A BASIC GUIDE TO THE PRESCRIBED PREMISES LEGISLATION The following
A BASIC GUIDE TO THE PRESCRIBED PREMISES LEGISLATION The following information is meant as a guide only. It does not replace the Landlord and Tenant Act 1958 or any other legislation applying to prescribed premises. A copy of the Landlord and Tenant Act 1958 may be purchased from Information Victoria, 505 Little Collins Street, Melbourne 3000 or by telephone on 1300 366 356. Landlords seeking further advice should seek the assistance of a solicitor. Tenants should contact the Tenants Union of Victoria, 55 Johnston Street, Fitzroy 3065 or by telephone on 9416 2577. COMMONLY USED TERMS “Prescribed Premises” The Residential Tenancies Act 1997 does not apply to a tenancy agreement where the rented premises are prescribed premises (Residential Tenancies Act 1997, Section 14). At present, the only prescribed premises are those so defined under Part 5 of the Landlord and Tenant Act 1958. “Fair Rents Board” The Landlord and Tenant Act 1958 provides for applications for possession, rent determination etc relating to prescribed premises to be dealt with by a Fair Rents Board. Under Section 51A of the Landlord and Tenant Act 1958 these matters now fall within the jurisdiction of the Victorian Civil and Administrative Tribunal (VCAT). “Controlled” or “Protected Tenants” A shorthand has developed whereby tenants of prescribed premises are commonly referred to as “controlled” or “protected” tenants. The Landlord and Tenant Act 1958 defines a special class of tenants of prescribed premises as “protected persons” (in the context of applications for possession), but does not otherwise use the terms “controlled” or “protected”. DEFINITION OF PRESCRIBED PREMISES The Landlord and Tenant Act 1958 defines prescribed premises as premises which had been let as a residence at some time between 31 December 1940 and 1 February 1954 and where the current tenancy has continued since prior to 1 January 1956. Previous legislation had provided for Orders by the Governor in Council declaring particular premises to be prescribed. Where any such Order remained in force, the premises remained prescribed under the Landlord and Tenant Act 1958. This Act also included (and still includes) provision for the Governor in Council to declare particular premises to be prescribed, regardless of the criteria mentioned in the preceding paragraph. Once prescribed, premises generally remain so under the Act, until such time as the tenant: (i) (ii) (iii) enters into a lease for three years or more; vacates; dies. Where the tenant’s spouse was living at the premises immediately prior to the tenant’s death and continues in occupation afterwards, the premises remain prescribed. If the tenant died before 1 May 1972, the premises also remain prescribed where a parent, sibling or child of the tenant has continued in occupation. It should be noted that Section 116 of the Landlord and Tenant Act 1958 specifies that in a proceeding the premises are deemed to be prescribed until the contrary is proved “Premises ceasing to be prescribed” Section 107A of the Landlord and Tenant Act 1958 allows the landlord to apply to VCAT for a determination that premises should cease to be prescribed, on the grounds that the total earnings and income of the tenant and members of the tenant’s family “ordinarily residing” at the premises is such that no hardship would be caused to the tenant if the premises ceased to be prescribed. RECORDS Sections 153 and 157 of the Residential Tenancies Act 1980 provide for the establishment of a register and the phasing out of the category of prescribed premises. However, these sections were repealed in 1982. Consequently, there is no register of prescribed premises. VCAT holds a record of applications made to the Fair Rents Board and VCAT. Parties seeking information concerning particular prescribed premises must make a written request. The files have been archived and it may take up to 10 business days to reply to any request. FIXING OF RENT Rental of prescribed premises can be set: (i) (ii) by agreement between the parties, in which case an agreement under Section 68 should be used, with a copy required to be lodged with the Tribunal; or by the Tribunal on the application of either party. The Tribunal is obliged to consider relative hardship. Except in special circumstances, neither party may apply for a rental determination by the Tribunal for at least six months after the rent was last set, whether by agreement or by Tribunal determination. If a Section 68 agreement is made for a longer period than six months, it remains binding for that period. REPAIRS There is no provision for the tenant to give notice of repairs or to obtain a report from the Director of Consumer and Business Affairs Victoria under the Landlord and Tenant Act 1958. However, Section 104(1) prohibits acts or omissions whereby the ordinary use of the premises (and associated amenities) is interfered with or restricted. A tenant may apply to the Tribunal under this section. TERMINATION OF LEASE A landlord seeking to recover possession of prescribed premises must serve a valid notice to quit under the Landlord and Tenant Act 1958 and then apply to the Tribunal. The Tribunal is obliged to consider relative hardship and the availability of “reasonably suitable” alternative accommodation. Consequently, even where the grounds on which notice has been served are established, possession may well not be granted. The Landlord and Tenant Act 1958 affords greater protection to tenants connected with war service and assistance being provided under the Commonwealth repatriation legislation. The grounds for giving notice to quit are set out in Section 82(6) of Landlord and Tenant Act 1958 and the required periods of notice in Section 83. Due to the complex nature of the legislation, the VCAT Registry is unable to provide advice on the preparation and service of a notice to quit under the Landlord and Tenant Act 1958. Such enquiries should be directed to a solicitor. Tenants served with a notice to quit should direct any enquiries to the Tenants Union of Victoria. SALE OF PRESCRIBED PREMISES The tenancy agreement may be terminated by consent. Alternatively, the landlord may apply for “de-control” under Section 107A of the Landlord and Tenant Act 1958 before taking steps towards sale. However, while the tenancy continues and the premises remain prescribed, the sale can only proceed on a tenant-in-possession basis. Under Section 112 of Landlord and Tenant Act 1958, a landlord proposing to sell prescribed premises must give the tenant an opportunity to purchase the premises and has certain duties of disclosure to other prospective purchasers. Landlords seeking specific advice on their rights and obligations regarding sale should contact their solicitor. APPLICATIONS TO THE TRIBUNAL The current Residential Tenancies List application form may be used. The same fee as for ordinary Residential Tenancies applications applies. Where an application is lodged, a report and assessment of the premises is requested from the Director. Once the report is received, the application will be listed for hearing and all parties notified.