Tenancy law in Victoria, The Residential Tenancies Act 1997

This legislation details the obligations of both the landlord and the tenant before, during and at the end of a tenancy.

It is important that both landlords and tenants understand this legislation to ensure both parties know their rights and how they are protected by this law.

Tenancy agreement

There are two types of residential tenancy agreements, a Fixed Term Residential Tenancy Agreement or a Periodic Agreement.

A fixed term residential tenancy is an agreement between a landlord and a tenant for a specific period of time, usually for six months or one year.

A periodic agreement or tenancy is for a recurring period without a fixed term. This can continue for as long as necessary until one party decides to end it.

Before the agreement is signed the following must take place:

▪	the landlord or agent must give the tenant a copy of the proposed residential tenancy agreement and once signed by both parties the landlord must provide the tenant with a copy within 14 days
▪	the tenant must be provided with a copy of Renting a Home – A guide for tenants and landlords. You can download this from the Consumer Affairs Victoria website.
▪	the tenant must be given reasonable time to consider the agreement
▪	the tenant must provide the landlord or agent with their full name and contact details
▪	the owner must provide the tenant with their full name and address where the tenant can contact the owner
▪	if an agent signs the agreement on behalf of a property owner, the agent must provide the tenant with the agency’s full name, the fact that they are acting as an agent, and if the agent is a company, an employee (usually the property manager) who can be contacted in relation to the agreement. They must also state whether the agent can authorise urgent repairs and if so the maximum amount that the agent can authorise
▪	contact telephone numbers to use in the event of an emergency outside business hours and contact numbers for urgent repairs

If both parties still wish to pursue the tenancy then the agreement is signed, bond paid (if requested), advance rent paid and the tenant can move in. A full inventory detailing the contents and condition of the property should also be signed by both parties.

The landlord is responsible for any costs involved in the preparation of the rental agreement.

Security deposits / rental bonds

A security deposit or bond can be requested from the tenant to cover damages, breakages or outstanding rent.

The amount that can be requested as a bond is 1 months rent if the weekly rental amount is less that $350. The bond cannot be increased during the tenancy.

If a landlord wishes to ask for a higher bond then permission must be obtained from the Victorian Civil and Administrative Tribunal (VCAT). There are two circumstances when a landlord can requested a higher bond:

▪	The weekly rent is over $350
▪	The property is the landlord’s usual place of residence and the tenant is renting the property until the owner wishes to move back in.

Failure to get permission from the Tribunal could result in a fine of $500.

If a landlord or agent takes a bond then a Condition Report must be completed detailing the condition of the property and its furniture and fittings. Both parties must have a copy of this.
Once a tenant has paid a bond, the landlord or agent must lodge this bond with the Residential Tenancies Bond Authority (RTBA) within 10 business days. Failure to do this could result in a fine of $1000. Both parties must sign a “Bond Lodgement” form and the tenant must be provided with the back copy as an interim receipt. This form is available from the Residential Tenancies Bond Authority website. The RTBA will then issue both the tenant and the landlord or agent with a receipt within 15 business days. The bond is invested and any interest received is paid to the Residential Bonds Investment Income Account to cover costs relating to administering the central bond management system and also to contribute to the Residential Tenancies Fund.

At the end of the agreement both parties should agree as to how the bond should returned. Both parties must sign a “Bond Claim” form which should then be sent to the RTBA for a refund.

If a tenant has left the property and there is still rent outstanding and/or the landlord wishes to make a claim on the bond then the landlord (or agent) must apply to the Victorian Civil and Administrative Tribunal (VCAT) for an order directing the RTBA to repay the bond to the landlord or agent. This must be done within 10 business days.

In addition to requesting a bond the landlord can also request a payment of rent in advance. This can be two weeks rent if the rent is paid weekly or 1 months rent if the rent is more than $350 a week and the payment frequency is not weekly.

Landlord Responsibilities

During the tenancy the landlord is required to:

▪	provide and maintain the premises and common areas in good repair and cleanliness
▪	carry out any urgent and non-urgent repairs within a reasonable timescale
▪	pay for the installation and connection of any utilities such as gas, electric, oil and water. The landlord must pay for these services only if there is no separate meter.
▪	ensure that any replacement water appliance, fitting or fixture has at least a Standards Australia “A” rating
▪	maintain all locks or security devices to ensure the property is secure
▪	install smoke alarms
▪	allow the tenant quiet enjoyment of the property
▪	provide receipts for any moneys received from the tenant
▪	keep records of all rent payments
▪	pay any charges for which the landlord has agreed to be responsible for

An increase of the rent can only occur if specified in the agreement. The agreement must state the amount of the increase or the method for calculating the increase. It cannot be increased within 6 months of the start of the tenancy or date of last increase. 60 days notice must be given.

