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Tales from the Tenancy Vault: Squatting and Other Illegal Occupations

Hi there housing staffers. It’s Mark Smoljo with your monthly episode of Tales from the Tenancy Vaults. This month I want to talk about what happens when your properties are occupied by people who shouldn’t be there. This seems to be happening a lot lately – I’ve certainly been getting a number of phone calls about it on the CHIA Vic Help Line. It’s probably a reflection of the housing crisis that Victoria is experiencing. There are many people desperate for housing so if they hear of a vacancy or notice an empty property they seize the chance to occupy it.

There are two broad types of illegal occupants:

  • Relatives or friends of your ex-tenant who has now departed.
  • Strangers unknown to you or the previous tenant – classic ‘squatters’

Family and friends

  1. If your registered tenant has not given notice or otherwise made you aware that they have gone, then they have effectively ‘assigned’ the property. You should firstly try to talk to the occupants and explain to them that they can’t keep staying there. If that doesn’t work, you will  need to send a notice to vacate under section of the Residential Tenancies Act (RTA) to your registered tenant (the previous occupant). After adequate time for postage you can then apply to VCAT for an order of possession. Once you get your order you can apply for a warrant and get the police to remove the occupants while you change the locks.
  2. If your registered tenant has given you notice or you have evicted them, then their relatives or friends are occupying the premises without your permission. In this case, again try to talk to the occupants and explain to them that they can’t keep staying there.

If that doesn’t work this time you will  need to apply to VCAT under Section 344 for an order of possession where rented premises are occupied without consent. Send a copy of your application by registered post to ‘The Occupants’ at the address of the rented premises.

At the hearing, the Tribunal may either direct the principal registrar to issue a warrant or require you to fix a prescribed notice to the front door of the premises. They will usually do the latter. The notice will request the occupants to appear before the Tribunal on a day after the end of seven days after the giving of the notice and show cause why a warrant of possession should not be issued.

If they don’t show at the Tribunal, then the Tribunal will direct the principal registrar to issue a warrant ‘without delay’. If they do show, then the Tribunal will hear both sides of the argument and decide whether you are entitled to a warrant of possession. In these cases there is no need to apply for a warrant and there is no charge for the warrant.

In both of these scenarios you need to consider whether a tenancy has been created. If the tenant has been living there for a number of years (e.g. family, partners that were not ‘registered’ tenants), and especially if they have been paying rent, then a tenancy may have been created, and you should just sign them up.

The only argument you could have against this is if these occupants did not meet your eligibility criteria. The Tribunal certainly might consider that a tenancy has been created in these circumstances if the case gets to them.

If they have not been living there then you can use arguments about eligibility and the sanctity of your waiting lists in the Tribunal hearing.

Squatters

Where the premises are occupied by strangers unknown to you or the previous tenant, you have two choices. The simplest one is to just consider them as trespassers, report the matter to the police and go and change the locks and make sure the property is secure. The second (much slower) alternative is to use step two above.

Whichever of these methods you use, always remember OH&S. If you are concerned about your safety with illegal occupants always go the property accompanied by a colleague or the police.

One final points about illegal occupations – the best way to avoid them is to fill vacancies quickly. The shorter the time a property is vacant, the less chance there is of it being illegally occupied!

If you have any questions on this, or suggestions for future topics, please email Mark Smoljo, or you can ring him at the office on 9654 6077 on a Monday or Thursday.

 

Minor Residential Tenancies Act reforms begin

Consumer Affairs Victoria (CAV) have announced that selected reforms to the Residential Tenancies Act 1997 came into effect on 3 April 2019. All remaining reforms will be fully implemented by July 2020.

The reforms that came into effect on 3 April include suppression of rooming house address details, and a new prescribed agreement for long-term leases.

These may be of interest to some community housing organisations if you are running rooming houses for residents in danger of family violence, or if you are intending to use the new option of running long-term leases.

Suppression of rooming house address details

Rooming house operators can now apply to the Director of Consumer Affairs Victoria to stop the public from seeing the address of the rooming house on the Rooming Housing Register.

The Director will only restrict public access to the address on the register when there are exceptional circumstances. These may include suppressing the address of a rooming house run by:

  • a housing agency registered under the Housing Act 1983, or
  • a non-government organisation funded to deliver family violence services.

Suppression in these circumstances may be approved to help protect residents threatened by interpersonal or family violence.

Operators and applicants (anyone applying for a rooming house registration to be issued, renewed or transferred) must make their request to the Director in writing. Click here for more information

Long-term leases – new prescribed agreement available

A new prescribed agreement for long-term leases is now available. The agreement includes additional benefits and protections for both rental providers and renters.

For Victorian landlords and tenants seeking security and stability, the new long-term lease agreement provides options for both parties to tailor the terms of the agreement upfront, including rent increases, minor changes to the property and bond top-ups. Use of the new agreement is optional and the standard prescribed tenancy agreement can still be used for long-term leases.

