rights of entry and COVID-19 - Tenants Victoria

    rights of entry and COVID-19

    can the landlord (or anyone else) come into your rented home?

    Government authorities at both state and federal level have put in place a series of measures that either require or strongly advise people to enter into self-isolation or to practice ‘social distancing’ in an effort to contain or mitigate the spread of COVID-19.

    This may affect three main areas for tenants:

    Also see:

    health advice for Victoria

    coronavirus update for Victoria

    Media Release – 6 August 2020: Coronavirus update for Victoria [DHHS website]

    Victoria has recorded 471 new cases of coronavirus since yesterday, with the total number of cases now at 13469:

    • 2388 cases may indicate community transmission
    • 7449 cases are currently active in Victoria
    • 575 cases of coronavirus are in hospital, including 42 in intensive care
    • 170 people have died from coronavirus in Victoria.

    Victoria’s Chief Health Officer Professor Brett Sutton said:

    • “This virus is not selective, it will impact anyone it encounters, and personal contact is the clear source of its transmission. 
    • “Stay 1.5 metres away from anyone you don’t live with and avoid crowds, especially indoors.

    state of disaster

    From 6pm Sunday 2 August 2020, Victoria will enter a State of Disaster.  This will give police additional powers to make sure people are complying with public health directions.

    state of emergency

    Victoria extends the current State of Emergency through to 11:59 pm 16 August 2020. See: Victoria’s restriction levels

    face coverings

    Face masks and coverings [DHHS website]

    From 11:59pm on Sunday 2 August 2020, all Victorians must wear a face covering when they leave home, no matter where they live. There are a number of lawful excuses for not wearing a face covering. What this means for renters.

    stage 4 restrictions – metropolitan Melbourne

    Stage 4 restrictions [DHHS website]

    From 6pm Sunday 2 August 2020, Melbourne moved to Stage 4 restrictions with stronger rules to limit the movement of people – and limit the spread of this virus across our city.

    stage 3 restrictions – regional Victoria

    Stage 3 restrictions [DHHS website]

    From 11:59pm Wednesday 5 August 2020, Stage 3 “Stay at Home” restrictions apply for regional Victoria (including Mitchell Shire and Greater Geelong and surrounds). That means there’s only four reasons to be out: shopping for food and essential items. Care and caregiving. Daily exercise. Work and study – if you can’t do it from home.

    restrictions map – 11.59pm Wednesday 5 August 2020

    Restrictions map: Stage 3 regional Victoria, Stage 4 metropolitan Melbourne

    Restricted Area: metropolitan Melbourne

    The restricted area – see restrictions map – includes addresses within the local government areas:

    • Banyule
    • Bayside
    • Boroondara
    • Brimbank
    • Cardinia
    • Casey
    • Darebin
    • Frankston
     
    • Glen Eira
    • Greater Dandenong
    • Hobsons Bay
    • Hume
    • Kingston
    • Knox
    • Manningham
    • Maribyrnong
     
    • Maroondah
    • Melbourne
    • Melton
    • Monash
    • Moonee Valley
    • Moreland
    • Mornington Peninsula
    • Nillumbik
     
    • Port Phillip
    • Stonnington
    • Whitehorse
    • Whittlesea
    • Wyndham
    • Yarra
    • Yarra Ranges

     

     

    What the new mask rules mean for renters

    masks across Victoria

    From 11:59pm on Sunday 2 August everyone in Victoria will need to wear a face covering when they leave home, unless they have a lawful exception.

    Now that there are new rules for masks in all of Victoria, this applies to all people entering your home for inspections, repairs and any other reason. This includes landlords and real estate agents, tradespeople, and members of the public attending private inspections in your home.

    Note: A face covering includes a face mask or face shield designed or made to be worn over the nose and mouth to provide the wearer protection against infection.

    More information:

    restricting entry to your home

    We suggest the landlord and their agents only arrange for someone to enter your home if urgent repairs are needed. You can write to the landlord or agent to request this.

    If you live outside the Restricted Area, you can request that anyone entering your home for urgent repairs is not from the Restricted Area.

    letters to restrict entry to your home

    If you need help to write to the landlord or agent, try one of our example letters – these letters are for government Directions and Restrictions issued 5 August 2020 and 6 August 2020.

    Letter to the real estate agent – Stage 4: if you live in the restricted area:

    Letter to the real estate agent – Stage 3: if you live outside the restricted area:

    Letter to the landlord – Stage 4: if you live in a restricted area:

    Letter to the landlord – Stage 3: if you live outside the restricted area:


    inspections during COVID-19

    From 11.59pm 5 August 2020 –

    Auctions and open inspections are not permitted anywhere in Victoria.

