Every tenant, whether they live in public housing, social housing or rent privately, has a number of rights and responsibilities that are enshrined in law. It is up to the tenant to be aware of these issues and make sure they are doing the right thing.
A legal tenancy is framed by a lease which is a contract between the landlord (usually represented by a real estate agent) and the tenant. A lease lays out the terms and conditions that both parties agree to abide by for the length of agreement. The usual length of a lease is 12 months with the option at the end to renew however there are also shorter and longer terms sometimes available by negotiation. If you stay on in the house at the end of the lease and don’t sign a new one, you automatically move to a month to month lease. This gives both sides more flexibility should one of them want to vacate the agreement.
Ending a lease
Your tenancy ends when you have moved everything out and handed back the keys. If you move out before the end of your agreement, you may still have to pay the remaining rent. You have to leave the property in a reasonable condition and this will depend on the amount of time you have lived there. Any alterations to the property have to be reversed to its original condition, including picture hooks and hangers. It’s a good idea to take dated photographs after you’ve moved out so that you evidence in case the landlord lodges a claim against your bond.
Breaking a lease
There a few ways that you can break your lease including:
- Mutual agreement – be sure that you get the agreement in writing and that it states any costs the landlord expects you to pay; co-sign it and keep a copy
- The landlord is in breach – before you can break the lease, you must send your landlord a Breach of Duty Notice; if they don’t respond within 14 days, then you can apply for a Compliance Order through VCAT; if the landlord doesn’t comply with the order, you can send them a 14-day notice to vacate
- Assignment – this is when you find someone to take over the remainder of your lease; you will have to negotiate with the landlord or agent and be prepared to pay a fee for the administration of the paperwork
- Hardship – if something happens unexpectedly, you can apply to VCAT to reduce the amount of time left on your lease; you will need to provide evidence of the hardship and make sure that you contain to pay your rent in full while your application is considered
- Family and domestic violence – in the case that you need to leave the home as either the victim or perpetrator of family violence, you can apply to VCAT to reduce the amount of time left on your lease due to hardship. You may need a final family violence intervention order
- Giving up possession – to end your fixed term lease early, you can give your landlord a Notice of Intention to Vacate and hand back the keys when you move out
You should know that breaking your lease through hardship grounds or by giving up possession can be expensive. You may be required to pay a reletting fee, reasonable advertising costs and rent until new tenants move in or term of the lease expires. It’s important to weigh up the costs involved before you take action.
Rent is usually required on a monthly basis and you need to stay a month ahead at all times. Note that rent is charged by calendar month. It is best to pay by bank transfer not cash so that you will have a record on the payments you’ve made. If you do pay in cash, make sure you get a receipt. Landlords are entitled to raise the rent but only on certain conditions. These are that the rent can’t be raised during the period of a fixed term lease, only at the end of it (unless the says otherwise); the rent can’t be raised more than once in a six month period; and the tenant must be given at least 60 days’ notice of any increase. If you think the increase is excessive, you can contact Consumer Affairs Victoria to request that an inspector come and assess your property. You have to do this within 30 days of receiving the rent increase notice. You can also negotiate with your landlord before you take any action.
The bond makes sure that you start your tenancy a month ahead in rent and also covers any damages to the property that need to be fixed when you vacate. Normally, the amount will be equivalent to two month’s rent. Your bond must be deposited by the landlord or agent to the Residential Tenancies Bond Authority. If you need help paying for your bond, you can apply to the Director of Housing for a loan that is paid on your behalf. Outcomes when you vacate the property include:
- your landlord makes no claim against your bond
- you agree with your landlord about an amount to be paid to them out of your bond
- you can’t reach an agreement with your landlord and they apply to the Victorian Civil and Administrative Tribunal for an order that they be paid some or all of your bond
- you apply to the Tribunal for the return of your bond
At the beginning of your lease, you will be asked to fill out a condition report. This is important as it notes all issues with a property before you take possession. Landlords have a duty under the Residential Tenancies Act 1997 to make sure that the properties they rent out are kept in good repair. It is your right to request that issues be fixed promptly. Non urgent repairs must be carried out with 14 days of your request whereas urgent requests need to be attended to immediately (within two to three days). Note that if the damage was caused by the tenant or their associates, the landlord is within their rights to charge the repairs to tenant. If you feel that the repairs have not been completed in a satisfactory manner, you can write to Consumer Affairs Victoria to request an inspection and apply to the Victorian Civil and Administrative Tribunal for a hearing between yourself and the landlord. The Tribunal’s decision will be binding. You should never withhold rent payments or pay for repairs yourself.
