Tenancy

Many new protections for renters have been introduced by the Residential Tenancies Amendment Act 2018 (Vic) and have been incorporated into both the Residential Tenancies Act 1997 (Vic) (‘RT Act’) and the accompanying regulations.

Rent auctions and advertisements

Since 29 March 2021, it has been illegal for a rental provider, or their agent, to hold rental auctions or to solicit or invite renters to offer to pay more rent than the amount advertised (s 30F(3) RT Act).

If a rental provider or agent is advertising or otherwise offering a property for rent, the rent must be a fixed amount (s 30F(1) RT Act); it is an offence not to do so. However, a rental provider or agent is allowed to put a sign near the premises – that advertises or offers the premises for rent – that does not state the amount of rent (s 30F(2)).

What potential renters cannot be asked

Rental providers, or their agents, are not allowed to ask renters about certain matters when they apply for a rental property.

Rental providers:

• cannot ask whether the renter has previously been involved in legal action or in a dispute with a rental provider (e.g. that involved going to VCAT);
• cannot ask questions about the renter’s bond history, including whether a claim has ever been made against their bond;
• cannot ask for credit card or bank statements that contain the renter’s daily transactions;
• cannot ask any information about the renter that could be discriminatory (under section 6 of the Equal Opportunity Act 2010 (Vic)) unless the renter has been given reasons in writing why the information is required (see ‘Discrimination’, below) (s 30C RT Act).

It is an offence to ask renters these questions; this can be reported to CAV.

Use of renters’ information

The rental provider or real estate agent can only use the personal information contained in a renter’s application form to assess their suitability as a renter, or for a legitimate reason under the RT Act. It is an offence to use a renter’s personal information for any other reason; this can be reported to CAV (s 30B RT Act).

Discrimination

It is illegal for a rental provider or real estate agent to discriminate against a renter on the grounds of certain ‘protected’ personal characteristics when they are applying for, occupying or leaving a property (s 30A RT Act). 

These personal characteristics, which are listed in the Equal Opportunity Act 2010 (Vic), include:

• age;
• disability, including physical, sensory or intellectual disability or mental illness;
• employment activity or industrial activity, including union activity;
• legal sexual activity or sexual orientation or erased homosexual conviction;
• gender identity or sex or intersex status;
• marital status;
• being a parent, carer, pregnant or breastfeeding;
• race;
• religious beliefs or political beliefs or activity;
• any relationship or connection with anyone with the above characteristics or who is assumed to have one of these personal characteristics.

From 29 March 2021, any application form for a rental property must include a prescribed statement about unlawful discrimination, including examples of the protected personal characteristics (s 29C RT Act).

It is an offence for a rental provider or agent to discriminate against renters with children (s 30(1) RT Act). However, the RT Act allows a rental provider or agent to refuse to allow children to live in a rental property if:

• the rental provider lives in the same property; or
• the property is by design or location unsuitable for children; or
• the government has provided the property exclusively for single people or childless couples (s 30 RT Act).

Pre-contract disclosures: What renters must be told before they sign

The matters that a rental provider must tell a renter before they enter into a rental agreement are:

• if they have engaged an agent to sell the premises or prepared a contract, or that there is a proposal to sell the premises;
• if they are not the owner, that they have the right to rent out the property;
• if they have a mortgage, whether any action is being taken by the lender to take possession of the property;
• if there is an embedded energy network (a joint supplier to all the apartments in a development), the network’s ABN, name and contact details, and tariffs, fees and charges (or where that information can be found);
• if there has been a homicide on the property in the last five years;
• if the property complies with rental minimum standards;
• if the rental provider has received a repair notice for mould or damp that is related to the building structure within the last three years (this requirement applies from 31 December 2021);
• the date of the most recent safety checks for gas, electrical safety and pool-barrier compliance, and any outstanding recommendations for work on the property’s gas or electricity;
• if the property is heritage listed;
• if the rental provider knows about:
  • contamination because of drug-trafficking or cultivation on the property within the last five years, 
  • asbestos found after inspection by a qualified inspector, 
  • a building or planning application lodged about the property, 
  • any notice, report or order about a building defect or safety concern;
• if there is a current building work dispute;
• if there is an owners corporation dispute.

The rental provider must also give the renter a copy of any owners corporation rules that apply to the property (s 30D RT Act, reg 16).

