During the tenancy
NOTE: For more information about any of the topics covered in this chapter, and for legal advice in relation to tenancy, contact Tenants Victoria (www.tenantsvic.org.au; 9416 2577).
Charges - Utility charges
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A rental provider is liable to pay these utility charges:
the initial connection costs of electricity, water, gas, bottled gas, oil supplies, fixed internet or telecommunications services (including the NBN) (i.e. where the service has not been connected in the past) – except for solar energy systems installed under the Solar Home Program if the renter and rental provider agreed that the renter would pay part or all of the costs (RT Act s 53AA);
rates and taxes for the property;
all charges for the supply or use of electricity, gas (except bottled gas) or oil when the premises is not separately metered;
all water supply and sewerage disposal charges when the water consumption is not separately metered;
water charges that are not related to consumption (e.g. the flat-rate service fee);
all charges for supplying sewerage and drainage services;
all charges relating to the pumping out and cleaning of sewage or septic tanks – unless the need for this is due to damage caused by the renter;
all charges for supplying or hiring gas bottles;
cartage charges for refilling fire safety water tanks; and
cartage charges for drinking water – unless the charges relate to the amount of water supplied while the renter lived at the property (RT Act s 53(1); RT Regulations reg 22).
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A renter is liable to pay for these utility charges:
all charges for the supply or use of electricity, gas or oil when the premises are separately metered – except the installation and initial connection costs;
all charges for the use of bottled gas (including the supply and associated ongoing bottle hire fee (if applicable);
all charges for water consumption when the property is separately metered; and
all sewerage disposal charges (RT Act s 52).
The renter cannot be made liable for any costs that should be borne by the rental provider as the RT Act makes no provision for this.
Any agreement purporting to extend the renter’s liability for utilities is an attempt to modify or restrict the operation of the RT Act and is, therefore, unenforceable (RT Act s 27).
If the rental provider or renter pays a utility cost for which the other party is liable, they can request reimbursement. The renter should do so in writing by giving the rental provider a Notice to Rental Provider form with a copy of the relevant utility bills, receipts and other evidence of payment. Reimbursements must be made within 28 days of receiving the notice (RT Act s 55). If reimbursement is not forthcoming, the party owed money may apply to VCAT for an order for reimbursement.
Renters who have received excessive utilities bills due to a spontaneous rupture or fault with an appliance should investigate to see if they are eligible for compensation (RT Act s 53A).
Where an appliance needs to be replaced, renters should investigate that the replacement meets the minimum energy efficiency rating. Repairs that do not meet this standard may render the rental provider liable for the utility (RT Act s 54).
Note that the Energy and Water Ombudsman Victoria (EWOV) has jurisdiction with regard to embedded networks. All embedded network providers must be registered with EWOV. For more information about embedded networks, see www.ewov.com.au.
NOTE: FINANCIAL HARDSHIP
Renters experiencing financial hardship due to the cost of utilities should see if they are eligible for a utility relief grant (for more information, see www.services.dffh.vic.gov.au/utility-relief-grant-scheme). -
Homes Victoria (and organisations receiving funding from the Office of Housing) can charge for water, central heating, laundry and utility services provided with the premises. This only applies where it is not possible or practical to accurately measure the use of the service or facility. The service charge cannot be greater than the cost of providing the service or facility (RT Act s 57).
If Homes Victoria wants to introduce or change a service fee, it needs to notify the renter and provide details of the change in cost (RT Act s 57). The renter can apply to VCAT for an order to make the Homes Victoria withdraw or vary a service fee (s 57).
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The rental provider must repay the renter for any rates or taxes payable for the premises that are recovered from the renter by a public statutory authority (e.g. a local council) unless the rental agreement is for a fixed term that exceeds one year (RT Act s 58; cf s 53, which provides that the rental provider is liable to pay all the rates and taxes for the property regardless of the length of the rental agreement).
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Overview of renter’s duties
The RT Act (s 208) differentiates between breaches of a ‘duty’ provision of the Act and other breaches (s 3). If a rental provider believes that a renter is in breach of a RT Act duty provision, the rental provider may serve the renter with a Breach of Duty Notice (s 208). Renters also have the same rights in relation to rental providers when they breach their duties.
A Breach of Duty Notice template is available on CAV’s website (www.consumer.vic.gov.au). A Breach of Duty Notice does not prove that a breach has taken place, but these notices are evidence that an allegation of a breach has been communicated.
