Tenants must pay utility bills for gas, water and electricity where there are separate meters. A Breach of Duty Notice can be served by either tenant or landlord on several grounds including causing damage, upsetting neighbours or failure to provide quiet enjoyment of the premises. Landlords must make repairs but tenants cannot refuse to pay rent on this basis. Detailed minimum standards exist for rooming houses but not for rental properties
Unless the tenancy is for a fixed-term period exceeding one year, the landlord must repay the tenant for any rates or taxes payable for the premises that are recovered from the tenant by a public statutory authority, such as a local council (s 58 RTA).
The landlord is liable for payment of the following utility charges:
•the initial connection costs of electricity, water, gas, bottled gas or oil supplies (i.e. where the service has not been connected in the past);
•all charges for the supply or use of electricity, gas (except bottled gas) or oil when the premises is not separately metered;
•all water supply and sewerage disposal charges when the water consumption is not separately metered;
•water charges that are not related to consumption (e.g. the flat-rate service fee);
•all charges for the supply of sewerage or drainage services;
•all charges for the supply or hire of gas bottles (s 53(1)).
A tenant is liable for payment of the following utility charges:
•all charges for the supply or use of electricity, gas or oil when the premises are separately metered, except installation and initial connection costs and the costs of supply or hire of gas bottles;
•all charges for the use of bottled gas; and
•all charges for water consumption and sewerage disposal charges when the property is separately metered (s 52).
The tenant cannot be made liable for any costs that should be borne by the landlord as the RTA makes no provision for this. Any agreement purporting to extend the tenants liability for utilities would be an attempt to modify or restrict the operation of the RTA and would, therefore, be unenforceable (s 27).
If the landlord or tenant pays a utility cost for which the other party is liable, they can request reimbursement and should do so in writing by giving the landlord a Notice to Landlord with a copy of all relevant utility bills. Reimbursements must be made within 28 days of receiving the Notice (s 55). If reimbursement is not forthcoming the party owed money may apply to VCAT for an order for reimbursement.
The tenant is liable for all charges relating to the installation, service and use of a telephone, including any fees for the installation of a telephone line but not for repairs.
The RTA is silent on telephone lines as they relate to internet services. It is highly recommended to get a written term inserted into a lease regarding the rented premises, and whether there is an active phone line installed that is capable of carrying internet.
Similarly, if the landlord has told the tenant that the telephone is connected, and the tenant entered into the agreement on that understanding, there may be grounds to argue that the provision of the connection was a term of the agreement (see “Australian Consumer Law”).
In the absence of any terms or evidence described above, if a service is sought by a tenant and is not installed, the tenant will need the landlord’s written consent (s 64), and will be liable for the full cost of installation.
Where there are pre-existing facilities, the wiring within the house will be covered by the landlord’s obligation to ensure the premises are in good repair.
The Director of Housing (or organisations that receive funding from the Office of Housing) can impose service charges for water, central heating, laundry or utility services provided with the premises (s 57).
The RTA differentiates between breaches of a “duty” provision of the Act and other breaches (s 207). If the landlord believes that the tenant is in breach of a duty provision of the Act, the landlord may serve the tenant with a Breach of Duty Notice.
A Breach of Duty Notice can be found on the Consumer Affairs of Victoria website. A Breach of Duty Notice does not automatically prove that a breach has taken place, but they can be relied as evidence of the fact an allegation of a breach has been communicated.
If found to be true, valid and proven, a Breach of Duty Notice can enable a party to obtain a compliance order, compensation, or in some cases successive breaches can lead to Notice to Vacate that may ultimately terminate the tenancy.
A Breach of Duty Notice can only be served if the tenancy has not already been terminated.
The grounds for a landlord to serve a Breach of Duty Notice are when:
•the tenant fails to permit entry when entry is sought in accordance with the RTA (s 89);
•the tenant uses or permits others to use the premises in a manner that causes a nuisance (s 60(1));
•the tenant uses or permits others to use the rented premises or common areas in any manner that causes an interference with the reasonable peace, comfort or privacy of any occupier of neighbouring premises (s 60(2));
•the tenant fails to take care to avoid damaging the rented premises or common areas (s 61);
•the tenant fails to keep the rented premises in a reasonably clean condition (s 63);
•the tenant has installed fixtures or has altered, renovated or added to the premises without the landlord’s consent (s 64);
•the tenant has changed a lock in a master key system without the landlord’s consent (s 70); or
•the tenant has failed to give the landlord a key to a changed lock (ss 70, 70A).