It is an offence for a rental provider to not make these disclosures before the renter signs the rental agreement; the offence can be reported to CAV (s 30D RT Act).

If a rental provider has seriously mislead or deceived a renter, causing them to enter into an agreement, the renter may be able to apply to end the agreement or seek compensation (see ss 30E, 472(1A) RT Act).

Minimum standards

There are rental minimum standards that must be met for properties being offered for rent from 29 March 2021 (see ‘Rental minimum standards’, below).

A residential rental agreement may be written or verbal. If an agreement has the character of a residential rental agreement, it is considered to be such an agreement, even if it is called something else (e.g. a licence or a commercial tenancy).

If a renter has a verbal agreement, or an agreement that is only partly in writing, they can apply to VCAT for an order that the rental provider enter into a written rental agreement with them (s 26 RT Act). If an agreement is made to renew a rental agreement and if the agreement is not in writing, a renter may also apply to VCAT (s 29B RT Act).

A renter must be given a copy of the rental agreement – signed by the renter and rental provider – within 14 days of the agreement being signed (s 29 RT Act). It is an offence to not give a renter a copy of the rental agreement.

However, if a renter signs a rental agreement and returns it to the rental provider, or their agent, but the rental provider does not sign it, the agreement is still valid without the signature, if the rental provider or agent:

• accepts a rent payment from the renter; or
• behaves as if the agreement has been signed (e.g. they give the renter a condition report or keys for the property) (s 29A RT Act).

Where a rental property is part of an owners corporation, rental providers must give renters a copy of the owners corporation rules (s 136 Owners Corporations Act 2006 (Vic)).

Terms of a rental agreement

If a rental agreement is in writing, it must be in the prescribed standard form from CAV (s 26 RT Act). It is an offence for a rental provider or agent to prepare a written rental agreement that does not use CAV’s standard form (s 26 RT Act).

Since 29 March 2021, it has been an offence for a rental provider or agent to include certain terms in a rental agreement are prohibited. A list of the prohibited terms is available on Tenants Victoria’s website.

The RT Act provides that a term of a rental agreement is invalid if it:

• is a prohibited term; or
• purports to exclude, restrict or modify or purports to have the effect of excluding, restricting or modifying the application of the RT Act (s 27(1)).

Invalid terms cannot be enforced by a rental provider (s 27 RT Act).

While the RT Act is the main source of rights and duties for rental providers and renters, the parties may agree to additional terms, provided these do not conflict with prescribed rental agreement and the RT Act. In some circumstances, it can be argued that terms are harsh and unconscionable (s 28 RT Act) or unfair (s 185 Australian Consumer Law and Fair Trading Act 2012 (Cth)).

If there are any disputes about the validity or fairness of any terms, the renter can apply to VCAT for an order declaring invalid, or asking VCAT to vary, a term of the rental agreement (ss 28, 472 RT Act).

Implied agreement

In circumstances where formal requirements and disclosures have not been met, or a written agreement has not been provided, the law still imposes a rental agreement if the renter has exclusive possession of a premises and pays some sort of rent.

The exact point when a tenancy comes into existence varies depending on the circumstances (e.g. a rental provider letting a renter take possession of a premises, or a renter collecting the keys).

The meaning of possession depends on the circumstances. If VCAT finds there is a rental agreement, the parties to the agreement are subject to the RT Act and to the rights and responsibilities in the Act.

Fixed-term and periodic agreements

A fixed-term rental agreement specifies the length of time the rental agreement will run (usually six or 12 months). Fixed-term agreements are usually in writing, although it is possible for an agreement to be oral.

Any rental agreement that does not specify a fixed term is a periodic rental agreement (s 3 RT Act). 

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 rental agreement continues on a periodic basis. The periodic agreement remains on the same terms as the original fixed-term agreement, unless varied by the parties (s 91Q RT Act).

Since 3 April 2019, the RT Act has allowed rental agreements for more than five years. There are two types of prescribed standard form rental agreements:

1. Form 1 rental agreement for five years or less (s 26(1) RT Act);
2. Form 2 rental agreement for more than five years (s 26(1A) RT Act).

Forms 1 and 2 are available on CAV’s website. It is important that prospective renters read the relevant form thoroughly before entering into a rental agreement.