If found to be true, valid and proven, a Breach of Duty Notice can enable a party to obtain a compliance order or compensation. In some cases, successive breaches can lead to a Notice to Vacate that may terminate the rental agreement.
A Breach of Duty Notice can only be served if the rental agreement has not already been terminated.
Under the RT Act, the grounds for a rental provider to serve a Breach of Duty Notice are when:
the renter fails to permit entry when entry is sought in accordance with the RT Act (s 89);
the renter uses/permits others to use the premises in a way that causes a nuisance (s 60(1));
the renter uses or permits others to use the rented premises or common areas in any manner that causes an interference with the reasonable peace, comfort or privacy of any occupier of neighbouring premises (s 60(2));
the renter or their visitors intentionally or negligently damage the rented premises or common areas (s 61);
the renter fails to keep the rented premises in a reasonably clean condition and in the same condition as when the renter gained possession of the premises, taking into account fair wear and tear (s 63);
the renter has installed fixtures or has altered, renovated or added to the premises (in a way that required consent) without first getting the rental provider’s consent (s 64);
the renter has failed to restore the property to its condition, if modifications have been made, unless the rental provider has agreed this does not need to be done (s 64);
the renter has changed a lock in a master key system (when consent was needed) without the rental provider’s consent or without a VCAT order (s 70);
the renter has failed to give the rental provider a key to a changed lock (ss 70, 70A, 70B); or
the renter has failed to perform their safety responsibilities (s 63A).
Rental providers claiming compensation for breach of duty must prove they suffered loss caused by the breach.
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Renters have a duty to not intentionally or negligently damage their rented premises or the common areas (e.g. communal laundries and car parks). Renters are not responsible for damage that is beyond their control (e.g. damage caused by a burglary) (RT Act s 61). However, renters are responsible for damage intentionally or negligently caused by their visitors (s 61).
If a renter becomes aware of damage to the rented premises, they must give written notice to the rental provider specifying the nature of the damage as soon as practicable (RT Act ss 62, 72AA). The renter can give this notice in the form of a letter or use the Notice to Rental Provider form.
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A renter must keep their rental property reasonably clean (RT Act s 63). When a renter moves out, they must leave the property in a reasonably clean condition, taking into account fair wear and tear (s 63). This does not necessarily mean that a renter must get the property professionally cleaned or steam clean the carpets, although rental providers and agents often try to insist that renters do this. What is considered to be ‘reasonably clean’ depends on how long the renter has lived in the property and what state it was in when the renter moved in.
A clause in the standard form rental agreement (which took effect on 29 March 2021) allows rental providers to require a renter to have a property professionally cleaned, or cleaned to a professional standard, in certain circumstances (RT Act s 27C(1); RT Regulations reg 12).
This only applies if:
the property was professionally cleaned or cleaned to a professional standard immediately before the start of the rental agreement and the renter was advised that this had been done; or
professional cleaning or cleaning to a professional standard is needed to restore the property to the same condition it was in immediately before the start of the rental agreement, taking into account fair wear and tear (RT Act s 27C(1); RT Regulations reg 12).
As a general rule, leaving the property as the renter found it, apart from fair wear and tear, remains a good guide.
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If a renter believes that a rental provider is in breach of a RT Act duty provision, the renter may serve the rental provider with a Breach of Duty Notice (RT Act s 208).
Under the RT Act, a renter can serve a Breach of Duty Notice when:
the premises are not vacant and in a reasonably clean condition on the day the renter is to take possession (s 65(1));
the rental provider does not take all reasonable steps to provide quiet enjoyment of the premises (s 67);
the rental provider does not ensure that the premises are maintained in good repair and in a reasonably fit and suitable condition for occupation (s 68(1));
safety related repairs and maintenance are not completed (s 68A);
the property does not meet minimum standards (s 65A);
gas and electrical safety check records are not kept nor produced on request (s 68B);
the rental provider does not replace an appliance, fixture or fitting that uses or supplies water, electricity or gas when this item needs to be replaced with a replacement that meets the minimum efficiency standard (s 69);
the rental provider does not provide working deadlocks for external doors and locks for the windows, where required by the RT Act, or a key when a lock is changed (s 70); or
the rental provider gives a key to an excluded person or former renter for a lock that has been changed by a protected person under a family violence intervention order or family violence safety notice (s 70A) or a person who has gotten a creation order under section 91W of the RT Act (s 70B).
