Residential Tenancies (Further Amendment) Act 2005 (Vic)

Residential Tenancies (Further Amendment) Act 2005

Act No. 63/2005

table of provisions

Section  Page

1.Purpose

2.Commencement

3.Principal Act

4.Definitions

5.Residency right

6.New sections 92A and 92B inserted

92A.Exclusive occupancy right

92B.Shared room right

7.New section 92C inserted

92C.Notice to resident of residency right

8.Power to enter into tenancy agreements

9.New Division 1A inserted in Part 3

Division 1A—Shared Room Rights

94B.Consent required for increase in room capacity

94C.Notice of increase in room capacity

94D.Consent of resident to increased room capacity

10.Resident may complain to Director about excessive rent

11.What can the Tribunal order?

12.Payment of rent pending Tribunal's decision

13.New section 106A inserted

106A.Rent must be reduced if room capacity increased

14.Separately metered rooms

15.Resident must not use room for illegal purposes

16.Resident's duty to pay rent

17.Quiet enjoyment—resident's duty

18.Quiet enjoyment—rooming house owner's duty

19.What can the Tribunal order?

20.Access to room

21.Grounds for entry of a room

22.Caravan parks

23.New section 210A inserted

210A.Application to Tribunal by resident for compensation

24.Matters which may be considered by Tribunal

25.Orders of Tribunal

26.Termination by abandonment

27.Use of room for illegal purpose

28.Warrant of possession

29.Offence to allow occupation pending hearing

30.New heading to Part 15

31.New sections 528 to 531 substituted

528.Definition of 2005 Act

529.Number of occupants of room frozen at Royal Assent

530.Rights of existing residents

531.Notice to existing residents

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Endnotes

Residential Tenancies (Further Amendment) Act 2005

[Assented to 20 September 2005]

The Parliament of Victoria enacts as follows:

1.Purpose

The main purpose of this Act is to amend the Residential Tenancies Act 1997 to clarify the residency rights of occupiers of shared rooms in rooming houses.

2.Commencement

(1)This Act (except sections 7, 9, 10, 11, 12 and 13) comes into operation on the day on which it receives the Royal Assent.

(2)Subject to sub-section (3), sections 7, 9, 10, 11, 12 and 13 come into operation on a day to be proclaimed.

(3)If a provision referred to in sub-section (2) does not come into operation before 1 December 2005, it comes into operation on that day.

3.Principal Act

In this Act the Residential Tenancies Act 1997 is called the Principal Act.

4.Definitions

In section 3(1) of the Principal Act—

(a)insert the following definitions—

' "exclusive occupancy right", in relation to a room or rooming house, means a residency right of a kind set out in section 92A;

"room capacity" means the number of persons who may be accommodated in a room;

"shared room" means a room that is occupied by one or more residents with shared room rights;

"shared room right" means a residency right of a kind set out in section 92B;';

(b)in the definition of "rent" after "108" insert ", 109A";

(c)in paragraph (b) of the definition of "resident" for "90 consecutive days" substitute "60 consecutive days".

5.Residency right

At the end of section 92 of the Principal Act insert—

"(2)A residency right may be an exclusive occupancy right or a shared room right.

(3)A residency right is an exclusive occupancy right unless—

(a)the rooming house owner has given the resident a notice under section 92C specifying that the right is a shared room right before the resident commences occupation of the room; or

(b)the residency right becomes a shared room right under section 94B(2); or

(c)the residency right is deemed to be a shared room right under section 530.".

6.New sections 92A and 92B inserted

After section 92 of the Principal Act insert—

"92A.Exclusive occupancy right

(1)An exclusive occupancy right gives a resident a right to exclusive occupancy of the room.

(2)To avoid doubt it is declared that 2 or more residents may have exclusive occupancy of a room.

Example

Two domestic partners may share a room and have exclusive occupancy.  A rooming house owner would not be able to introduce another person to share the room while the exclusive occupancy right exists.

92B.Shared room right

A shared room right gives a resident a right to occupy the room together with one or more other residents chosen by the rooming house owner.

Example

A resident takes up occupancy of a room after being given notice under section 92C that the resident is to have a shared room right.  Later that week, without notice to the existing resident, another resident takes up occupancy of the same room under a residency agreement.  Each resident has a shared room right.".

7.New section 92C inserted

Before section 93 of the Principal Act insert—

"92C.Notice to resident of residency right

(1)A rooming house owner must give each proposed resident a notice in accordance with this section before the proposed resident commences occupation of a room.

Penalty:5 penalty units.

(2)The notice must—

(a)be in writing in a form approved by the Director; and

(b)specify whether the residency right is to be an exclusive occupancy right or a shared room right; and

(c)state the date on which it is given; and

(d)state that it is given in accordance with this section.

