The coronavirus (COVID-19) has caused some tenants to be unable to freely travel or to fulfil their contractual obligations. It has also given rise to potential discrimination and exploitation of the situation for financial gain.
Tenants Victoria is committed to supporting and advocating for all Tenants in the State of Victoria to have access to housing that is fair, safe and dignified, and to assist parties to resolve their dispute professional and efficiently.
common situations arising from the coronavirus travel bans
Coronavirus (COVID-19) has affected people in varying ways, but people and families that have travelled to and from China since 1 February 2020 are especially affected, as there are numerous Quarantine procedures and protocols being implemented in Australia, China and abroad.
These protocols mean that some tenants will need to return home and end or break their tenancy lease, while other who were expecting to be able start a new lease will not be able to. Tenants and potential tenants may be unfairly treated for various reasons because of misconceptions about the virus or its epidemiology.
International students are a tenancy group that is expected to be significantly affected by coronavirus (COVID-19).
Below are a few common situations that students/tenants might may encounter:
I signed up for a residential tenancy agreement in Victoria, but now I cannot travel to Australia
Step 1: The first thing you need to work out is whether you have actually entered into a binding agreement.
Step 2: Secondly, if you have entered into an agreement, you need to work out what sort of agreement have you entered into.
If you have entered into a Residential Tenancies Act (Vic) 1997 Agreement, then you need to choose from four main options:
1) Terminate by lease by mutual agreement
Try to terminate the lease by agreement. This may involve agreement to pay a lump sum of some amount of your discretion. If the landlord has any bond or rent money, they don’t have an automatic right just to keep this money, so you can challenge them by going to VCAT.
2) Assignment (transferring your lease to someone else with consent of landlord or Order from VCAT)
Do you know anyone in Australia that could take over the lease for you? You can request to transfer your lease to someone else with the written consent of the landlord. If they refuse, you can either apply to VCAT (section 82, Residential Tenancies Act (Vic) 1997), or raise this as a factor that the landlord has failed to mitigate loss if they allege you have broken the lease.
3) Reduction of Fixed Term Tenancy
You can write an email to the landlord telling them you intend to apply to VCAT to reduce your tenancy due to unforeseen circumstances. You will need to outline what has happened in your particular situation that means you need to end the lease. You should apply as soon as possible as time is of the essence to reduce your liability. We would recommend that you apply to VCAT and send an email at the same time.
4) Break your lease
The final option is simple to write a letter indicating the reasons you are breaking your lease. You should confirm that you no longer wish to proceed with the lease and that you do not intend to collect the keys. You should clearly remind the landlord that they should relet the premises as soon as possible.
I am in a fixed term lease, but need to unexpectedly return home for family reasons.
This is similar to any other lease breaking situation where something unforeseen has happened.
I am an international student and have paid a deposit but haven’t signed the contract
It is important to recognise that you can enter a lease agreement in many ways. This can be done orally (which can be harder prove), by click wrap (accepting terms and conditions on a website or app), by email exchange back and forth, or by entering into a written agreement.
The general principle an agreement is made of is a clear offer and clear acceptance. An offer must include all essential terms and be clearly accepted without further condition by the other party. If this does not occur then this is not a “true meeting of the minds” and parties are still in negotiations. Any money paid in the course of negotiations in good faith in an effort to secure the right to negotiate, is then a hold or application deposit, and subject to section 50, Residential Tenancies Act (Vic) 1997.
It is common for people to respond to ads, and in many cases agents will indicate that your application “has been accepted’, but a lease has still not been entered into.
Sometimes, the question of whether you have entered into the lease or not is unclear, and will have to be determined by VCAT. Generally, a tenant will allege the money is a holding deposit, and the landlord will allege the tenant has broken their lease. This will be a matter for VCAT to determine.
What to do to get a holding deposit back?
To apply for any money back (other than bonds), all you need to do is apply to VCAT under section 210, Residential Tenancies Act (Vic) 1997, using this application:
The burden to prove if a contract has been entered into or not, will be based on the person that applies to the Tribunal.