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A rental provider must take all reasonable steps to ensure that a renter has quiet enjoyment of their rented premises during the rental agreement (RT Act s 67). This means that the renter is entitled to enjoy the undisturbed occupation and possession of the premises without interference from the rental provider or from things that are in the rental provider’s power to prevent. This is a broad duty and encompasses breaches of the entry provision under the RT Act.
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A significant difference between Form 1 and Form 2 rental agreements is that the potential scope for compliance orders may be wider. Renters who have long-term rental agreements (i.e. agreements for longer than five years) should seek advice if they have any questions about their duties or compliance order matters (RT Act ss 27(3), 209AA).
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Rental providers or agents who enter a premises without a notice are breaching a renter’s quiet enjoyment. It is also an offence to enter a premises for reasons other than in accordance with the RT Act.
To be entitled to enter a premises, a rental provider or agent must have a reason permitted by the RT Act, and must give notice in accordance with the RT Act (ss 85–88).
A renter’s duty to permit entry only applies when a rental provider or agent seeks entry in accordance with the RT Act (s 85). If a rental provider or agent has not complied with the RT Act – or if the renter needs to limit the length or frequency of visits – the renter can apply to VCAT if arrangements cannot be negotiated between the parties (s 85).
If a rental provider is exercising a right of entry but fails to comply with the RT Act, the renter may apply to VCAT for an order that the rental provider be restrained from entering the premises for a specified period (RT Act s 91). The renter may also serve a Breach of Duty Notice claiming compensation for their loss of quiet enjoyment (s 67). A renter who applies for an order prohibiting entry or for compensation for loss of quiet enjoyment needs to substantiate their claim at VCAT.
The renter should keep a record of all entries by the rental provider, including how long they stay, and any other relevant information.
A renter can apply for compensation if any of their belongings are damaged or stolen during an entry to the premises (RT Act s 90(1)).
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A right of entry arises where:
a rental provider gives the renter a proper written Notice of Entry with the minimum required notice period (see ‘Reasons for entry’, below, for the minimum required notice period for each reason);
the reason for entry in the notice is one of the reasons listed in section 86 of the RT Act;
the notice is given by post or in person between 8 am and 6 pm (RT Act s 88(c)); and
the entry is to occur at any time between 8 am and 6 pm on any day (except a public holiday) (RT Act s 85(b)).
If sending a Notice of Entry by post, a rental provider should allow sufficient time for delivery to ensure the proper notice period is given.
A rental provider or their agent may enter the premises even if the time chosen is inconvenient for the renter, or the renter is not home, as long as they have given the required notice and complied with the RT Act.
However, if they are entering for a sales inspection, a rental provider is required to make reasonable efforts to agree on a time with the renter. If they are entering for advertising purposes, a rental provider is required to make reasonable attempts to agree on a time with the renter (RT Act ss 86(2A), 89A(2)).
A person exercising the right of entry must do so in a reasonable manner and must not stay any longer than is necessary to achieve the purpose of entry (RT Act s 87(a)).
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Rental providers and their agents have limited reasons to enter a premises. They may be accompanied by any person who is necessary to achieve the purpose of the entry.
The notice must give the renter:
at least 48 hours’ notice if a Notice to Vacate or a Notice of Intention to Vacate has been given and entry is required to show the premises to a prospective renter, including having open for inspections during the last 21 days of the notice period (RT Act s 86(1)(a));
at least seven days’ notice to produce advertising images and videos in accordance with the RT Act (s 86(1)(ab));
at least 48 hours’ notice if the premises are to be sold or used as security for a loan and entry is required to show a prospective buyer or lender through the premises or conduct an open for inspection of the premises for prospective buyers (s 86(1)(b));
at least 24 hours’ notice to allow a duty under the rental agreement, the RT Act, or any other Act (s 86(1)(c)) to be carried out;
at least seven days’ notice for a valuation (s 86(1)(d));
at least 24 hours’ notice if the rental provider or their agent has reasonable grounds to believe that the renter has failed to comply with their duties under the RT Act or the rental agreement (s 86(1)(e));
at least seven days’ notice for a general inspection, and not more frequently than once every six months and not within the first three months of the rental agreement (ss 86(1)(f), 86(3)); or
at least 24 hours’ notice for an inspection of the premises for the purpose of proceedings under the family violence provisions (s 86(1)(g)).
