The provisions in the Residential Tenancies Act 1997 (Vic) (RTA) are designed to protect victims of family violence from being forced into homelessness. Currently, family violence is the leading cause of homelessness in Victoria.
The following details the key sections to consider if family violence is relevant to your client:
For the purposes of this section, a family violence ‘order’ or ‘notice’ includes: family violence safety notice, intervention order, recognised non-local DVO or personal safety intervention orders. Throughout this section, we refer to family violence although these protections also apply where there is a personal safety intervention order in place.
Practice tip
There is no automatic right to representation at the Tribunal in the applications outlined on this page. 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. See further Where do I go? What do I say?.
In the RTA, family violence has the same meaning as in the Family Violence Protection Act 2008 (Vic) (FVPA) (s 3(1) of the RTA). Section 5 of the FVPA provides that family violence is behaviour by a person:
Section 5(2) of the FVPA sets out a non-exhaustive list of behaviour that constitutes family violence. Behaviour may constitute family violence even if it would not be a criminal offence (s 5(3)).
A renter experiencing family violence may reduce a fixed term residential rental; agreement by applying to the Tribunal to:
Note: If the perpetrator of family violence is not a party to the residential rental agreement, the renter cannot make an application under s 91V. However, the renter can make an application under s 91U.
See Reducing a fixed term lease for more information about applying for a reduction or termination under s 91U.
An application under s 91V has a number of protections for renters experiencing family violence such as in relation to cross-examination of victim-survivors of family violence (s 91Y) and timing of the hearing (s 91V(7)). The Tribunal may also determine the parties’ liability under the terminated agreement for bond, rent, damage and utilities: s 91X. Moreover, the termination of a residential rental agreement due to family violence does not give rise to a right to claim compensation for the early termination of the agreement: s 91X.
By contrast, the Tribunal has discretion to determine compensation (if any) in relation to an application for early termination due to hardship under s 91U: s 91U(3). (see Compensation and bond below).
An equivalent provision to s 91V is contained in s 142S for rooming house residents, s 206AG for caravan park residents and s 207M for Part 4A site tenants.
Under s 91V of the RTA, a person who “has been or is being subjected to family violence” or who is a protected person under a personal safety intervention order (irrespective of whether they are a party to the residential rental agreement) may apply to the Tribunal to:
The Tribunal can then make certain orders under s 91W.
A person can apply for an order to terminate or create a new residential rental agreement if they (s 91V(2)):
A person subject to family violence includes (but is not limited to) a protected person under a family violence safety notice, family violence intervention order or recognised non-local DVO): s 91V(3).
Applications may be made on behalf of a child by a parent or guardian of a child who lives at the rented premises with the child: s 91V(5).
Practice tip
Under s 91V, the perpetrator of family violence must be party to the existing residential rental agreement and the applicant must be a party to the existing residential rental agreement or residing in the rented premises.
As such, it is important for clients wishing to avail themselves of the remedies in ss 91V and 91W that a set of keys is retained until, and the residential rental agreement is not terminated before the Tribunal has heard the application.
Return of keys will generally result in termination by abandonment under s 91F RTA. If the perpetrator returns the keys where the client is not a party to the agreement) or both the perpetrator and the client return the keys (where the client is a party to the agreement), the remedies under s 91W will generally not be available.
See Mercuri v Jefferis (Residential Tenancies) [2013] VCAT 2141 at [11] for an example of where the tenant correctly held on to her keys for this reason (noting that this decision relates to previous provisions under the RTA).
The result of this is the lease would be treated as broken (see Reducing a fixed term lease), the application under s 91W would fail and the client, if party to the rental agreement, would be left without the protections in s 91X, including the protection from lease breaking costs (see Compensation below).
It is important that you clearly advise your client of this, as we have seen that rental providers and agents will apply significant pressure on clients to return keys if they become aware that an application under s 91U has been or will be made and consider that this could also happen in relation to applications under s 91V.
The Tribunal must hear an application within three business days of it being filed, or where that is not possible, at the next available hearing date after the three business day period (s 91V(7)).
To grant an order, the Tribunal must be satisfied that (s 91W):
In determining an application under s 91V(1), the Tribunal under s 91V(3) must also take into account:
There are protections in place regarding cross-examination of a victim-survivor of family violence by the perpetrator in a proceeding under s 91V (s 91Y).
As above, the Tribunal may make an order terminating the existing residential rental agreement or terminating the agreement and requiring that a new agreement be entered into with the specified persons.
Any new residential rental agreement must be on the same terms and conditions as the existing residential rental agreement (including rent), unless the Tribunal otherwise orders (s 91W(4)).
If the old residential rental agreement was a fixed term agreement, any new agreement’s term will not run longer than the remainder of that fixed term (s 91W(4)(b)).
If the residential rental agreement is terminated or terminated and a new agreement is entered into, the Tribunal may also make an order to (s 91W(7)):
If the Tribunal makes an order under s 91W, the Tribunal may determine the parties’ liability under the terminated residential rental agreement (see Compensation and bond below).
If the Tribunal creates a new tenancy under s 91W(1)(b) and s 91(1A)(b), the applicant may change the locks for rented premises (see Modifications below).
Find more general information regarding compensation.
If compensation is claimed by the Director of Housing (DOH) in relation to a public housing, under departmental policy no compensation should be claimed in relation to damage caused by the perpetrator of family violence (see Tenant Property Damage Operational Guidelines. See further Overview (DOH Housing Debts). Similar protections may apply in community housing provider guidelines. There are otherwise no specific family violence provisions in the compensation laws beyond those described below.
