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.

 

 

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.

RTA reforms announced

Reforms to the Residential Tenancies Act were announced this weekend, and CHIA Vic expects the full details of all the proposed changes will soon be made public.

Reforms in the Bill include requirements for rental homes to meet basic standards, including safety standards for gas, electricity and smoke alarms.

Other changes relevant to the community housing industry include:

  • rent increases limited to once a year
  • renters will have the ability to make minor modifications without needing consent of the landlord
  • clearer rules on how to deal with goods left behind
  • written consent of the landlord will no longer be required to release bond, although landlords will have 14 days to raise a dispute
  • tenants will be able to terminate rental agreements if in a family violence situation

We will let you know when the details of the changes are released.

Read the media release
See the Rent Fair reforms
See full details of the review and consultation on the reforms:

Residential Tenancies Act Reforms

The Victorian Government has issued a media release announcing proposed reforms to the Residential Tenancies Act, including:

  • ‘Cracking down on rental bidding’ by mandating that rentals be advertised at a fixed price and ensuring that prospective tenants cannot be invited to make an offer at a price higher than the fixed price.
  • Limiting rent increases to once a year.
  • Abolishing ‘no specified reason’ notices to vacate.
  • Placing new restrictions on ending leases without a reason at the end of a lease when that lease has lasted more than one fixed term.
  • Giving every tenant the right to own a pet. While landlords will still need to provide consent, they will only be able refuse in certain circumstances.
  • Making it easier for tenants to make minor modifications to a rental property, such as installing hooks for picture frames.
  • Ensuring faster reimbursements for tenants who pay for urgent repairs.
  • Capping bonds at one month’s rent where the rent is twice the current median weekly rent – currently equivalent to $760 per week or less.
  • Tenants will be able to apply for the release of their bond without written consent from their landlord, who will have 14 days to raise a dispute before the bond is repaid automatically.
  • Introducing a landlord and estate agent blacklist available to renters.
  • False, misleading, and deceptive claims by landlords will be outlawed.
  • A new Commissioner for Residential Tenancies will be set up to help champion the rights of Victorian renters and give them a voice in future reform of renting laws over the years to come.

The media release focuses on the proposed changes that improve rights for tenants.  A list of these specific suggestions can be found at rentfair.vic.gov.au   At this stage there is no more comprehensive document that looks at all the other changes to the Act that were canvassed during the two-year consultation period.

Many of the proposed improvements to the rights of tenants are long overdue and a good thing. The only areas of potential concern for housing managers are the removal of the 120-day NTV for no specified reason and the new provisions for pets.

Most registered housing associations and providers use the 120-day notice and believe that this option should be retained. There are strong arguments for removing it as well, given the potential for misuse in the private rental market.

The effect of its removal for CHOs will very much depend on whether the new legislation includes some of the earlier suggestions we made regarding dealing more effectively with tenants that are causing danger, damage and anti-social behaviour; providing for housing worker and contractor safety; and, being able to terminate transitional tenancies where tenants have refused a reasonable offer of alternative accommodation. None of these suggestions are mentioned in the media release.

Most of the proposed changes regarding pets should be fine and are fairly close to current practice for the community sector. However, the Rentfair website specifically says that ‘landlords cannot refuse consent for assistance dogs’, which could be a problem if this included rooming houses.

Click here to leave your comments on these two issues or any others.

From here on, there will be a more detailed document released by the end of the year and a targeted consultation, hopefully including CHIA Vic, regarding the draft bill early next year.