Landlord and Tenant Act 1958 - Victorian Legislation … Version No. 096 Landlord and Tenant Act...

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Version No. 096

Landlord and Tenant Act 1958 No. 6285 of 1958

Version incorporating amendments as at 1 August 2010

TABLE OF PROVISIONS

Section Short title and commencement 1 2 Repealed 1

PARTS I–III—Repealed 1 3–28 Repealed 1

PART IV—SUMMARY PROCEEDINGS TO RECOVER POSSESSION 3

29 Definitions 3 30 Provision for landlords where tenants desert the premises 4 31 Tenants may appeal to judge on circuit or Supreme Court 4 32 Serving of notice to quit 5 32AA Acceptance of rent not to waive notice to quit 8 32A Landlord to serve sub-lessees of dwelling-houses in certain

cases 8 32B Failure to include statements in notice to quit 9 33 Mode of proceeding and proof before justices 9 34 Warrants not to be issued on certain days 11 35 Persons who have not a right to possession obtaining warrant

not to be protected from actions 11 36 Wrongfully procuring a warrant 12 37 Execution of warrant stayed on bond given to bring action 12 38 The bond to whom made and actions thereon 12 39 Protection of justices 13 40 Effect of irregularity 13 41 Costs where damages do not exceed Fifty cents 14 42 Death of party not to terminate proceedings etc. 14

Section Page

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PART IVA—REMOVAL AND DISPOSAL OF GOODS LEFT ON VACATED PREMISES 15

42A Definitions 15 42B Landlord may remove and store goods 15 42C Sale of goods by landlord 16 42D Landlord may deduct certain costs from proceeds of sale 17 42E Buyer of goods sold pursuant to this Part to acquire a good title 18 42F Rights of actual owner of goods 18

PART V—CONTROL OF RENTS AND RECOVERY OF POSSESSION 19 Division 1—Introductory 19 Interpretation 19

43 Definitions 19 43A–43F Repealed 29

Application of Act 29 44 Declarations as to application of Act 29 45 Declaration of special premises 30 45A Lessor to be given opportunity to be heard 32 46 Certain contracts deemed to be leases 32 47 New leases not to be subject to this Part 33 48 Leases in writing for three years or more not to be subject to

this Part 34 48A Decontrol of premises comprising of business and private

dwelling 35 49 Application of Divisions 2, 3 and 4 to any premises 36 50 Crown not bound 36

Division 2—Rent control 36 Subdivision 1—Administration 36

51 Constitution of Fair Rents Boards 36 51A Victorian Civil and Administrative Tribunal 38 52 Delegation of powers and functions 38 53 Powers of Minister, authorized officers and Boards 39 54 Repealed 39 55 Indemnity 39

Subdivision 2—Fair rents 39 Statement of Fair Rents 39

56 Fair rents of premises to continue 39

Section Page

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Determination of Fair Rents by Board 41 57 Applications for fixing of fair rents 41 58 Notice of application 41 59 Determination of application 42 60 Date of operation of determination 43 61 Board may determine fair rent 43 62 Inspection and valuation of prescribed premises 44 63 Costs not to be allowed 45 64 Matters to be considered in determining fair rent 45 65, 66 Repealed 47

Fixing Fair Rents by Notice 47 67 Power to lessor to require money for repairs 47 67A Repealed 51

Fixing Fair Rents by Agreement 51 68 Fixing fair rent by agreement 51 69 Fixing fair rent of premises following alterations 52

Period for Payment of Rent 53 70 Period for which fair rent may be fixed 53

Effect of Fixing Fair Rent 53 71 Effect of fixing fair rent 53 72 Recovery of overpaid rent 54 73 Time for applications to fix rent after determinations 54

Extension of Application of Division 55 74 Lease of premises together with goods 55

Subdivision 3—General 56 75 Penalty for demanding excess rent 56 76 Record of rents 56 77 Certain payments prohibited 57 78 Supply of particulars as to rent of premises 57 79 Effect on guarantee of fixing rent 58 80 Certificate as to rent 58 81 Proof of rent paid 58

Division 3—Recovery of possession 59 Notices to Quit 59

82 Restrictions on eviction 59 83 Period of notice to quit 68 84 Notice to quit not to be given on certain grounds 69 85 Notice to quit where dwelling-house sold 69 86 Notice to specify grounds 70

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87 Notice to quit to terminate lease 70 88 Notice to quit after failure of eviction proceedings 71 89 Repealed 72

Barring and Avoiding Notice to Quit 72 90 Power to court to bar notices to quit 72 91 Power to court to declare certain notices void 73

Proceedings for Recovery of Possession, &c. 74 92 Tribunal to consider hardship and alternative accommodation 74 93 Tribunal to disregard hardship and alternative accommodation

in some cases 79 94 Repealed 85 95 Power to stay proceedings or orders 85 96 Certain applications to operate as stay of execution 86 97, 98 Repealed 87 99 Ejectment orders not enforceable 87 100 Tribunal may order compensation for misrepresentation 87 101 Premises not to be sold or re-let etc. in certain cases 88 102 Repealed 90 103 Acceptance of rent not to waive notice to quit 90 104 Persons not to interfere with use or enjoyment of premises 90 105 Protection of certain sub-lessees 91 106 Protection of certain persons in possession of premises 93 107 Costs in ejectment proceedings 93

Division 3A—Premises ceasing to be prescribed premises 94 107A Premises ceasing to be prescribed premises 94

Division 4—Miscellaneous 96 108 Threats and boycotts prohibited 96 109 Contract to avoid Part 97 110 Powers of entry and inspection 97 111 Rights of lessor in respect of prescribed premises 99 112 Dwelling-house not to be sold unless tenant given opportunity

to purchase 100 113 Service of notices 102 114 Notice to lessor or lessee 103 115 Continued operation of notice 104 116 As to onus of proof that premises are prescribed premises 104 117 Offences and penalties 104 118 Regulations 104

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SCHEDULES 106

SCHEDULES 1–3 Repealed 106

SCHEDULE 4—Complaint and summons thereon 107 SCHEDULE 5—Warrant to member of the police force to take and

give possession 108 ═══════════════

ENDNOTES 109 1. General Information 109 2. Table of Amendments 110 3. Explanatory Details 115

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Version No. 096


Version incorporating amendments as at 1 August 2010 An Act to consolidate the Law relating to Landlord and Tenant.

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

1 Short title and commencement This Act may be cited as the Landlord and Tenant Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.

* * * * *

* * * * *

S. 1 amended by Nos 8208 ss 5(2), 15(1)(b), 9019 s. 2(1)(Sch. item 114), 57/1989 s. 3(Sch. item 112.1).

S. 2 repealed by No. 1/2010 s. 91(1).

Pt I (Heading and ss 3–12) amended by Nos 6505 s. 2, 7332 s. 2(Sch. 1 item 51), repealed by No. 1/2010 s. 91(1).


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* * * * *

* * * * *

Pt II (Heading and ss 13–25) amended by No. 6505 s. 2, repealed by No. 1/2010 s. 91(1).

s. 13

Pt III (Heading and ss 26–28) amended by No. 110/1986 s. 140(2), repealed by No. 1/2010 s. 91(1).

Part IV—Summary Proceedings to Recover Possession


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PART IV—SUMMARY PROCEEDINGS TO RECOVER POSSESSION

29 Definitions In this Part—

agent shall be taken to signify any person usually employed by the landlord in the letting of the premises or in the collection of the rents thereof or specially authorized to act in the particular matter by writing under the hand of such landlord;

dwelling-house means any premises (not being prescribed premises within the meaning of Part V of this Act) leased for the purposes of residence and includes—

(a) the premises of any lodging house or boarding house; and

(b) any part of premises which is leased separately for the purposes of residence—

but does not include premises licensed for the sale of spirituous or fermented liquors or premises which though leased for the purposes of residence have ceased to be used for those purposes to any substantial extent;

landlord shall be understood as signifying the person entitled to the immediate reversion of the premises or if the property be held in joint-tenancy coparcenary or tenancy in common shall be understood as signifying any one of the persons entitled to such reversion;

premises shall be taken to signify lands houses or other corporeal hereditaments.

No. 3710 s. 66.

s. 29

S. 29 def. of dwelling-house inserted by No. 6828 s. 2.



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30 Provision for landlords where tenants desert the premises

Where any tenant holds lands tenements or hereditaments at a rent under any demise or agreement either written or verbal and is in arrear for six months' rent, if such tenant deserts the demised premises and leaves the same uncultivated or unoccupied and although no right or power of re-entry is given or reserved to such landlord in case of the non-payment of rent, then a magistrate having no interest in the demised premises may at the request to the court of the landlord or his bailiff agent or receiver go upon and view the said premises and affix or cause to be affixed in the most conspicuous part thereof notice in writing specifying what day (at the distance of fourteen days at least) he or she will return to take a second view thereof; and if upon such second view the tenant or some person on his behalf does not appear and pay the rent in arrear, then the Magistrates' Court may put the landlord into the possession of the said demised premises; and the lease thereof to such tenant as to any demise therein contained only shall thenceforth become void.

31 Tenants may appeal to judge on circuit or Supreme Court

Such proceedings of the Magistrates' Court shall within two months be examinable in a summary way by the Supreme Court which is hereby empowered to order restitution to be made to such tenant together with his expenses and costs to be paid by the landlord, if the Court sees cause for the same; and in case the Court affirms the act of the Magistrates' Court, the Court may award costs to be paid to the landlord.

Nos 3170 s. 67, 5602 s. 2. S. 30 amended by Nos 8208 s. 2, 57/1989 s. 3(Sch. item 112.2(a)–(c)).

s. 30

No. 3710 s. 68. S. 31 amended by Nos 8181 s. 2(1)(Sch. item 101), 57/1989 s. 3(Sch. item 112.3(a)–(e)).



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32 Serving of notice to quit

(1) Whenever the term or interest of any tenant of any house land or other corporeal hereditaments held by him has ended or has been duly determined by a legal notice to quit or otherwise, and such tenant or (if such tenant does not actually occupy the premises or only occupies a part thereof) any person by whom the same or any part thereof is then actually occupied neglects or refuses to quit and deliver up possession of the premises or of such part thereof respectively, the landlord of the said premises or his agent may cause the person so neglecting or refusing to quit and deliver up possession to be served in the manner hereinafter mentioned with a complaint signed by the landlord or his agent and a summons thereon signed by the magistrate or registrar of the Magistrates' Court who issues it, which complaint and summons thereon shall be in the form set out in the Fourth Schedule to this Act, or to the like effect. Such complaint and summons thereon shall be served by serving a true copy thereof not less than seven clear days before the return date of the summons, either personally or by leaving a true copy thereof for the defendant at his last known or most usual place of abode or business with some person who is apparently an inmate thereof or an employee thereat and who is apparently over the age of sixteen years.

Nos 3710 s. 69, 5264 ss 84, 85(a), 5291 s. 16(1)(2), 6098 s. 2.

s. 32

S. 32(1) amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 112.4(a)), 74/2000 s. 3(Sch. 1 item 69.1).



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(1A) Notwithstanding anything to the contrary in subsection (1) where by statement on oath or by affidavit it is made to appear to the Magistrates' Court that the defendant cannot be found and neither his place of abode nor his place of business is known to the landlord or his agent (whoever makes the complaint) the court may order that such complaint and summons thereon be served by sending a true copy thereof by post addressed to the defendant at either the last place of abode or the last place of business of the defendant which is known to the landlord or his agent (as the case may be) and by fixing a true copy thereof on some conspicuous part of the premises.

(2) For the purposes of this section in the case of a periodic tenancy the recurring period of which does not exceed one month a notice to quit shall not (unless otherwise expressly agreed by the parties thereto) be invalid by reason only of the fact that it expires on a day other than the day of expiry of a recurring period; but in any such case in respect of the last period of the tenancy the rent payable shall where appropriate be apportionable.

(3) A notice to quit or demand for possession may be given or made—

(a) subject to the following provisions of this section, in any manner in which apart from this Act it might be given or made; or

(aa) by delivering the notice to some person apparently over the age of sixteen years and apparently residing in or in occupation of the premises; or

(ab) by delivering the notice to the person by whom the rent of the premises is customarily paid; or

S. 32(1A) inserted by No. 8208 s. 3(a), amended by No. 57/1989 s. 3(Sch. item 112.4(b)).

s. 32

S. 32(3) amended by No. 6828 s. 3(1).

S. 32(3)(aa) inserted by No. 8208 s. 3(b).

S. 32(3)(ab) inserted by No. 8208 s. 3(b).



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(b) by substituted service in accordance with rules of court made under the Magistrates' Court Act 1989 for the purposes of this subsection.

(4) A notice to quit given by a landlord in respect of premises, being a dwelling-house held on a periodic tenancy the recurring period of which does not exceed one month, shall be in writing and shall, subject to the following provisions of this section, be given not less than—

(a) where the tenant is in arrears of rent for at least four weeks, seven days; or

(b) in a case other than a case referred to in paragraph (a), fourteen days—

before the date specified therein for the quitting and delivering up of the premises, but nothing in this subsection shall in any case operate to authorize a shorter period of notice than would be required apart from the provisions of this subsection.

(5) Every notice to quit given by a landlord in respect of any premises referred to in subsection (4) of this section shall contain a statement requiring the tenant if he has sublet the premises or any part of the premises to notify the landlord in writing within seven days after service on him of the notice to quit of the name and address of each person who is a sub-lessee of the premises or any part thereof at the date of the service of the notice to quit.