(3)If the residency right is to be a shared room right, the notice must also—

(a)specify the room capacity of the room; and

(b)state that the resident will not be notified before another resident takes up occupancy of the room; and

(c)state that the rooming house owner will choose the other residents who will be permitted to take up occupancy of the room; and

(d)specify the rent payable by the resident for the shared room right and the rent that would have been payable by the resident if the right had been an exclusive occupancy right.".

8.Power to enter into tenancy agreements

After section 94(3) of the Principal Act insert—

"(3A)Despite sub-sections (1) and (1A), a resident cannot enter into a tenancy agreement with a rooming house owner in respect of a room unless the resident has or is to have exclusive occupancy of the room.".

9.New Division 1A inserted in Part 3

After Division 1 of Part 3 of the Principal Act insert—

"Division 1A—Shared Room Rights

94B.Consent required for increase in room capacity

(1)A rooming house owner must not increase the room capacity of a room that is occupied by one or more residents unless—

(a)the rooming house owner has first given each existing resident of the room notice of the proposed increase in accordance with section 94C; and

(b)each existing resident of the room has consented to that increase in room capacity in accordance with section 94D; and

(c)each consent has taken effect.

Penalty:5 penalty units.

(2)If a resident who has an exclusive occupancy right consents under section 94D to an increase in room capacity, that residency right becomes a shared room right when that consent takes effect.

94C.Notice of increase in room capacity

(1)A notice given by a rooming house owner under section 94B must—

(a)be in writing in a form approved by the Director; and

(b)state the date on which it is given; and

(c)state that it is given under section 94B; and

(d)state that the rooming house owner is seeking the consent of the resident to increase the room capacity of the room; and

(e)specify the total number of people who are proposed to be accommodated in the room; and

(f)state that if the resident consents to the increased room capacity of the room—

(i)the resident will not be notified before another resident takes up occupancy of the room; and

(ii)the rooming house owner will choose the other residents who will be permitted to take up occupancy of the room; and

(g)state the existing rent paid by the resident; and

(h)state the new reduced rent that will be payable by the resident if the resident consents to the increase in the room capacity of the room; and

(i)state that any consent of the resident must be in writing; and

(j)state that the resident may withdraw that consent at any time within the period of 3 days following the giving of the consent; and

(k)state that if consent is given, the consent will take effect at the end of the period of 7 days after—

(i)if there is only one resident of the room, the consent is given; or

(ii)if there is more than one resident of the room, the consent of the last resident is given; and

(l)state that when the consent takes effect—

(i)the increase in room capacity also takes effect; and

(ii)the new reduced rent also takes effect.

(2)A notice given by the rooming house owner under section 94B ceases to have effect 14 days after it is given.

(3)A notice given by a rooming house owner under section 94B is invalid if—

(a)it fails to state the new reduced rent payable by the resident or otherwise fails to comply with sub-section (1); or

(b)the proposed room capacity of the room will exceed the number of persons permitted by law to be accommodated in the room.

94D.Consent of resident to increased room capacity

(1)A resident who receives a notice under section 94B may consent to the increase in room capacity.

(2)A consent must—

(a)be in writing; and

(b)must specify the increased room capacity to which consent is given; and

(c)be signed by the resident; and

(d)be dated with the date of signing.

(3)A resident may withdraw a consent he or she gives under this section by giving written notice of that withdrawal to the rooming house owner within 3 days after the consent is given.

(4)A consent under this section to an increase in the room capacity of a room does not take effect until the end of the period of 7 days after—

(a)if there is only one resident of the room, the consent is given; or

(b)if there is more than one resident of the room, the consent of the last resident is given.

(5)A consent under this section is of no effect if the notice under section 94B is invalid.".

10.Resident may complain to Director about excessive rent

(1)After section 102(1) of the Principal Act insert—

"(1A)A resident of a rooming house may apply to the Director to investigate and report if—

(a)the resident's rent has been reduced as a result of an increase in the room capacity of the resident's room; and

(b)the resident considers that the reduction is insufficient and the rent is excessive.".

(2)After section 102(2) of the Principal Act insert—

"(2A)An application under sub-section (1A) must be made in writing within 30 days after the notice of the proposed increase in room capacity was given to the resident under section 94B.".

11.What can the Tribunal order?

(1)After section 104(3)(b) of the Principal Act insert—

"(ba)in the case of a shared room, the rent payable by each resident of a similar shared room in the rooming house;

(bb)in the case of a shared room, the rent payable by each resident of a similar shared room in a similar rooming house in a similar location;".

(2)For section 104(3)(f) of the Principal Act substitute—

"(f)any improvements made to the room that should not be considered in calculating the rent because they were made by the resident.".

(3)After section 104(5) of the Principal Act insert—

"(6)Sub-section (5) does not apply if the order relates to an application made under section 103 in relation to a reduction in rent following an increase in the room capacity of a resident's room.".

