Tenancy

For the provisions of the Residential Tenancies Act 1997 (Vic) (‘RT Act’) relating to residential rental agreements 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 renter.

‘Exclusive possession’ is a legal term relating to who has control of the premises, and usually means the right to exclude others (including the rental provider) from the rented premises (see Swan v Uecker [2016] VSC 313 (10 June 2016)).

A written agreement is not necessary for a rental agreement to exist. How each of the parties describe the relationship does not necessarily determine whether a person is a renter. An objective assessment is necessary for that.

In some circumstances, a rental agreement may exist over part of premises. However, for that to be so, it must be possible for the renter to have exclusive possession of that part of the premises.

The tenancy provisions of the RT Act apply to a rental agreement 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 making that assertion (s 507).

It is sometimes difficult to determine whether a person is a renter and whether the RT Act applies to their occupation of a premises. This can require consideration of several factors.

A person who lives 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 renter 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 a person is a renter or a licensee. This can require consideration of several factors, and in many cases, it remains open to VCAT to determine (see Janusauskas v Director of Housing [2014] VSC 650 (17 December 2014)).

Some disputes between parties that are not covered by the RT Act may be determined by VCAT. For more information, visit VCAT’s website.

Co-renters share the right of exclusive possession over a premises. At common law, co-renters are ‘jointly’ liable for their responsibilities under the rental agreement. This means that any one or all of the renters can be pursued for any loss or damage that the rental provider suffers, as a result of a breach of the rental agreement or the RT Act by any one of the renters.

For example, if three renters enter a rental agreement and one renter fails to pay their share of the rent, then all three renters could be evicted. The rental provider could also pursue any one of the renters for the unpaid rent, regardless of whether or not it was that particular renter who failed to pay. (See also Mamone v Brochmann (Residential Tenancies) [2020] VCAT 1009 (11 September 2020.)

Under Part 4AA of the Wrongs Act 1958 (Vic), it is possible for VCAT to apportion liability (generally not rent arrears) between renters. However, in general, VCAT does not interfere with the joint liabilities of renters unless there are exceptional circumstances (e.g. family violence).

Family violence

Generally, the RT Act does not cover disputes between co-renters. However, the RT Act does permit a co-renter or occupant who is affected by family violence, or who has a personal safety intervention order, to apply to VCAT for an order that ends the existing rental agreement or creates a new agreement in their name without the perpetrator (s 91V RT Act) (see ‘Family violence applications to VCAT to terminate or create new rental agreements’ in ‘Ending a tenancy: Renter wants to leave‘). These provisions also allow for the apportionment of outstanding liabilities, including rent arrears, if the application to end the agreement or create a new agreement is made.

For further assistance, see Tenants Victoria’s family violence protection tenancy kit; available on the Tenants Victoria website.

Sub-letting involves a renter creating a new rental agreement with another person. To be a sub-rental agreement, the sub-renter must be given exclusive possession of part or all of the premises. The original renter is called the ‘head renter’ and the second renter is called the ‘sub-renter’. The agreement between them is called a sub-rental agreement.

Generally, if a renter 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-renter of the renter.

Renters who are considering sub-letting should be aware that they would become the sub-renter’s rental provider. This means that they have the same legal obligations to the sub-renter as their rental provider has to them. These obligations include, for example, providing rent receipts and ensuring repairs are carried out.

To make sub-rental agreements, the written con-sent of the rental provider or an order from VCAT is required. To end these agreements, the termination provisions in the RT Act must be followed.

The use of Airbnb may constitute a licence in some circumstances and a rental agreement in others. For more information about the risks of using Airbnb, see Swan v Uecker [2016] VSC 313 (10 June 2016).

For more information about sub-letting, see ‘Subletting’ under ‘Starting a tenancy‘.

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 renters.

It can be difficult to determine whether someone is living in a rooming house, or whether they are a licensee or a 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, other than a SDA enrolled dwelling, in which there is one or more rooms available for occupancy on payment of rent:

(a) in which the total number of people who may occupy those rooms is not less than four; or

(b) in respect of which a declaration under section 19(2) or (3) is in force.

The RT Act (s 94) allows a rooming house resident to enter into a rental agreement but only in relation to a self-contained apartment. This may change their rights and duties under the RT Act (s 18).

Rooming house operators must 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).

To check if a rooming house is licensed, see https://registers.consumer.vic.gov.au/rhosearch.

To check if a rooming house is registered, see https://registers.consumer.vic.gov.au/rhrsearch.

Rooming houses are subject to the health and safety obligations set out in the Public Health and Wellbeing (Prescribed Accommodation) Regulations 2020 (Vic). Rooming houses are also subject to the minimum standards set out in the Residential Tenancies (Rooming House Standards) Regulations 2012 (Vic).

To be covered by the caravan park provisions, 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 RT Act).

The rights of caravan park residents under the RT Act differ from those of renters.

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 situated there’.

‘Protected renters’ are renters 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 renters (see sch 1 RT Act). This is a complicated area of tenancy law. There are few protected renters left in Victoria.

In 2010, the RT Act was amended to include people renting in residential parks (called ‘site renters’). These provisions commenced on 1 September 2011.

To be covered by Part 4A of the 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 renter must live in the dwelling and must own it (partly or wholly) and must be renting the site (which is usually a caravan park).

The rights and responsibilities of site renters and site owners are different to those of renters and rental providers.

There is other accommodation, which is referred to as ‘Supported Residential Services’ (SRS).

SRS are covered by the Supported Residential Services (Private Proprietors) Act 2010 (Vic) (‘SRS Act’) and not by the RT Act.

SRS must be registered and can be searched for on the Department of Health’s website (see https://www2.health.vic.gov.au/about/publications/ResearchAndReports/srs-register).

For more information about SRS, see https://www.publicadvocate.vic.gov.au/your-rights/in-your-home/supported-residential-services-srs.

The RT Act excludes certain premises from being covered by the RT Act. These exclusions are not always clear cut and the RT Act is assumed to apply, unless it can be shown that it does not (s 507).

If the RT Act does not apply, a person may still have rights under other legislation (e.g. the Australian Consumer Law and Fair Trading Act 2012 (Vic)), under contract, or in common law.

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.
• Farms: Premises that are let to a renter for the purposes of agricultural activity or ‘ordinarily’ or ‘for the time being’ used for agricultural grazing or farming (s 11) are not covered by the RT Act.
• Schools: 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 (s 22) are not covered by the RT Act. Temporary crisis accommodation is:
  • accommodation provided on a non-permanent and non-profit basis; and 
  • accommodation provided for people experiencing, or who are at risk of experiencing, homelessness, or for people who are subjected to, or at risk of being subjected to, family violence; and 
  • accommodation provided by a person or body that is funded to provide temporary crisis accommodation (reg 6 Residential Tenancies Regulations 2021 (Vic); reg 5 Residential Tenancies Amendment Regulations 2021 (Vic)).
• Business premises: Premises let for the purpose of a trade, profession or business are not covered by the RT Act, even if a renter lives in part of the building (s 8). However, if a renter can show that the premises are used primarily for residential purposes, then the RT Act applies (s 7).

Squatters

A squatter is a person who occupies a premises without the owner’s consent. The RT Act does not apply to squatters. Information about squatter’s rights is available on Victoria Legal Aid’s website (www.legalaid.vic.gov.au – search for ‘homelessness’).

A person who is occupying a 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.

People who are considering squatting – or who are involved in disputes in relation to occupying premises without consent – should seek legal advice about 450 Section 6: Houses, communities and the road 

squatting related offences. For advice, contact your local community legal centre (see Chapter 2.4: Legal services that can help).