(6) Section 35 of the Magistrates' Court Act 1989 shall without limiting the generality of the provisions thereof apply to and with respect to the service of notices to quit for the purposes of this Part.

S. 32(3)(b) amended by Nos 8731 s. 173, 57/1989 s. 3(Sch. item 112.4(c)).

S. 32(4) inserted by No. 6828 s. 3(2), substituted by No. 8208 s. 3(c).

s. 32

S. 32(5) inserted by No. 6828 s. 3(2).

S. 32(6) inserted by No. 6828 s. 3(2), amended by Nos 8731 s. 173, 57/1989 s. 3(Sch. item 112.4(d)).



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32AA Acceptance of rent not to waive notice to quit Where notice to quit any premises has been given, whether before or after the coming into operation of this section—

(a) any demand by the lessor for payment of rent, or of any sum of money as rent, in respect of any period within six months after the giving of the notice;

(b) the commencement of proceedings by the lessor to recover rent, or any sum of money as rent, in respect of the period mentioned in paragraph (a); or

(c) the acceptance of rent, or of any sum of money as rent, by the lessor in respect of any period mentioned in paragraph (a)—

shall not of itself constitute evidence of a new tenancy to operate as a waiver of the notice.

32A Landlord to serve sub-lessees of dwelling-houses in certain cases

(1) The landlord of any premises being a dwelling-house held on a periodic tenancy the recurring period of which does not exceed one month who has been notified by the tenant of the names and addresses of persons who are sub-tenants of the premises or any part thereof at the date of the service of the notice to quit shall upon taking proceedings for recovery of possession pursuant to this Part serve a copy of the complaint and summons on each of the said persons within the time and in a manner prescribed by section 32(1) for service of the complaint and summons.

S. 32AA inserted by No. 8208 s. 4.

s. 32AA

S. 32A inserted by No. 6828 s. 4, amended by No. 57/1989 s. 3(Sch. item 112.5).



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(2) Upon the hearing of the proceedings every sub-tenant of the premises or any part thereof at the date of the service of the notice to quit shall be entitled to be heard on the question whether the court should or should not order a stay of issue of the warrant and upon no other question.

32B Failure to include statements in notice to quit

(1) Any landlord who fails to include in a notice to quit any statement required by this Part to be contained in the notice to quit or who fails to serve upon any sub-tenant a copy of a complaint and summons when so required by this Part shall be guilty of offence and liable to a penalty of not more than 1 penalty unit.

(2) Any tenant who when so required by a statement contained in a notice to quit served on him pursuant to this Part fails within seven days after the service on him of the notice to quit to notify the landlord in writing of the name and address of any person who is a sub-tenant of the premises or any part thereof, shall be guilty of an offence and liable to a penalty of not more than 1 penalty unit.

33 Mode of proceeding and proof before justices

(1) Upon the hearing of the complaint and upon proof by admission or otherwise of the holding and of the end or other determination of the tenancy with the time or manner thereof and (where the title of the landlord has accrued since the letting of the premises) the right by which he claims the possession and of the service of the complaint and summons thereon as aforesaid and of the neglect

S. 32B inserted by No. 6828 s. 4.

s. 32B

S. 32B(1) amended by No. 10/2004 s. 15(Sch. 1 item 15.1).

S. 32B(2) amended by No. 10/2004 s. 15(Sch. 1 item 15.1).

Nos 3710 s. 72, 5264 s. 85(c), 5291 s. 17(a). S. 33 amended by No. 6828 s. 5(a).

S. 33(1) amended by Nos 6996 s. 2, 7876 s. 2(3), 57/1989 s. 3(Sch. item 112.6(a) (i)–(iii)).



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or refusal (as the case may be) of the tenant or occupier to deliver up possession of the premises or of any part thereof of which he is in possession the Magistrates' Court unless such tenant or occupier appears and shows to the satisfaction of the court reasonable cause why possession should not be given (or, after the case has been heard and determined, a registrar of the magistrates' court) may issue a warrant to any member of the police force authorizing and commanding such member and all other members of the police force acting for the district within a period to be named in such warrant not more than thirty clear days from the date thereof to enter by force and with assistance if needful into the premises and give possession of the same to such landlord or agent. Such warrant may be in the form set out in the Fifth Schedule and shall not be taken as requiring any member of the police force to remove from the premises or any part thereof any goods or chattels of the tenant or occupier thereof.

(2) Where the court orders a warrant to issue in respect of premises being a dwelling-house which had been held on a periodic tenancy the recurring period of which did not exceed one month the court may by its order stay the issue of the warrant for such period, not exceeding three months, as the court thinks fit.

(3) Where the court stays the issue of the warrant as aforesaid the court may by its order—

(a) require the person in possession of the premises or any part of the premises to pay to the landlord at the times and places stated in the order during the period of the stay a weekly sum at the same rate as the rent payable before the determination of the tenancy and, if it thinks fit, require the giving

S. 33(2) inserted by No. 6828 s. 5(b).

s. 33




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of such security for that payment as the court thinks proper; and

(b) impose such other conditions (if any) upon the person in possession of the premises or any part of the premises as the court thinks proper.

(4) Upon proof to its satisfaction of any failure by a person in possession to make payment or to give security in accordance with the order of the court or of any breach of any other condition imposed by order of the court, the Magistrates' Court may upon the application of the landlord or his agent revoke the stay of the issue of the warrant either in whole or in part and make such order as to the issue of the warrant as it thinks fit.

34 Warrants not to be issued on certain days Entry upon any such warrant shall not be made on Sunday Good Friday or Christmas Day or at any time except between the hours of nine in the morning and four in the afternoon.

35 Persons who have not a right to possession obtaining warrant not to be protected from actions

Nothing herein contained shall be deemed to protect any person on whose application and to whom any such warrant is granted from any action which is brought against him by any such tenant or occupier for or in respect of such entry and taking possession, where such person had not at the time of the granting the same lawful right to the possession of the said premises; and nothing herein contained shall affect any rights to which any person may be entitled as outgoing tenant by the custom of the country or otherwise.

S. 33(4) inserted by No. 6828 s. 5(b), amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 112.6(b)).

No. 3710 s. 73.

s. 34

No. 3710 s. 74.



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36 Wrongfully procuring a warrant In every case in which the person to whom any such warrant is granted had not at the time of granting the same lawful right to the possession of the premises, the obtaining of any such warrant as aforesaid shall be deemed a trespass by him against the tenant or occupier of the premises, although no entry is made by virtue of the warrant.

37 Execution of warrant stayed on bond given to bring action

In case any such tenant or occupier will become bound with two sureties as hereinafter provided to be approved of by the Magistrates' Court in such sum as to it seems reasonable (regard being had to the value of the premises and to the probable costs of an action) to sue the person to whom such warrant was granted with effect and without delay and to pay all the costs of the proceedings in such action in case a verdict passes for the defendant or the plaintiff discontinues or does not prosecute his action or becomes nonsuit therein, execution of the said warrant shall be stayed until judgment has been given in such action. And if upon the trial of such action a verdict passes for the plaintiff, such verdict and the judgment thereupon shall supersede the warrant so granted and the plaintiff shall be entitled to his costs in the said action.

38 The bond to whom made and actions thereon Every such bond shall be made to the landlord or his agent at the cost of the landlord or his agent, and shall be approved of and signed by the Magistrates' Court; and if the bond so taken is forfeited, or if upon the trial of the action for securing the trial of which such bond was given the court by which it is tried does not indorse upon the record in court that the condition of the

No. 3710 s. 75.

No. 3710 s. 76. S. 37 amended by No. 57/1989 s. 3(Sch. item 112.7(a)(b)).

s. 36

No. 3710 s. 77. S. 38 amended by No. 57/1989 s. 3(Sch. item 112.8(a)(b)).



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bond has been fulfilled, the party to whom the bond has been so made may bring an action and recover thereon; and the court where such last-mentioned action is brought may by order of the court give such relief to the parties upon such bond as may be agreeable to justice; and such order shall have the nature and effect of a defeasance to such bond.

39 Protection of justices No action or prosecution shall be brought against the magistrate or registrar by whom such warrant aforesaid has been issued, or against any member of the police force by whom any warrant is executed, for issuing such warrant or executing the same respectively, by reason that the person on whose application the same was granted had not lawful right to the possession of the premises.

40 Effect of irregularity Where the landlord at the time of applying for such warrant as aforesaid had lawful right to the possession of the premises or of the part thereof so held over as aforesaid, neither the landlord nor his agent nor any other person acting on his behalf shall be deemed to be a trespasser by reason merely of any irregularity or informality in the mode of proceeding for obtaining possession under the authority of this Part. But the party aggrieved may if he thinks fit bring an action for such irregularity or informality, in which the damage alleged to be sustained thereby shall be specially laid and may recover full satisfaction for such special damage together with costs.

No. 3710 s. 78. S. 39 amended by No. 57/1989 s. 3(Sch. item 112.9).

s. 39

No. 3710 s. 79.



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41 Costs where damages do not exceed Fifty cents In case the special damage so laid as aforesaid is not proved, the defendant shall be entitled to a verdict; and if damage is proved but is assessed by the jury at a sum not exceeding Fifty cents ($0.50), then the plaintiff shall recover no more costs than damages unless the judge before whom such trial had been held certifies upon the record that in his opinion full costs ought to be allowed.

42 Death of party not to terminate proceedings etc. Where any party to any proceedings under this Part dies whether before or after the termination of the proceedings his executor or administrator after filing in the Magistrates' Court an affidavit showing that he is such executor or administrator may continue such proceedings or enforce any order thereunder to the same extent and by the like means and in the same circumstances as such party might have done if living, and in all cases in which it is necessary so to do there may be substituted for the name of such party the name of such executor or administrator as the executor or administrator of the deceased party.

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No. 3710 s. 80.

No. 5846 s. 6(1). S. 42 amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 112.10).

s. 41

Part IVA—Removal and Disposal of Goods Left on Vacated Premises


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PART IVA—REMOVAL AND DISPOSAL OF GOODS LEFT ON VACATED PREMISES

42A Definitions In this Part unless inconsistent with the context or subject-matter—

goods includes personal property of every kind;

tenant means a tenant who has quit the premises.

42B Landlord may remove and store goods (1) Where a landlord recovers possession of any

premises because of the end or other determination of the tenancy and goods remain on the premises which the tenant fails or refuses to remove, the landlord may at his own expense remove and store the goods.

(2) Where the tenant or any person who has resided in or occupied the premises with the permission of the tenant claims any of the goods after they have been removed by the landlord pursuant to subsection (1) that tenant or person shall not be entitled to restoration of the goods until he has reimbursed the landlord for the cost of removal and storage of and any other costs which the landlord has incurred in respect of the goods claimed by him.

Pt 4A (Heading and ss 42A–42F) inserted by No. 8208 s. 5(1).

S. 42A inserted by No. 8208 s. 5(1).

s. 42A

S. 42B inserted by No. 8208 s. 5(1).



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42C Sale of goods by landlord (1) Where no claim of ownership has been established

to the reasonable satisfaction of the landlord or his agent or where the landlord has not been reimbursed pursuant to subsection (2) of section 42B the landlord may, after the expiration of three months from the date of the recovery of possession of the premises, sell the goods left behind on the premises (whether or not the goods were removed and stored by the landlord) provided that the following provisions are complied with—

(a) not less than one month before the sale of the goods the landlord—

(i) serves notice (which may be sent by post or delivered) on every person whom he knows has an interest in the goods of his intention to sell the goods; and

(ii) inserts in a newspaper published in Melbourne and circulating throughout Victoria and in the district in which the premises are situated a notice of his intention to sell the goods; and

(b) the sale is by public auction.

(2) A notice served or inserted pursuant to the last preceding subsection shall contain—

(a) a sufficient description of the goods to which the notice relates;

(b) the name of the tenant (if known) and the address of the premises in which the goods had been left; and

(c) the proposed date time and place of the sale.

S. 42C inserted by No. 8208 s. 5(1).

s. 42C



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42D Landlord may deduct certain costs from proceeds of sale

(1) The landlord may deduct from the proceeds of the sale—

(a) the cost of removal storage and preservation of the goods; and

(b) the costs in connexion with the sale and any sum paid by him for the insurance of the goods prior to the sale—

and any money remaining which has not been paid by the landlord to the tenant or to the owner of the goods (as the case may be) within three months after the sale shall within fourteen days after the expiration of that period be paid by the landlord together with any interest thereon to the Registrar of Unclaimed Money to be placed to the credit of the Consolidated Fund.

(2) A landlord who fails to pay any moneys to the receiver of revenue as required by this section shall be liable to a penalty of not more than $4 for each day that the default continues.

(3) If any claimant makes a demand against the Treasurer for any money so placed to the credit of the Consolidated Fund the Treasurer upon being satisfied that the claimant is the owner of the money shall direct payment of a like amount to be made to him out of money made available by Parliament for the purpose.

(4) Where any unclaimed money paid to a claimant are afterwards claimed by any other person the Treasurer shall not be responsible for the payment thereof, but that person may have recourse against the claimant to whom the Treasurer has paid the unclaimed money.

