For the provisions of the RTA relating to residential tenancies to apply, a person must have “exclusive possession” of residential premises, and generally must pay rent. This is the common law definition of a tenant. Exclusive possession is a legal term relating to who has control of the premises, and usually means the right to exclude others (including the landlord) from the rented premises.
A written agreement is not necessary for a tenancy to exist. How each of the parties describe the relationship does not necessarily determine whether a person is a tenant. An objective assessment is necessary for that. In some circumstances, a tenancy may exist over part of premises, but for that to be so, it must be possible for them to have exclusive possession of that part of the premises.
The tenancy provisions of the RTA apply to a tenancy unless it can be shown that an exclusion outlined in the RTA applies. The onus of proving that the RTA does not apply rests with the person who is asserting that (s 507).
It is sometimes difficult to determine whether a person is a tenant and whether the RTA applies to their occupation of a premises. This can require consideration of a number of factors.
Contact the Tenants Union for further information (see “Advice and contacts”).
NOTE: TIPS FOR PROTECTING YOUR RIGHTS
These are some general tips that may help you to protect your rights.
•Wherever possible, use the prescribed forms to take action. You can download these forms from the “Renting” section of the Consumer Affairs Victoria website at www.consumer.vic.gov.au;
•Download and use the “Rent Right” app on your smart phone or tablet;
•To make an application to VCAT, visit www.vcat.vic.gov.au. Look under “Residential Tenancies List” to download the “general application form” and guides for tenants or landlords.
•If you are experiencing family violence or personal safety issues, consider using the “protected person application and guide” on the VCAT website, and seek support from a family violence service;
•Always take extensive photos of a property at the beginning and end of a tenancy;
•Put any additional terms of the lease in writing in the “additional or special terms” part of the lease before the agreement is signed;
•Always get receipts when you make cash payments;
•Correspond in email to ensure you have a copy; after phone calls, send an email confirming the contents of the call;
•Attach photos or video of the issues in dispute to emails wherever possible;
•Tenants should scan or photocopy any tenancy documents, and send them to their own email for their records and easy access
•In cases of severe breaches or hostile conduct, get to safety, call the police on 000, seek advice about getting an Intervention Order if appropriate, and consider using a video phone to record incidents (only if safe to do so).
A person who resides at premises but who does not have exclusive possession may be a “licensee”. This is a contractual right to occupy a premises, which generally can be revoked at will. A licensee is not a tenant and does not have rights under the RTA.
It is sometimes difficult to determine the legal nature of a person’s occupation of a premises and whether or not a person is a tenant or licensee. This can require consideration of a number of factors, and in many cases it remains open to the tribunal (see Janusauskas v Director of Housing  VSC 650 (17 December 2014)). Contact the Tenants Union for further information.
Some disputes between parties not covered by the RTA may be heard and determined by the Civil Division of the Victorian Civil and Administrative Tribunal (VCAT). For further information, visit VCAT’s website at www.vcat.vic.gov.au.
Co-tenants share the right of exclusive possession over the premises.
At common law (law determined by court decisions over time), co-tenants are “jointly and severally” liable for their responsibilities under the tenancy agreement. This means that any one or all of the tenants can be pursued for any loss or damage that the landlord suffers, as a result of a breach of the tenancy agreement or the RTA by any one of the tenants. For example, if three tenants enter a tenancy agreement and one tenant fails to pay their share of the rent, then all three tenants could be evicted. The landlord could also pursue any one of the tenants for the unpaid rent, regardless of whether or not it was that particular tenant who failed to pay.
This has been modified by part 4AA of the Wrongs Act 1958 (Vic). VCAT can now apportion liability between tenants where the landlord makes any claim for economic loss or damage to property in an action for damages. In practice, this occurs infrequently.
Generally the RTA does not cover disputes between co-tenants. However, the Family Violence Protection Act 2008 (Vic) permits a co-tenant to apply to VCAT for an order varying the parties to a tenancy agreement in the event of family violence (see “Application for reduction of a fixed-term agreement” and “Application for creation of a tenancy agreement”).
Sub-letting involves a tenant creating a new tenancy agreement with another person. To be a sub-tenancy, the subtenant must be given exclusive possession of part or all of the premises. The original tenant is called the “head tenant” and the second tenant is called the “sub-tenant”. The agreement between them is called a sub-lease.
Generally, if a tenant invites a person to share a premises with them, this does not constitute sub-letting of all or part of the premises. This person may be a licensee, or in some circumstances a co-tenant of the tenant.