    Private inspections are not permitted in metropolitan Melbourne.

    Even though inspections are permitted by private appointment in regional Victoria, there are some reasons you can refuse entry to your home.

    directions by Victoria’s Chief Health Officer – Restricted Area

    New Directions or metropolitan Melbourne – that limit the number of people who can enter your home at any one time – were issued by the Victorian Government on 5 August 2020. These Directions will be in place until 11.59 pm Sunday 16 August 2020.

    area directions

    The Area Directions defines the Restricted Area. See restrictions map

    Area Directions (No 6)

    4 Restricted Area
    For the purposes of the Directions currently in force, the Restricted Area means the aggregate area consisting of the municipal districts, suburbs, localities and addresses within greater Melbourne.

    restricted activity directions

    New Directions were released at 11.59pm 5 August 2020 to restrict business operations in order to limit the spread of the virus. These Directions include further restrictions for permitted work premises which are listed separately.

    Restricted Activity Directions (Restricted Areas) (No 6)

    6 Permitted Work Premises
    (1) A person who owns, controls or operates a Permitted Work Premises in the Restricted Area may operate that premises during the restricted activity period to the extent permitted by the Directions currently in force.
    Note: the restrictions on Permitted Work Premises include the relevant restrictions listed in the ‘‘Stage 4 Restrictions – Permitted Work Premises’ on the webpage www.dhhs.vic.gov.au/business-industry-stage-4-restrictions-covid-19 as amended from time to time by the Victorian Government and the Permitted Worker Permit Scheme Directions and the Workplace Directions which include requirements for Work Premises including record keeping, density quotient, signage and cleaning requirements.

    permitted work premises

    The permitted work premises can be amended from time to time. The latest version is: ‘Permitted Work Premises’ for the purposes of the Restricted Activity Directions (Restricted Areas) (No 6), effective as at 5 August 2020 from 11:59pm (version 1.0)

    Here is the list of what is permitted for real estate services from 11.59pm 5 August 2020. It does not include auctions or inspections.

    Rental hiring and real estate services stage 4 restrictions

    Permitted industries

    Services related to property settlement or end-of-lease (including removalists)

    Rental and hiring services:

    • where supporting a permitted service or industry
    • where required for emergency maintenance

    For more information and lists of Permitted Work Premises, see:

    stay at home directions

    Even though private inspections are mentioned in the Stay at Home Directions (Restricted Areas) (No 9) – they are not currently permitted in the Restricted Area because inspections must be organised in accordance with Restricted Activity Directions (Restricted Areas) (No 6) including the Permitted Work Premises – which do not permit inspections.

     

    directions by Victoria’s Chief Health Officer – outside the Restricted Area

    Even though inspections are permitted by private appointment in regional Victoria, there are some reasons you can refuse entry to your home.

    stay at home directions

    If you live outside the restricted area – you must not permit someone to enter your home except for a few essential reasons. One of these reasons is for a person to attend a private inspection.

    Stay at Home Directions (non-Melbourne)

    PART 3 — REASONS TO LEAVE PREMISES

    10 Leaving premises for other reasons
    (1) A person who ordinarily resides in the Relevant Area may leave the premises in the following circumstances:

    (h) for purposes relating to, or associated with, dealing with residential property, including attending a private inspection of a residential property organised in accordance with the Restricted Activity Directions (Non-Melbourne) or the Restricted Activity Directions (Restricted Areas) (No 6) (as applicable); or

    PART 4 — GATHERINGS

    11 Restrictions on gatherings

    Private gatherings

    (2)(d) it is necessary for the other person to enter for the purposes of attending a private inspection of the premises, organised in accordance with the Restricted Activity Directions (Non-Melbourne)

    restricted activity directions

    If you live outside the restricted area – the Directions prevent auctions and open house inspections until 11.59pm Sunday 16 August 2020.

    Restricted Activity Directions (non-Melbourne)

    14 Real estate auctions and inspections
    An estate agent must not organise:
    (1) any auction to take place for the sale of a real estate in the Relevant Area during the restricted activity period, unless that auction is to be conducted remotely; or
    (2) an inspection by members of the public of a real estate in the Relevant Area during the restricted activity period for the purposes of a prospective sale or rental of the property, other than by private appointment, such private appointment to comply with the restrictions on public gatherings in the Stay at Home Directions (Non-Melbourne).