S. 42D inserted by No. 8208 s. 5(1).

s. 42D

S. 42D(1) amended by Nos 70/1993 s. 14(Sch. item 4(a)), 18/1994 s. 66(Sch. 2 item 13), 44/2008 s. 113(1).

S. 42D(3) amended by Nos 70/1993 s. 14(Sch. item 4(b)(i)(ii)), 44/2008 s. 113(2).

S. 42D(4) amended by No. 44/2008 s. 113(3).



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42E Buyer of goods sold pursuant to this Part to acquire a good title

(1) The buyer of any goods sold by the landlord in the exercise or purported exercise of his powers under this Part shall acquire a good title to the goods provided he buys them in good faith and without notice—

(a) of any defect or want of title in the tenant; and

(b) of any failure by the landlord to comply with any of the provisions of this Part.

(2) Upon any proceedings by or against the landlord in respect of any goods sold pursuant to the provisions of this Part the burden of proving that the provisions of this Part relating to the sale of those goods have been complied with shall be on the landlord.

42F Rights of actual owner of goods Where the tenant is not the owner of any such goods and the goods are sold by the landlord in the exercise or purported exercise of his powers under this Part without notice by the landlord to the owner the owner shall not be entitled to the return of the goods but shall have the same rights in respect of the remaining proceeds of the sale of the goods after the deductions have been made pursuant to section 42D as he would have had in respect of the goods if the property therein had not passed to the buyer by virtue of the provisions of this Part.

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S. 42E inserted by No. 8208 s. 5(1).

s. 42E

S. 42F inserted by No. 8208 s. 5(1).

Part V—Control of Rents and Recovery of Possession


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PART V—CONTROL OF RENTS AND RECOVERY OF POSSESSION

Division 1—Introductory

Interpretation

43 Definitions (1) In this Part unless inconsistent with the context or

subject-matter—

Acts previously in force means the Landlord and Tenant Act 1948, the Landlord and Tenant (Amendment) Act 1948, the Landlord and Tenant (Servicemen) Act 1950, the Landlord and Tenant Act 1953, the Landlord and Tenant Act 1954, and the Landlord and Tenant (Amendment) Act 1955 as in force before the commencement of the Landlord and Tenant (Control) Act 1957 and that Act as in force before the commencement of this Act;

application means an application to a Board under this Part;

authorized officer means—

(a) any person appointed by the Minister in writing to be an authorized officer for the purpose of this Part or the Acts previously in force;

(b) the Director within the meaning of the Fair Trading Act 1999; or

(c) an employee in the Department of Justice;

No. 6098 ss 2(2), 3.

s. 43

S. 43(1) def. of authorized officer substituted by No. 9514 s. 154(a) (as amended by No. 9549 s. 2(1)(Sch. item 198)), amended by Nos 46/1998 s. 7(Sch. 1), 11/2002 s. 3(Sch. 1 item 40).



20

* * * * *

base value of any prescribed premises means the capital value of the premises—

(a) at the thirty-first day of December One thousand nine hundred and forty; or

(b) (if the premises were not in existence on that date) on the date on which the erection of the premises was completed;

Board means Fair Rents Board under this Part;

business premises means prescribed premises, not being a dwelling-house;

child of a person includes a child of the person's partner;

determination means determination of the fair rent of any premises, or of any premises together with goods leased therewith, made by a Board under this Part or the Acts previously in force or continued in force under those Acts;

Division means Division of this Part;

S. 43(1) def. of base rent repealed by No. 6599 s. 2(a).

S. 43(1) def. of Board amended by Nos 9514 s. 154(b) (as amended by No. 9549 s. 2(1)(Sch. item 198)), 101/1998 s. 26(1)(a).

s. 43

S. 43(1) def. of child inserted by No. 27/2001 s. 3(Sch. 1 item 7.1).



21

domestic partner of a person means—

(a) a person who is in a registered relationship with the person; or

(b) a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender);

dwelling-house means any prescribed premises (including shared accommodation) leased for the purposes of residence, and includes—

(a) the premises of any lodging-house or boarding-house;

(b) any part of premises which is leased separately for the purposes of residence—

but does not include premises licensed for the sale of spirituous or fermented liquors or premises which though leased for the purposes of residence have ceased to be used for those purposes to any substantial extent;

* * * * *

lease includes every contract for letting of any prescribed premises, whether the contract is express or implied, or is made orally, in writing or by deed, and includes a contract for the letting of prescribed premises together with goods, but does not include any tenancy at will implied at law in any mortgage or agreement for the sale and purchase of land or any lease arising under

S. 43(1) def. of domestic partner inserted by No. 27/2001 s. 3(Sch. 1 item 7.1), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 35.1).

S. 43(1) def. of higher rent dwelling amended by No. 6505 s. 2, repealed by No. 6599 s. 2(a).

s. 43



22

an attornment clause in a mortgage or in an agreement for the sale and purchase of land or any lease arising under a clause in a mortgage or in an agreement for the sale and purchase of land (however expressed and whenever executed) whereby in case of default the mortgagee or the vendor (as the case may be) is given the powers of a lessor with respect to recovery of possession or ejectment;

lessor and lessee mean the parties to a lease, or their respective successors in title, and include—

(a) a mesne lessor and a mesne lessee;

(b) a sub-lessor and a sub-lessee; and

(c) in respect of premises which are subject to a mortgage, a mortgagee who enters or has entered into possession of the premises under the mortgage and a person who was the lessee of the premises under the mortgagor immediately prior to the mortgagee entering into possession—

respectively;

ordinary dwelling means prescribed premises, being a dwelling-house (not being premises in respect of which a declaration order or direction has been made under Part VII of the Housing Act 1983 or any corresponding previous enactment and is in force declaring those premises to be unfit for human habitation or directing that they be repaired or demolished);

s. 43

S. 43(1) def. of ordinary dwelling amended by Nos 6599 s. 2(b), 57/1989 s. 3(Sch. item 112.11).



23

partner of a person means the person's spouse or domestic partner;

prescribed means prescribed by this Part or the Acts previously in force or by regulations;

prescribed premises means any premises, other than—

(a) premises which immediately before the commencement of the Landlord and Tenant (Control) Act 1957—

(i) were excepted from the interpretation of Prescribed premises under the Landlord and Tenant Act 1948 by reason of their being holiday premises as therein defined or by reason of their being used for the time being or ordinarily used as a grazing area, farm, orchard, market garden, dairy farm, poultry farm, pig farm or bee farm; or

(ii) were excluded from the operation of that Act or of any specified provision of that Act by virtue of a certificate under section four of that Act;

(b) premises which immediately before the commencement of the Landlord and Tenant (Control) Act 1957 were excluded from the operation of Part III of the Landlord and Tenant Act 1948 by virtue of a certificate under section fifty-nine or section sixty of the Act;

S. 43(1) def. of partner inserted by No. 27/2001 s. 3(Sch. 1 item 7.1).

S. 43(1) def. of prescribed premises amended by Nos 12/1989 s. 4(1)(Sch. 2 item 67.1), 81/1989 s. 3(Sch. item 27).

s. 43



24

(c) premises which were or are erected, or the erection of which was or is completed, after the first day of February One thousand nine hundred and fifty-four;

(d) premises which were not let to a lessee at any time between the thirty-first day of December One thousand nine hundred and forty and the first day of February One thousand nine hundred and fifty-four;

(e) premises in respect of which a lease in writing for a term of not less than three years was entered into before the commencement of this Act in accordance with section three of the Landlord and Tenant Act 1953 (as modified or affected by any Act) or with section four of the Landlord and Tenant (Amendment) Act 1955 or with section eight of the Landlord and Tenant (Control) Act 1957 and which by the operation of any of those sections ceased to be prescribed premises under the Acts previously in force;

(f) premises in respect of which a lease was entered into before the commencement of this Act in accordance with section three of the Landlord and Tenant (Amendment) Act 1955 or section seven of the Landlord and Tenant (Control) Act 1957 and which by the operation of either of those sections ceased to be prescribed premises under the Acts previously in force;

s. 43



25

(g) premises which are the property of any municipal council or of any Authority under the Water Act 1989 that has a water district under that Act;

(h) premises, or the premises included in any class of premises, which are or were declared by the Governor in Council by Order published in the Government Gazette, to be excluded from the operation of this Part or the Acts previously in force; and

(i) premises which cease to be prescribed premises by the operation of any of the subsequent provisions of this Division—

and includes any part of any premises and any land or appurtenances leased with any premises:

Provided that where pursuant to this Part or the Acts previously in force any premises are or were by Order of the Governor in Council declared to be premises to which this Part or the said Acts apply or applied or to be "special premises" and that Order is for the time being in force the premises to which the Order relates shall be prescribed premises notwithstanding that those premises were previously excepted from the interpretation of Prescribed premises;

rates includes any rates or charges made or levied by any local authority or other local governing body, including any municipal or city council and water or sewerage authority;

regulations means regulations made under this Part or the Acts previously in force;

s. 43



26

rent means the actual rent payable under a lease, and includes—

(a) the value to the lessor of any covenants, conditions or other provisions of, or relating to, the lease to be performed by the lessee, other than covenants, conditions and provisions usually entered into by a lessee; and

(b) any rates or taxes payable by a lessee in respect of any premises, other than excess water rates—

and where, in any lease—

it is provided that a reduced amount, as rent, shall be accepted by the lessor upon any condition to be performed by the lessee, that reduced amount shall be deemed to be the rent payable under the lease;

any rebate, discount, allowance or other reduction is provided for, the amount payable after each such reduction is made shall be deemed to be the rent payable under the lease;

shared accommodation means any prescribed premises leased for the purpose of residence and forming part of other prescribed premises, but does not include any prescribed premises forming a complete residence in themselves or any premises which form such a complete residence except that the laundry facilities available to the tenant are shared by him with other persons;

spouse of a person means a person to whom the person is married;

s. 43

S. 43(1) def. of spouse inserted by No. 27/2001 s. 3(Sch. 1 item 7.1).



27

tax includes any tax, whether on land or on income derived from land, imposed by any law of the Commonwealth or of the State;

Tribunal means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998.

(2) For the purposes of this Part lessee includes a person who remains in possession of premises after the termination of his lease of the premises, and lessor has a corresponding meaning.

(2A) Where a person continues in possession of any premises pursuant to section one hundred and six of this Act that person shall for the purposes of Division two of this Part be deemed to be the lessee of the premises.

(3) Where the lessor of prescribed premises supplies or provides any service in connexion with the premises and a separate charge is made for those services, the amount charged shall for the purposes of this Part be deemed to form part of the rent payable under the lease.

(4) For the purposes of paragraph (d) of the interpretation of Prescribed premises any premises, being a dwelling-house, which were at any time during the period referred to in the said paragraph—

(a) let to a lessee by reason only that the lessor or, where there was more than one lessor, one of the lessors was on or about to go on war service; or

S. 43(1) def. of Tribunal inserted by No. 101/1998 s. 26(1)(b).

S. 43(2A) inserted by No. 6828 s. 6.

s. 43



28

(b) let to a lessee pursuant to a certificate issued under section fifty-nine of the Landlord and Tenant Act 1948—

shall be deemed not to have been let to a lessee. In this subsection war service means service as a member of the Naval Military or Air Forces of the Commonwealth of Australia during any war, hostilities or assignment in which the Commonwealth or any unit or detachment or member of the said Forces with the sanction of the Commonwealth was engaged at any time during the relevant period.

* * * * *

(6) Any premises which are excluded from the interpretation of Prescribed premises by virtue of any of the paragraphs of that interpretation shall not again become or be prescribed premises except by Order of the Governor in Council made under section forty-four or section forty-five of this Act.

(7) For the purposes of the definition of domestic partner in subsection (1)—

(a) registered relationship has the same meaning as in the Relationships Act 2008; and

(b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.

S. 43(5) repealed by No. 6599 s. 2(c).

s. 43

S. 43(7) inserted by No. 27/2001 s. 3(Sch. 1 item 7.2), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 35.2).



29

* * * * *

* * * * *

Application of Act

44 Declarations as to application of Act * * * * *

(2) The Governor in Council may, by Order published in the Government Gazette, declare that any premises, or the premises included in any class of premises, shall be excluded from the operation of this Part or of such of the provisions of this Part as are specified in the Order, and thereupon those premises, or premises of that class, shall be excluded accordingly.

* * * * *

S. 43A inserted by No. 9514 s. 153(1) (as amended by No. 9549 s. 2(1)(Sch. item 197)), repealed by No. 9786 s. 2(2).

Ss 43B–43F inserted by No. 9514 s. 153(1), repealed by No. 9786 s. 2(2).

