Advice or support for community service workers assisting tenants.
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:
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.
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.
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.
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)  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!
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 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.
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.
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
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.
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!).
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!).
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:
And here’s a simpler example:
Anyone who enters your home must also practise social distancing to slow the spread of coronavirus. See: Social distancing for coronavirus (COVID-19).
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.
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).
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.
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:
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.