Both renters and residential rental providers have duties under the Residential Tenancies Act 1997 (Vic) (RTA).
Some of the main duties of renters are:
Some of the main duties of residential rental providers are:
Similar but slightly different duties apply to in the context of rooming houses, caravan parks, Part 4A site parks and SDA enrolled dwellings. Reference should be made to Division 5 of Part 3, Division 5 of Part 4, Division 5 and 6 of Part 4A and Division 4 of Part 12A respectively.
Duties are important because they can be used to evict renters through notices to vacate for successive breaches) (s 91ZP) and compliance procedures (s 209), and to obtain a compensation order (ss 209, 210). See Compliance Procedures and Compensation for more information.
Homeless Law often assists clients to respond to allegations that suggest they are a nuisance or have interfered with the peace, comfort or privacy of occupiers of neighbouring premises. Homeless Law assists renters and residents to respond to these allegations to help to prevent their eviction.
This duty states a renter must not use the rented premises or permit their use in any way which causes a nuisance, or an interference with the reasonable peace, comfort or privacy of any occupier of neighbouring premises (s 60).
Note: A serious breach of the nuisance duty may entitle a residential rental provider to immediately issue a notice to vacate and/or apply for possession under the danger (s 91ZJ), or threats and intimidation (s 91ZK) provisions of the RTA.
Similar duties also exist under the Environment Protection Act 1970 (Vic) (EPA) which makes it an offence for a person to emit ‘unreasonable noise’, and under the Public Health and Wellbeing Act 2008 (Vic) which prohibits nuisance in the form of conduct that is dangerous to health or offensive (including through noise). In practice, it is understood that action will not be taken under the Public Health and Wellbeing Act unless something constitutes a genuine health risk.
We consider that the “nuisance” duty is not owed to the world at large and is confined to the concept of the tort of nuisance at common law (see for example Director of Housing v Dolheguy  VCAT 1007 at ).
Generally speaking, the tort of nuisance requires a substantial and unreasonable interference with rights in relation to or in connection with the use of the land of a particular individual. As such, nuisance requires a connection between the alleged conduct and the rights of neighbouring renters.
An occupier owes a duty to take reasonable care to prevent or abate potential nuisances on their land that are known, or ought to be known, and to prevent damage to neighbours which is foreseeable. A variety of circumstances can constitute nuisance, including noise, bright light and surveillance.
Section 60(2) refers to the “reasonable peace, comfort or privacy of any occupier of neighbouring premises”.
The criterion of reasonableness is a limit on the nature of activity which can be treated as a breach of s 60(2). It should be kept in mind when considering allegations that renters have created noise or engaged in other “interfering” conduct.
Homeless Law is aware of circumstances in which renters have been given breach notices for playing music, visitors attending premises (“slamming car doors” and speaking on the street) and noise generated by adolescent children and their friends. Aside from the proof of such allegations, the extent to which such activity is a normal part of family life should be considered when assessing the validity of an allegation of breach.
Generally, there are several factors which affect whether something is a nuisance or an unreasonable interference with the peace, comfort or privacy of neighbours.
You should consider and obtain instructions in relation to:
A renter has a duty to permit entry in accordance with the RTA (s 89). However, a renter can apply to VCAT for an order specifying or limiting when a residential rental provider (or its agent) has a right to enter the premises.
Homeless Law considers that the right of entry and duty to permit entry must always be balanced against the renter’s right to quiet enjoyment of the rented premises.
Note that the entry regimes for rooming houses, caravans and Part 4A site agreements are similar but differ slightly from the entry rules for residential rental properties. Refer to:
for the applicable rules for each form of housing.
There are two ways the residential rental provider may enter the rented premises:
A residential rental provider may only enter the rented premises if they have a valid reason as set out in s 86. For the amount of time required in relation to the grounds for entry under s 86, see s 85(b).
If the renter has consented not more than seven days before the entry, the residential rental provider or their agent may enter at any time agreed with the renter.
Otherwise, a residential rental provider may enter rented premises (for a relevant purpose) between the hours of 8:00am and 6:00pm on any day (except a public holiday), provided that, prior to entering the premises, written notice is given to the renter within the timeframe set out in s 85, and the notice satisfies the requirements in s 88.
If there is an acceptable reason for entry (as set out in s 86) the residential rental provider must give notice of their intention to enter the rented premises. Written notice must be provided in accordance with s 85(b). The following notice periods apply:
|Entry under s 86(1)(a) – rental inspections||48 hours’ notice|
|Entry under s 86(1)(b) – sale or security inspections||48 hours’ notice|
|Entry under s 86(1)(ab) – advertising images or videos||7 days’ notice|
|Entry under s 86(1)(c) – carry out a statutory duty||24 hours’ notice|
|Entry under s 86(1)(d) – valuations||7 days’ notice|
|Entry under s 86(1)(e) – reasonable grounds to believe renter has breached obligations||24 hours’ notice|
|Entry under s 86(1)(f) – 6 monthly inspection||7 days’ notice|
|Entry under s 86(1)(g) – family violence lease break/creation||24 hours’ notice|
The notice must be in writing (s 88(a)) and state the reason for entry (s 88(b)). The notice must be served on the renter either by post (s 86(c)(i)) or personally delivered to the renter between the hours of 8:00am and 6:00pm (s 86(c)(ii)).
The residential rental provider or their agent may enter the premises even if the time chosen is inconvenient for the renter or they are not home, as long as they have given the required notice.
In exercising a right of entry, a residential rental provider or their agent must ensure they:
For inspections under s 86(1)(b), the residential rental provider is also required to compensate the client for each sales inspection at the rate specified in the regulations.
Despite the statutory rights of entry, renters nonetheless have the right to quiet enjoyment under the Act (s 67).
This duty of the residential rental provider to provide the renter with quiet enjoyment can be breached even where the residential rental provider has a lawful reason to enter under the entry provisions. This means that when exercising rights of entry, the residential rental provider is still required to provide the renter with ‘quiet enjoyment’.
It can be difficult to determine when the right to quiet enjoyment has been breached. It is useful to think about whether the residential rental provider is being reasonable or fair to the renter.
If there are repeated inspections (even if for a permitted purpose), the residential rental provider may have breached its duty to afford the renter quiet enjoyment.
If a renter, resident or residential rental provider fails to carry out their duties under the RTA, the affected party can serve a breach of duty notice. This notice requests the recipient to fix the problem or pay compensation for any loss suffered because of their breach of duty (or both). See Compliance Procedures for more information.
It is important to assist/encourage clients to issue notices of breach because these documents may form the basis for applications for compensation and can be used as evidence. Often clients report advising the residential rental provider / rooming house operator of problems by phone, but have no documentary evidence of this contact for use at the Tribunal.
The Breach of Duty Notice is available online from the Consumer Affairs Victoria website.
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