Tenancy Management Manual Chapter 15: Transfer of Tenancy

Contents

15.1 Definitions

15.2 Purpose and Scope

Aim of the policy (policy objective)

What to do with transfer of tenancy requests

15.3Type A – No existing tenants to remain

15.3.1Type A Eligibility

15.2.2 Criteria for assessing type A requests

Assessing the extent of any negative impact on the applicant and their family

Consideration of how the circumstances of the application impact on the Director’s objectives under this policy

Justifying the decision: Balancing any negative impact on the person and their family with the Director’s policy objective

Importance of the policy considerations

Balancing the potential negative impact on the applicant and their family with the policy objective

Approval and Non-Approval

Discuss other options in cases of non-approval

15.3.2Debt

Debt of departing tenant

Debt of Applicant

15.3.4 Documentation for Type A requests

15.3.5 Type A Example

15.4Type B – Existing tenant and non-tenant

15.4.1Type B Eligibility

15.4.2Criteria for assessing Type B requests

15.1.1Debt

15.4.4 Documentation for Type B requests

15.4.5 Type B Examples

15.5Type C – Reduction in tenants

15.5.1Type C Eligibility

A reduction in the number of parties to a joint tenancy

15.5.2Debt

Debt of departing or remaining tenant

Debt of Applicant

15.5.3Documentation for Type C requests

15.5.4Type C Example

15.6Procedures for Type A, B and C

15.6.1Procedures for A, B and C Type Transfers of Tenancy requests

15.7Type D – VCAT order for creation of tenancy

15.7.1 Type D Eligibility

15.7.2 Sections 232/233 of the RTA (Creation of tenancy)

15.7.3 Protected persons (Family Violence Protection Act 2008 and s.233A & B of the RTA)

No obligation to re-house excluded person

15.7.4 Debt

15.7.5 Documentation for Type D requests

15.8Procedures for Type D Transfer of Tenancy requests

15.8.1Sections 232/233 of the RTA (Creation of tenancy)

15.8.2 Protected persons (Family Violence Protection Act 2008 & s.233A & B of the RTA)

15.1 Definitions

15.2 Purpose and Scope

Aim of the policy (policy objective)

The policy objective for the purposes of transfer of tenancy requests is to provide for equitable and fair allocation of departmental housing under departmental policies and to ensure that housing stock is properly and effectively utilised. This policy seeks to balance the housing needs of existing occupants and residents together with the needs of others on the Public housing waiting list.

Purpose of chapter

The purpose of this chapter is to provide policy and procedural guidance to housing staff on what to do when assessing transfer of tenancy applications.

Policy overview

The Director of Housing (Director) needs to recover stock at the end of an existing tenancy, so it can be allocated to the next eligible applicant on the waiting list. In some instances there will be persons other than, or in addition to, the tenant living in the Director premises when the tenancy ends who wish to continue living there.

As the Director does not want to unreasonably or unnecessarily disrupt the lives of these occupants and their families living in Director’s premises when the tenancy ends, these occupants can apply to have the tenancy transferred into their name. A transfer of tenancy involves the previous tenancy agreement terminating and a new tenancy agreement being signed by all applicants who are determined to be eligible under this policy.

Tenants who have previously signed a tenancy agreement with the Director and who do not wish to relinquish their tenancy rights generally do not need to re-demonstrate their continued eligibility to remain at the property under a transfer of tenancy application. However, residents and occupants must demonstrate their eligibility for the transfer of tenancy in accordance with the factors relevant to the transfer category which applies to them.

Transfer categories

When deciding whether to approve a transfer of tenancy request the Housing Services Manager (HSM) or their delegate must consider the circumstances of each application on a case by case basis to determine which transfer category the application should be assessed under. The four categories of transfer of tenancy requests are as follows:

A. Where no existing tenants of the premises are to be tenants under the transfer request

Sole or Joint tenancy terminated (or to be terminated) and one or more household members (resident or occupier) apply to become tenants of the premises.

B. Where tenant is applying for non-tenant(s) to join their tenancy

This can occur in the following two ways:

Existing tenant(s) to a tenancy agreement (sole or joint) wish to remain in the premises as tenants but apply for other people to become tenants with them; or

This may occur where the number tenants in a joint tenancy decreases, and the remaining tenant(s) would like other people to become tenants with them. Here, at least one party of the original joint tenancy intends to remain as a tenant in the premises.

C. Simple reduction in the number of parties to a joint tenancy

The number of tenants under a joint tenancy is to decrease because one or more of the tenants wish to vacate the premises or has died, but all other tenant(s) wish to remain tenants.

D. Where the Victorian Civil and Administrative Tribunal (VCAT) orders the department to enter into a tenancy agreement with a person or persons

This can occur in two ways:

•by order under the Residential Tenancies Act 1997 (RTA) (s.233) following a creation of tenancy application

•by order under the RTA (s.233B) relating to protected persons.

Whatto do with transfer of tenancy requests

Type A – No existing tenants to remain

Type A Eligibility

Where no existing tenant(s) of the premises are to remain as tenant(s) under the request

•resident(s) / occupier(s) apply to become tenants of the premises (no existing tenants to remain tenants of the premises)

•Sole or Joint tenancy terminated (or to be terminated) and one or more household members (resident or occupier) apply to become tenants of the premises

•this can occur when there is a death of the original tenant (s) or the original tenant(s) wish to vacate.

When determining a resident or occupant’s transfer application the Director considers:

•whether the applicant/s and their family have sufficient and continuous links with the premises (is the property their home?)

