Tenancy Breaches and Dispute Resolution
2.
T
ENANCY
B
REACHES
&
D
ISPUTE
R
ESOLUTION
V ERSION 3.2
J ANUARY 2010
Tenancy Breaches & Dispute Resolution
Version 3.2 January 2010
Published by the Office of Housing, Victorian Government Department of Human Services,
Melbourne, Victoria Australia.
Copyright State of Victoria, Department of Human Services, 2008.
This publication is copyright. You may make limited copies of this document in accordance with the Copyright Act 1968 (Cth), including copies for research, study, criticism, review or news reporting. Apart from this, you may not publish, reproduce, adapt, modify, communicate or otherwise use any part of this document (in particular for commercial purposes).
Authorised by the State Government of Victoria, 50 Lonsdale Street, Melbourne.
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Table of Contents
Behaviour that Breaches the Residential Tenancies Act .......................................... 13
Mutual Clients of DHS and Tenants Receiving Support ........................................... 17
Smoking in OOH Properties and on Housing Estates .............................................. 17
Other Parties to Contact When Investigating a Complaint ...................................... 23
Mutual clients of the Department of Human Services ............................................. 26
Immediate Notice to Vacate – Dangerous Behaviour ............................................. 35
Preparing the case for VCAT – Summonsing Witnesses .......................................... 38
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Adjourning or Withdrawing a section244 (Dangerous Behaviour)
Nuisance and Interference Breach of Duty Flow Chart ........................................... 49
Form of Authority - Release of Information to External Agency ............................... 56
NTV pursuant to section 249(1) - Successive Breaches .......................................... 60
NTV Pursuant to section 248(1) - Failure to Comply with VCAT Order ...................... 64
Immediate Notice to Vacate pursuant to section 244 ............................................. 65
Summons to Appear Form & Affidavit of Service ................................................... 67
Example Dangerous Behaviour Submission to VCAT .............................................. 68
Example Nuisance Behaviour Submission to VCAT ................................................ 70
Example Failure to Comply With a VCAT Order Submission to VCAT ........................ 71
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2.1
Revision History
The following table shows the development of this manual.
Version Amend./
Section
Number
Pages Effective
From
Details
1.0
1.1
1
2
2.4.1
2.4.12
2-27
Nov 99
Oct 2000
1.2
2.0
2.1
2.2
3
2.4.2
4
5
2.4.8
2.4.13
2.4.20
2.4.22
2.5.2
6
2-12
2-13
All
2-19
2-27
2-28
2-33
2-34
2-35
2-39
All
July 2003
Nov 2003
Nov 2004
July 2005
First issue of the manual
Update to Seeking an OP and Obtaining a Warrant of Possession to reflect changes from VCAT in the way warrants can be issued
Inclusion of reference to Home Visit
Guidelines.
Second issue of the chapter, renamed
“Tenancy Breaches & Dispute
Resolution”. Changes include enlarged
& updated sections on nuisance behaviour, dangerous behaviour, valid service of notices, briefing witnesses for attendance at VCAT, and tenants with support needs.
Inclusions of note regarding advice to complainants in neighbourhood disputes of the remedy period following
Ombudsman’s investigation.
Update to the delegation of approval to purchase Warrants in anti-social applications for sign-off by Housing,
Primary and Complex Care Manager or
Regional Executive Officer equivalent.
2.3
2.3
7
2.6.3
2.5.14
2.6.14
2.6.3
2.4.7
2.5.25
2-50
2-37
2-63
2-50
2-16
2-44
March
2007
Updated whole chapter to reflect DHS standards.
Updated contact details of external parties.
Updated Summons to Appear & Affidavit of Services.
Updated contact details of VICSERV
Changed Aboriginal Housing Board of
Victoria (AHBV) to Aboriginal Housing
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Version
2.4
3.0
3.1
3.2
Amend./
Section
Number
Pages
All
2.2
All
2.11,
2.12
Effective
From
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Details
October
2008
Victoria (AHV).
Changed Aboriginal Housing Services
Officer (AHSO) to Aboriginal Housing
Officer (AHO).
Added hyperlinks to other OOH policy manuals.
New section added regarding smoking in and around OOH properties and housing estates.
Updated the entire chapter to include consideration for the Charter of Human
Rights Legislation.
Updated appendix 2.4.7 to new DHS letterhead.
Changed order of paragraphs on smoking in enclosed areas to improve clarity
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2.2
Definitions
Term
Affidavit of
Service
Breach of
Duty Notice
Compliance
Order
Complaint
Dangerous
Behaviour
Dispute
Immediate
Notice to
Vacate
Malicious
Damage
Mediation
Notice to
Vacate
Nuisance
Behaviour
Registered
Definition
Evidence of service must be provided by way of affidavit a written version of sworn statement. A written declaration made on oath before somebody authorised to administer oaths.
A legal notice served on a tenant, which notifies them that their behaviour has caused them to breach the Residential Tenancies Act.
An order of the VCAT directing a party to restrain any action in breach of the tenancy agreement or the Act or require any action in the performance of a tenancy agreement or of duties under the Residential
Tenancies Act.
Statement of dissatisfaction made by the occupier of a premise regarding the behaviour of an occupier or visitor of a neighbouring premises.
Behaviour of a tenant or a tenant’s visitor that by act or omission endangers the safety of occupiers of neighbouring premises.
Disagreement between two or more people about the acceptability of behaviour where that behaviour does not involve a tenancy breach under the Residential Tenancies Act.
A legal notice served on a tenant as per section 243 and 244 of the
Residential Tenancies Act 1997, where a tenant is a danger to neighbouring occupiers or damage has been maliciously caused to an
OOH property.
Where deliberate and significant damage has been done to premises.
A form of dispute resolution in which an impartial third-party helps communication and negotiations between people in dispute. Parties to the dispute retain control over their dispute and take responsibility for the outcome.
A legal notice served on a tenant as per section 248 & 249 of the
Residential Tenancies Act 1997, where a tenant has failed to remedy a breach of duty notices or comply with a compliance order.
Behaviour that unreasonably interferes with the peace, comfort or privacy of an occupier in neighbouring premises.
The form of registered mail where a franked receipt is obtained from the
Post Office containing details of date, time and place of posting.
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Term
Summons
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Definition
A court order issued in proceedings requiring the person to whom it is directed to attend a court at a specified time and place for the purpose of giving evidence, producing documents, or both.
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2.1
References
Reference
Aboriginal Housing Victoria
Aboriginal Housing Officer
Domestic (Feral and Nuisance) Animals Act 1994
Evidence Act 1958
Information Privacy Act 2000
Information Privacy Principles
Litter Act 1987
Office of Housing
Residential Tenancies Act 1997
Tobacco Act 1987
Victorian Civil and Administrative Tribunal
Legal Act
Other OOH policy & procedure manuals
Legal Services
Refers to a computerised function
Abbreviation
AHV
AHO
DFNAA
EA
IPA
IPP
LA
OOH
RTA
TA
VCAT
LS
Symbol
L
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2.2
Introduction
RTA, s. 67
The Office of Housing (OOH) responds to requests to resolve a wide range of issues that arise when the living environment of tenants, or occupiers of premises which neighbour OOH properties, is being affected.
Section 67 of the Residential Tenancies Act 1997 (RTA) states, “A landlord must take all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises during the tenancy agreement.”
In order to satisfy the requirements of the RTA and meet obligations as a landlord, the OOH investigates and attempts to resolve all problems that affect a tenant’s quiet enjoyment, health and safety.
The OOH’s role is to investigate and take appropriate action to avoid the escalation of a problem. This might include mediation between parties, or legal action at the Victorian
Civil and Administrative Tribunal (VCAT). Other problems may only require referral to an external agency.
The OOH also acts when a tenant causes significant damage to OOH premises or fails to maintain them in a reasonably clean condition.
In some cases the initiation of legal action by the OOH may be in conflict with other objectives of the Department of
Human Services (DHS), For example, where a tenant with support needs is in breach of the RTA.
Where this conflict arises, the local housing office liaises with the Primary Housing and Complex Care Manager or equivalent to find an appropriate way of resolving the problem.
Amendments to the Tobacco Act (1987) have resulted in the prohibition of smoking in enclosed workplaces. The enclosed common areas of a high-rise or walk-up estate are defined as enclosed workplaces for employees.
The Director of Housing has an obligation to protect employees from the effects of smoking. Employees include
OOH staff, support workers, cleaning, security and maintenance contractors.
There are now a number of communal areas where smoking is not permitted. Therefore, a section has been included in this chapter regarding smoking in and around OOH properties.
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R TA 1987
The OOH does not have any clear authority under the
Residential Tenancies Act to take action against tenants who are smoking in a non-smoking area. Enforcement of the
Tobacco Act (1987) is undertaken by the DHS Tobacco Unit.
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2.3
Tenancy Breaches and Dispute Resolution
Policy
2.3.1
Behaviour that Breaches the Residential
Tenancies Act
RTA, s. 208
RTA, s. 208 & 209
2.3.2
Types of
Breaches
RTA, s. 60
Breaches of Duty
There are several sections of the RTA, which outline the duties of tenants. These duties are reflected in the tenancy agreement. When these duties are not met, or breached, a
Breach of Duty notice may be served on the tenant. The breach notice has effect for 14 days from the date it is received by the tenant. If the breach notice is posted, three business days are allowed for postage. Therefore the tenant effectively has 17 days to remedy the breach from the date the notice is posted.
Where a tenant fails to remedy a breach or the breach recurs, the OOH may either issue a second breach of duty notice or make an application to VCAT to seek a Compliance Order. A
Compliance Order is an order VCAT makes which directs the tenant to restrain any action that is in breach of the tenancy agreement or the RTA, or require any action in the performance of a tenancy agreement or of duties under the RTA.
Failure to remedy the breach, or the recurrence of the breach after either of these actions may result in the OOH serving a
Notice to Vacate and making application to seek an Order for
Possession (OP).
Note: Providing a remedy to a breach means resolving the issue. For example, where the breach is dumping rubbish the remedy is cleaning it up; if the breach is playing loud music all night, the remedy is to play the music at low levels or not at all during the night.
Nuisance Behaviour
The OOH issues a Breach of Duty notice specifying a breach of section 60 of the RTA if a tenant uses the premises or allows the premises to be used in a way that causes nuisance or interference to a neighbour. For example, where a tenant or their visitor engages in the following activities:
uses abusive language toward a neighbour;
continually plays loud music late at night;
excessive shouting;
deliberately banging on walls, slamming of doors;
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RTA s. 244
L
LS
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exposing themselves to neighbours;
throwing rubbish or objects that will not cause harm or injury and;
lighting of small fires in common areas, for example, garden beds, rubbish bins, stairwells etc. that can cause smoke damage and discomfort to surrounding occupiers.
Dangerous Behaviour
The OOH issues an Immediate Notice to Vacate when the tenant or the tenant’s visitor by act or omission endangers the safety of occupiers of neighbouring premises.
An application for a possession order under this section requires conduct that endangers the safety of neighbouring occupiers, and the conduct or the danger needs to be continuing when the
Notice to Vacate is served.
The power to give a notice to vacate under section 244 requires a real risk of danger to the physical or mental health of occupiers and not some remote or faint possibility of such.
Where a tenant or visitor has threatened an occupier of neighbouring premises, Housing Services Officers (HSOs) should consider the seriousness of the threat, whether the threat could reasonably be regarded as an idle one, and whether there is a real likelihood of the threat being carried out so that the tenant could reasonably be said to endanger the neighbour.
If uncertain, staff should contact the Policy Hotline or the Team
Manager (TM) may contact Legal Services for further assistance with such applications.
For example, a tenant or their visitor:
has thrown an object at a neighbour with the intent to cause serious harm, and continues to carry out this behaviour to potentially injure the neighbour; or
has continuously threatened or harassed a neighbour in a serious manner that causes the neighbour to fear for their safety.
Prior to issuing the Immediate Notice to Vacate, the OOH conducts an immediate investigation to confirm that the reported incident occurred and whether there is a need for the
Police to be involved. The OOH generally sets a termination date for the Immediate Notice to Vacate five days from the date of issue of the notice.
Tenants who believe they are threatened by dangerous behaviour are also encouraged to contact the Police and seek their own legal advice. Legal Aid Victoria, for example, may be able to give advice regarding legal protection that is available outside the tenancy laws.
RTA, s. 472
RTA, s. 263
L
LS
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L
LS
2.3.3
When it is
Difficult to
Determine who is at Fault
RTA, s. 452(1)
Illegal Activity
The OOH issues a notice to vacate pursuant to section 250 of the RTA where a report has been made of unlawful activities occurring from the rented premises. Examples of illegal activity may include drug cultivation or alleged drug dealing from the premises. The OOH contacts the local Police to confirm information received.
Once information is gathered, contact Legal Services to seek further clarification.
Disputes Between Neighbours
Where two or more neighbouring tenants are in serious conflict and it is difficult to determine if a tenancy breach has occurred, the OOH encourages and assists the involved parties in a mediation process.
