Taxes and rates
Unless the The agreement between a landlord and a tenant for the rental of a property. is for a fixed term that exceeds one year, the landlord must repay the tenant for any rates or taxes payable for the premises that are recovered from the tenant by a public Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. authority (e.g. a local council) (s 58 RT A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation.). (See Hescon Holdings Pty Ltd v Musgrave (Residential Tenancies)  VCAT 233 (18 February 2019).)
Landlord’s rights and responsibilities
A landlord is liable to pay for these utility charges:
- the initial connection The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs. of electricity, water, gas, bottled gas or oil supplies (i.e. where the Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence. has not been connected in the past);
- all charges for the supply or use of electricity, gas (except bottled gas) or oil when the premises is not separately metered;
- all water supply and sewerage disposal charges when the water consumption is not separately metered;
- water charges that are not related to consumption (e.g. the flat-rate service fee);
- all charges for supplying sewerage services or drainage services;
- all charges for supplying or hiring gas bottles (s 53(1)).
Tenant’s rights and responsibilities
A tenant is liable to pay for these utility charges:
- all charges for the supply or use of electricity, gas or oil when the premises are separately metered, except installation and initial connection costs and the costs of supply or (1) An agreement to pay for the temporary use of something, for example a car. Also called renting or leasing. (2) To employ someone to do work. of gas bottles;
- all charges for the use of bottled gas; and
- all charges for water consumption and sewerage disposal charges when the property is separately metered (s 52).
The tenant cannot be made liable for any costs that should be borne by the landlord as the RT Act makes no provision for this.
Any agreement purporting to extend the tenant’s Legal responsibility, enforced by civil or criminal courts. for utilities is an attempt to modify or restrict the operation of the RT Act and is, therefore, unenforceable (s 27).
If the landlord or tenant pays a utility cost for which the other A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. is liable, they can request reimbursement and should do so in writing by giving the landlord a Notice to Landlord with a copy of all relevant utility bills. Reimbursements must be made within 28 days of receiving the notice (s 55). If reimbursement is not forthcoming the party owed money may apply to VCAT for an order for reimbursement.
Note that the Energy and Water A public official appointed to investigate citizens’ complaints against government departments and statutory authorities. A specialised ombudsman resolves consumer complaints in a particular industry, for example the banking ombudsman for the banking industry. See also statutory authority. Victoria (EWOV) now has The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. with regard to embedded networks. All embedded network providers must be registered with EWOV. For more information about embedded networks, see www.ewov.com.au/companies/embedded-networks.
Telephones and internet
The tenant is liable for all charges relating to the installation, service and use of a telephone, including any fees for the installation of a telephone line. However, tenants are not liable for the cost of repairs.
The RT Act is silent on telephone lines as they relate to internet services. It is highly recommended to get a written term inserted into a A document that sets out an agreement between a landlord and a tenant for the renting out of property, or for the use of other personal property such as a car. regarding the rented premises, and whether there is an active phone line installed that is capable of carrying internet.
If a landlord has told a tenant that the telephone is connected, and the tenant entered into the agreement on that understanding, there may be grounds to argue that the connection was a term of the agreement.
In the absence of any terms or Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects., if a service is sought by a tenant and is not installed, the tenant needs the landlord’s written To agree to something being done, to approve an action or arrangement. See also informed consent. (s 64) and is liable for the full cost of installation.
Where there are pre-existing facilities, the wiring within the house A document that sets out what a person wants to happen to their money and other property after they die. be covered by the landlord’s obligation to ensure the premises are in good repair.
Director of Housing service charges
The Director of Housing (and organisations receiving funding from the Office of Housing) can (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. for water, central heating, laundry or utility services provided with the premises. This only applies where it is not possible or practical to accurately measure the use of the service or facility (s 57 RT Act).
Landlord and tenant duties
Overview of tenant’s duties
The RT Act (s 207) differentiates between breaches of a ‘duty’ provision of the Act and other breaches. If the landlord believes that the tenant is in breach of a duty provision of the Act, the landlord may serve the tenant with a Breach of Duty Notice.
A Breach of Duty Notice can be found on the Under the Australian Consumer Law, a person who buys goods or services for less than $40 000 or for personal or home use. Affairs of Victoria website. A Breach of Duty Notice does not automatically prove that a breach has taken place, but they can be relied as evidence of the fact an allegation of a breach has been communicated.
If found to be true, Legally binding or effective. and proven, a Breach of Duty Notice can enable a party to obtain a compliance order, compensation, or in some cases successive breaches can lead to Notice to Vacate that may ultimately terminate the tenancy.
