PolicyBehaviour in Housing Tasmania PropertiesSDMS ID Number P2012/0179-054SDMS Title Behaviour in Housing Tasmania Properties – Policy –

P2012/0179-054Effective From 1 February 2015Applies to Tenants of Housing Tasmania, people in Housing Tasmania

properties whose behaviour is the responsibility of the tenant, including: members of the tenant’s household and visitors to the household; tenants managed by a Better Housing Futures provider where tenants have the tenancy agreement with Housing Tasmania; and people affected by behaviour in Housing Tasmania properties.

Custodian Manager Housing OperationsSummary This policy is a guide to staff who manage tenancies that are at

risk of being ended, as a result of behaviour in Housing Tasmania properties that breaches the tenancy agreement; and who respond to complaints about behaviour in properties.

Replaces Doc. No. n/aAuthor Area Housing Strategy – Social and Affordable Housing Policy UnitContact Manager, Housing OperationsReview Date As required

Policy Intent Housing Tasmania is committed to achieving stable and harmonious communities in areas where Housing Tasmania properties are located.Housing Tasmania has developed this policy in collaboration with housing and support providers and community advocates to guide decisions about reducing unlawful or nuisance behaviour in Housing Tasmania properties.This policy aims to guide: tenancy managers about how to effectively manage

Housing Tasmania tenancies that are at risk of breach as a result of unlawful or nuisance behaviour

tenants of Housing Tasmania about what type of behaviour is a breach of their tenancy agreement and the consequence of unlawful or nuisance behaviour occurring in a Housing Tasmania property

Principles This policy adheres to best practice tenancy management principles including the following: be proactive in preventing and minimising the occurrence

and the effects of tenant breaches and nuisance behaviour enforce tenant responsibilities consistently and treat all

breaches seriously respond promptly to indicators or knowledge of a breach ensure natural justice by making tenants aware of

problems honestly and giving them an opportunity to refute an allegation, remedy a breach or negotiate a resolution

take into account contributory factors and be sensitive to, and respectful of, individual circumstances and needs

maintain a commitment to secure housing and use eviction as a last resort

respect privacy and maintain confidentiality for tenants and their neighbours

promote tolerance of difference and the rights of tenants and their neighbours to live in peace

never accept racial, sexual prejudice, or any form of violence, harassment or vilification

believe in tenant self-determination, and the importance of people sorting out their own problems

work in partnership with other agencies to manage 2

individual and neighbourhood issues in the best possible way

assist in the development of stable and secure communities that people are proud to live in

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Application This policy applies to: Housing Tasmania tenants responsible for unlawful or

nuisance behaviour in Housing Tasmania properties tenants that are managed by a community housing

manager under the Better Housing Futures1 program whose lease remains with Housing Tasmania

members of the tenant’s household and visitors whose behaviour is the responsibility of the tenant

people nearby who are affected by unlawful or nuisance behaviour in Housing Tasmania properties

Background Housing Tasmania is accountable to government and to the general public for the equitable and cost effective delivery of the housing services it provides.Social housing is a scarce and precious resource. Breaches of the tenancy agreement are costly and must be discouraged as much as possible.Housing Tasmania recognises that some tenants on low incomes may have specific needs which make them vulnerable to abuse and discrimination.Housing Tasmania takes whatever reasonable actions are available in order to reduce or lessen the effect of the adverse consequences for tenants and others arising from unlawful or nuisance behaviour in properties.This policy enables an early intervention approach to vulnerable tenants who breach their tenancy agreement.While a tenancy may be legally ended for any breach, Housing Tasmania will always aim to provide vulnerable tenants with opportunities to rectify breaches and comply.Housing Tasmania aims to manage tenancies in a way that achieves a reasonable balance between the rights of vulnerable tenants responsible for unlawful or nuisance behaviour and the right to privacy and quiet enjoyment of people nearby who are affected by the behaviour.

Types of behaviour For the sake of clarity and to guide decision making, four types of behaviour in properties are identified below, which may give rise to complaints.The types of behaviour are defined either as a breach, or not, of the Housing Tasmania tenancy agreement and Residential

1 Henceforth tenants of BHF properties who have a tenancy agreement with Housing Tasmania will be referred to as Housing Tasmania tenants.

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Tenancy Act 1997.

Behaviour that is NOT a breach includes: Annoying behaviour: to disturb, cause discomfort or

bother a person in a way that slightly displeases, troubles or irritates them.

Neighbourhood disputes: disputes that arise over issues like boundaries and fences; common areas; noise or other annoyance; and personal differences.

