Housing SA, Community Partnerships and Growth
RENT ARREARS BY-LAW
It is a Funding Agreement requirement that all Co-operatives and Associations1 have a Rent Arrears By-law, which must be approved by
Housing SA, Community Partnerships and Growth (also referred to in this document as Community Partnerships).
The Rent Arrears By-law below has been designed to help ensure that Associations and Co-operatives meet both Residential Tenancies
Tribunal and Community Partnerships requirements in managing rent arrears.
Associations and Co-operatives are required to align with the wording in this model By-law. In exceptional circumstances alternative
wording may be considered if it is consistent with the directions of the following text and Residential Tenancies Tribunal requirements.
All Rent Arrears By-laws must be approved by Community Partnerships.
The by-law has been designed for Associations and Co-operatives to adopt in full, inserting relevant information as indicated in brackets.
By-law
Additional explanatory information
Section 1 - Recording and Reporting
1. Reporting of Rent Arrears to the Co-operative / Association
1.1.1
1
The (name of organisation) is responsible for ensuring its duties as a
landlord are carried out i.e. that:
• all tenants are treated equitably with respect to management of rent
arrears,
• prompt and effective action to remedy rent arrears is taken.
All references to Associations includes Housing Companies (e.g. Unity Housing Company)
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1.1.2
a)
Decisions about actions to be taken in relation to rent arrears can be
made by (insert job titles). Such decisions must be made on the basis
of evidence.
b)
All documentation concerning action on rent arrears will be signed by
(insert titles – this should be the same nominees as for [a]).
To enable transparent, prompt and efficient decision
making and action it is recommended that 2 or more
office bearers or a service provider be responsible for all
decisions and action taken on rent arrears. These
should be the same individuals making decisions and
taking action in order to avoid delays. Options include:
1) Service Provider
2) Rent Co-ordinator
3) Other Office Bearers
Job Titles only are required, not names, as individuals
may change job roles.
Actions include:
• Rent due reminder letter
• Arrangements to pay rent arrears
• Form 2 – seeking payment of rent or vacant
possession
• Form 7- seeking (reinstatement of tenancy and
Order for Payment Plan) or vacant possession
• Notice of Residential Tenancy Tribunal
hearings.
According to the South Australian Co-operative and
Community Housing (General) Regulations 2007
(Section 17, 6a), action taken in accordance with a
tenancy agreement between a registered Housing Cooperative and a member (e.g. action on rent arrears)
does not need to be approved by the general meeting of
the Co-operative.
1.1.3
The (insert titles*) will advise the Co-ordinating / Management Committee of
all action taken with respect to management of rent arrears.
*same job titles as 1.1.2
1.1.4
The (insert titles) will prepare a monthly report to be included in the
Finance Report presented to the Co-operative / Association containing:
Proper and regular reporting to the Co-operative /
Association is vital to show:
• which tenants are having problems paying their rent,
necessary information in order to follow them up
efficiently, and
• whether the business is operating properly, and if
there are sufficient funds to pay maintenance,
administration and capital contributions.
(a) the agent numbers or addresses of those tenants who owe overdue
rent (any rent not fully paid in advance on the due date is overdue)
(b) the amount of overdue rent for each tenant
(c) the number of weeks of overdue rent for each tenant
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(d) the total amount of overdue rent for the group
(e) information on which of the above tenants have been sent notices,
and what type of notices
(f) details of any arrangements made with tenants to pay rent in
instalments (how much, how often etc).
Under Section 57(1) of the Residential Tenancies Act
1995, a landlord must ensure that a proper record is
kept of rent received under the agreement.
A proper rent record must include:
• the date the rent was received; and
• the name of the person paying the rent; and
• the amount paid and
• the period of the tenancy to which the payment
relates; and
• the address of premises to which the payment
relates.
A 'proper rent record' shows the period that rent is paid
from and to (the rental period). Therefore, if a full period
of rent is not paid, the rent should be held in credit until
sufficient rent for the full period is received.
