No cause for no-cause evictions - part 2

You will recall that a no-cause eviction happens when a landlord terminates a tenancy without grounds - that is, a notice issued subject to section 85 of the Residential Tenancies Act 2010. In the past, if a tenant overstayed such a notice, they could wait for the landlord to make an application to the Consumer, Trader and Tenancy Tribunal for a possession order, and implore the Tribunal to consider the circumstances of the case before deciding their fate. Under the Residential Tenancies Act 2010 that's no longer possible - the Tribunal must make orders for possession if the landlord seeks to end the tenancy without grounds. You can read more about that in a recent post on the Brown Couch.

It's been almost a year since we last talked about community housing providers and no-cause evictions. There have been a couple of developments since then and the issue is worth revisiting.

Not long ago, the Community Housing Division - that's the part of Housing NSW that gives community housing landlords most of their properties to rent out to eligible people - released their updated Community Housing Access Policy. Now, this is important, because community housing providers are supposed to follow this policy as a condition of receiving those properties (or other government assistance, as the case may sometimes be...)

... and here's what the updated Access Policy says about terminations:

Community housing providers must have fair and transparent processes in place to determine the termination of any resident agreement or a residential tenancy agreement under the Residential Tenancies Act 2010. This must include a process to advise residents and tenants about the circumstances in which a resident agreement or residential tenancy agreement may be terminated.

Following a decision to terminate a residency agreement or a residential tenancy agreement, a community housing provider must issue, in writing, a notice to the resident or tenant explaining the termination and setting out a reasonable timeframe for the resident or tenant to vacate the premises. The termination of a residential tenancy  agreement must be accordance with appropriate provisions under the Residential Tenancies Act 20102.

Fair and transparent processes, which must include advising tenants about the circumstances in which their agreements may be terminated, and giving a written notice explaining a termination... That's great news, right? It looks as though ending tenancies without grounds is not allowed anymore, if you are a Community Housing Provider. Hooray!

But the policy adds a footnote. It says:

Community housing providers should not routinely terminate agreements under S85 of the Residential Tenancies Act 2010 as this section of the Act does not require a tenant to be given reasons for termination and does not afford the tenant recourse to the CTTT. Only in exceptional circumstances should a provider use S85 given the other provisions of the Act and the provider should document a process which includes an internal review by the provider prior to the decision to terminate under S85.

Wait a minute - providers should not routinely use section 85 notices? Only in exceptional circumstances???

Uh-oh... Did someone just give a 'green light' to the termination of these social housing tenancies without grounds after all?

We certainly hope not. But we couldn't help but notice a sudden spike in their use shortly after this updated policy was published.

The big question, of course, is what is an exceptional circumstance?

... and of course, we have a ready made response: circumstances are exceptional if they are not reasonably foreseeable, and could not otherwise be dealt with under the Residential Tenancies Act.

We wonder if Community Housing Providers, or the Community Housing Division itself, will take a similar view?