The Law Handbook 2024

Chapter 6.1: Tenancy 531 What is unusual about the rental rebate scheme is the operation of the scheme despite section 27B(1) (c), (f) of the RT Act. The relationship between the rebate policies and rental agreements will likely be the subject of future litigation. Especially as Notices to Vacate for rent arrears now provide that rent paid for a public housing property or for a registered community house is defined as the amount payable by the renter to occupy the premises, less any applicable renter rebate. The ambit and scope of VCAT’s powers will be central to the issue of how VCAT determines whether 14 days’ worth of ‘rent’ is owed. For rent arrears matters, it is critical to ensure the rebate has been properly assessed and is up-to-date, as this may dictate the validity of a Notice to Vacate. Renters should raise any questions about rental rebates with VCAT to ensure that the rental rebate decision by the provider is final. Practically, if parties disagree with a particular assessment, they can lodge an application for an internal appeal. Typically, VCAT will adjourn a matter and not make a decision until the rebate assessment and appeal are finalised. If the application of a rebate policy appears to be in error after an internal appeal, parties should seek legal advice. For more information, see ‘Rental rebate manual’, which is part of the Public Housing Policy and Practice Manuals on the provider’s website. Temporary leave of absence Generally, if a sole renter is going to be absent for at least six months, the renter should let the Office of Housing know in writing, so the rental provider does not think the renter has abandoned or sublet the premises. If a renter is absent, they should provide up-to-date contact details, or an emergency contact number. In special circumstances, a sole renter may be eligible for reduced rent for the duration of their absence (for up to six months, generally). During this period, rent is reduced to $15 a week. Recognised reasons that may entitle a party to reduced rent include experiencing personal or family violence, or being temporarily relocated to a nursing home, or rehabilitation, respite or incarceration (remand or sentenced) facility. Renters should discuss these policies and the relevant documentation with their public housing provider. Hearings, appeals and offences under the Residential Tenancies Act Proper forum Transfer from court to VCAT Sometimes, parties may commence proceedings in a court rather than at VCAT. It is possible to request the matter be stayed and enable to parties to apply to VCAT (s 188 ACL&FTA). In exercising this discretion, the court must have regard to the costs, duration and advantage and disadvantage to the parties. This cannot be done if the matter has been transferred from VCAT to the court. Transfer from VCAT to court Similarly, sometimes parties may commence proceedings at VCAT rather than a court. It is possible, pursuant to section 77 of the VCAT Act, for VCAT to strike out a matter if it thinks it can be more appropriately dealt with by another body or court. VCAT may do this upon request or at its own initiative (s 77(4) VCAT Act). As set out above (see ‘Interstate parties’), Part 3A of the VCAT Act is likely to affect the willingness of the Magistrates’ Court to hear the matter and refuse the transfer to VCAT. The magistrate needs only to be satisfied there is doubt about VCAT being the correct forum (for the reasons found in the Meringnage case) for there be a substituted proceeding. It is important to be clear about the application of Part 3A, rather than the Magistrates’ Court Act being the source of the originating motion or complaint. This is because Part 3A contains costs protections, and an action based solely on the Magistrates’ Court Act does not. Appeals under the Residential Tenancies Act Appeals are highly complex and may not necessarily provide a practical long-term or economic resolution in a rental matter. Comprehensive advice should always be sought before appealing a VCAT decision. Appeals of VCAT orders are made pursuant to