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When can I rent a flat or house?

1    Pre tenancy

1.1    I’m under 18, am I old enough to rent?   

1.2    Applying to rent   

1.3    Do I need to provide a bond?   

2    During tenancy

2.1    Issues with landlord   

2.2    Issues with other tenants   

2.3    Ending your tenancy   

3    Post tenancy

3.1    Blacklisting   

3.2    Retrieving your bond   

3.3    Recovering things you accidentally left behind   

 

1    Pre tenancy

1.1    I’m under 18, am I old enough to rent?

A person may enter into a Residential Tenancy Agreement in order to rent in Victoria.  The agreement may be oral or in writing, although it is strongly recommended that tenants enter into a written agreement which will provide a clear record of your rights and obligations as a tenant. A Residential Tenancy Agreement is a contract that will state the terms of your rental, such as the duration and rent payable.

Age may not be a restriction to renting in Victoria.  A person under 18 years of age may enter into a contract, so long as it is for their benefit and they understand the nature of the contract.  A lease is likely to be considered ‘for the benefit of’ a minor because it provides a necessary service. Therefore, a person under 18 years of age will be bound by such contracts unless they didn’t understand that the agreement would be binding when they signed it. Parents have a legal responsibility for their children until they are 18 years of age.  Your parents have the responsibility of ensuring that you have a safe place to live.  If you leave home before you turn 18, your parents may seek assistance from the police or the Department of Human Services Victoria to have you return home.  Whether you are likely to be required to move back home will be dependent upon many factors. You will not be required to return home if it is unsafe for you to do so.

A landlord cannot discriminate against a potential tenant on the basis of age.  A landlord may, however, have a number of reasons for rejecting an application for tenancy.  It may therefore be difficult to prove that you have been discriminated against on the basis of age.  You may lodge a complaint with either the Victorian Equal Opportunity and Human Rights Commission or the Australian Human Rights Commission if you believe you have been discriminated against.

 

1.2    Applying to rent

People under the age of 18 sometimes have difficulty finding a landlord that is willing to rent them their property.  They may be worried that you will damage the property or cannot afford the rent.  Here are some things to include in an application for rent that may help your application:
•    provide copies of identification, such as a driver’s license;
•    provide proof of income, such as payslips from your job or a statement from Centrelink; and
•    provide references (2 is recommended) to show that you are a responsible person. For example, you could ask your current or past employer or a school teacher for a reference.

 

1.3    Do I need to provide a bond?

A landlord may ask you to pay a bond upon entering into a lease.  This will provide the landlord with security in case you breach your rental agreement in certain ways, such as by not paying your rent.  Your landlord can ask you to pay up to 1 month rent as a bond, if your weekly rent is up to $350 per week.  Your landlord can ask you to pay an unlimited bond if your weekly rent is greater than $350 per week. The landlord is required to deposit the bond with the Residential Tenancies Bond Authority, who will hold the money until you or the landlord makes a claim for the bond to be paid.  Usually the tenant gets the bond back at the end of the lease. 

Your landlord can also ask you to pay up to 2 weeks rent in advance if your rental payment period is weekly.  Your landlord can ask you to pay up to 1 months rent in advance if your rental payment period is not weekly and your weekly rent is up to $350 per week.  Your landlord can ask you to pay an unlimited rent in advance if your rental payment period is not weekly and your weekly rent is greater than $350 per week. These payments are often called ‘holding deposits’.

 

2    During tenancy

2.1    Issues with landlord

Responsibilities

(i)    Key things your landlord is responsible for: make sure the property is reasonably clean, provide quiet enjoyment of the property and make sure the property is in good repair.

(ii)    Key things you’re responsible for: allow the landlord to enter when they have the right to, not cause a nuisance or disrupt neighbours, avoid damaging the property and common areas, tell the landlord as soon as possible if the property is damaged, keep the property in a reasonably clean condition and not make changes to the property without permission from the landlord.

If either you or your landlord do not do all the things you are responsible for, the other person may send a Breach of Duty Notice. You or your landlord may be required to pay compensation to the other person or you may be required to fulfil one of your responsibilities. If a person receives multiple Breach of Duty Notices then the other person may have a right to end the tenancy.  Even if your landlord fails to fulfil their responsibilities, you should keep paying your rent, otherwise they may have grounds to terminate your rental agreement. See Law Handbook for more detail.

