For the provisions of the RT Act 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 (law determined by court decisions over time) 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 (see Swan v Uecker  VSC 313 (10 June 2016)).
TIPS FOR PROTECTING YOUR RIGHTS
These are some general tips to help 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 (CAV) website at www.consumer.vic.gov.au.
• Download and use the “Rent Right” app.
• 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 by email to ensure you have a copy; after phone calls, send an email confirming the discussion.
• Attach photos of the issues in dispute to emails.
• Tenants should scan or photocopy tenancy documents.
• 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 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 RT Act apply to a tenancy unless it can be shown that an exclusion outlined in the RT Act applies. The onus of proving that the RT Act 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 RT Act applies to their occupation of a premises. This can require consideration of a number of factors.
Contact Tenants Victoria for more information (see “Contacts”).
A person who resides at a 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 RT Act.
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)).
Some disputes between parties not covered by the RT Act may be determined by VCAT’s Civil Division. For more information, visit www.vcat.vic.gov.au.
Co-tenants share the right of exclusive possession over the premises. At common law, 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 RT Act 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.
Under part 4AA of the Wrongs Act 1958 (Vic), it is possible for VCAT to apportion liability (generally not rent arrears) between tenants. However, in general, VCAT will not interfere with the joint and several liabilities of tenants unless there are exceptional circumstances (e.g. family violence).
Generally, the RT Act does not cover disputes between co-tenants. However, the RT Act does permit a co-tenant or occupant who is affected by family violence, or who has a personal safety intervention order, to apply to VCAT for an order varying the parties to a tenancy agreement (see “Application for reduction of a fixed-term agreement” and “Application for creation of a tenancy agreement”).
For further assistance, see Tenants Victoria’s family violence protection kit; available at www.tuv.org.au/family-violence-protection.
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 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”).
The use of Airbnb may constitute a licence in some circumstances and a tenancy in others. For more information about the risks of using Airbnb, see Swan v Uecker  VSC 313 (10 June 2016).
A person living in a rooming house is referred to in the RT Act 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 RT Act are different to the rights of tenants.
It can be difficult to determine whether someone is living in a rooming house, or whether they are a licensee or boarder. This depends on whether the premises can be defined as a rooming house according to the definition in the RT Act (s 3):
[A rooming house is] 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 RT Act (s 94) allows a rooming house resident to enter into a tenancy agreement with a rooming house owner. This can change their rights and duties under the RT Act. For more information about this, contact Tenants Victoria (www.tuv.org.au).
Rooming house operators must also hold a licence under the Rooming House Operators Act 2016 (Vic). Rooming houses must also be registered with the relevant local council under the Public Health and Wellbeing Act 2008 (Vic). They 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 (Vic) (see “Rooming houses”).
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 RT Act 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, whether or not immovable dwellings are also siutated there”.
“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) (“LT Act”) (pt V) rather than the RT Act. The LT Act has been repealed, but still applies to protected tenants (see sch 1 RT Act).
This is a complicated area of tenancy law. There are few protected tenants left in Victoria. Contact Tenants Victoria for more information.
The RT Act was amended in 2010 to include people renting in residential parks (called “site tenants”). These provisions commenced on 1 September 2011.
To be covered by the provisions (pt 4A RT Act):
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 tenants and landlords.
SDA residents must either be approved under the NDIS or be part of the Commonwealth Continuity of Support Program. Eligibility for NDIS participants is regulated by part 3 of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2016. To be eligible for SDA, the participant must show that despite assistance technologies, equipment and home modifications, they require SDA. Participants must either have an extreme functional impairment (EFI) (parts 3.5–3.6) or have very high support needs (VHSN) that require the participant to be in SDA (parts 3.7–3.8). Both EFI and VHSN have legal tests that are the subject of determination under the NDIS.
Between 1 July 2018 and 1 January 2019, many dwellings that were previously covered by part V of the Disability Act transitioned to become SDA dwellings (see sch 2 RT Act). Dwellings will continue to be covered by part 5 of the RT Act until (whichever occurs first):
a the SDA resident enters into a tenancy agreement with a SDA provider; or
b the SDA resident enters into a SDA residency agreement with a SDA provider; or
c the SDA resident works with the SDA provider to establish a SDA residency agreement; or
d six months after the commencement day.
SDA agreements must be in the prescribed form (s 498J) and there are extensive requirements that the agreements (and any noties served) must be explained in a language and mode of communication most likely to be understood (s 498E). At least seven days before entering into an agreement, a SDA provider must give the resident a prescribed information statement (s 198D). SDA residents or their guardian or administrator should seek legal advice about which agreement works best for them.
The RT Act excludes certain premises from being covered by the Act. These exclusions are not always clear cut and the RT Act will be assumed to apply to a tenancy agreement, unless it can be shown that it does not (s 507). Contact Tenants Victoria for more information (www.tuv.org.au). The main types of premises excluded from the RT Act are:
• Licensed premises
Premises or rooms that are part of a motel or premises licensed under the Liquor Control Reform Act 1998 (Vic) are not covered by the RT Act, subject to certain exceptions (s 20).
• Holiday homes
Premises ordinarily used for holiday purposes (s 10) are not covered by the RT Act.
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 RT Act.
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 RT Act (s 21(1)(a)). Premises formally affiliated with an educational institution are also excluded (s 21(1)(b)).
• Crisis accommodation
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 RT Act.
• Business premises
Premises let for the purpose of a trade, profession or business are not covered by the RT Act, even if a tenant lives in part of the building (s 8). However, if a tenant can show that the premises are used primarily for residential purposes then the RT Act applies (s 9).
A squatter is a person who occupies premises without the owner’s consent. The RT Act 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”).
A person who is occupying premises without consent may be subject to orders from VCAT (s 344) and may be charged with trespass. However, generally, civil orders for the recovery of possession of land tend to be the main focus in such disputes.
Legal advice about the possible offences and costs should be sought by people who are considering squatting or who are involved in disputes in relation to occupying premises without consent. Contact your local community legal centre for advice (see Legal services that can help).