Preparing tenancy agreements in a social housing or NDIS setting

Registered social housing providers and providers of housing and living supports will generally need tenancy agreements with their customers.

The tenancy agreement should clearly set out the rights and obligations of both the provider (as landlord) and the customer (as tenant). We set out 5 things to think about when preparing tenancy agreements in these settings.

1. The Residential Tenancies Act applies

The Residential Tenancies Act NSW 2010 (NSW) (RTA) applies to nearly all residential tenancies in NSW, including residential tenancies involving social housing and accommodation for individuals entitled to contributions under the National Disability Insurance Scheme (NDIS). This means that tenants do have the rights afforded to them under that legislation.

2. The terms of the standard form tenancy agreement are implied

Under the RTA, the terms of the standard form tenancy agreement prescribed by the Residential Tenancies Regulation 2019 (NSW) are taken to apply to all residential tenancies that come under the RTA. This means that the terms of the standard form tenancy agreement will be implied and will prevail over any inconsistent terms that are agreed.

3. Consider the requirements of the relevant legislation and include additional terms

A non-standard form of tenancy agreement or a standard form agreement with additional provisions may need to be deployed to address the specific requirements of relevant legislation (e.g. NDIS Rules for specialist disability accommodation) or to address specific requirements or policies. Additional terms may include payment of board or other amounts, house rules and rules regarding the use of common areas and equipment, additional maintenance obligations or the keeping of pets.

4. Separate your agreements where possible

It is not uncommon for a housing provider in the social housing or NDIS setting to provide other non-accommodation-related services, like supported independent living under the NDIS (or for a support service provider to also provide accommodation).

Although the RTA does not prevent you from having additional terms to cover these other services in a tenancy agreement, it may be best to “avoid keeping all your eggs in one basket” and keep your agreements separate. This is so that issues with, or the termination of, one of the arrangements does not automatically put the other arrangement in jeopardy.

5. Working with third parties

In many instances, especially when talking about the home and living supports under the NDIS, you will need to work collaboratively with a tenant’s third-party service provider. Given how closely these providers interface with their customers, its best to put in place formal collaboration agreements to ensure that all parties are on the same page. The terms of such agreements need to be thought out and carefully negotiated, especially given the interests of each party won’t always align.

Authors: Eric Kwan & Stella Sun

Contributing partners: Michael Cossetto & Melissa Potter