coronavirus (COVID-19) impacts on renters - Tenants Victoria

    coronavirus (COVID-19) impacts on renters

    what’s new?

    3/4/2020: Still waiting on decision for renters
    Prime Minister’s press conference after today’s National Cabinet meeting:
    “On residential tenancies, you’ll recall that we already announced that there was a moratorium on evictions. We won’t have anyone thrown out of their homes. That’s very important. And there’ll be further work that is being done by the treasurers on residential tenancies.”

    3/4/2020: ASIC warns real estate agents against advising tenants to access their super
    31/3/2020: Residential tenancies update
    29/3/2020: National Cabinet agrees to a moratorium on evictions

    27/3/2020: No decision for renters today
    25/3/2020: Residential tenancies update

    24/3/2020: Open for inspections shutdown from midnight Wednesday 25 March 2020.
    20/3/2020: More support for renters still to come.

    advice for tenants

    eviction
    trouble paying rent
    people coming into your rented home
    protection from violence
    restraining orders
    travel bans

     

    For the latest information on the state of emergency in Victoria, see:

    For the latest information on coronavirus (COVID-19), see:

    If you are feeling unwell, see:

    For employment changes, see:

    For travel restrictions, see:

     


    Tell us about your experience renting during the coronavirus (COVID-19) health emergency

    Are you having any difficulties to do with your rented home due to the impacts of coronavirus (COVID-19)?

    • Have you been evicted?
    • Have you been given a Notice to vacate?
    • Are you finding it harder to pay rent?
    • Are you finding it hard to be isolated because people are coming into your home for sales inspections or other reasons?
    • Are you finding it hard to get anyone to do repairs?
    • Anything else?

    We want to find out about anything that is negatively impacting tenants during this health emergency so we can try and change it: Tell us your COVID-19 story.

     


    eviction

    29/3/2020: National Cabinet agreed to a moratorium on evictions over the next six months for commercial and residential tenancies in financial distress who are unable to meet their commitments due to the impact of coronavirus.

    We currently do not have the full details of what this means for Victoria and will post more information as it becomes available.

    current laws on eviction

    Evictions must follow all the steps in the law.

    illegal evictions

    If the landlord or agent does not follow all the steps in the law, if they threaten to evict you or if they attempt to illegally evict you, you can write a letter to the landlord to refrain from breaching your rights.

    You can use one of the example letters below and fill in details about your specific situation:

    worried about paying rent?

    If you need help to write to the landlord to reduce your rent, try one of our example letters.

    Letter to the real estate agent:

    Letter to the landlord:

    Or see:

    accessing your super

    We recommend you get financial advice before you access your superannuation.

    Have you received a letter or email from the real estate agent advising you to access your super? Financial advice must only be provided by qualified and licensed financial advisers, or financial counsellors.

    3 April 2020: ASIC has written a letter to the real estate institutes in each state outlining concerns about some real estate agents who are advising tenants to apply for early release of their superannuation. ASIC letter – Unlicensed financial advice by real estate agents to tenants.

    financial help

    For help, see Moneysmart (COVID-19) [Gov website].
    You can talk to a financial counsellor by calling the National Debt Helpline on 1800 007 007.

    Private Rental Brokerage Program (PRAP) provides financial and practical assistance to establish and maintain private rental tenancies for people who are homeless or those who are at risk of homelessness, who are able to maintain private rental, or who are in private rental and need targeted time limited assistance to maintain their private rental.

    Housing Establishment Funds (HEF) helps individuals and families who are homeless or at imminent risk of homelessness to access emergency or alternative housing options, such as registered rooming houses, hotels/motels and caravan parks.

    People experiencing or at risk of homelessness can call the toll free homelessness hotline on 1800 825 955. This number will direct the call to the closest homelessness entry point, or if the call is outside business hours, it will be directed to the After Hours service.

    people coming into your rented home

    Find out your rights about people coming into your home for:

    protection from violence

    An intervention order is a court order to to protect a person, their children and their property from another person’s behaviour.

    restraining orders

    A Restraining Order made by VCAT can prohibit or restrict the landlord or agent from entering the premises or contacting you and it can be enforced by the police. It is an offence for the landlord or agent to breach a Restraining Order and they can be prosecuted. See:

    Also see: restraining orders vs. intervention orders.

    travel bans

    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).

     

    other questions

    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 just call the RTBA on 1300 137 164 and provide you name and the proposed rental address.

    TIP: It is always advisable to get a receipt at the time of paying a bond. Make sure the receipt clearly identifies it as a bond payment. Generally, you should avoid paying a bond or rent in cash.

    For more information about the coronavirus, see:

     

    While the coronavirus (COVID-19) is a serious issue, it is important to be informed about the facts from credible sources, keep the protocol in perspective with respect to the effects of the virus, and keep the main priority the management and monitoring of the spread of the virus. If you have concerns about your health, make an informed choice and see your doctor.

    This information is a guide only and should not be used as a substitute for professional legal advice.

    need more help?

    contact us


    Tenants Victoria | Published: February 2020 | Modified: April 2020
    Tenants advice line 03 9416 2577 | tenantsvic.org.au
    Tenants Victoria acknowledges the support of the Victorian Government.

    Tenants Victoria acknowledges the support of the Victorian Government.