If the conflict is not resolved through mediation, the OOH may make a general application to the VCAT for a legal resolution under section 452(1).
Section 452 provides for either a landlord or tenant to make a general application to VCAT for disputes arising under the tenancy agreement or if there has been a breach of the tenancy agreement or of the RTA in relation to the tenancy agreement.
Section 472 provides VCAT with the power to make any decision it thinks fit, including:
an order to restrain any action in breach of a tenancy agreement or the provisions of the RTA; or
an order to require any action in the performance of a tenancy agreement or of duties under the RTA.
Therefore OOH staff may make application under section 452(1) for an order for intervention, compliance and or restraint in relation to disputes between neighbours.
If a tenant fails to abide by an order made under section 452(1) hearing, Legal Services are contacted for further advice.
Disputes Between Household Members
The OOH may receive requests from tenants to intervene when relationships between household members have broken down.
For example, a tenant who has been physically abused by their partner may ask the OOH to evict the household member who has abused them.
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RTA s. 253
2.3.4
Tenants in
Danger
Allocations Manual
2.3.5
Pets
RTA s. 452
Body Corporate
Properties chapter in this manual
DFNAA
If conflict between household members does not involve a breach of the Residential Tenancy Agreement or the RTA, the
OOH does not have the legal authority to intervene.
Where a tenancy breach has not occurred, the OOH refers the parties to community support or other services, including the
Police, who may be able to provide assistance.
If a tenancy breach has occurred, the OOH responds with the appropriate action. For example; where a tenant has permitted visitors to stay without the consent of the OOH, and the visitors refuse to leave, the OOH may consider issuing a Notice to
Vacate against the tenant under section 253 of the RTA for assignment or sub-letting without consent. Action is taken against all tenants, not individual household members.
Tenants may apply for a transfer via the Unsafe Housing category of the Special Housing Needs segment when:
Police or a community support worker recommends that the tenant be moved to alternative housing for their safety; or
the tenant has reasonable grounds to believe they are under threat of physical violence and fear residing in their current housing; or
they will be a witness for the OOH at VCAT either voluntarily or by summons and as a result, their safety may be endangered if they continue to reside in their current property.
Note: If the tenant is to be a witness for the OOH at VCAT, it may be appropriate to consider a temporary transfer until the hearing. However relocating the witness permanently may jeopardise the outcome of the hearing, as it will be difficult for the OOH to establish a case of continuing danger.
When complaints are received about nuisance behaviour caused by a tenant’s pet, the involved parties are encouraged to resolve the problem through mediation or a legal hearing under section 452 of the RTA.
If the owner of the animal does not attempt to remedy the problem, the OOH issues a Breach of Duty Notice under the relevant section of the RTA, for example, section 60 - nuisance or interference.
Where the OOH property is located in a body corporate (for example, units, flats, and apartments), the rules and regulations of that body corporate must be complied with. It is the responsibility of the OOH to ensure that its tenant obeys the rules. Failure of the OOH to take appropriate action upon notification of a breach of body corporate rules may result in an application by the body corporate to the Magistrates’ Court for a declaration or an order to determine the dispute.
Where complaints about a tenant’s pet are of an urgent nature,
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2.3.6
Aboriginal
Housing
AHB Policies and
Procedures 1999
2.3.7
Mutual
Clients of DHS and Tenants
Receiving
Support
Appendix
Form of
2.7.4
Authority
Business Practice
Manual
2.3.8
Tenants in
Smoking in OOH
Properties and on Housing
Estates
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The local council is contacted when:
a person has been attacked by an animal; or
neglect of an animal is causing sanitation or health problems; or
an animal is repeatedly wandering at large beyond the owner’s and immediate neighbour’s premises.
An animal welfare agency such as the Cat Protection Society or
RSPCA is contacted when:
an animal appears to have been abandoned; or
an animal appears to have been maltreated, harmed or neglected.
Regular communication with the Aboriginal Housing Officer
(AHO) responsible for the area is maintained when tenants in
Aboriginal Housing are involved in disputes.
The HSO works with the AHO together with Aboriginal Housing
Victoria (AHV), in an attempt to resolve the dispute.
If it becomes appropriate to issue a Notice to Vacate or make an application to VCAT to seek a Compliance Order, the HSO requests approval from AHV to take legal action.
Early identification of mutual clients of DHS and tenants with support needs can ensure that support is provided to assist clients to meet their tenancy responsibilities and avoid legal proceedings which may lead to their tenancy failing.
In the case of tenants with support needs or those who may be clients of other programs within DHS, staff must obtain the tenant’s consent prior to contacting another
DHS program or support agency regarding their tenancy or legal issues.
Staff may only discuss the details of a client’s tenancy without their consent where it is required by law, or to prevent or lessen a serious or imminent threat to the health, safety and welfare of the client or the public.
Any person residing in or visiting housing estates (ie high rise properties and walk-ups) cannot smoke in enclosed common areas including:
foyers,
enclosed walkways,
lifts,
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RTA 1987
Appendix 2.7.19
Letter to tenants
laundries,
enclosed car parks and
common room facilities.
Tenants and visitors to OOH properties, can smoke:
inside their own home,
on their private balcony and
outside the building.
Where it would not pose a threat to their safety, OOH staff should request tenants or visitors who are smoking in an enclosed common area to extinguish their cigarettes, and advise them that they are committing an offence under the
Tobacco Act 1987 (TA 1987).
Where not safe to do so or the tenant or visitor refuses to comply, and the person is known to the staff member, a letter should be sent to the tenant advising them of the consequences of smoking in a non-smoking area.
Where another tenant complains about a neighbouring tenant or visitor smoking in a non-smoking area, they are advised to report their complaint the Tobacco Information Line on 1300
136 775.
The OOH has no clear authority under the RTA (1997) to take action against tenants for smoking in an enclosed common area, therefore investigation and enforcement of complaints that smoking is occurring in enclosed common areas lies with the DHS Tobacco Policy Unit, who may refer it to the Local
Government Environment Health Officers.
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2.4
Tenancy Breaches and Dispute Resolution
Procedures
2.4.1
Nuisance and
Interference
Appendix 2.7.1
Nuisance and Interference Breach of Duty Flow Chart
The local Housing Office may become aware of problems with tenant’s behaviour in various ways, such as:
complaints received from occupiers of neighbouring premises who are being affected by a tenant’s behaviour,
information supplied by OOH staff,
information supplied by other agencies such as the Police or community groups,
anonymous phone calls to the Housing Office.
Clients are asked to register their complaint in writing when this is possible. This ensures accurate file records are maintained and also clarifies the nature of the problem. It is important that housing staff explain to complainants that the OOH may be unable to take legal action against a tenant unless the complainant is prepared to act as a witness.
However, there are circumstances where it may be necessary to take action on verbal advice only.
Verbal advice is acceptable in cases where:
the client has difficulty writing and is reluctant to do so; or
the client is from a non-English speaking background and has difficulty writing in English; or
urgent and immediate action is required.
2.4.2
Registering and
Investigating a
Complaint
Accept and register all complaints about tenant behaviour, whether they are received verbally or in writing.
All complaints must be registered:
in a central Disputes/Complaints Register; and
on the ISIP “accounts history” screen for those parties involved in the complaint who are OOH tenants; and
a hard copy placed on the tenancy files of the tenants involved.
Note: Ensure all complaints that are received in writing are filed on the tenancy file. This includes complaints that do not involve OOH tenants.
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Guidelines for
Home visits – appendix
21.1.1 in this manual
Where none of the parties involved is an OOH tenant, send a letter to the person who notified the office, advising them that the problem does not involve an OOH property or tenant.
Provide them with information about other government departments or community agencies who may be able to assist them.
Initial Contact and Investigation
Contact the person who has registered a complaint to discuss the matter. Send a letter to acknowledge receipt of the complaint within five days of receiving it. Ensure that confidentiality is maintained at all times.
Depending on the circumstances of the case, contact can be made by telephone, home visit or letter. For example, a home visit would not be appropriate if the person reporting the problem believes their safety will be at risk. Clarify any issues with the person/s reporting the problem.
When either a written or verbal complaint has been registered, ask the person who has registered the complaint the following questions:
what is the complaint about?
who is causing the problem?
when and where did the problem/behaviour occur? (i.e. the specific day, time and location)
how has the reported behaviour disturbed the client? For example, sleeplessness, loss of property, risk to that person’s health or safety,
has the problem occurred before? (Check for file notes on any previous incidents), are other tenants affected by the problem? and
have the Police or security guards been involved?
If the Police were involved, ask the client to make a note of the time the Police were called, the time they attended and the name or identity number of the officers who took the call and/or attended to resolve the matter.
Advise the client to keep a diary of any further incidents that occur stating times, dates, and relevant details of the incidents.
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Guidelines for
Home visits – appendix
21.1.1 in this manual
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Explain that if a Breach of Duty Notice is served they later may be called to attend the VCAT as a witness, and the information will be given as evidence as part of the breach notice and at the hearing.
Advise the client that they may be issued with a summons from
VCAT if the OOH is required to pursue legal action.
Prepare a detailed record of all of the necessary information for the tenancy files. File notes must be written in a professional manner and contain objective and relevant facts only.
Information that is received from other parties such as neighbours or Police must be identified as such.
When a Complaint is Received From More Than
One Person
If the problem has been reported by more than one person, for example, a petition or more than one report or letter is received, contact each person either as a group or individually, depending on the nature of the problem.
For example, a number of tenants from the same estate have reported that rubbish is not being disposed of correctly. In this case, it may be appropriate to arrange a group meeting with all the tenants to establish the extent of the problem as well as provide information about tenant responsibility and council regulations regarding the disposal of rubbish.
Contacting the Tenant Being Reported
Contact the tenant or the household being reported by telephone immediately. Advise them that there is a tenancy matter to be discussed with them.
Arrange an appointment time for them to come to the office, or alternatively, for a HSO to visit them at home. Depending on the nature of the matter it may be necessary to conduct an inspection. For example; premises being unkempt, including the dumping of rubbish. It may be necessary to document the situation, by taking photos.
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Business Practice
Manual
Appendix 2.7.4
Form of Authority
Check the tenant’s file for details of any previous referrals to support agencies that may be contacted to provide support to the tenant in resolving the problem. Check whether there is any record on the file that states that the tenant consents to a support agency being contacted on their behalf.
If consent exists, contact the support agency. Where no consent exists and contact is made with the tenant, try to ascertain whether any worker/support agency is assisting the client. If there is, ask the tenant to sign a Form of Authority.
Ensure that the confidentiality of the tenant is maintained at all times.
If the tenant cannot be reached by telephone, send a letter requesting the tenant to contact the office as soon as possible to arrange an appointment to discuss a matter concerning their tenancy. Send this letter within 24 hours of the complaint being received.
If the tenant does not respond to the letter within three working days, conduct a home visit.
Interviewing the Tenant Being Reported
Plan to interview the tenant with another staff member in circumstances where the case may proceed to VCAT. In this way the staff member acts as a witness to the proceedings of the interview.
Inform the tenant that a family member, friend or worker may accompany them during the interview.
Advise the tenant that a complaint has been made and explain the nature of the problem. Give the tenant an opportunity to respond to the complaint.
Where information or evidence indicates that a breach has occurred, inform the tenant that the OOH will issue a Breach of
Duty notice.
Explain to the tenant that if the breach is not remedied after the Notice has been issued, the OOH will take further legal action to resolve the issue.
Where there is no information to suggest that a breach has occurred inform the tenant that no action will be taken and that the situation will continue to be monitored.
Where there is conflicting evidence, it will be necessary to investigate the matter further. If so, advise the tenant that they will be advised whether further action will be taken when the investigation is complete.
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2.4.3
Other
Parties to
Contact When
Investigating a
Complaint
Business Practice
Manual
Appendix 2.7.3
Support Agencies to
Contact
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Documenting Interviews
Complete a file note documenting details of each interview.
The file notes should include:
the date of the interview,
the name of the person (or people) interviewed,
where the interview was conducted,
all details of the discussion verbatim, including statements
(including threats and offensive language) in quotation marks where necessary. This ensures that all conversations relating to the incident/s are recorded correctly.
the options for resolution that were discussed, and
the name and signature of the interviewing officer/s.
Send a letter to the client who lodged the complaint, advising the outcome of the investigation, and the action taken to resolve the problem. Send the letter within one working day of completing the interviews.
Note: If you telephone the client advising them of the outcome of the investigation, ensure that a follow-up letter is sent confirming what was said, and advising of any outcomes and further action.
Advise the client to contact the local office if the problem continues.
Contact other relevant parties who may have information that could assist in the investigation and resolution of the problem.
In all cases, except where the tenant concerned is in danger or endangering the safety of others, do not give the tenant’s personal details to another agency or individual without the tenant’s consent.
