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COVID-19 transitional provisions

Last updated: 31 Mar 2021

Summary of key Residential Tenancy Act Transitional Regulations

Termination orders made prior to 28 March 2021

From 29 March 2021, an application can be made for a possession order under Part 7 of the Residential Tenancies Act 1997(Vic) (RTA) if VCAT made a termination order before 28 March 2021 (or after 28 March 2021 if the matter is referred to VCAT at the end of the Residential Tenancies Dispute Resolution Scheme (RTDRS). In effect, the application is treated as if the termination order was a notice to vacate.

These applications for possession will need to be made within 30 days of the termination date on the VCAT order.

These applications are made under s 322(1) of the RTA  (reg 6 COVID-19 Omnibus (Emergency Measures)Transitional Regulations 2021 (Vic) (COVID-19 Transitional Regulations).

 

Eligible disputes to be referred to the Tribunal

From 29 March 2021, on and after the repeal of Part 16 RTA, an eligible dispute under the RTDRS that was not referred before repeal to:

  • the Chief Dispute Resolution Office (CDRO); or
  • Victorian Civil and Administrative Tribunal (Tribunal);

Is to be referred to  VCAT and dealt with as if Part 16 RTA and the Residential Tenancies (COVID-19) Emergency Measures Regulations 2020 (COVID-19 Regulations) are still in force (reg 7(2) COVID-19 Transitional Regulations).

This effectively means that if the renter has made an application to the RTDRS prior to 29 March 2021 which was accepted as an eligible dispute, it will now be heard by VCAT as if the COVID-19 Regulations still applied.

 

Eligible disputes not resolved by ADR

From 29 March 2021, on and after the repeal of Part 16 RTA, in relation to an eligible dispute under the RTDRS that was referred to the CDRO before repeal, the CDRO must give written notice to the parties and the Tribunal that the dispute has not been resolved by alternative dispute resolution (ADR) (reg 8(2) COVID-19 Transitional Regulations).

The eligible dispute is to be dealt with by the Tribunal as if Part 16 RTA and the COVID-19 regulations are still in force (reg 8(4) COVID-19 Transitional Regulations) however, Reg 8 COVID-19 Transitional Regulations does not make it clear whether the matter is automatically transferred to VCAT and listed for hearing, or whether the parties must then apply to VCAT.

 

New applications relating to DROs or written agreements

There are three new applications that can be made to VCAT:

  • An application to amend, cancel or extend time to comply with a dispute resolution order made by the Chief Dispute Resolution Officer under the RTDRS (Reg 9 COVID-19 Transitional Regulations)
  • An application by a party who alleges that the other party has not complied with a dispute resolution order made by the Chief Dispute Resolution Officer under the RTDRS (Reg 10 COVID-19 Transitional Regulations)
  • An application to amend, cancel or extend time to comply with a written agreement prepared under regulation 18(2) of the COVID-19 Regulations under the RTDRS (Reg 11 COVID-19 Transitional Regulations)

 

Liability for compensation or break lease fees

In certain circumstances, renters (tenants) and site tenants will not be liable for charges associated with a breach of fixed term agreement on certain applications for compensation made on or after 28 March 2021. This applies if, before 28 March 2021, a notice of intention to vacate was given by the renter to the rental provider (landlord) under Part 6 of the Act, certain other criteria apply (such as severe hardship), and the renter vacated the property after the termination date in the notice. (reg 12 COVID-19 Transitional Regulations)

For the purpose of the Tribunal determining any application for compensation by a residential rental provider under Reg 12 COVID-19 Transitional Regulations, s237 RTA as modified by Reg 34 of the COVID-19 Regulations and s545 RTA as modified by Reg 39 of the COVID-19 Regulations are to apply as if they are still in force.

 

COVID-19 reasons for breaches of duty or terms of tenancy agreements

On and after the repeal of s542 RTA, if a renter would have breached a term of a tenancy agreement or a duty provision but for s542 RTA during the period the section was in force, they are taken not to have breached the term or provision during that period if it was not reasonably practicable for the renter to comply with the term or provision because of a COVID-19 reason (reg 14 COVID-19 Transitional Regulations).

 

Listings on residential tenancy databases

From 29 March 2021, on or after the repeal of s549 RTA, a residential rental provider or database operator must not list personal information about a person in a residential tenancy database under s439E of the RTA, for the circumstances below:

  • the residential rental provider or database operator would, but for s596, be entitled to list the personal information about the person on a database under s439E (s596(1)(a)); and,
  • the renter has only breached the residential rental agreement because of non-payment of rent (s596(1)(b)); and
  • the person was unable to comply with the person’s obligations to pay rent because of a COVID-19 reason (s596(1)(c)

that occurred during the period s596 RTA was in operation (reg 19 COVID-19 Transitional Regulations).

 

Warrants of possession cannot be issued in some circumstances

A residential rental provider is not entitled to obtain a warrant of possession under Part 7 of the RTA and a warrant of possession must not be issued in accordance with s351 RTA, despite any direction on a possession order to which Reg 20 COVID-19 Transitional Regulations applies, if:

  • an application for a possession order was made under Part 7 RTA before 25 April 2020, and the possession order to which the application relates was made on or after 29 March 2020; or

a possession order was made on the basis of a notice to vacate before 29 March 2020, but VCAT made an order temporarily preventing the issue of a warrant of possession whilst the emergency measures were in effect, the residential rental provider will not be able to obtain a warrant of possession. (reg 20 COVID-19 Transitional Regulations)

  

Notices to vacate for rent arrears cannot be given in some circumstances

If a rental provider (landlord) has made an application to VCAT about a payment related dispute (such as rent reduction) which has been referred from Consumer Affairs Victoria under the Transitional Regulations, and VCAT hasn’t made a decision about it, the rental provider cannot give the renter a Notice to Vacate for rent arrears (reg 21 COVID-19 Transitional Regulations)

 

Renewed applications for possession orders made before 29 March 2020

If an application for possession based on a notice to vacate for rent arrears was made before 29 March 2020, and was adjourned by VCAT before that date, when the application is renewed, VCAT will make a decision as if the law in effect before 29 March 2020 applies.

In this context the reasonable and proportionate test set out in s 330A RTA does not apply. Sections 330 & 331 of the RTA will apply as in force immediately before the commencement of s 244 of the Residential Tenancies Amendment Act 2018 (RTAA).

(reg 5 Residential Tenancies (Residential Tenancies Amendment Act 2018) Transitional Regulations 2021 (RTAA Transitional Regulations))

 

Applications for possession order under s91ZM between 29 March 2021 and 26 October 2021

If:

  • an application for possession order was made under section 91ZM, 322, 323, 324, 324A or 498ZZE of the Act for the period commencing 29 March 2021 and ending on 26 October 2021, and
  • a dispute resolution order in respect of which the application relates was made under regulation 16(5) or (6) of the Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020 immediately before the repeal of Part 16 of the Act;

the Tribunal, in determining whether it is reasonable and proportionate to make a possession order under s330 or 498ZZHA of the RTA, must have regard to the DRO and any application to amend, cancel or extend the time for compliance with the DRO.

In addition, the Tribunal must determine any application made under regulation 9(2) of the COVID-19 Transitional Regulations 2021 before dealing with the application for possession.

(reg 6 RTAA Transitional Regulations)

 

Current VCAT applications to be heard under COVID provisions

Any VCAT application made under the COVID-19 Omnibus (Emergency Measures) Transitional Regulations 2021 that has not had a hearing yet, will also be dealt with as if the emergency measures still applied.

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