To claim compensation for breach of duty, the landlord must prove that they suffered loss caused by the breach.
The tenant has a duty to ensure care is taken to avoid damaging the rented premises and to take reasonable care to avoid damaging common areas such as communal laundries and car parks. The tenant is not responsible for damage that is beyond their control (e.g. damage caused by a burglary) (s 61).
If the tenant becomes aware of damage to the rented premises, they must give notice to the landlord specifying the nature of the damage as soon as practicable (s 62). The tenant can give this notice in the form of a letter or on the Notice to Landlord form.
The grounds for a tenant to serve a Breach of Duty Notice are when:
•the premises are not vacant and in a reasonably clean condition on the day the tenant is to take possession (s 65(1));
•the landlord does not take all reasonable steps to provide quiet enjoyment of the premises (s 67);
•the landlord does not ensure that the premises are maintained in good repair (s 68(1));
•the landlord does not replace a water appliance, when such an appliance needs to be replaced, with appliance of a prescribed rating (s 69); or
•when the landlord does not provide locks, or fails to provide a key to the tenant when a lock is changed (s 70); or
•when the landlord provides a key to an excluded person for a lock that has been changed by a protected person under a family violence intervention order or family violence safety notice (s 70A).
The landlord must take all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises during the tenancy agreement (s 67). This means that the tenant is entitled to enjoy the undisturbed occupation and possession of the premises without interference from the landlord or from things that are in the landlord’s power to prevent.
Landlords or agents who enter a premises without a notice are breaching a tenant’s quiet enjoyment. Further, it is also an offence to enter premises for reasons other than in accordance with the RTA. To be entitled to enter the premises, the landlord or agent must have a reason permitted by the RTA, and must give notice in accordance with the RTA (ss 85–87).
The tenant’s duty to permit entry only applies when the landlord or agent seeks entry in accordance with the RTA (s 89). If the landlord or agent has not complied with the RTA, the tenant does not have to let them in.
If the landlord is exercising a right of entry but fails to comply with the RTA, the tenant may apply to VCAT for an order that the landlord be restrained from entering the premises for a specified period (s 91). The tenant may also serve a Breach of Duty Notice claiming compensation for their loss of quiet enjoyment.
A tenant who applies for an order prohibiting entry or for compensation for loss of quiet enjoyment will need to substantiate their claim at VCAT. The tenant should keep a record of all entries by the landlord, including how long they stay, and any other relevant information.
The occasions when the landlord or their agent may have a right to enter the premises, together with any person necessary to achieve the purpose of the entry are limited to the following:
•a Notice to Vacate or a Notice of Intention to Vacate has been given and entry is required to show the premises to a prospective tenant during the last 14 days of the notice period (s 86(1)(a)); or
•the premises are to be sold or used as security for a loan and entry is required to show a prospective buyer or lender through the premises (s 86(1)(b)); or
•entry is necessary to enable the landlord to carry out a duty under the tenancy agreement, the RTA, or any other Act (s 86(1)(c)); or
•entry is required for valuation purposes (s 86(1)(d)); or
•the landlord or their agent has reasonable grounds to believe that the tenant has failed to comply with their duties under the RTA or the tenancy agreement (s 86(1)(e)); or
•entry is required for inspection of the premises and an inspection has not been made within the last six months (s 86(1)(f)); or
•entry is required to enable inspection of the premises for the purpose of proceedings under the family violence provisions (s 86(1)(g)); or
•entry for general inspections is not permitted within the first three months of a tenancy commencing (s 86(3)).
The RTA is silent on whether a landlord or agent can take photographs. There is little doubt that the exterior of the building that can be seen from a public space can be photographed. However, the law on the taking of photographs without the tenant’s consent inside the home is unclear.