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A rental provider can exercise their right of entry to take photos or videos for advertising purposes. However, they must follow the extra requirements set out in section 89A of the RT Act. The rental provider or agent must make a reasonable attempt to agree with the renter on a suitable time for the entry to take photos or videos for advertising purposes (s 89A(2)).
A renter has the right to object, in writing, to the taking of photos of videos if:
they directly identify the renter or other occupant;
they reveal sensitive information about the renter or another person living at the premises;
they show something valuable that increases the risk of theft at the premises; or
the rental provider or agent unreasonably expects the renter to remove or conceal a valuable item (RT Act s 89A(3)(a)).
A renter can also object, in writing, to the taking of photos or videos if they might identify anyone living there who is at risk of family or personal violence (RT Act s 89A(3)(b)).
If a renter has given a written objection for the reasons listed above, the rental provider or their agent must not take or produce photos or videos that the renter has objected to and the renter can ask to review the photos and videos before they are advertised to ensure they do not reveal anything they objected to (RT Act ss 89A(4), (6)). If the renter has requested to review the photos or videos, the rental provider or their agent must not use them to advertise the property before the renter has reviewed them, and given their written consent for them to be use (s 89A(5)).
If it has been more than 12 months since photos or videos have been taken for advertising purposes, the rental provider or the agent must get the renter’s written consent before they can use the images (RT Act s 89A(7)).
If photos or videos were taken for reasons other than advertising (e.g. a photo taken during a general inspection) and the rental provider or their agent wants to use these for advertising purposes, they must get the renter’s written consent beforehand (RT Act s 89A(8)).
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The RT Act now provides for open for inspections for sales and rental inspections as long as the rental provider follows the requirements of the RT Act and notice requirements.
Protected persons under an intervention order can require that any inspection is by appointment only, and not by an open for inspection (ss 86(2), (2A)).
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Rental inspections cannot take place more than twice a week and cannot last more than one hour (RT Act s 86(2)). Renters may apply to VCAT to specify or limit entries for specific reasons (s 89(2)).
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If the purpose of the entry is to show the property to prospective buyers (private or open inspections for sale), the rental provider must:
give the renter proper written notice of their intention to sell at least 14 days before any proposed entry;
make all reasonable efforts to agree with the renter on the days and times the property will be available for inspection; and
pay the renter compensation equal to half a day’s rent or $30, whichever is greater, for every sales inspection (RT Act s 86(2A)).
Sales inspections cannot take place more than twice a week and cannot last more than one hour (RT Act s 86(2A)). Only one notice of intention to sell is required to be given. This must be in the form approved and published by CAV. Once the notice is given, it also permits the renter to give a reduced notice of intention to vacate (s 91ZB(1)(e)) (this does not apply if the intention to sell was disclosed at the start of the rental agreement). See ‘Reduced Notice of Intention to Vacate’, below.
The RT Act is silent on when compensation is to be paid. It is recommended that payment be made at the end of the entry. Renters may apply to VCAT for compensation orders where no payment has been made in a timely manner.
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A rental provider’s right of entry only arises if the rental provider has given a proper written Notice of Entry or the renter has consented to the entry (RT Act s 85). Where a rental provider or their agent seeks the consent of the renter to enter the premises, and the renter provides that consent, there is a right to entry at the time agreed between the parties (s 85(a)). The consent must be given not more than seven days prior to entry (s 85(a)).
Repairs
A rental provider is required to ensure the rented premises is maintained in good repair and is in a reasonably fit and suitable condition for occupation (RT Act s 68). The duty ‘is strict and absolute and imposes an obligation upon a [rental provider] to identify and rectify any defects of which they are aware or ought to be aware’ (Shields v Deliopoulos [2016] VSC 500 (7 September 2016)).
This obligation applies regardless of the age and character of the property, the condition it was in before the renter moved in, or the amount of rent the renter pays (RT Act s 68(1A)). It is also not an excuse for a rental provider to indicate that repairs are being delayed because of their insurance company. Renters should apply to VCAT if repairs are not being attended to as required.
Note that repairs and rent payable are treated as separate issues by VCAT. If significant repairs are required, a renter cannot refuse to pay their rent on the basis of ignored repair requests. A renter may be evicted for overdue rent when they have a valid compensation claim for a lack of good repair caused by the rental provider.
Renters can apply to VCAT for a repair order, or to use the ‘rent special account’ (RT Act s 77) (see ‘Rent special account’, below).
