A renter has both legal rights and obligations as part of their rental agreement. The same applies for rental providers. These rights and obligations are called ‘duties’ under the tenancy law. A renter is also responsible for the behaviour of their visitors if they damage the rental property or cause a nuisance to the neighbours.
It is important and empowering for your clients to know about their duties and understand the risks if they don’t comply with them. The general process is:
- If your client fails to comply with their duties, the other party can send them a breach of duty notice (breach notice) asking they meet their duties under the law. For more information see What is a breach notice below.
- If your client continues to breach the duty, the rental provider may apply to the Victorian Civil and Administrative Tribunal (VCAT) for a compliance order.
- At the compliance order hearing, both parties will have a chance to present their arguments and evidence.
- If VCAT is satisfied of a number of requirements, they may make a compliance order against your client. For more information see What is a compliance order below.
- A compliance order requires the relevant party to meet their duties under the law. If your client doesn’t follow a compliance order, the rental provider may issue them with a Notice to Vacate for breach for compliance order
What are my clients’ duties?
Keep the property reasonably clean.
Not cause a nuisance or interference with the reasonable peace, comfort or privacy of their neighbours.
- This also applies to your client’s visitors.
- What is considered to be a nuisance or interference will be impacted by the specific circumstances, including the type of property. For example, noise will generally travel more easily in an apartment block which will impact what is considered reasonable.
Allow rental provider (or their agent) to enter the property if proper notice is given.
- Your client has a right to quiet enjoyment in their home.
- The law sets out the reasons a rental provider (or their agent) can enter your client’s home. Written notice of the entry must be given with the correct minimum timeframe. The timeframe required depends on the reason for entering. The entry must be between 8am and 6pm and not on a public holiday.
- It is an offence for the rental provider to enter without giving the correct notice unless they have a reasonable excuse
- For more information see: Privacy and entry – Tenants Victoria
Not making modifications that need consent without first getting that consent, including the installation of fixtures.
- A rental provider must not unreasonably refuse consent to modifications that:
– don’t permanently modify the property
– are required for health and safety purposes
– are reasonable security measures
– are necessary to increase thermal comfort of reduce energy and water usage costs.
- A renter may apply to VCAT if they think the rental provider has unreasonably refused consent regarding a modification.
- Certain changes can be made without prior consent from the rental provider. Examples include installing curtains, child safety locks, and wireless doorbells.
- For more information see: Modifications – Tenants Victoria
Not removing, deactivating or interfering with safety devices unless reasonable in the circumstances.
- Examples of safety devices include smoke alarms, electric safety switches, swimming pool barriers, fire hose reels and extinguishers, and security cameras in common areas.
What is a breach notice?
A breach of duty notice is a formal warning saying that a party must start meeting their duties within a certain timeframe. Specific requirements must be met for a breach notice to be valid, including referring to a specific duty under the tenancy law and providing the correct timeframe for the party to comply.
If your client receives a breach notice and they don’t comply within the timeframe (e.g. they don’t remove piles of rubbish from the yard) or they commit a similar breach (e.g. they continue to make excessive noise), the rental provider may apply to VCAT for a compliance order. See What is a compliance order below for more information.
The relevant timeframes to include on breach notices are outlined below:
-
Breach Time - 3 Days
- Not letting the rental provider or real estate agent enter the property to show a prospective buyer or lender after proper notice has been given
- Not providing access to someone who needs to value the property after proper notice has been given
- Not providing access to someone who has reasonable cause to believe that the renter has broken the law or breached their rental agreement after proper notice has been given
-
Breach Time - 7 Days
- Causing a nuisance
- Interfering with the peace, comfort or privacy of neighbours or the renter
-
Breach Time - 14 Days
- Damage to the property or common areas
- Not keeping the property reasonably clean
- Installing fixtures or making changes to the property without the RRP’s consent except for modifications that are allowed under the law
- Not returning the property to the way it was before installing fixtures or making changes
- Not giving the rental provider a key to any new door or window lock
- Changing a lock without the rental provider’s consent (except in family violence situations)
- Not letting the rental provider or agent enter the property for a general inspection if it has not been inspected within the last six months after proper notice has been given
- Not letting the rental provider or a someone acting on their behalf (such as a tradesperson) enter the property to carry out their duties under the rental agreement after proper notice has been given
Breach Time - 3 Days
- Not letting the rental provider or real estate agent enter the property to show a prospective buyer or lender after proper notice has been given
- Not providing access to someone who needs to value the property after proper notice has been given
- Not providing access to someone who has reasonable cause to believe that the renter has broken the law or breached their rental agreement after proper notice has been given
Breach Time - 7 Days
- Causing a nuisance
- Interfering with the peace, comfort or privacy of neighbours or the renter
Breach Time - 14 Days
- Damage to the property or common areas
- Not keeping the property reasonably clean
- Installing fixtures or making changes to the property without the RRP’s consent except for modifications that are allowed under the law
- Not returning the property to the way it was before installing fixtures or making changes
- Not giving the rental provider a key to any new door or window lock
- Changing a lock without the rental provider’s consent (except in family violence situations)
- Not letting the rental provider or agent enter the property for a general inspection if it has not been inspected within the last six months after proper notice has been given
- Not letting the rental provider or a someone acting on their behalf (such as a tradesperson) enter the property to carry out their duties under the rental agreement after proper notice has been given
If your client has received a breach notice:
- Check if it is for one of the duties listed above and if the timeframe given is correct.
- If your client disputes the allegations in the breach notice, write to the rental provider and explain why they dispute the notice and request it is withdrawn. Ask the rental provider to confirm the withdrawal in writing.
- Keep a copy of all notices and correspondence for evidence in the future.
What is a compliance order?
If the rental provider has applied for a compliance order against your client, the application will be determined by VCAT following a hearing. VCAT will consider:
- whether your client breached a duty;
- whether the rental provider gave a valid breach notice; and
- whether your client failed to comply with the breach notice.
If a compliance order is made it will require your client to fix any outstanding breach and not commit a similar breach of duty in the future. It may also include specific requirements e.g. not to play load music between 9pm and 7am. In some cases, where there has been a loss, the renter may be required to pay compensation e.g. pay to repair damage at the property.
If your client does not follow the compliance order, the rental provider may issue them with a Notice to Vacate for failure to comply with the order.
Homeless Law can assist a renter to defend an application for compliance order at VCAT or a Notice to Vacate. Make a referral through the link below.
The content on the Workers’ Resource Hub is legal information for general guidance and not legal advice. The content on this webpage was last updated in August 2023. See full disclaimer and copyright notice.