A Breach of Duty Notice can only be served if the tenancy has not already been terminated.
The grounds for a landlord to serve a Breach of Duty Notice are when:
- the tenant fails to permit entry when entry is sought in accordance with the RT Act (s 89);
- the tenant uses or permits others to use the premises in a way that causes a Doing something that stops another person fully using and enjoying land they own or occupy. For example, someone burning off smelly rubbish in their backyard might ruin a neighbour’s enjoyment of their garden. See also private nuisance; public nuisance. (s 60(1));
- the tenant uses or permits others to use the rented premises or common areas in any manner that causes an interference with the reasonable peace, comfort or privacy of any occupier of neighbouring premises (s 60(2));
- the tenant fails to take care to avoid damaging the rented premises or common areas (s 61);
- the tenant fails to keep the rented premises in a reasonably clean condition (s 63);
- the tenant has installed fixtures or has altered, renovated or added to the premises without the landlord’s consent (s 64);
- the tenant has changed a lock in a master key system without the landlord’s consent (s 70); or
- the tenant has failed to give the landlord a key to a changed lock (ss 70, 70A).
Landlords claiming compensation for breach of duty must prove they suffered loss caused by the breach.
Tenant’s duty to avoid damage
The tenant has a duty to take care to avoid damaging the rented premises and to take reasonable care to avoid damaging common areas (e.g. communal laundries and car parks). The tenant is not responsible for damage that is beyond their control (e.g. damage caused by a burglary) (s 61).
If the tenant becomes aware of damage to the rented premises, they must give notice to the landlord specifying the nature of the damage as soon as practicable (s 62). The tenant can give this notice in the form of a letter or on the Notice to Landlord form.
Overview of landlord’s duties
A tenant can serve a Breach of Duty Notice when:
- the premises are not vacant and in a reasonably clean condition on the day the tenant is to take (1) Having control over property. Possession is not the same as ownership. For example, a bicycle you have borrowed from a friend is in your possession but you do not own it. (2) Having illegal drugs on your person or property. (s 65(1));
- the landlord does not take all reasonable steps to provide quiet enjoyment of the premises (s 67);
- the landlord does not ensure that the premises are maintained in good repair (s 68(1));
- the landlord does not replace a water appliance, when such an appliance needs to be replaced, with appliance of a prescribed rating (s 69); or
- when the landlord does not provide locks, or a key when a lock is changed (s 70); or
- when the landlord provides a key to an excluded person for a lock that has been changed by a protected person under a A court order made to protect a family member from violence, intimidation or harassment by restraining a person from harmful or annoying conduct towards that family member. See also intervention order. or family violence safety notice (s 70A).
The landlord must take all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises during the tenancy agreement (s 67). This means that the tenant is entitled to enjoy the undisturbed occupation and possession of the premises without interference from the landlord or from things that are in the landlord’s power to prevent.
Long-term tenancy rights and duties
A significant difference between Form 1 and Form 2 tenancies is that the duties in the prescribed Form 2 override the statutory duties in Part 2 of the RT Act if they conflict (see cl 19; ss 27(3), 209AA).
Specialist disability accommodation duties
The duties for landlords of SDA under Part 12 of the RT Act are more extensive and onerous than the duties of landlords of non-SDA premises. The duties of landlords of SDA include (s 498M):
- Respect and privacy: SDA landlords must take reasonable measures to ensure that SDA residents are treated with dignity and respect and with due regard to their entitlement to privacy (s 498M(a));
- Good repair: SDA landlords must ensure that the SDA dwelling and any fixtures and fittings are maintained in good repair (s 498M(b));
- Quiet enjoyment and adjustments: SDA landlords must not unreasonably interfere with a SDA resident’s right to privacy or their right to the proper use and enjoyment of the premises. SDA residents also have a right to install any fixtures to assist their daily living (s 498M(c));
- Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions.: SDA landlords must take reasonable measures to ensure a SDA dwelling is secure (s 498M(d));
- Convenience: SDA landlords must minimise any inconvenience or disruption to the SDA resident when undertaking repairs or renovations (s 498M(e));
- Efficiency: SDA landlords must take reasonable steps to ensure that any repairs or renovations are completed in a timely manner (s 498M(f)).
The duties of residents of SDA are set out in section 498N of the RT Act. A SDA resident must:
- maintain the SDA dwelling in a clean state that does not create a fire, health or safety hazard;
- report any damage and give details;
- contribute to the cost of repairing damage if the resident intentionally caused the damage;
- pay the rent on the due date and in the manner specified in the SDA residency agreement;
- permit entry to a person who has a valid right of entry (s 498Y).
