The Law Handbook 2024

Chapter 6.1: Tenancy 493 the rent is excessive. The report will also include a statement about the renter’s right to apply to VCAT to challenge the rent increase (s 47(3)). The report must take into account the considerations listed in section 47(3) of the RT Act. Rent increases: Application to VCAT Once a renter receives the director’s report, they may apply to VCAT for an order that the rent or proposed rent increase is excessive (s 46(1) RT Act). This VCAT application must be made within 30 days of receiving the inspector’s report (s 46(2)t). A renter can also apply to VCAT if they believe the rent increase is excessive, but without receiving a report from the director, if they haven’t received the report, and the application is made 30 days after the notice of rent increase has been given (s 46(3) RT Act). Permission from VCAT to make an application without the director’s report requires the renter to show why they did not apply for an assessment from the director within 30 days of receiving the notice of rent increase. The application to VCAT should request an order declaring the rent or proposed rent to be excessive. A copy of the director’s report must be attached to the application (r 8.07(1) VCAT Rules). If there is a report from the director, VCAT must take the report into account (s 47(2) RT Act). VCAT and the renter are not bound by the report, and submission may be made but it is a heavy burden to show the director’s report is incorrect. When determining whether the rent or proposed rent increase is excessive, VCAT consider factors such as the rent of comparable properties, the condition of the premises, the cost of goods and services provided by the rental provider or renter, work the renter has done to the premises or facilities, and any changes to the rent and condition of the premises or facilities since the commencement of the rental agreement (s 47(3)). The renter should obtain as much evidence as possible on the section 47 (3) factors before the VCAT hearing. If the rent increase comes into effect before the VCAT hearing, the renter should pay the increased rent. If the application is decided in the renter’s favour, VCAT can order that the renter be reimbursed any increased rent that has already been paid (s 48 RT Act). If the renter does not pay the increased rent, they will be in arrears and at risk of eviction. Rent increases: Form 2 long-term rental agreements Unlike Form 1 agreements, Form 2 rental agreements set out the specific methods by which rent can be increased. Clause 15 sets out the specific methods available: rent must be increased based on CPI, or on the state rent index, or an increase could be a fixed percentage or a fixed dollar amount. Rent increases under these options are still conditional on a notice of rent increase, as described above. A 60-days written notice must be given, rent cannot be increased more than once every 12 months, and rent can only be increased if there is a method for calculating the increase listed in the rental agreement. Ending a tenancy: Overview How is a rental agreement terminated? A residential rental agreement can only be terminated in a way set out in the RT Act (s 91B). It is an offence for a rental provider (or a person acting on their behalf) to try, require, compel or attempt to compel a renter to vacate a premises (s 91P). If a rental provider gives a valid Notice to Vacate or the renter gives a valid Notice of Intention to Vacate, the tenancy agreement ends when: • the renter vacates the premises and returns the keys; • the rental provider obtains a possession order from VCAT and the renter vacates; or • a warrant of possession is executed. (See Intention to Vacate and Notice to Vacate , below.) Illegal evictions An illegal eviction occurs where a renter has been compelled to leave their rental premises. Even when the renter has been given a possession order by VCAT, only the police can validly evict a renter. For a lawful eviction, the rental provider must obtain a warrant of possession from the principal registrar of VCAT. The warrant of possession is then executed by the police, the locks changed, and the renter evicted. The rental provider may or may not be present.