Under section 91ZL(1) of the Residential Tenancies Act 1997 (Vic) (RTA), a residential rental provider may give a renter a notice to vacate rented premises if the premises:
Section 91ZL(2) provides that the notice must specify a termination date that is the date on which the notice is given or a later date.
Prior to the recent amendments, section 245 of the RTA (repealed) dealt with this section. However, there is little case law concerning section 245 so other references to the unfitness’ concept elsewhere in the RTA are helpful. Other RTA sections that reference the unfitness concept include:
Unfit for human habitation can include unfitness for any reason, not just structural or defect. It may be unfit even though it is physically possible to live in the premises, if the ‘state of them is such that there is a risk of injury to the body or health of a person living in them’; s 226 of the RTA (repealed), from Annotated RTA.
In the leading UK case of Summers v Salford Corporation [1943] AC 283 at 289, a window in a house had become jammed due to a broken sash cord that was not repaired. The window eventually injured the tenant when it fell on her hand while she was cleaning. The House of Lords held that the property was ‘unfit for human habitation’ because following the breaking of the first sash cord, it was only a matter of time before the second cord broke. Such a break would likely cause damage in the ordinary use of the house, and would otherwise render the window unusable.
In Handler v Casey [2019] VSC 599, the Supreme Court of Victoria (Cameron J) considered section 245 of the RTA (repealed), and observed that whether premises are ‘unfit’ is determined by reference to whether they are ‘dangerous when in ordinary use’. Her Honour summarised the applicable principles as follows (emphasis added):
[77] “There is little authority on the scope and application of s 245. The Appellant directed the Court to the decision of VCAT in Price v Johnson which, although not binding upon me, provides a useful starting point. In that case Senior Member Steele dismissed an application for a possession order which had been brought by the landlord to enforce a notice to vacate on the basis of section 245. The notice to vacate had been issued as there was no firewall between the premises and an adjacent unit.
[78] Considering the meaning of ‘unfit for human habitation’, Member Steele referred to the decisions of the House of Lords in Summers v Salford Corporation of the Supreme Court of Queensland Gray v Queensland Housing Commission and of the High Court in Jones v Bartlett, to which I will return below. The Member observed by reference to those cases that the question of whether premises were unfit for human habitation turned upon consideration of whether they are dangerous when in ordinary use.
[79] Member Steele considered that a house fire was not to be expected from ordinary use of the premises. As there was no risk of immediate danger, the absence of a fire wall was not considered sufficient to render the premises unfit for human habitation and justify the notice to vacate.”
In applying the ‘dangerous in ordinary use’ concept, Cameron J found that premises contaminated by methamphetamine residue fell within the meaning of ‘unfit for human habitation’. This was because a danger was posed to the occupants ‘which would naturally flow from their ordinary use’, that being by ‘purely standing in there and breathing’, the occupants were being exposed to methamphetamine residue far exceeding safe levels. The safe levels were determined by reference to relevant guidelines, which the Court accepted as setting an ‘objective standard’ regarding habitability (at [87]).
More recently, in Director of Housing v ZZ (Residential Tenancies) [2020] VCAT 317, the Tribunal adopted the reasoning in Summers and found that a premises being used as a clandestine drug laboratory was unfit for human habitation pursuant to s 244 of the RTA (repealed). It was held by the Tribunal that chemicals found on the internal surfaces of the premises were designed to transform brain function and were as such, a risk to both physical and psychiatric health.
However, consider the High Court’s observations in Jones v Bartlett (2000) 205 CLR 166, 217 which emphasise the importance of ‘ordinary’ use in limiting the scope of ‘unfitness’ (emphasis added):
[178] “The thread running through these cases is that a dangerous defect will, or may, cause injury to persons using the premises in an ordinary way. They are defects in the sense that they are more than dangerous; they are dangerous in a way not expected by their normal use. Many domestic items might be said to be dangerous: gas ovens, caged fans, hard floors, electrical circuits and panes of glass may cause serious or even fatal injuries … However, they are ordinarily only dangerous if misused. They will only be defective if they are dangerous when being used in a regular fashion and ordinarily would not be dangerous when so used.”
There is little commentary considering the meaning of ‘destroyed totally’ or ‘rendered unsafe’ as courts have often tended to gloss over this limb when considering the ‘unfitness’ limb.