In circumstances where the person’s behaviour is endangering their own safety or the safety of others, contact the Police, the
Community Policing Squad, a Community Mental Health Clinic or, if available, a worker or agency nominated by the person and recorded on their tenancy file.
Depending on the nature of the complaint, contact is made by telephone, home visit, or letter. For example, a telephone call or a letter would be the best means of contacting a neighbour who may be a witness to dangerous or threatening behaviour.
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2.4.4
Referring
Tenants with
Support Needs
Contact is made with other relevant parties to establish:
whether they have a responsibility to resolve the problem or may voluntarily wish to be involved in the resolution process,
how they are involved with the complaint,
whether the behaviour being reported is ongoing or has only occurred on the one occasion,
how the problem may be successfully resolved.
Other parties that may provide further information and assistance include:
Police to provide information about their involvement in the incident or the role they could play in the resolution of the problem;
neighbours as possible witnesses to the behaviour that has been reported,
community and/or health workers and/or tenant workers - to provide information about services available and what role they could play in the resolution of the problem
,
workers from other authorities if they also have a responsibility to resolve the problem eg Local Council staff if there is a health, cleanliness or pet issue,
security guards (or guards’ log book) as witnesses to the behaviour being reported or having previous knowledge with the parties involved,
other staff members who may have dealt with the involved parties on previous occasions.
Where the investigation of a complaint indicates that a tenant or household member may require support, and a lack of such support may be a contributing factor to the problem, the tenant
(with their consent), is referred to an appropriate support agency.
Where a tenant has support needs and is also in breach of the
Residential Tenancy Agreement or the RTA the OOH liaises with the Primary Housing and Complex Care Manager (or regional equivalent) to find the most appropriate way of resolving the problem.
Referral does not preclude the OOH from taking other action to resolve the problem. For example, a Breach of Duty notice is served at the same time that a referral for support is made if the tenant is in breach of the Residential Tenancies Act.
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Release of
Information chapter,
Business Practice Manual
Appendix 2.7.5 –
Form of Authority
Obtaining Consent for Referral to a Support
Agency
At the interview or home visit, ask the tenant against whom a complaint has been made, if they have a person whom they would like to contact for support or assistance. For example, a doctor, mental health nurse, social worker, friend or relative.
If the tenant has a support worker, ask the tenant if they consent to the OOH contacting the worker to discuss the issue.
Ask the tenant to sign a Form of Authority to confirm written consent.
If the tenant does not have an existing support worker, advise them of an appropriate support agency that is applicable to their need.
With the tenant present and with their permission, contact the agency or worker by telephone and give the worker appropriate background information about the matter. If the tenant then wishes to talk to the worker in private, leave the room while they do so.
Where the worker cannot be contacted immediately, ask the tenant if they consent to the OOH contacting the worker at a later date, to advise them of the issue and requesting that they contact the tenant. If the tenant consents to this, ensure they have signed a Form of Authority.
Where the tenant refuses to give consent for the OOH to contact a support worker, staff must respect this, unless it is to prevent or lessen a serious and imminent threat to the health, safety and welfare of an individual or the public. Advise the tenant of their obligations according to the RTA, and that the
OOH will pursue legal action if required.
Record file notes of the key issues discussed with the tenant.
When a Tenant with Possible Support Needs
Cannot Be Contacted
If the tenant does not respond to home visits or does not wish to attend an interview, send the tenant written information regarding support agencies they may wish to contact.
Continue with other appropriate action to resolve the problem.
For example, issue a Breach of Duty Notice or send an explanation of rights and responsibilities to all involved parties.
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2.4.5
Tenants with an Existing
Support Worker
Appendix 2.7.5 -
Form of Authority
Release of
Information chapter,
Business Practice Manual
2.4.6
Mutual clients of the
Department of
Human Services
Appendix 2.7.5 -
Form of Authority
Release of
Information chapter,
Business Practice Manual
IPA
Clients with a delegated caseworker or support agency are asked to complete a Form of Authority at the time of sign up.
The form allows the Housing Office to release and discuss information regarding the client with the client’s Case
Manager/Support Agency.
Where the Form of Authority has been signed not more than twelve months previously, notify the Case Manager/Support
Agency when the dispute becomes a matter that may jeopardise the public housing tenancy.
Forward copies of all documentation sent to tenants to the Case
Manager/Support Agency where permission to do so has been given.
Where the tenant refuses to give consent for the OOH to contact their support worker, staff must respect this, unless it is to prevent or lessen a serious and imminent threat to the health, safety and welfare of an individual or the public. Advise the tenant of their obligations according to the RTA, and inform them that the OOH will pursue legal action if a breach of the tenancy occurs.
The Tenancy Breaches and Dispute Resolution procedures outlined in this chapter are applied to tenants who are also clients of other program areas within the Department.
Attempts are made at a regional level to identify these clients.
Once it is ascertained that the tenant is a mutual client they are asked to complete a Form of Authority. This will allow the
Housing Officer to discuss details regarding the tenant and the dispute to the tenant’s Support Worker/Case Manager.
Where the tenant refuses to give consent for the OOH to contact their support worker, staff must respect this, unless it is to prevent or lessen a serious and imminent threat to the health, safety and welfare of an individual or the public. Advise the tenant of their obligations according to the RTA, and that the OOH will pursue legal action if required.
Where tenant consent has been obtained, maintain regular communication with the appropriate Support Agency/Worker in an attempt to resolve the dispute.
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2.4.7
Nuisance
Behaviour
Caused by Pets
RTA, s. 60 (1) & (2)
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Where complaints are received about nuisance behaviour by a tenant’s pet, and the owner of the animal does not attempt to remedy the problem, issue a Breach of Duty notice under the relevant section of the RTA.
Where the complaint is of an urgent nature, contact the local council for assistance. For example, where:
a person has been attacked by an animal,
neglect of the animal has caused sanitation or health problems, or
an animal is repeatedly wandering at large beyond the owner’s and immediate neighbour’s premises.
If there is an issue with stray animals and the local council is unable to assist contact an animal welfare organisation to arrange collection of the animals, eg RSPCA or Cat Protection
Society. These organisations are also contacted when:
an animal appears to have been abandoned, and/or
an animal appears to have been maltreated, harmed or neglected.
Contacting a Local Council
Local Councils may be involved in the resolution of issues concerning rubbish, pets, cleanliness and/or health issues.
Where a breach of the RTA has been established, a Breach of
Duty Notice should be served on the tenant.
Telephone or arrange a meeting with the appropriate staff member from the local Council. Advise them of the complaint that has been reported to the OOH and discuss with them:
any action the OOH has already taken to resolve the problem,
a joint inspection of the premises (particularly for a cleanliness dispute),
any action they can take directly,
timelines for any action they may take,
taking legal action through the Magistrates’ Court,
giving evidence at a VCAT hearing.
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2.4.8
Breach of
Duty Notices
RTA, s.208
Appendix 2.7.6 –
Breach of Duty Notice
Write to the Local Council confirming the discussion that took place and the agreed process for resolution.
Prepare a file note detailing the following information:
date of telephone call or meeting,
name of Local Government staff member involved,
details of discussion
details of the agreed resolution process.
Issuing a Breach of Duty Notice
There are sections of the RTA that outline the duties of tenants.
When these duties are not met, a breach of duty notice is issued.
The Breach of Duty notice must:
state the section of the RTA and the clauses of the
Residential Tenancy Agreement that have been breached,
state the dates and times that each breach occurred,describe the nature of each breach in full. For example “on or about the 5 June at approximately 4:30pm your said to Jo Tenant of 5 Green St “I am going to cut your head off”,
state clearly that the tenant must cease all such activities within the required time,
state that failure to comply with this request may result in an order for compensation or the issuing of a Notice to
Vacate and an application being made to VCAT for a compliance order,
be signed and clearly dated so that the tenant is aware of the date from which the Notice applies.
If there is more than one signatory to the Residential Tenancy
Agreement, include the names of all tenants as they appear on the tenancy agreement on the Breach of Duty notice.
The notice has effect for 14 days, with an additional three business days allowed for postage. Therefore the tenant effectively has 17 days to remedy the breach.
Note: Contact the neighbouring occupants who have lodged complaints to advise that the tenant has 17 days in which to remedy the breach behaviour, and that the OOH will continue to monitor the situation. Should the neighbouring occupants have any further concerns in relation to this matter they are to contact the local office.
If the tenancy is in joint names, send a copy of the Notice to each tenant by registered post. File a copy of the Notice.
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When a Tenant Remedies a Breach
Where a tenant who has been issued a Breach of Duty notice remedies the breach, no further action is taken on that breach unless the tenant does not maintain the remedy action.
Continue to monitor the situation to determine whether the tenant has remedied the breach behaviour as outlined in the breach of duty notice.
When a Tenant Does Not Remedy a Breach
If the tenant remedied the breach specified in the first breach of duty notice within the specified time (14 days plus three days for postage) and the breach later occurs, send a second
Breach of Duty notice OR make an application to VCAT to seek a Compliance Order (refer to 4.4.9 in this chapter).
Staff may only recommence legal action for breach behaviours occurring after the Breach of Duty notice remedy period (14 days plus three days postage) has elapsed. Breaches occurring during the remedy period may only be used as additional evidence supporting future legal action.
Note: The RTA does not require a second breach of duty notice to be served prior to the landlord making application for a compliance order. The decision to serve a second breach of duty notice is made at a local Office level in consideration of local Office knowledge of the tenant and in consultation with any support workers or the regional Specialist Housing Support
Coordinator.
The decision to pursue a Compliance Order instead of issuing a second breach of duty notice should be made by considering factors such as:
how serious the breach is,
whether there have been other breaches during the tenancy,
the effect the breach is having on neighbours, and
the amount of evidence that is available to support the case.
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2.4.9
Compliance
Orders
Appendix 2.7.1 -
Breach of Duty Flowchart
RTA, s.209
Appendix 2.7.9 -
Example of a Compliance
Order
When a Household Member requests intervention
If the dispute between the household members does not involve a breach of their Residential Tenancy Agreement, advise the client that the OOH does not have the legal right to remove another member of the household from the premises.
They will have to take further action themselves to resolve the matter if both parties refuse to leave the premises.
Provide them with information about community agencies that may assist them in resolving the matter. For example,
Transitional Housing Managers, Rental Housing Support
Agencies, the Police, Legal Aid if the dispute occurred as a result of family violence etc.
If the dispute involves a breach of the Tenancy Agreement, eg. a household member causes damage to property or other tenants complain, staff may issue a Breach of Duty Notice or an immediate Notice to Vacate when there is a case of endangerment.
If a tenant of a household becomes homeless as a result of the dispute, determine if they are eligible to apply for Early
Housing allocation and discuss alternative housing options such as Bond Assistance.
Making application for a Compliance Order where a breach is not remedied after a breach of duty notice is served
If the tenant does not remedy the breach:
within 14 days of a breach of duty notice being served, or
within three months of the breach of duty notice expiring,
An application is made to VCAT to seek a Compliance Order pursuant to section 209 of the RTA.
Prepare detailed file notes and a list of incidents including details of the behaviour/actions that occurred after the Breach of Duty Notice was served.
At VCAT hearing present details of the incidents, behaviour or events that occurred. Present all the evidence gathered to substantiate the behaviour/actions (refer to sections 2.4.14 -
2.4.19 in this chapter regarding obtaining summons and preparing a case for VCAT).
Request VCAT to grant the Compliance Order to be enforced for the duration of the tenancy or the maximum period available.
The tenant/respondent may agree to the Compliance Order, in which case the compliance order can be made by consent of both parties.
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Note: VCAT will determine the time period of a Compliance
Order depending on the merits of each case.
Appendix 2.8.11 -
Example NTV, Failure to
Comply with a Tribunal
Order
Appendix 2.8.13 –
Example Briefing Note
Appendix 2.8.11
Failure to Comply with a
Compliance Order
Submission to VCAT
VCAT On-line
2.4.10
Valid
Service of
Notices
If the Compliance Order is not Complied With
If a Compliance Order is granted at VCAT and the breach reoccurs within the period stipulated in the Compliance Order, serve a 14 day Notice to Vacate to the tenant for failing to comply with a VCAT Order pursuant to section 248(1) of the
RTA.
Prior to making an application to VCAT, prepare a briefing note to the Housing Services Manager (HSM) and Housing Manager, detailing the history of the tenancy breaches and request that approval be given for a warrant of possession to obtained.
Send to the tenant by registered mail:
a copy of the Notice to Vacate that contains a statement of the further breach that has occurred, including date, time, details of the incident/behaviour etc,
a copy of the completed VCAT Application Form specifying the relevant section of the Act under which the application is made, and
a copy of the Breach of Duty notice and Compliance Order previously sent to the tenant plus copies of the registered mail receipts.
Section 322 of the RTA states:
“A landlord may apply to VCAT for a possession order for rented premises if the landlord has given the tenant a Notice to
Vacate the premises”.
The OOH must insure that the Notice to Vacate has been served by registered post at least three business days prior to lodging an application for hearing with VCAT.