•other individual circumstances of the applicant and their household, including their rights under the Charter of Human Rights and Responsibilities Act 2006 (Charter), and whether by not transferring the tenancy, these rights are limited

•if Charter rights are limited, whether the limitation is reasonable and justified

•whether the department can offer an alternative to refusing a transfer of tenancy (i.e. there are less restrictive means than not granting the transfer to ensure the fair and equitable allocation of public housing and the effective utilisation of stock).

15.2.2 Criteria for assessing type A requests

Assessing whether the applicant has sufficient and continuous links with the premises (working out whether the property is their home)

Sufficient and continuous links are determined by the following factors:

•the length of time the applicant and their family have been residing in the premises

•demonstrated links or ties to the community (i.e. children being enrolled in local school, local doctor, close to church or other place of worship, support networks, place of employment).

Note: The Director generally considers that a person who has resided at the premises for a minimum of 12 months has sufficient and continuous links to the property. However, ‘12 months’ is just an indicator and a person who has lived at the premises for a lesser period may also have sufficient and continuous links.

In determining whether the applicant has sufficient and continuous links to the premises, it does not matter if the tenant did not make the Director aware that the applicant was living with the tenant (i.e. via inclusion in the household information on an application for rental rebate). This could affect the amount of rebated rent owed by the departing tenant.

Assessing the extent of any negative impact on the applicant and their family

In order to assess the extent of any negative impact on the applicant and their family which non-approval may cause, the following factors should be considered. Whether non-approval:

•would likely cause severe hardship to the applicant

•may negatively impact on the person and their family’s continuous and sufficient links with the community (their home)

•may negatively impact on the family unit

•may negatively impact on any children residing in the premises

•may negatively impact on the person and their family’s ability to practice their culture, religion or language

•may negatively impact on the person and their family’s health (including mental health).

Note: A decision not to approve an application under Type A will usually have a negative impact on one or more of the factors listed above. This is because the Director will take steps to recover possession of the property following non-approval in accordance with the Undeclared occupants, subletting and squatters operational guidelines this manual. Therefore consideration must be given to the extent of the impact in order to balance any such impact against the Director’s policy objective.

Consideration of how the circumstances of the application impact on the Director’s objectives under this policy

In considering whether or not to grant the transfer application, the Director will balance the extent of any likely potential negative impact on the occupant/resident and their household of not transferring with a range of considerations for achieving the Director’s objectives under this policy, such as:

•whether the applicant/s meets the general ‘wait turn’ eligibility criteria

•whether the applicant is eligible for early housing and is currently on the waiting list and their effective date

•the demand for the housing type in question in the relevant broadband area

•whether the property has unique modifications which the applicant and their family do not require

•whether the applicant/s meets departmental bedroom size requirements etc, (i.e. would granting the application enable the department to effectively utilise its stock or will the property be underutilised?)

•whether the new household could reasonably be expected to comply with the terms of the tenancy agreement i.e. pay the rent, not be involved in antisocial behaviour that would result in a breach notice and or subsequent action under the RTA (compelling evidence is required before a determination can be made that an applicant cannot be reasonably expected to comply)

•the anticipated waiting time for the applicant/s before being offered departmental accommodation.

Note: If the applicant does not satisfy one or more of these policy considerations, this does not mean that their application must be rejected. However, this should be noted and taken into account when justifying a decision: by balancing any negative impact on the applicant and their family with the Director’s policy objective under the transfer policy.

Justifying the decision: Balancing any negative impact on the person and their family with the Director’s policy objective

To reach a decision, the department will determine whether not satisfying one or more of the policy considerations (assessed above) justifies the potential negative impact on the applicant and their family which non-approval may bring about (assessed above).

Importance of the policy considerations

The department is required to think very carefully about how important satisfying the policy considerations are in each case. For example, the demand for the housing type in question may be a very important factor in one case, but not as important in another case. Each case will be different.

Balancing the potential negative impact on the applicant and their family with the policy objective

If the policy considerations are assessed as important in the case, the potential negative impact on the applicant and their family to achieve the policy objective(s) (which non-approval may bring about) must be contemplated. It is useful to think about whether achieving the policy objective outweighs the potential negative impact on the applicant and their family.

Note: The Director generally considers that it is very important that an applicant meets the eligibility criteria for Public Housing. As a general rule, if a person is not eligible for the wait turn list, then they are not in the category of people that the Director seeks to provide assistance to. This will weigh very heavily in the Director’s decision making process about whether or not to grant tenancy rights. However, each case is determined on its merits and there may be circumstances where the Director will grant an application if the negative impact on the person and their family is so severe to justify this.

Note: In enacting the Family Violence Protection Act 2008, the Victorian Parliament recognised that non-violence is a fundamental social value that must be promoted, family violence is a fundamental violation of human rights and is unacceptable in any form, and family violence is not acceptable in any community or culture. As a general rule, if the applicant is a perpetrator of family violence and has used violence to force the tenant from the property, then the applicant is not in the category of people that the Director seeks to provide assistance to. This will also weigh very heavily on the Director’s decision making process about whether or not to grant tenancy rights.

Approval and Non-Approval

In cases where the potential negative impact on the applicant and their household (brought about by non-approval) would outweigh the achievement of the policy objective, the application must be approved.

In cases where the potential negative impact on the applicant and their household (brought about by non-approval) is important and necessary to achieve the policy objective(s) (i.e. the policy considerations on balance weigh against granting the application), the application must be refused.

Before an application is refused, consideration should be given to whether there are any other options (i.e. alternatives) which are reasonably available which allow the policy objectives to be met, but which cause less of an impact on the applicant and their family (than refusal could). If such options are reasonably available, the option which causes the least amount of negative impact on the applicant and their family should be chosen. If there are not any, then the application may be refused.