DOMESTIC VIOLENCE AND TENANCY LAWS
State and territory governments are amending tenancy legislation to provide greater options and support for Australians facing family and domestic violence. While the amendments are designed to better respond to those suffering abuse, they also affect landlords and property professionals who manage rentals…
A home should be a sanctuary, a refuge, a place of safety. But for some, the home is the scene of abuse. Statistics from the ABS reveal that one in six Australian women and one in 16 men have been subjected, since the age of 15, to physical and/or sexual violence by a current or previous cohabiting partner.
People escaping violence often flee with little more than the clothes on their back. If the survivors are in a rental, they often have little choice but to break the lease and abandon the property, accrue rent arrears and damage bills, and often leave behind all of their possessions.
Most state and territory governments have recognised the challenges facing these tenants and have moved to legislate to make it possible for them to leave rented accommodation without additional financial and legal imposts. Previously, if a lease was terminated early, all tenants were held equally responsible for break-lease expenses and any damage to the property. In addition, the lease could not be broken without first applying to a tribunal or court for an order. The penalties for not following the process and fulfilling contractual obligations could be harsh and included blacklisting and loss of bond. Ultimately, the process left the survivor tenant in a vulnerable position as they looked to escape the perpetrator and seek new accommodation.
Depending on the jurisdiction (state by state varies), changes to tenancy legislation have provided added protections and generally made it possible for the survivor tenant to immediately break their lease without penalty, not be held liable for rent arrears or damage caused by the perpetrator, and not be blacklisted on a tenancy database.
These safeguards are essential to help protect the survivor of abuse. But the financial impacts then fall to the landlord who is often left with:
- an abandoned property that must be re-let once the legalities are taken care of, or left trying to evict the perpetrator tenant
- responsibility for disposing the tenant’s abandoned possessions (in accordance with legislative requirements)
- unpaid rent
- unpaid utility charges
- the costs of repairing malicious damage to the property (the rental often bears the brunt of aggression too).
In the end, the landlord can be left thousands of dollars out-of-pocket and often with no recourse to recoup their losses (though they may be able to take legal action against the perpetrator tenant or the person responsible for causing damage).
Luckily, property owners with landlord insurance will often have their losses covered by their insurer, making landlord insurance an important financial safeguard.
Landlords should check with the insurance provider to see if their property is covered for incidents relating to family and domestic violence including rent default and damage caused by malicious acts- remembering of course that many policies have been changed due to the Covid19 pandemic.
The Victorian Parliament passed the Residential Tenancies Amendment Act 2018 in September 2018. The new laws include reforms concerning family and domestic violence (FDV).
This is what landlords/agents need to know:
- If your survivor tenant has a family violence safety notice or a family violence intervention order they can change the locks (at their expense) without your permission, but they must give you a set of the new keys. The survivor tenant needs your written consent to make any other changes to the property like installing security measures. Unless you agree otherwise, they will need to restore the property to the condition it was in before the changes were made or compensate you for restoring the condition when they leave.
- If your survivor tenant has a periodic (month by month) lease, they can end the lease at any time by giving you 28 days’ notice in writing.
- Your survivor tenant or perpetrator tenant can apply to VCAT to end a fixed term lease early.
- If your survivor tenant has a final intervention order and wants to stay in the rental without the perpetrator tenant, they can apply to VCAT to end the existing lease and start a new lease, even if they aren’t currently listed as a renter.
- VCAT can decide to end the lease early if your survivor tenant (or the perpetrator tenant) would suffer severe hardship (if the lease continued) greater than any hardship you would suffer.
- VCAT will decide if you should be compensated due to the lease being ended early – and who will pay the compensation.
- VCAT will decide how a bond (if any) will be refunded and who will be responsible for paying any outstanding expenses on the existing lease (e.g. repairs or bills).
- If VCAT makes an order to break the lease, you can’t charge your survivor tenant any break-lease fees.
- If VCAT decides in favour of a new tenancy agreement, you can arrange a property inspection and ask for a new condition report.
- If your tenants have left behind goods, you need to advise Consumer Affairs, and tell them family or domestic violence has occurred so they can arrange for the goods to be removed.
- You can negotiate with your survivor tenant to end a fixed term lease early if they want to leave, or have the lease changed into their name if they want to stay. You can also negotiate with the perpetrator tenant to end a lease.
- Renters are responsible for damage to the property caused by family or domestic violence. Your survivor tenant can apply to VCAT to determine who is responsible for paying for any damage to the property. VCAT may decide that the costs should be paid by the survivor tenant, the perpetrator tenant or other renters.