All repairs must be completed by a ‘suitably qualified person’. If renters have doubts about who is authorised to do certain types of repairs, or the qualifications of attending trades people, they should contact the Victorian Building Authority or Energy Safe Victoria (see ‘Contacts’ at the end of this chapter’).
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An ‘end of initial fixed term’ Notice to Vacate is of no effect if the notice was given in response to the exercise, or proposed exercise, of a right under the RT Act (s 91ZZI(3)). Further, the ‘no reason’ Notice to Vacate has been abolished. This means that rental providers must give reasons and evidence for other Notices to Vacate they might issue. If VCAT is not satisfied that a Notice to Vacate meets the requirements, then the notice will be dismissed. Further, rental providers are not permitted to ask renter applicants about previous legal action or disputes with rental providers (RT Act s 30C; RT Regulations reg 15(b)).
If a renter receives a Notice to Vacate immediately after asking for repairs (or exercising any other right under the RT Act), the renter should seek legal advice straight away about challenging the notice as being retaliatory.
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The ‘rent special account’ allows a renter to pay their rent to Consumer Affairs Victoria instead of to the rental provider when repairs are not being done (s 498AB). A renter may apply to VCAT for their rent to be paid into a trust account held by Consumer Affairs until such time as VCAT orders the amount of rent to be released, on the basis that the rental provider has fulfilled, or is fulfilling, their obligation to carry out the repairs.
After a repairs notice has been given, VCAT must make an order to allow the renter to pay their rent into the rent special account, unless the rental provider is experiencing financial hardship, or would suffer financial hardship if the rent was paid into the rent special account. A request to use the rent special account (RT Act s 77) can be included on applications for both urgent and non-urgent repairs. If repairs are not completed as required in the repairs order, the renter may apply for compensation against the rent special account funds (s 77(4)).
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The RT Act sets out three processes in relation to requesting repairs: for urgent repairs, non-urgent repairs, and breach of duty procedure. These processes are the means by which a rental provider can be forced to attend to repairs. If a repair is urgent, VCAT orders can be obtained in a matter of days.
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Urgent repairs are defined in section 3 of the RT Act to mean any work necessary to repair or remedy:
a burst water service;
a blocked or broken toilet system;
a serious roof leak;
a gas leak;
a dangerous electrical fault;
flooding or serious flood damage;
serious storm or fire damage;
a failure or breakdown of any essential service or appliance provided by a rental provider for hot water, water, cooking, heating or laundering;
a failure or breakdown of the gas, electricity or water supply to the rented premises;
a failure or breakdown of any cooling service provided by the rental provider;
a failure to comply with minimum standards;
a failure or breakdown of any safety-related devices, including smoke alarms and pool fences;
an appliance, fitting or fixture provided by a rental provider 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;
any fault or damage that makes the rented premises unsafe or insecure, including a pest infestation or the presence of mould or damp caused by, or related to, the building structure; or
a serious fault in a lift or staircase.
First, the renter must take reasonable steps to arrange for the rental provider to immediately carry out the repairs (RT Act s 72(1)). This ordinarily involves attempts to advise the rental provider or agent of the need for repair by telephone. At the start of the rental agreement, the rental provider should have provided the renter with an emergency telephone number to be used in case of the need for urgent repairs (s 66(2)(b)).
What constitutes ‘reasonable’ depends on the circumstances; that is, the degree of urgency of the repairs and the number of times the renter has attempted to contact the rental provider. With particular urgent repairs (e.g. a serious gas leak), the renter may only need to make one or two attempts to contact the rental provider before taking further steps. Renters should keep a record of all telephone calls (answered and unanswered) and any other attempts to contact the rental provider or agent. The renter should also submit the repair request in writing as soon as practicable (RT Act s 72AA).
Following this, if the rental provider does not get the repairs done, or is not responding, the renter has a choice:
the renter can pay for the repairs to be completed by a suitably qualified tradesperson and seek reimbursement from the rental provider (if the cost of the repairs is under $2500 including GST) (RT Regulations reg 32); or
the renter can apply to VCAT for repair orders to make the rental provider attend to the repairs.
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The renter should ensure that the cost of the repairs does not amount to more than $2500 (including GST). If the renter arranges for urgent repairs and the cost is more than $2500, the rental provider is only liable to pay the reasonable cost of repairs up to $2500 (RT Act s 72(2)(b)). It is not recommended renters use this process unless they are certain the repairs meet the definition of urgent repairs.