Click here for more information about long-term leases, including the new prescribed long-term tenancy agreement.

 

 

Fund houses homeless

Minister for Planning, Housing and Multicultural Affairs, Richard Wynne presented Women’s Property Initiatives with the keys to the newly-built home in Ashwood this week.

The stunning home has been developed through the work of the Victorian Homeless Fund — a group of volunteers supported by the Housing Industry Association (HIA) who strive year-round to assist the homeless by building and renovating houses.

The fund’s mission is to ‘build a house and give away a home’.

Generously built by SJD Homes and an extensive group of donors, suppliers and trades, the house has been named in honour of former Victorian Homeless Fund committee member, Brian O’Donnell.

The house has been donated to WPI to provide a home for a home for a female led family in need.

At the opening, Victorian Homeless Fund Chair Colleen May talked about the power of people working together to make a difference.

CEO of Women’s Property Initiatives, Jeanette Large said, ‘This beautiful home will change the future for single mum, Maria, and her three boys aged 15, 13 and 6 when they move in this week.

‘They have been through some very rough times and are desperate for stability and security. We are so grateful to the Victorian Homeless Fund that we can now provide them with this long-term home.’

Maria said that after years of waiting for a stable and appropriate home, this is like a dream come true. ‘We never thought that we would ever get to live in a house like this.’

 

Inclusionary zoning impact zero to date

A National Shelter’s investigation into inclusionary zoning has found it has found that, to date, it has had a negligible outcome in Victoria.

‘The (Victorian) State Government has focussed on a voluntary agreements approach. There is lots of talk and lots of training about how to negotiate agreements but in the absence of mandatory requirements, progress is slow,’ the report states.

National Shelter’s report writers scanned recent literature, current inclusionary zoning arrangements in each state and territory and conducted a survey of over 350 respondents to their survey the various state and territory approaches to inclusionary zoning.

An overwhelming 97 per cent of respondents thought that action was needed to  improve housing affordability across Australia and 81 per cent agreed that incentives should be provided to developers to achieve inclusionary zoning requirements for the supply of social and affordable housing.

The organisation plans to advocate for Inclusionary Zoning as a planning tool.

‘It may not be “the answer” but, along with other measures, it could become an important layer in the suite of measures we need to create, to improve the supply of affordable and social housing in Australia.”

Click here to read the report.

HousingFirst partnering with Vic Gov

Haleh Homaei,Chief Executive Officer of HousingFirst, is delighted to be the first Victorian community housing provider selected to partner with the Victorian Government as part of an innovative public housing regeneration project.

“With over thirty years’ experience providing housing for low-income and vulnerable people across Melbourne, HousingFirst will provide high-quality tenancy and property management services across the three ageing public housing sites undergoing major redevelopment in Preston, Northcote and North Melbourne.

HousingFirst’s investment in the project will see up to an additional 64 community housing properties built on the Preston site, for people on the Victorian Housing Register.

The State Government has guaranteed all existing public housing residents can return to live at their original estates in Director of Housing-owned homes, if they wish.  HousingFirst is fully committed to this outcome.

Once the redevelopment is completed, HousingFirst will deliver resident-focused, property and tenancy management services for all the social housing properties across the sites, including Director of Housing-owned properties.

All dwellings will be built, by Melbourne-based property development company MAB Corporation, to the highest standards of accessibility and with 7-star energy ratings, ensuring they are cost-efficient to heat and cool.

Plans also include high-quality urban design and improvement of open spaces. The revitalised precincts will include community rooms, recreation spaces and artist studios.

HousingFirst is pleased to be working again with MAB Corporation, with whom it has co-developed two other social and affordable housing projects, in Moorabbin and Box Hill.

With all such projects, careful planning and design and high-quality construction, are  followed with high-quality property and tenancy management services and a rich community-development programme, leading to significant measurable increases in resident satisfaction and community cohesion – not only among social housing tenants, but across all residents and neighbours of the developments.

HousingFirst is very pleased to be working with the Victorian Government and bringing our expertise and experience to this redevelopment project; to demonstrate how good social housing can be when it is well-planned, well-built and well-managed.”

Chintaro seeking Customer Support & Training Officer

Chintaro is looking for an experienced Customer Support and Training Officer to provide world-class technical support for our software product for both new and existing clients.  The successful candidate will be ideally located in Melbourne.

The Customer Support and Training Officer is responsible for solving/identifying technical and software issues, installing software, answering support calls and managing customer expectations.  Support tasks may include configuring on-premise/hosted installations of Chintaro, answering basic software application questions, documenting issues/bugs and assisting customers with any technical issues.  This role is predominantly client-facing so proper representation of Chintaro and MDB Consulting, as well as industry and software knowledge is paramount.