    Open inspections: what are my rights?

    landlords have no rights for open inspections or auctions

    No matter what the Directions say, it’s important for renters to know that under the current law – Residential Tenancies Act 1997 (Vic) – there’s no right for an agent, or landlord, to hold open house inspections or onsite auctions at a renter’s home. And renters do not need to allow agents and landlords to enter their homes for these reasons.

    An open inspection occurs where the general public can just walk through the home. Generally, and especially now, you do not need to allow the landlord access or entry to your home for this reason (See Higgerson v Ricco (Residential Tenancies) [2014] VCAT 1214). This applies regardless of COVID-19.

    Generally, the landlord does have a right to bring a prospective buyer or tenant through the premises under law, but this does not extend to open house inspections or auctions. So, despite the changes to the directions, you do not have any duty under the Residential Tenancies Act to allow entry to your home for the purposes of an open for inspection or auction. For more information, see: privacy and entry and for sale, selling, sold!

    refusing inspections by private appointment for sale/rent

    Even though the Directions permit inspections by private appointment in regional Victoria, you do not have to let anyone in if the landlord or agent did not give you proper notice (see: privacy and entry).

    For more on your rights when the landlord is selling your rented home, see: for sale, selling, sold!

    During the pandemic, there are some additional reasons you can refuse entry to your home. See: refusing entry for a “COVID-19” reason.

    refusing inspections by the landlord or agent

    The landlord or agent cannot enter to inspect your home if:

    • they do not give you proper notice (see: privacy and entry), or
    • it is within the first 3 months of your first tenancy agreement (lease), or
    • they have done an inspection within the last 6 months.

    During the pandemic, there are some additional reasons you can refuse entry to your home. See: refusing entry for a “COVID-19” reason.

    refusing entry for a “COVID-19 reason”

    Even in circumstances where you would usually have a duty to permit entry to your home, for example, where a landlord, or their agent, wanted to show the home to a prospective buyer and you’ve been given the proper notice for this, you can refuse the entry if your refusal is for a “COVID-19 reason”.

    You will not be in breach of your usual duties under the Residential Tenancies Act if you refuse for one of these reasons:

    • if you are ill (whether or not due to COVID-19)
    • complying with laws, directions and recommendations relating to COVID-19, and the control of COVID-19
    • you will suffer severe hardship if you do comply, or
    • there is an exceptional circumstance relating to COVID that makes it not possible, or practical, to comply.

    If you are unable to comply because of a “COVID-19” reason between 29 March 2020 and 26 September 2020 you will not be in breach of your agreement or your duties under the Residential Tenancies Act 1997.

    Also see: exceptionally vulnerable people can apply for an exemption.

    entry in a reasonable manner

    The Residential Tenancies Act 1997 (Vic) requires that entry be done in a reasonable manner (s87), and not cause damage (s90). For information on current laws, see privacy and entry.

    exceptionally vulnerable people can apply for an exemption

    If you have conditions that make you exceptionally vulnerable to COVID-19, you can apply to VCAT to make an order that you be “exempted” from certain provisions of the Residential Tenancies Act 1997 (Vic) such as entry by other people into your rented home. This exemption can apply for a period of the time and in some circumstances indefinitely.

    Given the gravity of risk to some people that unnecessary exposure to third-party contact in the home may cause, this is the best opportunity to address some concerns with respect to the home.

    Successfully obtaining a VCAT Order under these provisions is rare. However, in the absence of other actions taken by government, this at least gives VCAT the power and opportunity to address the individuals concerned.

    To prove that you have grounds to be exempted from Part of the Act (such as the entry provisions), you must show that “in all the circumstances, the application of the provision of this Act would occasion severe hardship to the applicant” (s25(3) Residential Tenancies Act 1997 (Vic)).

    It is unlikely to prevent evictions, but this type of pandemic has not occurred before.

    The Charter of Human Rights and Responsibilities Act 2006, is also likely to be useful in such applications. For more information see: The Charter of Human Rights and Responsibilities and the Residential Tenancies Act (PDF)  

    The VCAT Order may operate for a specific period of time and may be made subject to any conditions the Tribunal thinks fit.

    How to apply

    As part of the new Dispute Resolution Scheme, all disputes must go to Consumer Affairs Victoria before they can go to VCAT. Consumer Affairs Victoria decides if the dispute goes to alternative dispute resolution or to VCAT for a decision. Either way, you should have the chance to give your side of the story.

    Apply to Consumer Affairs Victoria first: Rental dispute initial assessment [CAV website]

    • If Consumer Affairs Victoria decide that the dispute should go to VCAT, they will give you a reference number to include in your VCAT application.
    • Consumer Affairs Victoria may need to assess the dispute in further detail before issuing a reference number.
    • If you need to make an urgent application to VCAT for an exemption, we recommend you call Consumer Affairs Victoria on 1300 558 181 and request they give you a reference number over the phone to allow you to make an urgent application.