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VCAT On-line
Appendix 2.7.14
Affidavit of Service
In applications relating to anti-social allegation, the HSO is to arrange for service by hand delivery. The Notice to Vacate must be delivered to the tenant personally, or if they are not at the rented premises leave the Notice to Vacate with any person over the age of 16 who is recognised as a household resident.
An affidavit of service will have to be completed for submission as evidence as proof of service at the hearing (refer to section
2.4.15 in this chapter for instructions about how to complete an affidavit).
Where hand delivery by the HSO is not possible due to issues of personal safety, the HSM may consider engaging a process server to serve the tenant in person.
Legal Services can assist with arranging a process server.
Serving the Notice to Vacate via registered post is also an option. However, this may not be deemed as effective service in that the tenant may decide not to collect registered mail from the Post Office, or collect it sometime after the three working days allowed for service and not before the application to VCAT is made.
Therefore, personal service by the HSO or by a process server is strongly advised to ensure that valid service is not an issue raised at hearing.
Once the Notice to Vacate has been served, make an application to seek an OP pursuant to section 322 of the RTA.
If the Notice to Vacate was served by hand, an application can be made immediately afterwards.
If there have been previous applications made to VCAT for the same tenant, list the reference numbers on the general application form.
At VCAT hearing, present details of the incidents, behaviour, or events that occurred to contravene the Compliance Order.
Present all the evidence gathered to substantiate the event.
If an OP is not granted and the application struck out or dismissed by VCAT, the Compliance Order remains active.
Therefore, while the incident that was the subject of the application for an OP cannot be the basis to make another application, a new application may be made on the basis of any future incidents that occur while the Compliance Order is still active.
If an OP is granted, register the dates on ISIP and proceed to making a warrant application.
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2.4.11
Successive
Breaches
Appendix 2.7.7
NTV, Successive
Breaches
RTA, s. 249 & 322
VCAT On-line
VCAT On-line
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Issuing a Notice to Vacate for Successive Breaches
When a tenant who has remedied their breach behaviour within the specified timelines on two separate occasions commits the same breach for a third time serve a Notice to Vacate pursuant to section 249 of the RTA.
Once the Notice to Vacate has been served, make an application to seek an OP pursuant to section 322 of the Act. If the Notice to Vacate was served by hand, an application can be made immediately afterwards.
Previously served Breach of Duty notices must have expired before a Notice to Vacate can be served. The termination date on the Notice to Vacate must be at least 17 days (ie. 14 days plus 3 business days for delivery time) after the expiry date of the final Breach of Duty notice.
Note: This section is not to be used as an alternative to seeking a Compliance Order where a tenant fails to remedy a breach of duty as outlined in the breach of duty notice. Section 249 requires the OOH to establish a history of breach behaviour in order to satisfy VCAT before an OP will be granted.
Send to the tenant by registered mail:
a copy of the Notice to Vacate that contains a statement of the further breach which has occurred, for example; date, time, details of the incident/behaviour etc; and
copies of the Breach of Duty notices previously sent to the tenant plus copies of the registered post receipts.
VCAT does not require documents in relation to the hearing to be sent to VCAT where the application is made through VCAT
On-line. On the day of the hearing you will be required to give the original copies of all documentation to the Chairperson.
If making a manual application to VCAT for a hearing (i.e. not through VCAT On-line), send all of the above documents to
VCAT by ordinary mail.
When issuing the Notice to Vacate, advise any witnesses involved that they may be issued with a summons to attend the hearing. Ensure they are aware that they will be sworn under oath to give evidence to VCAT and they may be fined if false evidence or a false affirmation is provided.
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2.4.12
When it is difficult to determine who is at fault
www.justice.vic.gov.au/di sputes
Appendix 2.7.3
Support Agencies
Negotiation and Mediation
Where it is difficult to determine if there has been a breach to the Residential Tenancy Agreement or the RTA, it may be appropriate to attempt to resolve the matter through negotiation and mediation.
Where the dispute or complaint does not involve any threat to the safety of either party, approach both parties involved in the dispute with the aim of negotiating a resolution or seeking mediation. In some disputes both parties are interested in negotiating a resolution but feel unable to do so without assistance.
Refer the matter to the Dispute Settlement Centre, telephone
9603 8370 or 1800 658 528 (country callers only) or via email at, or another independent third party such as a community worker or public tenant support worker.
The mediation session can take place at the Housing Office, a community facility or a venue arranged by the independent third party. The session should be attended by the parties in dispute and where applicable the chosen independent third party. A HSO may also attend as an option if both parties agree.
Obtain and file a copy of any resolutions or decisions reached in the session.
After the Mediation Session
Prepare a file note that details the key issues discussed and the agreed outcomes.
Send a letter to both parties confirming the agreed outcomes of the mediation session and the legal action the OOH will take if the same dispute occurs again. In some cases, it may be useful to consult with the independent third party (if a third party attended the meeting) about the agreed outcomes before sending the letter.
Record the details of the mediation session on ISIP, including the outcome.
Place a copy of the file note together with a copy of the letter and any other relevant documentation on the file of the tenants involved. If the client reporting the dispute is not an OOH tenant, place the documentation on the housing offices’ correspondence registry.
If the dispute is not resolved through mediation, the OOH may apply to VCAT for a legal resolution under section 452.
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RTA, s. 452
VCAT On-line
2.4.13
Immediate
Notice to Vacate
– Dangerous
Behaviour
Appendix 2.7.2
Immediate NTV Flow Chart
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Section 452 of the RTA provides the OOH and/or the tenant with a legal option to resolve a dispute where:
no breach of the tenancy has occurred, and
responsibility for the dispute cannot be determined
In such circumstances, VCAT will determine responsibility and may issue a restraining order against one or more parties to the dispute. For example, the restraining order may state that
Tenant A is restrained from speaking to or approaching Tenant
B at any time.
A General Application may be made through VCAT On-Line, specifying the application is made pursuant to section 452.
Send a copy of the application to both parties involved in the dispute and place a copy on the tenancy files.
In preparation for the hearing, prepare a chronological history of the dispute, including details of all the actions the OOH has taken to resolve the dispute for example; referral to community agency or mediation sessions. The decision made by the chairperson will be based on the history prepared by OOH staff of the dispute and the information given by the parties involved.
Explain to both parties that they must abide by the decision made at VCAT.
Note: Failure to comply with an order of restraint will not enable staff to make an application to VCAT for a possession order. If either party does not comply with the restraining order, staff will need to investigate allegations made by either party and commence Breach of Duty proceedings. Contact
Legal Services for advice if either party fails to comply with the order of restraint.
Situations involving dangerous behaviour require immediate action. The RTA 1997 allows a landlord to serve an Immediate
Notice to Vacate on a tenant in these circumstances. Due to the urgency of these matters there is no requirement to serve
Breach of Duty Notices.
An Immediate Notice to Vacate is issued under section 244 of the RTA where a tenant or their visitor endangers the safety of occupiers of neighbouring premises.
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Appendix 2.7.12
Immediate Notice to Vacate
Investigate and action all reports of dangerous behaviour immediately. Arrange to interview or home visit the person reporting the matter, and any witnesses, to discuss the details of the situation. Plan to conduct the interviews with another staff member.
File note all discussions.
Establishing a Case of Dangerous Behaviour
Determine if, by act or omission, the tenant has endangered the safety of a neighbour, for example has there been an assault, threats to kill/harm, property damage with the potential to harm the neighbour, or discharging a firearm/use of a weapon.
If the conduct was dangerous, is there a real risk of it recurring so as to endanger the physical or mental health of neighbours?
An isolated incidence which is unlikely to be repeated will not be sufficient to establish a case of Dangerous Behaviour however the seriousness of the behaviour will be relevant to the decision to serve the Notice to Vacate.
Evidence of the likelihood of it recurring may be obtained from: tenancy history, for example, breach notices/complaints, the circumstances of the tenant (perpetrator), for example, if they continue to reside in the property or are they in jail or hospital?
The victim/s must be an occupier of neighbouring premises.
For example, live at the premises in the same block or share a boundary with the premises.
Investigating Police Involvement
Ascertain whether the Police have been contacted regarding the incident and:
whether any action will be taken directly, for example removing from the premises the person whose behaviour is endangering the lives of people in neighbouring properties,
the timelines for their action,
their availability to provide evidence at VCAT,
whether they can provide any documented evidence they may have to submit to VCAT if legal action is to proceed.
Note: Prior to preparing a briefing note to the Manager,
Housing, Primary & Complex Care or Regional Executive Officer equivalent, contact Legal Services to clarify whether there is sufficient evidence to serve an Immediate Notice to Vacate for
Dangerous Behaviour.
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Appendix 2.7.13
Example Briefing Note
VCAT On-line
Appendix 2.7.12
Immediate Notice to Vacate
L
LS
RTA, s. 506(1)
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Preparing a Briefing Note
Prior to serving an Immediate Notice to Vacate, prepare a
Briefing Note in accordance with Departmental guidelines for the Manager, Housing, Primary & Complex Care or Executive
Officer equivalent. The Briefing Note should include:
the history of the case,
any previous action taken by the OOH to resolve the problem,
a request to issue the Notice to Vacate and seek an OP, and
a request that approval be given for a Warrant of
Possession to be obtained and executed within 24 hours of issue.
The Briefing Note is to be cleared by the HSM and endorsed by the HM.
Note: Warrant Applications for anti-social matters are made via a Briefing Note for approval by the Manager, Housing,
Primary & Complex Care or Regional equivalent. The ISIP generated Warrant Application is solely for applications involving rental arrears and should not be used for anti-social matters.
Serving the Notice
Once all investigations are complete and approval has been obtained, prepare a Notice to Vacate through VCAT On-line.
If unsure of the wording of the Notice to Vacate, contact Legal
Services or Policy Hotline for assistance to ensure that it is correct.
It is strongly advised that staff serve the Notice to Vacate in person or via process server to the tenant, or if they are not at the premises, leave the documents with any person over the age of 16 who also resides at the premises. This is to ensure proof of service (refer to section 2.4.10 in this chapter regarding valid service).
Legal Services can assist with arranging a process server.
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2.4.14
Preparing the case for VCAT –
Summonsing
Witnesses
L
LS
Appendix 2.7.14
Summons to Appear
Note: It is recommended that the Notice to Vacate be served within three business days of the incident of danger. In the absence of special circumstances, such as the offender being unable to be found or having been removed from the scene, delay in excess of one week may affect the success of the application.
Contact the client reporting the dangerous behaviour and advise them of the action taken by the OOH and the Police to resolve the problem. Ask them to contact the Housing Office and the Police if the same behaviour reoccurs.
When witnesses are required to give evidence at a VCAT hearing, it may be necessary to summons them before the hearing date.
In cases where Police or security guards have witnessed an incident or have documentary evidence such as photos or other documents to support the case, it will be necessary to apply for a summons to ensure their attendance at the hearing.
If a witness is concerned for their safety or the safety of their family, particularly if the matter concerns endangerment, it is preferable to summons the tenant so that they are legally bound to attend the hearing.
In some cases, fears about safety may prevent a witness from giving evidence at VCAT. For example, a group of elderly tenants living in a block of units have been frightened by a neighbour who has used abusive language and made threats of physical violence.
Where a witness feels too frightened to give evidence, contact
Legal Services to discuss the most appropriate means for obtaining evidence without distressing or endangering that witness.
How to Apply For a Summons
Complete the “Summons to Appear” form the following details:
VCAT file number,
date and time of the hearing scheduled,
why the summons is needed,
full name of the person/s to be summonsed,
business or private addresses of the person/s to be summonsed,
discuss how the summons is to be served (ie. By the HSO or in some cases by VCAT).
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RTA, s 506
L
LS
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Where Police documents are to be summonsed, give details of the documents required.
Three copies of the “Summons to Appear” form are required.
Copy 1 - to be served on the summoned party (the
Affidavit of Service remains blank),
Copy 2 - to be provided to VCAT prior to hearing date
(once the Affidavit of Service has been completed & witnessed)
Copy 3 - to be retained for our records (the Affidavit Of
Service should be signed and witnessed at the same time as copy 2).
Take the completed forms to the administration staff of VCAT located on the ground floor, 55 King Street, Melbourne to be issued. The Registrar will check the date of the hearing, sign and date stamp the summons. There is a fee of $11.00 for each summons issued.
Note: Legal Services may be able to assist housing office staff in requesting summons when it is impractical for them to attend VCAT in person (for example Country offices).
The summons will then have to be served on the witness/es allowing reasonable time prior to the hearing. The summons may be served or given to the witness by:
personal delivery to the person,
sending it by post, fax, or other electronic transmission to the person at his or her usual or last known residential address, or
by leaving it at the person’s usual or last known residential address with a person over the age of 16 who is known to be a household member.
Where possible, the summons is hand delivered to each witness before the hearing date. VCAT can arrange to serve summons on members of the Police. This should be discussed with the
Registrar at the time of purchasing the summons.