A SDA resident must not use the premises for an illegal purpose, endanger the safety of other residents or staff, cause serious disruption, intentionally damage or destroy part of the dwelling, install any fixtures without first obtaining the written consent of the SDA provider, or keep a pet without the SDA provider’s consent.
Specialist disability accommodation duties: Compliance orders
Breach of Duty Notices under the SDA framework are required to be complied with within 14 days (ss 498ZO, 498ZP). Unlike for Part 2 tenancies, a SDA Breach of Duty Notice is time limited. This means that an application for a compliance order must be made within 90 days of the last day that compliance was required in the Breach of Duty Notice (s 498ZQ). SDA residents who receive a compliance order should seek legal advice (see Chapter 2.4: Legal services that can help).
Landlord’s right of entry
Landlords or real All the property a person has, including real property and personal property. It is often used to describe property belonging to someone who has died, or the property of a bankrupt. agents who enter a premises without a notice are breaching a tenant’s quiet enjoyment. It is also an A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). to enter a premises for reasons other than in accordance with the RT Act.
To be entitled to enter a premises, the landlord or A person who acts for someone else. They can make decisions, carry out tasks or make agreements for the other person. For example, if you ask someone to bid for you at an auction they will be acting as your agent. must have a reason permitted by the RT Act, and must give notice in accordance with the RT Act (ss 85–87).
The tenant’s duty to permit entry only applies when the landlord or agent seeks entry in accordance with the RT Act (s 89). If the landlord or agent has not complied with the RT Act, the tenant does not have to let them in.
If the landlord is exercising a right of entry but fails to comply with the RT Act, the tenant may apply to VCAT for an order that the landlord be restrained from entering the premises for a specified period (s 91). The tenant may also serve a Breach of Duty Noticeclaiming compensation for their loss of quiet enjoyment. A tenant who applies for an order prohibiting entry or for compensation for loss of quiet enjoyment needs to substantiate their claim at VCAT.
The tenant should keep a record of all entries by the landlord, including how long they stay, and any other relevant information.
Reasons for entry
The occasions when the landlord or their agent may have a right to enter the premises, together with any person necessary to achieve the purpose of the entry, are limited to the following:
- a Notice to Vacate or a Notice of Intention to Vacate has been given and entry is required to show the premises to a prospective tenant during the last 14days of the notice period (s 86(1)(a)); or
- the premises are to be sold or used as security for a loan and entry is required to show a prospective buyer or lender through the premises (s 86(1)(b)); or
- entry is necessary to enable the landlord to carry out a duty under the tenancy agreement, the RT Act, or any other Act (s 86(1)(c)); or
- entry is required for valuation purposes
(s 86(1)(d)); or
- the landlord or their agent has reasonable grounds to believe that the tenant has failed to comply with their duties under the RT Act or the tenancy agreement (s 86(1)(e)); or
- entry is required for inspection of the premises and an inspection has not been made within the last six months (s 86(1)(f)); or
- entry is required to enable inspection of the premises for the purpose of proceedings under the family violence provisions (s 86(1)(g)); or
- entry for general inspections is not permitted within the first three months of a tenancy commencing (s 86(3)).
Entry during long-term tenancies (Form 2)
For Form 2 tenancies, the entry provisions for landlords and real estate agents are largely the same, except for the general entry provision. A landlord or agent may only enter under the general entry provision once every 12 months.
The tenant must be given no less than 14 days’ notice of the landlord/agent’s intention to enter the premises (cl 16 Form 2). The first inspection of the premises can occur any time during the first 12 months.
The RT Act is silent on whether a landlord or agent can take photographs. The exterior of a building that can be seen from a public space can be photographed. However, the law on taking photographs inside a home without the tenant’s consent is unclear.
Parties seeking to prevent the landlord from taking photos of their personal belongings in the home (where there is no reasonable justification such as Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. damage or repair issues) should send an email qualifying (limiting) the right of entry by stating that they do not consent to the taking of photographs of their personal belongings.
While there is no A binding promise made as reassurance that another person will carry out their legal obligations (e.g. paying a debt). The person making the promise is called a guarantor. If the person being guaranteed fails to pay, the guarantor becomes responsible for the debt. that this will be successful, parties may then seek to give a Breach of Duty Notice or apply for a In family law, a court order that prohibits someone from harassing or molesting another person. See also intervention order; personal safety intervention order; family violence intervention order. from VCAT on the basis that the entry has not been conducted in a reasonable manner (s 87).