Tenant Responsibilities

During the tenancy the tenant is required to:

▪	keep the property reasonably clean, unless the agreement states that this is the responsibility of the landlord
▪	pay the rent on time
▪	pay any metered services on time (If the property is in the Melbourne Metropolitan area then the tenant may also be responsible for paying the sewerage disposal)
▪	notify the landlord or agent of any problems or damages within a reasonable time scale
▪	return the property to the same standard except for reasonable wear and tear

They should also not:

▪	use the premises for any illegal purpose
▪	cause or allow nuisance
▪	disrupt their neighbours
▪	not change the locks or fix anything to the premises or carry out any renovation, alteration or addition without the landlord’s written consent.
▪	intentionally or negligently cause or allow any damage to the property

Urgent repairs during a tenancy

The tenant must notify the landlord as soon as possible if there are any repairs required and in writing so there is evidence that the landlord has been notified.

Urgent repairs are classed as:

▪	a dangerous electrical fault
▪	a failure of gas, electricity or water supply to the property
▪	flooding or serious flood damage
▪	serious storm or fire damage
▪	a gas leak
▪	a burst water service
▪	a blocked or broken lavatory system
▪	a serious roof leak
▪	a failure or breakdown of any service or appliance on the property essential for hot water, cooking, heating or laundering
▪	an appliance, fixture or fitting which is not working properly and causes a substantial amount of water to be wasted
▪	a fault or damage that causes the residential property to be unsafe or insecure
▪	a serious fault in any door, staircase, lift or other common area
▪	a fault or damage likely to cause injury to person or property.

The landlord must carry out these repairs immediately however if the landlord fails to carry out these repairs or refuses to do so then the tenant can have the work done by a licensed tradesperson for any work up to the value of $1000. The tenant should obtain a written report from the tradesperson stating the apparent cause of the problem and how it has been rectified. The tenant will need to pay the tradesperson and then put a request in writing to the landlord to be reimbursed. If the landlord fails to do so, the tenant can make an application to the Victorian Civil and Administrative Tribunal who will then make a decision and can order that the landlord or agent reimburse the tenant. The tenant cannot withhold the cost from the rent payment. The tenant can also apply to the Tribunal if the landlord has failed to carry out the repairs and the tenant cannot afford to pay for these repairs himself or the repairs cost more that $1000.

For non-urgent repairs the tenant must inform the landlord of this in writing using a “Notice to Landlord of Rented Premises” form, available from Consumer Affairs Victoria, and the landlord must be given 14 days to carry out these repairs. If the landlord fails to do this then the tenant can send a copy of this notice to Consumer Affairs Victoria asking for an inspection and a subsequent report. If the repairs have still not been carried out once the tenant has received the inspection report, the tenant has 60 days to apply to the Tribunal for a repair order.

If the tenant, or a guest of a tenant, has caused the damage then the tenant is responsible for the cost.

Locks for the property may only be changed providing that the other party has consented. A copy of the new key(s) must be provided to the other party. It is the landlords responsibility to maintain any locks or other security devices to ensure that the property remains secure.

Accessing the property during a tenancy

If the tenant consents, the landlord can enter the property providing that the tenant has agreed with the time and received notice no more than 7 days in advance.

The landlord or agent can inspect the property after the end of the first 3 months of tenancy and then once every 6 months. 24 hours notice must be given and a reasonable time and day should be specified in the notice. The notice should be hand delivered.

The landlord can enter the property to carry our any repairs or maintenance. 24 hours notice and a reasonable time and day should be specified in the notice. The notice should be hand delivered.

The landlord can enter the property to show it to prospective buyers or new tenants. 24 hours notice and a reasonable time and day should be specified in the notice. The notice should be hand delivered

The landlord can enter the property to value the property. 24 hours notice and a reasonable time and day should be specified in the notice. The notice should be hand delivered.

The landlord can enter the property if he believes that the tenant has not met their duties as a tenant. 24 hours notice and a reasonable time and day should be specified in the notice. The notice should be hand delivered.

If the notice is posted then the landlord should allow extra time for the postage period.

The landlord must only enter the property between the hours of 8am and 6pm and not on public holidays. The tenant must allow the landlord access if notice has been served. If the tenant is not home, but the notice has been correctly served, then the landlord can enter the property.

Ending a tenancy

In order to end a tenancy correct notice must be served to the other party. A tenant cannot simply walk away from an agreement and stop paying the rent. If a tenant did this then the landlord could be entitled to compensation for loss of rent. And likewise a landlord can not force a tenant to leave.

