Frequently asked questions Pages

What are we talking about?

Jim Lourandos & David Dundas

REIV Information Officers

reIv Information officers David Dundas and Jim Lourandos address some of the current common questions from members.

evidence-based pricing

realist pricing is important to achieving sales in a declining market, and in the case of a rising market it becomes an important compliance issue.

In the absence of any price guidance from the vendor the indicative price on a residential property is based on the agent’s estimate. Due to changing market conditions the estimate, which may have been based on the sale of comparable properties some time before the listing, may no longer be justifiable.

Section 47Ae specifies that if the estimate on the sale authority ceases to be reasonable the agent must notify the vendor in writing, stating –a) that the estimate on the authority has ceased to be reasonable; and b) why they believe the estimate is no longer reasonable; and c) that they propose to revise the estimate on the authority; and d) the amount of the new estimate.

As soon as practicable after notifying the vendor both copies of the authority need to be amended, with amendment initialled and dated. The statement of information can also be updated including with more relevant sales of comparable properties. evidence supporting the new estimate should be held on the file in case of an audit.

an occasion of non-payment of rent

Section 91Zm refers to an occasion of non-payment of rent and defines it as “an occasion where the renter owes at least 14 days rent within a 12 month period of the residential rental agreement, but does not include any amount owing under a payment plan ordered by the Tribunal”. Hence, it might be assumed that once the termination date in a notice to vacate (nTv) has passed, another nTv may be given once the renter is again in arrears by at least 14 days. This assumption was overturned in a recent vCAT case, Jackson v Field (Residental Tenancies)[2022] VCAT 859, in which the member stated: “For an entitlement to arise to give a subsequent notice to vacate, each occasion must also be a new occasion of non-payment of rent. That is, rent owed under the first occasion, cannot be caught up, or included in, a subsequent “occasion”. There must be a new period of time, a new occasion, where a renter has fallen into arrears of at least 14 days rent. In practical terms, this subsequent occasion cannot commence any earlier than the date that a prior valid notice to vacate was given to a renter.”

only the arrears accumulating for the period after the termination date in the first nTv could be considered, and the earliest possible date for another occasion of non-payment of rent would be 15 days after that date. This would be the earliest date for the issue of the next valid nTv.

Reasons in notices to vacate

A notice to vacate (nTv) must be given on the prescribed form and include the reason/s. The form states that in addition to including the “relevant reason, section number and the minimum notice required under the Act” the rental

provider “must also explain why the notice has been given” and that “it is not enough to quote just from the Act or from the reasons on the information sheet; this must be accompanied

by specific details”. In some cases, prescribed documentary evidence must also be attached.

It is strange that there must be such an explanation when it seems to be contained within the heading for the section of the Act which is being used.

The reason may be that vCAT, in addition to determining if the nTv is valid, must also decide whether it is reasonable and proportionate to make a possession order. [sections 330 and 330A]

It is impossible to say what reasons might be acceptable, except that they must not be discriminatory [sections 30 and 30A] and cannot be in response to the renter exercising their rights under the Act. In writing the reasons attempt to demonstrate the reasonableness and proportionality of the request for vacant possession of the property. It is strange that there must be such an explanation when it seems to be contained within the heading for the section of the Act which is being used.

Don’t overstate rent owed

The Supreme Court in the Liu v Tang [2022] vSC 243 stated that “…it is implicit in the legislation that a notice to vacate based on the non-payment of rent must not overstate (at least in any significant way) the rent that is actually owing and that if it does it is invalid and cannot form the basis of an order by vCAT for possession for non-payment of rent.”

This is not usually a problem, however the residential Tenancies Legislation which applied for the CovID emergency Period 29 march, 2020 to 28 march, 2021 has supplied property managers with another trap. It deems that non-payment of rent for a CovID reason during that period is not a breach and therefore cannot be used as a basis for eviction. To include that amount would render the notice invalid because it should only refer to the breach, and a possession order would not be granted.

To avoid this situation notices to vacate should not include arrears which accrued during the period 29 march, 2020 to 28 march, 2021, even though those amounts remain owing.

Please note: This is general information and should not be treated as a substitute for reading legislation, regulations and official guidelines, or for seeking legal advice where necessary.