VIC Residential Tenancies Act (1997)
Victorian Law Today Act
First, you need to note the definition of
rooming house in the Act, as this defines how the Act applies in this instance:
rooming house means a building in which there is one or more rooms available for occupancy on payment of rent —
(a) in which the total number of people who may occupy those rooms is not less than 4; or
(b) in respect of which a declaration under section 19(2) or (3) is in force.
** The declaration referred to in (b) is a declaration by the Minister that a building is a rooming house for the purpose of the Act.
So a rooming house is basically defined by the number of "beds", not rooms. It needs to be able to accomodate 4 or more paying tenants, or be declared a rooming house by the Minister.
(Ref: s3 - Definitions)
Next is the all important definition for
separately metered:
separately metered means that there is, in respect of rented premises, a room or a site, a meter—
(a) that has been installed or approved by the relevant supplier of the utility; and
(b) that measures, in relation to those premises or that room or site only, the quantity of a substance or service that is supplied to, or used at, those premises or that room or site;
So for a rooming house, this refers to an individual room being separately metered, not a property being separately metered.
(Ref: s3 - Definitions)
Next, "eviction" vs "forced eviction". An "eviction" occurs when the landlord issues a Notice of Termination or the Tribunal makes a Termination Order and the tenant complies by vacating the premises by the specified date.
If the tenant doesn't comply, the landlord can not "force" the tenant to vacate. They must apply for a Possession Order and if the tenant still doesn't comply, the landlord can then apply for a Warrant for Possession. If it becomes necessary to execute the warrant, it will then be a "forced eviction", the difference being that the authority executing the warrant has the power to physically remove the tenant by force if necessary.
Under the RTA, a warrant for possession can only be directed to the Police or another person or class of people as authorised by the Minister. I had a quick look at the Regulations and didn't see any mention of other authorised persons, so it appears that a Warrant for Possession can only be executed by the Police. (I think in NSW they're executed by the Sheriff's Office, who are Officers of the Court.)
(Ref: s355 - Warrant of possession)
So, assuming that the premises does qualify as a rooming house ...
Any attempt to evict a tennant in contravention of the Act is an offence. The penalty is 60 penalty units for individuals and 300 for body corporates. Given that one penalty unit in VIC is currently $161.19, that's $9,671.40 and $48,357.00 respectively.
(Ref: s273 - Offences relating to interference with rights)
Only the
police can evict a tenant, after a possessions order.
So this is correct to the extent that the tenant refuses to vacate. Laws applicable to squatting and trespass don't apply here because there is a Residential Tenancy Agreement in place and until the tenant vacates, all such matters are governed by the Residential Tenancies Act. Squatting and trespass would therefore only apply if there was no agreement.
He tried to pass all these costs onto tenants and then faked a utility bill so that a bill from 1 May - 25 August looked like it covered the dates 22 July - 22 August (tenants moved on 22 and 29 July).
This is obviously fraud if you can prove it, but for $80 though, I think the Police would have better things to spend their time on. Best to stick with the RTA and VCAT in my opinion.
The document said bills are to be split equally. And thats unenforceable too if the premises are not separately metered, which they are not. Furthermore, tenants are generally not obliged to pay for things such as water supply. They only pay their share of the usage.
Okay, now we get to the really interesting part, because I don't think your landlord is allowed to charge you separately for water at all - not even usage. I know the NSW RTA inside out, but this is my first look at the VIC RTA, so my interpretation may or may not be correct here. If I am wrong and one our friendly lawyers knows their way around the VIC RTA, feel free to correct me.
"Part 2—Residential tenancies—tenancy agreements" - It is my impression that Part 2 contains the base provisions applicable to all tenancy agreements. This is then followed by other "Parts" that deal with rooming houses, caravan parks, etc, which may override the base provisions either in part or in full.