12.Payment of rent pending Tribunal's decision

(1)In section 105(1) of the Principal Act after "section 104" insert "in respect of an increase in rent".

(2)After section 105(1) of the Principal Act insert—

"(1A)Pending the Tribunal's decision under section 104 in respect of a reduction in rent for a shared room, the resident must pay, from the time that the reduced rent is to apply, the reduced rent specified by the rooming house owner in the notice given under section 94B.".

(3)In section 105(2) of the Principal Act after "section 104" insert "in respect of an increase in rent".

(4)After section 105(2) of the Principal Act insert—

"(2A)If the Tribunal makes an order under section 104 in respect of a reduction in rent for a shared room, it may also order that any excess rent paid by the resident from the date that the relevant increase in room capacity took effect until the date of the order be refunded by the rooming house owner.".

13.New section 106A inserted

After section 106 of the Principal Act insert—

"106A.Rent must be reduced if room capacity increased

If the room capacity of a room is increased under section 94B, the rooming house owner must reduce the rent payable by each person who is a resident of the room on the date that the consent to the increase in room capacity takes effect to the reduced rent specified in the notice given to the resident under that section.".

14.Separately metered rooms

After section 108(2) of the Principal Act insert—

"(3)This section does not apply to a resident of a shared room.".

15.Resident must not use room for illegal purposes

(1)In section 111 of the Principal Act for "A resident" substitute "In the case of a room other than a shared room, a resident".

(2)At the end of section 111 of the Principal Act insert—

"(2)A resident of a shared room must not use the room or permit his or her visitors to use the room for any purpose that is illegal at common law or under an Act.".

16.Resident's duty to pay rent

(1)In section 112 of the Principal Act for "A resident" substitute "Subject to sub-section (2), a resident".

(2)At the end of section 112 of the Principal Act insert—

"(2)Despite sub-section (1), if a rooming house owner contravenes section 94B or 529 by permitting an additional person to occupy a room in the rooming house, an existing resident of the room at the date that the additional person commenced occupation of the room is not liable to pay rent for his or her occupancy of the room in respect of the period commencing on that date and ending on the first of the following to occur—

(a)the date that the room capacity of the room is reduced to the room capacity existing immediately before the additional person commenced occupation of the room; or

(b)the date that the consent of the existing resident of the room to the increase in room capacity under section 94D takes effect.".

17.Quiet enjoyment—resident's duty

At the end of section 113 of the Principal Act insert—

"(2)A resident of a shared room does not breach a duty under this section simply by sharing the room with another resident.".

18.Quiet enjoyment—rooming house owner's duty

At the end of section 122 of the Principal Act insert—

"(2)A rooming house owner must take all reasonable steps to ensure that a resident of a shared room does not do anything or permit his or her visitors to do anything that interferes with the privacy, peace and quiet of, or the proper use and enjoyment of the room by, other residents of the room.

(3)A rooming house owner does not breach a duty under sub-section (1) simply by permitting more than one resident to occupy a shared room in accordance with this Part.".

19.What can the Tribunal order?

After section 133(2) of the Principal Act insert—

"(3)If an order under this section in relation to a room is made on the application of a resident of a shared room, the Tribunal must include in the order a direction to the rooming house owner to give a copy of the order to each other resident of the shared room.".

20.Access to room

In section 136 of the Principal Act—

(a)in paragraph (a) after "resident" insert ", or in the case of a shared room, each resident of the room,";

(b)in paragraph (d) after "resident" insert ", or in the case of a shared room, each resident of the room,".

21.Grounds for entry of a room

In section 137(d) of the Principal Act for "the resident" substitute "a resident of the room".

22.Caravan parks

In section 145(b) of the Principal Act for "90 consecutive days" substitute "60 consecutive days".

23.New section 210A inserted

After section 210 of the Principal Act insert—

"210A.Application to Tribunal by resident for compensation

If a rooming house owner fails to comply with section 94B, 529 or 531 in relation to a resident, the resident may apply to the Tribunal for an order under section 212(2A).".

24.Matters which may be considered by Tribunal

In section 211 of the Principal Act for "or 210" substitute ", 210 or 210A".

25.Orders of Tribunal

(1)After section 212(2) of the Principal Act insert—

"(2A)In the case of an application under section 210A, if the Tribunal is satisfied that a rooming house owner has failed to comply with section 94B, 529 or 531—

(a)the Tribunal may make an order requiring the rooming house owner to comply with that provision; and

(b)if the Tribunal is satisfied that compensation should be paid it may make an order directing the rooming house owner to pay compensation as specified in the order.".

(2)In section 212(5) of the Principal Act before "reduction" insert "refund or".