VCAT will then consider all the relevant circumstances and whether it is reasonable that such personal information should be retained, whether any the photos be destroyed or limited in how they might be used such as prohibiting the use on billboards or in sales materials.
Open for inspections
The RT Act does not provide for open inspections. It may also be possible for tenant to object to a landlord or agent seeking to conduct open inspections without the consent of the tenant. Section 86(1)(a) and (b) refer to prospective tenants and a buyer in the singular. This means notice for entry may only be given where there is a party who actually will attend to inspection. It is further arguable that, in the absence of consent, only one prospective party may enter at a time, together with the agent or landlord, rather than the home being opened to the public Having escaped from control, for example, person who has committed a serious offence and has not yet been captured, or who has escaped from legal custody. Animals at large have escaped from secure confinement on their owner’s property..
Subsequently, if multiple entries are required because of the interest in the premises, the tenant may be entitled to proportionally more compensation for their loss of quiet enjoyment for entry on each occasion. Such claims for compensation may be subject to an obligation to mitigate loss and the Power to choose whether to do something or not. For example, a judge may have discretion to allow a party extra time to complete a document if it would be unfair to enforce the legal time limit. of VCAT. (See Higgerson v Ricco (Residential Tenancies)  VCAT1214 (26August 2014).)
Tenant consents to entry
The landlord’s right of entry will arise only if the landlord has given a proper written Notice of Entry or the tenant has consented to entry (s 85). Where a landlord or their agent seeks the consent of the tenant to enter the premises, and the tenant provides that consent, there will be a right to entry at the time agreed between the parties (s 85(a)). The consent must be given not more than sevendays prior to entry.
Written Notice of Entry
A right of entry will arise where:
- the landlord gives 24hours written notice of entry;
- the reason for entry stated in the notice is for one of the grounds listed at section 86; and
- the notice is given by post or in person between 8am–6pm; and
- the entry is to occur at any time between 8am–6pm on any day (except a public holiday).
- In sending a notice, a landlord should allow one day for postage for ordinary post and two days for registered post.
The landlord or their agent may enter the premises even if the time chosen is inconvenient to the tenant or the tenant is not home, as long as they have given the required notice and complied with the RT Act.
The person exercising the right of entry must do so in a reasonable manner and must not stay any longer than is necessary to achieve the purpose of entry (s 87(a)).
Where landlord has complied with the Residential Tenancies Act
Even if the landlord has complied with the rules regarding entry, they are still required to ensure the tenant has quiet enjoyment of the premises. A conflict between the landlord’s right of entry and the tenant entitlement to quiet enjoyment may arise when inspections are occurring frequently (e.g. when the premises are being sold).
In such cases, the tenant should attempt to negotiate an agreement with the landlord or agent that strikes a balance between their right to quiet enjoyment and the landlord’s right to enter the premises. Any such agreement should be written down, should specify the period of the agreement and be signed by both the tenant and landlord or agent.
An agreement may include conditions such as:
- the landlord or agent will only enter if they have made an appointment time with the tenant;
- the tenants will have the property open for inspection for an agreed time each week; or
- an arrangement (e.g. rent reduction for the period of the inspections) to compensate the tenant for the inconvenience caused by the inspections.
If a landlord refuses to compensate a tenant for inconvenience (due to numerous entries for a sales campaign), the tenant may apply to VCAT after giving a Breach of Duty Notice, or after the tenancy has ended, to determine if compensation is payable.
Entry to specialist disability accommodation
Entry to SDA is regulated by sections 498T–498Z of the RT Act. The following notice periods apply to entering a SDA dwelling:
- at least 48 hours’ notice to show a prospective resident or a prospective buyer the premises;
- at least 24 hours’ notice for Money paid to a person to financially support them. When a couple has separated both parents have a duty to support their children, and a court can order a parent to make regular payments to support the children. Maintenance for a spouse is now less common, and must be applied for within 12 months of a divorce. It is usually covered in a final settlement of all property. or repair work;
- at least 24 hours’ notice to allow a duty under the RT Act or any other Act to be carried out;
- at least seven days’ notice for a valuation or a general inspection (and not more frequently than once every six months and not within the first three months of the tenancy).
A SDA provider can enter the SDA without giving notice if all the residents agree.
SDA can be entered without consent if:
- the SDA provider believes, on reasonable grounds, that entry is necessary for the health and safety of the SDA resident(s); or
- the SDA resident(s) have abandoned the premises; or
- entry is necessary to To promise to do or not do something, such as returning to court on a certain day, or to hand a document over to another party in a legal proceeding. An undertaking is enforceable by attachment or like an injunction. urgent repairs (s 498V(2)).
