RTA Amendments Q&As - Find, connect, shape your Victorian ...
0000Department of Health and Human Services – Questions and AnswersAmendments to the Residential Tenancies Act 1997 Contents TOC \h \z \t "Heading 1,1,Heading 2,2" Overview PAGEREF _Toc14096969 \h 31.What is Part 12A of the Residential Tenancies Act 1997? PAGEREF _Toc14096970 \h 32.Why does the Act make further changes to Part 12A? PAGEREF _Toc14096971 \h 33.When does Part 12A come into effect? PAGEREF _Toc14096972 \h 34.How will SDA participants and providers transition to new arrangements introduced by the Act? PAGEREF _Toc14096973 \h 3Rights, duties and penalties PAGEREF _Toc14096974 \h 45.What new duties does a provider have? PAGEREF _Toc14096975 \h 46.What options does an SDA provider have if a resident creates a risk to other residents or is damaging the property? PAGEREF _Toc14096976 \h 47.Residents can no longer be given a notice to vacate on the grounds that it is for the resident’s safety or wellbeing. Why has this option been removed? PAGEREF _Toc14096977 \h 48.What new duties does a resident have? PAGEREF _Toc14096978 \h 59.Is a resident always held liable for a breach of duty? PAGEREF _Toc14096979 \h 510.Who is liable for excessive charges caused by a fault, like a leaking water pipe? PAGEREF _Toc14096980 \h 511.When can a provider enter an SDA enrolled dwelling? PAGEREF _Toc14096981 \h 512.If an SDA provider seeks consent to enter a property, do they need to get consent from all residents? PAGEREF _Toc14096982 \h 613.Are mainstream landlords and SDA providers subject to the same penalties if they do the wrong thing? PAGEREF _Toc14096983 \h 6Residency agreement for SDA residents may choose PAGEREF _Toc14096984 \h 614.Can SDA residents enter a standard tenancy Agreement? PAGEREF _Toc14096985 \h 615.What is covered by an SDA residency agreement? PAGEREF _Toc14096986 \h 616.What is the difference between an SDA residency agreement and a standard tenancy agreement? PAGEREF _Toc14096987 \h 617.Can an SDA resident access an SDA residency agreement if they live with a non-SDA resident? PAGEREF _Toc14096988 \h 718.What protections are in place to ensure a provider does not coerce, deceive or mislead a resident into entering an agreement? PAGEREF _Toc14096989 \h 7Providing information to SDA residents PAGEREF _Toc14096990 \h 719.What protections are in place to ensure VCAT orders are explained to the resident? PAGEREF _Toc14096991 \h 720.Does a provider have to tell the resident if the provider ceases to be an NDIS provider or if a residence is no longer NDIS enrolled? PAGEREF _Toc14096992 \h 7Pets PAGEREF _Toc14096993 \h 821.Will residents have the right to keep a pet? PAGEREF _Toc14096994 \h 822.Will residents have the right to keep their assistance dog when they move in? Will SDA residents have to ask permission to keep an assistance dog? PAGEREF _Toc14096995 \h 823.Why doesn’t the Act extend all provisions relating to pets introduced by the Residential Tenancies Amendment Act 2018 apply to SDA residents? PAGEREF _Toc14096996 \h 8Rent and charges PAGEREF _Toc14096997 \h 824.Why can an SDA provider increase the rent more often than landlords in general tenancies? PAGEREF _Toc14096998 \h 825.What must be included in a notice of a rent increase? PAGEREF _Toc14096999 \h 826.Can a provider charge a resident for things like furniture provided under an SDA residency? PAGEREF _Toc14097000 \h 827.What protections are in place to ensure a resident is not forced to pay fees to pay their rent? PAGEREF _Toc14097001 \h 9Establishing an SDA residency agreement PAGEREF _Toc14097002 \h 928.When someone applies to live in SDA, what can the provider use that information for? PAGEREF _Toc14097003 \h 929.What does a SDA provider have to tell a resident before they enter an agreement? PAGEREF _Toc14097004 \h 930.How is an SDA residency agreement established? PAGEREF _Toc14097005 \h 931.Who is told when an SDA residency agreement is established? PAGEREF _Toc14097006 \h 9Terminating an SDA residency agreement PAGEREF _Toc14097007 \h 1032.Under what circumstances can an SDA residency agreement be terminated? PAGEREF _Toc14097008 \h 1033.When can a provider issue a notice to vacate? PAGEREF _Toc14097009 \h 1034.When can a property be considered ‘abandoned’? PAGEREF _Toc14097010 \h 1135.Does a provider have to try and resolve the issue before they terminate the SDA residency agreement? PAGEREF _Toc14097011 \h 1136.If the notice to vacate is issued because the provider wants to sell or has sold the property, does the provider have to prove this? PAGEREF _Toc14097012 \h 1137.If the notice to vacate is issued because the provider wants to repair or renovate the property, does the provider have to prove they are doing repairs? PAGEREF _Toc14097013 \h 1138.What