when the landlord breaches their duties - Tenants Victoria

    when the landlord breaches their duties

    If the landlord fails to carry out their duties under the Residential Tenancies Act 1997 (the RTA) you can give them a “Notice for Breach of Duty to Landlord” (also called a breach of duty notice). This notice tells the landlord they are required to fix the problem, not commit the same, or similar, breach, and/or pay you compensation for any loss you have suffered because of their breach of duty.

    If the landlord does not comply with the breach notice within 14 days of receiving it you can apply to the Victorian Civil and Administrative Tribunal (VCAT) for an order that they do so. 

    landlord duties

    If the landlord breaks any of these rules, it’s called a “breach of duty”:

    • repairs not done – the home is not kept in good repair, repairs are not done well, or not done on time (section 68)
    • “quiet enjoyment” disturbed – the landlord or agent doesn’t let you enjoy your home in peace, for example they come to your home without enough warning, without giving you a written notice, or without a proper reason (section 67)
    • not clean – the home is not reasonably clean on the day you move in (section 65)
    • not vacant – there are other people or their things in the home on the day you move in (section 65)
    • no locks – locks are missing from external doors and windows (section 70)
    • no keys – the landlord changes a lock that has a key but does not give you the new key (section 70)
    • water products below standard – replacement products are below the minimum rating for water-saving. For information about water ratings see WELS (website) (section 69)

    Note: the information on this page refers to tenants and the relevant sections of the Residential Tenancies Act 1997 (RTA). There are similar (but not identical) sections that apply for rooming house and caravan park residents. Please contact us, your local TAAP service, Tenancy Plus provider or Community Legal Centre if you need assistance working out which sections of the RTA are relevant to you.

    evidence

    If you need to apply to VCAT it will be up to you to prove your case, so the more evidence you have of the landlord’s breaches and any losses you have suffered the better.

    Keep copies of all your evidence as you go, like all your communication with the landlord, agent or anyone else involved (such as a tradesperson), photos or videos, and receipts or quotes if you are asking for compensation.

    TIP: It is a good idea to scan or copy all your evidence into the “cloud” or email it to yourself for safe keeping. It is also a good idea if you have any witnesses to the problem that you ask them at the time to prepare a statutory declaration or other statement as to what they witnessed.

    compensation

    If the landlord has breached any of their duties and you have suffered loss or substantial inconvenience as a result, you can claim compensation from the landlord.

    You can report the breach and apply for compensation at the same time. But it may be better to wait until the breach is fixed before you apply for compensation. This is because you may not be able to fully calculate the loss you have suffered until the problem is fixed.

    If you have already moved out, you do not need to serve a breach of duty notice.  You can make your compensation claim by applying directly to VCAT.

    If you would like to claim compensation for a breach, or breaches, see compensation for tenants.

    how to report breaches

    step 1. complete a Notice for Breach of Duty form

    Use a Notice for Breach of Duty to Landlord [Consumer Affairs Victoria website].

    Write the information in the boxes provided on the notice. Listed below are hints on how to complete the form and an example of a completed form.

    Landlord details
    1. Landlord’s name – Make sure you write the landlord’s name on the form and not the name of the real estate agent. If you don’t know the landlord’s name check your lease or ask the agent. If you live in public housing the landlord is the “Director of Housing”.
    2. Landlord’s address – It’s okay to write the agent’s address on the form.

    Tenant details
    3.  Tenant name/s – You can write one or more tenant’s names here. You should name everyone on the tenancy agreement.
    4.  Rented premises – Write the address of the rented premises.
    5.  Address for serving documents – If the address is the same as your answer in 4, write “as above”. If not, write the address that you want documents to be sent to.
    6.  Provide contact telephone numbers.

    Service details
    7.  Specify how the notice will be served on the landlord (e.g. by registered post) and the date it will be served.
    8.  Sign the form.
    9.  Clearly print your name.

