By Jim Malo
The Victorian Civil and Administrative Tribunal has ruled that a landlord could not evict her tenant to move her father into the home because it could have left the tenant worse off.
The case shows how a change to Victorian tenancy law in 2018 works in practice. A clause inserted in the Residential Tenancies Act states that possession orders – just one step in forcibly evicting tenants from their homes – must be reasonable and proportionate. It means an eviction is no longer a given if a valid notice to vacate is served.
April applied for about 300 properties and was knocked back each time. Credit: Simon Schluter
Experts say it prevents homelessness but also forces landlords to maintain tenancies they’d rather end. The test is a relief for tenants with nowhere else to go in the housing crisis, but angers investors, who claim a loss of control over their properties. In cases where both parties need to live in the home, VCAT now weighs up who needs it more.
The tenant in the case, April*, told this masthead that had she and her 17-year-old son been evicted, they would have become homeless.
“I was constantly trying to come up with ways to make my application look better, here I am with long COVID and unable to work so you couldn’t have a worse scenario to look for a rental,” she said. “My doctor wrote something to present to the hearing to say that if I were to be made homeless, I would not have much longer to live.”
April was a single mother and disability support payment recipient. Between receiving her first notice to vacate and the VCAT hearing, she unsuccessfully applied for about 300 rentals. Her son was prepared to contribute to rent for a new home, but wasn’t able to apply for rentals as a co-tenant because of his age.
“Almost every day, you’re reading, ‘thanks, but no thanks’, and you know that it’s discrimination. That’s hard enough even if you don’t have anything else going on … It literally feels like you’re hanging on by your fingernails by the edge of a cliff. It’s been so bad.”
April was sent a notice to vacate because the landlord wanted her father to move in. The landlord’s father was a tradesman, but had impaired lung capacity and was unable to work full-time.
He had previously rented through his friend, but was evicted because of the sale of the property and was homeless and had been couch-surfing. The father said he was unable to live with anyone else because his condition meant getting sick could be fatal.
The father had not applied for any rentals because he expected to be able to move into his daughter’s property and didn’t think he’d be successful in the private market.
Peninsula Community Legal Centre lawyer Tanya Lakic represented April at the tribunal. She said the case came down to who would be worse off if the eviction went ahead.
“He’d rented from a good friend for many years. And they assumed that meant he couldn’t get a property,” she said. “Well, the tribunal member was critical of that. He was of the view that the father was actually quite an attractive tenant because he was a male that was working, on his own, didn’t have a bad rental history, and had considerable savings.
“And I think that that was very important in the decision as well that they weighed up that he hadn’t tried.”
The ruling noted that the landlord’s father had $250,000 in a savings account and $30,000 in shares. Tribunal member Robert Daly dismissed the application for the possession order.
April says she feared she would not have long to live if she was made homeless by her landlord. Credit: Simon Schluter
It’s not the first time the test has been applied. Last year, a landlord who could no longer live at home with his wife and children, and was at times living in his car and hotels, was denied a possession order for his investment property because the multi-generational family of tenants could not find a new home despite applying for 80 rentals.
The family of four had three disabled members – two children with autism and their mother, who had a disabling brain injury. The last tenant was the children’s grandmother. The landlord had not applied for any rentals.
“It puts a human side to these decisions,” Lakic said. “I think it’s a good thing that tribunal members have the opportunity to consider people’s circumstances, and it’s not just a fact that if you serve a valid notice, there’s an automatic … return of possession to the owner after 60 days.”
Once a possession order is granted, a landlord can apply for a warrant and have their tenant forcefully evicted by police.
April said it was not the first possession order she had fended off before the tribunal. She said she had been handed a notice to vacate months earlier; the reason given was intent to sell with vacant possession.
“The member said he wasn’t going to vacate me and my son and make us homeless because the owner of the property wanted to sell the house untenanted,” she said. “But they hadn’t provided evidence that if they sold the house untenanted, they would be able to get $50,000 more … Even if they had, the member would have had to weigh up the negative effects of putting the two people out of the home versus the positive effects on the landlord.”
Lakic said landlords were often affronted by the reasonable and proportionate test.
“It’s a very emotional area of law,” she said. “For the renter, it’s their home. For the landlord … I think they often see that they’ve worked very hard, and they’ve sacrificed to purchase this other property because they’ve usually already got a home that they’re living in.
April says the tight rental market is difficult to navigate because she is a single mother on a disability pension. Credit: Simon Schluter
“This is their investment property, but they feel that they’ve sacrificed, and it’s theirs.”
April said: “[The landlord] was flabbergasted. She was like, ‘this is my property’.”
This masthead attempted to contact the landlord for comment; an email sent via their lawyer received no response.
‘Unpredictability and uncertainty’
Tenants Victoria chief executive Jennifer Beveridge said the case showed how the housing crisis could affect both sides of the tenant-landlord relationship.
“Increasingly, this is creating unpredictability and uncertainty for more and more people,” she said. “It’s not just renters that it’s starting to affect, it’s the rental providers and, in this instance, their families as well. This is a whole-of-community problem now.”
Australian Landlord Association president Andrew Kent agreed disputes over rental properties could become emotionally fraught.
“A lot of the time, the property they have does have a strong emotional connection. It might be the house they want to live in. It might be their parents’ house. There is an emotional connection to these places, they’re not shares,” he said. “[Landlords] say, how come the rules are so different between landlord and tenant? How come I’m losing control of my property?
“There’s a sense … that we have control over the things that we own. Whether it’s a house, or car, or whatever.”
Beveridge said that the reasonable and proportionate test reduced a landlord’s formerly near-absolute control over their properties, but it had been successful in preventing tenants from becoming homeless.
“No matter how any of us may view what happened in this case, it’s providing some framework for VCAT to be able to decide who is more susceptible and who would be subjected to greater harm,” she said. “It’s testing the difference between a property as an asset and a home for someone, and we’re starting to understand the nuance of that a bit better.”
Kent said landlords shouldn’t be expected to house the most vulnerable in society, and the state government had dropped the ball on building enough public and community housing to house the most in need.
“It’s a sad state of affairs when the choices are so grim; it shouldn’t be a choice between having a rental and being homeless,” he said.
April is looking for a new home, but remains concerned she could face another notice to vacate before finding somewhere else to live.
“I’m still looking, but I don’t know why I’d be successful after the past two years. My son turned 17 in May, so he’ll be 18 in May next year, so maybe I can hold on until then and he [and his income] can be a part of the rental applications.
“When he can afford to put a deposit on a house, that’s when it’s going to end for us.”
*Name changed due to a suppression order.
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