No. 6098 s. 4.

s. 44

S. 44(1) amended by No. 6828 s. 7(1), repealed by No. 9514 s. 153(2).

S. 44(3) repealed by No. 9514 s. 153(2).



30

45 Declaration of special premises (1) Where the Governor in Council by Order

published in the Government Gazette declares any particular premises specified in the Order to be "special premises" for the purposes of this Part, then any contract agreement or arrangement by whatever name called, whether oral or in writing and whether made before or after the publication of the said Order, whereby for valuable consideration any person is licensed authorized or permitted to occupy or use those premises or any part of those premises for any purpose, whether exclusively or not and whether as a boarder or lodger or otherwise and whether or not any services are provided for or supplied to that person in relation to such occupation or use, shall be deemed from the publication of the said Order or from the making of the said contract agreement or arrangement (whichever last happens) to be a lease or sub-lease (as the case requires) of the premises or the part thereof as aforesaid and the premises and every such part shall be prescribed premises and the consideration payable (including any consideration payable for any service provided or supplied as aforesaid) shall be deemed to be rent, and the provisions of this Part (other than sections eighty-three and ninety-six) shall, so far as applicable, apply accordingly subject to the modifications that—

(a) subsection (3) of section eighty-two shall be read and construed as if for the words "for a period determined in accordance with the next succeeding section" there were substituted the words "for a period of not less than seven days"; and

No. 6098 s. 5.

s. 45



31

(b) subsection (6) of section eighty-two shall be read and construed as if for paragraph (d) thereof there were substituted the following paragraph—

"(d) (i) that the conduct of the lessee is a nuisance or annoyance to any other occupant or occupants of the premises or of the building in which the premises are situated or tends to bring the premises or building as aforesaid into disrepute; or

(ii) that the premises are reasonably required by the lessor for occupation by himself or by his son, daughter, father, mother, brother or sister, or by some person who ordinarily resides with and is wholly or partly dependent upon him".

(2) The Governor in Council may from time to time make and in like manner revoke amend or vary Orders for the purposes of the last preceding subsection, and any Order so amended or varied shall thereafter apply accordingly.

(3) An Order may be made and shall have full force and effect under subsection (1) of this section in respect of the specified premises to which it relates, notwithstanding that those premises have always been or prior to the making of the Order (and whether before or after the commencement of this Part) had become by or pursuant to the operation of some other provision of this Part or the Acts previously in force excluded from the operation of Divisions two, three and four of this Part or the corresponding provisions of the said Acts.

s. 45



32

45A Lessor to be given opportunity to be heard

(1) Before the Governor in Council makes an Order under subsection (1) of section 44 or subsection (1) of section 45 the lessor or his agent shall be served with notice in writing by the Secretary to the Department of Justice that consideration is being given as to whether an Order is to be made under either of those subsections and that before a date specified in the notice he may place in writing before the Minister any matters that he wishes to be taken into consideration.

(2) On the service of the notice (which service may be made personally or by post) referred to in subsection (1) any notice to quit given in respect of those premises shall, notwithstanding anything to the contrary in this Act, be suspended as from the day of the service of the notice referred to in subsection (1) for one month, and the period of that suspension shall not be taken into account in determining the period of time for the quitting of the premises.

(3) Notwithstanding anything to the contrary in this Act a notice to quit given in respect of those premises within one month after the service of the notice referred to in subsection (1) shall be invalid and have no force or effect.

46 Certain contracts deemed to be leases (1) For the purposes of this Part any contract

agreement or arrangement by whatever name called, whether oral or in writing and whether made before or after the commencement of this Part, whereby for valuable consideration any person is or was licensed authorized or permitted to occupy and use prescribed premises for the

S. 45A inserted by No. 8208 s. 6.

s. 45A

S. 45A(1) amended by No. 46/1998 s. 7(Sch. 1).

No. 6098 s. 6.



33

purpose of residence (otherwise than as a tenant at will implied at law in any mortgage or agreement for the sale and purchase of land or as a bona fide lodger or boarder or in pursuance of or in connexion with a contract of employment) shall be deemed from the first day of February One thousand nine hundred and fifty-four or from the making thereof (whichever last happened or happens) to be and to have been a lease or sub-lease (as the case requires) of the premises and the consideration payable shall be deemed to be and to have been rent.

(2) For the purposes of this Part any contract agreement or arrangement by whatever name called, whether oral or in writing and whether made before or after the commencement of this Part, whereby for valuable consideration any person is or was licensed authorized or permitted to occupy and use prescribed premises for the purpose of or in connexion with any trade industry business profession or calling carried on by him shall, if in fact the premises are not or were not bone fide concurrently occupied or used by any other person, be deemed from the first day of February One thousand nine hundred and fifty-four or from the making thereof (whichever last happened or happens) to be a lease or sub-lease (as the case requires) of the premises and the consideration payable shall be deemed to be and to have been rent.

47 New leases not to be subject to this Part (1) Except as provided in subsections (2) and (3) of

this section where a lease (whether or not in writing) is entered into in respect of any prescribed premises the provisions of Divisions two, three and four of this Part (other than sections one hundred and one and one hundred and seventeen of this Act) shall not apply with

No. 6098 s. 7.

s. 47



34

respect to that lease of the premises, and when the lessee goes into occupation of the premises under that lease the premises shall cease to be prescribed premises and to be subject to the provisions of the said Divisions of this Part.

(2) The provisions of the last preceding subsection shall not apply—

(a) in respect of any lease entered into with a lessee who immediately before entering into the lease is the lessee of the premises or is deemed such a lessee by force of any provision of this Part or is in occupation of the premises by force of section one hundred and six of this Act; or

(b) in respect of any sub-lease which becomes a lease by force of any provision of this Part.

* * * * *

(3) Nothing in subsection (1) of this section shall affect in any way the rights under this Part of any lessee or sub-lessee who has not entered into such a lease as is referred to in that subsection.

48 Leases in writing for three years or more not to be subject to this Part

(1) Where a lease in writing for a term of not less than three years is entered into in respect of any prescribed premises—

(a) the provisions of Divisions two, three and four of this Part (other than sections one hundred and one and one hundred and seventeen of this Act) shall not apply with respect to that lease of the premises; and

S. 47(2)(b) amended by No. 8208 s. 7(a).

S. 47(2)(c) repealed by No. 8208 s. 7(b).

No. 6098 s. 8.

s. 48



35

(b) except as hereinafter provided on the commencement in occupation of the term granted by the lease the premises shall cease to be prescribed premises and to be subject to the provisions of the said Divisions of this Part.

(2) The fact that the term of a lease in writing for three years or more is expressed to commence prior to the date of execution of the lease shall not preclude the operation of the last preceding subsection or be deemed to have precluded the operation of the corresponding previous provision in respect of that lease if in fact the lessee is or was in occupation of the premises from the commencement of the term subject to the covenants and conditions later expressed in the lease and the lease is or was executed within three months after the commencement of the term.

(3) Nothing in subsection (1) of this section shall be deemed to authorize any lessor to require any lessee in occupation of premises to enter into such a written lease as is referred to in that subsection.

(4) Nothing in subsection (1) of this section shall affect in any way the rights under this Part of any lessee or sub-lessee who has not entered into such a lease as is referred to in that subsection.

48A Decontrol of premises comprising of business and private dwelling

Notwithstanding anything in this Part prescribed premises constructed so that a portion consists of business premises and the other portion a dwelling-house shall, on such day (being a day not earlier than one year from the day on which this section comes into operation) as the Governor in Council by Order published in the Government Gazette may determine, cease to be prescribed premises provided that—

S. 48A inserted by No. 8208 s. 8.

s. 48A



36

(a) the premises are let for use and used as constructed both as business premises and as a dwelling-house; and

(b) the premises are not prescribed premises by virtue of an Order under subsection (1) of section 44 or subsection (1) of section 45 or either of the corresponding previous enactments.

49 Application of Divisions 2, 3 and 4 to any premises The provisions of Divisions two, three and four of this Part shall not apply to any premises (not being a dwelling-house) unless an Order in respect of those particular premises is made pursuant to subsection (1) of section forty-four of this Act.

50 Crown not bound This Part shall not bind—

(a) the Crown in right of the Commonwealth or of the State; or

(b) the Director of Housing.

Division 2—Rent control

Subdivision 1—Administration

51 Constitution of Fair Rents Boards (1) For the purposes of this Part—

(a) the Governor in Council may by Order published in the Government Gazette constitute a Fair Rents Board or Fair Rents Boards at such place or places within the metropolitan area as he thinks fit; and

S. 49 substituted by No. 6575 s. 2(1).

No. 6098 s. 10.

s. 49

S. 50(b) amended by No. 57/1989 s. 3(Sch. item 112.12).

No. 6098 s. 11.

S. 51 substituted by No. 6623 s. 2(1).



37

(b) a Fair Rents Board shall by this Act be constituted at every place outside the said area that is a venue of the Magistrates' Court.

(2) Each Board constituted at any place within the metropolitan area shall have jurisdiction in respect of premises in any part of that area.

(3) Each Board constituted at any place outside the said area shall have jurisdiction in respect of premises in any part of Victoria other than the said area: Provided that where proceedings in respect of any premises are brought before any such Board the Board may, and if any party to the proceedings so requires shall, refuse to deal with such proceedings if it is satisfied that the place at which another such Board is constituted is nearer or more convenient of access to the premises in question.

(4) The Governor in Council may by Order published in the Government Gazette abolish any Fair Rents Board (whether constituted by this Act or by Order) and by the same or any subsequent Order make provision for the transfer of pending proceedings before that Board to some other Board and proceedings so transferred may be heard and determined by that other Board.

(5) Each Board shall consist of a magistrate sitting alone.

(6) The Governor in Council may by Order published in the Government Gazette make rules relating to proceedings before Boards for the purposes of this Part.

S. 51(1)(b) amended by Nos 9019 s. 2(1)(Sch. item 115), 57/1989 s. 3(Sch. item 112.13).

S. 51(5) amended by No. 16/1986 s. 30.

s. 51



38

* * * * *

(8) In this section metropolitan area means the area defined as such by Order of the Governor in Council, as in force immediately before the commencement of the Landlord and Tenant (Further Amendment) Act 1960, under the provisions of section fifty-one of this Act as then in force, or the area so defined as amended or varied from time to time by any Order made under this section.

(9) The Governor in Council may from time to time by Order published in the Government Gazette amend or vary any Order defining the metropolitan area or constituting any Board or Boards thereunder or any Order making rules relating to proceedings before Boards, and any Order so amended or varied shall thereafter apply accordingly.

51A Victorian Civil and Administrative Tribunal

(1) A function or power of a Board under this Division may be performed or exercised by the Tribunal.

(2) Except in so far as they are inconsistent with provisions of this Part, the provisions of Part 11 of the Residential Tenancies Act 1997 apply to the Tribunal in the performance of functions or exercise of powers under this Act.

52 Delegation of powers and functions (1) The Minister or an authorized officer may by

writing under his hand delegate all or any of his powers or functions under this Part or under any Order made under this Part or under the Acts

S. 51(7) repealed by No. 8208 s. 9.

S. 51A inserted by No. 9514 s. 154(c).

s. 51A

S. 51A(1) substituted by No. 101/1998 s. 26(2).

S. 51A(2) amended by Nos 109/1997 s. 533(Sch. 2 item 6.1), 101/1998 s. 26(3).

No. 6098 s. 12.



39

previously in force (except this power of delegation) so that the delegated powers and functions may be exercised by the delegate.

(2) Any delegation by the Minister or an authorized officer under this section or under the corresponding provision in the Acts previously in force shall be revocable in writing at will and no such delegation shall prevent the exercise of any power or function by the Minister or an authorized officer.

53 Powers of Minister, authorized officers and Boards The Minister or any authorized officer and (within the area of its jurisdiction) each Board shall have and may exercise such powers and functions as are conferred upon him or it by this Part.

* * * * *

55 Indemnity No matter or thing done by the Minister or any Board or by any officer or inspector or any other person whomsoever acting under the authority or instruction of the Minister or of any Board or of this Part shall if the matter or thing was done bona fide for the purposes of executing this Part subject any of them personally to any action, liability, claim or demand whatsoever.

Subdivision 2—Fair rents

Statement of Fair Rents

56 Fair rents of premises to continue (1) The fair rent of any prescribed premises or of any

prescribed premises together with goods leased therewith in force immediately before the

No. 6098 s. 13.

S. 54 repealed by No. 9514 s. 154(d).

No. 6098 s. 15. S. 55 amended by No. 6505 s. 2.

s. 53

No. 6098 s. 16.



40

commencement of this Act under the Acts previously in force shall under this Part continue to be the fair rent of the prescribed premises or of the prescribed premises together with goods (as the case requires) until altered in accordance with this Part, and notwithstanding any term or covenant in any lease in force after the said commencement the rent payable in respect of the prescribed premises shall not exceed the fair rent of the premises under this Part.

(2) Where after the commencement of this Act—

(a) the application of this Part is declared by Order of the Governor in Council pursuant to subsection (1) of section forty-four of this Act to extend to any particular premises; or

(b) any particular premises are declared by Order of the Governor in Council pursuant to subsection (1) of section forty-five of this Act to be special premises for the purposes of this Act—

then the rent or other consideration payable under the lease licence contract agreement or arrangement for occupation in force immediately before the publication of the Order or (where no such lease licence contract agreement or arrangement was in force at that time) under the lease licence contract agreement or arrangement last in force before that time in respect of the specified premises or, in the case of special premises, in respect of the occupation or use of the specified premises or a part thereof, including any consideration payable for any services provided or supplied, shall under this Part be the fair rent of the premises or of that part of the premises (as the case requires) until altered in accordance with this Part, and notwithstanding any term or covenant in any lease contract

S. 56(2) amended by No. 6828 s. 7(2).

s. 56



41

agreement or arrangement the rent payable shall not exceed the fair rent of the premises under this Part.

(3) The fair rent of any prescribed premises shall not be altered except—

(a) by a determination of the appropriate Board as hereinafter provided;

(b) by an agreement in writing signed by the lessor and the lessee pursuant to and in accordance with one of the following provisions of this Division; or

(c) by service by the lessor on the lessee of a notice in writing requiring pursuant to and in accordance with one of the following provisions of this Division an increase in the rent of the premises.

