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Ending a Tenancy Policy

Last published 14 Aug 2017

1. Background

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

The intent of this policy is to explain how a tenant or FACS can end a tenancy. The Tenancy Policy Supplement provides further information to support this document.

2. Scope

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

3. Policy statement

FACS will end tenancies in accordance with:

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

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

Reasons for ending a tenancy

A tenancy may be ended for a number of reasons, including:

  • The tenant provides notice that they are vacating the property and provides vacant possession (i.e. the tenant and all household members have moved out of the property and taken their belongings with them). This includes situations where:
    • FACS relocates or transfers a tenant
    • A tenant mutually exchanges properties with another tenant
    • A tenant is moving into private rental
  • The tenancy has been relinquished or an Order for Termination has been obtained, and a provisional lease or recognition as a tenant will be granted
  • The tenant receives a final Apprehended Violence Order prohibiting them from access to their FACS dwelling
  • The tenant abandons the property
  • The tenant has passed away and FACS has obtained vacant possession
  • FACS asks the tenant to vacate the property. This may occur where:
    • The tenant has breached their tenancy agreement and FACS has obtained an Order for Termination of the tenancy and possession of the property
    • A three or six month fixed term or a provisional lease has ended, for more information see the Types and Length of Lease Policy
    • The tenant is no longer eligible to live in social housing following a review of a two, five or ten year lease
    • The tenant is on a continuous lease and they or their partner/spouse owns a property that they could live in or sell
    • The tenant rejects a final offer of alternative social housing

A tenant’s obligations when they end their tenancy

Tenants may end a fixed term lease before it is due to end if they give FACS sufficient notice. The tenant must give FACS the following notice:

  • 14 days notice for a fixed-term lease, or
  • 21 days for a continuous lease.

The tenant must give written notice of their intention to vacate, specifying the date they want the tenancy to end and allowing for the correct number of days for giving notice.

FACS will always agree to end a lease early if a tenant wishes to move out before the end of their fixed term. If the amount of notice given is insufficient, go to Dealing with the tenancy accounts at the end of a tenancy.

The tenant must remove all of their belongings and any rubbish from the property and leave the property in a clean and tidy condition that is as near as possible to the condition it was in at the beginning of the tenancy, apart from fair wear and tear. ‘Fair wear and tear’ means deterioration over time as a result of reasonable use and the action of natural elements, even though the property receives reasonable care and maintenance.

Tenants are responsible for locking the property and returning all the keys given to them at the start of the tenancy to FACS.

When FACS ends the tenancy

FACS will issue a Notice of Termination when it decides to recover a property because:

  • The tenant has breached their tenancy agreement
  • A three or six month fixed term or a provisional lease has ended
  • The tenant is no longer eligible to live in social housing following a review of a two, five or ten year lease
  • Other household members may be eligible for a provisional lease or recognition as a tenant, and the tenancy has not been relinquished
  • A provisional lease or recognition as a tenant has not been granted to other household members and they are required to vacate
  • The tenant has rejected a final offer of alternative social housing
  • The sole tenant has passed away

FACS will give tenants:

  • Notice in writing
  • Notice in the required time period, as stated in the Residential Tenancies Act 2010
  • The reasons for ending the agreement
  • A reasonable opportunity to be present at the final property inspection

If the tenant does not move out, FACS will seek an Order for Termination and Possession from the NSW Civil and Administrative Tribunal. This order compels the tenant to move out and sets a date for FACS to take possession of the property.

Inspecting the property when a tenancy ends

Close to the time the tenant will be vacating, FACS will try to arrange an inspection of the property with the tenant. During this inspection, FACS will complete the original property condition report by comparing the current condition of the property with its condition at the start of the tenancy. If there is any damage to the property beyond fair wear and tear, FACS will advise the tenant of any costs that they may have to pay to repair the damage.

FACS will also consider the value of any improvements the tenant has made and may compensate the tenant for them. For more information, see the Alterations to a Home Policy.

FACS will carry out another inspection after the tenant has left. FACS will tell the tenant when this is happening so that they can attend the inspection if they wish. FACS will document any damage beyond fair wear and tear. The tenant must pay the costs to repair any damage beyond fair wear and tear.

If the tenant does not take the opportunity to attend the inspection, FACS will complete the property condition report in the tenant’s absence.

Abandoned properties and goods

Dealing with an abandoned property

FACS will consider that a tenant has abandoned a property only if it is clear that the tenant is not living there. FACS usually finds out that a tenant has abandoned their property through:

  • Neighbours advising FACS that no one is living there
  • The tenant not maintaining the property
  • The tenant not paying rent.

If FACS suspects a tenant has left their property without giving notice, it will inspect the property and make enquiries to find out if the tenant has abandoned it. If FACS is reasonably sure the tenant has abandoned the property, it will start action to take possession of the property under Section 106 of the Residential Tenancies Act 2010 so that it can make the property available for another client. FACS has the right to seek compensation at the NSW Civil and Administrative Tribunal for loss of rental income and property damage.

Dealing with goods left on the property

If goods remain in the home two working days after the tenant has moved out, or when a property is abandoned, an officer from FACS and a witness (where possible) will inspect the property. The inspection will involve:

  • Removing and disposing of any perishable goods including foodstuffs and rubbish, and
  • Making a detailed list of the goods left in the home and the condition of those goods and
  • Taking photographs of the goods, particularly if they are of high value.