protections are in place to ensure a provider cannot evict someone to do repairs, and then immediately re-lease the room or property? PAGEREF _Toc14097014 \h 1139.What happens if the SDA provider doesn’t own the property, and the owner wants to take possession of the house? PAGEREF _Toc14097015 \h 1140.What must a notice to vacate say? PAGEREF _Toc14097016 \h 1141.Under what circumstances will breaches of a resident’s duty not allow the provider to issue a notice to vacate? PAGEREF _Toc14097017 \h 1242.How does a resident challenge a notice to vacate? PAGEREF _Toc14097018 \h 1243.What happens if the resident does not vacate the property by the specified date in a notice to vacate? PAGEREF _Toc14097019 \h 1244.What protections are in place when an application is made by an owner of an SDA property to regain possession of a residence? PAGEREF _Toc14097020 \h 12Goods left behind PAGEREF _Toc14097021 \h 1245.What happens to goods left behind after a residency? PAGEREF _Toc14097022 \h 1246.What happens to documents left behind after a residency? PAGEREF _Toc14097023 \h 13The impact of NDIS transition on SDA residents PAGEREF _Toc14097024 \h 1347.Will residents be able to stay in their current home? PAGEREF _Toc14097025 \h 1348.What happens to residents not eligible for the NDIS because they are over 65? PAGEREF _Toc14097026 \h 1349.What happens if residents haven’t transitioned to the NDIS by 1 July 2019? PAGEREF _Toc14097027 \h 1350.What happens to residents who used to live in institutions like Colanda or Sandhurst? PAGEREF _Toc14097028 \h 1351.What happens to residents that are subject to the transfer of SIL services from the Department to the non-government sector? PAGEREF _Toc14097029 \h 13Overview The rollout to full scheme National Disability Insurance Scheme (NDIS) commenced in Victoria from 1 July 2019.The Disability (NDIS Transition) Amendment Act 2019 (the Act) makes necessary amendments to the Disability Act 2006 to facilitate transition to the NDIS, and to the Residential Tenancies Act 1997 (RTA) to meet Victoria’s obligations under the National Quality and Safeguards Framework and ensure safeguards for people with disability are maintained and strengthened during transition to the NDIS and in the future. What is Part 12A of the Residential Tenancies Act 1997?Part 12A of the RTA was introduced by the Disability Services Safeguards Act 2018 to respond to changes in how supports and residential protections for people with disability living in Specialist Disability Accommodation (SDA) under the NDIS will be delivered.Victoria will remain responsible for maintaining and strengthening the residential rights of people living in SDA under the NDIS.Under the NDIS, the provision of SDA and daily living supports, also known as Supported Independent Living (SIL) services, has been separated. This separation aims to improve choice and control for SDA residents by enabling them to choose their support services without having to move home.Current provisions in the Disability Act were designed for a different service model, where SDA and SIL are generally delivered by the same provider, making it difficult for a resident to exercise choice and control in their homes. SDA residents should be able to choose the services they receive in their home without having to move. The Government has therefore updated residential rights for SDA through the RTA to enable and protect these choices.Why does the Act make further changes to Part 12A?In 2018, the Victorian Parliament passed the Residential Tenancies Amendment Act 2018 which included more than 130 reforms providing increased protections for renters.These protections updated most parts of the RTA, including increasing penalty units, protecting renters against unreasonable evictions, and improving protections for renters who wish to keep pets.The protections in Part 12A of the RTA take the tenancy protections created by the Residential Tenancies Amendment Act 2018 and apply them to people living in SDA. While the Government was consulting on these protections, stakeholders said that there were other changes that are not related to the Residential Tenancies Amendment Act 2018 but would ensure Part 12A operates as intended. The Act makes other changes to Part 12A in response to that feedback.When does Part 12A come into effect?Part 12A, including the amendments made to it by the Act came into effect from 1 July 2019.How will SDA participants and providers transition to new arrangements introduced by the Act?There is a six-month transition period from 1 July 2019 to give residents and SDA providers who currently have an accommodation arrangement under Part 5 of the Disability Act time to adapt to new arrangements.Consumer Affairs Victoria and the Department