Parties seeking to prevent the landlord from taking photos of their personal belongings in the home (where there is no reasonable justification such as alleged damage or repair issues) should send an email qualifying (limiting) the right of entry by stating that they do not consent to the taking of photographs of their personal belongings.
While there is no guarantee that this will be successful, parties may then seek to give a Breach of Duty Notice, or apply for a restraining order from VCAT on the basis that the entry has not been conducted in a reasonable manner (s 87). VCAT will then consider all the relevant circumstances and whether it is reasonable that such personal information should be retained, whether any the photos be destroyed or limited in how they might be used such as prohibiting the use on bill boards or in sales materials.
The RTA does not provide for open inspections. It may also be possible for tenant to object to a landlord or agent seeking to conduct open inspections without the consent of the tenant. Section 86(1)(a) and (b) refer to prospective tenants and a buyer in the singular. This means notice for entry may only be given where there is a party who actually will attend to inspection. It is further arguable that, in the absence of consent, only one prospective party may enter at a time, together with the agent or landlord, rather than the home being opened to the public at large.
Subsequently, if multiple entries are required because of the interest in the premises, the tenant may be entitled to proportionally more compensation for their loss of quiet enjoyment for entry on each occasion. Such claims for compensation may be subject to an obligation to mitigate loss and the discretion of VCAT.
The landlord’s right of entry will arise only if the landlord has given proper written Notice of Entry (see below) or the tenant has consented to entry (s 85). Where a landlord or their agent seeks the consent of the tenant to enter the premises, and the tenant provides that consent, there will be a right to entry at the time agreed between the parties (s 85(a)). The consent must be given not more than seven days prior to entry.
A right of entry will arise where:
•the landlord gives a clear 24 hours written notice of the entry;
•the reason for entry stated in the notice is for one of the grounds listed at section 86; and
•the notice is given by post or in person between 8 am and 6 pm; and
•the entry is to occur at any time between 8 am and 6 pm on any day (except a public holiday).
If the notice is sent by ordinary post, the landlord should allow one day for postage. If the notice is sent by registered post the landlord should allow two days for postage.
The landlord or their agent may enter the premises even if the time chosen is inconvenient to the tenant or the tenant is not home, as long as they have given the required notice and complied with the RTA.
The person exercising the right of entry must do so in a reasonable manner and must not stay any longer than is necessary to achieve the purpose of entry (s 87(a)).
Even if the landlord has complied with the rules regarding entry, they are still required to ensure the tenant has quiet enjoyment of the premises. A conflict between the landlord’s right of entry and the tenant entitlement to quiet enjoyment may arise when inspections are occurring frequently (e.g. when the premises are being sold).
In such cases, the tenant should attempt to negotiate an agreement with the landlord or agent that strikes a balance between their right to quiet enjoyment and the landlord’s right to enter the premises. Any such agreement should be written down, should specify the period of the agreement and be signed by both the tenant and landlord or agent.
An agreement may include conditions such as:
•the landlord or agent will only seek to enter if they have made a convenient appointment time with the tenant;
•the tenants will have the property open for inspection for an agreed time each week; or
•an arrangement such as a rent reduction for the period of the inspections, to compensate the tenant for the inconvenience caused by the inspections.
•If a landlord refuses to compensate a tenant for inconvenience as a result of numerous entries for reasons of a sales campaign, the tenant may apply to VCAT after giving a Breach of Duty Notice, or after the tenancy has ended, to determine if compensation is payable.
A landlord is required to ensure the rented premises are maintained in good repair.
It should be noted that repairs and rent payable are treated as separate issues by the VCAT. If there are significant repairs issues, a tenant cannot refuse to pay their rent on the basis of unattended or ignored repair requests. A tenant may still be evicted for rent arrears, and have a valid compensation claim for a lack of good repair caused by the landlord.
Further, a tenant is not entitled to refuse to pay rent because they intend to regard the bond as rent paid (s 428).
If tenants have doubts about who is authorised to do certain repairs or qualifications of attending traders persons, contact the Victorian Building Authority.