The main three ways to end a tenancy are:

▪	both parties agree to terminate the tenancy early
▪	a landlord or agent gives the tenant “Notice to Vacate”
▪	a tenant gives a landlord or agent notice that they intend to vacate

Either party can also apply to the Tribunal to end the agreement early if the tenancy would cause them serious hardship.

Notice by landlord

If a landlord or agent wishes to end a tenancy they must complete an official “Notice to Vacate to Tenant(s) of Rented Premises” form. The notice must:

▪	be addressed to the tenant
▪	be signed by the landlord or agent
▪	state a reason (unless it is a Notice to Vacate for no specified reason)
▪	provide a date the tenant is required to leave

The notice should be hand delivered to the tenant or sent by registered post.

A landlord or agent can give immediate notice if:

▪	the tenant or a guest of the tenant has maliciously damaged the property or common areas
▪	the tenant or a guest of the tenant put the neighbours in danger
▪	the property is totally destroyed or partially destroyed and is not fit to live in

A minimum of 14 days notice must be given in the following situations:

▪	the tenant owes at least 14 days rent
▪	the tenant is using the property for illegal purposes
▪	the tenant has breached a compliance order or compensation order from the Victorian Civil and Administrative Tribunal
▪	the tenant has sublet without consent
▪	the tenant has already been given 2 “Breach of Duty” notices and the same problem occurs
▪	the tenant has a child living in the property and the agreement states no children
▪	the tenant has not paid the bond as agreed
▪	the landlord is a government housing authority and the tenant misled the authority so that they could be accepted as a tenant

If a landlord or agent gives one of the following reasons for terminating a tenancy then the date stated on the Notice to Vacate cannot be before the end date of the fixed term tenancy:

▪	the agreement is fixed term and states that the tenant has rented the landlords own home and that the landlord will occupy the property at the end of the agreement. 14 days notice
▪	it is the end of a fixed term tenancy agreement of less than 6 months. 60 days notice
▪	the property is owned by a government authority and they require the property for public use. 60 days notice
▪	the property requires renovations, repairs or reconstruction which cannot be carried out whilst a tenant is in the property. 60 days notice
▪	the landlord or a member of his immediate family requires the property to live in. 60 days notice*
▪	the property is to be demolished. 60 days notice*
▪	the property has been sold or is to be offered for sale with vacant possession. 60 days notice*
▪	the landlord requires the property for another use. 60 days notice*
▪	it is the end of a fixed term tenancy agreement of more than 6 months. 90 days notice
▪	the property is owned by a government authority and the tenant no longer meets their eligibility requirements. 90 days notice

The landlord can also give no reason to end the tenancy providing that 120 days notice is given.

* If a landlord gives notice for this reason, the property cannot be re-let for a period of 6 months after giving notice unless the landlord or agent has permission from the Tribunal.

If a tenant fails to move out after being served notice the landlord must apply to the Tribunal for an order for possession.

Notice by tenant

If a tenant wishes to end a tenancy they must complete an official “Notice to landlord of Rented Premises” form. The notice must:

▪	be addressed to the landlord
▪	be signed by the tenant
▪	state a reason (if applicable)
▪	provide a date the tenant intends to leave

The notice should be hand delivered to the landlord or agent or sent, ideally by registered post, to the landlord’s or agent’s residence or business address.

The tenant can give immediate notice if the property is totally destroyed or partially destroyed and is unfit to live in.

A minimum of 14 days notice must be given if:

▪	the landlord has breached a compliance order or compensation order from the Victorian Civil and Administrative Tribunal
▪	the landlord or agent has already been given 2 “Breach of Duty” notices and the same breach continues

If a tenant gives one of the following reasons for terminating a tenancy then the date stated on the Notice to Vacate cannot be before the end date of the fixed term tenancy:

▪	tenant is offered public housing. 14 days notice
▪	tenant requires special or personal care, such as with bathing, dressing meals etc. 14 days notice
▪	tenant requires temporary crisis accommodation. 14 days notice
▪	for any other reason. 28 days notice

A tenant can also challenge a Notice to Vacate by contacting the Tribunal. However this must be done within specific timescales depending on the reason given.

Termination by the Victorian Civil and Administrative Tribunal

The Victorian Civil and Administrative Tribunal has a Residential Tenancies List that deals with disputes relating to tenancies.

Either party can make an application to the tribunal for a termination. A hearing will then take place where each party can provide evidence. The Tribunal will then make any orders and explain why those orders were made. These orders must be obeyed.

Application forms and further information can be obtained from the Victorian Civil and Administrative Tribunal website.

Eviction

To evict a tenant the landlord must apply to the Tribunal for a possession order. If granted, a warrant of possession can either be sent to the landlord or directly to the local police station.

This is a brief guide to Tenancy Law in Victoria. For a full copy of the Residential Tenancies Act 1997 (RTA) please click here.