Housing and Tenancy

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Definitions

Bond (we should think about links with 'Ending a tenancy')A bond is defined as an amount payable by a tenant or resident to secure his or her performance and observance of the tenancy/residency agreement and provisions of the Act (s 3).

Exclusive possession refers to the ability to exclude others, including the landlord*.

Rooming house: a 'building in which there is one or more rooms available for occupancy on payment of rent - (a) in which the total number of people who may occupy those rooms is not less than 4.' (link)

Notice of breach: A breach of duty notice (breach notice) is an essential component of compliance procedures and for most compensation applications. A breach notice is a condition precedent for (1) a compliance order and (2) a notice to vacate for successive breaches  of duty.  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).  This form can be downloaded from the Consumer Affairs Victoria website at www.consumer.vic.gov.au

NTV - see Notice to Vacate

Notice to Vacate: Under section 319 of the RTA, a Notice to Vacate is not valid unless it is:

  • In the relevant prescribed form; and
  • It is addressed to the tenant or resident; and
  • It is signed by the person giving the notice or by that person's agent
  • It specifies the reason or reasons for giving the notice (unless given under s 263, 288 or s314); and
  • It specifies a termination date by which compliance is required.

A Notice to Vacate will likely be invalid if it does not provide a sufficiently detailed reason for the notice. The notice must identify - with a sufficient degree of particularity and precision - the facts said to constitute the reason for the notice.

www.consumer.vic.gov.au

http://www.consumer.vic.gov.au/CA256902000FE154/Lookup/CAV_Forms_Residential_Tenancy/$file/NoticeToVacateRT.pdf

 

Service: The RTA provides a number of ways in which a document or notice can be served on a party. Section 506(1) of the RTA sets out these methods:

  • Delivering the document personally to the person (personal service)
  • Leaving it at the person's usual or last known place of residence with a person over 16 who resides/is employed at that place
  • By sending it in the post addressed to the usual or last known address of the recipient,
  • If the party is a corporation, sending it to the registered office in Victoria or giving the notice or document to an officer of the corporation authorized to accept service
  • As ordered by the Tribunal.

Smith decision: see Smith v Director of Housing [2005] VSC 46

Nuisance or interference: Section 60 of the RTA states that

  • 1. A tenant must not use the rented premises or permit their use in any manner that causes a nuisance.
  • 2. A tenant must not -
  • a. use the rented premises or common areas; or
  • b. permit his or her visitors to use the rented premises or common areas; or
  • c. otherwise permit the use of the rented premises -

in any manner that causes an interference with the reasonable peace, comfort or privacy of any occupier of neighbouring premises.

Urgent repairs PERHAPS LINK DIRECTLY TO ACT - TO AVOID LEGISLATION AMENDMENT ISSUES under section 3 of the Residential Tenancies Act 1997 means any work necessary to repair or remedy-

   (a)  a burst water service; or

   (b)  a blocked or broken lavatory system; or

   (c)  a serious roof leak; or

   (d)  a gas leak; or

   (e)  a dangerous electrical fault; or

   (f)  flooding or serious flood damage; or

   (g)  serious storm or fire damage; or

   (h)  a failure or breakdown of any essential service or appliance provided

        for hot water, water, cooking, heating or laundering by-

   (i)  a landlord in rented premises; or

   (ii) a rooming house owner in a rooming house; or

   (iii) a caravan park owner or a caravan owner in a caravan park or caravan;

        or

   (i)  a failure or breakdown of the gas, electricity or water supply to

        rented premises, a rooming house or a caravan; or

   (j)  an appliance, fitting or fixture provided by a landlord, rooming house

        owner, caravan park owner or caravan owner that uses or supplies water

        and that is malfunctioning in a way that results or will result in a

        substantial amount of water being wasted; or

   (k)  any fault or damage that makes rented premises, a rooming house, a

        room or a caravan unsafe or insecure; or

   (l)  a serious fault in a lift or staircase; or

   (m)  any damage of a prescribed class;

 

VCAT: See Victorian Civil and Administrative Tribunal

 

Victorian Civil and Administrative Tribunal ('VCAT')

 

VCAT deals with disputes which involve a variety of issues including:

  • purchase and supply of goods
  • discrimination
  • domestic building works
  • guardianship and administration
  • disability services, health and privacy, mental health
  • legal profession services
  • owners corporations (body corporate)
  • residential tenancies
  • retail tenancies.

 

CREDIT no longer at VCAT: The regulation of consumer credit matters has passed from State to Government and as such, credit matters cannot be issued at VCAT.

 

How VCAT resolves cases: VCAT uses 'lists' which divide the different jurisdictions. The most common lists encountered by HPLC lawyers are the Residential Tenancies List and the Guardianship & Administration Lists. Parties are generally encouraged to represent themselves before VCAT however representation is permitted before the G&A List and the RT List where a possession order

 

VCAT Legislation: Each VCAT list is governed by (1) VCAT legislation and (2) list specific legislation. For example, in the Residential Tenancies List, the relevant legislation is the Residential Tenancies Act 1997.  For the Guardianship & Administration Tribunal, the relevant legislation is the Guardianship & Administration Act 1986.

 

The VCAT legislation is relevant to the operations of VCAT and includes

 

Victorian Civil and Administrative Tribunal Act 1998

Victorian Civil and Administrative Tribunal (Fees) Regulations 2001

Victorian Civil and Administrative Tribunal Rules 2008

Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998

  • Practice notes can be obtained from the VCAT website
  • The

 


* Notwithstanding provisions in the legislation for the landlord to enter the premises.