Determination of Fair Rents by Board

57 Applications for fixing of fair rents The lessor of any prescribed premises or a lessee thereof who has paid or has offered (either to the lessor personally or to the person to whom the rent is ordinarily paid) the money payable for all rent due and payable under the lease up to a date not earlier than twenty-eight days before the date of the application may apply in writing to the appropriate Board to have the fair rent of the premises determined by the Board.

58 Notice of application (1) The applicant shall give at least seven days notice

in writing of the time date and place of the hearing of the application to the lessor or lessee (as the case may be) of the prescribed premises.

No. 6098 s. 17.

s. 57

No. 6098 s. 18.



42

(2) Where an application is made by a mesne lessor or mesne lessee or by a sub-lessor or sub-lessee the lessor shall give at least seven days notice in writing of the time date and place of the hearing of the application to his superior lessor and such superior lessor shall be entitled to be a party to the application.

(3) Where a superior lessor to whom notice is given under the last preceding subsection or under this subsection is himself a lessee mesne lessee or sub-lessee the lessor shall give at least seven days notice in writing of the time date and place of the hearing of the application to his superior lessor and such superior lessor shall be entitled to be a party to the application.

(4) Where any prescribed premises in respect of which an application is made are the subject of a mortgage the lessor shall give at least seven days notice in writing of the time date and place of the hearing of the application to the mortgagee, who shall be entitled to be a party to the application.

59 Determination of application (1) Where an application has been made for the

determination of the fair rent of any prescribed premises a Board may after making such inquiries and obtaining such valuations and reports (if any) as it considers necessary and after considering any representations made by any person whose rights may be affected by the determination, determine the fair rent of the prescribed premises or refrain from making a determination.

(2) A Board shall not be bound by legal forms or solemnities or by any rules of evidence but may inform itself in such manner as it thinks fit.

No. 6098 s. 19.

s. 59



43

(3) Any person who is a party to any proceedings before a Board may with the approval of the Board be represented by an Australian legal practitioner (within the meaning of the Legal Profession Act 2004) or agent who may examine witnesses and address the Board on that person's behalf.

(4) (a) Except as provided in this subsection every determination of a Board shall be final and without appeal.

(b) There shall be an appeal, but only as to questions of law, to the Supreme Court from any determination of a Board.

60 Date of operation of determination (1) A determination of the fair rent of prescribed

premises made by the Board shall come or be deemed to have come into force on a date fixed by the Board, but the date so fixed shall not be earlier than the date on which the application in relation to that determination was received by the Board.

(2) After making any determination the Board shall give notice in writing thereof and of the date fixed as the date on which the determination shall come or be deemed to have come into force to the lessor and lessee and the lessor shall give similar notice to any other persons to whom notices are required to be given by any party under this Division.

61 Board may determine fair rent (1) A Board may of its own motion after inquiry

determine the fair rent of any prescribed premises notwithstanding the existence of any agreement with respect to the fair rent entered into pursuant to any provision of this Division.

(2) The Board shall give to the lessor and lessee of the prescribed premises notice of its intention to determine the fair rent of the premises, and the

S. 59(3) amended by Nos 35/1996 s. 453(Sch. 1 item 45), 18/2005 s. 18(Sch. 1 item 56).

No. 6098 s. 20.

S. 60(1) amended by No. 6623 s. 3, substituted by No. 8208 s. 10(a).

No. 6098 s. 21.

s. 60

S. 61(1) amended by No. 6599 s. 3.



44

notice so given to the lessor shall for the purposes of this Division be deemed to be an application by the lessor.

(3) In determining the fair rent of premises under this section the Board shall have the same powers as it has in connexion with an application, and any determination so made by the Board shall have the same effect for all purposes as a determination made upon an application.

(4) Without limiting or affecting the powers of a Board under the foregoing provisions of this section, where application is made to a Board for the determination of the fair rent of any premises in any of the circumstances referred to in section sixty-five of this Act the Board may of its own motion after serving notice of its intention so to do upon the sub-lessees concerned proceed to determine the fair rents under all or any of the sub-leases of any part or parts of the premises as well as determining the fair rent in respect of which the application is made.

62 Inspection and valuation of prescribed premises (1) A Board if it thinks fit may cause any prescribed

premises to be inspected in connexion with the determination of the fair rent of the premises and may cause any valuation of or report upon any such premises to be made and may take any such valuation or report into consideration.

(2) The Board shall permit any party to the proceedings in respect of which a valuation or report is made pursuant to subsection (1) to examine the valuation or the report.

(3) In connexion with the determination of the fair rent of any prescribed premises the Board on its own motion may, and if requested by any party to the proceedings shall, refer the question of the

No. 6098 s. 22. S. 62 amended by No. 8208 s. 11(a).

s. 62





45

valuation of the premises to the Valuer-General, and the valuation of the Valuer-General shall be binding on the Board as the valuation of the premises in relation to all matters concerning the said determination of the fair rent of the premises.

63 Costs not to be allowed No costs shall be allowed in any proceedings before a Board.

64 Matters to be considered in determining fair rent (1) In determining the fair rent of any premises each

Board shall have regard to—

(a) the appropriate capital value of the premises as hereinafter defined;

(b) the annual rates insurance premiums land tax and real estate agent's commission paid in respect of the premises;

(c) the estimated annual cost of repairs, maintenance and renewals of the premises and fixtures thereon;

(d) the estimated amount of annual depreciation in the value of the premises;

(e) the rents of comparable premises in the locality of the premises the subject of the application;

(f) the rate of interest charged upon overdrafts by the Commonwealth Trading Bank of Australia;

(g) any services provided by the lessor or lessee in connexion with the lease;

(h) any obligation on the part of the lessee to effect any improvements, alterations or repairs to the premises at his own expense;

No. 6098 s. 23.

No. 6098 s. 24.

s. 63



46

(i) the justice and merits of the case and the circumstances and conduct of the parties; and

(j) any hardship which would be caused to the lessor or lessee or any other person by the making of a determination increasing or reducing the fair rent of the premises, including (but without limiting the generality of the word "hardship") any loss which might be imposed upon the lessor by a determination fixing the fair rent of the premises at an amount less than the lessor's liability under a mortgage of, or contract of sale in respect of, the premises, or under a hire-purchase agreement or contract of sale in respect of any goods leased with the premises.

(2) In paragraph (a) of the last preceding subsection appropriate capital value means—

(a) in respect of any prescribed premises, being an ordinary dwelling—the capital value of the premises at the date of the application for determination of the fair rent;

* * * * *

(c) in respect of any prescribed premises, being business premises—the capital value of the premises at the date of the application for determination of the fair rent;

(d) in respect of any other prescribed premises—a capital value being the base value of the premises.

s. 64

S. 64(2)(a) amended by No. 6599 s. 4(a).

S. 64(2)(b) repealed by No. 6599 s. 4(b).

S. 64(2)(c) substituted by No. 6575 s. 2(2).



47

(3) In paragraph (e) of subsection (1) comparable premises, in respect of premises which are the subject of an application, means premises which are comparable if the premises the subject of the application were not prescribed premises.

(4) In determining whether financial hardship would be caused to the lessee by increasing the fair rent of any premises the Board may take into account the total earnings, income assets and liabilities of the lessee and the members of the family of the lessee ordinarily residing at the premises.

(5) For the purposes of making the determination referred to in subsection (3) the provisions of subsections (2), (3), (4) and (6) of section 107A shall with such modifications as are necessary extend and apply to this section, and, without affecting the generality of the foregoing, in particular with the modification that a reference relating to the suffering of financial hardship if the premises cease to be prescribed premises shall be construed as a reference relating to the suffering of financial hardship if the fair rent of the premises is increased.

* * * * *

* * * * *

Fixing Fair Rents by Notice

67 Power to lessor to require money for repairs (1) Where pursuant to any Act or to any regulation or

by-law under any Act the lessor of any prescribed premises is required by any statutory authority to carry out any repairs improvements or additions to

S. 64(3) repealed by No. 6599 s. 4(c), new s. 64(3) inserted by No. 8208 s. 15(2).

S. 64(4) inserted by No. 8208 s. 15(2), amended by No. 9514 s. 154(e).

S. 64(5) inserted by No. 8208 s. 15(2).

S. 65 repealed by No. 6599 s. 5.

S. 66 repealed by No. 6599 s. 6.

No. 6098 s. 27.

s. 67



48

those premises and the required repairs improvements or additions are completed to the satisfaction of the said authority, then, if the existing fair rent of the premises was fixed prior to carrying them out, the lessor may, subject to the express provisions of any written lease of the premises for a fixed term which has not expired, by notice in writing served on the lessee require that after the expiration of one month from the service of the notice the rent payable in respect of the premises shall be increased to such an amount as is specified in the notice, not exceeding the sum of—

(a) the fair rent lawfully payable at the date of service of the notice; and

(b) an addition calculated at the rate of Eight per centum per annum upon the amount expended by the lessor in carrying out the said repairs improvements or additions (including the value of any work done for that purpose by the lessor himself or by any person on his behalf without remuneration)—

and subject to the following provisions of this section the amount so specified shall from the expiration of the said period of one month be the fair rent of the premises for all the purposes of this Part.

(2) Every such notice shall be accompanied by a copy of the completion certificate hereinafter referred to and copies of the receipts for the relevant expenditure (including, where applicable, an account of the value of any work done by the lessor or by any person on his behalf without remuneration) and a statement of the place at which and the reasonable days and hours during

s. 67



49

which the originals thereof will be open to inspection on demand.

(3) If within the said period of one month a reasonable demand is made either verbally or by writing to the lessor by or on behalf of the lessee for production of the said certificate and receipts for inspection at the place and within the times stated in the notice and the said certificate and receipts are not duly produced for inspection, the provisions of subsection (1) of this section shall not apply in respect of the notice given as aforesaid.

(4) For the purposes of this section—

(a) statutory authority includes—

(i) any Minister or other officer of the Crown;

(ii) any municipal council; and

(iii) any body corporate established by or under any Act for any public purpose;

(b) completion certificate means a certificate purporting to be signed by—

(i) the Minister or officer in question;

(ii) a person on behalf of the municipal council in question; or

S. 67(4)(a)(ii) amended by No. 12/1989 s. 4(1)(Sch. 2 item 67.2).

s. 67

S. 67(4)(b)(ii) substituted by No. 12/1989 s. 4(1)(Sch. 2 item 67.3), amended by No. 74/2000 s. 3(Sch. 1 item 69.2).



50

(iii) a member or officer of the body corporate in question—

certifying that the required repairs improvements or additions have been completed to the satisfaction of the statutory authority; and

(c) such a completion certificate shall be prima facie evidence of the matters contained therein.

(5) Any lessee who is aggrieved by any notice served pursuant to this section may within fourteen days after service of the notice appeal therefrom to the appropriate Board by writing in the prescribed form served on the lessor and the Board.

(6) Such an appeal shall not stay the operation of the notice.

(7) On the hearing of the appeal the Board may—

(a) determine the appeal and confirm or quash the notice or fix the amount of the rent which may be required to be paid pursuant to this section and for that purpose may disallow any amount of expenditure which it deems excessive and may determine the value of any work done by the lessor or by any other person on his behalf without remuneration; or

(b) if it considers it more equitable or convenient to do so, treat the appeal as an application for the determination of the fair rent of the premises and proceed to determine the fair rent accordingly without regard to the provisions of this section.

(8) Where the Board quashes the notice or fixes the amount of the rent which may be required to be paid pursuant to this section at an amount lower than that stated in the notice, any amount which

s. 67



51

has been paid in the meantime in excess of the rent so fixed shall be regarded as rent paid in excess of the fair rent and may be recovered pursuant to section seventy-two of this Act.

(9) Any person who knowingly serves with any notice given pursuant to this section any copy of any certificate or receipt which is false or misleading in any material particular or who forges any certificate or receipt or utters any forged certificate or receipt shall, without prejudice to proceedings for any other offence for which he may be liable, be guilty of an offence against this Part and liable to punishment accordingly.

* * * * *

Fixing Fair Rents by Agreement

68 Fixing fair rent by agreement (1) Where an agreement in writing in the prescribed

form is entered into by the lessor and the lessee of any prescribed premises, being an ordinary dwelling or business premises, the amount specified in that behalf in the agreement shall be for all purposes the fair rent of the premises as from the day specified in that behalf therein (not being earlier than the day on which the agreement is entered into) and no further proceedings for the determination of the fair rent of those premises by a Board except on the ground referred to in paragraph (b) or paragraph (c) of subsection (1) of section seventy-three of this Act shall be commenced by either of the parties to the agreement during the period specified in that behalf in the agreement or, if no such period is

S. 67A inserted by No. 9514 s. 155, repealed by No. 9786 s. 2(2).

No. 6098 s. 28. S. 68 amended by No. 6599 s. 7(a)(b).

s. 68



52

specified, during the period of six months next after the day from which the fair rent is altered by the agreement.

(2) Where an agreement is entered into pursuant to the last preceding subsection the lessor shall within one month after the day on which it is entered into lodge with or send by registered post to the appropriate Board an executed copy of the agreement.

(3) Any lessor who fails to comply with the last preceding subsection shall be guilty of an offence against this Part but any such failure shall not invalidate or affect the agreement.

(4) A copy of any agreement received by the Board pursuant to this section shall in any later proceedings under this Part be admissible as evidence of the making and content of the agreement.