Behaviour that IS a breach includes: Nuisance behaviour: Behaviour that is a breach of the

tenancy agreement that is more than merely annoying. It must seriously interfere with other residents’ quiet enjoyment of their homes and/or their ability to go about their normal business. Nuisance behaviours include: failure to maintain premises (including abandoned cars), failure to supervise and control visitors and children, occasional noise, hoarding and squalor, poorly controlled pets, the spreading of rubbish and activities that are incompatible with the residential nature of the property.

Unlawful behaviour: Behaviour in or around a property that is unlawful that relates to the tenancy, property and/or the immediate surrounding community. Unlawful behaviours include: excessive and unwarranted intrusions on a neighbour’s or neighbours’ properties, health and safety violations, ongoing and frequent excessive noise, abusive and threatening language, harassment and intimidation and using a property for unlawful purposes. Housing Tasmania will not become involved in unlawful behaviour that does not related directly to the tenancy

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(e.g. drink driving, shop lifting etc).

Dealing with complaints

When there is a complaint about behaviour in a Housing Tasmania property, in the first instance, tenancy managers will: provide a confidential avenue for making the complaint

(see Complaints Procedure and Complaint Form)2

if a behaviour is unlawful, advise complainants to contact Tasmania Police or other appropriate statutory authority, in the first instance (see Statutory Responses below)

before contacting a tenant who is the subject of the complaint- establish there is evidence of the complaint on the

balance of probabilities- identify and describe the type of behaviour and

determine whether there has been a breach of the tenancy agreement

inform the tenant of the complaint and explain their rights and responsibilities and determine the appropriate response in accordance with the type of behaviour (see Response to Behaviour below)

treat the tenant and complainant fairly and reasonably and try to work collaboratively with all parties to find ways to resolve the complaint

assess the support needs of the household to sustain the tenancy and, if appropriate, make a referral to Housing Connect for specialist support

monitor the tenancy for further risk of breaches

Response to behaviour that is NOT a breach

Annoying behaviour and neighbourhood disputes are not in themselves a breach of the Housing Tasmania tenancy agreement and Residential Tenancy Act 1997.However, when annoying behaviour and disputes are not resolved people’s behaviour can escalate, which may lead to breaches of the tenancy agreement.It is preferable to encourage people to speak to neighbours about issues that bother them, and to seek to resolve disputes

2 Where the law has been broken this must be reported to the Police or relevant statutory authority.6

amicably and in person.When parties to a dispute cannot resolve the issues themselves they can be referred for mediation.

Response to behaviour that IS a breach

A tenancy can be ended by legal means if there is a confirmed breach of the tenancy agreement and Residential Tenancy Act 1997 (see Ending Tenancies below).As an alternative to ending the tenancy, a “three strikes” warning approach may be used to respond to minor offences and nuisance behaviour (see Three Strikes below). No warning should be applied to serious offences of unlawful behaviour. Such that: a verbal warning may be used for nuisance behaviour (but

not minor offences) before a first strike is issued three strikes may be used for nuisance behaviour and

minor offences a Notice to Vacate will be issued to end a tenancy for

serious offences or if a third strike has been issued for minor offences and nuisance behaviour

Discretion Housing Tasmania recognises that flexibility to respond to individual tenant circumstances can lead to better tenancy outcomes.Tenancy managers have discretion to vary the direction of this policy on how to respond to unlawful or nuisance behaviour such as for vulnerable tenants.Where discretion is applied all decisions must be documented and signed by a delegated manager with copies placed on the relevant files.

Verbal warning A verbal warning may be given for a first or rare occurrence of

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nuisance behaviour that breaches the tenancy agreement.The verbal warning informs the tenant that they are in breach of their agreement and at risk of having the tenancy terminated if they do not stop the behaviour or rectify the problem.A record of the verbal warning must be placed on the relevant files.A subsequent breach during the tenancy may result in a first strike being issued or ending the tenancy for non compliance or serious offences.

Three strikes If a breach has occurred due to minor offence or nuisance behaviour then a tenancy may be continued subject to certain conditions being met.The aim of the three strikes approach is to prevent loss of the tenancy if possible, including under the following circumstances: when a breach results from serious mental illness then

tenancy managers will respond sensitively, in conjunction with support providers

where other support needs3 have been identified then tenancy managers will assist the tenant to engage in support by referral to Housing Connect

when the tenant demonstrates willingness to change their behaviour or fix the problem or engage in support within agreed timeframes

Strike One and Strike Two – a warning:The first strike followed by a second strike represents a warning to the tenant that they are in breach of their agreement and at risk of having the tenancy terminated if they do not stop the behaviour or rectify the problem.Each warning will inform the tenant of the particular reasons for the breach and set an appropriate notice period for which the tenant must comply to rectify the breach.