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2.4.15
Affidavit of Service
Appendix 2.7.14
Affidavit of Service
VCAT On-line
Complete an Affidavit of Service
After the summons has been served, an Affidavit of Service must be completed and returned with the summons to VCAT.
Persons qualified to take affidavits in Victoria include:
the holder of an office in the public service of Victoria, at the level of VPS-2 or above,
a member of the police force of or above the rank of sergeant or for the time being in charge of a police station,
a Solicitor who is a current practitioner,
a Justice of the Peace or a Bail Justice,
the Registrar or a Deputy Registrar of the Magistrates’
Court.
Persons who are not qualified to take affidavits in accordance with the Evidence Act 1958, include:
dentists,
doctors,
pharmacists,
teachers,
bank managers,
accountants.
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2.4.17
Arranging
Witnesses and
Evidence
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2.4.16
Submission to
VCAT
Appendix 2.7.15
Dangerous Behaviour
Submission to VCAT
Appendix 2.7.16
Nuisance Behaviour Submission to VCAT
Appendix 2.7.17
Failure to Comply with a VCAT
Order Submission to VCAT
Preparing a submission For VCAT Hearing
Prepare a submission for presentation to VCAT. The submission should include:
the section of the RTA under which the application is made,
what is being sought from VCAT for example; “The Director of Housing is applying for an OP under Section 322 of the
Act for continuing breaches of Section 60 of the Act.”
a general summary of alleged incidents for example; “This matter relates to a series of actions by our tenant, Mr X involving:
verbal and obscene abuse against neighbouring occupiers,
objects being thrown into neighbouring premises,
music being played excessively loud,
damage to neighbours’ gardens.”
a chronological list of the number and dates of incidents as detailed in the Notice to Vacate and/or the Breach of Duty
Notices, and a
brief outline of evidence that will be presented to VCAT.
For example: “I shall be calling three witnesses to give evidence of the incidents referred to in the notice. I shall also be tendering a number of documents, including complaint letters, medical reports, Police reports, several
Statutory Declarations and other correspondence relating to the incidents.”
Preparing a list of witnesses and evidence
List the order of witnesses and other evidence according to that which will have the most strength in the case.
If Police will be giving evidence, they are listed first as witnesses so that they can resume duties as soon as possible.
Appropriate ordering of evidence may be as follows:
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evidence in person from Police Officers, police reports if they have been involved in resolving the dispute but will not be present at VCAT,
evidence in person from neighbouring tenants,
evidence in person from OOH staff or other people involved eg community support worker or medical practitioner,
Statutory Declarations,
copies of complaint letters,
medical reports, and/or
other relevant documents or correspondence.
Prepare questions to ask the witnesses, focussing on the information they can give in relation to the alleged breaches listed on the notices. Prepare the questions so that they produce the evidence required for presentation to VCAT. For example:
Where do you live in relation to Mr. X’s premises?
How long have you lived there?
Can you tell VCAT about any disturbances that you have experienced since (date that the dispute first reported)?
What steps have you taken to try to have the noise stopped?
Have you ever approached Mr. X and asked him to stop the noise? And how did Mr. X respond to your request?
Have you contacted any other person or body about these disturbances? For example; the Police or the local Housing
Office. and
How have these repeated incidents, disturbances and/or behaviour affected you?
Briefing Witnesses
It is highly recommended that housing staff ensure that witnesses are briefed prior to the hearing. This will assist a witness’s understanding of VCAT processes that will occur on the day of the hearing. If the witness is concerned about their safety, staff should contact VCAT to make appropriate security arrangements.
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2.4.18
Final
Submission
L
LS
2.4.19
Presenting the
Case at VCAT
L
LS
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Instruct witnesses to arrive at VCAT 15 minutes prior to the hearing time.
Inform witnesses that hearings are conducted in an atmosphere of relaxed formality, and VCAT Members may be addressed as “Madam” or “Sir”.
Witnesses are required to take an oath or make an affirmation and give their evidence. The Member or the other party may cross-examine witnesses. When both parties have presented their evidence, the Member will consider the evidence and announce its decision and reasons for the decision.
Consider any possible submissions the tenant or their representative may present to VCAT. As the applicant, only prepare a draft responses in anticipation of the case you believe the tenant as respondent will present. For example, hardship arguments under Section 25(1) of the RTA.
Contact Legal Services if assistance or advice is needed during preparation of the case for VCAT hearing.
Make three copies of all documents to be presented as evidence. VCAT is likely to call for a copy of the documents, and the tenant being reported is entitled to have a copy.
Organise and mark the documents to correspond in order with the list of witnesses and evidence. This will ensure that evidence is presented in a logical sequence.
At the hearing present all the information as prepared in the submission.
In certain circumstances it may be appropriate to request written reasons for VCAT decisions. This must be made at the start of the hearing, and will be at the discretion of the VCAT member. Contact Legal Services prior to making a request for written reasons for VCAT determinations.
Where an Immediate Notice to Vacate has been served and the
HM has granted approval to immediately seek a Warrant of
Possession, request both an OP and Warrant for Eviction at the hearing.
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2.4.20
Where an OP has Been
Granted
2.4.21
When an
OP is Not
Granted
2.4.22
Execution of a
Warrant of
Eviction
Where the application for an OP is made subject to approval to serve an Immediate Notice to Vacate under sections 243
(malicious damage) or 244 (danger), approval to purchase a
Warrant of Eviction must be included in the Briefing Note to the
Manager, Housing, Primary & Complex Care or Regional
Executive Officer equivalent. The Warrant may be purchased immediately from VCAT using the OOH’s Imprest account.
Alternatively arrange for VCAT to fax or post the warrant directly to either the Housing Office or the local Police Station.
Where the application for an OP was not subject to a request to serve an Immediate Notice to Vacate (i.e.: breach of compliance order), and the OOH is granted possession of the property, complete a Briefing Note in accordance with
Departmental guidelines requesting approval from the
Manager, Housing, Primary & Complex Care or Regional
Executive Officer equivalent to purchase a Warrant of Eviction.
If the Manager, Housing, Primary & Complex Care or Regional equivalent approves the application for a Warrant, the Regional
Project Officer will organise the purchase of the warrant from
VCAT. The Regional Project Officer can nominate that the warrant be faxed or posted directly to either the housing office or the local Police Station.
Advise the Manager, Housing, Primary & Complex Care, the
HSM and HM or Regional Executive Officer equivalent when the warrant has been received. Contact the local Police and arrange a time with them to evict the occupants. Request that the local
Police visit the property and advise the occupants of the eviction.
If VCAT does not grant an OP, enter the outcome on ISIP.
Inform the tenant that the situation will continue to be monitored and if the breach recurs further action will be taken.
Prior to the Eviction
If necessary, arrange for the Community Policing Squad to attend the eviction if the household contains children.
Arrange for a contractor to attend the property to gain entry if necessary and to change the locks and secure the property once the occupants have been removed.
Prepare a briefing note 48 hours prior to the eviction and include the following information:
the address of the property,
the household composition,
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Abandoned properties and goods chapter in this manual
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details of the tenancy, including start date and history of legal proceedings,
the eviction date and any other relevant information, eg.
Whether it is likely that the media will attend the eviction, and
any referrals provided to the tenant/s
Send the briefing note by fax to the:
Minister’s Office – 9096 0055,
Director, Housing Services – 9096 9233,
Director, Public Housing Client Services – 9096 9232,
Manager, Primary Housing & Complex Care in your Region
Regional Housing Manager in your Region
Media Unit if the eviction is likely to attract media attention
– 9096 7233.
If the Media Requests Information
Refer any requests for information from the media to the DHS
Media Unit, Level 21, 50 Lonsdale St Melbourne 3000, telephone (03) 9096 8527. Advise the HSM of the request.
At the Eviction
The Police must ensure that the occupants vacate the property.
Provide information to the occupants regarding support services.
Remain at the property until all goods are removed. If the occupants indicate that they will not be able to remove all their goods from the property, advise them that they must arrange for the removal of goods as soon as possible. Negotiate a time when they may collect the goods. If the goods are not collected within the specified time, ask the contractor to change the locks and secure the property to prevent re-entry.
Terminate the tenancy on ISIP and proceed to carry out a vacant unit inspection.
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2.4.23
Adjourning or
Withdrawing a section244
(Dangerous
Behaviour)
Application
RTA, s. 244
After the Eviction
After the eviction, complete a briefing note advising the outcome of the eviction and send it by fax to the:
Director, Public Housing Client Services – 9096 9232;
Manager, Primary Housing and Complex Care in your
Region;
Regional Housing Manager in your Region, and
Place the briefing note on the tenancy file.
An application to seek an OP for dangerous behaviour pursuant to section 244 of the RTA should only be withdrawn when the tenant against whom the action is being taken vacates their property prior to the hearing date.
Adjournments of section 244 cases can only be considered in extenuating circumstances, for example:
a key witness cannot attend the hearing due to illness; or
a support agency or case worker supporting the tenant requires an opportunity to resolve the situation; or
a support agency or case worker has come forward at a late stage and requires additional time to make an assessment of the situation.
The safety of neighbouring occupants should always be the primary concern in such applications. However the delay caused by an adjournment may contribute to the OOH’s ability to establish a case of continuing danger, and cause the application to be dismissed because no further incidents occurred during the adjournment.
Discuss whether an adjournment is appropriate with Legal
Services, a TM or HSM after having confirmed details with the witness/case worker/support agency.
Fax a letter requesting an adjournment to the Registrar,
Residential Tenancies List, and VCAT. Request that the adjournment be for no more than two weeks. Notify the tenant/respondent of the OOH request for adjournment. If the issue has not been satisfactorily resolved by this time proceed with the hearing.
For applications under other sections of the RTA, an adjournment or withdrawal of proceedings may be considered where the problem appears to have be resolved, for example, one or more of the parties to the reported behaviour vacates their housing, or the tenant against whom the action has been taken receives support that remedies the behaviour.
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2.4.24
Aboriginal
Tenants in
Rental General
Stock
2.4.25
Tenants in Aboriginal
Housing
Appendix 2.7.18
AHV proforma
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Where appropriate complete a Request to Withdraw an
Application or adjourn proceedings and fax it to the Registrar,
Residential Tenancies List, VCAT.
Update the tenant’s ISIP accounts and detail the reasons for adjourning or withdrawing the case. Place a copy of the note on the file of all tenants involved.
Advise all tenants and persons concerned of the adjournment or withdrawal of the case.
If it becomes necessary to commence Breach of Duty procedures, the procedures outlined in this chapter should be followed.
If a complaint is received about an Aboriginal tenant, contact the AHO responsible for the area. Work in conjunction with the
AHO and Aboriginal Housing Victoria (AHV) in an attempt to resolve the issue.
If it becomes necessary to commence breach of duty procedures, the procedures outlined in this chapter should be followed. Copies of all notices sent to the tenant are also forwarded to the AHO.
If it becomes necessary to serve a Notice to Vacate or make application to VCAT to seek an Order for Compliance, forward the following to the AHO:
a proforma with a summary of the history of the dispute requesting approval from AHV to serve a Notice to Vacate or make application for a Compliance Order,
a copy of the account action history,
copies of any Breach of Duty notices served, and
copies of any other relevant correspondence/information.
If AHV approves the request, proceed to issue the Notice to
Vacate or application for Compliance Order.
Maintain regular communication with the AHO when Aboriginal clients are involved in dispute resolution procedures.
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2.4.26
Smoking on OOH Housing
Estates
Appendix 2.7.19
No smoking letter to tenant
OOH Staff Witness smoking in a prohibited area
Where OOH staff witness any person smoking in:
foyers,
enclosed walkways,
lifts,
laundries,
enclosed car parks and
common room facilities.
Request that the cigarette is extinguished immediately; advise them that they are in a non-smoking area and that they are committing an offence under the TA 1987. If they refuse and they are known to you (ie a tenant or resident), send a letter advising of the consequences of smoking in a non-smoking area.
Note: Staff should only ask a person to cease smoking if it would not pose a threat to their safety. Where a staff member does not wish to approach the ‘smoker’ and the person is known to the staff member, a letter is sent to the ‘smoker.’
In all cases and in all instances, a file note is written and placed on the tenancy file.
Appendix 2.7.19
No smoking letter to tenant
Another tenant/visitor to the estate witnesses smoking in a prohibited area
Where another tenant or a visitor to the estate contacts the local office to advise they have witnessed a person smoking where they are not permitted, they are advised to make their complaint to the Tobacco Information line on 1300 136 775.
If the person smoking is a tenant or resident, staff should then send a letter to the tenant, advising them what the restrictions are. This may be followed up by a home visit to ensure the tenant understands the letter that has been sent to them.
Note: OOH staff cannot ring the Tobacco Information Line on behalf of someone else. It is important for future legal action that the person who witnessed the incident reports it.
