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Repairs

Last updated: 29 Mar 2021

Overview

Residential rental providers have a duty to ensure the rented premises are in good repair and in a reasonably fit and suitable condition for occupation: s 68 Residential Tenancies Act 1998 (Vic) (RTA).

This duty applies regardless of:

  • whether the renter was aware of any disrepair before occupying the rented premises;
  • the amount of rent paid; or
  • the age and character of the rented premises;

If the residential rental provider owns or controls common areas relating to rented premises (such as stairwells), the provider must take reasonable steps to ensure these areas are also maintained in good repair: s 68(3) RTA.

The residential rental provider is not in breach of their duty if the damage was caused by the renter’s failure to ensure that care was taken to avoid damaging the premises and the residential rental provider gave the renter a notice under s 78 RTA requiring them to repair the damage: s 68(2) RTA.

The renter must notify the residential rental provider in writing as soon as practicable after becoming aware of damage to the rented premises, or breakdown of facilities, fixtures, furniture or equipment supplied by the residential rental provider: ss 62 and 72AA RTA.

Equivalent provisions apply for rooming houses (ss 116, 120 RTA), caravan parks (ss 173, 180 RTA, and Part 4A site parks (ss 206ZO, 206ZW RTA.

This section of Homeless Law in Practice considers the way in which repair issues in the rented premises can be resolved. It is important to remember that clients who are at risk of homelessness may:

  • be concerned about raising repair issues as they fear retaliation by the residential rental provider and potential eviction; and/or
  • not be able to pay for urgent repairs to be carried out and will therefore need assistance to apply to the Tribunal.

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?.

How are repairs dealt with under the RTA?

If rented premises have a repair issue, there are a number of pathways available to renters to have this matter resolved. How they will be dealt with under the RTA depends on whether or not they are urgent repairs under the RTA.

Urgent repairs

Urgent repairs are defined in s 3 RTA and include serious problems such as a burst water service, flooding, sewerage problems, gas leaks, dangerous electrical faults, a failure or breakdown of any cooling appliance/service or safety-related devices and a failure to comply with any rental minimum standards, among other things.

In the case of urgent repairs, a renter may arrange and pay for repairs where they have taken reasonable steps to arrange for the residential rental provider to carry out the repairs immediately, and the provider has taken no action: s 72.

The Director of Consumer Affairs Victoria has released a guideline under s 486 on the interpretation of immediately. What classifies as ‘immediately’ is considered on a factual basis dependant on the following factors:

    1. The urgency of the repair.
    2. The complexity or significance of the repair.

In this circumstance, the renter must give the residential rental provider 7 days written notice of the repairs carried out and the cost. The provider must reimburse the renter for the reasonable cost of those repairs (up to $2500 inc GST) within 7 days of receiving the notice: s 72(2) RTA; Residential Tenancies Regulations 2021 (Vic) (Regulations) reg 32.

Important

Many renters will be unable to pay for repairs. In these circumstances a renter may apply directly to the Tribunal for an urgent hearing in respect of the repairs under s 73.

The Tribunal must hear an application within two days of it being made, and may make orders requiring the residential rental provider or rooming house operator to carry out specified urgent repairs for any of the following reasons:

  • the renter cannot meet the cost of the repairs;
  • the repairs cost more than $2,500 (including GST); or
  • the residential rental provider refuses to pay for the cost of the repairs if carried out by the renter.

Equivalent provisions apply to rooming houses (ss 129, 130), caravan parks and caravans (ss 188, 189A) and Part 4A sites (ss 206ZZAA206ZZAB). Specialist disability accommodation (SDA) providers are also under a duty to ensure that an SDA enrolled dwelling is maintained in good repair (s 498M(1)(b)). Residents of SDA enrolled dwellings cannot arrange for urgent repairs themselves, but can make an urgent application to the Tribunal for repairs (s 498P). 

Non-urgent repairs

Non urgent repairs are repairs which are not defined as urgent.

A renter should advise the residential rental provider in writing of non-urgent repair issues: s 62, s 72AA.

The request can be made using the applicable Consumer Affairs Victoria’s form.