Sending your landlord a breach notice
If you feel that your landlord has Residential Tenancies Act, you can send them a Breach of Duty Notice. This notice tells the landlord that they are required to fix the problem or pay you compensation for any loss you have suffered because of their breach of duty (or both). Breaches include failure to:
- Provide vacant and clean premises
- Allow you ‘quiet enjoyment’ of the premises
- Maintain the premises in good repair
- Make sure that replacement water appliances or fittings have at least an a rating
- Provide locks on all external doors and windows
- Provide keys if locks are changed
When you receive a breach notice
If your landlord believes that you haven’t met one or more of your duties under the Residential Tenancies Act, they can give you a Breach of Duty Notice. A tenant must:
- Not cause a nuisance or interfere with the peace, comfort or privacy of a neighbouring tenant
- Keep the property in a reasonably clean condition
- Not damage the property or common areas
- Not add fixtures (such as picture hooks) or make alterations to the property without the landlord’s consent
- Restore the property to its original condition before moving out if additions or alterations have been made
- Provide the landlord with a key when changing or adding a lock to an external door or window
- Allow the landlord entry to the property when they have given proper written notice
If you receive a Breach of Duty Notice, you must stop breaching the duty listed and/or pay compensation within14 days of receiving the notice. If you don’t, the landlord may apply to the Victorian Civil and Administrative Tribunal [VCAT] for an order that you do so. You must attend to argue your case if you feel that the Breach of Duty Notice is wrong.
You have a right to the ‘quiet enjoyment’ of your rental property and landlords and agents can only enter in certain circumstances including:
- There is a Notice to Vacate or a Notice of Intention to Vacate with less than 14 days remaining and prospective tenants are being shown through
- A prospective buyer or lender needs to be shown through because the property is being sold or it is being valued
- It’s time for a routine inspection
- If they have serious beliefs that you have breached your tenants’ duties
There are certain things that the landlord or agent must do before or when entering the property:
- Give you at least 24 hours written notice with the reason for entry
- Deliver the notice to you in person (between 8am and 6pm) or post it to you
- Schedule the entry between 8am and 6pm, but not on a public holiday unless you’ve agreed to it
- Not stay in the property for longer than needed
If you’ve agreed, the landlord or agent can enter with a contractor for maintenance purposes. You have a right to be in the home during these times. You can always try to negotiate if something doesn’t suit you but you do have a duty to allow entry if it is has met the above conditions and is reasonable.
Changing the locks
In negotiation with the landlord, you can pay to have the locks changed but you have to give the landlord or agent a copy of the key as soon as possible. If you have a family violence safety notice or intervention order in your favour and you’ll be staying on at the property, you have a right to change the locks for your safety, at your expense. You still need to give the landlord or agent a copy of the key as soon as possible as well as a copy of the notice or order. They are not allowed to give a copy of the key to the perpetrator as long as the notice or order is valid.
Some landlords do accept pets at their property and may charge an additional fee to cover any damage left when you vacate. It’s best to talk to the agent or landlord and negotiate before you sign the lease and move your pet in.
When you move out, it is best to take all your belongings in one go or as soon as possible before the end of your paid tenancy. The landlord or agent aren’t entitled to just throw your valuable goods out but you need to contact them to retrieve whatever was left. Personal documents, such as official documents, photographs, letters, have to be held for at least 90 days after which they can be destroyed. The landlord or agent have to make a reasonable attempt to contact you before this happens. If you do retrieve your documents, you may have to pay for the removal and storage of the items.
Your landlord or agent can throw out goods that aren’t worth money, perishable foods and anything dangerous. They can also get rid of goods that are worth money but not enough to cover the cost of removing, storing and selling them. Any salvaged goods have to be stored safely for at least 28 days and you have to be notified within 7 days of the storage where they are and how to get them back, including any fees payable. If you pay the fees in full, the landlord or agent has to give your belongings back to you. If they throw any of your goods out without doing the above, you can apply to VCAT for compensation.
If you are on a month to month tenancy, you must give at least 28 days’ notice of intention to vacate to the landlord if you intend to move out of your rented premises. For expiring fixed term lease, you can give 14 or 28 days’ notice in writing. You will still need to pay rent for the time you live in the property prior to vacating. To calculate the amount, work out your daily rent (your monthly rent times 12, divided by 365) then multiply that amount by the number of days you will be in the property.
