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Compliance procedures

Last updated: 29 Mar 2021

 

Compliance procedures under the Residential Tenancies Act 1997 (Vic) (RTA) provide a means by which low level “anti-social behaviour” or breaches duty can lead to eviction of renters. Homeless Law is of the view that renter advocates and lawyers must be vigilant to ensure that renters are assisted and represented to respond to compliance measures, that the law is correctly applied and that compliance procedures set out in the RTA are followed.

Who has duties under the RTA?

Both residential rental providers and renters have duties under the RTA. Some of these duties are referred to and defined under the RTA as a ‘duty provision’.

Section 3(1) of the RTA defines a ‘duty provision’ in relation to rented premises to include:

Section 3 of the RTA also defines duty provisions in relation to rooming houses, caravan parks and a Part 4A site tenancies. The process of issuing a breach notice and applying for a compliance order under ss 208 and 209 below applies equally to rooming houses, caravan parks and Part 4A site tenancies. The applicable notice to vacate and notice of intention to vacate regime however differs between housing type.

When are compliance procedures available?

Compliance procedures are only available where “duty provisions” of the RTA have been breached.  Duty provisions related to rented premises are set out below.

Renter’s duty provisions

  • Renters must not cause nuisance or interference (s 60(1));
  • Renters must not permit visitors or otherwise permit the use of the rented premises to be used in a manner in a way that causes interference with the peace, comfort or privacy of any occupier of neighbouring premises (s 60(2)).
  • Renters and visitors must not damage premises or common areas (s 61);
  • Renters must keep and leave rented premises reasonably clean (s 63);
  • Renters must not remove, deactivate or interfere with the operation of a prescribed safety device unless it is reasonable in the circumstances to do so (s 63A);
  • Renters must not make certain modifications to rented premises without residential rental provider’s consent (s 64);
  • A renter who changes the locks must as soon as practicable give a key to the residential rental provider  (s 70(2));
  • Renters must not change a lock in a master key system without the residential rental provider’s consent (s 70(3));
  • A person protected under a family violence order (noting that this person does not have to be a party to a residential rental agreement) who changes an external door or window lock must give the residential rental provider the key and a copy of evidence of family violence (s 70A) (see also s 70B) ; and
  • Renters must permit entry to a person with a right of entry (s 89) .

Residential rental provider’s duty provisions

  • Residential rental providers must ensure that when the renter enters into occupation, the premises are vacant and in a reasonably clean condition (s 65);
  • Residential rental providers must ensure the premises comply with the rental minimum standards on or before the day on which the renter enters into occupation of the premises (s 65A);
  • Residential rental providers must provide certain information to renters (s 66) ;
  • Residential rental providers must take all reasonable steps to ensure the renter has quiet enjoyment of the premises (s 67);
  • Residential rental providers must maintain the premises in good repair and in a reasonably fit and suitable condition for occupation (s 68);
  • Residential rental provider must undertake safety-related repairs and maintenance activities set out in the residential rental agreement (s 68A);
  • Residential rental provider must keep and produce records of gas and electrical safety checks (s 68B);
  • Residential rental providers must ensure rating compliance for replacement appliances, fittings or fixtures provided by the residential rental provider that use or supply water, electricity or gas at the rented premises (s 69); and
  • Residential rental providers must secure external doors (except screen doors) with functioning deadlocks (s 70).

How do you seek compliance of these duties?