Form 2 must be used for rental agreements that are longer than five years for the rights and duties associated with section 26(1A) of the RT Act to apply. Form 1 may be used for rental agreements that are longer than five years. Form 2 cannot be used for rental agreements that are less than five years.

A Form 2 rental agreement is significantly different from a Form 1 rental agreement. For example, a Form 2 rental agreement includes fixed rent increases, bond top ups between fixed-term periods (s 34A, 34B RT Act), more detailed arrangements for modifications, a greater restriction on terms (s 27A RT Act) and, most notably, a greater range of compliance orders in relation to the rental agreement (s 209AA RT Act). It is strongly recommended that parties obtain legal advice before entering into a Form 2 long-term rental agreement. 

This chapter does not extensively cover Form 2 rental agreements or when rental agreements under section 26(1A)(b)(i) of the RT Act are specifically regulated.

Also, if a rental agreement purports to be a ‘rent-to-buy’ scheme, see Part 1 Division 5 of the Sale of Land Act 1962 (Vic) and seek legal advice before entering into such an agreement.

Subletting is when a renter grants exclusive possession of all or part of a premises to another person. The original renter remains a renter, and effectively becomes the rental provider of the sub-renter.

The RT Act states that a renter must not assign or sub-let the whole or any part of a rented premises without the rental provider’s written consent (s 81 RT Act). Any assignment or sub-letting that is done without the rental provider’s consent is invalid and unenforceable (s 81 RT Act). Generally, consent cannot be retrospectively obtained. If the renter has or tries to assign or sub-let the premises by giving exclusive possession without the rental provider’s consent, the rental provider can give the renter a 14-day Notice to Vacate (s 91ZV RT Act) (see ‘Other 14-day Notices to Vacate’ in ‘Ending a tenancy: Rental provider wants renter to leave‘). Previously, a finding of subletting or assigning without consent under section 91ZV of the RT Act was final; however, now in light of the ‘reasonable and proportionate’ test, the risk of eviction may be reduced. This is a complex area of law, and renters who receive a Notice to Vacate on these grounds should seek legal advice.

While there are no definitive indications to distinguish a rental agreement and a licence, the act of hosting, providing services and dominion by a rental provider are substantive indicators against granting a rental agreement. However, each decision is made in consideration of its particular circumstances. (See Janusauskas v Director of Housing [2014] VSC 650 (17 December 2014); Swan v Uecker [2016] VSC 313 (10 June 2016).)

Assignment is different from subletting. Assignment is when a renter transfers their interest from themselves to another, or when a renter moves from being a sole renter to a co-renter.

Parties being assigned to a rental agreement should exercise caution, as they may inherit the liabilities (debts) of pre-existing renters (s 5 RT Act). Similarly, exiting renters should take evidence of the condition of the premises when they vacate. It is possible for rental providers or renters assigned to a property to make claims for indemnity. Note that VCAT generally does not hear disputes between renters (with the exception of family violence or claims under the Wrongs Act 1958 (Vic)).

A rental provider cannot unreasonably withhold their consent to the assignment or sub-letting of a rental agreement (s 81 RT Act). If a renter believes that their rental provider has unreasonably refused to consent, the renter may apply to VCAT for an order that the rental provider’s consent is not required (s 82).

The rental provider must not demand a fee for their consent, or refuse to consent because the renter has refused to pay a fee (s 84 RT Act). If the renter does pay such a fee, or the fee is thought to be excessive, the renter can apply to VCAT for an order that the rental provider refund the fee (see s 84(20); Jupp v Chambers (Residential Tenancies) [2010] VCAT 36 (15 January 2010)).

While the RT Act only requires the rental provider’s written consent, the Residential Tenancies Bond Authority’s (RTBA) Renter Transfer Form requires the consent of all existing and proposed renters and the rental provider. Parties should not vacate and allow a proposed renter to take over the property until they are certain the assignment has been processed, and the bond transferred. If there is delay by a rental provider, the renters may wish to apply to VCAT pursuant to section 82 of the RT Act.

No money is released from the bond held by the RTBA for assignments. Rather, the incoming renter repays the outgoing renter their share of the bond, in exchange for the outgoing renter transferring their interest in the bond held by the RTBA to the incoming renter’s name on the registered bond. It is advisable to consider a written agreement between incoming and outgoing renters about the bond, and to obtain the bond money from the incoming renter before they move in.

