Residential tenancy agreements may be in writing or oral. They do not have to be expressed in terms of a tenancy – if the agreement has the character of a residential tenancy agreement, it will be considered as such, even if it is called something else, for example, a licence or a commercial tenancy.
If a tenancy agreement is in writing it must be in the prescribed standard form. The RTA provides that a term of a tenancy agreement is invalid if it purports to exclude, restrict or modify or purports to have the effect of excluding, restricting or modifying the application of the Act (s.27(1)).
While the RTA is the main source of rights and duties for landlords and tenants, the parties are able to agree to bind themselves to additional rights and duties in the terms of the tenancy agreement. Where there is a conflict between the tenancy agreement and the RTA, the RTA will prevail so a tenant cannot sign away the rights given to them by the Act.
An agreement may be deemed binding when any bond or rent in advance is paid or the tenant takes possession of the premises. "Possession" can mean anything from moving in, to taking possession of the key, and will depend on the circumstances.
Either of these events may constitute "part performance" as evidence of an oral or implied agreement. Depending on the finding of fact, the tenant or landlord may then be compelled by the VCAT to fulfil obligations under the agreement. They may also be held liable for compensation for any losses suffered by the other party.
A fixed-term tenancy agreement is an agreement that specifies the length of time the lease will run (usually six or 12 months). Fixed-term agreements are usually in writing, although it is possible for them to be oral.
Any tenancy agreement that does not specify a fixed-term is a periodic tenancy agreement (s.3). A periodic agreement does not have a fixed term but continues from one period to the next, usually month to month, although it may also be fortnightly or weekly.
At the expiration of the fixed-term, if neither party gives notice to end the agreement, the tenancy continues on a periodic basis (s.230). The periodic agreement remains on the same terms as the original fixed-term agreement, unless varied by the parties.
A tenant must not assign or sub-let the rented premises without the landlord’s written consent. Any assignment or sub-letting that is done without the landlord’s consent is invalid and unenforceable (s.81). If the tenant tries to assign or sub-let the premises without the landlord’s consent, the landlord can give the tenant a 14-day Notice to Vacate (s.253) (see: "Notice to Vacate – landlord wants tenant to leave", below).
The landlord cannot unreasonably withhold their consent to the assignment or sub-letting (s.81).If the tenant believes that the landlord has unreasonably refused to consent, the tenant may apply to the VCAT for an order that the landlord’s consent is not required (s.82).
The landlord must not demand a fee for their consent or refuse to consent because the tenant has refused to pay a fee. If the tenant does pay such a fee they can apply to the VCAT for an order that the landlord refund that amount.
When the landlord is the Office of Housing, the Director may withhold consent to any assignment or sub-letting on the grounds that the assignment or sub-letting would disadvantage people on public housing waiting lists (s.83).
A landlord cannot make the tenant pay any fees, costs or charges associated with the preparation of the tenancy agreement (s.27(3)).
The landlord is not entitled to demand or receive any payment (e.g. a premium, bonus, commission or key money) from a tenant in relation to the making, continuation or renewal of a tenancy agreement (s.51).
A tenant is required to pay a bond only if this is required by the agreement between the parties.
A person must not demand or accept a bond greater than the amount of one month's rent when the weekly rent does not exceed $350 (s.31). The landlord may apply to the VCAT for an order increasing the amount of bond that may be charged (ss.32 & 33). There is no restriction on the amount of bond where the rent exceeds $350 per week.
A person must not demand or accept more than one bond in relation to the continuous occupation of premises. However, if rent exceeds $350 per week and a tenant and landlord enter a new tenancy agreement for the same premises, then an additional bond may be sought by the landlord (s.34).
The tenanacy agreement should set out the date by which the payment of the bond is required. Tenants who are in occupation of premises, but who have not paid the bond in accordance with the agreement may be given a 14-day Notice to Vacate (see: "Notice to Vacate - landlord wants tenant to leave", below).
At the time the bond is paid, the landlord must complete and sign a Bond Lodgement form (s.405). The form must state if the Office of Housing has paid the bond on behalf of the tenant.
The landlord must then give the tenant a copy of the signed form for the tenant to sign. Failure to do so is an offence. Once the tenant has signed the form, the landlord must give them a copy. Failure to do so is an offence. Tenants should never sign a blank Bond Lodgement form, as this would allow an unscrupulous landlord to provide false or misleading information to the RTBA.
The landlord then has 10 business days to lodge the bond and the completed form with the Residential Tenancies Bond Authority (RTBA). Failure to do so is an offence (s.406). The RTBA has seven days after it receives the bond to give a receipt to the landlord, tenant and Office of Housing (if applicable) (s.407).
If the receipt has not been received within 15 days of paying the bond the tenant should contact the RTBA.