of Health and Human Services are jointly developing guidance material to help residents and providers adapt to the changes. As part of the transition process, Consumer Affairs Victoria consulted publicly on the form and content of new residential agreements.Rights, duties and penaltiesWhat new duties does a provider have?The Act gives two new duties to the SDA provider under SDA residency agreements – to take reasonable steps to ensure that repairs or renovations are carried out by a suitably qualified person, and to not unreasonably refuse consent to a pet. An SDA provider also has the following duties under Part 12A of the RTA, introduced through the Disability Services Safeguards Act 2018:Take reasonable measures to ensure that residents are treated with dignity and respect and with due regard to their entitlement to privacyEnsure that the dwelling and any fixtures and fittings are in good repairNot interfere with the following rights:to privacyto install fixtures required to assist the resident in their daily livingto proper use and enjoyment of the premiseTake reasonable measures to ensure the security of the dwellingMinimise inconvenience or disruption during repairsTake reasonable steps to ensure repairs are completed in a timely manner.What options does an SDA provider have if a resident creates a risk to other residents or is damaging the property?An SDA provider can issue a notice to vacate if:the resident by act or omission endangers the safety of othersthe resident is causing serious disruptionthe resident is a danger to themselves or can no longer be appropriately supportedthe resident is causing serious damage.Before an SDA provider gives a resident a notice to vacate on these grounds, they must give a notice of temporary relocation or a breach of duty notice. This ensures that eviction is a last resort.It is not the intention of Part 12A to allow a resident to be evicted simply because of their disability, or because they have not received adequate supports. For this reason, an SDA provider cannot give a resident a notice to vacate or a notice of temporary relocation if acts or omissions are directly due to a resident’s disability, the failure to provide adequate supports, or the resident being subject to abuse or neglect. SDA providers receive SDA payments as well as rental payments from their residents. This means that SDA providers are compensated for providing a higher level of service than regular landlords. Residents can no longer be given a notice to vacate on the grounds that it is for the resident’s safety or wellbeing. Why has this option been removed?The Act ensures that an SDA resident cannot be given a notice to vacate on the grounds that it is “for the SDA resident’s safety or wellbeing”. This change was made in response to feedback from stakeholders that this is not sufficient grounds for eviction.However, SDA providers may still give a notice to vacate on the grounds that:the resident by act or omission endangers the safety of othersthe resident is causing serious disruptionthe resident is a danger to themselves and can no longer be appropriately supportedthe resident is causing serious damage.A provider can still issue a notice of temporary relocation on the grounds that it is for the resident’s safety or wellbeing.What new duties does a resident have?An SDA resident under an SDA residency agreement now has a new duty – not to keep a pet without the provider’s consent.A resident also has the following duties under the Part 12A of the RTA inserted by the Disability Services Safeguards Act 2018:Maintain the SDA enrolled dwelling in a way that doesn’t create a hazardNotify the provider of any damageContribute to the cost repairing the damage, where they intentionally caused the damagePay rent on the due date in the manner specified under the agreementNot use the dwelling for an illegal purposeNot endanger the safety of other residents or staffNot cause serious disruption to other resident’s proper use and enjoyment of the dwellingNot damage or destroy any part of the homeNot install fixtures without the provider’s consent.Is a resident always held liable for a breach of duty?An SDA resident under an SDA residency agreement cannot be issued a breach of duty notice if one or more of the following matters significantly contributed to the breach:In the case of damage to, or destruction of, the dwelling, fair wear and tear In the case of damage to, or destruction of, the dwelling, accidental damage The reasonable use of the SDA enrolled dwelling The reasonable use of any aids, equipment, fixtures and fittings used in the SDA enrolled dwelling The act or omission of a person who is not the SDA resident Any behaviour arising from the SDA resident's disability including