In other words, if you apply to VCAT seeking your holding deposit, you will need to prove that no agreement was reached. Equally, if the landlord is seeking to make you pay more money for breaking the lease, they will need to prove a contract was entered into.
I am an international student currently in student housing, but needs to break my lease
Firstly, it is important to determine if you are covered by the Residential Tenancies Act (Vic) 1997. The main exemption that relates to student housing is section 21, Residential Tenancies Act (Vic) 1997: Educational institutions. While many providers claim not to be covered by the Residential Tenancies Act (Vic) 1997, the requirements to be exempt from the Act are onerous. Generally, the accommodation must be part of a specific learning institution or have formal affiliations with a particular institution, and are used primarily to accommodate students of that institution. Formal affiliations requires a written agreement between the accommodation provider
Even if the exemption under section 21 applies, the Australian Consumer Law and Fair Trading Act 2012 still applies, and in fact, this may have some benefits.
Breaking a lease in student accommodation can have more economic risks that breaking an ordinary lease. There are three main reasons for this; Firstly, student housing generally can only be let to enrolled students; Secondly, once semester has started, there is less movement or demand for students moving into mid-way through semester, meaning there is less demand; Thirdly, in some student accommodation where there are high vacancies. The law is unclear whether the landlord needs to let out your vacant room as a priority, or whether they are legally entitled to rent out other vacant rooms first.
The processes available for breaking the lease as the same as any other lease breaking situations. However, where you need to lease the rented premises, it is strongly advisable to consider making an application for reduction of fixed term tenancy as compared to simply breaking your lease.
I live in a share house and one of my housemates has had to leave
When people are on a lease together, this is called being co-tenants. Co-tenants are jointly and severally liable. This continues even if someone leaves. If co-tenants wants to change who is a tenant, this process is called assignment. See section 81-84, Residential Tenancies Act (Vic) 1997.
For more information see Shared Households and Assignment.
Note: Tenants Victoria does not advise in relation to co-tenant disputes.
However, if one co-tenant needs to leave due to family needs or other health reasons, it may be in everyone’s interest to determine if the household needs to end the lease, or whether the tenant’s interest can be assigned.
Assignment can be done in two ways; it can be done to reduce the number of people (and the remaining rent obligations are increased amongst the co-tenants), or a substitute tenants can be found. The latter being the best options but this is not always easy with respect to time. It is possible to reduce the number and then later do another assignment when the new tenant is found. This is likely the neatest option if someone is not immediately available. It is up to the co-tenants to decide.
It is important that the affected tenant is involved in the assignment, because without releasing the person, it will be very difficult to do future assignments, and it is unlikely the person will contribute to pay the rent anyway.
If they are not released and no one covers this share of rent, or the exiting person refuses to continue to pay their share, rent arrears will accrue. If more than 14 days worth arrears accrues, the landlord can give you a Notice to Vacate (see Avoiding Eviction for Rent Arrears).
What if I have been discriminated against because of my race, nationality or disability?
If you believe that you have been treated unfairly because of your nationality or a disability you have, you can raise this complaint with the Victoria Human Rights and Equal Opportunity Commission (VHREOC).
This is a free service that can facilitate conciliation and assist parties to reach their own agreements. If the conciliation is unsuccessful or parties wish to, they can apply to VCAT under the Equal Opportunity list [VCAT website].
What if I paid a bond, does it still have to be lodged with the RTBA?
All monies paid as bonds, must be lodged with the Residential Tenancies Bond Authority (RTBA), even if tenancy did not commence (section 406, Residential Tenancies Act (Vic) 1997 ). In others words, if you paid a bond and had to cancel the lease (unless the money is immediately refunded to you), the landlord must lodge the money with the RTBA.
It is unlawful for a landlord to simple take a bond in lieu of any debt without lodging it, regardless of whether you have broken your lease or are alleged to owe them money. If you landlord is refusing to lodge a bond, contact Consumer Affairs Victoria immediately.
If you don’t know if you bond has been lodged, you can call the RTBA on 1300 137 164 and provide you name and the proposed rental address.