The Law Handbook 2024

Chapter 6.1: Tenancy 499 should be given with respect to examination and evidence thatmay be necessary to justify the application. Generally, a section 91U application will not be dismissed unless there is unsatisfactory hardship or the keys have been returned, but the amount of compensation may be scaled to reflect the hardship imposed on each party. If a section 91U application is dismissed, the rental agreement is not terminated, and the renter needs to consider their alternatives (e.g. lease-breaking or assignment). Family and personal violence applications to VCAT to terminate or create new rental agreements Termination and creation applications Orders to terminate or create rental agreements due to personal or family violence are dealt with under section 91V–91Y of the RT Act (previously, section 233A–233D). Applications can be made to either terminate an existing rental agreement, or to terminate an existing rental agreement and create a new rental agreement in the applicant’s name (i.e. the name of the person affected by the violence) for reasons of personal or family violence (s 91V(1)). Applications to terminate or create rental agreements due to personal or family violence can be made by renters or by any other person who lives at the premises as their principal place of residence (s 91V(2) RT Act). The perpetrator of the violence must be on the rental agreement (s 91V(2) RTAct). If the perpetrator is not a party to the rental agreement and the renter is seeking to vacate the premises, they need to apply for a termination or reduction of the fixed-term rental agreement for hardship reasons (s 91U) (see ‘Hardship application for reduction or termination of a fixed-term agreement’, above). Fixed-term agreements in rooming houses should be considered in relation to sections 91V–91Y of the RT Act. However, there is no clear case law on this to date, given that liability may be capped to two weeks’ rent (s 142X(1)(a)) RT Act). If a new rental agreement is created, the agreement and rent must be on the same terms and conditions as the existing rental agreement (s 91W(4) RT Act). If the existing tenancy is for a fixed term, the created rental agreement cannot be for a period longer than the existing fixed term (but it may be shorter by order of VCAT if requested by the applicant) (s 91W(4) (b)). It is recommended that the applicant asks VCAT to make orders restricting any listings on tenancy databases (s 91W(7)(b)). VCAT may also make orders in relation to access to collect any goods left behind. In making an order, VCAT may determine the parties’ liabilities under the existing rental agreement, including matters pertaining to the bond, liabilities for damage, outstanding utility charges, and liability in relation to outstanding rent (s 91X RT Act). There are no clear guidelines on when VCAT should apportion rent arrears or other outstanding liabilities. Evidence of the practical implications for the renter being denied or granted the relief should be given in favour of limiting the applicant renter’s liability. The applicant should focus on the relative hardship between the applicant renter and rental provider if the relief is not granted to the renter in relation to the liability brought about by the family violence. The financial circumstances (including impecuniosity) of the perpetrator should not be a relevant consideration for VCAT in its decision to apportion liabilities (see TDF v YCA & GDC (Residential Tenancies) [2022] VCAT 730 (29 June 2022)). It is recommended that an applicant seeks orders protecting their portion of the bond and apportioning liability to the perpetrator of violence for any damage or loss caused by the perpetrator. It is also important to highlight that the protections in relation to the bond are limited to the bond unless the application has been made under section 91V of the RT Act. Accordingly, it is strongly recommended to make the application under section 91V rather than rely on the limited protections in relation to the bond amount alone (s420 A RT Act). A rental provider cannot claim compensation for the early termination of a rental agreement if a rental agreement is terminated under section 91 W of the RT Act (s91 X(2)). Intervention orders Personal violence A personal safety intervention order is still required where there is personal violence, and it may be preferable that the intervention order excludes the perpetrator from the property (s 91V RT Act).