69 Fixing fair rent of premises following alterations Where substantial alterations or additions are made—

(a) to any prescribed premises other than those referred to in the last preceding section; or

(b) (if the lease provides for the use of any goods in connexion with the letting of the premises) to the goods—

then, if the existing fair rent of the premises was fixed prior to the making of those alterations or additions, the lessor and the lessee may make an agreement in writing with respect to the rent of the premises, and where such an agreement is made the amount specified in that behalf in the agreement shall for all purposes be the fair rent of the premises as from the date specified in that behalf therein (not being earlier than the day on which the agreement is entered into) and no

S. 68(2) inserted by No. 6599 s. 7(c), amended by No. 9514 s. 154(f).

S. 68(3) inserted by No. 6599 s. 7(c).

S. 68(4) inserted by No. 6599 s. 7(c).

No. 6098 s. 29.

s. 69



53

further proceedings for the determination of the fair rent of those premises by a Board, except on the ground referred to in paragraph (b) or paragraph (c) of subsection (1) of section seventy-three of this Act shall be commenced by either of the parties to the agreement during the period specified in that behalf in the agreement or, if no such period is specified, during the period of six months next after the day from which the fair rent is altered by the agreement.

Period for Payment of Rent

70 Period for which fair rent may be fixed Any determination agreement or notice under this Part fixing the fair rent of any prescribed premises may fix the rent to be so payable at an amount payable for every week, month, or other period.

Effect of Fixing Fair Rent

71 Effect of fixing fair rent (1) Where the fair rent of any prescribed premises has

been or is fixed by or pursuant to this Part then until it is again fixed pursuant to this Part and notwithstanding any alterations additions repairs or renovations to the premises whether structural or otherwise or any change of ownership or tenancy of the premises or in the nature or value of the services supplied by the lessor or in the goods leased with the premises, the fair rent so fixed as aforesaid shall while the premises remain prescribed premises be the rent payable in respect of the premises unless—

(a) any lesser rent is stipulated by the terms of any existing written lease for a fixed term which has not expired; or

No. 6098 s. 30.

No. 6098 s. 31.

s. 70



54

(b) the lessor agrees to the payment of any lesser rent.

(2) Any amount by which the rent charged in respect of the premises is in excess of the fair rent fixed as aforesaid shall, notwithstanding any agreement to the contrary, be irrecoverable by the lessor.

72 Recovery of overpaid rent Where any sum has been paid on account of any rent, being a sum which by virtue of this Part would have been irrecoverable by the lessor, the sum so paid shall be recoverable as a debt in any court of competent jurisdiction from the lessor who received the payment by the lessee by whom it was paid, and may, without prejudice to any other method of recovery, be deducted by that lessee from any rent payable by him to such lessor within six months after the date of the payment.

73 Time for applications to fix rent after determinations

(1) If the fair rent of any prescribed premises has been fixed by a determination (whether before or after the commencement of this Act) no further proceedings under this Part for the determination of the rent of those premises by a Board shall be commenced until after a period of six months from the time the fair rent was fixed as aforesaid except on the ground that—

(a) by an error or omission, an injustice has been occasioned by the determination fixing the fair rent;

(b) since the determination fixing the fair rent came into force, substantial alterations or additions have been made to the premises or, if the lease provides for the use of any goods in connexion with the letting of the premises, to the goods; or

No. 6098 s. 32.

No. 6098 s. 33.

s. 72



55

(c) since the determination fixing the fair rent came into force, the accommodation provided in the premises has been materially deceased or, if the lease provides for the use of goods in connexion with the letting of the premises, the goods to be so used have been substantially decreased.

(2) The foregoing subsection shall not apply where the fair rent of any premises was last fixed by service of a notice or by agreement pursuant to this Part or the Acts previously in force.

(3) Any proceedings for the determination by the Board of the fair rent of any premises the rent of which has been previously fixed by or pursuant to this Part or the Acts previously in force shall be had and determined in the manner provided by this Part as if the rent has not been so previously fixed.

Extension of Application of Division

74 Lease of premises together with goods (1) This Division shall extend and apply in relation to

prescribed premises together with goods leased therewith and any reference in this Division to prescribed premises shall so far as applicable, include a reference to prescribed premises together with goods leased therewith.

(2) In the case of prescribed premises which are leased together with goods, a Board may fix the fair rent of the premises irrespective of the goods or may, in its discretion, fix the fair rent of the premises together with the goods leased therewith.

No. 6098 s. 34.

s. 74



56

Subdivision 3—General

75 Penalty for demanding excess rent (1) Any person who, whether as principal or agent or

in any other capacity, in any rent book or similar document wilfully makes any entry showing or purporting to show any lessee as being in arrear in respect of any sum which by virtue of this Division is irrecoverable, shall be guilty of an offence against this Part.

(2) Any person who, whether as principal or agent in any other capacity, wilfully demands or wilfully receives as rent in respect of any prescribed premises any sum which by virtue of this Division is irrecoverable, shall be guilty of an offence against this Part.

(3) Any person who is knowingly a party to any contract or arrangement under which any sum is paid or agreed to be paid to that person as rent for any prescribed premises shall, if that sum is by virtue of this Division irrecoverable, be guilty of an offence against this Part.

76 Record of rents (1) Any lessor of any prescribed premises who fails,

by himself or his agent, to keep or cause to be kept a record showing the rent received in respect of those premises shall be guilty of an offence against this Part.

(2) Any lessor of any prescribed premises or any agent of any such lessor who wilfully makes or wilfully allows to be retained, in any record showing the rent of those premises, any entry which is false in a material particular shall be guilty of an offence against this Part.

No. 6098 s. 35.

No. 6098 s. 36.

s. 75



57

77 Certain payments prohibited (1) A person shall not, whether as principal or agent

or in any other capacity require give or receive, or offer promise or agree to give or receive, any bonus premium or sum of money (other than rent) in consideration of or in association with—

(a) the assignment or transfer of any lease of;

(b) any agreement for assignment or transfer of a lease of; or

(c) the consenting to a sub-lease of—

any prescribed premises except with the consent of the authorized officer.

(2) Any sum paid in contravention of this section may be recovered by the person who paid it from the person to whom it was paid in an action for debt in any court of competent jurisdiction, or, if the person to whom it was paid is the lessor, may, without prejudice to any other method of recovery, be deducted by the lessee from any rent payable by him to the lessor within six months after the date of the payment.

(3) Nothing in the foregoing provisions of this section shall apply or be deemed ever to have applied to any payment or offer of payment referred to in section ninety or paragraph (f) of subsection (1) of section ninety-three of this Act.

78 Supply of particulars as to rent of premises Upon application in writing describing any premises, and upon payment of a fee of Ten cents ($0.10), the authorized officer shall give or send by post to the person so applying a statement in writing as to whether any determination fixing the fair rent of the premises is in force and the amount and other particulars of such rent.

No. 6098 s. 37.

No. 6098 s. 38.

s. 77



58

79 Effect on guarantee of fixing rent If the payment of the rent of any prescribed premises is guaranteed and subsequently to the giving of the guarantee the fair rent of the premises is fixed under this Part, then, if the rent so fixed is less than the amount so guaranteed, the guarantee shall be construed as if the amount guaranteed to be paid was the amount fixed as the fair rent under this Part; but in any other case the fixing of the fair rent under this Part shall not affect the guarantee.

80 Certificate as to rent (1) In any proceedings before any court, a certificate

by the person constituting a Board that, in respect of a period specified in the certificate, the fair rent of any prescribed premises was fixed by a determination under this Part of the Acts previously in force, and specifying the amount thereof, shall be evidence of the matters certified to.

(2) Judicial notice shall be taken of the signature of the person signing any such certificate and of the fact that he is, or has been, the person constituting the relevant Board.

(3) A person constituting a Board may sign a certificate for the purposes of this section notwithstanding that the fair rent to which the certificate relates was fixed by the Commonwealth Rent Controller or by another person constituting a Board.

81 Proof of rent paid For the purposes of this Division a certificate, purporting to be signed by the town clerk or shire secretary or valuer of any municipality, to the effect that in the records of that municipality a rent specified in the certificate is shown as having

No. 6098 s. 39.

No. 6098 s. 40.

S. 80(1) amended by No. 9514 s. 154(g)(a).

S. 80(2) amended by No. 9514 s. 154(g)(a).

S. 80(3) amended by No. 9514 s. 154(g)(a)(b).

No. 6098 s. 41.

s. 79



59

been the rent of any specified premises at any specified date before or within one year after the thirty-first day of December One thousand nine hundred and forty shall be prima facie evidence—

(a) that the rent so specified was the rent payable in respect of the premises at the specified date; and

(b) (where that date is within twelve months before or after the thirty-first day of December One thousand nine hundred and forty) that the rent so specified was also the rent payable in respect of the premises at the said thirty-first day of December.

Division 3—Recovery of possession

Notices to Quit

82 Restrictions on eviction (1) Notwithstanding anything in this Act, except as

provided by this Division the lessor of any prescribed premises shall not give any notice to terminate the tenancy or take or continue any proceedings to recover possession of the premises from the lessee or for the ejectment of the lessee therefrom.

(2) A notice to quit given in contravention of this section shall not operate so as to terminate the tenancy in respect of which the notice was given.

(3) Subject to this Division, a lessor may apply to the Tribunal for an order for the recovery by him of any prescribed premises (or of any goods leased therewith) or for the ejectment of the lessee therefrom if the lessor, before making the application, has given to the lessee, upon one or more of the prescribed grounds but upon no other ground, notice to quit in writing for a period

No. 6098 s. 42.

s. 82

S. 82(3) amended by No. 101/1998 s. 26(4)(a)(b).



60

determined in accordance with the next succeeding section, and that period of notice has expired.

(3A) For the purposes of an application under subsection (3), the Tribunal may exercise any powers conferred on it by Part 11 of the Residential Tenancies Act 1997 to the extent that those powers are consistent with this Division.

* * * * *

(4) Service of the notice to quit may, without prejudice to any other mode of service, be effected—

(a) by delivering the notice to some person apparently over the age of sixteen years and apparently residing in or in occupation of the premises;

(b) by delivering the notice to the person by whom the rent of the premises is customarily paid; or

(c) by substituted service in accordance with an order of the Tribunal—

and service of the notice in any manner authorized by this subsection shall, notwithstanding that the lessee has died and that probate of his will or

S. 82(3A) inserted by No. 9786 s. 4(a), amended by No. 109/1997 s. 533(Sch. 2 item 6.2), substituted by No. 101/1998 s. 26(5).

S. 82(3B) inserted by No. 9786 s. 4(a), repealed by No. 101/1998 s. 26(6)(a).

s. 82

S. 82(4)(c) amended by Nos 6505 s. 2, 8731 s. 173, 9786 s. 4(b), 57/1989 s. 3(Sch. item 112.14(a)), substituted by No. 101/1998 s. 26(6)(b).



61

letters of administration of his estate have not been granted, be effective for all the purposes of this Part.

* * * * *

(6) The prescribed grounds shall be—

(a) that the lessee has failed to pay the rent in respect of a period of not less than twenty-eight days;

(b) that the lessee has failed to perform or observe some other term or condition of the lease and the performance or observance of that other term or condition has not been waived or excused by the lessor: Provided that notice in writing specifying the breach of such performance or observance has been served on the lessee and the lessee for a period of not less than fourteen clear days has failed to remedy such breach;

(c) that the lessee has failed to take reasonable care of the premises or of any goods leased therewith or has committed waste;

(d) that the lessee or any person residing in or visiting the premises has been guilty of conduct which is a nuisance or annoyance to adjoining or neighbouring occupiers;

(e) that the lessee or any other person has been convicted during the currency of the lease of any offence arising out of the use of the premises for any illegal purpose or that a

S. 82(5) amended by Nos 8731 s. 173, 9786 s. 4(c), 57/1989 s. 3(Sch. item 112.14(b)(i)(ii)), repealed by No. 101/1998 s. 26(6)(a).

