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VIC Lease Dispute - Questions Regarding Residential Tenancies Act

Discussion in 'Property Law Forum' started by Max W, 27 November 2015.

  1. Max W

    Max W Member

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    Hi,

    I have 2 quick questions about a property I have been renting. I live in Victoria and have been renting this property for just under a year. The landlord lives in NSW.

    1 - In the lease agreement, it contains a clause saying 'tenant must pay all rates and outgoings'; I took this to mean that I pay consumption on all rates and outgoings, i.e. usage.

    However, the landlord is now demanding that I pay council rates. I have done some light research and have found s58 of the Residential Tenancies Act VIC which (I believe) sets out that a tenant is not liable to council rates.

    So, my first question is - Am I liable to pay the council rates?

    2 - I provided written notice via e-mail to the landlord of my notice to VCAT (a 1 month notice) on the 13th November 2015. The landlord claims he never received it and has now stated that the notice period becomes 'effective' on the 25th November (date in which I spoke to him).

    I have a copy of the e-mail which I sent to him on the 13th November 2015 giving this notice. I could not deliver this notice to him because, as mentioned above, he lives in NSW and I reside in Victoria.

    Due to his threats and so forth I paid an additional $800 to him because that would be the rent amount between 13th-25th Therefore, my second question is when does the actual notice period end, given the above scenario? Further, am I entitled to recover this $800 overpayment?

    Any assistance would be greatly appreciated as the landlord is making non-stop telephone calls and pressuring me.
     
  2. Max W

    Max W Member

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  3. Rod

    Rod Well-Known Member

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    s58 of the Residential Tenancies Act 1997 (Vic) says the landlord must pay the public authority if you don't. Under your lease it means he could probably go to VCAT to recover money he had to pay on your behalf. This section doesn't help you.

    Rates are payable by the property owners but I'm unclear if they can be passed on. It is not normal for residential leases in Victoria to contain a clause saying the tenant pays council rates however I don't know of if the RTA or some other Act forbids this clause. Needs someone with more knowledge than me to answer this. I see many internet references to landlords needing to pay the rates but cannot find the authoritative source for these statements.

    re: Email notice. In Victoria if it is not received then it has no legal effect. Unless you can prove it was received then I don't like your chances of having a court support the notice date being the 13 Nov 2015. I'm also not clear from reading your post why a notice to VCAT counts as notice to the landlord to vacate.

    Please confirm:
    1. What jurisdiction is quoted in the lease (NSW or VIC)?
    2. whether the lease you have is a residential lease or retail lease or commercial lease or other.
    3. the term of the lease (eg 6 months, 12 months, 2 yrs, etc)
    4. What type of premises/accommodation is it (house, flat, caravan, farm, business etc)
     
  4. Max W

    Max W Member

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    Hi Rod,

    Thanks for your reply.

    1 - The jurisdiction is VIC

    2 - It is a residential lease.

    3 - 12 months

    4 - House.

    I was under the impression that s58 of the RTA is relevant to me not having to pay the rates and taxes as it says:

    Indemnity for taxes and rates

    (1) A landlord under a tenancy agreement must indemnify the tenant for any amount recoverable from the tenant by a public statutory authority for rates or taxes payable under an Act for those rented premises.

    (2) Subsection (1) does not apply to—

    (a) rates or taxes based solely on the amount of a substance or service that is supplied to the premises; or

    (b) a fixed term tenancy agreement for a period exceeding 1 year.

    I took that to mean that the landlord has to indemnify (compensate for harm or loss the tenant for any amount recoverable from the tenant by a public authority ie, council rates.

    Further, on lawhandbook.org it says the following:

    Taxes and rates
    Unless the tenancy is for a fixed-term period exceeding one year, the landlord must repay the tenant for any rates or taxes payable for the premises that are recovered from the tenant by a public statutory authority, such as a local council (s 58 RTA).




    With regard to the notice to vacate, it contined a typo in my initial post, it should say vacate, instead of VCAT.
     
  5. Rod

    Rod Well-Known Member

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    re: s58, hmm, must have misread this section the first time around. You appear to be right and it makes this section the 'missing' authoritative source I was looking for :(

    The law overrides the lease contract.

    If he is continuing to make abusive/harrassing calls send him an email (with read receipt turned on) advising that all correspondence must now be in writing for legal purposes and all phone calls are to stop. Note there are also some third party websites that allow you to track progress of emails.

    Let us know how you go.
     

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