circumstances aggravating to the SDA resident's disability or emotional wellbeing A failure by a person to implement or comply with the SDA resident's support plan or NDIS behaviour support planThe unauthorised use of a restrictive practice within the meaning of the Disability Act 2006Circumstances suggesting that the SDA resident has been subjected to abuse or neglect.Who is liable for excessive charges caused by a fault, like a leaking water pipe?If there is a fault at the property that causes an excessive utility bill, it will be the SDA provider’s responsibility to pay for utility costs more than the amount of ordinary usage by the SDA resident.When can a provider enter an SDA enrolled dwelling?The Act introduces longer notice periods before a provider must allow longer notice period before exercising the right of entry.The reasons a provider can enter the property, and associated notice periods are:at least 48 hours’ notice, to show the property to a prospective resident if a notice to vacate or notice of intention to vacate has been givenat least 48 hours’ notice, to show the property to a prospective buyer or lenderat least 24 hours’ notice, to carry out a duty under the Actat least 7 days’ notice, to value the propertyat least 7 days’ notice, to inspect the property once every 6 monthsat least 24 hours’ notice, to undertake repairs or maintenance.A provider is also restricted to exercising a right of entry to show the property to a prospective new resident within the last 21 days before the termination date, and these showings cannot occur more than twice a week or for longer than an hour without the consent of the resident/s. This is consistent with the changes made in the Residential Tenancies Amendment Act 2018.If an SDA provider seeks consent to enter a property, do they need to get consent from all residents?Yes, if there is more than one SDA resident in a property, an SDA provider must get the consent to enter from all residents.Are mainstream landlords and SDA providers subject to the same penalties if they do the wrong thing?Yes. The Residential Tenancies Amendment Act 2018 increased penalty amounts across all landlords. The Act ensures the same penalties apply to SDA providers to ensure there is no difference in protections for SDA residents.Residency agreement for SDA residents may choose Can SDA residents enter a standard tenancy Agreement?Yes. An SDA resident can choose to enter either an SDA residency agreement under Part 12A of the RTA or a standard tenancy agreement under Part 2 of the RTA.What is covered by an SDA residency agreement?The SDA residency agreement will be in a prescribed form. It includes:the period of the agreementhow parties can terminate the agreementthe rent, and how it will be paidany utility chargesthe minimum notice period for any rent increasesthe name and contact details of both partiesthe process for requesting repairs or maintenance the rights and duties of the SDA resident and SDA provider the SDA provider’s rights of entrythat an SDA resident has the right to see a community visitorthe process for making complaintsanything else prescribed.What is the difference between an SDA residency agreement and a standard tenancy agreement?An SDA residency agreement continues the safeguards people are familiar with under the Disability Act. Residents will still have access to temporary relocation and will not be required to pay a bond. SDA residency agreements will also be individual. That means that each resident in a house will have their own agreement, and they cannot be held responsible for the actions of other residents in the house. A standard tenancy agreement requires everyone in the house to be on one agreement, this means that all residents are equally responsible and the actions of one resident can affect other residents.However, entering into a standard tenancy agreement gives residents the option to live with friends, family or a partner who are not SDA residents.Can an SDA resident access an SDA residency agreement if they live with a non-SDA resident?No. If an SDA resident chooses to live with a non-SDA resident (for example if they share a home with their spouse or a friend), they will need to enter a standard residential tenancy agreement.What protections are in place to ensure a provider does not coerce, deceive or mislead a resident into entering an agreement?New section 498LC(2) of Part 12A provides that an SDA provider must not induce a person to enter into an SDA residency agreement by engaging in conduct that is misleading or deceptive.It is an offence toinduce a person to enter an SDA residency agreement by making a false or misleading representation regarding a number of matters listed under section 498LC(3) orto make a false or