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2.5
Tenancy Breaches and Dispute
Resolution Appendix
2.5.1
Nuisance and Interference Breach of Duty
Flow Chart
Investigate complaints received
Send acknowledgement letter to the complainant
Contact tenant who is in breach to discuss the matter
NO
Determine if there is a breach of duty by the tenant
Issue
Breach of
Duty Notice
Yes action remedied
Advise complainant if no further action is to be taken
No further action at this stage.
Serve a 2 nd
Breach Notice if appropriate
Make application for
Compliance
Order
Tenant continues breach of duty
If Compliance Order is breached, make application for
Possession under s248
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2.5.2
Immediate Notice to Vacate Flow Chart
Receive complaints
Investigate immediately
Interview all witnesses
Determine that danger is ongoing as per s244
Prepare briefing note for Manager,
HP&CC, HSM /
HM
Serve NTV by hand or by process server
NB: If an ongoing danger cannot be established as required by s244, consider the Breach of Duty flow chart.
Make application under s244 once NTV is served
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2.5.3 Support Agencies
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Aged Related Services
Municipal Aged and Disability Services
Local Government Authorities operate Aged and Disability Services. These services include:
Home Help (washing, cleaning, shopping, banking etc.)
Respite Care
Home Maintenance
Transport and
Adult Day Care
A Local Government worker may also be available to assist with issues outside the scope of the general services provided by the Authority. For information about the full range of services available contact the Community Services section of the relevant Local Government Authority.
Aged Care Assistance – Commonwealth Carelink Centres
Commonwealth Carelink Centres are information centres for older people, people with disabilities and those who provide care and services. Centres provide free and confidential information on community aged care, disability and other support services available locally.
There is a wide range of services to support independent living in the community. Commonwealth Carelink Centres provide a single point, nationally, for anyone to access this information quickly. The centres can also assist with information about costs for services, assessment processes and eligibility criteria.
Each Commonwealth Carelink Centre has extensive regional networks and maintains a comprehensive database containing community aged care, disability and other support services. Shopfronts are operated by organisations that already provide established services within their region.
Their extensive local knowledge ensures they provide a quality service.
Locations of Aged Care Assessment Teams can be found by contacting the
Commonwealth Carelink Centre toll free 1800 052 222.
Community Health Centres
Community Health Centres provide a broad range of services offered by other
Government departments or community based agencies/groups.
Services provided by Community Health Centres include:
general medical services such as general practitioners, physiotherapy, dental and mental health,
counselling services,
726823707 Page 51-2
group support or activity programs.
Dispute Settlement Centres
Dispute Settlement Centre
Level 5, 456 Lonsdale Street
Melbourne 3000
Telephone: 9603 8370
Fax:
1800 658 528 free call (country callers only)
9603 8355
Website: www.justice.vic.gov.au/disputes
The Dispute Settlement Centre provides a range of services aimed at preventing or resolving disputes. These services include:
mediation
dispute counselling
information and referral
conciliation and
community education
Mediation, which is the Centre’s preferred method of dispute resolution, involves all parties to the dispute meeting together with two mediators. The two mediators assist the parties to discuss the issues in the dispute and to negotiate a resolution agreement.
The majority of the disputes handled by the Centre are neighbour related such as nuisance caused by loud noise, pets etc. The Centre also handles disputes between:
people sharing a house,
members of social and sporting organisations,
community organisations, and
people working together.
The Centre does not handle family or family law disputes. These cases are normally referred to the Family Mediation Centre. Staff from the Dispute
Resolution Centre will travel to rural locations to assist clients living outside the metropolitan area. Meetings can also be arranged for alternative locations in the metropolitan area if travel to the centre would be difficult for the parties concerned.
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Mental Illness Services
Community Mental Health Clinics
The Department of Human Services operate Community Mental Health Clinics which provide assessment and ongoing treatment and support for people with a mental illness. The Clinics provide a range of services including:
Community Assessment and Treatment Teams (C.A.A.T) or Psychiatric
Assessment and Crisis Teams 0(P.A.C.T)
Most areas have a 24 hour team that can be called on in crisis situations to provide psychiatric assessment and treatment. If necessary, these teams can recommend a client to a hospital inpatient facility.
Duty Worker
All Community Mental Health Clinics operate a duty system during working hours. This is the first point of contact with the clinic for anybody concerned about or seeking advice regarding a person with a mental illness.
The duty worker or C.A.T team should be contacted if a person is behaving in such a manner that may be endangering his or her own safety or the safety of others. If this service is unavailable, the Police should be contacted.
Mobile Support and Treatment Teams (M.S.T.T)
This service works with clients who are significantly disabled by their illness and require intensive support, but are often unwilling to attend a Community
Mental Health Clinic.
Rehabilitation and Continuing Care
This service provides ongoing treatment and support to people with a mental illness. Doctors and case managers are available for appointments.
Community Mental Health Clinics are listed in the White Pages under the heading ‘Health and Community Services”. The services are regionalised with each clinic covering a specific area.
Support and Activity Based Groups
A wide variety of community managed support and activity based groups exist in Victoria for people with a mental illness. These organisations provide various disability support and rehabilitation programs including:
structured day programs,
drop-in centres,
recreation programs and
accommodation with either residential or outreach support.
A number of these groups/organisations also provide support to carers, family and friends of people with a mental illness. For information regarding services and organisations that are available in your area contact VICSERV, which is the peak body of the community managed psychiatric services in Victoria.
726823707 Page 53-2
VICSERV
Level 2, 22 Horne Street,
Elsternwick Vic 3185
Telephone: (03) 9519 7000
Mental Health Legal Centre
Telephone: (03) 9629 4422
Fax: (03) 9614 0488
Toll Free: 1800 555 887
If the Office of Housing is taking legal action against a tenant who is known to have a mental illness it may be appropriate to refer the tenant to the Mental
Health Legal Centre, which provides legal advice and assistance to mental health clinics.
Intellectual Disabilities
Intellectual Disability Services (IDS)
The Department of Human Services provides and funds a range of services for people with an intellectual disability. These services may:
help them to take part in activities
develop practical independent living skills
develop interpersonal skills, and
help them to make choices and decisions about their own lives.
Client service teams in regional offices help eligible people access IDS services.
These teams also provide information about other services available in the community.
Specialist assistance may also be available to eligible people from various professionals in the client service teams such as psychologists, speech therapists, occupational therapists and criminal justice workers.
Sexual Offences and Child Abuse Unit (SOCA)
SOCA is a branch of the Victoria Police Force. Their major responsibility is to provide support for victims of:
child abuse
family crisis
sexual abuse/assault
aged abuse
They also have general policing responsibilities in circumstances where psychiatric illness or intellectual disabilities may be a contributing factor in a dispute.
In the metropolitan area SOCA can be contacted 24 hours a day. Country areas have less staff so their capacity to respond may sometimes be limited.
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Metropolitan and Regional SOCA Units:
Bairnsdale
Ballarat
Benalla
Bendigo
Box Hill
Broadmeadows
Colac
Dandenong
Diamond Creek
Epping
Frankston
Geelong
Gisborne
Hamilton
Horsham
Knox
5152 0540
5336 6055
5762 3746
5440 2530
9890 4977
9302 8284
5231 5599
9767 7469
9438 8321
9409 8153
9784 5605
5225 3194
5428 4681
5572 1999
5382 9241
9881 7939
Melbourne
Mildura
Moorabbin
Morwell
Portland
Sale
Seymour
Sunshine
Swan Hill
Shepparton
Wangaratta
Warrnambool
Werribee
Wodonga
2670
Wonthaggi
9247 5538
5018 9777
9556 6125
5132 2313
5523 1999
5144 2244
5792 1211
9313 3377
5036 4444
5820 5878
5723 0895
5560 1189
9742 9471
(02) 6049
5672 5468
726823707 Page 55-2
2.5.4
Form of Authority - Release of Information to External Agency
Department of Human Services
Incorporating: Community Services and Housing
FORM OF AUTHORITY: Release of information to an external agency
I/We _______________________________________________ (Name of Tenant) of ______________________________________________ (Tenant’s address) hereby authorise the Director of Housing, or Officers acting on behalf of the Director of
Housing, to release to: ____________________________________(Name of Agency)
_________________________________________________ (Agency Contact Person)
_____________________________________________________ (Telephone Number) the following personal details that I have indicated with a tick :
My name
My address
My income (For example: pension, benefit, wages etc.)
Details of my Application for Rental Accommodation
Details of my Tenancy Agreement with the Office of Housing
Details of my Application for a Rebate of Rent (For example: members of household, income paperwork)
The amount of rent I pay to the Office of Housing
How I pay my rent (For example: Post Office, direct debiting etc.)
Details of outstanding charges I may owe the Office of Housing (For example, rent or maintenance arrears or other charges.)
Details of action that may be proposed by the Office of Housing under the
Residential Tenancies Act that will effect me
Details of complaints that may be made by persons in the neighbourhood regarding my tenancy with the Office of Housing
Other information (please specify)_______________________________________
The release of the above information is for the purpose of referring me to the above agency for assistance, and/or obtaining assistance for me from the above agency, and for no other purpose.
NAME(S):____________________________________________________________
SIGNATURE(S):_______________________________________DATE:__________
OR
GUARDIAN’S NAME(S): _________________________________________________
GUARDIAN’S SIGNATURE(S): ____________________________ DATE: _________
726823707
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61(1)
61(2)
63
64(1)(a)
64(1)(b)
64(2)
2.5.5
Tenant’s Duties
Section of
RTA 1997
Duty (what the tenant must not cause)
60(1) Nuisance
60(2)
70(2)
70(3)
86(1)(a)
86(1)(b)
86(1)(c )
86(1)(d)
86(1)(e)
Interference with peace
Damaged premises
Damaged common areas
Unclean premises
Fixtures without consent
Alterations without consent
Failure to restore premises
Failure to supply key
Change of lock without consent
Refusal to permit entry
Refusal to permit entry
Refusal to permit entry
Refusal to permit entry
Refusal to permit entry
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Breach using the premises or permitting their use in a way that causes a nuisance using the premises or common areas or permitting their use in a way that caused interference with the peace, comfort or privacy of neighbours failing to take care to avoid damaging the premises failing to take care to avoid damaging the common areas not keeping the premises reasonably clean installing fixtures without the landlord’s consent altering, renovating or adding to the premises without the landlord’s consent not restoring the premises to the condition they were in prior to the installation of fixtures, or renovating or adding to the premises, or paying compensation not providing the landlord with a key to an external door or window since you changed the locks changing a lock in a master key system without the landlord’s consent not permitting a person exercising a right of entry to enter the premises to show them to a prospective tenant not permitting a person exercising a right of entry to enter the premises to show them to a prospective buyer or lender not permitting a person exercising a right of entry to enter the premises to enable the landlord to carry out a duty as a landlord not permitting a person exercising a right of entry to enter the premises for valuation purposes not permitting a person exercising a right of entry to enter the premises upon believing that you had
726823707 Page 57-2
Section of
RTA 1997
86(1)(f)
Duty (what the tenant must not cause)
Refusal to permit entry
Breach failed to comply with your duty as a tenant not permitting a person exercising a right of entry to enter the premises to inspect them
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2.5.6
Breach of Duty Notice
DIRECTOR OF HOUSING
LANDLORD'S NOTICE TO TENANT OF BREACH OF DUTY
PURSUANT TO SECTION 60 OF THE RESIDENTIAL TENANCIES ACT 1997
NOTICE OF BREACH OF DUTY
NUISANCE OR INTERFERENCE
TO: (the "tenant")
OF: (the "rented premises")
TAKE NOTICE that the DIRECTOR OF HOUSING of (office) , as Landlord, believes that you are in breach of section 60 of the Residential Tenancies
Act 1997 and Clause 9(b) of the Residential Tenancies Agreement, in that you have used the rented premises or common areas, or permitted your visitors to use the rented premises or common areas or otherwise permitted the use of the rented premises in such a manner that causes a nuisance or an interference with the reasonable peace, comfort or privacy of occupiers of neighbouring premises by:
1.
AND the DIRECTOR OF HOUSING requires you to remedy the breach within fourteen days herewith by ceasing such activities forthwith and to take action to avoid their recurrence at any time in the future.
The DIRECTOR OF HOUSING further requires you to ensure that you do not commit a similar breach again.
.....................................................................
For and on behalf of the Director of Housing.
DATED this day of 20_.
NOTE: Failure to comply with this Notice may give rise to grounds to either seeking an order of compensation or compliance at the Victorian Civil and
Administrative Tribunal, or for the issue of a Notice to Vacate pursuant to the
Residential Tenancies Act 1997.
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2.5.7
NTV pursuant to section 249(1) - Successive
Breaches
F ORM 3
Residential Tenancies Act 1997
(Section 319)
RESIDENTIAL TENANCIES REGULATIONS 1998
(Regulation 8)
NOTICE TO VACATE TO TENANT OF RENTED PREMISES
1.
2.
This notice is given to (insert tenant/s name):
Regarding the rented premises at:
(insert address of rented premises)
3. Your address is:
(if same as address in 2, write "as above")
4. I am giving you this notice as
**
**
**
5.