Refer to Fact Sheet 3
http://www.ocba.sa.gov.au/assets/files/fact_3.pdf
for examples of proper rent records.
1.2 Reporting of Rent Arrears to Housing SA, Community Partnerships
and Growth
1.2.1
The (name of organisation) will produce rent records in a format 1.2.1 Full information on what is acceptable to the
Residential Tenancies Tribunal (RTT) is available on the
acceptable to the Residential Tenancies Tribunal.
Office for Business and Consumer Affairs website
http://www.ocba.sa.gov.au/tenancies/res/index.html
Refer to Fact Sheet 3 on this website for examples of
proper rent records (also see page 1 information).
http://www.ocba.sa.gov.au/assets/files/fact_3.pdf
Community Partnerships has produced a Tenant Rent
Record Template to assist groups to present their
information in a format acceptable to the RTT.
Groups are strongly recommended to use this template
when providing information to the RTT. The Template is
available on the community housing website at
www.communityhousing.sa.gov.au
.
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1.2.2
The (name of organisation) will provide a report to Housing SA, Community
Partnerships and Growth each month, using the Community Partnerships
Rent Funding Worksheet (located on the website) or a previously approved
format containing the same information.
1.2.2 Refer to the Rent Funding Worksheet on
community housing website
www.communityhousing.sa.gov.au
Community Partnerships Rent Policy section 4.1.9
refers to the steps to be taken should Associations / Cooperatives not follow the required processes in
managing rent arrears, including action under the
Investigation and Formal Intervention Policy.
Section 2 - Managing rent payments
2.2.1
Recording payments of rent
The (name of organisation) will keep a proper record of rent received, and
will provide each tenant with a receipt, unless the rent is paid directly into the
Co-operative/Association’s account.
Under Section 57 (1) of the Residential Tenancies Act
1995, a landlord must ensure that a proper record is
kept of rent received under the agreement, showing
the period that rent is paid from and to (the rental
period).
If the Tenancy Agreement requires the rent to be paid on a set basis (e.g.
fortnightly) and less than the full amount is paid for the set rental period (in
this case, fortnightly) the payment will not be applied to the rental period. The
rent records will show a credit, and the next payment of rent will be added to
this credit and applied to rent once this amounts to a full rent period’s rent.
The Residential Tenancies Branch and the Tribunal do
not recognise part payments towards a rent period
as payment towards ‘part’ of the period. The part
payment should be recorded as received but not
counted against a rent period. The part payment is held
in credit until a full period of rent is received.
Regardless of part payments that may have been made,
the Residential Tenancies Branch only considers
rent to be paid up to the last day of the last rent
period which is paid in full.
Refer to Fact Sheet 3 on this website for examples of
proper rent records.
http://www.ocba.sa.gov.au/assets/files/fact_3.pdf
2.2.2
All members/tenants will pay rent in advance of the period to which it relates.
e.g. Rent due on the 1st of March is for the period 1-14th March.
Rent is to be paid in full by the due date. Part payment
of rent means the tenant is in rent arrears.
Any money paid is put towards the oldest debt first. This
determines whether there is any amount over 14 days
outstanding.
Member/tenants are encouraged to contact their Cooperative/Association BEFORE their rent due date if
they will have trouble paying their rent e.g. if there
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are exceptional circumstances and they wish to
make an arrangement to pay rent in instalments.
It is the tenant’s responsibility to provide proof of rent paid (when
requested).
If rent is not paid in full by the rent due date, (insert title) will contact the
tenant in writing as soon as possible (but within 14 days) following the
rent due date to request immediate payment of rent, or to make an
arrangement for the tenant to pay the rent in instalments.
Proof of payment can include receipts and bank
statements.
2.2.5
No further action need be taken at this stage if the tenant pays the rent owing
by the 14th clear day after the due date, or makes a satisfactory arrangement
with the Co-operative/Association to pay the arrears in instalments.
