Housing and Tenancy

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Duties of tenants, residents and landlords

Both tenants and landlords have duties under the Act.

Some of the main duties of tenants and landlords are as follows:

  1. Tenants must not cause nuisance or interference (s.60)
  2. Tenant must avoid damage to premises or common areas (s.61)
  3. Quiet enjoyment (s.67)
  4. Tenant has a duty to permit entry (s.89)

Why are duties important under the Act?

Duties are important because they can be used to evict tenants through compliance procedures (s 209) and to obtain compensation (ss 209, 210).

Duty - do not cause nuisance or interference

The HPLC often assists clients to respond to allegations that suggest they are a nuisance or have interfered with the peace, comfort or privacy of occupiers of neighbouring premises. This duty provides a method by which tenants and residents could potentially be evicted for low level 'anti social behaviour'.

What behaviour does this duty cover?

This duty states a tenant must not use the rented premises or permit their use in any way which causes (1) a nuisance, or (2) an interference with the reasonable peace, comfort or privacy of any occupier of neighbouring premises. This duty is set out in section 60 of the Act.

ong>Note: A serious breach of the nuisance duty may entitle a landlord to apply for possession under the danger provisions of the RTA (section 244).

Does this provision apply 'at large' or is the duty only owed to neighbours?

We consider that the 'nuisance' duty is not owed to the world at large. Originally tenancy legislation only referred to avoid 'nuisance' and it was uncertain as to whether this was limited to the common law tort of nuisance or whether the duty also covered anti-social behaviour. This issue was resolved by a subsequent amendment of the RTA (Residential Tenancies Act) which included reference to 'unreasonable interference'. Essentially, therefore, it should be argued there are 2 parts to this duty:

(1) the duty not to cause nuisance (similar to the common law tort of nuisance) and

(2) the broader obligation not to unreasonably interfere with the peace comfort or privacy of neighbours.

What does 'nuisance' mean?

Generally speaking, the tort of nuisance requires a substantial and unreasonable interference with rights in relation to or in connection with the use of the land of a particular individual. As such, nuisance requires a connection between the alleged conduct and the rights of neighbouring tenants.

An occupier owes a duty to take reasonable care to prevent or abate potential nuisances on his or her land that are known, or ought to be known, and to prevent damage to his or her neighbour which is foreseeable. There are a number of examples of nuisance but noise, bright light and surveillance are all examples of issues that can constitute nuisance.

What does 'unreasonable interference' mean?

Section 60(2) of the RTA refers to the 'reasonable peace, comfort or privacy of any occupier of neighbouring premises.'

As such, reasonableness is an essential limit on the nature of activity which may be said to disturb neighbours and should be kept in mind when considering allegations that tenants have been creating noise etc.

The HPLC is aware of circumstances in which tenants have been given notices of breach for playing music, for visitors attending premises ('slamming car doors' and speaking on the street) and noise generated by adolescent children and their friends. Aside from the proof of such allegations, the extent to which such activity is a normal part of family life should be kept in mind.  

Practice tip

Generally there are several factors which affect whether something is a nuisance or unreasonable interference with the peace, comfort or privacy of neighbours.

You should consider and obtain instructions in relation to :

  • the general nature of the neighbourhood and the conduct
  • where the nuisance happened
  • the length and time of any nuisance
  • the type of nuisance and its effect
  • whether reasonable people would think the conduct constituted a nuisance or unreasonable interference with peace, comfort or privacy

Duty to permit entry

A tenant has a duty to permit entry in accordance with the Act (s 89) and in addition, a landlord (or its agent) has a right to enter premises.

The HPLC considers that the right of entry and duty to permit entry must always be balanced against the tenant's right to quiet enjoyment of the rented premises.

HOW may the landlord enter the rented premises?

There are 2 ways the landlord may enter the rented premises:

  • by agreement with the tenant (s.85(a));
  • by written notice for an appropriate reason under the Act (s.85 (b)).

A landlord may only enter the rented premises if he/she has a valid reason as set out in section 86 of the Act.

When (time? Day?) may the landlord enter?

A landlord may enter rented premises (for a relevant purpose) between the hours of 8:00am and 6:00pm on any day, provided that written notice is given to the tenant at least 24 hours prior to entering the premises (section 85).

What is an acceptable reason for the landlord to enter?

