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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.
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.
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
Residential rental provider’s duty provisions
The RTA sets out a process to ensure compliance with RTA duties. That process consists of:
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 Possession for non-compliance).
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).
A breach notice must (s 208):
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.
When advising renters who have been issued with a breach notice, lawyers should consider:
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.
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.
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)).
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.
In hearing an application for a compliance order, the Tribunal is to have regard to the considerations set out in s 211 which include:
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).
When advising renters who have been issued with an application for a compliance order and preparing for a hearing, lawyers should consider:
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).
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:
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)).
Lawyers should be aware of the following:
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