A landlord is required to ensure the rented premises is maintained in good repair. The duty ‘is strict and absolute and imposes an obligation upon a landlord to identify and rectify any defects of which they are aware or ought to be aware’ (Shields v Deliopoulos  VSC500 (7September 2016)).
Note that repairs and rent payable are treated as separate issues by VCAT. If there are significant repairs, a tenant cannot refuse to pay their rent on the basis of ignored repair requests. A tenant may still be evicted for rent Money owed that is due on a certain date and is late being paid (overdue)., and have a valid compensation claim for a lack of good repair caused by the landlord.
A tenant is not entitled to refuse to pay rent because they regard the (1) An undertaking by someone to do or not do something, especially a good behaviour bond, which can be part of a sentence given by a court. (2) A tenant’s payment of money to a landlord at the start of a tenancy. The bond is held in case there is any damage to the property or the tenant fails to pay rent. as rent paid (s 428).
If tenants have doubts about who is authorised to do certain repairs or the qualifications of attending trades people, contact the Victorian Building Authority.
The repair process for specialist disability accommodation is the same as the repair process for standard tenancies (ss 498O–198S), except the rent special account does not apply to specialist disability accommodation.
Rent special account
As an alternative, where the tenant has given notice requiring repairs to be carried out to the rented premises, the tenant may apply to VCAT for an order authorising the tenant to pay the rent under the tenancy agreement into the ‘rent special account’ (s 77).
This means that rent is paid to a A bank account in which money is held on behalf another person, not for the use of the account holder. For example, a lawyer’s trust account holds clients’ money. It is regulated by strict accounting rules that safeguard the clients’ interests. For example, a trustee may hold a child’s inheritance for them until they turn 18. held by VCAT until such time VCAT orders the amount of rent to be released, on the basis that the landlord has fulfilled, or is fulfilling, their obligation to carry out the repairs. For more information, see VCAT Practice NotePNRST3. Rent special accounts do not apply to SDA.
Notice to Vacate for asking for repairs
If a tenant receives a Notice to Vacate immediately after asking for repairs (or exercising any other right under the RTAct), the tenant should seek legal advice immediately about challenging the notice as being retaliatory.
While dismissing notices for retaliation are strictly limited to ‘no reason’ and ‘end of fixed term’ notices to vacate, the circumstances will still likely inform VCAT’s decision.
The RT Act sets out three processes in relation to requesting repairs for urgent repairs; non-urgent repairs; and breach of duty procedure.
Urgent repairs are defined in section 3 of the RT Act to mean any work necessary to repair or remedy:
- a burst water service;
- a blocked or broken toilet system;
- a serious roof leak;
- a gas leak;
- a dangerous electrical fault;
- flooding or serious flood damage;
- serious storm or fire damage;
- a failure or breakdown of any essential service or appliance provided by a landlord for hot water, water, cooking, heating or laundering;
- a failure or breakdown of the gas, electricity or water supply to the rented premises;
- an appliance, fitting or fixture provided by a landlord, that uses or supplies water and that is malfunctioning in a way that results or will result in a substantial amount of water being wasted;
- any fault or damage that makes the rented premises unsafe or insecure; or
- a serious fault in a lift or staircase.
First, the tenant must take reasonable steps to arrange for the landlord to immediately carry out the repairs (s 72(1)). This ordinarily involves attempts to advise the landlord or agent of the need for repair by telephone. At the start of the tenancy, the landlord should have provided the tenant with an emergency telephone number to be used in case of the need for such repairs (s 66(2)(b)).
What constitutes ‘reasonable’ depends on the circumstances; that is, the degree of urgency of the repairs and the number of times the tenant has attempted to contact the landlord. With particularly urgent repairs, like a serious gas leak, the tenant may only need to make one or two attempts to contact the landlord before deciding to take further steps.
The tenant should keep a record of all telephone calls (answered and unanswered) and any other attempts to contact the landlord or agent.
Following this, if neither the landlord nor agent carry out the repairs, and the cost of the repairs is not more than $1800, the tenant can carry out the repairs or arrange for the repairs to be attended to by a tradesperson (s 72(1), (2)). Alternatively, a tenant can make an urgent application to VCAT (s 73) (see ‘Contacts’ at the end of this chapter).