If an arrangement is made to pay arrears in instalments,
and then it is broken, providing any part of the tenant's
rent is more than 14 days in arrears, a valid Form 2
seeking payment of the total amount owed must be
served immediately.
2.2.6
Any written arrangement to pay overdue rent in a lump sum or in instalments
will show:
(a) the date of the arrangement
(b) the tenant’s name and address
(c) the amount of overdue rent owed
(d) the period the overdue rent covers
(e) dates and amounts of rent normally due
(f) dates and amounts of instalments for the overdue rent to be paid
(g) the consequences of the arrangement not being followed (i.e. that
a Form 2, Notice to Terminate a Tenancy will be issued
immediately if the arrangement is broken.)
2.2.3
2.2.4
A template is located on the Community Housing website (R8 Agreement to
Repay Arrears) at www.communityhousing.sa.gov.au
Open communication ensures arrears can be rectified
as quickly as possible.
Action needs to be taken as soon as possible after the
rent due date to allow for the tenant to receive notice
and action it before the next step takes place (which is
that a Form 2 is sent, only possible if any rent remains
unpaid more than 14 days after the rent due date).
Example:
Tenant owed $200 on 1st March and only paid $140,
which is kept in credit.
An arrangement was made to pay the arrears of $60
over the following 2 rent periods at $30 per fortnight (as
well as the normal rent due of $200 per fortnight).
Therefore, the tenant owes $230 on the 15th March and
$230 on the 29th March.
If $60 is paid on 15thMarch, this would be added to the
$140 credit and that would cover the rental period from
1 to 14 March (as any money paid is put towards the
oldest debt first). The rent or part thereof would then not
be more than 14 days in arrears. However there would
be a new debt of $200 owing from 15th March.
If less than $60 is paid on 15th March, a Form 2 can
be issued on the 16th March for the payment of the total
amount owing ($260), as the rent or part thereof is more
than 14 days in arrears
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2.2.7
When a written arrangement is made to pay overdue rent, the period given to
repay in full will be realistic, i.e. will relate to the amount owed and the
tenant’s ability to pay.
This depends on a person’s financial ability to pay, i.e.
for a person on Austudy only, $30 a fortnight as well as
normal rent payments may not be affordable, whereas
for a working person it might be.
2.2.8
Arrangements to pay arrears may request the tenant to have their rent paid
by direct debit or Centrepay to the Co-operative / Association’s account.
However, this cannot be made compulsory - the tenant has the right to
decide the method of payment.
Upon renewal of a lease, it may be a term of the
agreement that the rent is to be paid via a specific rent
collection agency (which may charge a fee to the
tenant). Tenants who have changed their method of
rent payment, but are currently in a residential tenancy
agreement that has not yet expired, need to be made
aware that they can revert to their original method of
rent payment, for the remainder of their current
agreement.
See E-Bulletin No 12 at
www.ocba.sa.gov.au/assets/files/e_bulletin_12.pdf
2.2.9
The (insert titles) will keep copies of all written correspondence in relation See notes to 1.1.4
to rent payments to and from the tenant, together with details of any phone
calls made or received.
2.2.10
Action when rent remains unpaid (in part or in full) after 14 days
If the tenant does not pay the full amount of rent owing by the 14th clear day
after the rent due date
AND
does not make a satisfactory arrangement with the Co-operative /
Association to pay the rent arrears in instalments,
OR
makes such an arrangement then breaks it,
THEN
the Co-operative / Association WILL complete and serve the tenant with a
Form 2 (Notice to Remedy the Breach / Notice of Termination).
2.2.11
Example:
Tenant owes $200 by 1st March (for the period 1-14
March) and pays only $140. This does NOT mean the
tenant is paid until the 10th March, it means the
tenant is in arrears from the due date which was 1 st
March. Therefore if the remaining $60 is not paid by
14th March, action must be taken by the Coop/Association (a Form 2 notice can be served on the
16th - see note to 2.2.6).
