Application for possession order where termination order made before 28 March 2021
A rental provider may apply to VCAT for a possession order supported by a termination order made before 28 March 2021 under Part 16 of the Act.
A reference to the termination date specified in the notice to vacate or notice of intention to vacate accompanying the application for a possession order is a reference to the termination date specified in the termination order.
Eligible disputes will be referred to VCAT
If an eligible dispute has not been referred to the Chief Dispute Resolution Officer (CDRO) or to VCAT under the Residential Tenancies (COVID-19 Emergency measures) Regulations 2020 before 28 March 2021, then the Director Consumer Affairs Victoria (CAV) must refer the eligible dispute to VCAT.
VCAT will deal with an eligible dispute in accordance with Part 16 of the Act, as if Part 16 had not been repealed.
Eligible disputes not resolved by alternative dispute resolution (ADR)
Where the Director CAV referred an eligible dispute to the CDRO before 28 March 2021, the CDRO must give written notice to VCAT and the parties that the dispute has not been resolved by ADR if the CDRO has:
- not made a decision whether to accept the eligible dispute for ADR;
- accepted the eligible dispute for ADR but has not prepared a written agreement in respect of the resolution of the eligible dispute, made a dispute resolution order, given written notice to the parties that the eligible dispute is no longer suitable for ADR, or given notice to the parties that the eligible dispute has not been resolved by ADR; or
- decided not to accept the eligible dispute for ADR but has not given written notice of that decision to the parties.
VCAT will deal with an eligible dispute in accordance with Part 16 of the Act, as if Part 16 had not been repealed.
Amendment, cancellation or extension of dispute resolution order made before 28 March 2021
Where a dispute resolution order (order) is in force before 28 March 2021, on or after this date, a party or all of the parties referred to in the order may apply to VCAT to amend, cancel or extend the time for compliance with the order if:
- a party or all the parties seek to amend, cancel, or extend the time for compliance with the order, or
- a party or the all the parties requested to amend, cancel or extend the time for compliance with the order and the CDRO has not yet made a decision to amend, cancel or extend the period for compliance with the order.
The application must be made to VCAT within 60 days after the order was given to the party or within a longer period, if VCAT is satisfied that special circumstances exist.
VCAT may amend, cancel, or extend the period for compliance with the order, if there has been a substantial change in the parties’ circumstances or if satisfied that the failure or inability to comply with the order was due to factors outside the party’s control.
Breach of dispute resolution order made before 28 March 2021
Where a party thinks that an order in force before 28 March 2021 has not been complied with, the party may apply to VCAT if:
- the party applied to the CDRO before 28 March 2021 for a written notice stating that there appears to have been a breach of the order and the CDRO has not given the notice on or before 28 March 2021; or
- on or after 28 March 2021, a party to the order considers that the order has not been complied with (whether the non-compliance occurred before, on or after 28 March 2021).
VCAT may determine the application and make any orders it considers appropriate. In determining the application, VCAT must consider whether:
- the order was made by consent and the reasons for making the order,
- the conduct of parties since the order came into effect, and
- any statement from the CDRO that the party did not participate in mediation or conciliation, or did not participate in good faith.
Failure to comply with a written agreement prepared by the CDRO before 28 March 2021
If a party thinks that a written agreement prepared by the CDRO before 28 March 2021 has not been complied with, they may apply to VCAT if:
- the CDRO has not taken any action before 28 March 2021, after receiving written notice from a party to the written agreement that the agreement has not been complied with, or
- on or after 28 March 2021, a party to the written agreement thinks that the agreement has not been complied with (whether the non-compliance occurred before, on or after 28 March 2021).
The written agreement must have been prepared by the CDRO after the parties resolved their dispute by mediation or conciliation and the parties chose to enter into a written agreement, rather than consent to the making of an order.
If VCAT is satisfied that the agreement has not been complied with, it may amend, extend the time for compliance, or terminate the agreement and make any orders it considers appropriate.
Renters do not have to pay compensation or lease break fees in certain circumstances
If a renter terminates their fixed term tenancy agreement early in either of the following circumstances:
- the renter gave a notice of intention to vacate before 28 March 2021 and vacated the rented premises before, on or after 28 March 2021 because they:
- require special or personal care
- are moving into public or community housing
- require temporary crisis accommodation
- are a specialist disability accommodation (SDA) resident and have been given a notice that the SDA provider’s registration, or enrolment of the SDA dwelling, has been revoked
- are suffering severe hardship
- have been notified that the rental provider or mortgagee has applied to VCAT to terminate the tenancy
- are experiencing family violence or personal violence and have a relevant order; or
- VCAT made an order under section 543 of the Act reducing the term of the fixed-term tenancy agreement because of severe hardship (which includes family violence and personal violence),
the renter does not have to pay compensation to the rental provider for any loss suffered because of the early termination of the tenancy agreement or pay any lease break fees.
Site tenants do not have to pay compensation or lease break fees in certain circumstances
If a site tenant terminates their site agreement early in either of the following circumstances:
- the site tenant gave a notice of intention to vacate before 28 March 2021 and vacated the site before, on or after 28 March 2021 because they:
- require special or personal care
- are moving into public or community housing
- require temporary crisis accommodation
- are suffering severe hardship
- have been notified that the site owner or mortgagee has applied to VCAT to terminate the site agreement, or
- are experiencing family violence or personal violence and have a relevant order; or
- VCAT made an order under section 576 of the Act reducing the term of the site agreement because of severe hardship (which includes family violence and personal violence),
the site tenant does not have to pay compensation to the site owner for any loss suffered because of the early termination of the site agreement or pay any lease break fees.
No breach of duty or term if COVID-19 reason
A renter, rental provider, resident of a rooming house or caravan park, rooming house operator, caravan park owner, caravan owner, site owner, site tenant, SDA provider or SDA resident is taken not to have breached a term of an agreement or a duty provision under the Act if:
- the breach occurred before 28 March 2021; and
- they were unable to comply with the term or duty provision because of a COVID 19 reason.
No listing on residential tenancy database if breach because of a COVID-19 reason
A rental provider or database operator must not list a renter on a residential tenancy database where the renter breached the rental agreement before 28 March 2021 by not paying rent because of a COVID-19 reason.
Applications for warrants of possession where possession order made during the moratorium or subject to section 613
If:
- an application for a possession order was made before 25 April 2020 and the possession order was made on or after 29 March 2020; or
- a possession order was made before 29 March 2020 and section 613 of the Act applied to the possession order immediately before that section was repealed,
a rental provider, rooming house operator, caravan park or caravan owner, site owner, SDA provider or mortgagee is not entitled to obtain a warrant of possession under section 7 of the Act and a warrant of possession must not be issued in accordance with section 351 of the Act despite any direction on the possession order.
Notices to vacate for the non-payment of rent
A notice to vacate must not be given for the non payment of rent (or for successive breaches by a site tenant of the duty to pay rent) and any notice given is of no effect if:
- an eligible dispute is referred to VCAT by the Director CAV and the dispute is about a payment related matter; or
- the CDRO issued a notice to the parties and VCAT that the dispute has not been resolve by ADR and on and after 28 March 2021 a payment related application is made to VCAT in respect of eligible dispute.