decided not to give the termination notice, or
(c)  make a new offer to the tenant to enter into a new social housing tenancy agreement in respect of alternative premises that differ from those the subject of the offer in respect of which the review was carried out.
(7) Right to second review if new offer made If a new offer is made under subsection (6) (c), subsections (1)–(6) apply in relation to giving a termination notice in connection with the new offer. Accordingly, the landlord is required to give a second notice, and the tenant is entitled to a second review, under this section. However, the landlord is not required to give any further notice, and the tenant is not entitled to any further review, under this section in relation to giving a termination notice following a second review.
(8) Procedural fairness taken to have been observed If the landlord complies with this section, the landlord is taken to have complied with any rules of procedural fairness required to be observed by the landlord before giving a termination notice on the alternative premises ground.
150   Time periods to be observed in giving termination notice on ground that tenant offered alternative social housing premises
(1)  A termination notice of a social housing tenancy agreement is not to be given to the tenant on the alternative premises ground before the later of the following:
(a)  the end of the 14-day period within which the tenant may apply for any review of the decision to give the termination notice,
(b)  the end of any such review carried out in respect of that decision.
(2)  However, if the landlord and tenant enter into a new social housing tenancy agreement before the end of that 14-day period or any such review, the termination notice may be given on or after the day on which they enter into the new agreement.
(3)  The termination notice must specify a termination date that is not earlier than 30 days after the day on which the notice is given, unless it specifies an earlier day to which the tenant has consented.
(4)  The termination notice is ineffective unless the alternative premises in connection with which the termination notice is given are available for occupation no later than 7 days before the termination date.
(5)  The termination notice may specify a termination date that is before the end of the fixed term of the social housing tenancy agreement if it is a fixed term agreement.
151   Termination by Tribunal on alternative premises ground
(1)  The Tribunal must, on application by the landlord under a social housing tenancy agreement, terminate the agreement on the alternative premises ground if it is satisfied that:
(a)  any notice required to be given, or any review required to be carried out, was given or carried out in accordance with this Subdivision before giving the termination notice on the alternative premises ground, and
(b)  a termination notice has been given in accordance with this Subdivision, and
(c)  the landlord has offered to enter into a new social housing tenancy agreement with the tenant in respect of alternative premises to the premises the subject of the existing agreement, and
(d)  alternative premises (which may or may not be the same as the alternative premises in connection with which the notice was given) are available for occupation by the tenant.
(2)  In deciding whether or not to make an order, the Tribunal is not to review the landlord’s reasons for making the offer concerned.
152   (Repealed)
Subdivision 3 Behaviour ground
153   Termination notice—acceptable behaviour agreements
(1)  The New South Wales Land and Housing Corporation may give a termination notice of a social housing tenancy agreement to the tenant on either of the following grounds:
(a)  that the tenant has failed or refused to enter into an acceptable behaviour agreement as requested by the Corporation,
(b)  that the tenant has seriously or persistently breached the terms of an acceptable behaviour agreement.
(2)  The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given.
(3)  The termination notice may specify a termination date that is before the end of the fixed term of the social housing tenancy agreement if it is a fixed term agreement.
154   Termination by Tribunal on behaviour ground
The Tribunal may, on application by the New South Wales Land and Housing Corporation, terminate a social housing tenancy agreement if it is satisfied that a termination notice has been given in accordance with this Subdivision and the tenant:
(a)  has failed or refused to enter into an acceptable behaviour agreement as requested by the Corporation, or
(b)  has entered into such an agreement and has failed to satisfy the Tribunal that the tenant has not seriously or persistently breached the terms of that agreement.
Subdivision 4 Breach of agreement
154A   Termination notice for non-payment of amount payable on variation or cancellation of rent rebate
If a tenant owes a landlord under a social housing tenancy agreement a debt arising under section 57 of the Housing Act 2001 or otherwise as a consequence of the variation or cancellation of a rent rebate, sections 87, 88 and 89 apply as if the amount owed were rent and the failure to pay were a breach of the agreement.
