I am a tenant and my home has been damaged or destroyed in a disaster and is no longer okay 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 of intention to vacate rented premises by renter’ form available from the .
I am a landlord and my home has been damaged or destroyed in a disaster and is no longer okay to live in. 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 renter/s of rented premises. This form is available from the .
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 Victorian Civil and Administrative Tribunal (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 online at the . Payment are usually made directly into the tenant’s bank account on the same day the refund is approved..
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.
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, if they want to keep the bond and you disagree. You can also apply to VCAT 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 home 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?
During the COVID-19 pandemic, landlords are not allowed to increase your rent. This is a temporary law designed to support tenants. This law will last until at least 28 March 2021. See the for details.
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 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 , 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
- 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 reimburse you later. You must take all reasonable steps to contact 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 . 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 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
Victoria Legal Aid may assist with legal advice or legal information but is unable to assist with commercial tenancy matters.
This specialist community legal centre can assist residential tenants.
Tenancy Plus Support Program
This site is designed to support public housing tenants and people seeking secure housing
Consumer Affairs Victoria
The housing section has information about rights and responsibilities of renters and landlords.
Energy and Water Ombudsman Victoria
This free, independent dispute resolution service handles complaints about energy and water issues.
Victorian Small Business Commission
This site also has information for commercial tenants about COVID-19 supports.
Residential Tenancy Bond Authority (RTBA)
Claims for bond refunds can be organised online.
Victorian Civil and Administrative Tribunal (VCAT)
The residential tenancies list at VCAT hears disputes between landlords and tenants.
Reviewed 01 December 2021