The Law Handbook 2024

Chapter 6.1: Tenancy 527 Rental provider’s breach of duty provisions If a rental provider or agent has breached the RT Act or the rental agreement, the renter should serve them with a Breach of Duty Notice in order to claim compensation (ss 208, 209 RT Act). The types of breaches for which a notice might be served are discussed in ‘Rental provider and renter duties’ above. The notice must: • specify the breach; • detail the loss/damage caused by the breach; • require the rental provider to remedy the breach or pay compensation within a required timeframe (seven days for a breach of quiet enjoyment and 14 days for any other breach); • state that the rental provider must not commit a similar breach again; and • state that if the notice is not complied with, an application may be made to VCAT; or a Notice of Intention to Vacate can be given if there have been multiple breaches (ss 3, 208 RT Act). The notice must be in writing, addressed to the person allegedly in breach of the duty (or their agent) and be signed by the person giving the notice (s 208 RT Act). The renter can give this notice in the form of a letter; however, given the requirements of section 208, it is advisable to use the prescribed Notice of Breach of Duty to Rental Provider form. It is recommended that the renter send the notice by registered mail in case of a dispute about service. Alternatively, if parties have consented within the meaning of the Electronic Transactions (Victoria) Act 2000 (Vic), the notice may be served via email (see ‘Serving Notices to Vacate’, above). If the rental provider does not pay the compensation claimed or comply within the required timeframe (seven days for a breach of quiet enjoyment and 14 days for any other breach), the renter may apply to VCAT for a compensation order or a compliance order (ss 3, 208, 209 RT Act). Other breaches If a rental provider or agent has breached the RTAct or a tenancy agreement, but the breach was not of a duty provision (e.g. damage was caused to the renter’s goods during entry by the rental provider or their agent), or if the claim is for repayment of moneys overpaid (e.g. invalid rent increases, or rent paid beyond a vacate date), or the loss or damage is due to discrimination, the renter may apply to VCAT without first serving any notice (ss 209AA, 210, 210AA RT Act). Nonetheless, it may still be beneficial for the renter to serve a notice on the rental provider or agent even if the breach was not of a duty provision. This gives the rental provider details of the claim, and an opportunity to agree to payment. The renter’s application to VCAT for compensation must give details of the breach and of the loss or damage caused by the breach (r 8.10(2) VCAT Rules). Compensation claims by the rental provider A rental provider may claim compensation from a renter if: • the rental provider has suffered loss or damage as a result of a breach of duty under the RT Act or a breach of the rental agreement by the renter; or • the rental provider has paid more to the renter than required under the rental agreement or RT Act (ss 209, 209AA, 210 RT Act). Defending compensation claims If making a claim for compensation, the rental provider bears the onus of proof and must establish that on the balance of probabilities: • the renter breached the rental agreement or the RT Act; • the rental provider has sustained loss or damage; • the loss or damage sustained by the rental provider resulted from the renter’s breach of the rental agreement or the RT Act; and • the amount they are claiming is reasonable. The rental provider must provide evidence to support their claim and must give the renter copies of any documents or photos they want to present to VCAT. It is prudent for parties to ask for, in writing, any document they wish to see before the VCAT hearing. If a document is not provided before the hearing, parties may wish to consider requesting an adjournment on the basis of procedural fairness, or to raise the issue with VCAT with respect to credibility. It may also be possible to compel a party (or third parties) to produce a particular document (s 104 VCAT Act).