Incarceration of Tenants

1 Policy

1.1 Rationale

The intent of this policy is to manage long term* tenant absence caused by incarceration within the context of a social housing approach. It aims to provide the best long-term benefit to the tenant, the organisation and the community by addressing:

  • The need of a Housing ACT tenant to return to their home or at least be accommodated after a period of incarceration;
  • The need of a tenant’s family/household for appropriate accommodation during his/her period of incarceration;
  • The need for Housing ACT to ensure its dwellings are secured and maintained during long term tenant absence from dwellings; and
  • The need to manage competing demands for public housing in an environment of increasing need.

* Long-term is defined as any period in excess of the limits contained in the tenant’s Tenancy Agreement (see 4. Legal Context).

1.2 Context

Approximately 30 Housing ACT tenants are incarcerated each year and, of these, about 15 serve custodial sentences. Incarcerated tenants often leave their dwellings unoccupied without notifying Housing ACT. This creates difficulties in:

  • Property management - dwellings are more likely to attract squatters and/or be vandalised the longer they remain vacant;
  • Tenancy management - incarcerated tenants are often at risk of not meeting their obligations under their Tenancy Agreement
    • Including ongoing responsibility for tenant responsible maintenance, etc ; and
  • Meeting community needs - unoccupied dwellings reduce Housing ACT’s ability to meet the needs of high priority applicants waiting to be allocated public housing. It is common for Housing ACT to receive complaints when dwellings are left vacant for substantial periods.

Housing ACT’s experience indicates that dwellings left vacant for more than three months without regular attention are increasingly likely to attract vandalism, inhabitation by squatters, illegal sub-letting and depreciation exacerbated by disuse while vacant dwellings that receive regular attention usually can be maintained for up to six months. This experience and the need for Housing ACT to ensure that dwellings are maintained cost effectively, provides the context for this policy.

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1.3 Approach

When Housing ACT becomes aware that one of its tenants is facing or has started a period of incarceration it is the organisation’s intent to work to determine an appropriate course of action with all affected.

For those incarcerated tenants who have either chosen or been forced to terminate a public housing tenancy due to long term absence Housing ACT will consult with the tenant’s correctional centre welfare officer, parole officer and other support providers to determine post-release housing needs and how best to meet those needs.

Housing ACT will work to protect and maintain public dwellings from likely adverse effects of long term absences by prompt, definitive action to resolve all cases.

1.4 Legal Context

Incarcerated tenants leave their dwellings either:

  • Unoccupied,
  • Potentially without one member of a joint tenancy, or
  • In possession of a non-tenant resident
    • Sometimes by unapproved sub-let agreement.

1.4.1 Long-term absences

Clause 71 Attachment A - Schedule 1 Standard residential tenancy terms of the Tenancy Agreement, whichstates:
“71. The tenant shall not leave the premises vacant for more than 21 days without notifying the lessor.”

Clause 1 Attachment B - Commissioners additional terms states:
“1. ….The Property must be the principle residence of all Tenants. A tenant will be deemed not to reside at the property if he or she is absent for a period of more than one month without the Commissioner’s written permission.”

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1.4.2 Subletting

Clause 72 Attachment A - Schedule 1 Standard residential tenancy terms states:
“72. (1) The tenant must not assign or sublet the premises or any part of them without the written consent of the lessor.”

Housing ACT will not approve sublet requests.

1.4.3 Providing reasonable care

Tenants who have received approval to leave a dwelling vacant for a period in excess of 21 days must provide care for the dwelling as per:

Clause 63 Attachment A - Schedule 1 Standard residential tenancy terms states:

“Tenant to look after the premises
“63. (c) take reasonable care of the premises and their contents, and keep them reasonably clean….”

1.4.4 Substitution of Tenant

In some circumstances occupants (whether joint tenants or non-tenant residents) remaining in a dwelling following the incarceration of a tenant are entitled to apply to the Residential Tenancies Tribunal to become the tenants as per:

Residential Tenancies Act 1997: Paragraph 107A Substitution of tenant, which states:

(1) This section applies if -
(a) The tenant, or a cotenant, (the removed person) has given an undertaking to a court to leave the premises; or
(b) A court has made an order, other than an interim order, to remove the removed person from the premises.

(2) An occupant of the premises, other than the removed person, (the occupant) may apply to the tribunal to be the tenant or cotenant under the residential tenancy agreement for the premises instead of the removed person.

(3) To remove any doubt, an application may be made by the occupant even though the occupant is not a tenant or cotenant under the residential tenancy agreement.

(4) The application must -
(a) Be in writing; and
(b) Include -
(i) Evidence of the removed person’s undertaking to the court to leave the premises; or
(ii) A copy of the court order to remove the removed person from the premises.

(5) The tribunal may make an order substituting the occupant as the tenant, or cotenant, if -
(a) The grounds of the application are proved; and
(b) The lessor has been given an opportunity to be heard on the application.

(6) If the application is in relation to premises leased under a housing assistance program under the Housing Assistance Act 1987, the tribunal must not make an order under subsection (5) that is inconsistent with the eligibility criteria of the program.

(7) The order is subject to any condition stated in it by the tribunal.

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1.5 Limits on Dwellings remaining vacant

1.5.1 Approval Periods

Assuming there are no outstanding issues (see below) tenants could expect approval for a dwelling to be left vacant* for periods up to three months. However, where the period of absence is expected to be between three and six months applications will only receive favourable consideration when:

  • There are no outstandingissues such as debt, outstanding tenant responsible maintenance and/or neighbourhood issues; and
  • it is evident that retaining the dwelling for a tenant is in the best interests of the community. Examples include:
    • Considerable modifications to suit a tenant’s physical disability, or
    • Location of supports essential for reintegration into society.

