The Law Handbook 2024

516 Section 6: Houses, communities and the road vacate in public housing matters. The statement is a mandatory consideration in the reasonable and proportionate test (s 330A(ga)). Its purpose is to demonstrate the impact of the renter’s conduct as set out in the Notice to Vacate and the impact on any persons affected by the conduct. A copy of a community impact statement given to VCAT must also have been given to the renter. To date there are no residential tenancy decisions in relation to the weight ascribed to such evidence or the ability to cross-examine the veracity and identity of deponents contributing to a community impact statement and the issue of procedural fairness. Compliance orders In some circumstances, where a rental provider has applied for a possession order that would end the rental agreement, VCAT may decide that it is more reasonable and proportionate to dismiss the rental provider’s application and instead make a compliance order (s 332A RT Act); see South Port Community Housing Group Inc v Ng (Residential Tenancies) [2022] VCAT 614 (3 June 2022). A compliance order tells the renter that they need to comply with their duties under the law. This is the primary means by which to address social conflict and related breaches without an eviction. For example, a compliance order could tell a renter to fix the issue that resulted in them getting a Notice to Vacate and to not commit the same breach of duties again (s 332A RT Act). Compliance orders should always be specific, unambiguous, measurable and, where possible, time-limited. The tribunal may limit the time a compliance order remains in place. If they do not, the order continues indefinitely as there is no clear power to reopen or vary the order later. This is especially important in social housing where tenure is generally longer. Clear and measurable compliance orders are especially important when responding to issues such as hoarding and clutter. Use of tools such as the ‘Clutter Image Rating Scale’ and clinic support can help create orders that more closely align to best health practices for supporting people with hoarding and clutter tendencies. Hoarding is a prevalent, diagnosable and recognised health condition in the DSM-V and may have co-morbidity with other conditions. Potential access and support for the person through the NDIS should be considered to enable and resource a coordinated and supported ‘person-centered approach’ that reflects best health practices that show better long-term outcomes for the renter and properties that are safe and well care for. VCAT may consider making a compliance order where a rental provider has applied for a possession order after giving a Notice to Vacate to a renter for: • causing serious damage, either deliberately or recklessly (s 91ZI RT Act); • causing danger to neighbours, the rental provider, or agent, or to a contractor or employee of the rental provider or agent (s 91ZJ); or • being threatening or intimidating to the rental provider, or agent, or to a contractor or employee of the rental provider or agent (s 91ZK). VCAT orders If VCAT decides that it is ‘reasonable and proportionate’ to make a possession order – taking into consideration the factors outlined above – it must make a possession order (s 330 RT Act). If VCAT decides it is not ‘reasonable and proportionate’ to make a possession order, it can dismiss the rental provider’s application or make a different order, if a different order is more appropriate (s 330, 330A RT Act). For example, in some circumstances, VCAT could adjourn a rental provider’s application for a possession order based on a Notice to Vacate for overdue rent and make an order for a payment plan instead (s 331). Request to postpone the warrant If VCAT makes a possession order in the rental provider’s favour, the renter can ask VCAT to exercise its discretion to also make an order postponing the time in which the rental provider can request a warrant of possession to evict the renter. The request must be made during the possession order hearing. VCAT may order that issuing a warrant be postponed for up to 30 days, if satisfied that the renter would suffer greater hardship (if the warrant were not postponed) than the rental provider (or mortgagee) due to the postponement (s 352 RT Act). If the renter argues that they will experience hardship if they are evicted, they need evidence to support their claim (e.g. letters from doctors or social workers, or evidence they have tried unsuccessfully to find suitable alternative accommodation). There has