In brief - This is the first article in our five-part series on changes that come into effect on 29 March 2021 impacting landlords (rental providers)

The Residential Tenancies Amendment Act 2018 changes the terminology used for residential tenancies: "landlords" become "rental providers", "tenants" become "renters" and "tenancy agreements" become  "rental agreements". 

Amendments that do not apply to rental agreements entered into before the changes take effect include lease forms, invalid or prohibited terms, condition reports, maximum bond and rental threshold increases.

Other changes to be aware of include that renters and rental providers can enter into a fixed-term rental agreement for longer than 5 years.

VCAT may order, on application by a renter, to have a listing in a residential tenancy database amended or removed if it is satisfied that the listing is or would be unjust having regard to the information listed, the conduct of the renter and whether the listing would have a disproportionate impact on the renter's ability to access future rental accommodation.

The Director of Consumer Affairs must establish and maintain a register of rental providers who have been ordered by VCAT to remedy a breach, pay compensation or refrain from committing a breach, or who have committed an offence under the Act. The Director may publish the register in any form he or she sees fit. The Director must not keep information on the register about a rental provider for longer than three years.

Links to the other articles can be found at the bottom of the page.

What you need to know about rental agreements

Rental agreement application forms must contain a statement that includes the prescribed information (see Form 3 in Schedule 1 of the Residential Tenancies Regulations 2021 (Regulations)).

A rental provider and their agent must not induce someone to enter into a rental agreement by making false or misleading representations, or through misleading or deceptive conduct, including concerning the rent payable, the premises and the existence of facilities associated with the premises.

A rental agreement must not include a prohibited term, including a term that:

  • requires a renter to take out any form of insurance;

  • exempts a rental provider or its agent from liability or requires the renter to indemnify the rental provider;

  • requires the payment of rent by a method involving additional cost;

  • imposes liability for safety-related maintenance which is a rental provider's responsibility;

  • provides for the renter to pay increased rent, the remaining rent, a penalty or liquidated damages if they breach the agreement;

  • requires the premises to be professionally cleaned at the end of the tenancy or for the renter to pay for professional cleaning of the premises, unless the term provides that it is required to restore the premises to the condition they were in immediately before the start of the tenancy taking account of fair wear and tear;

  • provides for the rent to be reduced or a rebate to be paid if the renter does not breach  the agreement.

Enforceability and formalisation of rental agreements

If a renter has signed a tenancy agreement but the rental provider has not, the agreement is still enforceable if the rental provider (or its agent) accepts the rent without reservation or otherwise acts in part performance of the agreement.

A renter may apply to VCAT for an order requiring the rental provider to enter a written rental agreement with the renter, where a rental agreement has ended but the renter has continued in occupation or a rental agreement already exists but it is not in writing or is only partially in writing.

Assignment rental agreement

A rental provider may require a renter to pay any reasonable expenses that are reasonably incurred by the rental provider because of the assignment of a rental agreement (although they still cannot charge a fee).

Rental applications do's and don’ts

A rental provider or their agent must only use personal information disclosed in a rental application to assess the applicant’s suitability as a renter or to comply with the Act.

A rental provider or their agent cannot request that a renter disclose:

  • whether they have been a party to an action or had a dispute with a rental provider;

  • their rental bond history;

  • a bank or credit card statement containing daily transactions;

  • any information related to a protected attribute under the Equal Opportunity Act 2010.

Rental providers must not unlawfully discriminate (or instruct their agent to unlawfully discriminate) against renters by refusing to rent premises to an applicant, issuing a notice to vacate to a renter or determining consent because of a protected attribute under the Equal Opportunity Act 2010.

The rental provider must disclose certain information to  the renter, including:

  • whether the premises are on the market for sale or are being repossessed;

  • if they are not the owner of the premises;

  • information about any embedded energy network;

  • if there has been a homicide in the premises in the last five years;

  • if the premises is affected by a building or planning application;

  • if the premises are subject to a building notice;

  • a copy of any notice, order or recommendation issued relating to the premises regarding safety or defects; and

  • if the premises contains asbestos.

If the renter and rental provider have agreed to give and receive documents electronically, the rental provider may give the renter the "Renting a home: a guide for tenants summary of renter rights" in electronic form.

What about pets?

Pets may be kept at premises with the written consent of the rental provider. Renters must  request consent using the prescribed form and a rental provider must not unreasonably refuse consent. A rental provider is taken to have consented unless they apply to VCAT for an order that it is reasonable to refuse consent within 14 days of the request for consent.

Click on the links below to read more:

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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