154B   Tribunal must have regard to breaches of prior social housing tenancy agreements and to series of breaches
(1)  In determining under section 87 whether to terminate a social housing tenancy agreement on the ground of a breach of the agreement by the tenant, the Tribunal must have regard to:
(a)  any breaches by the tenant of a prior social housing tenancy agreement with the same or a different landlord, and
(b)  whether a series of breaches by the tenant of the social housing tenancy agreement or any prior social housing tenancy agreement with the same or a different landlord justifies termination of the agreement even though, taken alone, the circumstances of each breach would not justify termination of an agreement.
(2)  This section does not limit any other matter that may be considered by the Tribunal under this Act.
154C   Scheme for recording strikes against tenant for breaches
(1)  If a landlord under a social housing tenancy agreement is satisfied that a tenant has breached the agreement but is not satisfied that the circumstances of the breach taken alone justify termination of the agreement, the landlord may issue a strike notice to the tenant and record a strike against the tenant.
(2)  A strike notice:
(a)  must be in writing, and
(b)  must inform the tenant that a strike has been recorded against the tenant, and
(c)  must set out details of the alleged breach of the agreement for which the strike has been recorded, and
(d)  must remind the tenant of any strikes that have been recorded (and not withdrawn) against the tenant within the previous 12 months (including strikes recorded for breach of a prior social housing tenancy agreement with the same or, to the extent that relevant information is known by the landlord, a different landlord), and
(e)  must warn the tenant that, if a third strike is recorded against the tenant within 12 months, a termination notice may be given to the tenant, and
(f)  must inform the tenant that, if the tenant disagrees with the statement of details of the alleged breach of the agreement for which the strike has been recorded, or any aspect of those details, the tenant should make submissions to the landlord setting out the grounds of the disagreement, and
(g)  must specify how the submissions may be made and the date before which they must be made (being a date not less than 21 days after the date of the strike notice), and
(h)  must inform the tenant that, if the tenant does not make any such submissions, the details of the alleged breach of the agreement set out in the strike notice will be taken, in proceedings before the Tribunal, to have been conclusively proved and the tenant will not be able to challenge the accuracy of those details.
(3)  A landlord may withdraw a strike against a tenant at any time.
(4)  If, after considering submissions made by a tenant as set out in a strike notice, the landlord decides not to withdraw the strike, the landlord must give the tenant a notice in writing:
(a)  informing the tenant of that decision and that the tenant may apply for review of the strike notice, and
(b)  specifying how the application may be made and the date before which it must be made (being a date not less than 21 days after the date of the notice).
(5)  If an application for review of a strike notice is made by a tenant, the landlord must refer the matter to a review panel comprised of one or more persons who were not substantially involved in the process of making the decision under review and who are, in the opinion of the landlord, otherwise suitably qualified to deal with the issues raised by the application.
(6)  On a review, the review panel must consider any information submitted by the tenant and may:
(a)  confirm the strike against the tenant, or
(b)  require the strike against the tenant to be withdrawn.
(7)  A landlord is bound by a decision of a review panel requiring a strike against a tenant to be withdrawn.
(8)  A landlord must, on application by a tenant, provide the tenant with information about any strikes recorded (and not withdrawn) against the tenant (unless that information has already been provided to the tenant within the last 3 months and no further strikes have been recorded against the tenant since the information was last provided).
(9)  If 2 strikes have been recorded against the tenant within the previous 12 months and the landlord is satisfied that the tenant has breached the social housing tenancy agreement and that a further strike notice could be issued to the tenant, the landlord may:
(a)  record a strike against the tenant without issuing a further strike notice, and
(b)  give a termination notice under section 87 on the basis that the landlord is satisfied that a series of breaches by the tenant of the agreement or any prior social housing tenancy agreement with the same or a different landlord justifies termination of the agreement with the tenant.
(10)  The termination notice:
(a)  must inform the tenant that a strike has been recorded against the tenant and set out details of the alleged breach of the agreement for which the strike has been recorded, and
(b)  must remind the tenant of the details of any other strikes relied on by the landlord for giving the notice.