To recover the money paid for urgent repairs, the renter must give the rental provider seven days’ notice in writing of the repairs carried out and the cost of the repairs (RT Act s 72(2)(a)). It is sufficient notice to send the rental provider a letter, or use the Notice to Rental Provider form; attach copies of the receipts or paid invoices. The rental provider must pay the amount within seven days. If they do not, the renter may apply to VCAT for a compensation order (ss 73, 209AAB).
Note that the renter may request that the rental provider’s liability be offset against the rent by way of a rent reduction order, rather than a monetary order (RT Act s 212(5)). If a monetary order has been obtained from VCAT and the rental provider is refusing to pay, a rent reduction order may be sought instead (s 120A VCAT Act).
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If a renter does not want to, or cannot afford to, pay for repairs themselves or the repairs cost more than $2500 (including GST), after attempting to arrange for the rental provider to do the repairs, the renter should make an application to VCAT (RT Act s 73). VCAT is required to hear an application for urgent repairs within two business days of receiving the application (s 73(2)).
The renter should provide evidence that there is an urgent need for repairs, and the attempts made to arrange for the rental provider to do the repairs. VCAT can make an order requiring the rental provider do the repairs within a specified time (RT Act s 76).
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Non-urgent repairs are repairs other those defined as ‘urgent repairs’. These are required to ensure that the rented premises, fixtures and appliances supplied by the rental provider are maintained in a state of good repair.
In older houses, distinguishing dilapidation and the concept of ‘good repair’ can be difficult. For example, threadbare carpet or peeling paint. When in doubt, parties should engage the non-urgent repair mechanism to determine whether the issue is a non-urgent repair, or a request for renovation or upgrading is necessary. It is also important to note that the condition of the premises may be relevant to whether a rent increase is excessive.
In complex, non-urgent repairs matters, VCAT may consider it appropriate and more efficient to convene at the rented premises, so that VCAT can inform itself about the nature of the issue (VCAT Act s 129). Although this is rare, such a consideration may be raised with VCAT to expedite some matters.
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The renter must give the rental provider 14 days written notice that non-urgent repairs are needed (RT Act ss 72AA, 74). The renter can use the Notice to Rental Provider form. The RT Act does not require a renter to use the Notice to Rental Provider form (Interpretation of Legislation Act 1984 (Vic) s 53), but notice does need to be in writing. Renters may also use the Breach of Duty Notice form (this prescribed form is on CAV’s website). This also helps in the context of claims for compensation or compliance (RT Act s 209) (see ‘Compliance orders’, below).
The notice must be given to the rental provider or agent. It is best to do this via email if there is consent to give notices electronically. Alternatively, it may be given personally or via post. It is recommended to send the notice by registered post, in case of a dispute about service. Renters should keep copies of any notices sent.
If a rental provider has not carried out the repairs within 14 days, or the repairs are not to a satisfactory standard, the renter can either apply to VCAT or apply in writing to the Director of CAV requesting that an inspector investigate (RT Act ss 74, 75). In most cases, it is preferable to apply directly to VCAT as this can provide a faster resolution. A renter needs to provide VCAT with substantial evidence of the repair works required. In contrast, a CAV inspection may be useful if the repair issue is not visible (e.g. a bad smell). VCAT considers CAV inspection reports to be credible and persuasive.
Notes made by a renter on a condition report are taken to be sufficient notice to the rental provider that repairs are required (RT Act s 36(1A)).
All non-urgent repair applications must be heard within seven days of the application (RT Act s 75(3)).
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As part of the non-urgent repair process, renters may apply for CAV to complete a repairs inspection. This is a free service. Renters should use the Request for Repairs Inspection or Rent Assessment form on CAV’s website. A copy of the Notice to Rental Provider or written notice of the repairs should be attached to this form. CAV can accept or reject the application for an inspection. If CAV rejects the application, renters can still apply to VCAT.
After inspecting a premises, CAV will prepare a report that includes recommendations for the repairs needed and/or negotiate with the rental provider (RT Act ss 74(b)–(c)). If a renter requests an inspection from CAV, and CAV agrees to provide one, the renter needs to wait for the report before they apply to VCAT (s 75(2)).
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A renter can apply to VCAT for an order that a rental provider arrange non-urgent repairs if:
the renter has reported the repairs in writing; and
the repairs have not been done within 14 days; or
the renter has reported the repairs in writing; and
the repairs have not been done within 14 days; and
the renter has requested and obtained a CAV inspection report.