The determination of compensation for early termination will depend on the how the residential rental agreement ended.
If the Tribunal makes an order terminating or creating a new residential rental agreement because of family violence under s 91W (see Ending or creating a new residential rental agreement above):
The Tribunal “may” determine compensation (if any) for a reduction or termination of a fixed term residential rental agreement due to hardship under s 91U: s 91U(3).
When running a s 91U argument to reduce a fixed term rental agreement, lawyers should advocate strongly for the Tribunal not to make significant compensation orders against their client pursuant to s 91U(3) in circumstances of family violence and that if any compensation is ordered, it should be less than what would otherwise be ordered in a lease break compensation claim pursued under s 210.
See Ending a fixed term lease for more information.
The residential rental provider may apply under s 210 RTA for compensation for early termination if the renter has ended the residential rental agreement early without applying to the Tribunal for an order to do so.
See Compensation for more information, including the provisions applicable to compensation claims involving rooming houses, caravan parks and part 4A site tenants.
The Tribunal may apportion liability in respect of an application for repayment of the bond in respect of loss and damage (including unpaid rent) where the applicant is a victim of family violence.
Section 420A RTA applies where:
Practice Note
The applicant is not required to prove that a person has been convicted of an offence or is subject to a family violence notice or order.
The Tribunal may order that (s 420A(3)):
Where the Tribunal is hearing an application for the repayment of bond and the alleged perpetrator of the family violence is not a renter, the Tribunal may make an order that the victim-survivor is not liable for any loss or damage suffered by the residential rental provider (s 420B) if:
Residential rental providers may seek to evict a renter by issuing a notice to vacate (see Checking Notices to Vacate). Such a notice can be challenged if breach or act giving rise to the notice was caused by a family violence perpetrator.
A renter who has been given a notice to vacate may challenge this notice on the grounds that the act or breach giving rise to the notice was caused by a person who has subjected the applicant to family violence or personal violence (s 91ZZU). Equivalent provisions apply for rooming house residents (s 142ZZ), caravan park residents (s 206AZP) and Part 4A site tenants (s 207ZO).
A challenge under s 91ZZU must be made within 30 days after the notice is given. If the challenge is not made within 30 days, it is necessary to request that the Tribunal waive the 30 day requirement under s 126(2)(b) of the VCAT Act (see: South Port Community Housing Group Inc v Ng [2022] VCAT 614.
Challenges can be made in respect of the following notices to vacate:
The Tribunal must make an order that the notice to vacate is invalid if it is satisfied that the applicant has been subjected to family violence and the perpetrator caused the act or breach giving rise to the notice to vacate (s 91ZZV). The Tribunal does not have residual discretion to decline to make an order if it is satisfied of those two things.
In the alternative to filing a direct challenge either before or at a hearing, the renter can wait for the possession order hearing and challenge the notice to vacate and the application for a possession order on family violence grounds using the reasonable and proportionate test: see s 330A.
In deciding whether to make a possession order and applying the reasonable and proportionate test, the Tribunal must consider:
The reasonable and proportionate test therefore provides another avenue to defend a renter’s tenancy in circumstances where the renter does not want to pre-emptively challenge the notice to vacate, or has missed the opportunity to do so.
See Reasonable and proportionate test for more information.
The RTA contains special family violence protections against tenancy database ‘blacklisting’. The RTA prohibits residential rental providers and/or database operators listing information about a person on a tenancy database regarding:
*Note this appears to be a drafting error in the legislation and should refer to s 207ZO.
Residential rental provider or database operators must also not list personal information on a residential tenancy database if the renter has objected to the residential rental provider, agent or database operator listing the information because it relates to an act or circumstance of family or personal violence (s 439F(7)). The objection must be accompanied by documentary evidence of the kind prescribed by regulation 96 of the Regulations.
Under s 439G RTA, if the residential rental provider becomes aware that any information is:
they must, within 7 days, give written notice to the database operator to amend or remove the information.
Victim-survivors of family or personal violence may also apply to the Tribunal requiring a residential rental provider, agent, or database operator to remove, or not list personal information about them (s 439L(2A)). Before making an order under s 439M(1), the Tribunal must be satisfied that a breach of a residential rental agreement was a result of family violence or personal violence committed by another person.
Generally, renters must not make modifications to the rented premises without the residential rental provider’s consent. However, there are some exceptions, including for victim-survivors of family violence.
See s 115 for permitted modifications in rooming houses, s 171B for permitted modifications in caravan parks and s 206ZMB for permitted modifications in Part 4A site tenancies.
If the Tribunal creates a new tenancy under s 91W(1A)(b) (see above), the applicant may change any external door or window locks, including a lock in the master key system (s 70B(1)) for the rented premises
As soon as practicable after changing the locks, the applicant must give the residential rental provider and any other parties to the residential rental agreement, a key to the lock: s 70B(2). A residential rental provider or that person’s agent must not give a key to the person who was a party to the existing agreement, and is not a party to the new agreement: s 70B(3).
Renters can make some modifications to the rental premises, including family violence related safety modifications, without the residential rental provider’s consent: s 64(1). Those modifications are set out in regulation 26 of the Residential Tenancies Regulations 2021 (Vic) (the Regulations) and include:
*Not available for heritage listed properties
In addition to the modifications that renters can make without consent, there are certain modifications that residential rental providers are prohibited from unreasonably withholding consent to (s 64(1B)).
These include a number of family violence safety protection such as:
A residential rental provider may refuse consent if a valid notice to vacate has been given to the renter in connection with an imminent change of possession, use or ownership of the rented premises, or for modifications that, for example, (s 64(1C)):
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