154D   Tribunal required to make termination order in certain circumstances
(1)  Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord under a social housing tenancy agreement if:
(a)  an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90 (1) (b) and the injury constitutes grievous bodily harm within the meaning of the Crimes Act 1900, or
(b)  an application for the order is made under section 91 and the Tribunal is satisfied of the matters set out in section 91 (1) (a), or
(c)  an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) to be used for the purposes of:
(i)  storing a firearm for which a licence or permit is not held under the Firearms Act 1996, or
(ii)  a show cause offence within the meaning of the Bail Act 2013,
and the tenant or other person has been charged with an offence relating to those circumstances (whether or not the person is or has been found guilty of the offence).
(2)  Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord if:
(a)  an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90 (1) (and subsection (1) of this section does not apply), or
(b)  an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) to be used:
(i)  as a brothel within the meaning of the Environmental Planning and Assessment Act 1979, or
(ii)  for the purposes of an offence against section 91H (Production, dissemination or possession of child abuse material) of the Crimes Act 1900, or
(iii)  for the purposes of an offence against section 154G (Facilitating organised car or boat rebirthing activities) of the Crimes Act 1900, or
(c)  an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) to be used for any other unlawful purpose and that the use is sufficient to justify the termination.
(3)  However:
(a)  subsection (1) (a) does not apply if the application for the termination order is based on an act of a person who although not a tenant is occupying or jointly occupying the residential premises and not on an act of the tenant, and
(b)  subsections (1) and (2) do not apply if the Tribunal is satisfied that the termination order would be likely to result in undue hardship being suffered by a child, a person in whose favour an apprehended violence order could be made or a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977 who is occupying or jointly occupying the social housing premises, and
(c)  subsection (2) does not apply if the tenant satisfies the Tribunal that there are other exceptional circumstances that justify the order not being made.
(4)  For the purposes of the application of section 91 (1) (b) to social housing premises under this section:
(a)  the reference to residential premises in section 91 (1) (b) is to be taken to be a reference to the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others), and
(b)  if the Tribunal is satisfied that an offence of a kind referred to in subsection (1) (c) or (2) (b) has been committed by a person on the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others), the Tribunal must assume that:
(i)  the premises or property has been used for an unlawful purpose, and
(ii)  the use is sufficient to justify termination of the agreement.
(5)  If the Tribunal does not make a termination order as a consequence of subsection (3), the Tribunal must provide written reasons for the decision.
154E   Exercise of discretion to make termination order
(1)  In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following:
(a)  the effect the tenancy has had on neighbouring residents or other persons,
(b)  the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated,
(c)  the landlord’s responsibility to its other tenants,
(d)  the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord,
(e)  whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal.
(2)  This section does not limit any other matter that may be considered by the Tribunal under this Act.
154F   Neighbourhood impact statement
(1)  If the Tribunal finds that a tenant under a social housing tenancy agreement has breached the agreement and the Tribunal is considering whether to make a termination order, the Tribunal is to give the landlord an opportunity to submit a neighbourhood impact statement and is to have regard to any such statement that is submitted.
(2)  A neighbourhood impact statement:
(a)  is a summary of statements made by neighbouring residents or other persons relevant to the requirement for the Tribunal to have regard to the effect the tenancy has had on them, and
(b)  should not identify the neighbouring residents or other persons.
(3)  Every effort must be made in the proceedings to ensure that information tending to identify a neighbouring resident or other person who has made a statement that is summarised in a neighbourhood impact statement is not disclosed in the proceedings without the consent of that person.
Subdivision 5 Miscellaneous
154G   Order for possession
(1)  If an order is made for termination of a social housing tenancy agreement, the order for possession must not specify a day that the order for possession is to take effect that is later than 28 days after the day on which the termination order is made unless the Tribunal is satisfied that there are exceptional circumstances justifying a later day.
(2)  The order for possession cannot be suspended for a period that would result in it taking effect later than 28 days after the day on which the termination order was made unless the Tribunal is satisfied that there are exceptional circumstances justifying a longer period of suspension.
155   Operation of Division
This Division is in addition to, and does not limit, any other right conferred on a landlord of a social housing tenancy agreement as a landlord under any other provision of this Act.