Sometimes the best or only option for an affected person is to stay in their current rental housing, even if the perpetrator knows their address. This is often the case in regional areas and in public and community housing.
Paying the rent and bills
If the affected person has been sharing the payments for rent and bills with the perpetrator it could be too expensive for them to cover the whole lot on their own. There might be someone else who can move in to share the expenses. Or there might be some family or friends who can help them with a loan. They can also call up the gas, electricity, water, telephone and internet providers to work out a payment plan due to financial hardship.
Changing the lease when you want to stay
If the affected person’s name is on the lease and perpetrator’s name is not on the lease, then the lease does not need to be changed.
If perpetrator’s name is on the lease, the affected person has two options:
a. They can apply to VCAT to end the current lease (fixed-term or periodic) and start a new lease with their name on it. This could be an easier option because the perpetrator does not need to agree. VCAT must schedule a hearing within 3 business days, or if this is not possible, no later than the next available sitting day. See Applying to VCAT and an example application to start a new lease.
b. They can ask the perpetrator to transfer (assign) the lease into their name. Often this is a difficult option because it requires consent from the perpetrator and the landlord. But sometimes it can be as simple as changing the names on the current lease with the changes signed by the tenants and the landlord. To find out more see: Assignment and sub-letting [Tenants Victoria website].
Applying to VCAT for a new lease (section 233A)
An affected person can make an application to VCAT to terminate the existing lease and require the landlord to enter a new lease with the affected person, and any other person in the application they want to live with.
- The application can be made without the consent of the landlord or any other person who is on the lease.
- If the affected person is a child, the application can be made by the child’s parent or guardian who lives at the rented premises with the child.
- VCAT must hear the application within 3 business days, or if this is not possible, no later than VCAT’s next available sitting day.
To make the order VCAT must be satisfied that:
- the affected person can afford the rent and comply with the lease and their duties under the Residential Tenancies Act; and:
- the affected person or their children, would likely suffer severe hardship if a new lease _wasn’t _made; and
- this hardship would be more than any hardship the landlord would suffer if the order was made.
VCAT would also need to be satisfied that it is reasonable to make the order:
- if a perpetrator is excluded from the rented premises under a safety notice or intervention order, given the length of the exclusion and the length of the existing lease; and
- given the interests of any other tenants (except an excluded perpetrator) under the existing lease and, in particular, whether the other tenants support the affected person’s application.
New lease terms
If VCAT orders a new lease:
- the rent amount and frequency of rent payments will be the same as the existing lease
- if the existing lease is a fixed-term lease, the new lease will also be a fixed-term lease with the same end date as the existing lease
- it will be on the same terms and conditions as the existing lease, although VCAT also has a broad right to make changes to the lease
- the existing lease ends when the new lease is signed by the parties to the new lease.
Under section 62A of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 (Vic), an affected person can have someone providing them with support at a VCAT hearing. This may be a lawyer, social worker, friend or relative or any other person the affected person chooses.
VCAT also has a family violence support worker available to assist affected persons. The support worker can help with understanding the VCAT process, completing the application form, connecting with other services for ongoing support and in some circumstances, support during the VCAT hearing and provide remote witness facilities. To contact the support worker, call (03) 9628 9856.
What you need to make an application to VCAT
These are the things you need before you apply to VCAT for a new lease (tenancy agreement):
- in the case of family violence, it is not necessary to have an intervention order or safety notice in place before making the application, however, it may be preferable to have a intervention order with an exclusion condition that excludes the perpetrator from the rental property in place;
- in the case of personal violence, an intervention order is required, and it may be preferable that the order include an exclusion condition that excludes the perpetrator from the rental property;
- the perpetrator must be a tenant (their name must be on the current lease);
- the affected person must be either a tenant (with their name on the current lease) or living in the rented premises as their main or only home; and
- the affected person must be able to afford the rent and otherwise comply with the lease and the obligations under the Residential Tenancies Act.
Who owes what when the lease changes?
If the affected person applies for a new lease, and there is any unpaid rent, unpaid bills or damage to the rental property, they can ask VCAT to decide who has to pay for what. Usually, it is the joint responsibility of all tenants, but VCAT can decide whether the affected person, perpetrator or any other tenant is liable together, or separately. If the perpetrator is responsible for any unpaid rent, bills or damage, the affected person may be able to ask VCAT to order that the perpetrator is liable for these costs, and not the affected person.
Inspection for damages
If you ask VCAT to decide who pays, they may adjourn (postpone) the hearing for an inspection of the rental property. This usually happens so that the landlord can check for any damage.
If the perpetrator is excluded from the rental property by an intervention order, they must not attend the inspection. However, they can arrange for a representative to attend. They must give the name of the representative to the landlord or real estate agent.
VCAT can also make orders about who is entitled to the bond.
Compensation and lease-break costs
Listing on tenancy database
If the affected person applies to VCAT under section 233A of the Residential Tenancies Act for an order to terminate the lease and create a new lease, VCAT may also include an order that the landlord or the agent must not list information about the affected person on a residential tenancy database.
If the landlord applies to terminate the lease
Temporary COVID-19 measure
During the operation of the temporary COVID-19 measures, landlords are prevented from issuing a Notice to vacate to tenants and must instead apply to VCAT if they want to terminate a lease or obtain a possession order.
If an application to terminate a lease is made based on breaches or acts caused or carried out by a perpetrator of family violence, an affected person may be able to defend the application and obtain an order that the lease should not be terminated. For more information see: Defending against an application by landlord to terminate the lease.
Temporary COVID-19 Measures
What is reasonable and proportionate?: Section 538, Residential Tenancies Act 1997 [AustLII website]
Termination of lease by VCAT: Section 549, Residential Tenancies Act 1997 [AustLII website]
Possession order by VCAT: Section 550, Residential Tenancies Act 1997 [AustLII website]
Permanent Provisions of the Residential Tenancies Act
Assignment of lease
Assignment of lease by a tenant: Section 81 and 82, Residential Tenancies Act 1997 [AustLII website]
Landlord’s right to give notice to vacate if lease is assigned without consent: Section 253, Residential Tenancies Act 1997 [AustLII website]
New tenancy agreements
Applications: Section 233A, Residential Tenancies Act 1997 [AustLII website]
VCAT orders: Section 233B, Residential Tenancies Act 1997 [AustLII website]
Liabilities: Section 233C, Residential Tenancies Act 1997 [AustLII website]
Cross-examinations: Section 233D, Residential Tenancies Act 1997 [AustLII website]
This information is a guide only and should not be used as a substitute for professional legal advice.
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