The VCAT application should be made under section 75(1) of the RT Act. If a CAV inspection report was obtained, this should be attached to the application. Any evidence that the parties intend to use should be exchanged before the VCAT hearing. Non-urgent repair hearings must be listed within seven days of the application being lodged with VCAT (RT Act s 75(3)).
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Failure to ensure a premises is in good repair is a breach of a ‘duty provision’. This means that a renter is entitled to seek a compliance order. A compliance order has two main advantages (as compared to a normal repair order). First, non-compliance with a compliance order may entitle the renter to give a 14-day Notice of Intention to Vacate under section 91ZE of the RT Act.
Second, non-compliance with a compliance order is grounds for a rental provider to be listed on the residential rental non-compliance register (RT Act ss 439P, 439R). To obtain a repairs compliance order, a renter should give a Breach of Duty Notice under section 68 of the RT Act (and any other relevant sections). If the repairs have not been completed within the relevant time frame, a renter can apply for a compliance order under section 209 of the RT Act. Note that a renter cannot apply in relation to a matter already determined under section 75 of the RT Act (s 75(5)).
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It is not uncommon for renters and rental providers to be uncertain about repairs to common property where there is an owners corporation. The Owners Corporations Act 2006 (Vic) (s 163) makes it possible for a renter to bring a claim directly against an owners corporation for repairs to common property or to services (ss 46, 47).
If a renter applies to VCAT for a breach of the duty to maintain the premises in good order for damage or defects to common property, the rental provider can join the owners corporation to the application (RT Act s 75(2)).
Alternatively, a renter may file an application with VCAT’s Residential Tenancies List and seek to join the owners corporation as an interested party to a dispute (VCAT Act s 60). The decision to join a party may be made at the applicant’s request or be at VCAT’s initiative.
In some cases, it may be appropriate – where there are shared utility services, roof spaces, driveways or delays between the various insurance companies – to apply to VCAT and to join the owners corporation as an interested party. This may be beneficial for both rental providers and renters in complex matters.
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The Public Housing Policy and Procedure Maintenance Manual contains the Homes Victoria’s procedures for repairing and maintaining premises (see www.providers.dffh.vic.gov.au/maintenance-manual-responsive-maintenance-word).
Homes Victoria is a rental provider that is subject to the RT Act in the same way as any other rental provider. The same is true for community housing. Generally, the director’s policies are not a relevant consideration unless the legislation specifically provides for this.
Renters of public housing who wish to request maintenance or repairs to their home should phone or email the Office of Housing’s call centre (tel: 13 11 72). Renters should ask for a ‘scheduled contract number’, which is a record of the phone call.
Nonetheless, it is still recommended that public renters follow the same repairs process described above, until the repairs are completed. This may include if there are unacceptable delays in attending to the repairs. The use of prescribed notices (as described above) provides an easy and accessible reference for compensation claims, and a record if there is a dispute.
Maintenance complaints, including complaints about contractors and trades people used by the director, can be lodged at www.housing.vic.gov.au/maintenance-complaints.
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Rental minimum standards apply to rental agreements where the renter has moved into properties on or after 29 March 2021. A rental provider must make sure the premises complies with the rental minimum standards on or before the day the renter takes occupation of the premises. Unfortunately, the minimum standards do not apply to agreements that started prior to 29 March 2021.
A rental provider must also make sure that the premises continues to comply with the rental minimum standards throughout the rental agreement (RT Act s 65A; RT Regulations reg 29, sch 4).
If a property does not meet the rental minimum standards, a renter has the option to:
end the agreement if the renter has not taken possession of the premises (RT Act s 91L(f)) – that is, if the renter has not stayed at the property, even if they have already moved in their belongings; or
request urgent repairs (ss 3, 73, 65A).
There are rental minimum standards regarding locks, bins, toilets, bathrooms, kitchens, laundries, structural soundness, mould and dampness, electrical safety, window coverings, lighting, ventilation and heating (RT Act s 65A; RT Regulations reg 29, sch 4).
If a property is heritage listed, the rental provider may not have to meet some of the minimum standards. For further details about the rental minimum standards, see Tenants Victoria’s website (www.tenantsvic.org.au/advice/starting-your-tenancy/minimum-standards).
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Renter’s responsibilities
It is a renter’s duty, or responsibility, to not remove, deactivate or interfere with any of the prescribed ‘safety devices’ located at a rental property, unless it is reasonable to do so (RT Act s 63A; RT Regulations reg 25).