However, in the decision of Alexopoulos v Morley (Residential Tenancies) [2015] VCAT 56, the Tribunal’s findings centred on this second limb. The case concerned a tenant giving notice of intention to vacate (under the section 238 of the RTA (repealed), like current section 91ZD, which is considered further below).
The tenants had advised the agent of several maintenance requests concerning their six-bedroom house, including a front window that would not close, a broken fence, broken dishwasher, broken fan and a mouldy smell emanating from the plumbing. After the requests were not acted upon, dogs came onto the property and into the house on two instances, frightening the tenants’ eight-year-old child. Accordingly, the tenants advised that they would give notice to terminate ‘as the fences were missing and dogs were coming on to the property. The Tribunal held that:
[32] “Although the tenants here believe that the rented premises had become unsafe — essentially because of the gap in the back fence and also the inability to close/lock a front window — in my view these deficiencies do not amount to such degree of “destruction“ as to attract the operation of s 238. These deficiencies do not in my view bring the premises within the description “have been destroyed….to such an extent as to be rendered unsafe“ in s 238.”
Section 91ZL lists several formal requirements a notice to vacate must comply with in order to be valid. These are detailed on Checking a Notice to Vacate.
In Jafarpourasr v Tancevski [2018] VSC 497 at [50] (Daly AsJ), the Supreme Court held that immediate notices to vacate alleging misconduct such as malicious damage must contain a greater level of particularity than notices to vacate with longer notice periods. ‘Danger’ notices should therefore at a minimum provide details of the times, dates, incidents and affected individuals implicated in the allegations of danger.
Notices to vacate for unfitness for human habitation or unsafety are ‘immediate’ notices which allow a residential rental provider to immediately apply to the Tribunal for possession of the premises: s 91ZL(2). They therefore provide a swift process by which a renter may be evicted almost immediately from their home.
The Tribunal can only make a possession order if (s 330(1)):
In applying the reasonable and proportionate test, the Tribunal must consider (amongst other things) whether any other order or course of action is reasonably available instead of making a possession order: s 330A(h). In making that assessment, it is important to consider the Tribunal’s power under s 332A in serious applications to dismiss the possession order application and make a compliance order on its own motion if it considers it reasonable and proportionate and appropriate to do so. The compliance order may require the renter to remedy the breach and to refrain from committing a similar breach. See Compliance Procedures. Care should be taken in arguing this as a reasonable alternative to eviction as it may create difficulties for a renter at a later stage if they should breach the compliance order.
Practice tip
If you make an argument that a compliance order would be a more reasonable course of action, you should ensure that any compliance order that you submit would be appropriate is framed as narrowly as possible to minimise the risk of future eviction.
The reasonable and proportionate test in s 330A was introduced recently and therefore there is limited case law available on its operation. However, an equivalent test applied under the COVID-19 temporary tenancy laws. The following cases address the application of the COVID-19 reasonable and proportionate test for eviction for reasons other than the property being unfit for human habitation:
For more information see the Checking notices to vacate, When a rental provider ends the rental and Reasonable and proportionate test
As discussed above, the notice to vacate must provide sufficient detail of the reason for the issuing of the notice.
It would also be expected that prior to the possession order hearing, a renter would be provided with details of any evidence to be relied upon by the residential rental provider in support of its application for possession. You may wish to consider requesting an adjournment if the other party is not forthcoming with the evidence they intend to rely on during the hearing, or applying for a directions hearing under s 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). Section 80 empowers the Tribunal to give directions requiring a party to produce a document or provide information.
Section 104 of the VCAT Act give powers to subpoena parties to provide evidence under oath.
It is important to note that s 105 VCAT Act has been modified by cl 74 of Schedule 1 VCAT Act such that evidence before the Tribunal in a proceeding under the RTA cannot be used in criminal proceedings except for an offence against the VCAT Act, the RTA or for perjury.
For most bases for eviction, the Tribunal has the power to postpone the issuing of a warrant for possession after a possession order is made if satisfied that the renter would suffer hardship if the issue of the warrant were not postponed, and that hardship would exceed the residential rental provider’s: s 352.
However this power does not exist where the renter is evicted for unfitness for human habitation or unsafety: see s 352(3)(a)(i). The residential rental provider will be able to request a warrant of possession immediately.
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