    Reason for breach of duty notice
    10. Reason for notice – At the beginning of the form there are reasons and section numbers that you can copy and paste into the reason section. Choose those that relate to the landlord’s breach, for example if the breach relates to repairs you would choose section 68 and also section 67 if your quiet enjoyment is being affected because of the repairs. Then include as much detail as possible, including dates. You can include several breaches on the one form. If there is not enough space write ‘see attached’ and provide the details on a separate sheet of paper.
    11. The loss or damage – include details of the loss, damage and/or inconvenience you have suffered as a result of the landlord’s breach. Provide as much detail as possible. If you are claiming compensation as well as asking for compliance see compensation for tenants. If there is not enough space write ‘see attached’ in the box and provide the details on a separate sheet.
    12. Compensation or compliance – the notice can be used to ask the landlord to fix the problem, to not commit the same, or similar, breach, and/or for compensation. If you are trying to get the landlord to carry out their duties and fix the problem, you should state what it is that you want them to do (e.g. fix the leaking roof). If you are claiming compensation, fill in the amount that you are claiming, see compensation for tenants. If asking for both compliance and compensation cross out ‘or’ and write ‘and’.
    13. This is a statement that informs the landlord that you will apply to VCAT if they commit the same, or similar, breach and/or don’t fix the problem and/or don’t pay you compensation.
    14. Receipts, other evidence – Tick the box to indicate whether or not you have attached any documents to the form.

    The landlord has 14 days from the time they receive the notice to comply. If they do not you may apply to VCAT for compliance or compensation orders.

    step 2. keep copies for yourself          

    Keep a copy of the notice and any evidence you want to attach. Make sure the copies are good enough that you can read everything clearly and keep them safe as you will need them later if you apply to VCAT.

    step 3. give it to the landlord

    Give a copy of the notice, and copies of any evidence you have attached, to the landlord or agent.

    We recommend you use registered post or hand deliver it so you can prove they received it. If hand delivering, write down the date, time and name of the person you handed it to. If sending by registered post, keep your receipt and tracking number.

    As set out in step 1, the landlord has 14 days from the time they receive the notice to comply. If you send it by mail, you will need to allow extra time for delivery. See Australia Post delivery times.

    If you want to send the notice by email, there are a few things to watch out for:

    • You can only send notices by email if the landlord or agent has agreed, so it’s a good idea for you to have something in writing from the landlord or agent that says they agree to you sending notices by email.
    • You can only send notices to the email address they have agreed to. Because landlords and agents might have more than one email address, it’s important that you have something in writing from them that says exactly which email address you can send notices to.
    • You may not know if they have read it, so you can ask them to reply to confirm they have received your email or you could set up a “read-receipt” on the email you send (this can send an automatic reply if they okay it), or you could call them to find out if they have received it.

    what happens next?

    If the landlord fixed the problem and/or paid the compensation then you do not need to take any further action.

    If the landlord has not fixed the problem or has repeated the same, or similar, breach you can apply to VCAT for compliance orders.

    If you would like compensation see compensation for tenants.

    applying to VCAT for compliance orders

    If the landlord has not fixed the breach within 14 days of receiving your breach of duty notice, or they have repeated the same, or similar, breach, you can apply to VCAT (the Victorian Civil and Administrative Tribunal) for compliance orders.

    before you start

    Make sure you follow the steps at how to report breaches and serve a Notice for Breach of Duty to Landlord form on the landlord.

    step 1. fill in the VCAT application form

    Use the General Application form [VCAT website].

    At “claim details” you will need to include the section or sections of the law your claim relates to. The relevant section for compliance orders is section 209 of the RTA. You should also include the general dispute section of the RTA, section 452.

    Note: this example relates to requesting compliance orders, if you also want compensation see compensation for tenants.

    You then need to tell VCAT:

    • about the breach or breaches, and
    • what you want VCAT to do. For example, you want VCAT to make an order that the landlord has to comply with their duties and fix a problem by a certain time and/or pay you compensation for the breach

    You must include a copy of the Notice for Breach of Duty to Landlord you gave to the landlord with your application.

    If you need more space to provide all of the details of your claim, you may use separate pages to complete your details then attach those to the application form.