The RTA sets out a process to ensure compliance with RTA duties. That process consists of:

  1. Issuing a breach of duty notice (s 208) which requires the renter or residential rental provider to pay compensation or rectify the breach within a certain period of time.
  2. If the breach of duty notice is not complied with, applying to the Victorian Civil and Administrative Tribunal (Tribunal) for a compliance order (s 209).  If a compliance order is obtained and the respondent does not comply with it, the applicant can give the respondent a notice to vacate or intention to vacate, whichever applies (see ss 91ZO and 91ZE).
  3. Issuing a notice to vacate or a notice of intention to vacate. If a renter or residential rental provider has been issued with two breach of duty notices they have failed to comply with within the required time, then the renter or residential provider may be issued with a notice to vacate or a notice of intention to vacate respectively (ss 91ZP and 91ZF).  Alternatively, a renter may issue a notice of intention to vacate (s 91ZE) or a residential rental provider may issue a notice to vacate (s 91ZO) where the other party has not complied with a compliance order.  See possession for non-compliance.
  4. Apply for a possession order. A rental provider may apply to the Tribunal for a possession order if (a) the rental provider has provided the renter with a notice to vacate; or (b) the renter has given the rental provider a notice of intention to vacate and the renter has not delivered up vacant possession.

Issuing a Breach of duty notice

If a party to a residential rental agreement has breached a duty provision, the other party may issue them with a breach of duty notice (breach notice). A breach notice is an essential component of compliance procedures and is a condition precedent for (1) a compliance order and (2) a notice to vacate for successive breaches of duty (see Non-compliance with a VCAT order).

Breach notice forms are available from Consumer Affairs Victoria.

Note that the decision to issue a breach notice (or a subsequent notice to vacate) by a public authority such as the Director of Housing may be impacted by the Victorian Charter of Human Rights & Responsibilities Act 2006 (Vic) (see Negotiating using the Charter).

What must be contained in a breach notice?

A breach notice must (s 208):

  • be in writing;
  • be addressed to the person allegedly in breach;
  • be signed by person to whom the duty is owed or their agent;
  • specify the breach;
  • give details of the loss or damage caused by the breach;
  • require the person within a specified time to remedy the breach or compensate the person to whom the duty is owed;
  • state that a similar breach must not occur; and
  • specify what may occur if the notice is not complied with (i.e. application for compensation or compliance order, notice to vacate or notice of intention to vacate).

The notice can be served electronically.

In Smith v Director of Housing VSC 8915 of 2004 (unreported) the Supreme Court held that notices to vacate must contain a sufficient degree of detail to enable the renter to understand the facts alleged as the basis for terminating a tenancy. Smith does not strictly apply to the requirements of a breach notice (as against a notice to vacate). Nonetheless, it is at least arguable that the general principles enunciated in Smith are applicable to the level of detail required for a breach notice to be valid.

Checklist

When advising renters who have been issued with a breach notice, lawyers should consider:

  1. Whether the breach notice contains all information required by section 208 of the RTA and matches the prescribed form supplied by Consumer Affairs Victoria.
  2. Whether the allegation in the breach notice discloses a valid breach of duty under the RTA.
  3. Whether it is necessary to respond in writing to the alleged breach of duty. Although there is a prescribed form in which to complain about alleged breaches, there is no equivalent document with which to respond to such allegations. This is of concern given that breach notices form the basis for compliance orders and eviction proceedings. Accordingly, where a breach notice is invalid (ie the alleged conduct does not amount to a breach of duty) or where the tenant contests the allegations in the notice, these issues should be included in a written response to the person making the allegations.

 

Application for compliance order

Where a breach notice has not been complied with, a person may apply to the Tribunal for a compliance or compensation order: s 209 RTA.

Practice tip 

There is no automatic right to representation at the Tribunal in compliance applications. Accordingly, leave will be required under s 62(1)(c) Victorian Civil and Administrative Tribunal Act 1998 (Vic) for the applicant to be represented if the other party does not consent or is not represented by a professional advocate. Representation at compliance order hearings is particularly important given they can potentially lead to eviction at a later stage. See Representing parties at VCAT.

When can an application for a compliance order be made?

It is not possible to apply for a compliance order unless a breach notice has been issued and a person has failed to comply with that notice within the specified time (see ss 91ZP and 91ZF). Applications for compliance orders be accompanied by a copy of the relevant breach notice (Rule 8.07(6) of the Victorian Civil and Administrative Tribunal Rules 2018 (Vic)).