26.Termination by abandonment

In section 271 of the Principal Act after "abandoned" insert "by the resident who has that residency right".

27.Use of room for illegal purpose

(1)In section 284(1) of the Principal Act after "room" (where first occurring) insert "(other than a shared room)".

(2)After section 284(1) of the Principal Act insert—

"(1A)A rooming house owner may give a resident of a shared room a notice to vacate that room if the resident has used the room or permitted his or her visitors to use the room for any purpose that is illegal at common law or under an Act.".

(3)In section 284(2) of the Principal Act for "The notice" substitute "A notice under this section".

28.Warrant of possession

For section 355(2)(b) of the Principal Act substitute—

"(b)with such assistance as is necessary—

(i)to compel all persons for the time being occupying the rented premises, room (other than a shared room), site or caravan (as the case may be) to vacate and give possession of them to the applicant for the order under which the warrant is issued; or

(ii)to compel any person named in the order to vacate a shared room.".

29.Offence to allow occupation pending hearing

After section 377(3) of the Principal Act insert—

"(4)Despite sub-section (2), a rooming house owner may permit a new resident to occupy a shared room in the rooming house if the room capacity of the room (including the resident with the suspended residency right) would not be exceeded.".

30.New heading to Part 15

For the heading to Part 15 of the Principal Act substitute—

"Part 15—Transitional Provisions".

31.New sections 528 to 531 substituted

For sections 528, 529, 530 and 531 of the Principal Act substitute—

'528.Definition of 2005 Act

In this Part "2005 Act" means the Residential Tenancies (Further Amendment) Act 2005.

529.Number of occupants of room frozen at Royal Assent

If a room in a rooming house is occupied by one or more residents at the date of commencement of section 31 of the 2005 Act, the rooming house owner must not, before the date of commencement of section 9 of the 2005 Act, increase the number of persons who occupy the room.

Penalty:10 penalty units.

530.Rights of existing residents

(1)If a room in a rooming house has more than one resident at the date of commencement of section 31 of the 2005 Act—

(a)each of those residents is deemed to have a shared room right in respect of that room; and

(b)a resident (the new resident) who, before the date of commencement of section 9 of the 2005 Act, takes the place of a resident in that room is deemed to have a shared room right in respect of that room if there is an existing resident with a shared room right occupying that room when the new resident takes up occupation.

Example

J and K share a room in a rooming house at the date of commencement of section 31 of the 2005 Act.  The rooming house owner had chosen separately each person who was to occupy the room.  J and K each have a shared room right.  If K moves out and L takes up occupancy of the room before the date of commencement of section 9 of the 2005 Act, J and L each have a shared room right.

(2)Sub-section (1) does not apply to 2 or more residents who have exclusive occupancy of a room in a rooming house at the date of commencement of section 31 of the 2005 Act.

Example

L and M are domestic partners.  They are the sole occupants of the room at the date of commencement of section 31 of the 2005 Act.  They had agreed with the rooming house owner before that date that they should have exclusive occupancy of the room.  L and M each have an exclusive occupancy right.

(3)Except as provided by sub-section (1), a resident of a rooming house on the date of commencement of section 31 of the 2005 Act is deemed to have an exclusive occupancy right in respect of that room.

531.Notice to existing residents

(1)A rooming house owner must within 14 days after the date of commencement of section 9 of the 2005 Act give to each resident of the rooming house who under section 530 is deemed to have a shared room right a notice in accordance with sub-section (2).

Penalty:5 penalty units.

(2)The notice must—

(a)be in writing in a form approved by the Director; and

(b)state the date on which it is given; and

(c)state that it is given in accordance with this section; and

(d)specify that the residency right of the resident is a shared room right; and

(e)specify the total number of people who, in accordance with section 529, could be accommodated in the room at the date of commencement of section 9 of the 2005 Act; and

(f)state that the room capacity of the room set out in paragraph (e) cannot be increased without the consent of the resident in accordance with section 94D of the Act; and

(g)state that if there is any vacancy in the room capacity set out in paragraph (e)—

(i)the resident will not be notified before another resident takes up occupancy of the room; and

(ii)the rooming house owner will choose the other residents who will be permitted to take up occupancy of the room; and

(h)specify the rent payable by the resident for the shared room right and the rent that would have been payable by the resident if the right had been an exclusive occupancy right.

(3)A rooming house owner is not required to give a notice to a resident under this section if the rooming house owner gives a notice under section 94B to the resident within 14 days after the date of commencement of section 9 of the 2005 Act.'.

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Endnotes

Minister's second reading speech—

Legislative Assembly: 21 July 2005

Legislative Council: 6 November 2005

The long title for the Bill for this Act was "to amend the Residential Tenancies Act 1997 to clarify the residency rights of occupiers of shared rooms in rooming houses and for other purposes."