The Law Handbook 2024

Chapter 6.1: Tenancy 465 a family violence service or from VCAT’s family violence support worker. • Always take extensive photos of a property at the beginning and end of a rental agreement. • Put any additional terms of the rental agreement ( lease) in writing in the ‘additional or special terms’ part of the rental agreement before the agreement is signed. • Always get receipts when you make cash payments and be mindful that there are scams involving rental properties. • Correspond by email to ensure you have a copy; after phone calls, send an email confirming the discussion. • Attach photos of the issues in dispute to emails. • Renters should scan or photocopy rental documents. • In cases of severe breaches or hostile conduct, get to safety, call the police on 000, seek advice about getting an intervention order if appropriate, and consider using a video phone to record incidents (only if safe to do so). Residential renters Overview For the provisions of the RT Act relating to residential rental agreements to apply, a person must have ‘exclusive possession’ of residential premises, and generally must pay rent. This is the common law (law determined by court decisions over time) definition of a renter. ‘Exclusive possession’ is a legal term relating to who has control of the premises, and usually means the right to exclude others (including the rental provider) from the rented premises (see Swan v Uecker [2016] VSC 313 (10 June 2016)). A written agreement is not necessary for a rental agreement to exist. How each of the parties describe the relationship does not necessarily determine whether a person is a renter. An objective assessment is necessary for that. In some circumstances, a rental agreement may exist over part of premises. However, for that to be so, it must be possible for the renter to have exclusive possession of that part of the premises. The tenancy provisions of the RT Act apply to a rental agreement unless it can be shown that an exclusion outlined in the RT Act applies. The onus of proving that the RT Act does not apply rests with the person making that assertion (s 507). It is sometimes difficult to determine whether a person is a renter and whether the RT Act applies to their occupation of a premises. This can require consideration of several factors. Renter or licensee? A person who lives at a premises, but who does not have exclusive possession, may be a ‘licensee’. This is a contractual right to occupy a premises, which generally can be revoked at will. A licensee is not a renter and does not have rights under the RT Act. It is sometimes difficult to determine the legal nature of a person’s occupation of a premises and whether a person is a renter or a licensee. This can require consideration of several factors, and in many cases, it remains open to VCAT to determine (see Janusauskas v Director of Housing [2014] VSC 650 (17 December 2014)). Some disputes between parties that are not covered by the RT Act may be determined by VCAT. For more information, visit www.vcat.vic.gov.au. Co-renters Co-renters share the right of exclusive possession over a premises. At common law, co-renters are ‘jointly’ liable for their responsibilities under the rental agreement. This means that any one or all of the renters can be pursued for any loss or damage that the rental provider suffers, as a result of a breach of the rental agreement or the RT Act by any one of the renters. For example, if three renters enter a rental agreement and one renter fails to pay their share of the rent, then all three renters could be evicted. The rental provider could also pursue any one of the renters for the unpaid rent, regardless of whether it was that particular renter who failed to pay. (See also Mamone v Brochmann (Residential Tenancies) [2020] VCAT 1009 (11 September 2020.) Under Part 4AA of the Wrongs Act 1958 (Vic), it is possible for VCAT to apportion liability (generally not rent arrears) between renters. However, in general, VCAT does not interfere with the joint liabilities of renters unless there are exceptional circumstances (e.g. family violence). Family violence Generally, the RT Act does not cover disputes between co-renters. However, the RTAct does permit