Practice tip 

The Tribunal is required to hear some applications under s 209 within 5 business days after the application is made (s 209A RTA), including applications relating to:

  • a breach of s 89 where a renter refuses entry for the purpose of showing the property to a prospective buyer or conducting an open inspection of the premises for prospective buyers.
  • certain applications relating to rooming house duties.

 

Responding to applications for compliance orders

In responding to applications for compliance orders, renter representatives should (in addition to considering the factual basis of the application) consider the way in which the alleged conduct relates to the RTA duty.

What does Tribunal consider when hearing the application?

In hearing an application for a compliance order, the Tribunal is to have regard to the considerations set out in s 211 which include:

  • whether the applicant has consented to the failure to comply with the duties under the residential rental agreement (s 211(b));
  • whether the applicant has already received compensation (s 211(c)) or whether compensation has been offered (s 211(f));
  • whether any reduction or refund of rent has been made to the applicant (s 211(d));
  • whether the applicant has taken action to mitigate the loss or damage (s 211(e));
  • whether the person from whom compensation is claimed has taken steps to repair the damage at their own expense (s 211(g)); and
  • whether the renter complied with their duty in s 72AA to give notice of damage in writing (s 211(h)).

In respect of an application for compensation for damage to rented premises, the Tribunal must take into account any depreciation of the damaged part of the property by having regard to the Uniform Capital Allowance or any other prescribed scale (s 211A).

Further the Tribunal must also consider the guidelines issued by the Director of Consumer Affairs Victoria (s 211B).

Checklist

When advising renters who have been issued with an application for a compliance order and preparing for a hearing, lawyers should consider:

  • Submissions in relation to entitlement to appear before the Tribunal in compliance order proceedings
  • Whether a breach notice has been issued
  • Whether the breach notice adequately discloses the conduct said to constitute a breach of duty (including acts, facts, matters and circumstances of incidents alleged)
  • Whether the application discloses details of the conduct which amounts to a further breach of duty (including acts, facts, matters and circumstances of conduct alleged to constitute a breach of duty)
  • Whether the allegations in the application and breach notice disclose a valid breach of duty under the RTA
  • Client instructions and evidence in relation to the alleged conduct

 

Compliance order hearings

Where the Tribunal considers that a person was (1) entitled to give a breach notice and (2) that the notice has not been complied with, the Tribunal may order a person to remedy the breach and refrain from committing a similar breach (s 212 RTA).

Do renter representatives have an automatic right of appearance at compliance order hearings?

Renter representatives do not have an automatic right of appearance at the Tribunal in relation to applications for compliance orders. As such renter advocates and lawyers may need to argue for the right to appear in accordance with s 62(1) of the VCAT Act. Relevant factors which may impact the right to appear include:

  • any special circumstances of the tenant;
  • the potential factual complexity of the matter;
  • The potential serious consequences of a compliance order for the renter, including its potential to form the basis of eviction proceedings.

What must a compliance order contain?

If a compliance order is made against a renter, the order must contain a warning that if the order is not complied with, the renter may be given a notice to vacate the rented premises (s 212(4)).

Checklist

Lawyers should be aware of the following:

  1. A compliance order cannot be made unless:
    1. A valid breach notice has been given to the renter;
    2. The Tribunal considers the rental provider was entitled to give the notice (i.e. whether the conduct was actually a breach of duty).
  2. The Tribunal should be assisted to develop a workable compliance order that does not exceed the terms of the relevant duty under the RTA. For example, where the Tribunal finds a renter has been creating noise and unreasonable interference with the reasonable peace comfort or privacy of their neighbours, the Tribunal compliance order should only limit the renter’s conduct to an extent that is reasonable.
  3. A compliance order MUST contain the warning specified in section 212(4) of the RTA.
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