As an alternative, where the tenant has given notice requiring repairs to be carried out to the rented premises, the tenant may apply to VCAT for an order authorising the tenant to pay the rent under the tenancy agreement into the Rent Special Account (s 77). This means that rent is paid to a trust account held by VCAT until such time VCAT orders the amount of rent to be released, on the basis that the landlord has fulfilled, or is fulfilling, their obligation to carry out the repairs.
For more information, see VCAT Practice Note PNRST3.
If a tenant receives a Notice to Vacate immediately after asking for repairs, the tenant should seek legal advice immediately about challenging the notice as being retaliatory. While dismissing notices for retaliation are strictly limited to “no reason” and “end of fixed term” notices to vacate, the circumstances will still likely inform VCAT’s decision.
Further, particular attention should be given to the prohibition on reletting after a Notice to Vacate (see “Notice to Vacate – landlord wants tenant to leave”). The RTA sets out three processes in relation to requesting repairs:
•non-urgent repairs; and
•breach of duty procedure.
Urgent repairs are defined in section 3 of the RTA to mean any work necessary to repair or remedy:
•a burst water service;
•a blocked or broken lavatory system;
•a serious roof leak;
•a gas leak;
•a dangerous electrical fault;
•flooding or serious flood damage;
•serious storm or fire damage;
•a failure or breakdown of any essential service or appliance provided by a landlord for hot water, water, cooking, heating or laundering;
•a failure or breakdown of the gas, electricity or water supply to the rented premises;
•an appliance, fitting or fixture provided by a landlord, that uses or supplies water and that is malfunctioning in a way that results or will result in a substantial amount of water being wasted;
•any fault or damage that makes the rented premises unsafe or insecure; or
•a serious fault in a lift or staircase.
First, the tenant must take reasonable steps to arrange for the landlord to immediately carry out the repairs (s 72(1)). This will ordinarily involve attempts to advise the landlord or agent of the need for repair by telephone. At the start of the tenancy, the landlord should have provided the tenant with an emergency telephone number to be used in case of the need for such repairs (s 66(2)(b)).
What constitutes “reasonable” depends on the circumstances; that is, the degree of urgency of the repairs and the number of times the tenant has attempted to contact the landlord. With particularly urgent repairs, like a serious gas leak, the tenant may only need to make one or two attempts to contact the landlord before deciding to take further steps.
The tenant should keep a record of all telephone calls (answered and unanswered) and any other attempts to contact the landlord or agent.
Following this, if neither the landlord nor agent carry out the repairs, and the cost of the repairs is not more than $1800, the tenant can carry out the repairs or arrange for the repairs to be attended to by a tradesperson (s 72(1), (2)). Alternatively, a tenant can make an urgent application to VCAT (s 73) (see “Advice and contacts”).
The tenant must ensure that the cost of the repairs will not amount to more than $1,800 (including GST). If the tenant arranges for urgent repairs to be done and the cost is more than $1800, the landlord is only liable to pay the reasonable cost of repairs up to $1800 (s 72(2)(b)).
After arranging for the repairs to be carried out, the tenant must give the landlord 14 days’ notice in writing of the repairs carried out and the cost of the repairs (s 72(2)(a)). The tenant should give this notice in the form of a letter, or on the Notice to Landlord form. The tenant should attach a copy of the receipt or invoice, and retain the original. If the landlord does not pay the amount within 14 days, the tenant may apply to VCAT for an order for reimbursement.
If a tenant cannot afford to pay for repairs themselves or the repairs cost more than $1800, after attempting to arrange for the landlord to do the repairs, the tenant should make an application to VCAT (s 73).
VCAT are required to hear an application for urgent repairs within two business days of receiving the application (s 73(2)). Sometimes, in practice, applications take longer to be heard.
The tenant should provide evidence of the need for repairs, the urgent nature of the repairs and the attempts made to arrange for the landlord to do the repairs. VCAT has the power to make an order requiring that the landlord do the repairs within a specified time.
Non-urgent repairs are repairs other those defined as “urgent repairs”. These are required to ensure that the rented premises, fixtures and appliances supplied by the landlord are maintained in a state of good repair.
In older houses, distinguishing dilapidation and the concept of “good repair” is not an easy task, for example in relation to old carpet that is threadbare, or peeling paint. When in doubt, parties should engage the non-urgent repair mechanism to determine whether the issue is a non-urgent repair, or a request for renovation or upgrading.