If I am correct, then the base provision we are interested in here, is Section 53(d), which states that landlords are liable for all water costs, including usage, if the property is not separately metered. Obviously, the property itself probably is separately metered, but the individual "rooms" in this case are not. This is resolved by the definition of "separately metered", which makes it pretty clear that when referring to rooming houses, it is a reference to a room being separately metered, not the property.
This makes perfect sense when you look at other provisions (which I will get to) and the "scope" of the tenancy agreement itself. The reason the scope is important, is because of "exclusive use", which is one of the major intentions of the Act and therefore the agreement. For a rooming house, you only have exclusive use of a single room and not the whole property, therefore it doesn't make sense to apply a property wide scope to metering when the agreement doesn't have the same scope.
(Ref: s53 - Landlord's liability for various utility charges)
We now move on to Part 3 (rooming houses) and Part 4 (caravan parks), both of which override Part 2. The reason for including caravan parks in this discussion, is because there's an interesting difference between Parts 3 and 4 that actually adds some clarification.
"Part 3—Rooming houses—Residency rights and duties" - Section 108 states that a landlord can charge for electricity or gas if the room is separately metered and is not shared (ie; only one tenancy for that room). What's important here is the actual wording:
"A rooming house owner may charge a resident a charge not included in rent for electricity and gas consumed in the room if ..."
Note the emphasised words and that s108
does not mention water - only electricity and gas.
(Ref: s108 - Separately metered rooms)
"Part 4—Caravan parks and movable dwellings—Residency rights and duties" - For caravan parks, s162 is the equivalent of s108 - and this is where there is a significant difference. Section 162 states:
"A resident is liable for all charges made for the supply or use of electricity, gas, water, drainage and sewerage to a site while the resident occupies the site, if those services are separately metered."
Note that unlike s108, "water" is explicity included in s162 for caravan parks.
(Ref: s162 - Resident's liability for electricity, gas and water charges)
So how does this all come together?
s53 states you
can not charge separately for water unless there is separate metering.
s108
does not override s53 for rooming houses because it
does not explicitly include water.
s162
does explicitly include water thereby adding clarity to the omission of water from s108.
So the result in this case is that the landlord can only charge for water by calculating it into the rent. For example, if he has 4 tenants; wants to profit $50 per week from each one; and estimates that the tenants are using a total of $80 of water per month, then you have::
$80 / 4 tenants = $20 per tenant / 4 weeks = $5 per week per tenant.
The landlord should therefore set the rent at $50 + $5 = $55 per week. If he did the same for electricity and gas based on the same costs, the weekly rent would be $50 + $5 + $5 + $5 = $65.
Any normal person with half a brain should know that they have every right to recover their costs, as long as they do it in compliance with the RTA. You can make as much profit as you like from rent, but you are prohibited from profiting from utilities. The law is constructed this way because landlords are not the suppliers of utilities - they're supplied by third parties.
So while this particular landlord is not allowed to charge separately for any utilities that are not separately metered on a per room basis, they can easily recover those costs by simply charging higher rent - no rocket science necessary.
He would also take more than 4 weeks worth rent as bond (rooming house regulation only allows for 2 weeks) and then he wouldnt lodge any of these bonds.
This is correct, but you need to be careful that your figures are right with this one. You need receipts showing that it was in fact 4 weeks bond and not 2 weeks bond plus 2 weeks rent in advance. If it was 4 weeks bond, then the penalty here is 20 penalty units. ($3,223.80)
(Ref: s96 - What is the maximum bond?)
Since you paid a bond, the landlord must also provide a Condition Report. If he didn't, then that's another 10 penalty units. ($1,611.90)
(Ref: s97 - Condition report)
Lodging the bond with the Bond Authority is mandatory. This is a very serious breach and yet another 60 penalty units. ($9,671.40)
(Ref: s406 - Duty to pay bond to Authority)
So no need to sue or get the Police involved - VCAT alone can hit this clown up for thousands if they want to.