Rent

(i)    Rent increases: Landlords can increase your rent but there are certain rules they must follow. If they do not follow the rules, then you do not have to pay the increase. Your landlord:
•    cannot increase your rent more than once every 6 months;
•    for a Fixed Term Tenancy Agreement, cannot increase your rent before the term ends, unless the agreement allows for an increase; and
•    must let you know of any rent increases, 60 days beforehand, in writing and include details of the rent increase and the date of the increase.

You can challenge the rent increase by making a request to Consumer Affairs Victoria (you must make a request within 30 days of the landlord notifying you of the increase). However, if the landlord complies with the rules above, you must pay the increased amount or 110% of your original rent (whichever is less) even if you are in the middle of challenging it. If your challenge is successful, your landlord may be made to return your money. See Tenants Union of Victoria for more details.

(ii)    Missed rent payments: Tips on what to do if you’ve missed a rent payments:
•    Contact your landlord or real estate agent ASAP and tell them when you will be paying;
•    offer to pay the overdue rent over a period of time (if you can’t afford to pay it all at once);
•    keep written copies of all communication with your landlord or real estate agent as evidence; and
•    contact housing services that may be able to give you financial assistance on 1800 825 955 or contact the Tenants Union of Victoria.

If you are 14 days late on rent, your landlord can inform you to leave the property within 14 days by writing.

 

2.2    Issues with other tenants

Co-tenants

Co-tenancy is when there are two or more tenants who have signed the same lease. If you are co-tenants then you will be Jointly and Severally Liable under that agreement. This means that if you leave before your lease is up but your name remains on the tenancy agreement, then you may still be liable for the rent payments. You should make sure that you let your landlord know in writing if you leave your property, so your name can be removed from the lease.

Your responsibilities as a co-tenant include:
•    all rent (including your co-tenants share); and
•    damage to the property even if it is not caused by you.
Therefore you can be required to pay for rent and damages to the property and/or be evicted even if you haven’t done anything wrong.

Sub-tenants

Sub-tenancy is when one or more of the tenants are the Head-Tenant and the others are the sub-tenants. Only the head-tenants’ name(s) will be on the lease. The head-tenant is responsible for all the actions of the sub-tenant. The head-tenant becomes the landlord for the sub-tenant and will be responsible for all the things a landlord is responsible for. A tenant cannot sub-let the property without the landlord’s written consent.

See here for more information.

 

2.3    Ending your tenancy

There are several ways to end your lease in Victoria, including by giving the correct notice at the end of a Fixed-term Tenancy Agreement or during a Periodic Tenancy Agreement, through reaching an agreement with your landlord, through an application to VCAT, by transferring your Tenancy Agreement to someone else or by breaching your Tenancy Agreement.

Ending by notification

If you are renting under a Periodic Agreement where the fixed term has expired or no fixed term has been agreed, it is possible for you to end your lease at any time by giving your landlord a Notice of Intention to Vacate.  This notice must be given to your landlord at least 28 days before the date that you intend to leave the property.  It must be given in writing and you must sign it.  If you are renting under a Fixed-Term Tenancy Agreement, you can only give a valid Notice of Intention to Vacate if you specify a date after the last day of the fixed term.

This notice can be a letter that you write yourself, stating that you wish to end the lease and leave the property on a specific date, or you can use the Consumer Affairs Victoria’s Notice to Landlord form.  You can either deliver this notice in person, through the mail, or, if your landlord has consented, by email.  If you send it through the mail, allow an extra two days of notice for delivery.

After your notice has been received, you should continue to pay rent until you move out of the property and return the keys on the specified date.

Ending through agreement

You may end your lease at any time by coming to an agreement with your landlord.  Any agreement you make should be in writing and state that you will not be liable for any additional costs or compensation for breaking your lease.  Both you and your landlord should sign the agreement.  Ensure that you keep a copy.

Ending through application to VCAT

There are several situations where VCAT may intervene on your behalf to allow you to either terminate your Tenancy Agreement or, in the case of Fixed-Term Tenancy Agreement, reduce the term.

(i)    Termination - where your landlord is in breach of any of their duties, you may be able to your terminate you lease.  The first thing you will need to do is send your landlord a Breach of Duty Notice.  If they fail to fix the problem within 14 days, you can then apply to VCAT for a Compliance Order.  If your landlord breaches the Compliance Order, you can send them a 14-day Notice of Intention to Vacate.  If you have sent your landlord two Breach of Duty Notices before, and your landlord has committed the same breach for the third time, you may also send them a 14-day Notice of Intention to Vacate.  If you do send one of these notices, you should remain at the property for 14 more days then move out and return the keys.

(ii)    Reduction - if something happens while you are renting that makes it difficult for you to stay at the property until the end of the fixed term, you may be able to apply to VCAT to reduce the period of time remaining on your lease for hardship reasons.  You should ask VCAT to hear your case as soon as possible.  You must also continue to pay rent as usual up until the hearing.  Note that if you are planning on applying for a reduction for hardship, you must do so before you move out.  In order to be successful, you will have to prove to VCAT that there has been an unforeseen change in your circumstances (such as losing your job) and you will suffer severe hardship if the tenancy continues. You must also prove that the hardship you will suffer if the tenancy is not ended will be greater than the hardship your landlord will suffer if it is.  Note that you may still have to pay your landlord money if you break your lease due to hardship.

Ending by assignment

You may be able to transfer, or ‘Assign’, your Tenancy Agreement to another person if your landlord gives their written consent.  You must then transfer the bond to the new tenant.  Note, that whilst your landlord can charge you a reasonable amount for preparing the assignment, they cannot charge you for creating a new Tenancy Agreement with the new tenant(s).

Ending by breach

If no other options are available to you, you can still end your Tenancy Agreement by giving your landlord a Notice of Intention to Vacate and handing back the keys when you move out.  You will probably have to pay your landlord for the costs that they incur in finding a new tenant.  If you intend to breach your Tenancy Agreement, make sure that you give as much notice as possible in writing, and keep a copy of all communication between you and your landlord.  You should make sure that your landlord is taking steps to find a new tenant and only agree to pay costs which are reasonable.

 

3    Post tenancy

3.1    Blacklisting

What is a blacklisting?

Blacklisting is a process that involves a tenant being added to a Tenancy Database.  A tenancy database may include information about you as a tenant that might make it harder for you to rent a property in the future.

You may be added to the tenancy database if the tenancy agreement has ended and, as the tenant, you have breached the agreement so that:
•    you owe an amount greater than the bond; or
•    VCAT has made a possession order.

Your Landlord must inform you if they want to put your name on a Tenancy Database and give you at least 14 days to review the information and object to the accuracy, completeness and clarity of the information.  A landlord considering your application who comes across your name on a database must also tell you.

What can I do about being blacklisted?

You can request the tenancy database listing to be changed or removed.  Write to your landlord using this sample.

If that doesn’t work, you can appeal to VCAT.  You can appeal to VCAT if the listing is more than 3 years old.  You can also appeal to VCAT if you believe notice has not been given or the listing is inaccurate, incomplete, ambiguous or out of date (you have repaid the bond difference or VCAT’s termination order wasn’t enforced).  VCAT has the power to prevent the listing from being made or to make an order for it to be removed or altered.

 

3.2    Retrieving your bond

How can I get my bond back?

There are two ways you can get your bond back after your tenancy agreement has ended:
•    you can get a refund if both you and your landlord agree on how much you should get back. The amount will be calculated after the final inspection and will take into account anything that you have broken or needs cleaning.  After you both agree, complete this form; or
•    if you and your landlord can’t agree on the amount, you can challenge it by sending the above form anyways but without the landlord’s signature. If the landlord disagrees with your claim, you might have to go to a VCAT hearing. Refer to the following guide.

Fair wear and tear includes:
•    Paint fading and discolouring over time;
•    Worn carpet due to day to day use;
•    Garden mulch breaking down over time.

Damage that you may be responsible for includes:
•    Cracked window panes or glass arising from careless slamming of the windows;
•    Paint discolouring due to candle smoke;
•    Garden mulch that has been dug up by a pet.

My landlord made a claim against my bond

Your landlord can make a claim for any intentional, negligent or irresponsible damage you have caused or any unpaid rent. They cannot make a claim for fair wear and tear. After receiving notice of the claim, you can try to get your landlord to change their mind or lodge a claim with VCAT. If things go to a hearing, make sure you have evidence to respond to your landlord’s claim. Tell VCAT if you didn’t get an official condition report, you disagree with what’s written in it or that you didn’t get to go to the final inspection.

 

3.3    Recovering things you accidentally left behind

The landlord must notify you if they find any goods or personal documents you accidentally left behind.  You then have 28 days (for goods) or 90 days (for personal documents) to collect your belongings.  After 28 days has passed, the landlord will sell your goods by public auction if you haven’t collected it.  After 90 days, the landlord can also throw away your personal documents.

 

NCYLC would like to express thanks to the law clerks and volunteers who assisted with the preparation of this material: Cecilia Chang, Callum Maher, Paul Propper, Ashley Wong.

This page was last updated in January 2017.

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