The Form 2 will be sent or given to the tenant as soon as possible after 14 Residential Tenancies Act Section 80, 2a
Form 2 is available at
clear days after the rent due date.
http://www.ocba.sa.gov.au/tenancies/res/forms.html
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or from your Co-operative / Association
or by calling the Tenancies Branch on 8204 9544
2.2.12
The Form 2 will give the tenant at least 7 clear days to pay the overdue rent.
Residential Tenancies Act Section 80, 1b
It is recommended that you allow at least one working
day for post to be delivered and to allow additional days
to take into account weekends and public holidays
(where applicable).
A Form 2 may be modified / updated before a hearing is
held.
e.g. It is recommended that you wait until the 16th March
before sending out the Form 2, so that you can include
the $200 owing from the 15th March if it has not been
paid (or part of it if only part has been paid).
2.2.13
If the tenant fails to pay the total rent owed by the deadline stated in Form 2 Residential Tenancies Act Section 80, 2c
the (name of organisation) will require vacant possession of the premises
on the day after that deadline.
2.2.14
If vacant possession of the premises is not given to the Co-operative /
Association by the tenant as a result of the Form 2, the (insert title, on
behalf of the organisation) must apply to the Residential Tenancies
Tribunal using a Form 7 to request either:
• Reinstatement of the tenancy and an order for payment plan,
Or
• Vacant possession of the property.
Consideration of the tenancy history must be given when deciding what order
to seek using the Form 7.
A Form 7 (Application to the Residential Tenancies
Tribunal) can only be lodged with the Tribunal after the
Form 2 has expired and the tenant has not remedied the
breach and has not vacated the property.
It is possible for the Co-operative/Association to seek a hearing with the
Residential Tenancies Tribunal with respect to a tenant who is continually
behind in rent or does not pay in full each time the rent is due. It would use
a Form 7 to do this, and would seek an order for payment plan.
The Co-operative/Association must keep accurate
records of all payments e.g. by using the provided
Tenant Rent Record Template on the community
housing website. A proper rent record must include:
• the date the rent was received; and
• the name of the person paying the rent; and
• the amount paid and
• the period of the tenancy to which the payment
2.2.15
The Co-operative/Association must prove a history of late rent payments
(showing proper rent records – see notes).
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Form 7 available at
http://www.ocba.sa.gov.au/tenancies/res/forms.html
or from your Co-operative / Association
or by calling the Tenancies Branch on 8204 9544
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The Co-operative/Association may ask the Tribunal to include a clause in the
Order for Payment Plan which states that if the tenant breaks the Order for
Payment Plan, that vacant possession of the property will occur on that basis;
however it is the Tribunal’s prerogative to decide what is included in the
order.
relates; and
the address of premises to which the payment
relates.
A 'proper rent record' shows the period that rent is paid
from and to (the rental period). Therefore, if a full period
of rent is not paid, the rent should be held in credit until
sufficient rent for the full period is received.
•
Refer to Fact Sheet 3
http://www.ocba.sa.gov.au/assets/files/fact_3.pdf
for examples of proper rent records.
2.2.16
The Co-operative/Association will advise the member/tenant in writing of Tenant disputing termination
their rights to dispute termination (outlined in the Form 2 document), and to
Residential Tenancies Act Section 80, 4
lodge an appeal.
This is to be done by including with the Form 2 information about Appeals
(I.e. this page to be printed from the community housing website
www.communityhousing.sa.gov.au Appendix 5 contains a May 2009 copy).
Tenants may:
a) Dispute termination using a Form 7. At any time between receiving
Form 2 and giving up vacant possession of the property, a tenant may
apply to the Residential Tenancies Tribunal for an order to reinstate
the tenancy using a Form 7. This may involve the Tribunal creating an
Order for Payment Plan.
b) Only if the By-law is breached in some way may the tenant lodge
an appeal to the Co-operative/Association (i.e. it must be on
procedural /natural justice grounds). If a tenant of a Co-operative or
Association is not satisfied with the Co-operative/Association’s
decision, they can appeal to the Housing Appeal Panel (see Appeal
By-law for full procedure).
