The Law Handbook 2024

472 Section 6: Houses, communities and the road a rental agreement. However, each decision is made in consideration of its particular circumstances. (See Janusauskas v Director of Housing [2014] VSC 650 (17 December 2014); Swan v Uecker [2016] VSC 313 (10 June 2016).) Assignment Assignment is different from subletting. Assignment is when a renter transfers their interest from themselves to another, or when a renter moves from being a sole renter to a co-renter. Parties being assigned to a rental agreement should exercise caution, as they may inherit the liabilities (debts) of pre-existing renters (s 5 RT Act). Similarly, exiting renters should take evidence of the condition of the premises when they vacate. It is possible for rental providers or renters assigned to a property to make claims for indemnity. Note that VCAT generally does not hear disputes between renters (with the exception of family violence or claims under the Wrongs Act 1958 (Vic)). A rental provider cannot unreasonably withhold their consent to the assignment or sub-letting of a rental agreement (s 81 RT Act). If a renter believes that their rental provider has unreasonably refused to consent, the renter may apply to VCAT for an order that the rental provider’s consent is not required (s 82). The rental provider must not demand a fee for their consent, or refuse to consent because the renter has refused to pay a fee (s 84 RT Act). If the renter does pay such a fee, or the fee is thought to be excessive, the renter can apply to VCAT for an order that the rental provider refund the fee (see s 84(2); Jupp v Chambers (Residential Tenancies) [2010] VCAT 36 (15 January 2010)). While the RT Act only requires the rental provider’s written consent, the Residential Tenancies Bond Authority’s ( RTBA ) Renter Transfer Form requires the consent of all existing and proposed renters and the rental provider. Parties should not vacate and allow a proposed renter to take over the property until they are certain the assignment has been processed, and the bond transferred. If there is delay by a rental provider, the renters may wish to apply to VCAT pursuant to section 82 of the RT Act. No money is released from the bond held by the RTBA for assignments. Rather, the incoming renter repays the outgoing renter their share of the bond, in exchange for the outgoing renter transferring their interest in the bond held by the RTBA to the incoming renter’s name on the registered bond. It is advisable to consider a written agreement between incoming and outgoing renters about the bond, and to obtain the bond money from the incoming renter before they move in. When the rental provider is the Office of Housing, the director may withhold consent to any assignment or sub-letting on the grounds that the assignment or sub-letting would disadvantage people on public housing waiting lists (s 83 RT Act). Fees, costs and charges Costs of preparing a rental agreement A rental provider cannot make a renter pay any fees, costs or charges associated with the preparation of a rental agreement (s 51(1) RT Act). Rental agreements must be in the prescribed form (s 26). Renters are entitled to their own copy of the rental agreement (and copies of other documents that contain rental terms or are proposed to form part of the rental agreement) (s 29). Application and holding deposits If a rental provider or agent receives a payment from a renter in relation to a proposed rental agreement as a sign of good faith, the rental provider or agent must refund this payment: • when the rental agreement is entered into, if this occurs no later than 14 days after the payment was received; or • on the next business day after the 14 days, if the rental agreement is not entered into (s 50 RT Act). Renters who pay money before signing an agreement should make notes or correspondence to confirm that this money is a holding deposit. Commissions and inspection charges The rental provider or agent is not entitled to ask for or receive from a renter a payment that is a premium, bonus, commission or key money in relation to the making, continuation or renewal of a rental agreement (s 51(1) RT Act).