Tenants who are considering sub-letting should be aware that they would become the sub-tenant’s landlord. This means that they have the same legal obligations to the sub-tenant as their landlord has to them; such as providing rent receipts and/or ensuring repairs are carried out (see also “Sub-letting”, under “Starting a tenancy”).
A person living in a rooming house is referred to in the RTA as a “resident”. A rooming house resident is defined as a person who occupies a room in a rooming house as their main residence (s 3). The rights of rooming house residents under the RTA differ from those of tenants.
It is sometimes difficult to determine whether someone is living in a rooming house, or whether they are simply a licensee or boarder. This issue will depend on whether the premises can be defined as a rooming house according to the definition in the RTA. Section 3 of the RTA defines a rooming house as, “a building in which there is one or more rooms available for occupancy on payment of rent: in which the total number of people who may occupy those rooms is not less than four …”.
The RTA also allows rooming house residents to enter into a tenancy agreement with the owner of their rooming house (s 94). This can change their rights and duties under the RTA. Further information about this can be obtained from the Tenants Union.
Rooming houses must be registered with the relevant local Council under the Public Health and Wellbeing Act 2008 (Vic), and are subject to the health and safety obligations set out in the Public Health and Wellbeing Regulations 2009 (Vic).
Rooming houses are also subject to the minimum standards set out in the Residential Tenancies (Rooming House Standards) Regulations 2012 (see “Minimum standards”).
To be covered by the caravan park provisions, a person staying in a caravan park (a “caravan park resident”) must have either the written agreement of the caravan park owner to occupy the site as their main residence, or have occupied the site as their main residence for at least 60 consecutive days (s 3). The rights of caravan park residents under the RTA differ from those of tenants.
A caravan park is defined to mean, “an area of land on which movable dwellings are situated for occupation on payment of consideration”.
“Protected tenants” are tenants who have been living in the same rented premises (known as “prescribed premises”) since 1 January 1956, and are covered by the Landlord and Tenant Act 1958 (Vic) (pt V) rather than the RTA.
This is a complicated area of tenancy law. There are few protected tenants left in Victoria. Contact the Tenants Union for further information (see “Advice and contacts”).
The RTA was amended in 2010 to include coverage of people renting in residential parks (called “site tenants”). These provisions commenced on 1 September 2011. To be covered by the provisions (pt 4A RTA):
1 the dwelling must be “designed, built or manufactured” to be transported from one place to another for use as a residence;
2 the dwelling must not be a “registrable moveable dwelling” (a dwelling that could be registered under the Road Safety Act 1986 (Vic));
3 the site tenant must live in the dwelling and must own it (partly or wholly) and must be renting the site (which will usually be in a caravan park).
The rights and responsibilities of site tenants and site owners are different to those of a landlord and tenant.
The RTA excludes certain premises from coverage under the Act. These exclusions are not always clear cut and the RTA will be assumed to apply to a tenancy agreement, unless it can be shown that it does not (s 507). Contact the Tenants Union for further information (see “Advice and contacts”).
The main exclusions include the following.
Premises or rooms that are part of a motel or premises licenced under the Liquor Control Reform Act 1998 (Vic) are not covered by the RTA, subject to certain exceptions (s 20).
Premises ordinarily used for holiday purposes (s 10) are not covered by the RTA.
Premises that are let to the tenant for the purposes of agricultural activity or “ordinarily” or “for the time being” used for grazing or farming (s 11) are not covered by the RTA.
Premises used as a school or for education or training purposes, or those situated in such an institution such as a boarding school, are not covered by the RTA (s 21(1)(a)). Premises formally affiliated with an educational institution are also excluded (s 21(1)(b)).
Premises that are provided as temporary crisis accommodation on a not-for-profit basis for a period of less than 14 days (s 22) are not covered by the RTA.
Premises let for the purpose of a trade, profession or business will not be covered by the RTA, even if a tenant resides in part of the building (s 8). However, if a tenant can show that the premises are used primarily for residential purposes then the Act will apply (s 9).
A squatter is a person who occupies premises without the owner’s consent. The RTA does not apply to squatters.
Information on squatter’s rights is available on the Victorian Legal Aid website (www.legalaid.vic.gov.au – search for “homelessness”) and on the City is Ours website (www.melbournecio.org). (The City is Ours is a volunteer-based direct action housing group that campaigns around homelessness and provides practical assistance and information to squatters.)