It is an offence for a tenant to refuse to pay rent on the ground that they intend to use the bond money as rent (s.428).
If the landlord fails to lodge the bond, even after the tenant has notified the RTBA, the tenant should apply to the VCAT for an Order compelling the landlord to lodge the bond and refer the matter to Consumer Affairs Victoria with a view to prosecute(see: "Advice and contacts" at the end of this chapter for contact details).
If the tenant pays a bond the landlord must give the tenant a completed and signed condition report before the tenant enters into occupation of the premises.
A signed Condition Report is evidence of the state of repair of the property except for problems that could not have reasonably been discovered on inspection, i.e. the roof leaks when it rains (s.36). At the end of the tenancy the Condition Report will help determine if there is damage or cleaning costs for which the tenant might be held liable.
Tenants should make a thorough inspection of the property before they move in and note any problems (e.g. carpet stains) in detail on both copies of the report. If there is not enough room on the report to record all disagreements, the tenant may write "see attached" in the appropriate section and attach a separate sheet.
If the landlord fails to provide a Condition Report at commencement tenants should record their observations. It is also prudent for tenants to photograph or video their premises at commencement and termination.
Tenancy databases are run by private companies who collect information about tenants and then make it available to real estate agents. Estate agents use the databases to assess their "business risk" by looking at a person’s rental and tenancy history.
An unfavourable listing on a tenant database can have a serious impact upon a prospective tenant's ability to secure accommodation in the private rental market. For this reason, the fact that tenancy databases have largely gone unregulated in Victoria is a cause for concern. Tenants have been "blacklisted" for trivial matters or for exercising their rights against landlords or agents.
A tenant who is looking for a property to rent and whose tenancy applications are being rejected should investigate whether they have been listed on a tenant database.
The previous estate agent/s can be asked if they have listed the tenant on a database and if so, which one. The front window or door of a real estate agent’s office may have a sticker identifying whether they subscribe to a tenancy database. The database companies can be contacted and the tenant can request a copy of their rental history file but whether or not the tenant is charged a fee depends on the company and the method used.
The National Tenancy Database (NTD) is the database most likely to affect Victorian tenants. If you would like a copy of the personal information NTD holds about you on file, go to www.ntd.net.au to download or fill in an online form, or call 8629 1682 for more information.
Tenant databases are subject to the "national privacy principles" in the following ways:
- tenants have a right to access data held about them;
- any data held must be complete, accurate and up-to-date; and
- tenants must give their consent before information can be passed on to third parties for "secondary purposes".
An agent may ask a tenant to sign a consent form to release their personal information to third parties, including database companies. Alternatively agents may take the view that they don't need the consent of tenants to pass on information to databases because looking at a tenant’s history to assess "risk" could be seen as a primary, not a secondary purpose.
Protection under the Privacy Act 1988 (Cth) is only effective if people make complaints when their privacy is breached. Tenants who think their personal information is being misused should contact the Office of the Australian Information Commissioner. Complaints should be made in writing. To make a complaint, please visit the "How do I make a complaint?" page of the Commissioner's website, or call the enquiries line.
The Privacy Policy of the NTD states that the company will take reasonable steps to ensure that the personal information it keeps is accurate, complete and up-to-date at the time of collecting, using or disclosing the information.
A tenant may be able to have an entry on a database rectified by following the internal complaints process of the particular database company. If a tenant thinks they have been treated unfairly or that the information recorded by a database company is incorrect, they can ask the database company to investigate the matter.
For further information regarding privacy laws, see: Chapter 21.5 Privacy Rights.
The RTA was amended in 2010 to regulate tenant databases. These provisions enable a tenant to apply to VCAT regarding a listing in certain circumstances. The provisions are due to commence on 1 September 2011. Contact the Tenants Union for more information.
If the landlord has no agent they must, on or before the day the tenant takes occupation, give the tenant:
- written notice of their full name and address for service of documents; and
- an emergency telephone number to be used in case of urgent repairs.
Failure to do so is an offence under the RTA (s.66(2)).
If the landlord has an agent acting for them, the landlord must give the tenant:
- written notice of the agent’s full name, address and phone and fax numbers;
- a written statement as to whether the agent can authorise urgent repairs and the maximum cost of urgent repairs they may authorise; and
- the phone or fax number for urgent repairs.
Failure to do so is an offence (s.66(3)).
If any of this information changes the landlord must notify the tenant within seven days. Failure to do so is an offence (s.66(4)).
The landlord must give the tenant the written statement of the rights and duties of landlords and tenants produced by Consumer Affairs Victoria (s.66(1)) (see: "Advice and contacts", below).
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STARTING A TENANCY :: Last updated: Thu Jul 1st 2010