Click here for more information or Contact Us to make a time to discuss.

Ta ta to Mark O’Brien

It is with a mix of sadness and good wishes that we say goodbye to Mark O’Brien as he departs as CEO of the Tenants Victoria. It has been a pleasure working with him.

He has been a tireless advocate of the cause of Victorian tenants over the last 30 years. In debating tenancy law reform, he has always been very reasonable in his approach to community housing. He was experienced enough to be able to see things from the perspective of housing workers dealing with difficult communities, as well as from that of the tenant.

He realised the need for balance, while always advocating strongly on behalf of tenants. A number of the reforms included in last year’s Residential Tenancies Amendment Act are measures that he been promoting for many years. On behalf of the community housing sector we’d like to wish him all the best for the future.

 

Tales from the tenancy vault – keys

 

Hi there housing staffers. It’s Mark Smoljo. I run the CHIA Vic Help Line, where I try to answer questions from tenancy workers about anything  to do with the Residential Tenancies Act (RTA), taking matters to VCAT, or tenancy management practices in general. Obviously you should talk to your experienced colleagues first about a matter you are not sure on. However, if you are stuck you can always call me.

Decades running rooming houses and every other kind of accommodation, plus a frequent flyer card for appearances at VCAT mean that I have come across most things that are raised, but I still get a few out of left field. What can you do about someone keeping bee hives on the balcony of a rooming house in St Kilda?

Each month in our eBulletin I am going to highlight an area of tenancy management that has come up as part of my work here at CHIA Vic. This month it is key management. As I talk to and travel around community housing organisations I think that it is a somewhat neglected area that some groups could improve on. Here are a few suggestions:

  1. Have an organised key cupboard, with at least 2 copies of each set of keys. Each set should contain all the keys required for that particular property.
  2. Make sure that you do, in fact, have duplicate copies of each key in your program. I have been shocked to find a few examples where groups do not actually have all of these. How are you going to gain access for a repair or an inspection, let alone in an emergency, if you don’t have a set of duplicate keys?
  3. If you don’t have a duplicate key because the tenant has changed the locks then you can ask them to supply you a copy. If they don’t you should issue a Breach of Duty Notice under section 70(2) of the RTA.
  4. If you don’t have a duplicate key for some other reason, then you should ask the tenant if you can make a copy. If they don’t co-operate you have a choice of sending the tenant a notice under 86(1)(c)  that you will attend with a locksmith to change locks and keys OR make an application under s452 because a dispute has arisen and get VCAT to make an Order.
  5.  If you work with security keys, and particularly, with restricted master systems, make sure you have a key register and that you keep it up to date. You should know where each copy of each security key is at any time. I once worked as a locum at a rooming house and was given a copy of the ‘grandmaster’ key that opened up hundreds of doors in a number of houses. I noticed that I had been given copy no. 14. I enquired where the other 13 were. 3 were with fellow housing workers, 1 was with the boss, 1 was with the fire brigade, 2 were in the key cupboard, and the other 6 were unaccounted for. This is not good enough for such an important key. I have proformas that you can use for key registers. If you want one you can email me
  6. Have a sign in and out book for keys, preferably linked with your key register. This is particularly important where tradies are taking keys for maintenance jobs. For security keys, record which copy they took. My experience is that this is a common cause of keys disappearing forever.
  7. When you change a lock remember to swap the sets of keys in the key cupboard AND to record this change in the key register. Remember to change the copies in the key cupboard if you are using bi-lock or fob systems too.
  8. If you are using card systems that are programmed electronically you need to have a recording system for this too.

Keys are a very important part of a housing worker’s life. You must be able to produce a spare key for a tenant or a tradie. If you can’t guarantee the integrity of a security system then it may have legal consequences for your organisation.

If you have any questions or suggestions please email or you can ring me at the office on 9654 6077 on a Monday or Thursday.

Dear Landlord…

Justice Connect Homeless Law has recently developed the prototype of its first-funded digital innovation tool Dear Landlord: Building tools and knowledge to prevent homelessness for Victorian women and children.

Dear Landlord involves knowledge and tools – for low income women, support workers, real estate agents and landlords – geared towards raising awareness and fostering practice-based change that prioritises eviction prevention.

The initial version of Dear Landlord has been favourably reviewed internationally and nationally as a promising and practical way to improve access to justice. Over the next two years, Dear Landlord will allow Justice Connect to scale up its impact and reach by using its eviction prevention expertise to create digital resources and education materials.

Justice Connect is progressing Dear Landlord through user-centred design testing and exploring ideas about the best ways for people to access legal help if they are in rental arrears. It will be running more user-testing with people who have lived experience of housing insecurity and homelessness, housing workers, real estate agents and landlords, and later this year, it will be rolling-out a targeted cross-sector and help-seeker education program.