Application to Director

Where the renter has notified the residential rental provider that repairs are required to the rented premises and the residential rental provider has not carried out the repair work within 14 days of the notice, the renter may make a written application to the Director of Consumer Affairs Victoria (Director) to investigate the need for non-urgent repairs: s 74. A copy of the notice previously provided to the residential rental provider should be attached to this application.

The Director may:

  • investigate;
  • negotiate arrangements for carrying of the repairs if satisfied that the residential rental provider has breached their duty to maintain the rented premises in good repair; and
  • issue a report stating that the duty has been breached and directing the provider to do anything in order to comply with the duty.

Residents of rooming houses (s 131 RTA) and caravan parks (ss 190 and 190A RTA), Part 4A site tenants (s 206ZZAC) and SDA residents (s 498Q) may also make an application to the Director to investigate non-urgent repairs.

Application to Tribunal

After receiving a report from the Director under s 74, the renter may apply to the Tribunal (s 75) for an order requiring the residential rental provider to:

  • carry out specified repairs, where the renter has provided written notice of the repairs, and the provider has not carried out the repairs within 14 days of receiving the notice; or
  • comply with a report issued by the Director under s 74.

The Tribunal must hear the application within seven days of it being made. In considering the application under s 75(4) RTA, the Tribunal must consider whether:

  • the repairs are needed because of an act or omission of the renter, the renter’s non-compliance of the provision of the residential rental agreement, or a breach of the renter’s duty not to damage the rented premises;
  • the residential rental provider (or their agent) was notified of the repairs and given a reasonable opportunity to carry out the repairs; and
  • the renter has provided documentary evidence of the repairs.

 

The renter cannot apply to the Tribunal for a compliance order under s 212 that is the subject of a non-urgent repairs application.

Equivalent application provisions apply for residents of rooming houses (s 132 RTA) and caravan parks (ss 191 and 191A RTA), Part 4A site tenants (s 206ZZAD RTA) and SDA residents (s 498Q).

Repairs & compensation

Compensation procedures are dealt with more comprehensively on the Compensation page. However, it is worth noting at this point that compensation can be a useful way of compelling the residential rental provider to complete repair issues.

In order to claim compensation it is generally necessary to serve a breach of duty notice on the residential rental provider: s 208 RTA for failure to maintain the premises in good repair and in a reasonably fit and suitable condition for occupation (i.e. breach of the duty in s 68). If the residential rental provider does not comply with the notice the renter can then apply to the Tribunal for compensation or a compliance order: s 209 or seek to have rent paid into the rent special account: s 77.

Section 209AAB also allows a renter or resident to apply to the Tribunal for a compensation or compliance order under s 212 where the residential rental provider has not reimbursed the renter or resident for urgent repairs, where the renter gave written notice to the provider of the repairs and their cost. For further information see Compensation.

Damage caused by renter

The renter has a duty to not intentionally or negligently cause damage to the rented premises, excluding fair wear and tear: s 61 RTA.

Where the renter breaches this duty and causes damage to the rented premises, the residential rental provider may give a repair notice to the renter detailing the nature of the damage and that the damage was caused by the renter failing to take care to avoid damaging the premises: s 78 RTA. The repair notice cannot be given if the provider has already given a breach of duty notice in respect of the damage: s 78(1)(b) RTA.

The notice may require the renter to repair the damage within 14 days in a tradesman-like manner. If the renter fails to do so within that period, the provider may repair the damage at the renter’s expense: ss 78 and 79.

Alternatively, the residential rental provider may undertake the repairs and the renter will be liable for the reasonable cost of those repairs: ss 78(2)(c)(i) and 79. The renter must reimburse the provider within 14 days of receiving particulars of those costs: s 79(3). This period may be extended where the renter:

  • is experiencing hardship and gives written notice to the residential rental provider that they require an additional 14 days in which to pay the reimbursement (s 79(6) RTA) or
  • seeks an extension of the reimbursement period by application to the Tribunal (s 79(5)).

If the renter does not comply with a repair notice the residential rental provider may also apply to the Tribunal for a compliance order under s 212 RTA.

The residential rental provider does not breach their duty to maintain the premises if the damage is caused by the renter’s failure to take care to avoid such damage, where the provider gives the renter a notice requiring the renter to repair the damage: s 68(2) RTA.

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