The Law Handbook 2024

Chapter 6.1: Tenancy 529 Huppert (Residential Tenancies) [2017] VCAT 395 (10 March 2017). If a large compensation claim proceeds to VCAT, it is recommended to ask under oath the identity of the rental provider’s insurer (if any) and if there is any intention to make a claim. The tribunal may or may not entertain such questions. Note that a renter cannot force a rental provider to make a claim on their insurance. Equally, once the rights to make a claim against the renter have been given to the insurer, the rental provider cannot also make a claim against the renter (sometimes referred to as ‘double dipping’). If a renter has been to VCAT already about a matter, and it is resolved, and the insurer is later pursuing the rent for the same issues, the renter should indicated the matter has already been determined by VCAT. The inverse is also true, if an agreement is resolved with the insurer, the rental provider is not able to make a valid claim to VCAT, and VCAT should be shown the agreement with the insurer. A rental provider seeking to ‘double dip’ may either void their insurance or potentially risk fraud-related charges. If a debt has not been before VCAT or any court to be decided, a claim by an insurer against a renter may be challenged. It is not a decided debt or issue, it is an allegation. If an insurer or their agent alleges a renter owes money, the renter should not immediately admit liability. The renter should first ask to see a more detailed outline of the evidence, and a breakdown of the amounts that the renter is alleged to owe. If the matter relates to a fire and a fire report was created, this may be requested under freedom of information. As with any other claim by a rental provider, they must prove that the renter is at fault. Also, any alleged losses are subject to depreciations and the other principles set out earlier in this chapter. The proper forum to resolve disputes in most cases remains VCAT (see ‘Proper forum’, below). Forcing an insurer to litigate in VCAT will substantially improve negotiations if the issue is disputed. Insurance is a numbers game, and renters should not be afraid to seek waivers, or assertively negotiate low lump-sum payments. Before reaching any settlement with an insurer, renters should read Chapters 10 and 11 of the General Insurance Code of Practice (available at www.insurancecouncil.com.au/cop/) and seek both legal and financial advice as soon as practicable after initially being contacted. Social housing What is social housing? ‘Social housing’ is an overarching term that covers both public housing and community housing. Social housing is a type of rental housing that is provided/ managed by government or non-government organisations. Social housing often adopts policies that are in addition to the criteria of the RT Act. These polices are designed to regulate and protect the accessibility of financially supported housing. In October 2017, the Victorian Ombudsman published its findings about the ‘investigation into the management of maintenance claims against public housing renters’. The report made broad- ranging observations, numerous recommendations, and called for a cultural shift within public housing. Since then, many policies have been reviewed and amended. Most importantly, having an outstanding debt with the Director of Housing no longer stops a person from being placed on the public housing waiting list or from accepting a public housing property. Renters with extensive maintenance debts should seek legal advice (see Chapter 2.4: Legal services that can help). In July 2022, the Victorian Ombudsman published its findings in relation to complaint handling in the Victorian social housing sector. The Ombudsman made 17 recommendations to improve renter outcomes and for complaint handling to become more renter-focused. Importantly, the recommendations include having a unified, two- tiered complaint system that would lead to a single Social Housing Ombudsman who would cover both public and community housing. Recommendations were also made to amend the Freedom of Information Act 1982 (Cth) to include community housing. Note also that the roll-out of the Victorian Affordable Housing Program ( VAHP ) has commenced. Accompanying policies and eligibility are gazetted (s 142JA Housing Act 1983 ), and there is a related Notice to Vacate when a renter is alleged to have ceased meeting the eligibility criteria (s 91ZZEB RT Act). For more information, see www.homes.vic.gov.au/homes-victoria-affordable. Renters with disputes in relation to the VAHP or a related Notice to Vacate should seek advice as soon as practicable.