[x] the landlord [ ] the owner
Landlord's/owner's/mortgagee's name:
[ ] the mortgagee
DIRECTOR OF HOUSING
6. Landlord's or owner's or mortgagee's address for serving
documents (can be an agent's): ** HOUSING OFFICE
** (details of address)
** 7.
8.
Contact telephone numbers for landlord/owner/mortgagee:
(TERMINATION DATE)
I require you to vacate on or before (insert date): 4pm on **
9. Reason for notice to vacate:
(Insert the reason for the notice to vacate, if a reason is required by the Act
Pursuant to section 249 of the Residential Tenancies Act 1997 you are required to vacate the rented premises for the reason that
(a) you have for the third time breached section of the Residential Tenancies Act
1997 in that you have:
(i) set out details here and
(b) on two separate occasions you have been in breach of section of the Residential
Tenancies Act 1997 and the Director of Housing, as Landlord, has on and on forwarded to you by registered mail a Breach of Duty Notice (copies of which are attached to this Notice) and
(c) on each occasion after the Breach of Duty Notice was served on you the breach has been remedied within the period required under section 208 of the Residential
Tenancies Act 1997.
10. This notice is given *By hand inapplicable)
On this date
*By registered post (*delete whichever is
11. Signature: …………………………………………..
For and on behalf of the
Director of Housing
12. Name of agent (if an agent is serving the notice): Not applicable
** complete these details
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2.5.8
General Application Form to VCAT
Available on-line
726823707 Page 61-2
2.5.9
Example of a Compliance Order
VCAT finds that:
1. The landlord gave the tenant a breach of duty notice under section 208 of the Residential Tenancies Act 1997 and was entitled to do so.
2. The tenant failed to comply with the notice, in that he or his visitors to the rented premises have continued to cause loud noise and use offensive language on the rented premises and the common areas.
VCAT orders that:
1.
The tenant shall refrain from committing a breach or breaches similar to the breach or breaches already committed and in particular: a.
The tenant/s or their visitors must observe the provisions of clause 8(b) of the tenancy agreement and section 60 of the RTA
199. Section 60 of the RTA1997 reads as follows:
Tenant must not cause nuisance or interference
(1) A tenant must not use the rented premises or permit their use in any manner that causes a nuisance.
(2) A tenant must not—
(a) use the rented premises or common areas; or
(b) permit his or her visitors to use the rented premises or common areas; or
(c) otherwise permit the use of the rented premises — in any manner that causes an interference with the reasonable peace, comfort or privacy of any occupier of neighbouring premises; and b.
The tenant or his visitors must not assault, harass, abuse, threaten, insult or intimidate any occupier of neighbouring premises; and c.
The tenant or his visitors must not, by act or omission, endanger the safety of occupiers of neighbouring premises; and d.
The tenant or his visitors must not create any loud noise, including playing loud music or other disturbance between the hours of 8.00pm and 8.00am on any day during the tenancy; and
That this order last for the duration of the tenancy with the tenant;
3. The application may be renewed by either party giving the Principal
Registrar notice in writing.
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2.5.10
Example of a Restraining Order
Draft order
VCAT finds that:
1. The landlord gave to the tenant/s an application pursuant to section 452 of the Residential Tenancies Act 1997 (“the RTA 1997”) and was entitled to do so pursuant to the terms of this section.
VCAT orders that:
1. The tenant/s shall refrain from committing a breach or breaches of the RTA
1997 Act or the tenancy agreement and in particular: a. The tenant/s or their visitors must observe the provisions of clause
8(b) of the tenancy agreement and section 60 of the RTA 199.
Section 60 of the RTA1997 reads as follows:
Tenant must not cause nuisance or interference
(1) A tenant must not use the rented premises or permit their use in any manner that causes a nuisance.
(2) A tenant must not—
(a) use the rented premises or common areas; or
(b) permit his or her visitors to use the rented premises or common areas; or
(c) otherwise permit the use of the rented premises— b. in any manner that causes an interference with the reasonable peace, comfort or privacy of any occupier of neighbouring premises; and
The tenant/s or their visitors must not assault, harass, abuse, threaten, insult or intimidate any occupier of neighbouring premises; and c. d.
2.
3.
4.
The tenant/s or their visitors must not, by act or omission, endanger the safety of occupiers of neighbouring premises; and
The tenant/s or their visitors must not create any noise, including playing loud music or other disturbance between the hours of and on any day during the tenancy; and
That this order last for the duration of the tenancy with the tenant/s;
The application may be renewed by either party giving the Principal
Registrar notice in writing.
The tenant/s acknowledge that it they fail to comply with VCAT may take further action against them under section 133 and 137 of the
Victorian Civil and Administrative Tribunal Act. (Copies of these sections are attached to this order)
726823707 Page 63-2
2.5.11
NTV Pursuant to section 248(1) - Failure to
Comply with VCAT Order
FORM 3
Residential Tenancies Act 1997
(Section 319)
RESIDENTIAL TENANCIES REGULATIONS 1998
(Regulation 8)
NOTICE TO VACATE TO TENANT OF RENTED PREMISES
1. This notice is given to (insert tenant/s name):
2. Regarding the rented premises at:
(insert address of rented premises)
3. Your address is:
(if same as address in 2, write "as above")
4. I am giving you this notice as
**
**
**
[x] the landlord [ ] the owner
5. Landlord's/owner's/mortgagee's name:
HOUSING
[ ] the mortgagee
DIRECTOR OF
6. Landlord's or owner's or mortgagee's address for serving documents
(can be an agent's) ** HOUSING OFFICE
** (details of address)
7. Contact telephone numbers for landlord/owner/mortgagee: **
4pm on **
(TERMINATION DATE)
8. I require you to vacate on or before (insert date):
9. Reason for notice to vacate:
(Insert the reason for the notice to vacate, if a reason is required by the
Act)
Pursuant to section 248 of the Residential Tenancies Act 1997 you are required to vacate the rented premises for the reason that you have failed to comply with an order of VCAT under section 212 of the
Residential Tenancies Act 1997. A copy of the order is attached to this
Notice.
10. This notice is given:
*By hand *By registered post (*delete whichever is inapplicable)
On this date
11. Signature: ………………………………………….. for and on behalf of the Director of Housing
12. Name of agent (if an agent is serving the notice): Not applicable
** complete these details
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2.5.12
Immediate Notice to Vacate pursuant to section 244
FORM 3
Residential Tenancies Act 1997
(Section 319)
RESIDENTIAL TENANCIES REGULATIONS 1998
(Regulation 8)
NOTICE TO VACATE TO TENANT OF RENTED PREMISES
1. This notice is given to (insert tenant/s name):
2. Regarding the rented premises at:
(insert address of rented premises)
3. Your address is:
(if same as address in 2, write "as above")
**
**
**
4. I am giving you this notice as
[x] the landlord [ ] the owner
5. Landlord's/owner's/mortgagee's name:
HOUSING
[ ] the mortgagee
DIRECTOR OF
6. Landlord's or owner's or mortgagee's address for serving documents
(can be an agent's): ** HOUSING OFFICE
** (details of address)
7. Contact telephone numbers for landlord/owner/mortgagee:
**
8. I require you to vacate on or before (insert date):
**
(TERMINATION DATE)
4pm on
9. Reason for notice to vacate:
(Insert the reason for the notice to vacate, if a reason is required by the Act
Pursuant to section 244 of the Residential Tenancies Act 1997 you are required to vacate the rented premises for the reason that you or a visitor to the rented premises, by act or omission, have endangered the safety of occupiers of neighbouring premises, in that:
(a) (set out details of the conduct here)
10. This notice is given:
*By hand *By registered post
(*delete whichever is inapplicable)
On this date
11. Signature: …………………………………………..
For and on behalf of the Director of Housing
12. Name of agent (if an agent is serving the notice): Not applicable
** complete these details
726823707 Page 65-2
2.5.13
Example Briefing Note
BRIEFING FOR MANAGER, HOUSING, PRIMARY &
COMPLEX CARE
SUBJECT
<<(tenant’s name and address>>
PURPOSE
To advise that <<Tenant name>> is in breach of section 244 (dangerous behaviour) of the Residential Tenancies Act 1997.
BACKGROUND
Description of background of case, including dates and incidents.
ISSUES
Description of issues including any police involvement.
RECOMMENDATION
Due to the dangerous behaviour which has endangered the safety of neighbouring occupiers the following action is proposed: a) issuing an immediate Notice to Vacate pursuant to section 244 of the RTA 1997, b) seek an OP at the Victorian Civil and Administrative Tribunal, c)
Upon receipt of the Order of Possession a Warrant be requested and executed within
24 hours of its issue
APPROVED / NOT APPROVED
Manager, Housing, Primary & Complex Care
Prepared by: Housing Services Officer
Cleared by: Housing Services Manager
Endorsed by: Housing Manager
Date
Date
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2.5.14
Summons to Appear Form & Affidavit of Service
FORM 4
Victorian Civil and Administrative Tribunal Rules 1998 Rule 4.13
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
TRIBUNAL REFERENCE NO. R200 /
Applicant/Represented Person: Director of Housing
Respondent:
SUMMONS TO APPEAR
To:
Name-
Address -
You are summoned pursuant to section 104 of the Victorian Civil and Administrative
Tribunal Act 1998 to appear before the Victorian Civil and Administrative Tribunal at
(address of Tribunal) at ( insert time of hearing ) on ( insert date of hearing ) , or, if notice of a later day is given to you by VCAT or the party at whose request this summons has been issued or the solicitor for that party, the later day, and until you are excused from further attending:
* to attend and give evidence ;
Registrar
Date: / /
This summons has been issued at: * the request of the
*applicant/complainant/respondent
Note:
1. Certain fees and allowances are payable to a witness.
2. Failure to attend at that time and place specified above without reasonable excuse may render you liable to imprisonment, a fine, or both, as well as a daily penalty until you attend or produce the document as required, under section 134 of the Victorian Civil and Administrative Tribunal Act 1998.
3. VCAT may direct your apprehension if you fail to attend.
______________________________________________________________________________
AFFIDAVIT OF SERVICE
I,___________________________ of _______________________________ in the
State of Victoria make oath and say that I served the above-named witness with the summons by*delivering a true copy to the witness personally/by sending it by post, facsimile or other electronic transmission/by leaving with the same for the witness at their usual or last known residential or business address with a person on the premises apparently at least 16 years old and apparently residing or employed there/to the registered office of the company at ________________________________on the__________ day of___________ 200___ at________ *am/pm *on facsimile number______________________.
Sworn at _____________________in the said State, the_________ day of__________20__.
Deponent’s signature:
Before me:
__________________________________ person making affidavit to sign here)
__________________________________
(signature of person taking affidavit)
____________________________________________
____________________________________________
(print name, address & qualification)
* Write your Authority to take an Affidavit
Available on-line
726823707 Page 67-2
2.5.15
Example Dangerous Behaviour Submission to VCAT
INTRODUCTION
(Staff should include the following in their submission):
This is an application by the Director of Housing for an order of possession for dangerous behaviour pursuant to Section 244 of the Residential Tenancies Act 1997. The order is sought with respect to the rental premises located at (address). (Tenant name) is the tenant of those premises.
An immediate notice to vacate pursuant to section 244 was served on the respondent by hand on (date) /by registered post on (date). An application seeking an order of possession was filed with VCAT on (date), after the respondent had been served with the Notice to Vacate.
The Director of Housing will rely on the following acts as endangering the safety of the occupiers of the neighbouring premises located at (address) .
1. A threat to kill on (date).
2. A threat to burn car on (date).
3. An assault on (date).
The following witnesses will be called by the Director of Housing to give evidence with respect to these matters:
1. (name), tenant at (address)
2. (name) private owner of (address)
3. Constable (name).
CALL DIRECTOR’S WITNESSES
(Staff should note the following instructions regarding the use of witnesses)
The evidence of each witness can occur in three parts:
evidence in chief (the story of what they observed / experienced),
cross examination (the witness is questioned by the respondent or their lawyer) and
re-examination (not always necessary and may aggravate VCAT so only do this if you believe there are relevant issues which the require clarification).
To avoid disasters, only ask questions you know the answer to! (Which means take detailed information from the witnesses before the hearing)
While the rules of evidence are relaxed in VCAT, this varies between VCAT members, so it is safer to assume you should avoid asking leading questions (questions which suggest the answer). This may be tolerated for non-controversial questions which set the scene (such as “You live at (address), next door to the respondent ?”).
The questions asked of witnesses should enable them to focus on evidence relevant to the criteria which need to be satisfied under section 244. This means questions which show:
A) The tenant /their visitor behaved in a dangerous manner. If it was a visitor, that the tenant was responsible for/ allowed/ encouraged their behaviour.