S. 82(6)(a) amended by Nos 6599 s. 8, 8208 s. 12(a).

s. 82



62

court has found or declared that the premises have during the currency of the lease been used for some illegal purpose;

(f) that the lessee has given notice of his intention to vacate the premises or has signified in writing his willingness to vacate the premises when required to do so and, in consequence of that notice or signification, the lessor has agreed to sell or let the premises or has taken any other steps as a result of which he would be seriously prejudiced if he could not obtain possession;

(g) that the premises—

(i) being a dwelling-house—are or within twelve months after service of the notice to quit will be reasonably required by the lessor for occupation by himself, or by his son, daughter, mother, father, brother or sister, or by some person who ordinarily resides with and is wholly or partly dependent upon him; or

(ii) being business premises—are or within twelve months after service of the notice to quit will be reasonably required for occupation by the lessor or by a person associated or connected with the lessor in his trade, profession, calling or occupation;

(h) that the premises are used as, or have been acquired for use as, a parsonage, vicarage, presbytery or other like premises and are reasonably required for the personal occupation of a minister of religion (including a person who, although not ordained, is performing all the duties of a minister of religion);

s. 82



63

(i) that the lessor is a trustee or personal representative and the premises are or within twelve months after service of the notice to quit will be reasonably required by a beneficiary under the trust or in the estate (as the case may be) for his personal occupation or the occupation of his son, daughter, mother, father, brother or sister, or for the occupation of some person who ordinarily resides with and is wholly or partly dependent upon him;

(j) that the lessor is a personal representative or trustee of a deceased's estate, that the gross value of the premises constitutes not less than half the gross value of the estate of which it forms part and that vacant possession of the premises is required in order that a trust for sale may be properly carried out;

(k) that the lessor is a person, body or authority carrying on—

(i) an institution, being a hospital, after-care home, home for the aged or infirm, crèche or kindergarten; or

(ii) a school, college or other educational establishment—

or a trustee for such a person, body or authority, and the use of the premises is reasonably required for the purposes of the institution or establishment (including the accommodation of the staff of the institution or establishment);

(l) that the premises, being a dwelling-house, have been occupied, or are occupied, in consequence of his employment by some person in the employ of the lessor and are

s. 82



64

reasonably required for the personal occupation for residential purposes in consequence of his employment of some other person employed by, or about to become employed by, the lessor;

(m) that the premises, being a dwelling-house situated on or in close proximity to any grazing area, farm, orchard, market garden, dairy farm, poultry farm, pig farm or bee farm belonging to or carried on by the lessor are reasonably required for the personal occupation for residential purposes of a person who is employed by, or about to be employed by, or who has entered into or is about to enter into a share-farming agreement with, the lessor in connexion with the carrying out of operations on the said area, farm, orchard or garden;

(n) that the lessor has agreed to sell the premises by an agreement which requires the purchaser to pay not less than one-fourth of the whole purchase money within twelve months from the date thereof and by which the purchaser is entitled to vacant possession of the premises and the premises—

(i) being a dwelling-house—are or within the said period of twelve months will be reasonably required by the purchaser for occupation by himself or by his son, daughter, father, mother, brother or sister, or by some person who ordinarily resides with and is wholly or partly dependent upon him; or

(ii) being business premises—are or within the said period of twelve months will be reasonably required for occupation by the purchaser or by a person

s. 82



65

associated or connected with the purchaser in his trade, profession, calling or occupation;

(o) that the premises are reasonably required by the lessor for reconstruction, demolition or removal;

(p) that the lessee has become the lessee of the premises by virtue of an assignment or transfer which has not either expressly or by implication been consented to or approved by the lessor;

(q) that the lessee has sub-let the premises or some part thereof by a sub-lease which has not either expressly or by implication been consented to or approved by the lessor;

(r) that the premises, being shared accommodation, are required by the lessor and—

(i) at the time of giving the notice to quit and during the period of twelve months immediately prior thereto the lessor has resided in the dwelling-house of which the shared accommodation forms part; and

(ii) at the time of giving such notice and during the said period of twelve months not more than one lease of shared accommodation in that dwelling-house has been in force at any one time;

(s) where the premises are a dwelling-house, that the lessee without just cause or excuse and without the consent of the lessor (which consent has not been unreasonably withheld) at the date of the giving of notice to quit is not residing and during the period of three months or more immediately before that date

s. 82



66

has not resided in the premises or any part thereof;

(t) where the premises are a dwelling-house (not including premises leased to the lessee as an apartment-house) that the lessee by the sub-letting of the premises or parts of the premises is receiving from the sub-lessee or sub-lessees a rent of or rents aggregating an amount which exceeds the rent paid by the lessee to the lessor by more than One hundred per centum;

(u) that the premises are a garage (not ordinarily used for residence) within the curtilage of a dwelling-house not leased to the lessee, and that the lessor requires possession of the garage in order that the dwelling-house together with the garage may be occupied by him or leased to a lessee or sold with vacant possession;

(v) that the premises being a dwelling-house, are owned by the lessor, being a man of or over the age of sixty-five years or a woman of or over the age of sixty years, that the lessor's income if he is living alone does not exceed a rate of $1,300 per annum or if he is living with his partner does not together with that of his partner exceed a rate of $2,600 per annum, that neither the lessor nor his partner, if living with him, owns any other dwelling-house in Victoria (exclusive of the dwelling-house in which he resides), and that the premises are required for sale with vacant possession;

(w) that the lessee of the premises (being premises which immediately before the commencement of the Landlord and Tenant (Control) Act 1957 were business

S. 82(6)(v) amended by Nos 6575 s. 3(1)(a)(b), 6828 s. 8(1), 8208 s. 12(b)(i)(ii), 27/2001 s. 3(Sch. 1 item 7.3).

s. 82



67

premises) has since the said commencement without the express or implied consent of the lessor used the premises or some part thereof for the purpose of residence or caused permitted or suffered the premises or some part thereof to be used by any person for the purpose of residence;

(x) where the premises are a dwelling-house, that the financial circumstances of the lessee are such that he could without undue financial hardship purchase or lease other adequate and suitable premises for the purpose of residence at a purchase price or rent based on current property values; or

(y) where the premises are a dwelling-house, that the lessee has other adequate and suitable premises presently available for his occupation for residential purposes.

(7) In the last preceding subsection, unless the contrary intention appears, lessor includes, where there is more than one lessor, any one or more of the lessors, and lessee includes, where there is more than one lessee, any one or more of the lessees.

(8) Notice to quit on a ground specified in paragraph (p) or (q) of subsection (6) of this section shall not be given—

(a) unless the assignment transfer or sub-lease was in breach of a covenant or condition of the lease; or

(b) (where it was not in breach of such a covenant or condition) unless the assignment or transfer was made or the sub-lease granted on or after the fourteenth day of March One thousand nine hundred and forty-seven; and

s. 82



68

(i) (in the case of a lease for a fixed term) the term of the lease; or

(ii) (in the case of a periodic lease) the period current at the date of the assignment transfer or sub-lease—

has expired.

83 Period of notice to quit (1) Except as is otherwise expressly provided, the

period for which notice to quit shall be given shall be not less than seven days, together with an additional seven days for each completed period of six months of occupation.

(2) Nothing in the last preceding subsection shall—

(a) require the giving of notice to quit for—

(i) a period exceeding fourteen days if the notice is given on any ground specified in paragraphs (c), (d), (e) or (f) of subsection (6) of the last preceding section and not on any other ground;

(ii) a period exceeding thirty days if the notice is given on any other ground; or

(iii) in the case of shared accommodation—a period exceeding fourteen days; and

(b) allow the giving of notice to quit for a period shorter than the period which, but for this section, would be required.

(3) Notwithstanding anything in the foregoing provisions of this section the period for which notice to quit shall be given shall be two months where the notice is given on the ground specified in paragraph (r) of subsection (6) of the last preceding section.

No. 6098 s. 43.

s. 83



69

84 Notice to quit not to be given on certain grounds A lessor shall not, after the lessee has made an application for a determination, or after he has received from a Board notice of its intention to determine the fair rent of its own motion or after an agreement with respect to the fair rent has been entered into pursuant to any provision of Division two of this Part except with the consent of the Board, give a notice to quit on any ground specified in paragraph (g), (h), (i), (j), (k), (l), (m), (n), (o), (r), or (x) of subsection (6) of section eighty-two of this Act until after the expiration of six months after the making of a determination on the application or in pursuance of the notice or the day specified in the agreement for the alteration of the fair rent (as the case may be) but if a determination has not been made within a period of six months after the date of the application, or (if no application has been made) within a period of six months after receipt of the notice of intention, as the case may be, such a notice to quit may be given after the expiration of that period.

85 Notice to quit where dwelling-house sold (1) A person who becomes the lessor of prescribed

premises, being a dwelling-house, by purchase transfer or assignment thereof or of a lease thereof or by the grant of a lease thereof concurrent with the existing lease or a person claiming or deriving title under or through a person who becomes the lessor in any such manner shall not, within a period of twelve months after the date of the agreement for the purchase transfer or assignment thereof or of the lease thereof or of the grant of the concurrent lease (as the case requires), give a notice to quit on the ground specified in paragraph (g) of subsection (6) of section eighty-two of this Act to any person who was a lessee of the prescribed premises at the date of the

No. 6098 s. 44. S. 84 amended by No. 6599 s. 9(a)(b).

No. 6098 s. 45.

s. 84



70

agreement for the purchase transfer or assignment thereof or the lease thereof or of the grant of the concurrent lease (as the case requires).

(2) A lessor of prescribed premises, being a dwelling-house, shall not give a notice to quit on the ground specified in paragraph (n) of subsection (6) of section eighty-two of this Act to any person who was a lessee of the prescribed premises at the date of the agreement referred to in that paragraph within a period of twelve months after the date of the agreement.

86 Notice to specify grounds (1) A notice to quit shall specify the ground relied

upon and shall give the particulars thereof and, except as is provided in subsection (2) of this section, in the proceedings the lessor shall not be entitled to rely upon any ground not so specified or of which particulars are not so given.

(2) The Tribunal may, if it thinks it proper in the circumstances of any case, allow the lessor to rely on any prescribed ground which was not specified or particulars of which were not given in the notice to quit, and in any such case the Tribunal may order the lessor to pay any costs of the lessee which in the opinion of the Tribunal have been or may be occasioned to the lessee by the failure so to specify the ground or give particulars thereof in the notice to quit.

87 Notice to quit to terminate lease (1) A notice to quit given in accordance with the

provisions of section eighty-two of this Act shall, if the tenancy in respect of which the notice was given has not otherwise terminated, operate so as to terminate the tenancy of the premises at the expiration of the period specified in the notice, but nothing in the foregoing provisions of this section

No. 6098 s. 46.

S. 86(2) amended by No. 101/1998 s. 26(6)(c).

No. 6098 s. 47.

s. 86



71

shall operate so as to determine any tenancy before the date on which it would have terminated if this section had not been enacted.

(2) If in any proceedings the lessor is allowed to rely on any ground which was not specified or particulars of which were not given in the notice to quit and the Tribunal makes an order for recovery of possession of the premises on that ground, the order shall operate to terminate the tenancy of the lessee on that ground as from the date specified in that behalf in the order.

88 Notice to quit after failure of eviction proceedings (1) Where a lessor has taken proceedings in any court

or in the Tribunal to recover possession of any prescribed premises from the lessee or for the ejectment of the lessee therefrom and the court or the Tribunal has (whether before or after the commencement of this Act) refused to make an order in favour of the lessor, the lessor shall not give to the lessee any notice to quit (whether on the same ground as a previous notice to quit or on any other ground) within twelve months after the decision of the court or the Tribunal unless he has first obtained the leave of the Tribunal under this Division.

(2) Where the Tribunal refuses to make an order in favour of a lessor it may, at the same time, grant leave for the purposes of this section.

* * * * *

S. 87(2) amended by No. 101/1998 s. 26(6)(c).

No. 6098 s. 48.

s. 88

S. 88(1) amended by No. 101/1998 s. 26(6)(d) (i)–(iii).

S. 88(2) amended by No. 101/1998 s. 26(6)(e).

Heading preceding s. 89 repealed by No. 101/1998 s. 26(6)(f).



72

* * * * *

Barring and Avoiding Notice to Quit

90 Power to court to bar notices to quit The Magistrates' Court may, in respect of any prescribed premises being business premises or being a dwelling-house used in whole or in part by the lessee with the express or implied consent of the lessor for sub-letting for residential purposes, exercise all or any of the following powers, namely—

(a) on application made by the lessee who has become the lessee of the premises by virtue of a transfer or assignment, the court may order that a notice to quit upon the ground specified in paragraph (p) of subsection (6) of section eighty-two of this Act shall not be given in relation to that transfer or assignment;

(b) on application made by the lessee of the premises who has sub-let the premises, the court may order that a notice to quit on the ground specified in paragraph (q) of subsection (6) of section eighty-two of this Act shall not be given in relation to the sub-lease;

S. 89 amended by Nos 7876 s. 2(3), 9786 s. 4(d), 16/1986 s. 30, 57/1989 s. 3(Sch. item 112.15), repealed by No. 101/1998 s. 26(6)(g).

No. 6098 s. 50. S. 90 amended by Nos 16/1986 s. 30, 57/1989 s. 3(Sch. item 112.16).

s. 90



73

(c) on application made by the lessee of the premises who proposes to sub-let the premises or to transfer or assign the lease of the premises, the court may order that a notice to quit on the ground specified in paragraph (p) or paragraph (q) of subsection (6) of section eighty-two of this Act shall not, if the proposed sub-lease transfer or assignment is subsequently made or effected, be given in relation to the sub-lease transfer or assignment—

if the court is satisfied—

(i) that the lessor, having been requested to consent to or approve that transfer assignment or sub-lease or proposed transfer assignment or sub-lease, unreasonably refused or unreasonably withheld that consent or approval; and

(ii) that the lessor has not offered to pay to the lessee making the application a fair and reasonable price for the lease (including the goodwill of any business carried on by the lessee upon the premises)—

and any notice to quit given in contravention of an order made under this section shall be void and of no effect.

91 Power to court to declare certain notices void In any proceedings arising out of—

(a) an application by a lessor, consequent upon a notice to quit served upon the lessee, for the ejectment of any person from or the recovery of possession of any prescribed premises being business premises or being a dwelling-house used in whole or in part by the lessee with the express or implied consent of the

No. 6098 s. 51. S. 91 amended by Nos 7876 s. 2(3), 16/1986 s. 30, 57/1989 s. 3(Sch. item 112.17).

s. 91



74

lessor for sub-letting for residential purposes; or

(b) an application pursuant to this section by a lessee of any such premises on whom a notice to quit has been served—

the Magistrates' Court may, if satisfied—

(i) that the ground upon which the notice to quit purported to be served is not supported by the facts; or

(ii) that the notice was served for the purpose of depriving the tenant of any rights of assignment transfer or sub-letting which he possessed before the service thereof and without any reasonable expectation of ejecting the lessee or recovering possession of the premises—

order that the notice to quit be void and of no effect, and upon the making of any such order the rights and obligations of the parties shall be as if the notice to quit had never been served.

