This information is a guide and should not be used as a substitute for professional legal advice.

Renter breaches

Both you and the rental provider (landlord) have duties under the law that need to be followed.

Renters’ duties

You could be given a ‘notice of breach of duty’ from the rental provider if you do not follow your duties under the Residential Tenancies Act 1997.

Your duties as a renter include:

  • Not causing a nuisance or interference with the peace, comfort or privacy of neighbours [section 60]
  • Keeping the property in a reasonably clean condition [section 63]
  • Not damaging the property or common areas [section 61]
  • Allowing entry to the property if proper notice has been given [section 89]

In relation to locks, your duties are:

  • Providing the rental provider with a key if you have changed a lock [section 70]
  • Not changing a lock in a master key system without consent or an order from the Victorian Civil and Administrative Tribunal (VCAT) [sections 70, 71]

Regarding safety responsibilities your duties are:

  • Not removing, deactivating or interfering with safety devices, unless it is reasonable in the circumstances to do so
  • Reporting if a smoke alarm or pool fence is not in working order
  • Not erecting a relocatable pool without first getting necessary approvals and notifying the rental provider [section 63A]

For any modifications to the property, your duties are:

  • Not making modifications that need consent without first getting that consent
  • Returning the property to its original condition on moving out, unless it has been agreed this does not need to be done [section 64]

Note that all the sections in brackets on this page, such as [section 60], refer to the Residential Tenancies Act 1997. There are links to all of them near the end of this page.

Notice of breach of duty

A notice of breach of duty can only be given for breaches of the Residential Tenancies Act 1997, which are those listed above. A notice of breach of duty cannot be given for any other reason. It cannot be given for breaching any terms of your rental agreement [section 208].

If you are given a notice of breach of duty, that notice will tell you to:

  • Fix the problem and not commit the same, or similar, breach, and/or
  • Pay compensation for any loss suffered by the rental provider because of your breach

To be a valid notice, it must also tell you:

  • The duty the rental provider believes you have breached
  • Details of the loss or damage caused by the breach
  • That if you do not follow the notice, the rental provider may apply for a compliance order and/or a compensation order from VCAT
  • That if you breach the same duty 3 times you can be given a 14-day notice to vacate on the third occasion, provided you were given breach notices the first two times

Getting a notice

If the rental provider wants to give you a notice of breach of duty, they must give it to you in one of the following ways:

  • Hand it to you in person
  • Send it to you by post, allowing extra time for delivery; see Australia Post’s delivery times
  • Electronically, such as by email, but only if you have agreed to receive notices this way

What happens after getting a notice

The notice of breach of duty will tell you how long you have to fix the breach.

You will have 3 days to fix the breach if it was for not allowing entry to the property where proper notice was given for these purposes:

  • An inspection by a prospective buyer or lender
  • A valuation of the property
  • To inspect the property where the rental provider had reasonable grounds that you were not complying with your duties under the Act

You will have 7 days to fix the breach if it was for causing nuisance or interference to the neighbours.

You will have 14 days to fix the breach if it was for any other duty [sections 3, 208].

The notice may also ask you to compensate the rental provider.

If the rental provider believes that you have not fixed the breach, and/or have not paid compensation they asked for, within the required timeframe, they can:

  • Give you a further notice of breach, and/or
  • Apply to VCAT for an order that you must fix the breach, and/or pay compensation [section 209]

Compensation and compliance orders

If the rental provider applies to VCAT for a compliance order and/or a compensation order, they must send you a copy of their application form.

You will then receive a notice of hearing from VCAT telling you the time, date and location of the hearing.

If you want to dispute the rental provider’s claim you will need to go to the hearing. If you do not go to the hearing, it will go ahead without you and it is very likely that the rental provider will succeed in their claim.

At the VCAT hearing you will be given the chance to dispute the rental provider’s claim. If they have applied for compensation, you will also be given the chance to say why you should not have to pay any compensation or why the amount should be reduced.

The rental provider must convince VCAT that you have breached your duty and provide evidence proving their claim.

You should be prepared to defend yourself against any claims they make. For example, take to the hearing photographs and witnesses or witness statements that support your defence against the rental provider’s claims.

Notice to vacate

You could be given a 14-day notice to vacate if you:

  • Have been given two notices for breaching the same duty, then breach that duty a third time [section 91ZP]
  • VCAT has made a compensation order and/or a compliance order about the breach and you did not follow VCAT’s orders [section 91ZO]

For more information see our page Notice to vacate.

Rental provider’s duties

Rental providers also have duties under the Residential Tenancies Act 1997. For a list of them and information on when you can give the rental provider a notice if they have breached any of their duties see our page Landlord breaches and other notices.

Resources

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