    Fees – you may have to pay an application fee. See fees and costs for a VCAT hearing. You should ask to be reimbursed the application fee in your application. The reimbursement of any application fee will be a decision for the Tribunal based on the outcome of the hearing.

    step 2. get your evidence together

    Collect all the evidence you have to support your application, such as:

    • evidence of the breach
    • details about contact you have had with the landlord or agent about the breach, for example, emails, telephone call logs
    • a copy of the Notice for Breach of Duty to Landlord form
    • any other evidence you may have to support your application

    Note: if you are applying for both compliance and compensation orders you can use the same application form. See compensation for tenants for information on what to include with your application.

    step 3. make two copies

    Make two copies of the filled in application form and all the evidence. You can copy, scan or take photos but make sure the copies are good enough that you can read everything clearly. You will have three sets in total – one for VCAT, one for the landlord and one for you.

    step 4. keep copies for yourself

    Make sure you keep a copy of the application form and all the evidence for yourself. Keep this safe as you will need it at the hearing.

    step 5. give your application to VCAT

    Give these things to VCAT:

    • the application form, and
    • copies of all the evidence

    If taking it in person, write down the date, time and name of the person you handed it to. Details of where to take it are on the form.

    If sending it by registered or express post, keep your receipt and tracking number.

    Or you can submit your application online [VCAT website].

    step 6. give a copy to the landlord

    The law requires you to give a copy of the application, and evidence, to the landlord or agent. This is called “service” and VCAT might ask you to prove it has been done.

    TIP: The safest way to prove service is to deliver the application, and evidence, in person, keeping a note of the date, time and name of the person you handed it to.

    But if you can’t do it in person you can:

    • send it by post. We recommend registered post so you can prove they received it (keep your receipt and tracking number).
    • email it. Note: some agents do not check their emails very often or might have put something in your tenancy agreement saying they won’t accept emails, even though the law says you can send a VCAT application by email. So it’s a good idea to check that your email has been received.

    step 7. get the hearing details from VCAT

    VCAT will send you a Notice of hearing to let you know when and where the hearing will be.

    If you don’t hear from VCAT after a few days, give them a call to find out if they have set a hearing date.

    step 8. get ready for VCAT

    Find information and tips:

    The Tribunal (VCAT)
    ‘A Day at the Bench’ (videos and handbook on how to apply and prepare for a VCAT hearing)

    what happens next?

    If VCAT agrees that the landlord has breached their duty they will make an “order” which is a legally binding decision about the case. Depending on what you have applied for, VCAT may order the landlord to fix the breach, not commit the breach again, and/or pay you compensation.

    If the landlord, or their agent, does not follow a VCAT order they will have committed an offence under the Residential Tenancies Act 1997, which can be reported to Consumer Affairs Victoria.

    repeated breaches

    In some circumstances, serving a breach of duty notice can be the first step in the process of ending your tenancy. If the landlord commits the same breach three times, and a valid Notice for Breach of Duty to Landlord was given to the landlord on the first two occasions, a notice of intention to vacate may be given to end the tenancy.

    This information is a guide only and should not be used as a substitute for professional legal advice.
    The information on this page relates to existing periodic tenancy agreements and short fixed-term tenancy agreements (for fixed-term periods of less than 5 years). The information is current as of the date of publication, but may be subject to change with future amendments to the laws relating to rental properties. If you are unsure what laws apply to you, you should seek legal advice.

    the law

    Residential Tenancies Act 1997 (AustLII website)
    Section 65 – vacant and clean
    Section 67 – quiet enjoyment
    Section 68 – repairs
    Section 69 – water efficiency ratings
    Section 70 – locks and keys
    Section 208 – breach of duty notice
    Section 209 – application for compensation or compliance order for breach of duty
    Section 452 – general dispute
    Section 209 – application for compensation or compliance order for breach of duty
    Section 452 – general dispute

    related pages

    Complaints about landlords and real estate agents
    Ending a tenancy
    Privacy as a tenant
    Getting repairs done
    The Tribunal (VCAT)

    need more help?

    contact us


    Tenants Victoria | Published: June 2019 | Modified: June 2019
    Tenants advice line 03 9416 2577 | tuv.org.au
    Tenants Victoria acknowledges the support of the Victorian Government.

    Tenants Victoria acknowledges the support of the Victorian Government.