The landlord is selling
Your landlord can decide to sell their property during your tenancy. You should comply with reasonable requests during this time. Landlords should give you seven days’ notice if they want show people through the property. You should negotiate with the landlord if they want to enter the property to take promotional photos. Make sure you put away any personal or distinguishable possessions prior. Just because the owner is selling doesn’t mean that you have to move out; your tenancy agreement still remains and has to be terminated in the proper way.
Notice to vacate
If you receive a notice to vacate, it doesn’t automatically mean that you will have to move out. You always have the opportunity to contest the notice at VCAT. There are many different notices to vacate including these examples:
- Immediate notice to vacate – if the premises are destroyed, unfit to live in or if you (or a visitor) deliberately damage the property or endanger the safety of neighbours
- 14-day notice to vacate – your rent is 14 days overdue, you used the property for an illegal purpose, you fail to comply with a compliance order made by the VCAT, you breached a duty and have received two previous breach of duty notices for the same breach, you mislead the public housing landlord about your eligibility for public housing
- 60-day notice to vacate – the premises will be demolished, used for any purpose other than as a rented residence (such as a business), sold with vacant possession, repaired, renovated or reconstructed, and this cannot be done without the premises being vacant
- 120-day notice to vacate – can be served when there is a month to month tenancy or when the termination date on the notice is after the expiry date of your fixed term agreement
- End of fixed term lease – the landlord can give you a notice to vacate at the end of your fixed term
You cannot be evicted from your rental property unless the landlord successfully completed the following:
- Given you a valid Notice to Vacate
- Applied to VCAT for a Possession Order
- Purchased a Warrant of Possession from VCAT
- Give the Warrant of Possession to the police
The landlord or agent cannot evict you either physically or by changing the locks. They must follow the above steps in order. Once the police have the correct paperwork, they will visit the property to evict you. If this happens, you should apply to VCAT for a restraining order. You can also apply to VCAT for an urgent hearing if you have been illegally evicted. You should also lodge a complaint with the Director of Consumer Affairs Victoria and you can also apply for compensation.
Rent arrears only occur after your rent payment is overdue; you can’t be given a notice to vacant just because you haven’t paid your rent in advance. It’s best to sort out a budget so that you know how much to put aside each pay period so that you're not caught short. If you do find yourself behind, talk to your landlord or agent as soon as possible. If you can’t afford to make an upfront payment of the arrears, suggest a payment plan. This shows them that you are committed to keeping the tenancy and doing the right thing.
If you think your landlord or agent has acted illegally or unprofessionally, you can make a complaint to Consumer Affairs Victoria. There can be serious penalties for anyone caught doing the wrong thing. It’s best that report the complaint as soon as you can. Examples of offences by landlords and agents include:
- not providing the necessary documents at the start of your tenancy including a Statement of Rights and Duties booklet, a signed copy of your lease, two copies of a signed Condition Report, any important details and numbers from the landlord or agent to contact them as well as an after-hours emergency number
- trying to evict you illegally
- not giving you a receipt for your rent payments
- not lodging your bond payment with the Residential Tenancies Bond Authority within 10 business days
- charge for things that landlords or agents are not entitled to charge for like property inspections
- entering the property without adequate notice or a good reason to do so such as urgent repairs
- not obeying an order from VCAT
To make a complaint, contact the Consumer Affairs Victoria’s Estate Agent Resolution Service on 1300 737 030. You can also send them a letter (GPO Box 123 Melbourne VIC 3001) or lodge your complain via their website (www.consumer.vic.gov.au). If you feel like you need further support, you can contact the Tenants Union of Victoria for advice.
You can also make complaint to the following places:
- Real Estate Institute of Victoria (REIV) on 9205 6666 – if the agent is a REIV member
- Victorian Equal Opportunity & Human Rights Commission of Victoria on
1300 292 153 – for harassment or discrimination
- Federal Privacy Commissioner on 1300 363 992 – for misuse of confidential information
- Victoria Police – for criminal acts or behaviour
The Victorian Civil and Administrative Tribunal [VCAT] is where or your landlord can go to have your dispute heard. It doesn’t cost much to apply and you can represent yourself if you want because it’s an informal setting. If you can’t afford the application fee, you can ask to have it waived. It’s your responsibility to send your landlord a copy of the application; make sure you keep a copy for yourself.
VCAT will let you know when your hearing date is. Make sure you're prepared well in advance but making copies of any evidence and asking any witnesses you need to be present. It’s a good idea to write down what you want to say so that you don’t forget to present something important to your case, even dot points will do. Get to VCAT early to sign in and be prepared to wait if other cases run over time. At the end of the hearing, a decision will be made and VCAT will send you a written copy.