Family or personal violence & renting

Key information

• What is family violence or personal violence under tenancy law?

  Tenancy law covers situations of both family violence and personal violence as defined below.

  Family violence is a behaviour by a person towards a family member that is:

  • Physically or sexually abusive
  • Emotionally or psychologically abusive
  • Economically abusive
  • Threatening
  • Coercive
  • In any other way controls or dominates the family member causing them to feel fear for safety or wellbeing of themselves or others
  • Causes a child to hear or witness or be exposed to the effects of the above

   

  Personal violence can be carried out by a non-family member and means the following:

  • Assault
  • Sexual assault
  • Harassment
  • Property damage or interference
  • Making a serious threat
  • Stalking
• Breaking a rental agreement early

  If your client has experienced violence and wants to leave their rental property, they may apply to VCAT to terminate the rental agreement or to reduce the length of the agreement.

  The options available depend on whether the perpetrator of violence is on the rental agreement.

  Where the perpetrator is on the rental agreement (a ‘violence’ application)

  If the perpetrator of violence is on the rental agreement, the victim survivor can apply to VCAT to terminate the rental agreement based on ‘violence’.

  For this application, a victim survivor is either:

  • a co-renter with a perpetrator of personal or family violence; or
  • not on the rental agreement but living in the property as their principal place of residence.

   

  If VCAT makes an order to terminate a rental agreement on ‘violence’ grounds, the rental provider is unable to claim compensation for the early termination of the agreement or break lease fees. For more information see Compensation & bond below.

  For applications based on personal violence, the renter needs to have an intervention order against another renter.

  For applications based on family violence, an intervention order is not needed, but other evidence of the violence will be needed to support the application. For example, support letters, written statements or police reports. The application must be heard within 3 business days.

  Where the perpetrator is not on the rental agreement (a ‘hardship’ application)

  If the perpetrator of violence isn’t on the rental agreement, the renter has fewer options under tenancy law. The victim survivor can apply to VCAT for an order terminating or reducing the term of the agreement based on ‘hardship’.

  VCAT must be satisfied that:

  1. The renter or their children would suffer severe hardship if the term of the agreement were not reduced or terminated; and
  2. The hardship would be greater than the hardship which the rental provider would suffer if the term were reduced or the agreement terminated.

  Family or personal violence will usually meet the threshold for severe hardship. An intervention order is not required but may assist in supporting the application.

  This option provides fewer protections, including around costs to the victim survivor, so it’s best to use the specific family and personal violence application if possible.

  Practice tip:

  It is important that your client keeps their keys to the property until the VCAT hearing. If they hand the keys back before the hearing, VCAT may decide the tenancy has already been terminated. This could impact your client’s ability to reduce costs they have to pay.

  Homeless Law can assist with these application in the context of family violence. You can refer your client for assistance via the link below.

• Creating a rental agreement

  Where the perpetrator is on the rental agreement and a victim survivor is either:

  • A co-renter; or
  • Not on the rental agreement but living in the property as their principal place of residence,

   

  the victim survivor can apply to VCAT for orders terminating the existing rental agreement (as outlined above) and making a new one. The new agreement can be in their name or theirs and another person or persons they include in their application.

  For applications based on personal violence, the applicant needs to have an intervention order against another renter.

  For applications based on family violence, an intervention order is not needed, but other evidence of the violence will be needed to support the application. For example, support letters, written statement or police reports.

  The applicant will need to show they can meet their obligations under the rental agreement. This means they will need to be able to show they can afford the rent.

  The application must be heard within 3 business days.

• Making the property safer

  Changing the locks

  A renter or person living in the property as their principal place of residence (affected person) may change the locks to the property without consent from the rental provider, if:

  • The renter or affected person has an intervention order against the perpetrator; or
  • VCAT makes an order terminating the rental agreement and creating a new one in the affected person’s name.

   

  Even if the affected person is not on the rental agreement, as long as an intervention order against the perpetrator is in place, they may change the locks to the property.

  A copy of the keys must be given to the renter provider.