(NB: A non-member tenant of a Cooperative may only appeal a decision about membership – refer to
Appeal Policy for further information).
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Form 7 available at
http://www.ocba.sa.gov.au/tenancies/res/forms.html
or from your Co-operative / Association
or by calling the Tenancies Branch on 8204 9544
Appeal System page on the community housing
website:
www.communityhousing.sa.gov.au
Tenants are welcome to print out relevant Appeal
documents themselves, or if they do not have access to
the internet, to contact Community Partnerships on
82070233 to request the pages to be mailed out to
them.
Refer to Appeals Against Decisions of Housing
Associations and Co-operatives Policy and
Procedures on the community housing website
www.communityhousing.sa.gov.au
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Appendix 1 Definitions
Breach
Where an agreement or directive is broken (usually referring to a broken Tenancy Agreement).
Clear days
Midnight to midnight (Residential Tenancies Act definition)
Form 2 - “Notice by Landlord to Tenant to Remedy a Breach of Tenancy Agreement / Notice of Termination”
A Form 2 is a prescribed notice under the Residential Tenancies Act 1995 to be used by landlord (Co-operative or
Association) when tenant has broken their tenancy agreement, requesting the tenant to remedy the breach.
Form 7 - “Application to the Residential Tenancies Tribunal (Landlord or Tenant)”
A Form 7 is a prescribed application form under the Residential Tenancies Act 1995. This form can be used by
either a tenant or a Co-operative/Association to obtain a ruling from the Residential Tenancies Tribunal, including:
 Vacant Possession of the property,
 Order for Payment Plan (an arrangement to pay rent in instalments)
 Reinstallation of the tenancy (eg if a tenant uses the form).
Housing SA, Community Partnerships and Growth
Previously the Office for Community Housing
Order for Payment Plan
An arrangement set by the Residential Tenancies Tribunal for the tenant to pay rent arrears in instalments. The
arrangement includes dates and amounts, and these can only be changed by the Residential Tenancies Tribunal.
Prescribed
Has to be used/done etc. (e.g. something prescribed in the Residential Tenancies Act or the Bylaw)
Rent arrears
Any part of rent which remains unpaid 14 clear days after the due date according to the Tenancy Agreement. Rent
is paid in rent periods (usually fortnights), not per day. Partial payment of rent does NOT bring the tenant up to
part-way through a rent period. If only a partial rent payment is made, then 14 days after the due date, the tenant
can be sent a Form 2 requesting full payment of money owed.
Rent due date
This is the date on which rent is to be paid in full and in advance according to the Tenancy Agreement.
Tenancy Agreement
The agreement signed by both the tenant and the Co-operative/Association, outlining the rent periods (usually
fortnights), rent amount due per rent period, and other conditions of tenancy.
Tenant Rent Record Template
The template provided on the community housing website for groups to use to record rent on an ongoing basis if
they have no other appropriate template to use. All groups are strongly encouraged to use the template if they are
presenting information to the Residential Tenancies Tribunal.
Vacant Possession
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Where the landlord requires possession of the property, so the tenant must vacate.
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Appendix 2
Tenant Rent Record Template
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Appendix 3 Rent Funding Worksheet
The Rent Funding Worksheet on community housing website is mandatory for all groups to use
when doing financial reporting each month, unless they have a previously approved format
containing the same information.
www.communityhousing.sa.gov.au
Rent Matters
Centrelink Rates - March 2009
Rent Funding Worksheet - Old Funding Agreement
Rent Funding Worksheet 08/09 - Assoc Less 90 Properties
Rent Funding Worksheet 08/09 - CHOs more than 90 properties
Rent Funding Worksheet 08/09 - Coop less than 90 properties
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Appendix 4
Agreement to repay rent arrears template
A template arrangement, between an Association/Co-operative and a tenant, to pay rent arrears in
instalments is located on the community housing website at www.communityhousing.sa.gov.au
Below is the May 2009 version.
