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:

    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.

    Sample letters including the new government directions will be available soon.

    inspections and isolation

    Because of the nature the contagion, Estate Agents for their own sake should consider the OH&S responsibilities to their staff, prospective tenants and buyers, as well of course, the current tenant household.

    It is Tenants Victoria’s view that there is a mutual duty of care to both the tenant’s household, as well as that of the visitors, and the failure to comply with DHHS recommendations may give rise to potential claims.

    open house inspections

    From midnight on Tuesday 12 May 2020, estate agents must limit the number of people who can attend auctions and open house inspections.

    restricted activity directions (No 7)

    From midnight on Tuesday 12 May 2020, new directions include restrictions on the number of people who can attend an open house inspection for both sales and rentals. These directions will be in place until 11.59pm on 31 May 2020.

    See: Restricted Activity Directions (No 7) (Monday 11 May 2020) [DHHS website]

    current laws: no rights for open inspections or auctions

    Under the current laws, landlords do not have a right to run open inspections or auctions without the tenant’s consent.

    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 for 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 current laws, see: privacy and entry and for sale, selling, sold!

    refusing entry for a “COVID-19 reason”

    Further, 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.

    Apply to VCAT: Application by a tenant or landlord

    can I be asked to leave my home for an inspection?

    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 an open for inspection or auction?

    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: unreasonable or unlawful entry (for sale, selling, sold!).

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

    If you want to allow entry to your home for an open for inspection or auction, you may want to make an agreement with the landlord or agent about this. See: make a deal with the landlord (for sale, selling, sold!).

    how many people can enter my home for an inspection?

    If you and the landlord or their agent come to an agreement about open for inspections or auctions held at your home, any entry to your home will still need to comply with the Restricted Activity Directions No. 7.

    These Directions limit the number of people who may enter your home. No more than 10 people can enter, with the landlord or agent, for auctions or inspections at any one time.

    But the number of people allowed may be less than 10 depending on the size of your home.

    This is because the Directions limits the number of people that may be present in a “single undivided indoor space” such as an area, room or premises. They call this limit the density quotient.

    To work out the density quotient, you first work out the total area of the space (length in metres x width in metres) then divide by 4.

    Here’s the example provided in the Directions:

    • If the space is 8.5 meters long and 4.5 meters wide the total area is 38.25 square metres. You then divide 38.25 by 4 to get a density quotient of 9.56. This means no more than 9 people can be in the space at any one time.

    And here’s a simpler example:

    • If the space is smaller, for example: 3 metres x 3 metres, it is 9 square metres in total. Then 9 divided by 4 equals a density quotient of 2.25. This means no more than 2 people can be in the space at any one time.

    social distancing still applies

    Anyone who enters your home must also practise social distancing to slow the spread of coronavirus. See: Social distancing for coronavirus (COVID-19).

    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: May 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.