When the rental provider 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 RT Act).

Costs of preparing a rental agreement

A rental provider cannot make a renter pay any fees, costs or charges associated with the preparation of a rental agreement (s 51(1) RT Act). Rental agreements must be in the prescribed form (s 26). Renters are entitled to their own copy of the rental agreement (and copies of other documents that contain rental terms or are proposed to form part of the rental agreement) (s 29).

Application and holding deposits

If a rental provider or agent receives a payment from a renter in relation to a proposed rental agreement as a sign of good faith, the rental provider or agent must refund this payment:

• when the rental agreement is entered into, if this occurs no later than 14 days after the payment was received; or
• on the next business day after the 14 days, if the rental agreement is not entered into (s 50 RT Act).

Renters who pay money before signing an agreement should make notes or correspondence to confirm that this money is a holding deposit.

Commissions and inspection charges

The rental provider or agent is not entitled to ask for or receive from a renter a payment that is a premium, bonus, commission or key money in relation to the making, continuation or renewal of a rental agreement (s 51(1) RT Act).

A rental provider or agent is not entitled to ask for or receive from a renter under a proposed tenancy agreement a charge in relation to the inspection of the premises (s 51(2) RT Act). It is generally accepted that a request for a renter to provide a deposit to ensure the return of keys used for the purpose of inspection does not breach this provision.

Rent cards and direct debit facilities

A rental provider or agent is not entitled to charge the renter for the first issue of a rent payment card, or the establishment or use of direct-debit facilities (s 51(3) RT Act). This means that a renter cannot be charged for using a direct debit facilities. Renters are entitled to have access to at least one free method of paying rent (s 42(2)). Rental providers are required to permit renters to pay via electronic funds transfer or Centrepay (this is not applicable to public housing, see s 42(5), reg 19). An agreement that compels a renter into a contract with a third-party payment provider may be unlawful (s 27B, reg 11(e)).

Even where a new real estate agency has taken over the management of a property, a rental provider or agent cannot unilaterally change the terms of a rental agreement to require the renter to use a particular method of payment without consent or an order from VCAT.

Assignment fees

While a rental provider must not demand or receive a fee for consenting to an assignment, the RT Act does not prevent a rental provider from requiring the renter to bear any expenses reasonably incurred by the rental provider because of the assignment of a rental agreement (s 84(3) RT Act). This is usually called an ‘assignment fee’.

Usually, an assignment is done using the renter transfer form available from the RTBA. Therefore, it is arguable that there is little or no preparation of a written assignment of a rental agreement. Parties seeking to challenge unreasonable fees in connection with an assignment may apply to VCAT be compensated (s 84(2) RT Act). As a rough and non-legal estimate, assignments should not exceed $110 (GST inclusive) if there is evidence of other work done by an agent to facilitate the assignment.

Overview

A renter is only required to pay a bond if this is required by the agreement between the parties. All bonds must be lodged with the RTBA by the rental provider (s 406 RT Act). Once lodged, a bond can only be released with the renter’s consent, or by order from VCAT. Rental providers and agents cannot deduct money from bonds without the renter’s agreement.

A person must not demand or accept a bond that is greater than the amount of one month’s rent when the weekly rent does not exceed $900 (s 31 RT Act; reg 17). The rental provider may apply to VCAT for an order to increase the amount of bond that may be charged (ss 32, 33). There is no restriction on the amount of bond where the rent exceeds $900 per week.

A person must not demand or accept more than one bond for the continuous occupation of a premises (s 34 RT Act). However, if rent exceeds $900 per week, and a renter and rental provider enter a new rental agreement for the same premises, then an additional bond may be sought by the rental provider (s 34 RT Act).

The rental agreement should set out the date by which the payment of the bond is required. Renters who are occupying a premises, but who have not paid the bond in accordance with the agreement, may be given a 14-day Notice to Vacate (s 91ZN RT Act).

At the time the bond is paid, the rental provider must complete and sign a bond lodgment form (s 405 RT Act). The form must state if the Office of Housing has paid the bond on behalf of the renter. The rental provider must give the renter a copy of the signed form for the renter to sign (s 405). Failure to do so is an offence. Once the renter has signed the form, the rental provider must give them a copy (s 405). Failure to do so is an offence.

