The Law Handbook 2024

496 Section 6: Houses, communities and the road This notice can be served regardless of whether the rental agreement is fixed term or periodic, but it may only be done if the renter has not taken occupation. Typically, this is held to mean the renter has not started sleeping at the rented premises (even if they have moved in their personal goods). Renters should be cautious about serving a notice on these grounds. If the rental provider disputes the claim that the premises are unfit for human habitation or the premises do not meet a rental minimum standard, the renter has to establish a proper basis for serving this notice at VCAT. For this reason, it is preferable to include the statement and evidence specifically stating why the premises are unfit for habitation or do not meet a rental minimum standard in the Notice of Intention to Vacate itself. Evidence (e.g. photographs, witness statements, reports from trades people, engineers, the local council or expert builders or surveyors) may be obtained to support the notice. Rental provider is in breach If a rental provider is in breach of any of their duties under the RT Act (e.g. disturbing a renter’s quiet enjoyment), the renter may be able to end their rental agreement early. The renter needs to first serve the rental provider with a Breach of Duty Notice. If the rental provider does not comply with the Breach of Duty Notice within 14 days, then the renter can apply to VCAT for a compliance order. The renter can then serve the rental provider with a 14-day Notice of Intention to Vacate if: • the rental provider fails to comply with a VCAT compliance order (s 91ZE RT Act); or • the renter has sent the rental provider a Breach of Duty Notice twice before for the same duty provision, and they breach that duty for a third time (s 91ZF RT Act). If the rental provider makes an allegation of lease- breaking, the renter is required to prove each of the breaches, or the failure to comply with the compliance order. Long-term rental agreement not in standard form If a renter has a fixed-term agreement that is longer than five years, and the standard form was not used (Form 2), the renter can serve the rental provider with a 28-day Notice of Intention to Vacate (s 91ZC RT Act). The renter is not liable for any lease- breaking fee (s 91ZC(4)). Breaking a fixed-term rental agreement (lease breaking) A renter may want to vacate the premises before the end of a fixed-term agreement. Generally (without an agreement to the contrary), if a renter moves out before the end of a fixed-term rental agreement, the renter is liable to compensate the rental provider for breaking the rental agreement. Before returning the keys to the premises, renters are strongly encouraged to seek legal advice to determine if any other avenues are available to terminate the rental agreement under the RT Act. Where a renter has ended a rental agreement early, it is common for rental providers and agents to insist that rent continue to be paid as it accrues. However, once a renter has vacated the premises, the rental agreement is terminated and they are no longer liable to pay rent. Nonetheless, the rental provider is entitled to make a claim for compensation for any period of lost rental that has resulted from the renter moving out before the end of the fixed term. Generally, renters are advised to pay rent only up until and including the date the keys are returned. From this point, the renter remains liable for reasonable compensation at an amount similar to rent. In most cases, if the rent continues to be paid, there is less incentive for the rental provider to locate new renters. After returning the keys, renters may attempt to recover their bond. Such bond claims may be adjourned depending on the circumstances. Renters should monitor the rental provider’s efforts to re-let the premises. Once new renters have been found, the rental provider can apply to VCAT for compensation. The rental provider has to justify the reasonableness of the compensation claimed. What can the rental provider claim? If the renter breaks a fixed-term rental agreement, the rental provider can claim compensation (s 210 RT Act) for any loss or damage that results from the renter ending the rental agreement early. Such costs may include: