Tenancy
Last updated 12 April 2010
This factsheet is for residential and commercial tenants and landlords whose property has been affected by a bushfire. It will explain your legal rights and options and has the contact details of organisations that can help you.
You can order a hard copy of this factsheet from Victoria Legal Aid.
Residential properties
My house or unit has been damaged or destroyed in a bushfire and is no longer okay to live in. What can I do?
Renting a house
If you are the tenant (you are renting) and the house is unfit to live in, you do not have to keep living there. You will need to end the lease. There are two ways to do this. You can:
- get agreement from your landlord or agent that your house is ‘unfit for habitation’. It is best to get this agreement in writing. If you get an agreement, you do not have to give notice.
- give your landlord an immediate notice of intention to vacate, and move out. You can use Consumer Affairs Victoria’s Notice to Landlord of Rented Premises form available from the Consumer Affairs Victoria website.
For more information about giving notice, read the Tenants Union of Victoria’s fact sheet Notices to Vacate at the Tenants Union of Victoria website.
Owning a rental property
If you own the house and it is unfit to live in, you can end the lease by giving the tenant an official Notice to Vacate to Tenant/s of Rented Premises. This form is available from the Consumer Affairs Victoria website.
You cannot make a tenant move out immediately so try to work out an agreement with the tenant. You do not have to help the tenant find another place to live in but your help in doing so at this time is appreciated.
You are also allowed to inspect an unfit property but you must let the tenant know in advance that you are doing this (if they still live there).
Challenging a notice
Landlords or tenants can challenge a notice and apply to shorten the length of the lease through the Victorian Civil and Administrative Tribunal (VCAT). VCAT has the power to order that the lease be reduced or stopped.
Can I get my bond back if the house is unfit to live in?
If you are renting, you should be able to get your bond back (minus any rent that is still owed) if your house or unit can no longer be lived in and your lease has been ‘terminated’.
Your bond should have originally been lodged by the landlord with the Residential Tenancies Bond Authority (RTBA). You will need to ‘claim’ back your bond from the landlord through the RTBA by filling in a form and sending it to them. You can prepare and print out Repayment Claim forms at www.rentalbonds.vic.gov.au. They will usually repay you the bond within 24 hours of getting a completed form.
I am behind on my rent – will this affect my bond?
Yes. Some or all of the bond may be paid to the landlord.
If you cannot come to an agreement with your landlord or agent, you must apply to VCAT for an order directing the RTBA on how the bond is to be repaid.
My house or unit has been damaged but is still okay for me to live in. What can I do?
If you are renting, you need to contact your landlord or agent immediately to talk about whether the repair needed to fix the damage is ‘urgent’. Urgent repairs include things such as a gas leak.
Your landlord should do urgent repairs without delay, even if they have not yet gotten their insurance payout from the insurer. If repairs are not done within two to three days, you can apply to VCAT for the repairs to be carried out. Your landlord may have to cover the cost for things that you had to pay for because the repairs were not done urgently (such as having to stay in a hotel).
If you cannot contact your landlord, you can get the urgent repairs done by a professional, up to the cost of $1000. If you cannot afford to pay for this or the repairs are over $1000, you can apply to VCAT. VCAT must hear any application for urgent repairs within two business days and can order the landlord to pay for the repairs.
If the damage is not urgent, you can give a notice to the landlord for the repairs to be carried out within 14 days.
A full list of urgent repairs is in the 2009 Bushfire Legal Help Handbook and in the Tenants Union of Victoria factsheet Repairs, which you can get from the Tenants Union of Victoria website. Do not sign a blank bond form. Only sign if the ‘amount to be paid to tenant’ part has been completed. The usual rules for bond refunds apply if the house can still be lived in but your lease is not finished.
If you are a landlord, you can only get back bond money at the end of a lease and if rent is owed or you had to get repairs or cleaning done because of the tenant. This does not apply to bushfire damage.
For more information about bonds, read the Tenants Union of Victoria factsheet Bonds at the Tenants Union of Victoria website and contact the RTBA on 1300 137 164.
Can the rent be put up?
There are laws that landlords have to follow about increasing rent. These laws mean that rent can only be increased once every six months during a month-to-month lease or that rent cannot go up during a fixed-term lease unless this is in the written lease agreement
If a landlord is able to and wants to increase the rent, they must give the tenant at least 60 days written notice using the official Notice of Rent Increase to Tenant/s of Rented Premise form. This is available at the Consumer Affairs Victoria website.
Even if a landlord is within their right to increase rent, a bushfire may make it difficult for a tenant to pay more rent at this time. Tenants have the right to challenge a rent increase if they believe the increase is too high. Tenants need to do this by making a request for Consumer Affairs Victoria to investigate. This must be done within 30 days.
Commercial properties
Landlords and tenants should always check their lease to see if it specifically states what happens when part of the property is damaged. If the landlord does not repair the property within a reasonable time, the tenant may end the lease. If the landlord thinks that the repairs are impractical, they may end the lease.
If the lease is made under the Retail Leases Act 2003, the landlord must maintain the property in the same condition that it was originally leased in. This includes the structure, fixtures, equipment, appliances and fittings.
If you are a landlord, you do not have to fix any problems caused by your tenants misusing the premises or equipment. The lease does not cover any equipment that the tenant must remove at the end of their tenancy.
If you are a tenant and the repairs are urgent and needed so you can continue your business, you can arrange for them to be done if you cannot contact your landlord. Your landlord can later reimburse you. You must take all reasonable steps to make contact with the landlord.
What if I cannot reach an agreement with my landlord or real estate agent?
If your property is leased under the Retail Leases Act 2003 and you are having problems agreeing with your landlord, contact the Office of the Small Business Commissioner on 132 215 or 1800 136 034. They can help you and your landlord to reach an agreement. If this does not happen, you may apply to VCAT for assistance.
Other commercial leases
If your lease is not under either the Residential Tenancies Act 1997 or the Retail Leases Act 2003 and your dispute involves a small business, you can apply to the Office of the Small Business Commissioner for mediation of the dispute. If the dispute is not sorted out at mediation, it may need to be dealt with through VCAT.
Who is responsible for insurance?
Depending on the lease, the tenant may need to insure the rental property. If the tenant was supposed to do this but did not, the tenant may have to pay the landlord for damage done to the property by the bushfires. If the tenant has insurance but it does not cover the costs of rebuilding the property to what is was like before the bushfires, the tenant may have to pay to make sure the property is restored.
This is a complex area of the law. As a start, tenants and landlords can read the 2009 Bushfire Legal Help Handbook or the Insurance and Property fact sheets. You should get legal advice too. Contact Bushfire Legal Help on 1800 113 432.
Where to get help
Victoria Legal Aid
Tel: 1800 113 432, Monday to Friday, 8.45 am to 5.15 pm, for free bushfire legal information and referrals, www.legalaid.vic.gov.au/
Tenants Union of Victoria
Tel: 9416 2577 (Advice line), Monday, Tuesday, Thursday, Friday 9 am to 4 pm and Wednesday 1 pm to 8 pm, www.tuv.org.au
Consumer Affairs Victoria
Tel: 1300 558 181, Monday to Friday, 8.30 am to 5 pm, www.consumer.vic.gov.au (see Bushfire FAQs on homepage)
Energy and Water Ombudsman (Victoria)
Tel: 1800 500 509, Monday to Friday, 8.30 am to 5 pm, www.ewov.com.au
Office of the Victorian Small Business Commissioner (VSBC)
Tel: 132 215 or 1800 136 034, Monday to Friday, 8 am to 6 pm, www.sbc.vic.gov.au
Residential Tenancy Bond Authority
Tel: 1300 137 164, Monday to Friday, 9 am to 5 pm, www.rentalbonds.vic.gov.au
Victorian Civil and Administrative Tribunal
Tel: 9628 9700 (General) and 1800 001 099 (Bushfire Information Line), Monday to Friday, 9 am to 4.30 pm, Email: vcat@vcat.vic.gov.au (add ‘Bushfire priority’ into your subject header), www.vcat.vic.gov.au
Department of Human Services (DHS)
Tel: 1800 050 400 (Victorian Bushfire Case Management Service), Monday to Friday, 8 am to 5 pm and tel: 1800 240 667 (Victorian Bushfire and Storm Information Line), Monday to Friday, 8 am and 6 pm, www.dhs.vic.gov.au/em/bushfire-recovery
Counselling and support
NURSE-ON-CALL Bushfire Health and Counselling Line: 1300 606 024, seven days, 24 hours a day
Beyond Blue: 1300 224 636, seven days, 24 hours a day, www.beyondblue.org.au
Interpreters – Translating and Interpreting Service (TIS)
Tel: 131 450, seven days, 24 hours a day
Hearing impairment – National Relay Service
Tel: 133 677 (TTY service) and 1300 555 727 (Speak and listen), seven days, 24 hours a day
Other resources
See the 2009 Bushfire Legal Help Handbook and Bushfire Legal Help fact sheets on Property, Insurance, Fencing, Utilities, Debt and more at www.bushfirelegalhelp.org.au
See the Tenants Union of Victoria fact sheets at www.tuv.org.au