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Answers to common tenancy questions

This page answers common questions about tenancy, particularly in relation to renting during the COVID-19 pandemic.

Asking for a rent reduction

Bond

Breaking | Ending | Reducing a lease

Breach of duty notice

Compensation

Family violence and tenancy

VCAT process

Visits from the landlord or agent

Asking for rent reduction

Where can i get more information about the rent reduction arbitration process?

According to Consumer Affairs Victoria, a tenant would be in rental hardship if they are paying more than 30 percent of their gross income in rent.

See Consumer Affairs Victoria—Guide to the process of rent reduction(opens in a new window)

CAV also has a Guide to conciliations at the residential tenancies dispute service.

See 'If a tenant wants to stay but can't afford the rent' in the tenancy section of Civil justice and COVID-19 in LawHub

What is a binding order from the Dispute Resolution Service Victoria

Binding means that a landlord can't rely on unpaid rent as a reason for eviction or compensation.

CAV has info about binding orders in their Guide to conciliations at the residential tenancies dispute service.

This is available in LawHub under 'If a tenant wants to stay but can't afford the rent' in the tenancy section of Civil justice and COVID-19.

See Consumer Affairs Victoria—Renting rules and support during the moratorium.

Bond

What can tenant do if landlord has not lodged bond with the Residential Tenancies Bond Authority?

A tenant can apply for compensation if bond has not been lodged.

See LawHub:

See Tenants Victoria—Bond payments and refunds(opens in a new window).

What happens if landlord disputes the bond?

The tenant can apply to VCAT for the return of their bond.

See Tenants Victoria—Bond payments and refunds(opens in a new window)

See also LawHub Residential tenancy—Bonds.

Breach of duty notice

Can a tenant still serve a breach of duty notice during COVID-19?

Yes, but it is likely that there will be a delay before the matter is heard.

See LawHub Residential tenancy—Breach of duty notice.

Breaking | Ending | Reducing a lease

How to break a fixed term lease under the Omnibus Act changes

During a fixed term lease there are 2 options:

  • give a 14 day notice of intention to vacate if suffering severe hardship
  • apply for a rent reduction on the basis that the applicant will suffer.

The notice must be in writing. The termination date must be 14 days after sending the notice. Do not leave before the termination date. Also, keep evidence of the severe hardship.

See LawHub 'Tenancy' in Civil Justice and COVID-19.

Is there a cost for breaking the lease?

The Economic and Social Rights (ESR) team believe that the intention of the legislation was that there should be no costs for lease-breaking, but the law isn't clear and there is a risk that your landlord could apply for compensation against you at VCAT.

The Consumer Affairs Victoria website has information for landlords, which states that there should be no lease break costs. Good idea to send it to the landlord.

See 'Are there circumstances when my tenant won't be charged fees for ending a tenancy?' in Information for landlords under Consumer Affairs Victoria—Renting rules and support during the moratorium(opens in a new window).

Can landlord refuse to terminate a fixed term lease (after lease expires)

If a tenant's fixed term tenancy is about to expire or has already expired, a tenant can issue a 28 day notice of intention to vacate.

See LawHub 'Tenancy' then 'If tenant wants to leave their rented premises' in Civil justice and COVID-19.

Consequences of ending a periodic tenancy (when reason is not on the list)

  • Breaking a fixed term lease under COVID-19
  • Ending a fixed term lease (how ESR deals with these referrals)

Can you ask to reduce a fixed term lease after you have already left?

You need to remain in the property until VCAT hears the matter. It may take a while for VCAT to list the matter, so contact VCAT and ask the matter to be listed urgently. VCAT will balance the tenant's hardship with that of the landlord, so keep any evidence to show the severe hardship. If VCAT make the order, the tenant will not be liable for any lease break costs after the date specified in the order.

See LawHub 'Tenancy' then 'If tenant wants to leave their rented premises' in Civil justice and COVID-19.

Reasonable and proportionate test. What threshold does VCAT apply?

Is there any guidance about the threshold applied by VCAT relating to hardship, where a tenant wants to end a tenancy due to COVID-19? VCAT must find that it is reasonable and proportionate, but I can't see a lot of other guidance.

Case summaries about this test are included in LawHub 'Tenancy' in Civil justice and COVID-19.

Professional Support Lawyer, Fiona Brice has developed a fact sheet, Eviction matters: reasonable and proportionate test (docx, 188 KB)(opens in a new window).

Compensation

Can tenant still apply for compensation after landlord has fixed a problem?

Yes, a tenant can still seek compensation for hardship before repairs were made. The client can still serve a breach of duty notice.

See LawHub Residential tenancy—Breach of duty notice.

See also Tenants Victoria—When a landlord breaches their duties.(opens in a new window)

How is loss calculated when claiming compensation under breach of duty notice

There's no simple rule when calculating compensation. It's a question of evidence and judgement of VCAT.

Family violence and tenancy

What are the changes to family violence relating to tenancy?

It is now easier to shorten a tenancy, even where there is no final family violence intervention order. It includes people who have been subjected to family violence by a co-tenant.

See 'Family violence, tenancy and COVID-19' in Family violence and COVID-19.

VCAT process

VCAT is prioritising urgent applications. What is urgent?

Genuinely urgent matters are being heard promptly, delays in other matters. Give VCAT a call.

Consumer Affairs Victoria (CAV) has to give a reference number before the VCAT matter proceeds, but in cases of urgency, call VCAT first who will prompt about CAV reference number.

See VCAT—VCAT hearings during coronavirus restrictions(opens in a new window).

What impact are VCAT delays having on VLA's Economic and Social Rights team?

not really answered

Visits from landlord or agent

What are the changes in relation to visits?

Under Stage 4, visits are not permitted except in emergencies.

How do you object to unwanted visits?

A tenant can apply to VCAT if a landlord attempts a visit or if tenant thinks an inspection is unreasonable.

If notice of entry is given, a tenant risks breaching their duty.

See 'people coming into your home' in Tenants Victoria—Coronavirus (COVID-19) guide for renters(opens in a new window).

For information about tenant duties see LawHub Residential tenancy—Breach of duty notice.

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