Where tenant pays for urgent repairs
The tenant must ensure that the cost of the repairs will not amount to more than $1800 (including GST). If the tenant arranges for urgent repairs to be done and the cost is more than $1800, the landlord is only liable to pay the reasonable cost of repairs up to $1800 (s 72(2)(b)).
After arranging for the repairs to be carried out, the tenant must give the landlord 14days’ notice in writing of the repairs carried out and the cost of the repairs (s 72(2)(a)). The tenant should give this notice in the form of a letter, or on the Notice to Landlord form. The tenant should attach a copy of the receipt or invoice and retain the original. If the landlord does not pay the amount within 14days, the tenant may apply to VCAT for an order for reimbursement.
Applying to VCAT for urgent repairs
If a tenant cannot afford to pay for repairs themselves or the repairs cost more than $1800, after attempting to arrange for the landlord to do the repairs, the tenant should make an application to VCAT (s 73).
VCAT are required to hear an application for urgent repairs within twobusiness days of receiving the application (s 73(2)). Sometimes, in practice, applications take longer to be heard.
The tenant should provide evidence of the need for repairs, the urgent nature of the repairs and the attempts made to arrange for the landlord to do the repairs. VCAT has the power to make an order requiring that the landlord do the repairs within a specified time.
Non-urgent repairs are repairs other those defined as ‘urgent repairs’. These are required to ensure that the rented premises, fixtures and appliances supplied by the landlord are maintained in a state of good repair.
In older houses, distinguishing dilapidation and the concept of ‘good repair’ is not an easy task; for example, in relation to old carpet that is threadbare or peeling paint. When in doubt, parties should engage the non-urgent repair mechanism to determine whether the issue is a non-urgent repair, or a request for renovation or upgrading.
In complex, non-urgent repairs matters, VCAT may consider it appropriate and more efficient to convene at the rented premises, so that VCAT might inform itself about the nature of the issue (s 129 VCATAct). Though this is rare, such a Something of value, such as money, given by one person to another person as part of a contract. may be raised with VCAT to expedite some matters.
Written Notice of Repair
The tenant must give the landlord 14days written notice that non-urgent repairs are needed (s 74). The tenant should use the Notice to Landlord form. The RT Act does not require a tenant to use the Notice to Landlord form, but it may be difficult to arrange an inspection with CAV unless this notice is used.
The notice should be given to the landlord or agent personally, or sent by post, and a copy kept by the tenant. It is recommended to send it by registered post, in case of a dispute about service.
Inspection and report
If the landlord has not carried out the repairs within 14days, or the repairs are not a satisfactory standard, the tenant can apply in writing to the Director of CAV requesting that an inspector investigate (s 74). The tenant can send a letter requesting the inspection or use the ‘request for repairs inspection’ form or the ‘rent assessment’ form. A copy of the Notice to Landlord should be attached. The CAV inspection and accompanying report is a freeservice.
After inspecting the premises, copies of the inspection report must be provided to the landlord and the tenant (s 74(3)). If the inspector is satisfied that the landlord is in breach of their duty to maintain the premises in good repair, they may attempt to negotiate the carrying out of repairs. However, generally the report will simply make recommendation for VCAT to order when an application is made to VCAT.
Application to VCAT
If the tenant has received the inspector’s report, yet satisfactory arrangements cannot be made to carry out the repairs, the tenant can apply to VCAT. The application should be made under section 75(1) and a copy of the inspector’s report should accompany the application (r 8.07(2) Victorian Civil and Administrative A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding. Rules 2018 (Vic) (‘VCATRules’)).
The application must be made within 60days of receiving the report (s 75(2) RT Act). If the tenant has not received a report within 90 days of applying to CAV, the tenant may apply to VCAT without the report (s 75(3)). VCAT has the power to make an order requiring the landlord to carry out the repairs within a specified time.
Owners corporations and repairs to common property
It is not uncommon for tenants or landlords to be uncertain about repairs to common property where there is an A body corporate created by registration of a plan of subdivision or a plan of strata or cluster subdivision. See also prescribed owners corporation.. The Owners Corporations Act 2006 (Vic) (s 163) makes it possible for a tenant to bring a claim directly against an owners corporation for repairs to common property or services.
Further, in disputes between the landlord, tenant and owners corporation, parties may file an application under the Residential Tenancies List of VCAT and seek to join the owners corporation as in interested party to a dispute (s 60 VCAT Act). The decision to join a party may be made by then or be at VCAT’s initiative.
In some cases, it may be appropriate – where there are shared utility services, roof spaces, driveways or delays between the various insurance companies – to seek to apply to VCAT and to join the owners corporation as an interest party. This may be beneficial for both landlords and tenants in complex matters.