  Other modifications

  The renter may make other safety modifications to the property without consent from the rental provider, providing the property is not heritage-listed. The safety modifications include:

  • Installing removeable security lights, alarm systems and security cameras that are not hardwired and do not impact on the privacy of neighbours – for example, making sure lights or cameras do not face directly into a neighbour’s home
  • Installing non-permanent window film to increase privacy
  • Replacing curtains, provided the original curtains are kept
  • Installing a lock on a letterbox

   

  The renter may make other safety modifications to the property with the rental provider’s consent. Consent may not be unreasonably refused. Some of these modifications include:

  • Modifications that do not penetrate or permanently modify the property
  • Modifications required for health and safety purposes
  • Reasonable security measures
  • Modifications that are necessary to ensure the safety of renter subjected to family or personal violence by another renter (where there is an IVO or safety notice)
  • Modifications that are necessary to ensure the safety of a protected person
  • A hardwired security system installed by a suitably qualified person that does not impact on the privacy of neighbours
  • Installation of a secure letterbox
  • Modifications to secure external gates in non multi-unit dwellings

   

  If the rental provider unreasonably refuses to give their consent for a modification, a renter can apply to VCAT for an order that the consent of the rental provider is not required.

  Restoring the property

  At the end of the rental agreement, the renter who has made any modifications to the property, even with consent, must:

  • Restore the property to the condition it was in before the modification was made; or
  • Pay the rental provider an amount equal to the reasonable cost of restoring the property to that condition

   

  unless the rental provider says this is not required or there is an agreement in place stating this.

• Defending a notice to vacate

  Some notices to vacate (NTV) may be challenged if the actions which form the basis of the NTV were caused by a perpetrator of family or personal violence. The availability of this option will depend on the grounds for the NTV. Challenges may be made in respect to NTVs given for these reasons:

  • Serious damage
  • Danger
  • Threats and intimidation
  • Failure to comply with Tribunal order for possession
  • Successive breaches
  • Use of premises for illegal purpose
  • Drug related conduct in public housing
  • Disruption in a rooming house or caravan park
  • Renter no longer meets NRAS eligibility criteria
  • Renter no longer meets Victorian Affordable Housing Programs eligibility criteria

   

  The application to challenge the NTV must be lodged with VCAT within 30 days after the NTV is given.

  Homeless Law can assist with these applications in the context of family violence. You can refer your client for assistance via the link below.

• Compensation and bond

  Compensation

  Generally speaking, where a renter seeks to terminate a rental agreement earlier than the agreed date, they will be liable for break lease fees.

  However, if VCAT has made an order to terminate a rental agreement on ‘violence’ grounds, the rental provider is unable to claim compensation for the early termination of the agreement. If a rental agreement is terminated or reduced on the basis of ‘hardship’, the rental provider may still be able to claim compensation.

  Bond

  When VCAT is hearing an application for bond your client can ask VCAT to not take their bond where loss or damage was caused by family or personal violence. This can include, for example, unpaid rent where the client was forced to leave the property.

  Where there is more than one renter, and one of the renters is a victim survivor of family or personal violence, VCAT may order that:

  • Liability be apportioned between renters; including making the perpetrator liable for all the renter provider’s loss and damage;
  • The portion of the bond paid by the victim survivor is excluded from the amount of the bond which the rental provider can claim.

   

  For example, where a tenancy has broken down due to family violence and the rental provider applies to VCAT for the bond, VCAT can order that only the perpetrator is responsible for damage, and only any compensation must be taken from the perpetrator’s portion of the bond.

  Where a renter is a victim survivor of family or personal violence but the perpetrator is not on the rental agreement, VCAT may order that the renter is not responsible for the loss or damage which was caused by the perpetrator.

  Where the perpetrator is not on the rental agreement, the orders can only be made where a family violence safety notice, family violence intervention order, recognised non‑local DVO or personal safety intervention order is in force.

  Social housing

  Social housing providers may have policies which prevent them from pursuing a renter for compensation in circumstances where the loss or damage was caused by a family violence perpetrator. For example, the Department of Families, Fairness and Housing will not pursue compensation for cleaning fees where a victim survivor was unable to clean the property before fleeing due to family violence. You should consider any applicable policies of your client’s housing provider. See Public Housing Debts for more information.