fraudulent misrepresentation re terms in the SDA residency agreement or matters affecting a person's rights or duties under an SDA residency agreement under section 498ZZZQ.Providing information to SDA residentsWhat protections are in place to ensure VCAT orders are explained to the resident?Where an SDA provider is a party to a case taken to Victorian Civil and Administrative Tribunal (VCAT), the provider is required to explain any orders VCAT makes to the resident, including sourcing support to inform the resident as required. However, the SDA provider does not need to explain orders made if the SDA resident is supported by their guardian, their administrator, their carer, a litigation guardian, a lawyer or a person they have chosen to represent them.The purpose of the amendment is to ensure that SDA residents receive an explanation of an order or direction of the VCAT.This is consistent with the intent of the information provisions and accessible communication requirements throughout Part 12A, the Disability Act and the Commonwealth’s NDIS Act.Does a provider have to tell the resident if the provider ceases to be an NDIS provider or if a residence is no longer NDIS enrolled?Yes, if the provider ceases to be an NDIS provider or the residence is no longer an SDA enrolled dwelling, the SDA provider is required to tell a resident within five days. This must occur for all SDA residents, even if they have a tenancy agreement. Non-compliance is subject to a penalty.PetsWill residents have the right to keep a pet?If an SDA resident asks to keep a pet, an SDA provider must not unreasonably refuse consent.An SDA provider may reasonably refuse consent if:another SDA resident living in the same SDA enrolled dwelling under an SDA residency agreement does not consent and has reasonable grounds for not consenting orthe pet would create a health and safety hazard if it was kept at the SDA enrolled dwelling.Will residents have the right to keep their assistance dog when they move in? Will SDA residents have to ask permission to keep an assistance dog?SDA residents have the right to have an assistance dog, and do not have to ask permission.Section 54 of the Equal Opportunity Act 2010 prevents discrimination on the basis that a person with disability has an assistance dog. This means that an SDA resident does not have to seek permission to have an assistance dog, and an SDA provider could not refuse to allow a person to keep their assistance dog.Why doesn’t the Act extend all provisions relating to pets introduced by the Residential Tenancies Amendment Act 2018 apply to SDA residents?The Residential Tenancies Amendment Act introduced new provisions which deem that a landlord has given permission for a tenant to keep a pet if the tenant requests a pet and the landlord does not apply to VCAT seeking to refuse the request within 14 days.The Act does not fully extend that regime to SDA enrolled dwellings. The pets provisions that do apply to SDA residents take into account that SDA enrolled dwellings may include more than one SDA resident, each with their own individual SDA residency agreement, who should have a right to object on reasonable grounds to having a pet in the home.Rent and chargesWhy can an SDA provider increase the rent more often than landlords in general tenancies?An SDA provider can increase the rent under an SDA residency agreement every 6 months. Other tenancies under the Residential Tenancies Amendment Act will not be able to increase the rent more than every 12 months.SDA rent is indexed to the Disability Support Pension and the pension is indexed every 6 months – rents are then adjusted accordingly.What must be included in a notice of a rent increase?A notice of a rent increase under an SDA residency agreement must include the amount of the increase, how the increase was calculated, and notice to the resident of their right to apply to the Director (Consumer Affairs Victoria) to investigate and report on the proposed rent.Can a provider charge a resident for things like furniture provided under an SDA residency?Yes. Part 12A list things that must be included in an SDA residency agreement. This does not prevent other matters being covered (such as charges for supply of furniture) if agreed between the parties. What protections are in place to ensure a resident is not forced to pay fees to pay their rent?New offences and penalties will apply to an SDA provider under an SDA residency agreement for requiring payment by post-dated cheque and not providing a fee-free rent payment method. Providers must allow rent to be paid through Centrepay if a resident chooses, and they must give the resident information about any costs incurred by their chosen payment method before the resident consents to use that