Both landlords and tenants have obligations to one another in Victoria under the Residential Tenancies Act 1997 (Vic) (the Act).
The duties owed by one to the other are not the same and are only those defined as a duty provision under the Act. Accordingly, landlords are under certain duties which are owed to tenants; and the tenants owe landlord certain separate duties.
What duties do tenants have to the landlord?
A tenant in Victoria:
- must not cause nuisance or interference;
- must not damage, or allow a visitor, to damage the property or common areas;
- must keep and leave the property in a reasonably state of cleanliness;
- must not alter or interference with prescribed safety device; and
- must not, unless consent is given or it is a prescribed modification, modify the property.
What duties do landlords have to tenants?
A landlord in Victoria:
- must ensure that on the day the tenant enters into occupation, the property is vacant and reasonably clean.
- must ensure that the property meets the rental minimum standards
- must take all reasonable steps to ensure that the rent is provided with quiet enjoyment;
- must maintain the property in good repair and that it is reasonably fit and suitable for occupation;
- must undertake safety-related repairs and maintenance;
- must keep and produce records of gas and electrical safety checks as prescribed;
- must ensure rating compliance for replacement appliances; and
- must ensure that appropriate locks are fitted to specified doors and windows.
Help! What do I do if my tenant or landlord have breached a duty?
If you believe your tenant or landlord have breached a duty provision under the Act, the first step is to notify them of that breach in writing. There is no prescribed form which must be used when giving a breach notice, however, Consumer Affairs Victoria has published an appropriate form which can be used for most purposes by either a landlord or tenant.
In most cases, if you are a landlord, this can and will be completed by your agent.
What must the notice specify?
The purpose of the notice is to bring to the attention to either your tenant or landlord that they have breached a duty provision and that they are required to remedy it within a specified time frame. Accordingly, it must contain sufficient details of the breach in question, so that the person who is given the breach notice is able to sufficiently understand how they have breached the duty in question, and what remedial action to take to remedy it.
If the breach has resulted in loss or damage, the notice can also request compensation from the person who breached the provision and which caused the loss or damage.
Further, it must state that if the notice is not complied with, an application to VCAT (or the Magistrates Court in certain circumstances), may be made; or that a notice of intention to vacate, or a notice to vacate, may be given.
Finally, it must be signed by or on behalf of the person giving the notice, and served in accordance with the Act.
What can I do if they have not complied with the breach notice?
If your landlord or tenant has not complied with a valid breach notice, depending on the particular type of breach and its circumstances, amongst other things, you may be able to do the following:
- Apply to the Tribunal (of the Magistrates Court in certain circumstances) for a compensation or compliance order un section 209 of the Act; or
- Issue the landlord with a notice of intention to vacate; or
- Issue the tenant with a notice to vacate.
What kind of orders can the tribunal make?
The Victorian Civil and Administrative Tribunal can make a wide array of orders upon an application for a compliance or compensation order in relation to a breach of duty provision under the Act. For example, VCAT, if satisfied that the person was entitled to give the notice and that it was not complied with, may make any or all of the following types of orders:
- an order that the person in breach must remedy the breach;
- an order that the person in breach must pay compensation; or
- an order that the person in breach must refrain from committing a similar breach.
Do you need advice in relation to a breach of duty under the Residential Tenancies Act in Victoria?
At Allen Law, we regularly advise tenants, landlords and property agents about all aspects of residential tenancy law; from issues involving mould, to the landlord’s obligations to meet the minimum rental standards and what to do if rent has not been paid on time.
If you have a question about a particular breach of duty, and what to do in your circumstances, contact us today to see how we can help.
Phone: (03) 7020 6563
Email: enquiries@allenlawyers.com.au
Website: www.allenlawyers.com.au
Disclaimer: This article is general in nature and does not constitute legal advice. Please contact Allen Law for advice tailored to your particular situation.
