Family Violence and Renting – by Tamara Kotowicz
When there is an Intervention Order and the parties to the order reside in a rental property this may have implications for both the tenants and potentially the landlord.
An Intervention Order will generally have a number of conditions with which the Respondent must comply. The Respondent is the person who has had the Intervention Order issued against them. One of the more common conditions is to exclude the Respondent from the address where the Protected Person resides, commonly known as an exclusion order. Consequently, even where the tenancy agreement is solely in the Respondent’s name, they will not be allowed to return to the property from which they are excluded.
The Residential Tenancies Act 1997 sets out the rights and responsibilities of both tenants and landlords in these circumstances and there are options for both the Protected Person and the Respondent if an exclusion order is made.
Options for the Protected Person
1. Changing the Locks
The Protected Person can change the locks and they do not require the consent of the landlord. However, as soon practicable, they must provide the landlord with a copy of the Intervention Order which excludes the Respondent from the rental property, as well as a copy of the new keys. Any other modifications or additions to the property will require the consent of the landlord, in writing, prior to the work being carried out.
2. Staying in the property
A Protected Person may elect to remain in the property, so long as they are able to meet the obligations of the tenancy agreement, this includes being able to afford the rent. If this can be established and the tenancy agreement is in their sole name then they are not required to do anything more.
If however, they are not on the tenancy agreement or the Respondent is also named on the tenancy agreement they will need to apply to the Victorian Civil and Administrative Tribunal (VCAT) for a new lease in their name. VCAT can also make an order which requires the landlord to enter into a new agreement with the Protected Person.
Alternatively, the Respondent can consent to transfer the lease into the Protected Person’s name, however this may not be an appropriate option where there are safety concerns.
3. End the tenancy agreement early
If the Protected Person does not want to or is unable to remain in the property then they have several options to end the tenancy: –
- End the tenancy by agreement between the landlord at any time;
- Transfer the agreement to another person;
- If there is not a fixed-term lease, give 28 days’ notice of intention to vacate;
- Apply to VCAT to end the lease early; or
- Apply to VCAT to have their name removed from the agreement.
A Protected Person is entitled to a full fee waiver to make an application in VCAT.
When there has been damage to the rental property caused by the Respondent, the Protected Person can also argue that they should not be held responsible for the costs of repairs to the property if a claim is made against them by the landlord.
Option for the Respondent
If a Respondent has been excluded from a rental property where their name is on the tenancy agreement, they should ensure that they have their name removed. This can be achieved by the Protected Person enacting any one of the aforementioned options or if this does not occur then they can apply to VCAT as the excluded tenant to reduce the term of the tenancy. When a tenant no longer has a right to enter a rental property, it is not advisable to remain on the lease as they could be held responsible for any unpaid rent or repairs to the property which occurs after they vacate.
The Respondent should always be mindful of the conditions of the Intervention Order and should seek legal advice if they are unsure on how they should proceed.
For more information on Family Violence please see our article published 8 September 2017.
Should you or a family member seek further advice, please contact one of our Family Law team members for assistance.
