Posted on 29 Apr 2020
On 25 April 2020, renting laws were changed through the COVID-19 Omnibus (Emergency Measures) Act 2020.
Further changes to renting laws were made through the Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020, which introduced a Residential Tenancies Dispute Resolution (RTDR) Scheme.
The scheme helps resolve payment-related disputes through mediation and binding orders made by dispute resolution officers. Find out more about the RTDR Scheme from Consumer Affairs Victoria.
The amendments have introduced significant changes to the way disputes are dealt with between tenants and landlords, and other accommodation providers and residents (to be referred to as landlords and tenants inclusively on this page).
The changes recognise the impacts of the coronavirus (COVID-19) pandemic. Most changes took effect from 29 March 2020 and last for six months. Learn more about the key changes below.
Applying to VCAT
- From 13 May 2020, tenants and landlords who have a rental dispute must apply to Consumer Affairs Victoria before their dispute can be considered at a VCAT hearing.
- CAV will determine whether you can have your dispute decided by VCAT or if the dispute should be resolved through the RTDR Scheme.
- If told you can have your dispute decided at VCAT, Consumer Affairs Victoria will give you a referral number. It is helpful, but not essential, to have this referral number before you apply to VCAT, to include with your application. You will need to make sure you have the referral number by the date of the hearing.
If you want to make an application to VCAT now, you should be aware that many section numbers in the Residential Tenancies Act 1997 have changed or have been suspended. New sections have also been created. To understand the VCAT applications you can now make, see What section numbers mean in the Residential Tenancies Act.
Temporary changes to the law
Rent increases and rent reductions
- Landlords cannot increase the rent at any time during the six-month period from 29 March 2020.
- Tenants can apply to Consumer Affairs Victoria for a rent reduction and/or a payment plan. The matter will then be referred to the RTDR Scheme, if appropriate.
Fixed term agreements
- Landlords or tenants can apply to VCAT for a reduction in the term of a fixed-term agreement if suffering severe hardship. Tenants are not liable for lease break costs if an order is made to reduce a fixed-term agreeement.
- Fixed term agreements can also be ended in other ways by both landlords and tenants (see the next two sections).
Ending a tenancy as a tenant
- A tenant can give a landlord a 28-day notice of intention to vacate, provided the date on the notice is on or after the end of any fixed-term agreement.
- A tenant can give a landlord a 14-day notice of intention to vacate irrespective of a fixed-term agreement. This option is only available in some circumstances, eg. if a tenant is suffering severe hardship or if the landlord has applied to VCAT for a termination order. Tenants are not liable for lease break costs if they have given such a notice.
- A tenant or a person who is living in the rental property but is not named on the tenancy agreement, and who has experienced personal or family violence from a tenant named on the agreement, can apply to VCAT for an order ending the current tenancy and/or for a new tenancy agreement to be created.
Ending a tenancy as a landlord
- It is no longer possible for a landlord to give a tenant notice to vacate a rented premises.
- Applications for possession based on a notice to vacate, if made after 29 March 2020, will be rejected.
- A landlord can apply for a possession order if the tenant gave a notice of intention to vacate but has not left the premises.
- If a landlord wants to end a tenancy, the landlord can apply to VCAT for an order requiring the tenant to leave (termination order). At the same time, the landlord can also ask VCAT to make an order for the tenant to be evicted if they don’t leave as ordered (possession order). These applications can be made irrespective of any fixed-term agreement. If a current fixed-term agreement exists, VCAT may take this into account when deciding whether it is reasonable and proportionate to make a particular order. VCAT will consider whether to make a termination order only or a termination and possession order.
- The new temporary laws limit the grounds on which the landlord can seek a termination order (or a termination and possession order). Even if a ground is established, VCAT must consider whether it is reasonable and proportionate to make an order. VCAT cannot make a termination order if the ground for the termination order relates to a tenant’s failure to meet their obligation (eg. to pay rent) and the tenant is not able to meet that obligation because of a COVID-19 reason.
- If a landlord has obtained a termination order only and the tenant does not leave the rented premises on the date in the order, the landlord can make a further application to VCAT for a possession order. VCAT must consider whether it is reasonable and proportionate to make a possession order.
- If a landlord has a possession order that was based on a notice to vacate but wants to purchase or extend a warrant of possession after 29 March 2020, the landlord will not be entitled to the warrant unless the possession order they already have is one that could have been obtained under the new temporary laws. VCAT conducts a hearing to determine whether the landlord is entitled to the warrant.
- A tenant cannot be listed on a residential tenancy database (blacklist) for a failure to pay rent if the tenant failed due to a COVID-19 reason.
- Information about a person who experiences personal or family violence cannot be listed on a residential tenancy database if VCAT makes orders ending a tenancy or creating a new tenancy because of violence.
What is the difference between a termination order and a possession order?
If a landlord wants to end a tenancy, they can apply to VCAT under section 548 of the Residential Tenancies Act 1997 for a termination order. A termination order ends the tenancy on the date stated in the order. The tenant is expected to leave by this date, but there is no mechanism within the termination order to enforce the terms of the order.
The landlord may, on the same application, apply for a possession order, which requires the tenant to vacate by a specified date. If the tenant does not leave, the possession order allows the landlord to apply to the VCAT registrar for a warrant of possession to be issued. The warrant of possession authorises the police to forcibly remove the tenant within a given timeframe (usually 14 days).
If the landlord obtains a termination order only and the tenant does not leave by the date stated in the order, the landlord can apply for a possession order under section 550 of the Act. The landlord cannot make an application under section 550 without first obtaining a termination order.
