Rights of entry

Victoria has now moved to COVIDSafe Summer restrictions imposed by the Victorian Government during the COVID-19 pandemic.

These allow real estate agents to arrange inspections and auctions, provided the number of people attending does not exceed a density ratio of one person per two square meters if using electronic recording keeping, and one per four square metres if using manual record keeping.

The inspections must be by appointment and must be conducted by a real estate agent, and not a landlord. They cannot be “open house” inspections where anyone can turn up on the day.

In addition, and unless you agree otherwise, the estate agent is still required to provide you with at least 24 hours’ notice in writing, stating a valid reason why they want to visit, before the date of the proposed entry.  This is required by the Residential Tenancies Act 1997.

Real estate agents must also comply with the industry guidelines and have a COVIDSafe plan in place for things like cleaning surfaces touched during entry, record keeping, signs about maximum capacity, and face coverings.

The tenant may refuse entry if they become aware that the real estate agent will not comply with any of these requirements, or for any other COVID-19 related reason.

For more information, see: Privacy and entry and For sale, selling, sold!

No. Under the current law – Residential Tenancies Act 1997 (Vic) – an agent, or landlord, has no right to ask you to leave just because they want to enter your home.

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

From 29 March, 2020, you will not be in breach of your usual duties under your agreement or the Residential Tenancies Act 1997 if you refuse to allow entry to your home for one of these reasons:

• if you are ill (whether or not due to COVID-19)
• you are complying with laws, directions and recommendations relating to COVID-19, and its control
• 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

Even though the situation in Victoria is improving, we still need to be safe and the Directions continue to require us to limit the number of people we invite into our homes.

This is even more important for people with “COVID-19 reasons” and exceptionally vulnerable people, for example, someone who has a compromised immune system.

We suggest, particularly for vulnerable and high-risk people, that only people undertaking necessary or urgent repairs should be allowed to enter your home. You can write to the landlord or agent to request this.

If you need help to write to the landlord or agent, try one of our example letters. These letters are for Directions issued 17 January 2021:

If you have conditions that make you exceptionally vulnerable to COVID-19, you can apply to VCAT, the Victorian Civil and Administrative Tribunal, 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 either for a period of time or, in some circumstances, indefinitely. VCAT can attach other conditions.

Given the risk some people face when exposed unnecessarily to third-party contact in the home, this is the best opportunity to raise these concerns and ask for orders restricting entry to the home.

Obtaining a VCAT order under these provisions is rare. However, given that the government hasn’t put in place other protections, applying for such an order 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 we have never experienced a pandemic before.

The Charter of Human Rights and Responsibilities Act 2006 is likely to be useful in such applications.

How to apply

All disputes must go to Consumer Affairs Victoria (CAV) before they can go to VCAT. CAV 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 CAV first (link below):

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

We recommend you have your VCAT application ready so you can lodge it with VCAT as soon as CAV gives you a reference number.

While face masks are no longer mandatory for all indoor settings, it is still strongly recommended that anyone entering your home wears a mask, and that you wear a mask when someone else is in your home. This includes landlords, real estate agents, tradespeople, cleaners and members of the public attending private inspections.

Note: ‘Face covering’ means a fitted face mask that covers the nose and mouth. From 11:59pm on 11 October a face shield on its own does not meet the requirement to wear a face mask.

Physical distancing

Anyone who enters your home must also practice physical distancing and good hygiene.

Businesses

Businesses – such as real estate agents – have additional requirements when they enter your home such as:

• ensuring sanitiser is used before entering
• cleaning and disinfecting any surfaces touched
• ensuring physical distancing
• limiting the number of people (i.e. following the density quotient, or ‘two square metre’ rule or ‘four square metre’ rule)
• displaying signage showing the maximum capacity, COVIDSafe hygiene and physical distancing requirements and the requirement that face masks are mandatory indoors
• keeping records

Requirements for tenants

The Residential Tenancies Act 1997 (Vic) only requires the tenant to keep the premises reasonably clean. There is no specific duty to ensure the premises are “sterilised”. So, if you get a Notice for breach of duty that requires a standard of cleaning beyond reasonably clean, it may be treated as invalid. See When you get a breach of duty notice.

Cleaning when moving out

For similar reasons, when ending the tenancy you should not be compelled to use any specialised services. Such requirements, clauses or other costs would be harsh and inconsistent with the current law (see section 27, 28).

Can a cleaner come into my home during CovidSafe Summer restrictions?

Yes. And it is still strongly recommended that anyone coming into your home wear a mask, including cleaners. Cleaners also need to have a COVIDSafe Plan.

Can tradespeople enter my home during COVIDSafe Summer restrictions?

Yes.

Safety when people enter your home

It is important you take all practical steps to ensure you and all tradespeople keep safe. It is also still strongly recommended that anyone entering your home wears a mask.

Things recommended for tradespeople:

• 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

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.