Rental provider’s responsibilities
From 29 March 2021, before a renter signs a new rental agreement, the rental provider must tell them the date of the last gas and electrical safety checks and any outstanding recommendations. The rental provider must also tell the renter the date of the last pool-compliance check (RT Act s 30D; RT Regulations reg 16).
There are several safety related duties, or responsibilities, that a rental providers must undertake if a rental agreement started from 29 March 2021 (RT Act s 27C; RT Regulations sch 3). These are included in CAV’s new standard form rental agreements.
Gas and electricity safety checks must be carried out every two years by a licensed/registered gas fitter or electrician (RT Act s 27C; RT Regulations sch 3). A rental provider must keep records of these checks and give the renter a copy of the latest check within seven days, if the renter has requested this in writing (RT Act s 68B; RT Regulations reg 30). Any failure to keep the required safety check records, or to not give the renter a copy of the checks, is a breach of duty (s 68B). If gas and electrical safety checks have not been completed in the last two years, they must be done immediately (RT Act s 27C; RT Regulation sch 3).
A rental provider must ensure that smoke alarms are correctly installed and working, batteries are working, and the alarms are tested every 12 months. If a smoke alarm is not working, it must be fixed immediately as an urgent repair. At the start of a rental agreement, the rental provider must give the renter written information about how the smoke alarms works, how to test them, and instructions not to interfere with them (RT Act s 27C; RT Regulations sch 3).
The barrier for any swimming pool on the property must be installed and in working order and fixed immediately as an urgent repair if it is not in working order (RT Act s 27C; RT Regulations sch 3). Pools are required to be registered with the local council and barriers must be inspected every four years. For more information, see the Victorian Building Authority’s website (www.vba.vic.gov.au/consumers/swimming-pools/inspections-and-compliance).
If a property is in a bushfire-prone area and requires a water tank for safety, the tank and its connections must be in good repair. The tank must be full and clean at the start of the rental agreement (RT Act s 27C; RT Regulations sch 3).
Locks and security
Urgent repairs are defined to include ‘any fault or damage that makes the premises insecure’ (RT Act s 3). The rental minimum standards – which apply if the renter moved into a new property from 29 March 2021 – also have requirements for door locks and window locks or latches. All external entry doors (other than screen doors) that cannot be secured with a functioning deadlock must be fitted with a lock that is operated by a key from the outside and can be unlocked from the inside without a key. This is to prevent people being trapped inside in the event of a fire. Exceptions apply in limited circumstances (RT Regulations sch 4).
All external windows that can be opened must have a functioning lock or latch to secure the windows against external entry (RT Regulations sch 4). Any non-compliance with minimum standards is an urgent repair. So, where an external window or door lock is defective, it is usually appropriate to initiate the urgent repairs process (see ‘Urgent repairs’, above).
A rental provider must ensure that all external doors that can be secured with a functioning deadlock (other than screen doors) are secured with a functioning deadlock (RT Act s 70(1)). A rental provider must provide locks (defined as ‘a device for securing a door or a window or other part of the premises’) to secure all windows of the rented premises (s 70).
If a renter believes the rental provider has not complied with these requirements, they may serve a Breach of Duty Notice and then apply to VCAT for a compliance order. The renter may require evidence to support their claim that the premises was not secure (e.g. a police report).
Note also that a renter can change the locks to their rented premises (RT Act s 70(2)). If a key pertains to a master key system, the rental provider’s consent is required. Consent cannot be unreasonably withheld (s 70(4)). As soon as any lock is changed, the renter must, as soon as practical, give a key to the rental provider (s 70). The exception to this is when a renter is excluded by an intervention order or safety notice. A protected person (whether or not they are on the rental agreement) who primarily resides at the premises can change any lock (including a master key lock). As soon as practicable after the locks are changed, a protected person needs to give a copy of the key and a copy of the verified extract of the intervention order or safety notice to the rental provider (or their agent), and a copy of the key to any other renters (other than the excluded renter) (s 70A(3)). The agent is prohibited from giving a key to the excluded renter. For more information, see Tenants Victoria’s Family Violence Kit (www.tenantsvic.org.au/advice/during-your-tenancy/family-violence).
During the tenancy
Chapter: 6.1: Tenancy
Contributor: Ben Cording, Lawyer, Tenants Victoria
Current as of: 1 September 2024
Law Handbook Page: 423
Next Section: Rooming houses