Renters should never sign a blank bond lodgment form or bond claim form, as this allows unscrupulous rental providers to provide false or misleading information to the RTBA. The rental provider then has 10 business days to lodge the bond and the completed form with the RTBA. Failure to do so is an offence (s 406 RT Act).

The RTBA has seven days after it receives the bond to give a receipt to the rental provider, renter and Office of Housing (if applicable) (s 407 RT Act). If the receipt has not been received within 15 days of paying the bond, the renter should contact the RTBA.

It is an offence for a renter to refuse to pay rent on the grounds that they intend to use the bond money as rent (s 428 RT Act).

If the rental provider fails to lodge the bond, even after the renter has notified the RTBA, the renter should apply to VCAT for an order compelling the rental provider to lodge the bond. The renter should also refer the matter to CAV (see www.consumer.vic.gov.au).

Long-term tenancy bonds

If a rental agreement is longer than five years and rent is $900 a week or less, then the bond cannot exceed one month’s rent (s 31 RT Act; reg 9 Residential Tenancies Regulations 2021 (Vic)). However, if a rental agreement is a long-term rental agreement under section 26(1A) of the RT Act, a bond ‘top up’ can be required it the rent increases (ss 34(2), 34A RT Act).

Bond top ups during a section 26(1A) rental agreement are dealt with in clause 8 of Form 2. Renters must be given 120 days’ notice of a bond top up; the notice must be in CAV’s rent increase form. A rental provider cannot demand a bond top up for the first five years of the rental agreement and the future rental agreement must have an unexpired fixed-term period of at least five years. Additional bonds must be lodged with the RTBA (s 34A RT Act).

Renters who believe the bond top up amount is excessive, or who wish to otherwise challenge the bond increase, can apply to VCAT. VCAT can make any order it considers to be appropriate if it is satisfied that not intervening would cause severe hardship to the renter. In making an order, VCAT can consider the financial circumstances of both the renter and the rental provider, the condition of the premises, whether either party has breached any terms of the agreement, and any other matter VCAT considers to be relevant (s 34B RT Act).

Specialist disability accommodation residents

Residents of specialist disability accommodation (SDA) are prohibited from paying a bond (s 498ZL(1) RT Act).

Condition report

Since 29 March 2021, rental providers have had to use the prescribed condition report form (s 35(1B) RT Act), regardless of whether a bond has been paid. This form requires (among other requirements) rental providers to list the date when the smoke alarms were last checked, and when electrical and safety checks and pool-barrier compliance checks were last completed.

A condition report that is signed by the rental provider and renter is conclusive evidence of the state of repair of the property, except for problems that could not have reasonably been discovered on inspection (e.g. the roof leaks when it rains) (s 36 RT Act).

It is common for renters and rental providers to disagree on the condition of a property. However, if a renter does not note the discrepancies on the condition report, then then report will be taken to be accurate unless there is compelling evidence to show otherwise.

A condition report given to a rental provider is taken to be written notice to the rental provider of the defects or outstanding repairs stated in the report (s 36 RT Act). This means that if repairs are not completed by the required time, the renter can apply to VCAT for an order requiring the repairs to be completed. This only applies to rental agreements entered into from 29 March 2021.

The rental provider must give the renter two paper copies (or one electronic copy) of a completed and signed condition report before the renter occupies the premises (s 35(1), 35(1A) RT Act). Within five business days of moving in, the renter must return one signed copy of the condition report to the rental provider (s 35(2)). The renter should keep a copy of the condition report in a safe place so they have it at the end of the rental agreement.

If a renter was not given a condition report before moving in, they can complete one themselves, using the CAV condition report form. The renter should give a copy of this report to the rental provider or agent within five business days of moving in (s 35(3) RT Act).

Renters should thoroughly inspect the property before moving in and note any problems (e.g. carpet stains) in detail on both copies of the condition report. If there is not enough room on the report to record all the disagreements, the renter may write ‘see attached’ in the appropriate section and attach a separate sheet.

Renters should pay special attention to the walls, floors and bench tops as these are areas commonly disputed.

While it is not required by the RT Act, the condition report states that renters should attach dated and labelled copies of their own photos to the condition report.

It is strongly recommended that renters take extensive photos of all parts of the property at the start and end of the rental agreement. Photos should be taken close-up and from a distance and should identify where the photo was taken. Photos should be uploaded to the Cloud for safekeeping. Renters may also wish to video themselves testing items such as heaters and cooking elements as these items are frequently disputed.