    Then, if you need to, apply to VCAT: Application by a tenant or landlord [VCAT website]

    TIP: we recommend you have your VCAT application ready so you can lodge it with VCAT as soon as Consumer Affairs Victoria gives you a reference number.

    do I have to leave my home for an inspection?

    No. The landlord, or agent, cannot ask you to leave your home just because they want to show it to a prospective buyer or tenant.

    You have a right to exclusive possession and quiet enjoyment of your home under the Residential Tenancies Act and the landlord, or agent, must do all that is reasonable to ensure you have this quiet enjoyment. The landlord/agent cannot compel you to leave.

    what if they try to insist on open house inspections or auctions?

    From 11.59pm Wednesday 5 August 2020, auctions and open house inspections are not permitted anywhere across Victoria.

    If the landlord or the agent try to insist on an open for inspection or auction, you can take steps to restrict their entry. See:

    what if I want to allow open house inspections or auctions?

    From 11.59pm Wednesday 5 August 2020, auctions and open house inspections are not permitted anywhere across Victoria.

    how many people can enter my home for an inspection?

    At 5 August 2020 – Auctions, open inspections and private inspections are not permitted in metropolitan Melbourne.

    Even though inspections are permitted by private appointment in regional Victoria, there are some reasons you can refuse entry to your home.

    If you live outside the Restricted Area – Stay at Home Directions (non-Melbourne) restrict public gatherings to 2 people (being you and one other person) except for some limited reasons. So if there is an inspection by private appointment, we recommend that you only allow one other person into your home.

    PART 4, 11(2)(d) refers to “the other person”.

    Stay at Home Directions (non-Melbourne)

    PART 4 — GATHERINGS

    11 Restrictions on gatherings

    Private gatherings

    (2) (d) it is necessary for the other person to enter for the purposes of attending a private inspection of the premises, organised in accordance with the Restricted Activity Directions (Non-Melbourne)

    physical distancing and good hygiene still applies

    Anyone who enters your home must also practise physical distancing and good hygiene to slow the spread of coronavirus. This includes wearing a a face covering.

    More information:

    cleaning requirements

    The Residential Tenancies Act 1997 (Vic) only requires the tenant to keep the premises reasonably clean. While it is in everyone’s interest to ensure that people comply with the recommended hygiene standards and personal space recommendations, there is no specific duty to ensure the premises are “sterilized”. So, if you get a Notice for breach of duty that requires a standard of cleaning beyond reasonable clean, it may be treated as invalid. See When you get a breach of duty notice.

    cleaning when moving out

    For similar reasons, tenants ending the tenancy should not be compelled to use any specialized services to reduce the risk of a COVID-19 infection to subsequent occupants. Such requirements, clauses or other costs, would be harsh and inconsistent with the current law (see section 27, 28).

    repairs and COVID-19

    if you need repairs done

    Due to current government health requirements on physical distancing, it may be hard to find a tradesperson to do repairs.

    If the landlord is unable to get a tradesperson to do the job you can try to find one yourself and pass on the details to the landlord or agent.

    VCAT can make an Order that the landlord get the repairs done. If you found a tradesperson willing to do the work, you can provide their contact details for the VCAT hearing as evidence that the works can be done.

    If the landlord cannot find someone to do the repairs, you continue to have a right to compensation.

    safety when people enter your home

    It is important you take all practical steps to ensure both tradespeople and tenants are safe from the spread of COVID-19.

    For tips on keeping everyone safe when tradespeople come into your home, listen to coronacast (Monday 6 April) [go to 6.52].

    Things they recommend for tradespeople to be entirely safe:

    • wearing a mask and gloves
    • changing gloves after each customer
    • cleaning all the surfaces that they touch with alcohol or peroxide or bleach
    • washing their hands before and after seeing you
    • using their own towels.

    if you don’t want repairs done

    Please note there is no right to renovate during a tenancy. If the landlord wants to do work that is not essential – such as renovations – you can apply to VCAT for a restraining order but this may affect the amount you would be entitled to in relation to a compensation claim. Such matters will be determined by VCAT on a case by case basis.

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

    related pages

    privacy and entry
    for sale, selling, sold! your rights when the landlord is selling your rented home
    repairs when renting a home
    applying for a restraining order: COVID-19 update

     

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    Tenants Victoria | Published: March 2020 | Modified: August 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.