Housing and Tenancy

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Compliance procedures

Compliance procedures under the Residential Tenancies Act 1997 (RTA) provide a means by which potentially low level "anti socia l-behaviour" can lead to eviction of tenants. The HPLC is of the view that tenant advocates and lawyers must be vigilant to ensure that tenants are assisted/represented to respond to compliance measures, that the law is correctly applied and that compliance procedures set out in the RTA are followed.

Who has duties under the RTA?

Both landlords and tenants have duties under the RTA.

When are compliance procedures available?

Compliance procedures are only available where certain "duty provisions" of the RTA have been breached. Relevant duties include:

  • tenant must not cause nuisance or interference (s 60);
  • tenant must avoid damage to premises or common areas (s 61);
  • tenant must keep rented premises clean (ie hoarding) (s 63);
  • landlord must ensure tenant has quiet enjoyment of premises (s 67); and
  • landlord's duty to maintain premises (s 68).

 How do you seek compliance of these duties?

The RTA provides a procedure by which both tenants and landlords may seek compliance with duties under the Act by a process of:

1. Issuing breach of duty notices (s 208). If a landlord or tenant breach the same duty successively and a notice of breach has been given on two occasions, a notice to vacate (if given by the tenant - a notice of intention to vacate) may be given on the third occasion of the breach. 

2. Applying to the Victorian Civil and Administrative Tribunal (VCAT) for a compliance order (s 209). If a compliance order is obtained and the respondent does not comply with it, the applicant can give the respondent a notice to vacate or intention to vacate, whichever applies (see section 239 and 248).

3. VCAT enforcement: Applying for possession of premises where a tenant (a) breaches a compliance order (section 247) or (b) where the tenant has breached duties successively and breach notices have been given on each occasion (section 248).

Issuing a Breach of duty notice

A breach of duty notice (breach notice) is an essential component of compliance procedures. A breach notice is a condition precedent for (1) a compliance order and (2) a notice to vacate for successive breaches of duty.

What must be contained in a breach notice?

Section 208 of the RTA specifies (among other things) that a breach notice must specify the breach, give details of the loss or damage caused by the breach, state that a breach must not reoccur and provide details of the remedy/compensation required. The breach notice must also specify what may occur if the notice is not complied with (ie application for compliance, notice to vacate).

In accordance with section 208, breach notices should contain sufficient information about the allegations which form the basis of the notice. Further, section 98(1)(a) of the VCAT Act states that the Tribunal is bound to act in accordance with the rules of natural justice. As such, in order to enable the tenant to respond to allegations which may have serious consequences for his/her tenancy, the RTA and VCAT Act require the landlord to provide sufficient detail about the conduct which is alleged to have breached tenancy duties. 

Checklist

When advising tenants who have been issued with a breach notice, lawyers should consider:

  1. Whether the breach notice contains all information required by section 208 of the RTA and matches the prescribed form supplied by Consumer Affairs Victoria.
  2. Whether the allegation in the breach notice discloses a valid breach of duty under the RTA.
  3. Whether it is necessary to respond in writing to the alleged breach of duty. Although there is a prescribed form in which to complain about alleged breaches, there is no equivalent document with which to respond to such allegations. This is of concern given that breach notices form the basis for compliance orders and eviction proceedings. Accordingly, where a breach notice is invalid (ie the alleged conduct does not amount to a breach of duty) or where the tenant contests the allegations in the notice, these issues should be included in a written response to the person/landlord making the allegations.

Application for compliance order

Section 209 of the RTA states that where a breach notice has not been complied with, a person may apply to VCAT for a compliance (or compensation) order.

When can an application for a compliance order be made?

It is not possible to apply for a compliance order unless a breach notice has been issued and a person has failed to comply with that notice within the specified time. Regulation 7A.07(5) requires that applications for compliance orders be accompanied by a copy of the relevant breach notice.

Responding to applications for compliance orders

In responding to applications for compliance orders tenant representatives should (in addition to considering the factual basis of the application) consider the way in which the alleged conduct relates to the RTA duty.

What does VCAT consider when hearing the application?

