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 for example, a local council (s.58 RTA).
The landlord is liable for the 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 supply is not separately metered, water charges that are not related to consumption (e.g. the flat-rate service fee); and
- all water supply and sewerage disposal charges when the water consumption is not separately metered, 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 the 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.
The tenant cannot be made liable for any charges that should be borne by the landlord as the RTA makes no provision for them to do so. Any such agreement would be an attempt to modify or restrict the operation of the RTA and would, therefore, be unenforceable (s.27).
If the tenant pays a charge for which the landlord is liable, the tenant can request reimbursement and should do so in writing.
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 landlord is responsible for maintaining a pre-existing facility. It can appear that telephone lines have been installed where phone connection plugs are present. However, it may be necessary for lines to be laid or re-installed. In that case, the tenant is liable for the full cost.
If the landlord has told the tenant that the telephone was connected, and the tenant entered into the agreement on that understanding, there may be grounds to argue that the provision of the connection was an implied condition of the agreement.
The RTA differentiates between breaches of a "duty" provision and other breaches (s.207). The landlord may serve the tenant with a Breach of Duty Notice (except if the tenancy has terminated before the claim is made) 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 loss. There is arguably no loss to the landlord if the tenant causes a nuisance to neighbours.
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 was beyond their control, for example, damage caused by a burglary (s.61).
If the tenant becomes aware of damage to the rented premises they have a duty to 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 tenant must keep the rented premises in a reasonably clean condition (s.63).
Grounds for a tenant to give a Breach of Duty Notice to a landlord 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));
- when the landlord does not take all reasonable steps to provide quiet enjoyment of the premises (s.67);
- when the landlord does not ensure that the premises are maintained in good repair (s.68(1));
- when the landlord does not replace a water appliance with an A-rating appliance (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.
The most common complaint by tenants in relation to quiet enjoyment (see: "Quiet enjoyment", above) is about excessive inspections by landlords or agents, or relating to landlords or agents entering the property without notice. To be entitled to enter the property, the landlord or agent must have a valid reason and must give notice in accordance with the RTA (ss.85–87).
If the landlord is exercising their right of entry to the extent that it disturbs the tenant’s quiet enjoyment, the tenant may apply to the VCAT for an order that the landlord be restrained from entering the premises under section 91, or serve a Breach of Duty Notice under section 208 for compensation for their loss of quiet enjoyment.
A tenant who is applying for a Restraining Order or compensation for loss of quiet enjoyment will need to substantiate their loss at the VCAT. The tenant should be advised to keep a record of all entries by the landlord, how long they stay and any other relevant material.
The tenant's duty to permit entry only applies when the landlord or agent seeks entry in accordance with the RTA (s.91). If the landlord or agent has not complied with the RTA the tenant does not have to let them in. If the landlord or agent has complied with the RTA but is disturbing the quiet enjoyment of the tenant by excessive inspections, the tenant may apply to the VCAT for a Restraining Order (see: "Advice and contacts", at end of chapter for contact details).
The occasions when the landlord or their agent has 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; 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; or
- entry is necessary to enable the landlord to carry out a duty under the tenancy agreement, the RTA, or any other Act; or
- entry is required for valuation purposes; 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
- entry is required for inspection of the premises and an inspection has not been made within the last six months (s.86).
The 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 grants that consent there will be a right to entry at the time agreed between the parties (s.85(a)). The consent must be granted not more than seven days prior to entry.
A right of entry will arise where:
- the landlord gives 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 complies with section 86 and 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 have allowed one day for postage. If the notice is sent by registered post the landlord should have allowed 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.
The person exercising the right of entry must do so in a reasonable manner (s.87(a)).
If the landlord has complied with the rules regarding entry, they are still required to ensure the tenant has quiet enjoyment of the premises.
The tenant should attempt to negotiate an agreement with the landlord or agent that strikes a balance between the tenant’s right to quiet enjoyment and the landlord’s right to enter. Any such agreement should be written down and signed by both the tenant and landlord or agent.
An agreement can include conditions such as:
- the landlord or agent will only visit 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.
The RTA establishes three processes in relation to repairs:
- urgent repairs;
- non-urgent repairs; and
- breach of duty procedure.