In complex non-urgent repairs matters, VCAT may consider it appropriate and more efficient to convene at the site of the rented premises, so that VCAT might inform itself as to the nature of the issue (s 129 VCAT Act). Though this is rare, such a consideration may be raised with VCAT to expedite some matters.
The tenant must give the landlord 14 days written notice that non-urgent repairs are needed (s 74). The tenant should use the Notice to Landlord form. The RTA does not require a tenant to use the Notice to Landlord form, but it may be difficult to arrange an inspection with CAV unless this notice is used.
The notice should be given to the landlord or agent personally, or sent by post, and a copy kept by the tenant. It is recommended to send it by registered post, in case of a dispute about service.
If the landlord has not carried out the repairs within 14 days, or has not done so to a satisfactory standard, the tenant can apply in writing to the Director of CAV requesting that an inspector investigate (s 74). The tenant can send a letter requesting the inspection or use the Request for Repairs Inspection or Rent Assessment form. In either case, a copy of the Notice to Landlord should be attached.
The CAV inspection and accompanying report is a free service.
After inspecting the premises, a copy of the inspection report must be provided to both the landlord and the tenant (s 74(3). If the inspector is satisfied that the landlord is in breach of their duty to maintain the premises in good repair, they may attempt to negotiate arrangements for the carrying out of repairs. However, generally the report will simply make recommendation for VCAT to order when an application is made to VCAT.
If the tenant has received the inspector’s report, yet satisfactory arrangements cannot be made to carry out the repairs, the tenant can apply to VCAT. The application should be made under section 75(1) and a copy of the inspector’s report should accompany the application (r 7A.07(2) Victorian Civil and Administrative Tribunal Rules 2008 (Vic) (“VCAT Rules”)).
The application must be made within 60 days of receiving the report (s 75(2) RTA). If the tenant has not received a report within 90 days of making application to CAV, the tenant may apply to VCAT without the report (s 75(3)).
VCAT has the power to make an order requiring the landlord to carry out the repairs within a specified time.
Owners corporations and repairs to common property
It is not uncommon for tenants or landlords to be uncertain about repairs to common property, where there is an owners corporation is existence. Section 163 of the Owners Corporations Act 2006 (Vic) makes it possible for a tenant to bring a claim directly against an owners corporation for repairs to common property or services (s 47).
Further, in disputes between the landlord, tenant and owners corporation, parties may file an application under the Residential Tenancies List of VCAT and seek to join the owners corporation as in interested party to a dispute (s 60 VCAT Act). The decision to join a party may be made by then, or be at VCAT’s initiative.
In some cases, it may be appropriate – where there are shared utility services, roof spaces, driveways or delays between the various insurance companies – to seek to apply to VCAT and to join the owners corporation as an interest party. This may be beneficial for both landlords and tenants in complex matters.
There are no minimum standards for rented premises.
Rooming houses are prescribed accommodation under the Public Health and Wellbeing Regulations 2009 (Vic), which provide for minimum standards (rr 17–27) regarding:
•the number of people that can be accommodated in one room;
•minimum room size;
•maintenance and cleanliness of the rooms and common areas;
•supply and quality of hot and cold water;
•the discharge of sewage and waste water;
•the provision of vermin-proof refuse receptacles;
•the number of toilet and bathroom facilities per person.
All rooming houses must be registered with the council in whose district the rooming house is located. Failure to comply with any of the minimum standards or to register the rooming house is an offence. Local government authorities, normally through their Environment Health Officers, have the power to investigate those in breach.
Rooming houses are also subject to the minimum standards set out in the Residential Tenancies (Rooming House Standards) Regulations 2012. A rooming house owner must ensure that rooms, services and common areas comply with the minimum standards contained in the regulations (r 120A). The standards outline detailed minimum standards for amenity in rooming houses relating to privacy, security and safety.