3As a result of family or relationship difficulties, mental illness, substance abuse problems or limited life skills8

It may be appropriate to enter into a voluntary written agreement with a tenant who is in breach of the tenancy agreement as a means of encouraging compliance.Once issued, a strike should not be waived for a period of two years (see Expiration below). Any subsequent breach or non compliance during that period may result in a further strike being issued or ending the tenancy.Strike Three – Notice to VacateA third strike means the tenancy will be terminated by legal means (see Ending Tenancies below).

Expiration Once a verbal warning or strike is issued then it is active for two years and should not be waived. A subsequent breach resulting in a first or second strike will replace the previous one and the two year period is reset.At the end of the two year period if no subsequent breaches have occurred then all warnings and strikes are expired and the tenant is to be notified that all warnings have been waived.A record of the date of issuing a warning and expiration must be placed on the relevant files.A third strike is exempt from expiring as it results in the immediate issue of a Notice to Vacate.

Ending tenancies A tenancy can be ended by legal means if there is a confirmed breach of the tenancy agreement and Residential Tenancy Act 1997.A Notice to Vacate will be issued to end a tenancy as follows: without prior warning for a serious offence if the tenant continues not to comply after all due and

appropriate warnings have been given under the three strikes approach

The procedure of issuing a Notice to Vacate must provide the tenant with an avenue to review the decision to end the

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tenancy.

Statutory responses Statutory authorities whose role it is to respond to behaviour in Housing Tasmania properties that breaches the tenancy agreement include: Safe At Home Tasmania Police Child Protection Services Disability and Community Services Emergency Services Local government officers responsible for animal control;

environmental health; and public health Mental Health Services4

Royal Society for the Prevention of Cruelty to Animals (RSPCA)

Legal Framework This Policy adheres to the Residential Tenancy Act 1997 where relevant.

Exemptions Nil

Responsibilities/ Delegations

All tenancy officers that manage tenants of Housing Tasmania are responsible for ensuring the appropriate application of the policy. Area Managers are responsible for Area management including policy application and discretion.

Disclaimer This is a statewide policy and must not be re-interpreted so that subordinate policies exist. Should discrete operational differences exist, these should be expressed in the form of an operating procedure or protocol, that must be approved at the same level as this policy.

Audit and Compliance

Failure to comply with this policy, without providing a good reason for doing so, may lead to disciplinary action.Compliance with this policy is monitored by the Manager Housing Operations, through the delegated Area Managers.

4 Where a complainant to approach the tenancy manager about an urgent matter concerning a tenant with serious mental health issues, they would be referred to Tasmania Police who would do a referral to Mental Health Services.

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Procedures and Forms

Tenant Behaviour ProcedureComplaint FormPro Forma Warning LetterPre-Eviction Warning Letter Condition of Property PlanTenant Code of Conduct Statement of the Rights and Duties of a Tenant (Plain English)5.

Related Policies Many Housing Tasmania policies seek to address nuisance behaviours in Housing Tasmania properties that breach the tenancy agreement and place a tenancy at risk.Please see the Strategic Document Management System for full list of Housing Tasmania’s current policies. These policies are under review regularly and may be subject to change. Relevant policies include the following6:Abandoned/Unregistered unroadworthy motor vehicleAbsence from TenureCharges for non-fair wear and tear repairsCustomer Feedback and ReviewEnding tenancies by legal actionFair wear and tearFamily violenceGlass replacementHome visitsMaking referralsOutstanding chargesPets in Housing Tasmania PropertiesRelocating tenantsRight to access a Housing Tasmania tenancy: unlawful damage,

5 Also referred to as a Code of Conduct.6 All policies and tools are constantly being reviewed and updated so details may change. Some policies will be removed altogether because they are no longer relevant to Housing Tasmania’s business.

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arson or crimes of deceptionTransfer policySuccession of tenancy.