payment method. This is consistent with the changes introduced for residential tenancy agreements through the Residential Tenancies Amendment Act 2018.Establishing an SDA residency agreementWhen someone applies to live in SDA, what can the provider use that information for?The Act introduces a new Division 3A into Part 12A of the RTA which specifies how an SDA provider, or their agent must use personal information disclosed in an application form. Section 498LAof Part 12A specifies that information used to apply for an SDA residency agreement can only be used for the purposes of determining whether the applicant is or will be an SDA resident, whether an SDA enrolled dwelling meets the needs of the applicant or where a dwelling has a shared living arrangement, assess the applicant’s compatibility with the SDA residents already living in the dwelling.This is to ensure that SDA providers cannot use or share the applicant’s personal information without their consent.What does a SDA provider have to tell a resident before they enter an agreement?Before entering into an agreement, the provider must tell the resident if they plan to sell the dwelling, if the dwelling will be shortly possessed by a mortgagee, if the provider does not own the dwelling directly and if the dwelling’s power is supplied by an embedded electricity network. In addition, the Minister will have the power to prescribe additional information to be disclosed prior to entering an agreement, as required.This is to ensure that residents have all the information that they need to decide whether they want to move in to the property.How is an SDA residency agreement established?An SDA residency agreement is established by the provider giving the resident an information statement 7 days before entering or establishing any agreement. After this point, the provider can work with the resident to enter either an SDA residency agreement or a tenancy agreement, depending on the resident’s choice. If an SDA resident can sign the SDA residency agreement, they can choose to do so. If the resident requires support to work through the information statement or SDA residency agreement, the provider must seek the assistance of the resident’s guardian, administrator, informal carer, or other support person chosen by the resident to ensure the agreement is fully understood before it is established.Who is told when an SDA residency agreement is established?The Director of Consumer Affairs Victoria must be notified of the establishment of any SDA residency agreements. SDA Providers who do not do this will be subject to a penalty.The SDA resident must receive a copy of the SDA residency agreement, as well as their guardian or administrator if they have one. Providers who do not do this will be subject to a penalty.Terminating an SDA residency agreementUnder what circumstances can an SDA residency agreement be terminated?A provider can terminate an SDA residency agreement under Part 12A of the RTA in the following circumstances:By agreement in writing between the provider and resident90 days after the provider issues a valid notice to vacate90 days after a mortgagee issues a valid notice to vacate90 days after the provider’s NDIS registration is revoked90 days after the home is unenrolled as SDAWhen the resident provides a notice of intention to vacate to the providerWhen the resident has abandoned the SDA homeWhen the resident diesIf the provider did not provide the required information statement to the resident before commencing the agreement, and the resident wishes to terminate the agreement because of that contravention.When VCAT terminates the agreement.Termination for abandonment is determined by the VCAT, making sure that extended absences (such as hospital stays or visits to country) don’t cause a resident to unfairly lose their home.When can a provider issue a notice to vacate?An SDA provider can issue a notice to vacate in the following circumstances:If the resident owes at least 14 days rent, and the resident has been issued a breach of duty notice about the overdue rent, and the resident has not taken steps to pay the outstanding amountIf the resident endangers the safety of other residents and staff (temporary relocation must be tried before issuing a notice to vacate)If the resident is causing serious disruption to use and enjoyment of the dwelling by other residents (temporary relocation must be tried before issuing a notice to vacate)If the resident is a danger to themselves and can no longer be appropriately supported in the dwelling (temporary relocation must be tried before issuing a notice to vacate)If the resident can no longer be appropriately supported in the dwelling (must temporary relocation must be tried before issuing a notice