‘It’s The Law’ – Residential tenancies

Residential tenancies

Most Wimmera residents will at some point in their lives be a renter or rental provider of a residential rental property. This article will summarise some of the key legal considerations relating to residential rental properties.

Prohibition on rental auctions

Demand for rental properties is quite high in some areas of the Wimmera which provides rental providers with a strong negotiating position. However, a rental provider or real estate agent who invites prospective renters to offer more than the advertised rent may be fined.

Information required to be provided to renter before entering into a rental agreement

A rental provider is required by law to disclose certain information about the rental property before a renter enters into a rental agreement including whether the rental provider intends to sell the property, whether a mortgagee is taking action to possess the property and some criminal history.

Rental providers must provide the prescribed condition report form. Renters should complete this carefully and note any problems (for example, damaged walls). If there is a dispute, and a renter has not detailed the problems on the condition report, then the report will be taken to be accurate unless there is compelling evidence to show otherwise.

Agreements

A rental agreement in writing must be in the form provided by Consumer Affairs Victoria (it is an offence for an agent or rental provider to use another agreement).

If a renter has a verbal agreement, or an agreement that is only partly in writing, they can apply to Victorian Civil and Administrative Tribunal (‘VCAT’) for an order that the rental provider enter into a written rental agreement with them.

Rent increases

A renter can challenge a rent increase at no cost if they consider the increase excessive.  There are restrictions on the frequency of rental increases and at least 60 days’ notice of a rent notice must be given.  A rent increase notice that is incorrectly completed will be considered invalid.

Discrimination

If a renter has suffered discrimination by a real estate agent or rental provider, they will likely have options available under the Residential Tenancies Act 1997 (VIC) and state and Commonwealth anti-discrimination legislation.

Bonds

All rental bonds must be lodged with the Residential Tenancies Bond Authority and can only be released with the renter’s consent, or by order from VCAT.

Ending a tenancy

A rental provider may only evict a renter if they have followed the strict process within the Residential Tenancies Act 1997 (VIC) including a correctly completed Notice to Vacate. If the renter fails to vacate by the termination date the renter cannot be forced to vacate and an application to VCAT or a possession order will be required.

There are many options for a renter to end an agreement, but they need to ensure they comply with the Residential Tenancies Act 1997 (VIC) requirements otherwise they may be liable for costs.

Further information

The Fitzroy Legal Services provides key information around residential tenancies through The Law Handbook available at https://fls.org.au/law-handbook/houses-communities-and-the-road/tenancy/tenancy-contacts/

The laws governing residential leases is complex and legal advice should be sought if you have an issue. Renters with an issue may benefit from visiting Tenants Victoria’s website (www.tenantsvic.org.au) or calling the renter advice line on 9416 2577.

Patrick Smith is the principal of O’Brien & Smith Lawyers.

This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien & Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.