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Glossary Animal hoarding: a specific type of hoarding that is generally accompanied by hoarding of possessions and objects. It is a public health issue when a person accumulates a large number of animals for which they are unable to provide minimum standards of nutrition, sanitation and veterinary care.Assault: the act of intentionally applying force to another person, either directly or indirectly. This includes threatening gestures where it is reasonable to believe that the person making the threat is able to put it into effect; and or the act of depriving another person of their liberty. Words alone can constitute an assault.At-risk tenancies: tenancies that are at risk of termination due to significant and unresolved rent arrears, tenants causing a substantial nuisance to neighbours, serious property damage and failure to maintain the property.Evidence: information that can be used to prove facts that may be subject to dispute in legal cases. It may consist of witness testimony, documents and other physical things that prove beyond reasonable doubt that an event occurred.Harassment: systematic and continued unwanted actions of one party, or group of parties that causes annoyance, alarm, or distress to another, including threats and demands. The victim may seek a restraining order to prevent coming into contact with the offensive party, or parties. Such activities may be the basis of legal action, if they are due to discrimination based on race or gender.Hoarding: a form of obsessive-compulsive disorder, affecting adults from all age groups. It involves excessive accumulation of goods and rubbish, inability to get rid of things and lack of organisation of things that have been accumulated. Hoarding does not necessarily involve squalor although the two often occur together. Hoarding can cause squalid conditions that can interfere with normal living and quality of life.

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It can be a fire risk. It can result from experiences of material deprivation, trauma, childhood neglect, physical illness, cognitive deficits and mental illness.Mediation: a formal process in which a neutral third party helps two or more people who are in dispute to voluntarily find common ground and seek a mutually acceptable solution. Community mediation deals with disputes between neighbours. The parties to the dispute must be willing to engage in mediation; generally a ‘round the table’ discussion where they are encouraged to talk freely, explain their point of view, find common ground and agree on a way forward.Minor offences: behaviour that is unlawful and does not result in serious harm to persons or property. It may include: stealing items of relatively low value, minor drug offences, drink driving, public disorder, offensive conduct and offensive language. Minor offences may cause a substantial nuisance to neighbours. Minor offences are heard in a Magistrate’s Court. Charges must be laid within six months. In less serious cases where there are few or no prior offences, a minor offence does not always lead to a custodial sentence and generally leads to a sentence of no more than five yearsNeighbourhood disputes: behaviour that can arise over issues like: noise or other annoyance, such as from animals, machinery or cars; boundaries and fences; common areas; trespassing; trees and tree roots. Neighbourhood disputes can escalate into harassment, assault, violence and riots.Nuisance behaviour: an act or omission by one person that interferes with another person's rights, and which is offensive, annoying, dangerous, obstructive, or injurious to health. Australian law recognises two types of nuisance behaviour:

a) private nuisance is an activity or condition (e.g. excessive noise, disagreeable odour) that is not unlawful but that interferes with another

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person’s ability to go about their normal daily business, including their use and quiet enjoyment of their home. It may provide cause for civil litigation, provided the complaint is neither trivial nor unreasonable.

b) common nuisance or public nuisance is an act or omission under the Tasmanian Criminal Code Act 1924 which endangers the lives, safety, health, property or comfort of the public; or by which the public are obstructed in the exercise or enjoyment of any right. It includes: obstructing a public road, polluting air and water or keeping explosives. A common nuisance is both a civil wrong and a criminal violation, and penalties range from fines to imprisonment.

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Property damage: under the Tasmanian Criminal Code Act 1924 it is an offence to purposely damage or destroy another person’s property without their permission. This refers to anything owned by another person, including animals. Criminal damage to property is a serious offence that includes arson.Serious criminal offences: refers to offences defined under the Tasmanian Criminal Code Act 1924. These are ‘indictable offences’ that are dealt with in the Supreme Court by a judge and jury. They include: offences against the person (murder, manslaughter, death by dangerous driving, wounding, rape and sexual assault); against property (computer crimes, stealing, burglary, robbery and arson); and against society or the public (bribery of public officials and treason). There is no time limit on when charges can be laid. Such offences generally lead to a custodial sentence, where the maximum sentence is life.Statutory authority: an agency established to respond in a particular way, as required by law. What can be done by a statutory authority in a given situation is set down in applicable legislation. Examples are the Police, Family Violence Services, Mental Health Services, Child Protection Service, Fire Service, Emergency Services and Environmental and Health Services.

Policy Title and Version Behaviour in Housing Tasmania Properties PolicyEffective Date 1 February 2015Review Date As requiredDocument Number P2012/0179-054Replaces Document Number

n/a

Custodian Housing Tasmania, Manager Housing ServicesApproved by Director Housing Tasmania

This Policy may be varied, withdrawn or replaced at any time. Compliance with this directive is mandatory for the Department of Health and Human Services. Please Destroy Printed Copies. The electronic version of this Policy is the approved and current version and is

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located on the Agency’s intranet. Any printed version is uncontrolled and therefore not current.

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