What is a rooming house?
A rooming house is a building in which there are one or more rooms available for rent, and at least fourpeople live in the building (s 3(1) RT Act).
The most common and distinct characteristic of a rooming house is that the people living in the rooming house have no control over who occupies the rooms in the house.
Nothing in the RT Act (s 3(4)) prevents a rooming house from being more than one building (seeBoroondara CC v Dugdale (Includes Summary) (RedDot)  VCAT721 (14 May 2015)).
Note that some rooming houses are ‘gazetted’. This means that regardless of the number of occupants and rooms, the premises is treated as a rooming house for the purposes of the RT Act. Gazetted rooming houses are usually owned by community housing operators. To check if a rooming house is gazetted, visit www.gazette.vic.gov.au and select the RT Act in the advanced search option.
Residents of the same rooming house usually have separate rental agreements and separate bonds. It is not uncommon for none of these to comply with the RT Act.
There are still numerous unregistered and unlicensed rooming houses. People living in an unregistered rooming house have done nothing wrong, but they should seek legal advice (see Tenants Victoria in ‘Contacts’ at the end of this chapter).
People using Centrepay to pay rent should make sure that Centrepay is cancelled and consider not using Centrepay until they are satisfied the rooming house is suitable for them. This will avoid any issues in obtaining refunds for rent paid in advance.
Rooming House Operator Licensing Scheme
The Rooming House Operators Act 2016 (Vic) (‘RHO Act’) came into effect on 24April 2017. All operators covered by the RHO Act were expected to be compliant by 24 August 2017.
This licensing scheme is jointly administered by the Business Licensing Authority and CAV. Under the RHO Act, rooming house operators must be licensed (s 7), and rooming house operators (including managers) must satisfy a fit and proper person test (ss 10, 18). Not complying with the RHO Act can result in penalties of up to $10 000, conditions being attached to a rooming house licence, and licence disqualification or cancellation.
Rooming houses must display – in a conspicuous place inside the rooming house’s front entrance – their licence (including any conditions imposed by VCAT) (s 39). Also, the business licensing The officer in charge of the administrative section of a court, which is known as the registry. See also prothonotary. must publish online key information about each licensee (s 44).
VCAT may make protective orders to limit the adverse effects of non-compliance by operators on residents if an operator is disciplined for
non-compliance (ss 34, 38).
A tenancy agreement or residency right does not terminate automatically because of cancellation or failure to renew a licence (ss 228A, 272A). However, see sections 268A, 268B, 290A and 290B, which provide that a 120-day Notice to Vacate may be given in certain circumstances.
The operator (or manager as applicable) must also report if they cease to be a fit and proper person within 14days of becoming aware they are no longer a fit and proper person (s 21), or if there are any changes to the operator’s or manager’s details (s 22). In most circumstances, it is an offence to allow a disqualified or unfit person to continue to be an officer or manager of a rooming house (s 27).
As a result of the RHO Act, any prescribed forms (e.g. Breach of Duty Notices or Notices to Vacate) should contain information about the identity of a rooming house’s managers and appointed officers. If a manger or operator is not licensed, this information should be provided to CAV (ss 7, 8).
There are no minimum standards for rented premises.
Rooming houses are prescribed accommodation under the Public Health and Wellbeing Regulations 2009 (Vic), which provide for minimum standards (regs 17–27) regarding the:
- number of people who can be accommodated in one room;
- minimum room size;
- maintenance and cleanliness of the rooms and common areas;
- supply and quality of hot and cold water;
- (1) To fulfil an obligation or be released from an obligation. For example, a debtor can discharge a debt by paying it; a prisoner can be discharged (released) from jail. of sewage and wastewater;
- provision of vermin-proof refuse receptacles;
- number of toilets and bathrooms per person.
A rooming house must be registered with its local council. It is an offence to not register a rooming house, and to not comply with any of the minimum standards. Local government authorities, normally Environment Health Officers, can investigate breaches.
A rooming house owner must also ensure that rooms, services and common areas comply with the minimum standards set out in the Residential Tenancies (Rooming House Standards) Regulations 2012 (Vic) (reg 120A). The standards outline detailed minimum standards for The pleasantness, benefits and enjoyableness of an environment. While individual features such as a toilet block are called ‘amenities’, amenity in planning law is a quality, not a location or a thing. For example, building a toilet block will add to the number of public amenities in the area, but it may also decrease the amenity of the near neighbours. in rooming houses relating to privacy, security and safety.