According to these standards a room must have:
•a door for the room that is operated by a key from the outside and can be unlocked from the inside without a key (r 6);
•have at least 2 working electrical power outlets (r 7);
•any windows must be fitted with a window covering that can be open and closed by the resident and affords privacy to the resident (r 8);
•each external window of the rooming house that is able to be opened is able to be securely fixed in a closed or open position without a key (r 19);
According to these standards, a rooming house must have the following:
•a shared bathroom or toilet must be fitted with a privacy latch that can be securely latched from inside without the use of a key (r 10);
•a number of chairs equal to the maximum number of residents, and a table that can comfortably fit those chairs (r 12);
•a communal laundry trough with a continuous and adequate supply of hot and cold water, with a space next to the trough for a washing machine, and outlets for hot and cold water (r 13);
•a clothesline or other drying facilities (r 13);
•adequate ventilation for rooms, bathrooms, showers, toilets and laundry (r 17); and
•adequate lighting for rooms, hallways, and corridors which provides a level of illumination appropriate to the function or use of those rooms (r 18).
A rooming house must provide in either the residents room or common area:
•a food preparation area (r 11(a));
•a sink (r 11(b));
•one oven that is in good working order for every 12 residents or maximum capacity of residents in the rooming house (r 11(c));
•a cooktop with at least four burners that is in good working order, per 12 residents or maximum capacity of residents in the rooming house, if the cooktop is in the common area (r 11(d));
•a fridge with minimum gross capacity of 80L in a room, or 400L in common area (r 11(e));
•not less than 1 cupboard of 0.1 cubic meters for each resident, and that this cupboard is lockable if located in the common area (r 11(f)).
A rooming house must:
•at least once every two years, have a gas safety check of all gas installations and fittings performed by a licenced gas fitter (r 19), and keep a register of the gas fitters who have performed the check (r 23);
•at least once every five years, have an electrical safety check by a licensed electrician of all electrical installations and fittings at the rooming house (r 20), and keep a register of the gas fitters who have performed the check (r 24);
•have a compliant electrical safety switch and switch board (r 16);
•have a lock fitted to each entrance that is operated by a key from the outside and can be unlocked from the inside without a key, and each entry must have a window, peephole or intercom and adequate lighting to allow screening of visitors and safe access to the rooming house (r 22).
Consumer Affairs Victoria (CAV) may also independently investigate a rooming house without the need for a complaint or application by a rooming house resident, if they deem it appropriate. Investigations may be conducted where there is a possible breach of duty of the RTA or of the Minimum Standards (s 131A). A written report must be provided to any resident and rooming house operator affected by any breach or failure to comply.
For more information contact the Tenants Union.
The Director of Housing’s procedures for repairing and maintaining premises are contained in the Public Housing Policy and Procedure Manual (the “Responsive Maintenance” chapter). This manual can be accessed through the department’s website (www.housing.vic.gov.au).
The Director of Housing is a landlord who is subject to the RTA in the same way as any other landlord. A Director of Housing officer may argue at VCAT that the repairs cannot be done, or will be delayed, because of the application of the Director of Housing’s policy. VCAT should not refuse a tenant’s application for a repair order on that basis, although it may take the policy and procedures into account.
The Office of Housing operates a Repairs and Maintenance Call Centre. In the first instance the tenant can call 13 11 72 and report the repair. The tenant should ask for a Scheduled Contract Number (SC Order) that is a record of the phone call.
Nonetheless, it is still recommended that Public Tenants follow the same repairs process described above, until the repairs are completed. The use of prescribed notices as described above provides an easy and accessible reference for compensation claims, and a record if there is any dispute.
Urgent repairs are defined to include “any fault or damage that makes the premises insecure” (s 3). Therefore, where an external window or door lock is defective, it will usually be appropriate to initiate the urgent repairs process (for further information, see “Urgent repairs”).
A landlord must provide locks (defined as “a device for securing a door or a window or other part of the premises”), to secure all external doors and windows of the rented premises (ss 3, 70). Although section 70 does not expressly require the landlord to provide deadlocks, it is arguable that a lock that does not adequately “secure” the premises does not comply with the RTA.
If the tenant believes this is the case, they may serve a Breach of Duty Notice and then apply to VCAT for a Compliance Order. The tenant would require evidence to support their claim that the premises were not secure, such as a report from the police or a security expert.