What are the grounds for making an application to VCAT to terminate a tenancy?
VCAT can only make a termination or termination and possession order if satisfied of one of the following grounds:
- The tenant or tenant’s visitor intentionally or recklessly caused serious damage to the premises.
- The tenant or tenant’s visitor by act or omission endangers the safety of a neighbour, the landlord, an agent, employee or contractor of the landlord.
- The tenant or other occupant has seriously threatened or intimidated the landlord, or an agent, contractor or employee of the landlord.
- The tenant failed to comply with a VCAT order under section 212 of the Act.
- The tenant was given a notice to leave the managed premises under section 368 of the Act.
- The tenant used the rented premises for an illegal purpose.
- The tenant trafficked, cultivated or supplied drugs, and the landlord is the Director of Housing (DOH).
- The tenant committed an indictable offence, and the landlord is the DOH.
- The tenant failed to comply with their obligations (eg. by not paying rent) when the tenant could comply without severe hardship (and provided the failure was not due to a COVID-19 reason).
- The landlord has engaged an agent to sell, or prepared or entered into a contract of sale for rented premises.
- The landlord is the DOH who intends to repair, renovate or demolish the rental property. The DOH has permits if needed and the work cannot be done unless the tenancy terminates.
- The premises are unfit for human habitation, or destroyed totally or to such an extent as to be unsafe.
- The landlord is a public statutory authority, and the tenant knowingly misled the landlord about their eligibility for housing.
- The tenant assigned or sublet without consent.
- The landlord, their family member or a relevant dependant is moving in.
- The landlord is a public statutory authority and the premises are required for a public purpose.
- The landlord is a public statutory authority and the tenant no longer meets eligibility criteria.
- VCAT made an order for a pet to be excluded and the tenant has not complied.
- The landlord is the DOH who is providing transitional housing and the tenant unreasonably refuses to seek alternative accommodation or an offer of alternative accommodation.
What is a COVID-19 reason for being unable to comply with an obligation?
A person is unable to comply with, or it is not reasonably practical for a person to comply with, an obligation for a COVID-19 reason if the reason for the inability or the reason why it is not practical to comply is because:
- the person is ill (whether or not the illness is COVID-19)
- emergency or public health powers were exercised by the Chief Health Officer, under the Emergency Management Act 1986 or there was a publicly made State or Chief Health Officer recommendation about the COVID-19 pandemic
- compliance would cause severe hardship
- there was an exceptional circumstance relating to the COVID-19 pandemic.
See section 537 of the Residential Tenancies Act 1997.
What does VCAT consider when deciding whether a termination or possession order is reasonable and proportionate?
VCAT must consider:
- the nature, frequency and duration of the conduct of the tenant, including whether the conduct is a recurring breach of obligations under a tenancy agreement
- whether the breach is trivial
- whether the breach was caused by the conduct of any person other than the tenant
- whether the tenant has made an application for a personal or family violence safety notice or intervention order and
- if an application has been made – whether the notice or order is still in force
- if a notice or order was made – whether it included an exclusion condition
- any other matter about personal or family violence that VCAT considers relevant
- whether the breach has been remedied as far as is practicable
- whether the tenant has (or will soon have) capacity to remedy the breach and comply with any obligations under the tenancy agreement
- the effect of the tenant's conduct on others as a tenant
- whether any other order or course of action is reasonably available instead of making the order sought
- the behaviour of the landlord or the landlord's agent
- any other matter VCAT considers relevant.
See section 538 of the Residential Tenancies Act 1997.
VCAT must also take into account the interests of the landlord, tenant, any co-tenants or residents, neighbours or any other person who has, or may be affected by the tenant's actions, and the impact of any order on these people.
If VCAT makes a termination order, what is the earliest date the tenancy can be terminated?
When making a termination order, the earliest termination date that can be specified in the VCAT order is:
- the day the order is made if the ground for the termination order is that:
- the tenant of their visitor has caused serious damage
- the tenant or their visitor endangers the safety of the landlord, agent, employee, contractor or neighbour
- the tenant has been given a notice to leave managed premises
- the rented premises are unfit for human habitation or destroyed
- 14 days from the date of the order if the ground for the termination order is that:
- the tenant has made serious threats or intimidated the landlord, agent, employee or contractor
- the tenant has failed to comply with a VCAT order under section 212 of the Act
- the tenant has used the premises for illegal purposes
- the tenant has engaged in trafficking, cultivating or supplying drugs (DOH)
- the tenant has committed an indictable offence (DOH)
- the tenant has made a false statement as to eligibility for public or social housing
- the tenant has assigned or sublet without consent
- 28 days from the date of the order if the ground for the termination order is that:
- the tenant has failed to comply with their obligations (eg. by not paying rent), in circumstances where they could do so without suffering severe hardship
- the tenant has not complied with a VCAT order excluding a pet from the rented premises
- 30 days from the date of the order if the ground for the termination order is that:
- the tenant in transitional housing has refused alternative accommodation (DOH)
- 60 days from the date of the order if the ground for the termination order is that:
- the landlord is selling
- the landlord is renovating or demolishing (DOH)
- the landlord, a family member or dependant is moving in
- the premises are required for public purposes
- 90 days from the date of the order if the ground for the termination order is that:
- the tenant has ceased to meet eligibility criteria for public housing.
See section 549(3A) of the Residential Tenancies Act 1997, andRegulation 42 of the Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020.
Contact Consumer Affairs Victoria for more information about the new laws.