Currency of legal information
The law in this chapter is current as at 30 October 2020. Due to the temporary implementation of the residential tenancies COVID-19 emergency Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute., it is strongly advised that practitioners check the currency of all legislation when engaging in The agreement between a landlord and a tenant for the rental of a property. matters over the next 12 months (see www.tenantsvic.org.au).
Residential Tenancies A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1997 (Vic)
The Residential Tenancies Act 1997 (Vic) (‘RT Act’) sets out the rights and duties of:
- residential tenants and landlords;
- caravan park residents and caravan park owners;
- rooming house residents, rooming houseowners;
- site tenants and site owners; and
- specialist disability accommodation residents and providers.
This chapter focuses on the law relating to tenants and landlords. There is also information about the rights and obligations of site tenants, and of residents of rooming houses, caravan parks and specialist disability accommodation – these are quite different from those of tenants.
Tenancies and family violence
There has been a permanent A change made to a legal document or Act of parliament. to the family violence provisions of the RT Act in relation to the creation and The end of something. Contracts terminate when the parties have done what they agreed. A contract can also be terminated without being completed, for example if one party breaks the contract, or it is impossible to carry out. of tenancies for reasons of family violence. See ‘Family violence applications to VCAT to terminate or create new tenancies’, below.
Remedy for problems with enforcing VCAT orders
VCAT now has the power to remedy problems with enforcing orders. Specifically, parties who have successfully obtained orders from VCAT can apply again to VCAT (s 120A 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. Act 1998 (Vic) (‘VCAT Act’)) and seek a review to vary the order, or to revoke the order and have another order in lieu (as the case requires) to remedy the problem.
Enforcement of monetary orders are still via the Magistrates’ An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate., but actions like set-off, variation to compliance orders or restraining orders, and alterations to arrangements (e.g. rent reduction orders) may be amenable to this provision. Application for enforcement to the Supreme Court remains available (s 122 VCAT Act) subject to the regulations.
Residential Tenancies Amendment Act 2018 (Vic)
The Residential Tenancies Amendment Act 2018 (Vic) (‘RTA Act’) is expected to commence on or around 27 April 2022. The RTA Act A document that sets out what a person wants to happen to their money and other property after they die. bring into effect nearly 130amendments to the RT Act. For up-to-date information about these legislative changes, visit www.tenantsvic.org.au.
COVID-19 legislative changes
COVID-19 emergency legislation and the Residential Tenancies Act: An overview
COVID-19 emergency legislation
COVID-19 related emergency legislation and amendments take precedence over the normal residential tenancies legislation, unless they have been repealed.
On 25 April 2020, the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) (‘COVID-19 Act’) came into effect in Victoria. The COVID-19 Act made significant alterations to over 20 pieces of legislation, including to the RT Act.
The COVID-19 Act made three important changes to the RT Act:
- it introduced a new Part 16 to the RT Act to alter and override the normal operations of the RT Act (s 45 COVID-19 Act);
- it brought forward some of the family violence legislation (ss 47–49);
- it postponed the RTAAct from coming into effect until 1 January 2021(ss 50–51).
The COVID-19 Act is in operation until 28 March 2021 and is retroactive to 29 March 2020 (s 535).Current, detailed information about the COVID-19 Act and Regulations is available from Tenants Victoria (www.tenantsvic.org.au/advice/coronavirus-covid-19/).
Tenants Victoria provides information about:
- rent reductions during the pandemic and whether reductions can be applied retrospectively;
- the COVID-19 related rent relief scheme – rent relief grants from DHHS up to $3000;
- the interactions between COVID-19 related health directions the RT Act;
- Part 16 of the RT Act;
- the Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020 (Vic) (‘COVID-19 Residential Tenancies Regulations’), which came into effect on 12 May 2020;
- evictions under Part 16 of the RT Act;
- grounds for a termination order;
- rent Money owed that is due on a certain date and is late being paid (overdue). during the pandemic;
- the reasonable and proportionate test in Part 16 of the RT Act;
- ‘COVID-19 reasons’ and non-compliance;
- Notice of Intention to Vacate during the COVID-19 pandemic;
- social housing and COVID-19.
All residential tenancy disputes under the COVID-19 emergency legislation must be first assessed by Under the Australian Consumer Law, a person who buys goods or services for less than $40 000 or for personal or home use. Affairs Victoria (CAV) (reg 6 COVID-19 Residential Tenancies Regulations).
VCAT is unable to determine a matter until this has taken place (regs 12, 14). For information about the operating procedures of VCAT’s Residential Tenancies List during COVID-19, see www.vcat.vic.gov.au, and for CAV, see www.consumer.vic.gov.au.
Note that it is important when reviewing this chapter to know which laws apply to a particular dispute and to pay attention to time limits. If this is not clear, seek legal advice (see Chapter 2.4: Legal services that can help).
Tips for protecting your rights
These are some general tips to help protect your rights:
- Wherever possible, use the prescribed forms to take action. You can download these forms from the ‘Renting’ section of CAV’s website at www.consumer.vic.gov.au.
- Download and use the ‘Rent Right’ app.
- To make an application to VCAT, visit www.vcat.vic.gov.au. Look under ‘Residential Tenancies List’ to download the general application form and guides for tenants or landlords.
- If you are experiencing family violence or personal safety issues, consider using the ‘protected person application and guide’ on the VCAT website, and seek support from a family violence 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..
- Always take extensive photos of a property at the beginning and end of a tenancy.
- Put any additional terms of the 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. in writing in the ‘additional or special terms’ part of the lease before the agreement is signed.
- Always get receipts when you make cash payments.
- Correspond by email to ensure you have a copy; after phone calls, send an email confirming the discussion.
- Attach photos of the issues in dispute to emails.
- Tenants should scan or photocopy tenancy documents.
- In cases of severe breaches or hostile conduct, get to safety, call the police on 000, seek advice about getting an A court order that prohibits a person harming or harassing another person. See also family violence intervention order;personal safety intervention order. if appropriate, and consider using a video phone to record incidents (only if safe to do so).