If a renter or rental provider thinks a condition report is inaccurate or incomplete, they can apply to VCAT for an order to amend it (s 35A RT Act). This must be done within 30 days of the rental agreement commencing (s 35A). This entitlement only applies to rental agreements entered into from 29 March 2021.

At the end of the rental agreement, the condition report helps determine liability if there is any dispute about damage or cleaning.

Within 10 days of the end of a rental agreement, the rental provider or agent must complete the ‘end of rental agreement condition report’ section on the same condition report the renter was given before they moved in (s 35(5) RT Act). The rental provider or agent must give the renter a reasonable opportunity to be at the property when they inspect it and complete the condition report (s 35(5)). The renter should go to the final inspection to ensure the rental provider or agent accurately fills in the condition report, and to gather any evidence they may need if they wish to dispute allegations made about the final condition of the rented premises.

Being listed on a tenancy database can prevent a person from obtaining private rental accommodation. Listings in a database are not made automatically, they can only be made in certain circumstances, and they must be removed after three years (s 439A RT Act).

The RT Act regulates:

• when a person may be listed in a database;
• when a listing must be removed;
• requirements prior to listing; and
• applications to VCAT regarding a listing.

When a listing may be made

Personal information must not be listed in a tenancy database unless the following two conditions are both satisfied:

1. the person was named as a renter in a rental agreement that has ended; and the person breached the rental agreement or certain provisions of the RT Act; and the person owes the rental provider an amount that is more than the bond; or a possession order was made for specific reasons (see section 439E of the RT Act for a list of the possession order types that can entitle a rental provider to list a renter on the database); and
2. the person has been given a copy of the information; and has been given 14 days to consider the information and object to it; and any objections have been considered (s 439F RT Act).

Even if these conditions are satisfied, a listing must be accurate, complete, unambiguous and relate only to the breach (s 439E(1)(d) RT Act). A listing can only remain in a database for three years (s 439K(1)).

A renter must not be listed in a database if the information relates to:

• a Notice to Vacate that VCAT has found to be invalid (s 439F(6)(b) RT Act); or
• a termination of an existing agreement and/or the creation of a new agreement where there is family violence (s 439F(6)(a)); or
• a breach that was the result of family violence or personal violence against the renter (s 439E(3)); or
• family or personal violence against the renter, and the renter has given the rental provider a written objection to the listing with the prescribed evidence (s 439F(7)).

Notification requirements

When a rental provider uses a tenancy database as part of their process of choosing a renter, the rental provider must disclose which tenancy databases they or their agent uses. This includes disclosing the database operator’s contact details and how a copy of the personal information listed in the database can be obtained (s 439C RT Act).

If an applicant is listed on a tenancy database, the rental provider must – as soon as possible but within seven days – notify the renter of the listing in writing, including the name of the database, the personal information listed, the name of the person who listed the renter, and how the listing may be amended or removed (s 439D RT Act).

Before making a listing, a rental provider must give the person a copy of the information (or take other reasonable steps to disclose the information to the person), allow 14 days for the person to consider the information and object to it, and consider any objections (s 439F RT Act).

Checking and amending a listing

If a person asks a rental provider or tenancy database operator, in writing, for information relating to them on a tenancy database, the rental provider or database operator must provide the information within 14 days (s 439I(1), 439I(2) RT Act). The rental provider or database operator is not entitled to charge a fee for the first request within any 12-month period (s 438I(4)(c)). Otherwise, a fee may be charged, but only if information is found and the fee must not be excessive (s 439I(3)).

If a rental provider becomes aware that information they have listed on a tenancy database is inaccurate, incomplete, ambiguous or out-of-date, or relates to an act or circumstance of family or personal violence, the rental provider must, within seven days, give written notice to the database operator to amend or remove the listing (s 439G). The database operator must amend or remove the listing within 14 days (s 439H).

A listing is considered to be out-of-date and must be removed if it arises from:

• a debt that was paid within three months of falling due (s 439A, 439G RT Act); or
• a possession order that has been revoked on an application for review (s 439A, 439G).