to vacate)If the resident has caused serious damage or destroyed any part of the dwelling (temporary relocation must be tried before issuing a notice to vacate)If the resident has used the home for an illegal purpose (temporary relocation must be tried before issuing a notice to vacate)If the dwelling needs to be repaired, renovated or reconstructed (temporary relocation must be tried before issuing a notice to vacate)If the dwelling is intended to be demolishedIf the dwelling will be sold or offered for sale with vacant possessionIf the resident has not complied with an order of Tribunal.The Act amends the Residential Tenancies Act 1997 to ensure that a resident can’t be given a notice to vacate on the grounds that it is for the SDA resident's safety or wellbeing". This was removed as it is considered that this was not sufficient grounds for giving a notice to vacate.When can a property be considered ‘abandoned’?If an SDA provider under an SDA residency agreement believes that an SDA resident has abandoned the dwelling, the SDA provider may apply to VCAT to declare the dwelling abandoned. This is to ensure there is oversight of what is considered ‘abandoned’ so that a person cannot have their agreement terminated for other reasons, such as a holiday.VCAT’s determination does not impact the rights or agreements of any other SDA residents that have not abandoned the dwelling. This is consistent with what happens in other types of tenancies.Does a provider have to try and resolve the issue before they terminate the SDA residency agreement?As outlined in Part 12A, in most cases, the notice to vacate must be preceded by a notice of temporary relocation or a breach of duty notice. This means the provider must try and resolve the problem before attempting to evict the resident, so that eviction is a last resort.If the notice to vacate is issued because the provider wants to sell or has sold the property, does the provider have to prove this?Yes, a provider must provide documentary evidence that they want to sell or have sold the house. The Director of Consumer Affairs Victoria will determine the appropriate evidence required.If the notice to vacate is issued because the provider wants to repair or renovate the property, does the provider have to prove they are doing repairs?Yes, an SDA provider must provide documentary evidence that they want to repair the house. The Director of Consumer Affairs Victoria will determine the appropriate evidence required.What protections are in place to ensure a provider cannot evict someone to do repairs, and then immediately re-lease the room or property?If an SDA provider gives an SDA resident notice to vacate for reason of repairs, they cannot re-lease the room or property within the six months after the agreement terminates. This will ensure this is not simply an easy way out for providers. In extenuating circumstances, the SDA provider may apply to VCAT to have this waived. This is consistent with the changes made in the Residential tenancies Amendment Act.What happens if the SDA provider doesn’t own the property, and the owner wants to take possession of the house?The provisions relevant to the resident’s right to live in the house will continue, and if the owner wishes to evict the residents, they must go through the process as if they were the SDA provider.This is consistent with the changes made in the Residential tenancies Amendment Act.What must a notice to vacate say?A notice to vacate must specify the termination date for the agreement, which must be no less than 90 days after the day it is issued, and include: the grounds on which the notice is given specification that the resident can apply to Tribunal within 90 days for review of the noticeany documentary evidence required (such as if the provider is undertaking repairs).Under what circumstances will breaches of a resident’s duty not allow the provider to issue a notice to vacate?If a resident has damaged the property, or failed to comply with a VCAT order, a resident cannot be issued a notice to vacate if any of the following matters significantly contributed to the breach:in the case of damage to, or destruction of, property fair wear and tearin the case of damage to, or destruction of, property, accidental damagethe reasonable use of the SDA enrolled dwellingthe reasonable use of any aids, equipment, fixtures and fittings used in the SDA enrolled dwellingthe act or omission of a person who is not the SDA residentany behaviour arising from the SDA resident's disability including circumstances aggravating to the SDA resident's disability or emotional wellbeinga failure by a person to implement or comply with the SDA resident's support plan or NDIS behaviour support planthe unauthorised use of a