(Name & Address of Association / Co-operative)
AGREEMENT TO REPAY RENTAL ARREARS (Overdue Rent)
(Date)
I/we
…………………………………………………………………….
(tenant(s)
name)
of
……………………………………………………………………(tenant(s) address) hereby acknowledge
that I/we owe the ……………….. ……………..….. …………………………………………….
(insert name of Association / Co-operative) the sum of $...............in rental arrears.
The rent covers the period …/…/… - …/.../…
I/we agree to pay the rent I/we owe as follows:
Date Due
Rent Period
Amount Due Date Paid
From - To
Amount
Overdue
Paid
Amount
Total Due
TOTALS:
I/we understand that if I/we do not make all of the above payments on time and in full that
……………………………………………………..(name of Association / Co-operative) will act to
recover the money owed via lodging a Form 2 with the Residential Tenancies Tribunal (seeking
Vacant Possession) and my tenancy (and membership if a member) may be terminated.
Where a change in rent later occurs, this repayment agreement will be renegotiated.
Tenant(s)
Name (s):
Rent Coordinator/Treasurer
………………………………….
…………………………………….
………………………………….
Signature(s): ……………………………….….
…………………………………….
………………………………….….
Date:
…… / …… / …….
…… / …… / …….
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Appendix 5
Appeals
Below is a copy of the Appeal System page from the community housing website at
www.communityhousing.sa.gov.au
Associations/Co-operatives are welcome to print out relevant documents for their tenants or to
contact Community Partnerships on 1300 700 561 to request the pages to be mailed out to them.
Appeal System
Appeals against Association/Co-operative decisions
As a result of extensive consultation with the sector, the Community Partnership and Growth directorate has
developed a number of policies, fact sheets and other documents to assist Associations and Co-operatives to
manage and develop their appeal systems.
Please note that it is the responsibility of all Associations and Co-operatives to familiarise themselves with, at
least the mandatory processes covered in these documents. In addition all Associations and Co-operatives
must ensure that their tenants and members are made aware of any changes which may affect them or their
appeal rights.
POLICIES
Appeals Against Decisions of the Community Partnership and Growth directorate
This policy outlines the process for appeals made against a decision of the Community Partnership and
Growth directorate. Development of this system came about from the July 2007 amendments to the South
Australian Co-operative and Community Housing Act 1991.
Appeals Against Decisions of Housing Associations and Co-operatives
This policy has been amended (formerly the Communuity Housing Dispute Resolution and Appeals Policy) to
provide Housing Associations and Co-operatives with a more consistent and fair appeals process while also
ensuring amendments to the South Australian Co-operative and Community Housing Act 1991 are adhered
to.
GUIDELINES
Community Housing Appeal Processes - Guidelines for Housing Associations and Co-operatives
(August 2008)
[Please note these guidelines replace the previous, Feb 2006 "Green Book", which is no longer current]
These guidelines provide an outline of the two stage Community Housing appeal system for Housing
Associations and Co-operatives.
Suggested Guidelines for Housing Co-operatives - Appeal rights for Applicants for Membership
These guidelines are designed to provide a good practice guide for Community Housing Co-operatives for
achieving fair, reasonable and no oppressive processes for dealing with applications for membership.
MODEL BY-LAWS
The appeals model by-laws are currently being reviewed and will be made available as soon as possible.
FACT / INFORMATION SHEETS
Natural Justice
Mediation
Role of the Housing Appeal Panel (HAP)
Role of the Residential Tenancies Tribunal (RTT)
Role of the Tenant Information and Advocacy Service (TIAS)
Appeals Against Decisions by the Community Partnership and Growth directorate
Using an Independent Appeal Convenor for Internal Appeal Hearings
Training and Assessment process for Independent Appeals Convenors and Committee Members
OTHER DOCUMENTS
Internal Appeals Checklist - For Good Decision Making
Housing Appeal Panel Summaries
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