This factsheet is for residential and commercial tenants and landlords whose property has been affected by a disaster. It will explain your legal rights and options, and has the contact details of organisations that can help you.
My house or unit has been damaged or destroyed in a disaster and is no longer OK to live in. What can I do?
I am a tenant. The property is unfit to live in. What are my options?
If you are the tenant (you are renting) and the house is unfit to live in or has been destroyed totally – or to such an extent that it is unsafe (for example there is a structural defect, or there is a risk of injury) – you do not have to keep living there. You will need to end the lease. There are two ways to do this. You can:
- get agreement from your landlord or agent that your house is “unfit for habitation”. It is best to get this agreement in writing. If you get an agreement, you do not have to give notice.
- give your landlord an immediate notice of intention to vacate, move out and return the keys. You can use the Notice to Landlord of Rented Premises form available from the Consumer Affairs Victoria website.
I am a landlord. What are my options?
If you are a landlord (you own the property) and it is unfit to live in or has been damaged to such an extent that it is unsafe, you can end the lease by giving the tenant an official Notice to Vacate to Tenant/s of Rented Premises. This form is available from the Consumer Affairs Victoria website.
You can give the tenant an immediate termination date – that is, the same date that you issue the Notice to Vacate. Alternatively, you may want to try to work out an agreement with the tenant.
You do not have to help the tenant find another place to live in but your help might be appreciated.
You are also allowed to inspect an unfit property, but you must let the tenant (if they still live there) know in advance that you are doing this.
I am a tenant and I do not know the degree of damage
If you do not know about the state of your premises because you have been denied access, you do not yet have reason to terminate. Options in this instance include:
contacting the landlord to attempt to end the tenancy by consent, although you should be cautious not to agree to give up any rights to compensation.
applying to VCAT for a reduction of your lease if you are on a fixed-term tenancy. However, VCAT may order you to pay compensation to the landlord, and you will also have to wait until the VCAT hearing.
giving 28 days written notice of your intention to vacate to the landlord if you are subject to a periodic lease. You could potentially claim the rent paid for that period as compensation if you were denied access.
Can I challenge a notice?
Landlords or tenants can challenge a notice
Can I get my bond back if the house is unfit to live in?
If you are renting, you should be able to get your bond back (minus any rent that is still owed) if your house or unit can no longer be lived in and your lease has been terminated.
Your bond should have been lodged by the landlord with the Residential Tenancies Bond Authority (RTBA). You will need to “claim” back your bond through the RTBA by filling in a form with the landlord and sending it to them. You can prepare and print out repayment claim forms at the RTBA website. They will usually repay the bond within 48 hours of getting a completed form.
Landlords can only get bond money back at the end of a lease if rent is owed or if repairs or cleaning were needed because of the tenant. This does not apply to bushfire or disaster damage.
For more information, see the Tenants Victoria factsheet bond recovery.
I am behind on my rent – will this affect my bond?
The landlord could make a claim against the bond if at the end of the tenancy you are behind in your rent. The landlord must apply to VCAT (Victorian Civil and Administrative Tribunal), if they want to keep the bond and you disagree. You can also apply to the Tribunal if you would like your bond returned and the landlord has not done so.
My goods were damaged. Does my landlord have to compensate me?
Your landlord may be liable to compensate you if the damage was caused by a failure to maintain the premises properly and in good repair. Your landlord does not have to compensate you if the damage was for reasons beyond their control. You should seek urgent legal advice on this point. The landlord’s insurance will not cover a tenant’s goods. Tenants should insure their own property.
My house or unit has been damaged but it is still okay for me to live in. What can I do?
If you are renting, you need to contact your landlord or agent immediately. You also need to determine whether the repair needed to fix the damage is “urgent”. Urgent repairs include things such as a gas leak, burst water service, dangerous electrical faults or anything that makes the property unsafe or insecure.
Your landlord should attend to urgent repairs without delay, even if they have not yet got their insurance payout from the insurer. If repairs are not done within two to three days, you can apply to VCAT for an order that the repairs are to be carried out. Your landlord may have to cover the cost of things you had to pay for because the repairs were not done urgently (such as having to stay in a hotel).
If you cannot contact your landlord, you can get the urgent repairs done by a professional, up to the cost of $1800 (including GST). If you cannot afford to pay for this, or the repairs are over $1800, you can apply to VCAT. VCAT must hear any application for urgent repairs within two business days and can order the landlord to pay for the repairs.
