New laws: amendments

A number of provisions in the Residential Tenancies Act have been amended to provide greater protections and flexibility to affected persons (s233A-s233D).

Affected persons may now apply to VCAT for orders:

  • terminating their existing lease if they want to leave the property, or
  • terminating their existing lease and having a new lease created in their name without the perpetrator if they want to stay at the property.

These applications can be made for both periodic and fixed-term tenancy agreements and VCAT must hear the applications within 3 business days (or if this is not possible, no later than VCAT’s next available sitting day).

In coming to a decision VCAT will consider if an intervention order, or similar, has been applied for or is in place. However, in cases of family violence the affected person does not need to have, or have applied for, an intervention order to make the application. If the violence is personal violence then an intervention order, or similar, is required.

VCAT can also make orders:

  • about liabilities, including orders that an affected person is not liable for the costs of the perpetrator, e.g. where the perpetrator may have caused damage to the property
  • that the landlord must allow an affected person to attend the property to collect their personal belongings, if the application is for the termination of a lease
  • prohibiting the landlord, or their agent, listing information about the affected person on a residential tenancy database.

The laws also prohibit landlords from making compensation claims for lease breaking where VCAT has made an order terminating a lease in these circumstances.

Given the amendments to these sections, applying to VCAT may be the quickest and most effective option for tenants experiencing violence to deal with their leases and will allow VCAT to address any issues with remaining occupants or tenants.

See Staying in the rental property and Leaving the rental property.

Temporary COVID-19 measures

In addition a number of temporary measures were also introduced into the Residential Tenancies Act in response to the COVID-19 pandemic, which may allow tenants who are affected by family violence or personal violence to end leases early or defend an application by a landlord to terminate a lease. These measures are also set out under the individual sections in this Kit (where relevant).

The measures are only in operation for a temporary period of six months from 29 March 2020 (unless extended by further amendment of the Residential Tenancies Act) (section 615).

The information below relates to tenancy agreements, but note that similar provisions apply for rooming houses, caravan parks and site agreements.

Reduction in fixed-term lease (section 543)

A tenant who has a fixed-term lease in their name, but not the perpetrators name, and who is suffering severe hardship may apply to VCAT for an order reducing the term of their lease. To obtain an order, VCAT must be satisfied that the severe hardship the tenant will suffer if the term of the lease is not reduced would be greater than the severe hardship which the landlord would suffer if the term is not reduced.

Severe hardship

The Residential Tenancies Act does not define “severe hardship” however, for the purposes of section 543, it does provide that VCAT may be satisfied that the tenant would suffer severe hardship if:

  • the tenant is excluded from the rented premises under a family violence intervention order, recognised non-local DVO or personal safety intervention order; or
  • the tenant is a protected person under a family violence intervention order, recognised non-local DVO or personal safety intervention order; and is seeking to reduce the term of the lease to protect their own safety or the safety of their children.

It is uncertain if a VCAT Member would accept evidence of family violence without an intervention order in satisfying themselves that the tenant is experiencing severe hardship.

Notice of intention to vacate by tenant (section 545)

The usual rights for a tenant to give a landlord notice of their intention to vacate rented premises were temporarily restricted by the temporary COVID-19 measures. This issue has now been resolved by the introduction of the Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020. Despite the wording of section 545, the Regulations reinstate the usual rights tenants have to give a notice of intention to vacate, such as being able to give 28 days-notice to end their tenancy when their fixed term lease is ending, or has ended (note: notices of intention to vacate must be given in writing and specify the vacate date).

Also re-instated are “reduced” notices of intention to vacate which allow tenants to give 14 days-notice to end their leases in certain circumstances, being if the tenant:

  • requires temporary crisis accommodation and needs to vacate the rented premises in order to obtain that accommodation; or
  • requires special or personal care and needs to vacate the rented premises in order to obtain that care; or
  • has received and accepted an offer of housing from the Director of Housing or a registered housing agency; or
  • the tenant, who is an SDA resident, has been given a notice under section 498DA that NDIS registration has been revoked.

The temporary COVID-19 measures also add:

  • if a tenant is suffering severe hardship, and
  • where a landlord has made an application to VCAT (via Consumer Affairs Victoria) to terminate the tenancy.*

Note: there is no definition of “severe hardship” and whether this would include a tenant experiencing severe hardship as a result of family or personal violence, or severe financial hardship. If a tenant was unsure if their situation would allow them to give a 14-day notice of intention to vacate they could instead apply to VCAT under section 543 to ask that their lease be reduced.

*Even though a tenant has a right to leave early if a landlord applies for a termination order, it is important to note that they are not required to move out. The application/dispute will first need to be registered with Consumer Affairs Victoria, who must consider whether further assessment is required or if the application can be heard by VCAT. If the application is assessed as suitable for VCAT to hear, VCAT must consider if it is reasonable and proportionate before they can make an order to terminate the tenancy. See Defending an application by a landlord to terminate the lease.

