Tenancy

A rooming house is a building – other than a SDA enrolled dwelling – in which there are one or more rooms available for rent, and at least four people live in the building (s 3(1) Residential Tenancies Act 1997 (Vic) (‘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. Residents of the same rooming house usually have separate rental agreements and separate bonds.

Nothing in the RT Act (s 3(4)) prevents a rooming house from being more than one building (see Boroondara CC v Dugdale (Includes Summary) (Red Dot) [2015] VCAT 721 (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 (ss 3(1), 19). 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.

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.

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.

The Rooming House Operators Act 2016 (Vic) (‘RHO Act’) came into effect on 24 April 2017. 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 (s 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 RHO Act). Also, the business licensing registrar must publish online key information about each licensee (s 44 RHO Act).

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 (s 34 RHO Act).

A rental agreement or residency right does not terminate automatically because of the cancellation or failure to renew a licence (s 38 RHO Act; ss 91O, 142Q RT Act). However, see sections 91ZZL, 91ZZM, 142ZQ and 142 ZR of the RT Act, which provide that a 120-day Notice to Vacate may be given in certain circumstances.

The operator (or manager as applicable) must report if they cease to be a fit and proper person within 14 days of becoming aware they are no longer a fit and proper person (s 21 RHO Act), 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 so it can bring a prosecution (ss 7, 8 RHO Act).

Rooming houses are prescribed accommodation under the Public Health and Wellbeing Prescribed Accommodation Regulations 2020 (Vic), which provide minimum standards (regs 11–23) 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, cold and drinking water;
• discharge of sewage and wastewater;
• provision of vermin-proof refuse receptacles;
• number of toilets and bathrooms per person;
• register of occupants;
• advertisement or sign that the premises is registered or approved.

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) (s 120A RT Act). The standards outline detailed minimum standards for amenity 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);
• a shared bathroom or toilet that 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 a laundry (reg 17); and
• adequate lighting for rooms, hallways and corridors that is appropriate for those areas (reg 18).

A rooming house must provide in either the residents’ rooms or common area:

• a food preparation area (reg 11(a));
• a sink (reg 11(b));
• one oven that is in good working order in each room or in a common area for every 12 residents or the maximum capacity of residents in the rooming house, whichever is less (reg 11(c));
• a cooktop that is in good working order in each room, or a cooktop with at least four burners that is in good working order in a common areas, for every 12 residents or the maximum capacity of residents in the rooming house, whichever is less (reg 11(d));
• a fridge with minimum gross capacity of 80 litres in each room, or 400 litres in common area (reg 11(e));
• not less than one cupboard of 0.1 cubic 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).

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.

As mentioned above, from 29 March 2021, rooming house operators are required to provide fixed-term residency agreements in the prescribed form (s 93A(2) RT Act) to their residents.

In most cases, any other agreements in relation to a room in a rooming house are not considered to be rental agreements covered by Part 2 of the RT Act (s 94). This has significant implications for lease-breaking of fixed-term residency agreements, as liability is more limited than in rental agreements (s 142W, cf s 211A(3)). Liability for breaking fixed-term residency agreements appears to be limited to 14 days after vacating the rooming house (s 142X(2)). This is yet to be confirmed by a published decision.

The RT Act is silent on how fixed-term residency and tenancy agreements made before 29 March 2021 are to be treated with respect to early termination and Notices of Intention to Vacate (see ss 142X, 142W).

Rooming house agreements may contain additional terms. Like rental agreements, residency agreements that include terms that are inconsistent with the RT Act, or are harsh and unconscionable (s 94A–94AE RT Act), or are prohibited terms (s 94AD, reg 39), may be of no effect. Residents may apply to VCAT to challenge terms and rules that are thought to be invalid.

Residents living in self-contained apartments may wish to seek advice before signing a fixed-term residency agreement (ss 18, 94(1) RT Act).