B) The effect (physical and mental) on the victim(s)
C) The danger was continuing on the date the Notice to Vacate was served and is ongoing (eg why the behaviour is likely to occur again)
RESPONDENT’S WITNESSES
Staff have the opportunity to question the respondent and their witnesses (cross examination) Leading questions are permitted. An attempt should be made to contradict any evidence you consider to be incorrect which is relevant to the case.
Staff should try to get an admission from the respondent with respect to each of the dangerous incidents. VCAT may have difficulty concluding the respondent / their visitor committed the acts if they are never asked directly about them. A lack of remorse for any conduct admitted is also relevant.
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Issues to focus on when questioning the respondent are:
A) The tenant /their visitor behaved in a dangerous manner. If it was a visitor, that the tenant knew of / ought to have known of/ allowed/ encouraged their behaviour.
B) The danger was continuing on the date the NTV was served and is ongoing. In other words evidence which suggests it’s likely to occur again. For example, alcohol, drug, mental health issues, treatment or lack of, relevant criminal history, past breach notices. Such questions should be dealt with in a responsible way, relying only on information obtained from the respondent or their witnesses or official sources accessed in accordance with FOI and Privacy principles. It’s inappropriate to harass or humiliate witnesses.
CLOSING SUBMISSION
(Staff should include the following in their submission):
Section 244 enables a Landlord to give a tenant a Notice to Vacate if the tenant or their visitor by act or omission endangers the safety of occupiers of neighbouring premises.
In determining whether the action of the respondent endangered the safety of the neighbour(s) VCAT must have regard to the decision of the Supreme Court in the case of the
Director of Housing V Pavletic [2002] VSC 438. There it was decided that the LL will be entitled to serve a Notice to Vacate under this section when “there is a real risk of danger to the physical or mental health of occupiers and not some remote or faint possibility of such”.
Smith J
The evidence of the witnesses and the respondent would enable you to conclude there is a real risk of danger in this case. The incidents complained of in this case are serious, being:
(list incidents).
The victim(s) has already sustained physical injuries when she was assaulted on: (date/s) and has given evidence of trauma for which she is continuing to seek treatment. The victim(s) have given evidence they are so fearful of the respondent, they:
(list behaviour).
The evidence supports a conclusion the danger is continuing. Three incidents of dangerous behaviour have already occurred between (date) and (date). The respondent has admitted in evidence to (incidents). The respondent has shown no remorse for his conduct.
There remains a real risk of recurrence of this type of behaviour because (list reasons).
(Include any or all of the following sentences, as appropriate):
The evidence given by the respondent indicates on each occasion he was: intoxicated / under the influence of drugs / not taking any medication for (list relevant condition).
The respondent has taken no action to address the issues which give rise to this behaviour /
Even though the respondent says he has now ceased drinking / etc (list appropriate) he has admitted in evidence that he has made previous attempts to (list behaviours) and failed.
In the circumstances there remains a continuing risk of danger to the neighbours by the respondent’s presence at the property. In the circumstances the Director of Housing was entitled to and in fact obliged to serve the Notice to Vacate to protect the neighbouring occupiers.
I confirm if you are satisfied the Director was entitled to serve the immediate Notice to
Vacate then VCAT is obliged under Section 330 to make an OP.
The Director of Housing therefore requests an OP, with a warrant to be issued immediately.
726823707 Page 69-2
2.5.16
Example Nuisance Behaviour Submission to VCAT
Director of Housing vs <name>
Victorian Civil & Administrative Tribunal, <Date __/__/20__>, <Time>
Application for a Compliance Order pursuant to s 209
Breach activity pursuant to s 60 of the RTA, and clause <***> of the Tenancy
Agreement
Tenancy Details
Commenced:
Rent p/w:
Paid to:
Arrears as at <date>:
<date>
<amount>
<__/__/20__>
<amount>
Breach of Duty Notice Details
Breach Notice served
Via registered post
Application to VCAT made
<date>
<********>
<date>
Witnesses
1.
2.
3.
<Name>
<Name>-
<Name>
-
-
4. <Name>,
<Address>
<Address>
<Address>
<Address>
Examples of some questions to Neighbouring Occupants
1.
How long have you resided at your premises?
2.
Do you recall co-signing a letter of complaint and forwarding to the Melbourne
Housing Office?
3.
Can you identify your signature on this letter for VCAT?
4.
Can you tell VCAT, in your own words, what lead up to this letter?
5.
In the letter to the Melbourne Housing Office, it states that there has been little peace since Ms/Mr X began residing at the block. Can you please explain this to
VCAT?
6.
How has this affected you?
Examples of questions to the Tenant
1.
You have heard the evidence given by your neighbouring occupants at <address>, how do you respond to this?
2.
Do you recall the events of <date> and your alleged behaviour of<****> at the rented premises?
3.
Is this your signature on the Tenancy Agreement?
4.
Do you acknowledge the clause contained in the Tenancy Agreement relating to quiet enjoyment?
5.
Do you acknowledge that you have breached this clause?
6.
Do you believe you have attempted to remedy this behaviour as contained in the
Breach of Duty Notice served <date>?
Summary of submission
The Director of Housing has an obligation to ensure peace and quite enjoyment, and a safe and secure environment for all tenants. This application for a compliance order under section 209 of the
Residential Tenancies Act 1997(RTA) has been made because the Director believes Mr/Mrs and their visitors have breached, and are continuing to breach section 60 of the RTA 1997. An example of the compliance order we are seeking is attached.
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2.5.17
Example Failure to Comply With a VCAT Order
Submission to VCAT
INTRODUCTION
(Staff should include the following in their submission)
This is an application by the Director of Housing for an order of possession for failure to comply with a VCAT order pursuant to Section 248 of the Residential
Tenancies Act 1997.
The respondent is the tenant of the rented premises at (address). A compliance order was made against the respondent pursuant to section 212 (appropriate
section) on (date).
The compliance order prohibits the respondent from (details).
It is the Directors case that the respondent has failed to comply with the order on three occasions by:
1. Playing loud music from 10pm until 5.00 am on (date).
2. Throwing a pot plant and rubbish from his balcony at approx 8.00 pm on (date).
3. A threat to assault Joan Smith the resident of (address) on (date).
A 14 day notice to vacate pursuant to section 248 with a copy of the order attached was served on the respondent by hand on (date) / by registered post on
(date). An application seeking an order of possession was filed with VCAT on
(date), after the respondent had been served with the NTV.
The following witnesses will be called by the Director of Housing to give evidence with respect to the breaches of the order:
1. (name) tenant at (address)
2. (name) private owner of (address)
3. Constable (name)
CALL DIRECTOR’S WITNESSES
The evidence of each witness comprises three parts, evidence in chief (the story of what they observed / experienced), cross examination (the witness is questioned by the respondent or their lawyer) and re-examination by DoH (not always necessary and may aggravate VCAT so only do this if you believe there are relevant issues which the require clarification).
To avoid disasters, it is preferable to ask only those questions for which you already know the answer! (Which means taking detailed information from the witnesses before the hearing)
While the rules of evidence are relaxed in VCAT, this varies between VCAT members, so it is safer assume you should avoid asking leading questions (questions which suggest the answer to the witness such as questions which simply require the witness to reply yes or no
). This may be tolerated for non-controversial questions which set the scene (such as “You live at (address), next door to the respondent ?”).
The questions asked of witnesses should enable them to focus on evidence relevant to the criteria which need to be satisfied under section 248. This means ask questions which show:
A) The tenant / their visitor behaved in a way which breached the order. If it was a visitor, that the tenant was responsible for/ permitted / encouraged their behaviour.
B) The behaviour occurred when the tenant/ their visitor was on their rented premises or the common property associated with their rented premises (not the victim’s premises)
726823707 Page 71-2
C) The victim was an occupier of neighbouring premises eg they live at a property in the same block of flats or a share a boundary with the tenant’s property or are adjacent to it.
Victims further away may still give evidence (eg I live in the next street and I still heard it) but ultimately the case will rely on the evidence of neighbouring occupiers.
D) Relevant past history of incidents and breach notices
E) Affect (physical and mental) on the victim(s) and their lifestyle (eg too afraid to go out).
RESPONDENT’S WITNESSES
You have the opportunity to question the respondent and their witnesses (cross examination) Leading questions are permitted. An attempt should be made to contradict any evidence you consider to be incorrect which is relevant to the case.
You should try to get an admission from the respondent with respect to each of the breaches. VCAT may have difficulty concluding the respondent failed to comply with the order if this is never put to them directly. A lack of remorse for any conduct admitted is also relevant.
Issues to focus on when questioning the respondent are:
A) The tenant knew and understood the order and the consequences of failing to comply.
B) The tenant / via their visitor failed to comply with the order. If it was a visitor, that the tenant knew / ought to have known of/ permitted / encouraged the behaviour.
C) The tenant’s lack of regard for neighbours / likelihood of repeating the behaviour
The context of the behaviour may also be relevant. For example, alcohol, drug, mental health issues, treatment or lack of and relevant criminal history. Careful consideration should be given to raising these issues as they may in some instances, assist the tenant to argue they have not failed to comply with the order. Such questions should be dealt with in a responsible way, relying only on information obtained from the respondent or their witnesses or official sources accessed in accordance with FOI and Privacy principles. It’s inappropriate to harass or humiliate witnesses.
CLOSING SUBMISSION
Section 248 enables a Landlord to give a tenant a NTV if the tenant has filed to comply with the order made on (date).
The tenant was present at the hearing on (date) when the order was made and he clearly understood the terms of the order and consequences of a breach (use
appropriate statement) / Although the tenant did not attend the hearing at which the order was made he has acknowledged in evidence he had received and understood the terms of the order by (date), prior to these incidents occurring.
(staff may also consider including the following statement if appropriate) Although the tenant admits to excessive drinking at the time of each incident, he has conceded in evidence that he understood and was in control his actions on each of the occasions relied upon as a breach of the order.
The evidence of the witnesses and the respondent would enable VCAT to conclude the tenant has repeatedly failed to comply with the order and his behaviour has seriously interfered with the peace comfort and privacy of neighbours.
These failures to comply are not trivial matters nor are they capable of being remedied by the tenant. They are clearly a recurrence of earlier breaches of the duty to (state duty). (Section 332 says VCAT must not make a possession order if the failure to comply was trivial, has been remedied and is a breach of a different type of duty).
If VCAT is satisfied the respondent failed to comply with the order then the
Director was entitled to serve the NTV. Section 330 of the Act states where the
Director was entitled to serve the NTV and it has not been withdrawn, VCAT is obliged to make an OP.
The Director of Housing therefore requests an OP, with a warrant to be issued immediately (or as directed by VCAT).
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2.5.18
Aboriginal Housing Victoria Proforma
MEMO
TO:
FROM:
DATE:
<Aboriginal Housing Officer>
<Housing Services Officer>
<Housing Office Name>
RE: Legal action against Aboriginal Tenants for breach of section <number> of the
Residential Tenancies Act 1997 - <name of breach>
--------------------------------------------------------------------------------------
The issue of a Notice to Vacate / Application to seek an Order for Compliance in respect of the following tenant is proposed: (cross out where not applicable)
1. Tenant/s Name (s): ___________________________________________
2.
Address _____________________________________________________
Account Number _____________________________________
3.
Household Composition
Name Age Role in household Income Type Weekly amount
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
4.
Tenancy start date
5.
Summary of contact with the tenant/s regarding the matter date account action HSO/AHO
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
6.
Date Aboriginal Housing Officer was advised of the dispute ___ / ____ /
726823707 Page 73-2
7. Other comments
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
8.
Documents attached (tick)
account action history copies of breach of duty notices relevant correspondence/information
The Office of Housing wishes to: (tick)
serve a Notice to Vacate to seek an OP make an application to VCAT to seek an Order for Compliance
_____________________________________ ____ / ____ / ____
HSO signature
Recommended/ Not Recommended
______________________________________ ____ / ____ / ____
AHV Member Signature Date
Date
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2.5.19
No smoking letter to Tenants
<Housing Office address>
<Insert tenant name & address>
Dear <Insert tenant name>
Smoking is now banned in all enclosed workplaces, whether or not the people working at the workplaces are paid or are a volunteer.
The Office of Housing has a duty to provide safe and secure housing for all tenants. The Office of Housing also has a responsibility to provide a smoke-free workplace to employees who are contracted to provide services such as tenancy management, security and cleaning on housing estates.
This means that all enclosed common areas, which include foyers, walkways, lifts and common room facilities must be smoke-free.
Where can I smoke?
Tenants may choose to smoke in their own properties, on their own balconies
(but not shared common walkways if they are enclosed) or outside the building.
What is the penalty if I smoke in an enclosed common area?
The person who smokes or continues to smoke in a prohibited area may receive a fine or be prosecuted.
Where can I get further information?
Tenants may contact the Tobacco Information Line on 1300 136 775, or visit www.health.vic.gov.au/tobaccoreforms . To quit smoking contact Quitline
137848 or visit www.quit.org.au
Yours sincerely
< Housing staff name>
<Housing Office>
726823707 Page 75-2