In hearing an application for a compliance order, VCAT is to have regard to the considerations set out in section 211 which include:

  • whether the person alleged to have breached the duty has taken all reasonable steps to comply with duties under the RTA (s 211(a))
  • whether the applicant has taken action to mitigate the loss or damage (s 211(e))  

Checklist

When advising tenants who have been issued with an application for a compliance order and preparing for a hearing, lawyers should consider:

  • Submissions in relation to entitlement to appear before VCAT in compliance order proceedings
  • Whether a breach notice has been issued
  • Whether the breach notice adequately discloses the conduct said to constitute a breach of duty (including acts, facts, matters and circumstances of incidents alleged)
  • Whether the application discloses details of the conduct which amounts to a further breach of duty (including acts, facts, matters and circumstances of conduct alleged to constitute a breach of duty)
  • Whether the allegations in the application and breach notice disclose a valid breach of duty under the RTA
  • Client instructions and evidence in relation to the alleged conduct

Compliance order hearings

Section 212 of the RTA states that where VCAT considers that a person was (1) entitled to give a breach notice and (2) that the notice has not been complied with that VCAT may order a person to remedy the breach and refrain from committing a similar breach.

Do tenant representatives have an automatic right of appearance at compliance order hearings?

Tenant representatives do not have an automatic right of appearance at VCAT in relation to applications for compliance orders. As such tenant advocates and lawyers may need to argue for the right to appear in accordance with section 62(1) of the VCAT Act. In addition to any special circumstances of the tenant, of particular relevance to the ability to appear in applications for compliance orders is the potential factual complexity and the way in which such an order has serious consequences for the tenant and may form the basis of eviction proceedings.

What must a compliance order contain?

Note that section 212(4) of the RTA states that if a compliance order is made against a tenant that this order must contain a warning. The order must specify that if the order is not complied with, the tenant may be given a notice to vacate the rented premises.

Checklist

Lawyers should be aware of the following:

  1. A compliance order cannot be made unless:
    1. A breach notice has been given to the tenant;
    2. VCAT considers the landlord was entitled to give the notice (i.e. whether the conduct is actually a breach of duty).
  2. VCAT should be assisted to develop a workable compliance order that does not exceed the terms of the relevant duty under the RTA. For example, where VCAT finds a tenant has been creating noise and unreasonable interference with the reasonable peace comfort or privacy of of his/her neighbours, the Tribunal compliance order should only limit the tenant's conduct to an extent that is reasonable.
  3. A compliance order MUST contain the warning specified in section 212(4) of the RTA

Part 5, sections 207 - 215, Compensation and compliance, Residential Tenancies Act 1997

This document does not address issues relating to compensation applications. Further this document relates only to residential tenancies. Please refer to the RTA for guidance in relation to the application of compliance provisions to rooming houses and caravan parks.

Section 207 of the RTA states that in relation to rented premises, a duty provision means (i) section 89 or (ii) any provision of Division 5 of Part 2, except sections 59, 62, 66 and 71.

Breach of duty notice forms are available from Consumer Affairs Victoria - see http://www.consumer.vic.gov.au/CA256902000FE154/Lookup/CAV_Forms_Residential_Tenancy/$file/BreachLandlordRT.pdf

Although the case of Smith v Director of Housing VSC 8915 of 2004 (unreported) does not strictly apply to this situation it might be argued that the principles of procedural fairness within this decision are nonetheless applicable. It might be argued that the RTA requires landlords to provide details of alleged breaches of duty in order to enable tenants to respond to matters which may result in their eviction. Note however the level of details required as a result of the Smith decision was based on the fact that this decision related to an immediate notice to vacate.

Note that this consideration may require further analysis in light of the Victorian Charter of Human Rights & Responsibilities 2006 where the applicant is a public authority such as the Director of Housing.

Note that this consideration may require further analysis in light of the Victorian Charter of Human Rights & Responsibilities 2006.  Broadly speaking, the "entitlement" of the Director of Housing to give notice to vacate may depend on whether it acted in accordance with the human rights of the tenant and whether it considered the human rights of the tenant in issuing the notice.  See section 38 of the Charter.

Note VCAT is not bound to issue a compliance order and has a discretion to do so; consider whether human rights considerations (Charter) affect the decision whether to issue such an order.

See HPLC practice notes in relation to VCAT dated 1 September 2009 (see VCAT Monthly Practice Tip - Part 1 of 2 and 2 October 2009 (see  VCAT Monthly Practice Tip - VCAT Part 2 of 2)