Tenant not liable for compensation/lease break fees (section 546)

A tenant will not be liable to compensate a landlord for loss suffered by the landlord as a result of the early termination of a lease, or to pay any lease break fees, if the tenant was eligible to give the landlord a notice of intention to vacate as described above (or under the usual section 237) and vacated the premises after the termination date in their notice.

A tenant will also not be liable for compensation if:

  • the tenant gave a notice of intention to vacate to the landlord under the usual notice provisions of the Residential Tenancies Act (even if the tenant did not fit the criteria under section 545 described above); and
  • the tenant:
    - is excluded from the rented premises under a family violence intervention order, recognised non-local DVO or personal safety intervention order; or
    - is a protected person under a family violence intervention order, recognised non-local DVO or personal safety intervention order and is seeking to reduce the term of the lease to protect their own safety or the safety of their children; or
    - is suffering severe hardship; and
  • the tenant vacated the rented premises on or after the termination date specified in the notice.

Defending against an application by landlord to terminate the lease (sections 538, 548 and 550)

During the operation of the temporary COVID-19 measures, landlords and mortgagees are prevented from issuing notices to vacate to tenants and must instead apply to VCAT if they want to terminate a lease or obtain a possession order.

The right of a landlord to apply for a termination order will be subject to the Dispute Resolution Scheme. This Scheme requires all applications/disputes to be registered with Consumer Affairs Victoria, who must consider whether further assessment is required or if the application can be heard by VCAT.

If Consumer Affairs Victoria considers further assessment is required, this may include referring the dispute, if suitable, to alternative dispute resolution for mediation or conciliation, before the application could be made to VCAT.

If a landlord or mortgagee applies to VCAT (subject to the Scheme) for an order to terminate a lease (under section 548 of the Residential Tenancies Act) or a possession order (under section 550 of the Residential Tenancies Act), VCAT must be satisfied that it is “reasonable and proportionate” to make the order in all of the circumstances, taking into account the interests of, and the impact on, the landlord or mortgagee, the tenant, any co-tenants or other residents and any neighbours or other people who may be, or have been, affected by the acts of the tenant.

VCAT can only terminate a lease in particular circumstances, which include where a tenant:

  • causes serious damage to the rented premises or common areas;
  • endangers the safety of neighbours or the landlord or its agent or contractor;
  • makes serious threats or intimidation against the landlord or its agent or contractor;
  • uses the rented premises for an illegal purpose; and
  • fails to comply with the tenant’s obligations under the lease or the Residential Tenancies Act, including by not paying rent, if the tenant could have complied with the obligations without suffering hardship.

For the purposes of determining whether it is reasonable and proportionate for VCAT to make an order, VCAT must have regard to a number of matters, including (relevantly):

  • whether the breach was caused by the conduct of any person other than the tenant; and
  • whether the tenant has made an application for a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order and:
    - if an application has been made, whether a notice or order has been made and whether the notice or order is still in force; and
    - if a notice or order was made, whether it included an exclusion condition; and
    - any other matter in relation to family violence or personal violence VCAT considers relevant.

These provisions mean that if the landlord makes an application to terminate the lease, if the relevant breach or act was caused or carried out by the perpetrator, the affected person may be able to defend the landlord’s application and obtain an order that the lease should not be terminated, on the basis that it would not be reasonable and proportionate for VCAT to make an order terminating the lease.

For a full list of what VCAT may need to be a satisfied of to make a termination order and what will need to be considered in determining if it is “reasonable and proportionate” to make the order, and further details on the Dispute Resolution Scheme see: coronavirus (COVID-19) guide for renters: eviction [Tenants Victoria website].

No breach of lease or duties if COVID-19 reason (section 542)

During the operation of the temporary COVID-19 measures, if an affected person breaches a term of their lease because of the impact of family violence, they may be deemed not to be in breach of the terms of the lease.

Under section 542 of the Residential Tenancies Act, it will not be a breach of a term of a lease or a relevant duty provision under the Residential Tenancies Act, if the tenant was not able to comply with, or it was not reasonably practicable for the tenant to comply with that term or duty provision because of a COVID-19 reason. This includes where the tenant is unable to comply with, or it is not reasonably practicable to comply with, the term of the lease or duty provision without suffering severe hardship.

If the impacts of family violence mean that an affected person cannot comply with a term of their lease or duty provision without suffering severe hardship, the operation of section 542 may mean that the affected person’s breach of the lease will not be taken to be a breach of the lease or the Act and that their landlord might not be able to take action to enforce compliance with the lease or the Act, or to seek to terminate the lease due to the breach.

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