Applying to VCAT about a listing

A person may apply to VCAT for an order preventing, removing or amending a listing in a tenancy database (s 439L, 439M RT Act) on the following grounds:

1. non-compliance with notification requirements;
2. the matter is not a matter permitted to be listed;
3. the listing is inaccurate, incomplete, ambiguous or out-of-date;
4. the person is a victim survivor of family or personal violence;
5. the listing risks the person’s safety (this can only be used for applications to remove or amend a listing);
6. the listing is unjust.

Some of the grounds require VCAT to be satisfied of certain things before making an order:

• Family or personal violence: That a breach of the rental agreement by the person was a result of family violence or personal violence committed by another person (s 439M(1A) RT Act).
• Risk to safety: That the personal information poses a risk to the person’s personal safety because it is listed (s 439M(1B)).
• Unjust: That the listing is or would be unjust in all of the circumstances, having regard to:
  • the reason the information is listed, and 
  • the conduct of the renter, and 
  • whether there is a real likelihood that the listing would have a disproportionate impact on the ability of the renter to access future rental accommodation (s 439M(1C)).

If a renter applies to VCAT for an order to delete or create a listing in a tenancy database (under section 91V of the RT Act), they should also ask for an order that the rental provider not list information about them on a tenancy database (s 91W RT Act).

Tenancy databases and privacy laws

Tenancy databases are subject to the Australian Privacy Principles in the following ways:

• renters have a right to access data held about them;
• any data held must be complete, accurate and up-to-date; and
• renters must consent to information being passed on to third parties for ‘secondary purposes’.

An agent may ask a renter to sign a consent form to release their personal information to third parties, including database companies.

Alternatively, agents may think that they do not need a renter’s consent to pass on information to database operators because looking at a renter’s history to assess risk could be seen as a primary, not a secondary purpose.

Compliance processes

Protection under the Privacy Act 1988 (Cth) is only effective if people make complaints when their privacy is breached. Renters who think their personal information is being misused should contact the Australian Information Commissioner.

Complaints should be made in writing. To make a complaint, visit the ‘How do I make a complaint?’ page of the commissioner’s website, or call the enquiries line.

CAV keeps a database – formally known as the rental non-compliance register – that renters can search to see if a rental provider has had any orders made against them for breaching their duties, or if they have been convicted of an offence under the RT Act. Listings on the database are regulated by sections 439O–439U of the RT Act. Listings stay on the database for three years (s 439S). Renters should search the database when they are deciding whether to rent a property.

From 29 March 2021, rental providers must be listed on the database if:

• the rental provider has breached their duty under the RT Act and VCAT has made a compliance or compensation order that they must:
  • fix a breach, 
  • pay compensation, or 
  • not commit a breach again;
• the rental provider has committed an offence under the RT Act (s 439P (2)).

The database lists:

• the rental provider’s name;
• the address of the rented premises that the VCAT order or the offence relates to;
• the agent’s business name and business address, if the rental provider has an agent;
• the date of the VCAT order, conviction or finding of guilt;
• the relevant provision of the RT Act (s 439P(3)).

Notification requirements

Before making a listing on a tenancy database, CAV must:

• give the person a copy of the information (or take other reasonable steps to disclose the information to the person);
• allow 14 days for the person to consider the information and object to it; and 
• consider any objections (s 439R RT Act).

Application for removal or amendment

The rental provider can apply to VCAT for an order requiring CAV to amend or remove information on the tenancy database (s 439T RT Act).

If a rental provider has no agent they must, on or before the day the renter takes occupation, give the renter:

• 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 (s 66(2) RT Act).

If the rental provider has an agent acting for them, the rental provider must give the renter:

• written notice of the agent’s full name, address for the service of documents and phone 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 number for urgent repairs.

Failure to do so is an offence (s 66(3) RT Act). 

If this information changes, the rental provider must notify the renter within seven days. Failure to do so is an offence (s 66(4) RT Act).

At the beginning of a rental agreement, the rental provider must also give the renter:

• a copy of the signed rental agreement (s 29 RT Act);
• a key and/or security device (e.g. an entry fob) for every renter on the agreement (s 54A);
• if the renter paid a bond, a bond lodgment form, or an email from the RTBA with a bond lodgment confirmation request (s 405);
• two paper copies or one electronic copy of a completed condition report signed by the rental provider or agent (s 35);

CAV’s written statement of the rights and duties of rental providers and renters (s 66(1)); this may be sent electronically if the renter has consented to this (s 66(1A)).