Extensions beyond six months will only be granted in highly exceptional circumstances.
* Periods of vacancy are the total time the dwelling is left vacant; including periods vacant prior to and including incarceration and mandatory residential rehabilitation.

1.5.2 Requirement for Caretaker

In all cases where a tenant is applying to extend a period of vacancy beyond three months a caretaker must be nominated by the tenant (see 1.4.3 Providing reasonable care); their role is to:

  • Regularly (twice a week) inspect, make good, and clean and tidy as required;
  • Complete grounds maintenance; and
  • Provide access to the dwelling as required by Housing ACT.

The caretaker service must continue for the duration of the tenant’s absence from the dwelling with approval revoked on dereliction of caretaker responsibilities. Also note that the caretaker is not entitled to reside in the dwelling and the caretaker arrangement does not infer rights equivalent to a sub-tenancy agreement.

1.5.3 Requirement for Application

An application must be provided in any situation where a tenant wishes to be absent from a dwelling for a long term (see 1.4.1 Long-term absences). Applications must include:

  • Reason for absence including start and expected finish dates;
  • Tenant’s location and contact details while away from the dwelling; and
  • Contact details of nominated caretaker (periods over three months).

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1.6 Abandoned Goods

Housing ACT will work with an incarcerated tenant who has left behind possessions in a dwelling no longer occupied by a lawful occupant. Housing ACT will, wherever possible, liaise with the tenant or a tenant nominated person to arrange for the removal of the tenant’s goods. Should goods prove to be abandoned they will be dealt with under Housing ACT’s Abandoned Goods and Vehicles and Parts Policy. Tenants who leave possessions are responsible for the cost of removal and storage.

1.7 Payment of Rent during periods of absence

During a period of approved absence a tenant is considered to be an ongoing member of their household or a sole resident tenant and will continue to pay 25% of any accessible income they continue to receive. For single tenants without income minimum rent of $5 per week is levied from the date Centrelink payments cease.

1.8 Support for Single Tenants

When a tenancy with a single tenant is terminated due to the length of the incarcerated tenant’s absence from the dwelling Housing ACT will endeavour to work with the tenant and their support providers to ensure:

  • Provision of referrals for support following (and sometimes preceding) release from a correctional institution to assist in re-integration into society;
  • Provision of referrals to alternative housing providers to assist the tenant in securing accommodation while waiting for public housing assistance; and
  • Placement on the list for allocation
    • Incarcerated tenants whose tenancies have been terminated are required to reapply for housing assistance (see 1.12. Rehousing Released Tenants).

1.9 Support for Remaining Member/s of a Joint Tenancy

Housing ACT will work with remaining joint tenant/s and other household members to assist them to sustain their tenancy. Upon receipt of;

  • An application to not reside at a dwelling for a period in excess of one month (see 1.4. Legal Context) from the incarcerated joint tenant;
  • Formal advice of incarceration;
  • A completed rental rebate application form; and
  • Assuming there are no outstandingissues which bar approval (see 1.5.1)

Housing ACT will recalculate the rebate to reflect the change in household income. A joint tenancy can be sustained for the full period of a tenant’s incarceration related absence, however in some circumstances the remaining occupants may be entitled apply to take over the tenancy (see 1.4.4 Substitution of Tenant).

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1.10 Support for Remaining Non-Tenant Resident/s of an Incarcerated Tenant's Household

A breakdown of tenancy situation is created when the only tenant of a household is absent from the dwelling for a period over one month unless permission to leave the dwelling has been granted. Depending on circumstances, Housing ACT may allocate a new tenancy or issue an Occupancy Agreement to non-tenant residents who have applied for housing assistance who would face extreme hardship should they be denied housing assistance (see Housing ACT’s Breakdown of Tenancy Policy).

1.11 Support for Dependent/s Left in Dwellings

Where appropriate, a Client Support Coordinator will conduct a case conference when an incarcerated tenant has left dependent/s in a dwelling. Appropriate individuals and organisations such as non-resident adult family members, the Office of Children, Youth and Family Support, the Community Advocate, the Public Trustee for the ACT, etcetera will be requested to attend. The intent is to determine and implement the best possible outcome for the incarcerated tenant’s dependents.

1.12 Rehousing Released Tenants

Tenants whose tenancies have been terminated due to incarceration and wish to re-apply for public housing assistance are to be assessed against current needs categories and allocation criteria upon or just prior to release. Many people returning to the community following a period of incarceration have complex needs including secondary homelessness and significant risk factors including the possibility of re-offending. It is appropriate to have these cases assessed by the Priority Housing multi-disciplinary panel to determine the appropriate needs category.

The location of any public housing dwelling allocated is to be determined in consultation with the client’s parole officer and/or other support worker/s.

Tenants who were members of a joint tenancy prior to incarceration are generally expected to return to that tenancy. However Housing ACT will consider alternative allocations in situations where return to the joint tenancy is not appropriate.

1.13 Determining Residential Status

Should an ACT tenant be incarcerated outside the ACT they are considered to remain a resident of the ACT for the period of their incarceration pending return immediately following their release. Similarly, should a public housing tenant from another State or Territory be incarcerated in the ACT they are not considered to be an ACT resident on release and must fulfil mandatory residential requirements starting from their release date should they remain in the ACT.

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