restrictive practice within the meaning of the Disability Act 2006circumstances suggesting that the SDA resident has been subjected to abuse or neglect.If one of these factors did significantly contribute to the breach, the provider cannot issue a valid notice to vacate.This is a further development of the protection in the Disability Act, where residents were not held liable for damage that they did not “knowingly and intentionally” cause.How does a resident challenge a notice to vacate?An SDA resident can challenge a notice to vacate at VCAT if there is a defect on the notice, if the notice does not comply with Part 12A, or if the grounds of the notice were not established.What happens if the resident does not vacate the property by the specified date in a notice to vacate?If the SDA resident does not vacate the property by the specified date, the SDA provider or mortgagee can apply to VCAT for a possession order, like other kinds of tenancies.What protections are in place when an application is made by an owner of an SDA property to regain possession of a residence?In these cases, VCAT must consider whether taking possession of the house is a reasonable and proportionate response, and whether the SDA resident has any requirements in sourcing suitable alternative accommodation. This will support VCAT to consider the full circumstances of the resident, reducing the risk that residents are evicted into homelessness.This is consistent with the changes introduced for other tenants by the Residential Tenancies Amendment Act 2018. Goods left behindWhat happens to goods left behind after a residency?An SDA provider under an SDA residency agreement must take reasonable steps to notify the resident and keep the goods for at least 14 days to allow time for collection. An SDA provider can dispose of goods that have no monetary value, that are perishable foodstuffs and that are dangerous. After the 14 days, a provider can sell or dispose of the goods.The former resident may request the proceeds of the sale in the 6 months after the sale, and if they are not claimed, the provider must pay the profits into the Residential Tenancies Fund.This is consistent with the changes made in the Residential Tenancies Amendment Act.What happens to documents left behind after a residency?Under Part 12A of the RTA an SDA provider under an SDA residency agreement must notify the resident and their guardian or administrator (if any) and keep the documents for 90 days to allow time for collection. If the SDA provider refuses to return the personal documents to someone who has a lawful right to them, they will be subject to a penalty fine. After 90 days, the provider may dispose of the documents in accordance with other State and Commonwealth laws.The impact of NDIS transition on SDA residentsWill residents be able to stay in their current home?Yes, SDA residents will be able to stay where they currently live – no one will need to move because of the NDIS transition. They will simply have a new type of residency agreement for the home they already live in.What happens to residents not eligible for the NDIS because they are over 65?Part 12A covers people currently living in SDA enrolled dwellings who are over 65. These residents will continue to have the same rights as other residents and will also move over to the new SDA residency agreement. What happens if residents haven’t transitioned to the NDIS by 1 July 2019?Residential statements under the Disability Act will continue to be enforceable until every resident of the house has transitioned to the NDIS. What happens to residents who used to live in institutions like Colanda or Sandhurst?Residents who used to live in institutions will be able to stay where they currently live – no one will need to move because of the NDIS transition. They will simply have a new type of residency agreement for the home they already live in.What happens to residents that are subject to the transfer of SIL services from the Department to the non-government sector?If an SDA resident is also going through the transfer of services, the Government is working with the non-government providers to ensure that the new SDA residency agreements are established in a timely and coordinated manner. This will minimise red tape and paperwork for these residents during this busy time. To receive this publication in an accessible format phone 1800 783 783, using the National Relay Service 13 36 77 if required, or email Disability and NDIS Branch <qualityandsafeguards@dhhs..au>.Authorised and published by the Victorian Government, 1 Treasury Place, Melbourne.? State of Victoria, Department of Health and Human Services, June 2019.Available at < > ................
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