Urgent repairs listed in the RTA include the following:
- 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 for hot water, water, cooking, heating or laundering by a landlord, or rooming house/caravan park operator;
- a failure or breakdown of the gas, electricity or water supply to rented premises, a rooming house or a caravan;
- an appliance, fitting or fixture provided by a landlord, rooming house owner, caravan park owner or caravan owner 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 rented premises, a rooming house, a room or a caravan unsafe or insecure; or
- a serious fault in a lift or staircase (s.3).
The tenant must take reasonable steps to arrange for the landlord to carry out the repairs (s.72(1)). This will ordinarily involve attempts to advise the landlord or estate agent of the repair by telephone.
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 both answered and unanswered and any other attempts to contact the landlord or agent.
If the tenant is unable to get the landlord or agent to carry out the repairs, and the cost of the repairs is not more than $1,000, the tenant can carry out the repairs or arrange for the repairs to be dealt with by a tradesperson (s.72(1) &(2)). Alternatively, a tenant can make an urgent application to the VCAT (s.73) (see: "Advice and contacts", at end of chapter).
It is important that the tenant makes sure that the cost of the repairs will not amount to more than $1,000. If the tenant arranges for urgent repairs to be done and the cost is more than $1,000, the landlord is only liable to pay the cost of repairs up to $1,000 (s.72(2)(b)).
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 the VCAT for an order for reimbursement under section 452.
Tenants often cannot afford to pay for repairs themselves and then wait for the landlord to reimburse them. In these circumstances, after attempting to arrange for the landlord to do the repairs, the tenant should make an urgent application to the VCAT under section 73.
The VCAT must 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 take 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. The VCAT can then make an order that the landlord do the repairs within a specified time.
Non-urgent repairs are those repairs that are required in order to maintain the premises and those fixtures and appliances supplied by the landlord in a state of good repair and which do not fall under the categories defined as "urgent" (s.3).
The tenant must give the landlord 14 days written notice that non-urgent repairs are needed. The tenant should use the Notice to Landlord form (s.75). The RTA does not require a tenant to use the Notice to Landlord form, but it may be difficult to arrange an inspection with Consumer Affairs Victoria unless this notice is used.
The notice must be addressed to the landlord rather than the estate agent; however, it can be sent care of the agent’s address. If the tenant is a public tenant, their landlord is the Director of Housing. The notice should be given to the landlord or agent personally or sent by ordinary or registered post and a copy kept by the tenant. It is recommended to send it by registered post
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 Consumer Affairs Victoria 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.
If the inspector is satisfied that the landlord is in breach, they may attempt to negotiate arrangements for the carrying out of repairs. They must give a written report of the investigation to the tenant (s.74(3)).
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 the VCAT. The application should be made under section 75(1) and a copy of the inspector’s report should accompany the application (r.6.38(2) Victorian Civil Administration Tribunal Rules 1998 (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 their application to Consumer Affairs Victoria, the tenant may apply to the VCAT without the report (s.75(3)).
The RTA does not provide "minimum standards" for rented premises.
The Health (Prescribed Accommodation) Regulations 2001 (Vic) ("HPAR") prescribe certain minimum standards for rooming houses (see: "Rooming house residents", above). The HPAR is administered by local government and are regulations made under the Health Act 1958 (Vic). If premises meet the definition of a rooming house, the premises and its occupants must be registered with local government authorities.
The HPAR provides for minimum standards 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; and
- the ratio of toilet and bathroom facilities.
Failure to comply with any of the minimum standards or to register the rooming house or its occupants is an offence. Local government authorities, normally through their Environment Health Officers, have the power to investigate those in breach.
The Director of Housing’s procedures for repairing and maintaining premises are contained in the "Responsive Maintenance" chapter in the Maintenance Manual, which is found within the Public Housing Policy and Procedure Manuals. This manual can be access through the department's website listed below.
It is important to keep in mind that the Director of Housing is a landlord who is subject to the RTA in the same way as any other landlord. The Housing Officer may try to argue at the VCAT that the repairs cannot be done, or will be delayed, because of the application of the Director of Housing’s policy. The VCAT should not refuse a tenant's application for repairs on that basis, although they 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. More details are available on the department's website at www.housing.vic.gov.au.
Urgent repairs are defined to include "any fault or damage that makes the premises not secure" (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", above)
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 the VCAT for a Compliance Order. The tenant would require evidence to support their claim that the premises were not secure. Acceptable evidence may be a report from the police or a security expert.
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DURING THE TENANCY :: Last updated: Wed Jul 1st 2009