FACS is then required by the Residential Tenancies Act 2010 (Section 127) to give the former tenant notice that the goods will be disposed of after 14 days. This Notice may be given in the following ways:

  • In writing by post to the former tenant or legal representative, at the last forwarding address known to FACS, or
  • Orally in person or by telephone.

If the goods are not collected within 14 days, FACS can arrange for disposal of the goods by selling them or in any other lawful manner.

Any proceeds of sale, less occupation fees and reasonable costs of sale, can be provided to the former tenant.

If an item is on hire, FACS will notify the company who owns it and arrange for the company to collect it.

The former tenant can claim and collect some or all of the goods while they are in storage. Where the former tenant claims goods, they must pay an occupation fee per day for each day the goods are left on the property or in storage, which at a maximum is equivalent to the rent per day, and must not exceed, in total, the amount of rent for 14 days.

Under no circumstances will FACS give or sell any goods to an employee of FACS, their relatives, friends, or agents.

Where personal documents remain in the property two working days after the tenant has moved out, or when a property is abandoned, FACS is required by the Residential Tenancies Act 2010 (Section 127) to give the tenant notice that the documents will be disposed of after 90 days.

Personal documents include:

  1. a birth certificate, passport or other identity document, or
  2. bank books or other financial statements or documents, or
  3. photographs and other personal memorabilia, or
  4. licences or other documents granting authorities, rights or qualifications, or
  5. any other record, or class of record, prescribed by the regulations.

If these documents are not claimed within 90 days, FACS will return personal documents to the authority that issued them or if this is not practical, dispose of them in a lawful manner that will not result in the tenant’s personal information becoming publicly available.

FACS can seek direction from the NCAT under the Residential Tenancies Act 2010 (section 133) if any issues arise as to the disposal of goods.

Dealing with the tenancy accounts at the end of a tenancy

FACS tenancies generally end on a Sunday. When a tenant vacates a property for any reason, they will be required to pay any outstanding charges on their tenancy accounts.

If the tenant decides to vacate:

  • If a tenant vacates without giving sufficient notice, FACS will charge rent for the full notice period. That is, 14 days notice for a fixed term lease or 21 days notice for a continuous lease.
  • If the tenant fails to return the keys on a prearranged date and they return the keys at a later date, FACS will charge rent to the date the tenant gives vacant possession.
  • If a tenant abandons the property, FACS will charge rent up to the date that FACS obtains vacant possession of the property.

If notice is given by the landlord:

  • If the tenant moves out earlier than the date specified on the Notice of Termination, rent will only be charged up to the date the tenant gives vacant possession.
  • If the tenant moves out on or after the date specified on the Notice of Termination, FACS will charge rent up to the date the tenant gives vacant possession.
  • If FACS evicts the tenant, or if the property becomes uninhabitable, FACS will charge rent up to the end of the last day the tenant had possession of the property.

Categorising a tenancy

When a tenant or occupant vacates a property or requests a statement of satisfactory tenancy, FACS assesses the tenancy, occupancy and rental history of the tenant and their household members and assigns one of five categories:

  • Eligible for a statement of satisfactory tenancy, or
  • Satisfactory former social housing tenant, or
  • Less than satisfactory former social housing tenant or occupant, or
  • Unsatisfactory former social housing tenant, or
  • Ineligible former social housing tenant.

FACS will advise the client in writing of their category. FACS will also consider the category assigned when a former tenant or occupant re-applies for social housing. For more information, go to Ending a tenancy - Categorising a tenancy or occupancy.

When the tenancy management of a property transfers from FACS to a community housing provider, the client is not assigned a classification by FACS given the tenancy agreement continues.

In this case, the client must contact the community housing provider for any tenancy related statements. For more information including fact sheets, go to Management transfers.

4. Legislation and compliance

FACS is able to end tenancies in accordance with the provisions of the Residential Tenancies Act 2010.

5. Related documentation

6. Further information

Appeals and review of decisions

If a tenant disagrees with a decision FACS has made, they should first discuss their concerns with a Client Service Officer. The next step, if they still believe FACS made the wrong decision, is to ask for a formal review of the decision. For information on how reviews work, the tenant can ask the Client Service Officer for a copy of the fact sheet Appeals and reviewing decisions, or read the Client Service Delivery and Appeals Policy.

Decisions in relation to ending the tenancy of a tenant who has not accepted a final reasonable offer of alternative accommodation when relocating tenants for management purposes are subject to a comprehensive review process set out in Section 149 of the Residential Tenancies Act 2010 and the Procedures Approved by the Minister for Reviews Under Section 149 of the Residential Tenancies Act 2010.

Section 149 of the Residential Tenancies Act 2010 provides for a review of the intention to give notice on the ground that the tenant has been offered alternative social housing premises, and Section 149(5) specifically requires the review to be in accordance with procedures approved by the Minister.

The review process cannot start until FACS gives the tenant notice that it intends to issue a Notice of Termination on the grounds that they have rejected an offer of alternative social housing.

If the outcome of the review is that FACS should issue a Notice of Termination, FACS will automatically refer the matter to the Housing Appeals Committee for a second review.

The appeal rights in relation to offers and alterations to homes do not apply to offers of alternative housing made or responded to when FACS is relocating a tenant for management purposes.

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