If the damage is not urgent, you can give a notice to the landlord for the repairs to be carried out within 14 days.
Can the rent be put up?
There are laws that landlords have to follow about increasing rent. Rent can only be increased once every six months during a month-to-month lease and rent cannot go up during a fixed-term lease unless this is in the written lease agreement.
If a landlord is able to, and wants to increase the rent, they must give the tenant at least 60 days’ written notice using the official Notice of Rent Increase to Tenant/s of Rented Premises form. This is available at the Consumer Affairs Victoria website. If you consider the proposed rent increase excessive, you can apply to the Director of Consumer Affairs Victoria within 30 days after this notice is given to investigate and report on the proposed rent. Excessive rent is determined according to the accepted market rental value of the premises.
Landlords and tenants should always check their lease to see if it says what will happen when the property is damaged.
The landlord and tenant may agree to terminate the lease if the premises are damaged or destroyed. Except where a tenant has caused the damage, they are not liable to pay rent, outgoings or other charges in any period during which the premises cannot be used under the lease, or in which they are inaccessible due to that damage.
Similarly, a tenant’s liability for rent, outgoings or other charges may be reduced where the premises have been damaged, but are still able to be used, albeit in a reduced capacity. The reduction will be attributable to any period during which the use is reduced. This will not apply where the tenant has caused the damage.
The Retails Leases Act 2003 states that:
- If the landlord reasonably considers that the extent of damage makes its repair impracticable or undesirable, and notifies the tenant in writing of that, the landlord or tenant may terminate the lease by giving not less than seven days' written notice of termination to the other party; and
- If the landlord fails to repair the damage within a reasonable time after the tenant asks the landlord in writing to do so, the tenant may terminate the lease by giving not less than seven days' written notice of termination to the landlord.
If the lease is made under the Retail Leases Act 2003, the landlord must maintain the property in the same condition that it was originally leased in. This includes the structure, fixtures, equipment, appliances and fittings. If you are a landlord, you do not have to fix any problems caused by your tenants misusing the premises or equipment. The lease does not cover any equipment that the tenant must remove at the end of their tenancy.
I am a tenant. What are my options?
If you are a tenant, and the repairs are urgent and needed so you can continue your business, you can arrange for them to be done if you cannot contact your landlord. Your landlord can later reimburse you. You must take all reasonable steps to make contact with the landlord or the landlord’s agent before carrying out repairs.
What if I cannot reach an agreement with my landlord or real estate agent?
If your property is leased under the Retail Leases Act 2003 and you are having problems agreeing with your landlord, contact the Office of the Small Business Commissioner. They can help you and your landlord reach an agreement. If this does not happen, you may apply to VCAT for assistance.
Other commercial leases
If your lease is not under either the Residential Tenancies Act 1997 or the Retail Leases Act 2003 and your dispute involves a small business, you can apply to the Office of the Small Business Commissioner for mediation of the dispute. If the dispute is not sorted out at mediation, it may need to be dealt with through VCAT.
Who is responsible for insurance?
Depending on the lease, the tenant may need to insure the rental property. If the tenant was supposed to do this under the lease but did not, the tenant may have to pay the landlord for damage done to the property by a disaster. Depending on what the lease states, if the tenant has insurance but it does not cover the costs of rebuilding the property to what it was like before the disaster, the tenant may have to pay to make sure the property is restored.
Where to get help
Victoria Legal Aid
Tel: 1300 792 387, Monday to Friday, 8:45 am to 5:15 pm.
Tel: (03) 9416 2577 (advice line), Monday to Friday, 9:00 am to 4:00 pm.
Tenancy Assistant and Advocacy Program
Tenancy Plus Support Program
Consumer Affairs Victoria
Tel: 1300 558 181, Monday to Friday, 9:00 am to 5:00 pm.
Energy and Water Ombudsman Victoria
Tel: 1800 500 509, Monday to Friday, 8:30 am to 5:00 pm.
Victorian Small Business Commission
Tel: 13 87 22
Residential Tenancy Bond Authority (RTBA)
Tel: 1300 137 164, Monday to Friday, 9:00 am to 5:00 pm.
Victorian Civil and Administrative Tribunal (VCAT)
Tel: 1300 018 228, Monday to Friday, 9:00 am to 4:30 pm.