A landlord may exercise a right to enter the property without the consent of the tenant. The landlord is able to do so for reasons which include:

  • where a notice to vacate or notice of intention to vacate the property has been given and entry is required to show the premises to a prospective tenant ( s86(1)(a)) - note it may only be exercised 14 days before the termination date specified in the notice (see section 86(2));
  • the premises are to be sold and entry is required for prospective buyers / lenders( s86(1)(b));
  • to enable the landlord to carry out a duty under the RTA, or any other Act ( s86(1)(c));
  • valuation purposes ( s86(1)(d));
  • reasonable grounds to believe the tenant has failed to comply with their duties under the RTA or the tenancy agreement (s86(1)(e));
  • 'general inspection' of the premises (only once every 6 months) ( s86(1)(f)) - note this must not be in the first 3 months of the tenancy.

What notice is required?

If there is an acceptable reason for entry (as set out in section 86) , the landlord must give notice of his/her intention to enter the rented premises. Written notice must be provided at least 24 hours prior to entry.

The notice must be in writing (s 88(a)) and state the reason for entry (s 88(b)). The notice must be served on the tenant either by post (c)(i) or personal delivery to the tenant, between the hours of 8am and 6pm (c)(ii). 

The landlord or their agent may enter the premises even if the time chosen is inconvenient for the tenant or they are not home, as long as they have given the required notice.

What are the landlord's responsibilities when entering the premises?

In exercising a right of entry, a landlord must still ensure he/she:

  • enters in a reasonable manner (s87(a)) and
  • only stays on the rented premises for the time period necessary to achieve the entry purpose (s87 (b)).

Are there any limits on rights of entry?

From the discussion above it can be understood that landlords have an undeniable right to enter premises and tenants have a duty to permit entry. Nonetheless, despite this, tenants have the right to quiet enjoyment under the act (s 67).

The duty of the landlord to provide the tenant with quiet enjoyment can be breached even where the landlord is correctly exercising his or her rights under the entry provisions. This means that when exercising rights of entry, the landlord is still required to provide the tenant with 'quiet enjoyment.'

It can be difficult to determine when the right to quiet enjoyment has been breached. It is useful to think about whether the landlord is being reasonable or fair to the tenant.

How to respond to landlord entry of premises

  1. Has the landlord given a valid reason for entry? See section 86
  2. Has the notice been correctly served?
  3. Has the landlord breached the tenant's quiet enjoyment?
  4. Have there been multiple inspections at unreasonable hours? Has the duration of the inspections been unreasonably long? Has the landlord offered to compensate or reduce the rent of the tenant?
  5. Does the tenant want to issue a breach of duty notice for breach of quiet enjoyment?
  6. Does the tenant want to claim compensation for breach of quiet enjoyment?

The situation for rooming house residents is a little different.

The Act provides a RMO (or its agent) has a right of entry where:

(1) there is agreement between the parties,

(2) there is an emergency and immediate entry is necessary to save life or valuable property,

(3) if services are provided and it is necessary to provide them (only during hours specified), and

(4) 24 hours notice of entry has been given and entry is for a purpose set out in section 137.

If there are repeated inspections (even if for a permitted purpose), the landlord may have breached its duty to afford the tenant quiet enjoyment.

Breach of duty

If a tenant, resident or landlord fails to carry out their duties under the Act, the affected party should serve a Breach of Duty Notice. This notice instructs the recipient to fix the problem or pay compensation for any loss suffered because of their breach of duty (or both). 

It is important to assist/encourage clients to issue Notices of Breach because these documents may form the basis for applications for compensation and can be used as evidence. Often clients report advising the landlord / RMO of problems by phone,  but have no documentary evidence of this contact for use at the Tribunal.

The Breach of Duty Notice is available online from the Consumer Affairs Victoria website.

 


Part 2, Division 5 of the Act prescribes general duties of both tenants and landlords. Part 3, Division 5 prescribes the general duties of residents and RMOs.

See also:

* Environment Protection Act 1970 (EPA) which makes it an offence for a person to emit 'unreasonable noise.' The EPA provides that any noise can be considered unreasonable at any time because of its volume, intensity or duration, or because of the time/place/circumstances in which the noise is made. DETAILS

* Nuisanace under the Health Act 1958  means something 'dangerous to health or offensive' and includes noise. In practice it is understood that action will not be taken under the Health Act unless something constitutes a genuine health risk.

Landlords' right of inspection versus tenants' right to quiet enjoyment

The relationship between the landlord's right of inspection versus the tenant's right to quiet enjoyment is a matter of degree. If there are repeated inspections (even for a permitted purpose), the landlord may have breached his or her duty to afford the tenant quiet enjoyment.