According to these standards a room must have:
- a door that is operated by a key from the outside and able to be unlocked from the inside without a key (reg 6);
- at least two working electrical power outlets (reg 7);
- window coverings on all windows that can be opened and closed by the resident and gives the resident privacy (reg 8);
- external windows (if any) of the rooming house that can be opened must be securely fixed in a closed or open position without a key (reg 19).
According to these standards, a rooming house must have the following:
- a shared bathroom or toilet must be fitted with a privacy latch that can be securely latched from inside without using a key (reg 10);
- a number of chairs equal to the maximum number of residents, and a table that can comfortably fit those chairs (reg 12);
- a communal laundry trough with a continuous and adequate supply of hot and cold water, with a space next to the trough for a washing machine, and outlets for hot and cold water (reg 13);
- a clothesline or other drying facilities (reg 13);
- adequate ventilation for rooms, bathrooms, showers, toilets and laundry (reg 17); and
- adequate lighting for rooms, hallways and corridors that is appropriate for those rooms (reg 18).
A rooming house must provide in either the residents room or common area:
- a food preparation area (reg 11(a));
- a sink (reg 11(b));
- one oven that is in good working order for every 12residents or maximum The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. of residents in the rooming house (reg 11(c));
- a cooktop with at least four burners that is in good working order, per 12residents or maximum capacity of residents in the rooming house, if the cooktop is in the common area (reg 11(d));
- a fridge with minimum gross capacity of 80litres in a room, or 400litres in common area (reg 11(e));
- not less than one cupboard of 0.1cubic metres for each resident, and that this cupboard is lockable if located in the common area (reg 11(f)).
A rooming house must:
- at least once every two years, have a gas safety check of all gas installations and fittings performed by a licensed gas fitter (reg 19), and keep a register of the gas fitters who have performed the check (reg 23);
- at least once every five years, have an electrical safety check by a licensed electrician of all electrical installations and fittings at the rooming house (reg 20), and keep a register of the gas fitters who have performed the check (reg 24);
- have a compliant electrical safety switch and switch board (reg 16);
- have a lock fitted to each entrance that is operated by a key from the outside and can be unlocked from the inside without a key, and each entry must have a window, peephole or intercom and adequate lighting to allow screening of visitors and safe access to the rooming house (reg 22).
Independent investigations of rooming houses by Consumer Affairs Victoria
CAV may also independently investigate a rooming house without the need for a complaint or application by a rooming house resident, if they deem it appropriate. Investigations may be conducted where there is a possible breach of duty of the RT Act or of the Minimum Standards (s 131A). A written report must be provided to any resident and rooming house operator affected by any breach or failure to comply. For more information, contact Tenants Victoria (see www.tenantsvic.org.au).
Repairs and the Director of Housing
The Director of Housing’s procedures for repairing and maintaining premises are contained in the Public Housing Policy and Procedure Manual (the ‘Responsive Maintenance’ chapter). This manual can be accessed at www.housing.vic.gov.au.
The Director of Housing is a landlord who is subject to the RT Act in the same way as any other landlord. A Director of Housing officer may argue at VCAT that the repairs cannot be done, or will be delayed, because of the application of the Director of Housing’s policy. VCAT should not refuse a tenant’s application for a repair order on that basis, although it may take the policy and procedures into account.
Tenants of public housing wishing to request maintenance or repairs to their home should phone or email the Office of Housing’s call centre (tel: 13 11 72). Tenants should ask for a ‘scheduled An agreement that the law will enforce. number’, which is a record of the phone call. Tradespeople working for the Director of Housing are bound by the contract’s code of conduct.
Nonetheless, it is still recommended that Public Tenants follow the same repairs process described above, until the repairs are completed. The use of prescribed notices as described above provides an easy and accessible reference for compensation claims, and a record if there is any dispute.
Locks and security
Urgent repairs are defined to include ‘any fault or damage that makes the premises insecure’ (s 3). Therefore, where an external window or door lock is defective, it will usually be appropriate to initiate the urgent repairs process (see ‘Urgent repairs’, above).
A landlord must provide locks (defined as ‘a device for securing a door or a window or other part of the premises’), to secure all external doors and windows of the rented premises (ss 3, 70). Although section 70 does not expressly require the landlord to provide deadlocks, it is arguable that a lock that does not adequately ‘secure’ the premises does not comply with the RT Act.
If the tenant believes this is the case, they may serve a Breach of Duty Notice and then apply to VCAT for a compliance order. The tenant would require evidence to support their claim that the premises were not secure, such as a report from the police or a security expert.