Proceedings for Recovery of Possession, &c.

92 Tribunal to consider hardship and alternative accommodation

(1) On the hearing of any application by a lessor for an order for the recovery of possession of any prescribed premises or for the ejectment of the lessee therefrom the Tribunal shall, subject to the following provisions of this Division, take into consideration in addition to all other relevant matters—


s. 92

S. 92(1) amended by No. 101/1998 s. 26(6)(h)(i)(ii).



75

(a) any hardship which would be caused to the lessee or any other person by the making of the order;

(b) any hardship which would be caused to the lessor or any other person by the refusal of the Tribunal to make the order; and

(c) where the application is made on any one or more of the grounds specified in paragraphs (g), (h), (i), (k), (l), (m), (n), (o) or (r) of subsection (6) of section eighty-two of this Act—whether reasonably suitable alternative accommodation in lieu of the prescribed premises is, or has been since the date upon which notice to quit was given, available for the occupation of the person occupying the prescribed premises or for the occupation of the lessor or other person by whom the prescribed premises would be occupied if the order were made—

and may, in its discretion, make the order or may, on such conditions (if any) as it thinks fit, refuse to make the order notwithstanding that one or more of the prescribed grounds has been established:

Provided that, where the lessee is a person in receipt of a total permanent incapacity pension or a blinded person's pension under the Commonwealth Act known as the Veterans' Entitlements Act 1986, and the total income of the lessee is less than the total income of the lessor an order shall not be made unless the Tribunal is satisfied that reasonably suitable alternative accommodation in lieu of the prescribed premises is so available as aforesaid.

S. 92(1)(b) amended by No. 101/1998 s. 26(6)(h)(ii).

s. 92

S. 92(1) Proviso amended by Nos 48/1987 s. 8(a), 101/1998 s. 26(6)(h)(ii).



76

(2) For the purposes of this section—

(a) in the consideration of the hardship which may be caused to a lessor or a lessee the Tribunal shall have special regard to any disabilities (whether physical, mental or financial) under which the lessor or lessee (as the case may be) suffers and which were caused by or as a result of or are consequent upon his war service;

(b) war service in the last preceding paragraph means service as a member of the Naval Military or Air Forces of the Commonwealth of Australia during any war, hostilities or assignment in which the Commonwealth or any unit or detachment or member of the said Forces with the sanction of the Commonwealth was or is engaged; and

(c) in determining whether alternative accommodation which is available to a lessee is reasonably suitable the Tribunal shall have regard to the nature of the tenure upon which the alternative accommodation is available, including the term of any proposed lease; and, without prejudice to the power of the Tribunal to regard a lease for a lesser term as reasonably suitable, in any case where a lease in writing for a term of not less than three years is available the alternative accommodation, so far as relates to tenure, shall be regarded as reasonably suitable:

Provided that, where the lessee is a person in receipt of a total permanent incapacity pension or a blinded person's pension under the Commonwealth Act known as the Veterans' Entitlements Act 1986, and the total income of the lessee is less than the total income of the lessor any alternative

S. 92(2)(a) amended by No. 101/1998 s. 26(6)(h)(ii).

S. 92(2)(c) amended by No. 101/1998 s. 26(6)(h)(ii).

s. 92

S. 92(2)(c) Proviso amended by No. 48/1987 s. 8(a).



77

accommodation which is available for his occupation shall not, so far as relates to tenure, be regarded as reasonably suitable unless a lease in writing thereof for a term of not less than five years is available to the lessee.

(3) Where the Tribunal has on any condition or conditions, refused to make an order, and upon application by the lessor the Tribunal is satisfied that the lessee has in some material way failed to observe any such condition, the Tribunal may in its discretion re-hear the original application having regard to that failure and to any other changed circumstances and if it thinks fit may make an order and such order shall for all purposes be deemed to be made pursuant to the original application.

(4) Where the application is made on either of the grounds specified in paragraphs (p) and (q) of subsection (6) of section eighty-two of this Act, the Tribunal shall not refuse in the exercise of the discretion vested in it by subsection (1) of this section, to make the order unless the Tribunal is satisfied—

(a) that special circumstances exist by reason of which the order should not be made; or

(b) without limiting the generality of the last preceding paragraph, in a case where the ground specified in the said paragraph (q) applies, that the sub-letting was in the course of a business of sub-letting carried on by the lessee and that the business was commenced or is carried on with the express or implied consent of the lessor.

S. 92(3) amended by No. 101/1998 s. 26(6)(h)(ii).


s. 92



78

(5) On the hearing of an application specified in the last preceding subsection, any assignee, sub-lessee or person in occupation of the prescribed premises or any part thereof, shall be entitled to be heard.

(6) Where the application is made on the ground specified in paragraph (o) of subsection (6) of section eighty-two of this Act in respect of premises being a dwelling-house the Tribunal, whether the notice to quit was served before or after the commencement of this Act, shall inquire into the purposes for which the re-constructed or re-built premises are intended to be used and unless the Tribunal is satisfied—

(a) that the re-constructed or re-built premises are intended to be used for residential purposes to at least the same extent as the premises in respect of which the application is made; or

(b) that special circumstances exist by reason of which the order ought to be made—

the Tribunal shall refuse to make the order.

(7) Where the application is made on the ground specified in paragraph (t) of subsection (6) of section eighty-two of this Act the Tribunal in the consideration of any hardship that may be caused to the lessee by the making of an order shall disregard the loss to the lessee of such part of the rents received by him from sub-lessees as in the opinion of the Tribunal represents an inequitable profit.


s. 92




79

93 Tribunal to disregard hardship and alternative accommodation in some cases

(1) The Tribunal shall not refuse to make an order under subsection (1) of the last preceding section by reason only of any of the matters referred to in paragraph (a) or paragraph (c) of or the proviso to that subsection in any of the following cases—

(a) where the application is made on the ground specified in paragraph (e), (f), (j), (v) or (w) of subsection (6) of section eighty-two of this Act;

(b) where the application is made on the ground specified in paragraph (l) or (m) of subsection (6) of section eighty-two of this Act and the Tribunal is satisfied that it is essential that the person for whose personal occupation the premises are sought should reside in those premises (being premises on or in close proximity to the premises where he is or will be employed or engaged) for the proper performance of the duties of his employment or the proper carrying out of the share-farming agreement;

(c) where the application is made on the ground specified in paragraph (r) of subsection (6) of section eighty-two of this Act and the Tribunal is satisfied that the lease of the shared accommodation to which the application relates was made after the first day of February One thousand nine hundred and fifty-four;

No. 6098 s. 53.

s. 93

S. 93(1) amended by No. 101/1998 s. 26(6)(i).

S. 93(1)(b) amended by No. 101/1998 s. 26(6)(i).

S. 93(1)(c) amended by No. 101/1998 s. 26(6)(i).



80

(d) where the application is made on the ground that the premises, being a dwelling-house, are reasonably required for occupation by the lessor, and the Tribunal is satisfied—

(i) that the lessor is a person of one of the following classes—

one of two partners who desire to live together in the dwelling-house in any case where either partner is receiving or, if they were living in the dwelling-house, would be entitled to receive an age pension under the Social Security Act 1991 of the Commonwealth or a service pension under section 84 of the Veterans' Entitlements Act 1986 of the Commonwealth;

one of two partners who desire to live together in the dwelling-house in any case where the joint income of the partners does not exceed a rate of $1820 per annum;

a surviving partner or a spouse living apart from the other spouse or a single person who is receiving or, if the person were living in the dwelling-house, would be entitled to receive an age pension or a service pension as aforesaid;

a surviving partner or a spouse living apart from the other spouse or a single person, whose age in the case of a man is not less than 65 years and in the case of a woman is not less than 60 years, and whose income does not exceed a rate of $910 per annum;

S. 93(1)(d) amended by No. 101/1998 s. 26(6)(i).

S. 93(1)(d)(i) amended by Nos 6575 s. 3(2)(a)(b), 6828 s. 8(2), 48/1987 s. 8(b)(i)(ii), substituted by No. 27/2001 s. 3(Sch. 1 item 7.4).

s. 93



81

a person in receipt of a total pension under the Social Security Act 1991 of the Commonwealth or a service pension under section 85 of the Veterans' Entitlements Act 1986 of the Commonwealth;

a person in receipt of a total permanent incapacity pension under the Veterans' Entitlements Act 1986 of the Commonwealth whose income, together with the income (if any) of the person's partner, if living with the person, from sources other than pensions or allowances under that Act, does not exceed a rate of $910 per annum; and

(ii) that neither the lessor nor his or her spouse, if living with him or her, owns any other dwelling-house in Victoria or has within the period of twelve months immediately prior to the giving of notice to quit owned any such dwelling-house;

(e) Where the application is made on the ground that the premises, being a dwelling-house or shared accommodation in a dwelling-house, are reasonably required by the lessor for occupation by himself, notwithstanding that the premises or any part or parts of the premises have been sublet by the lessee, and the Tribunal is satisfied—

(i) that neither the lessor nor his or her partner, if living with him or her—

owns any other dwelling-house in Victoria which is presently available for his or her occupation; or

s. 93

S. 93(1)(e) amended by No. 101/1998 s. 26(6)(i).

S. 93(1)(e)(i) amended by No. 27/2001 s. 3(Sch. 1 item 7.5(a)).



82

has within the period of twelve months immediately prior to the date of giving notice to quit owned such a dwelling-house;

(ii) that the lessor has been the owner of the dwelling-house for not less than five years immediately prior to the date of giving notice to quit;

(iii) that the lessee is not a protected person as hereinafter defined; and

(iv) that the lessor has given to the lessee notice to quit in accordance with the following scale, that is to say—

where the lessor has at the date of giving the said notice been the owner of the dwelling-house for more than five years but not more than ten years—nine months' notice;

where the lessor has at the date of giving the said notice been the owner of the dwelling-house for more than ten years—six months' notice;

(f) Where the application is made on the ground that the premises, being business premises, are reasonably required by the lessor for reconstruction demolition or removal and the Tribunal is satisfied—

(i) that the lessor bona fide intends—

to demolish or remove the existing premises and to build new premises on the site; or

s. 93

S. 93(1)(f) amended by No. 101/1998 s. 26(6)(i).



83

to reconstruct the premises by structural alterations involving the expenditure of a sum of not less than One hundred per centum of the capital value of the existing premises at the date of the application—

and has made or will be able to make suitable financial arrangements for that purpose; and

(ii) that the lessor either—

has given to the lessee not less than six months' notice to quit and has executed or will execute under seal an undertaking to lease to the lessee, in the premises when built or reconstructed as aforesaid, premises not less suitable, in nature and extent, for the lessee's purposes than those occupied by the lessee at the date of the notice to quit, and within such time and at such rent and on such terms as the Tribunal thinks reasonable; or

has given to the lessee not less than two years' notice to quit and has paid or will pay to the lessee a sum, determined by the Tribunal, equalling the aggregate of the amounts of rent paid in respect of the premises during the period of two years immediately before the date of application—

and any order made in a case to which this paragraph applies may be conditioned upon execution of such an

s. 93

S. 93(1)(f)(ii) amended by No. 101/1998 s. 26(6)(i).



84

undertaking or payment of the sum so determined (as the case may be).

(2) For the purposes of paragraph (e) of the last preceding subsection protected person means—

(a) a person—

(i) who is receiving from the Commonwealth of Australia a pension of an amount of not less than thirty per centum of the full pension payable at the relevant time as a total permanent incapacity pension under the Commonwealth Act known as the Repatriation Act 1920–1971 as amended from time to time; or

(ii) who is receiving from the Commonwealth of Australia under regulations made under the said Commonwealth Act medical attention or treatment of such a kind as wholly or to a major degree to prevent him from engaging in his occupation;

(b) a person who is wholly or mainly dependent upon a person referred to in paragraph (a); or

(c) a person who is wholly or mainly dependent for support on a pension payable to the person under the Commonwealth Act referred to in paragraph (a) as the surviving partner of a person who was a member of the Naval Military or Air Forces of the Commonwealth of Australia during any war, hostilities or assignment in which the Commonwealth or any unit or detachment or member of the said Forces with the sanction of the Commonwealth was or is engaged.

S. 93(2)(a)(i) amended by No. 8208 s. 13.

S. 93(2)(b) amended by No. 27/2001 s. 3(Sch. 1 item 7.5(b)).

S. 93(2)(c) amended by No. 27/2001 s. 3(Sch. 1 item 7.5(c)).

s. 93



85

(3) Any person who, having obtained an order for recovery of possession of or ejectment from any premises by virtue of the provisions of paragraph (f) of subsection (1) of this section fails, without just cause or excuse (the proof whereof shall lie on him), to pay any sum of money undertaken or directed to be paid by him pursuant to the said paragraph or to carry out any undertaking executed or directed to be executed by him pursuant to the said paragraph shall, without affecting or abating any civil liability which may arise from such failure, be guilty of an offence against this Part.

* * * * *

95 Power to stay proceedings or orders In respect of any proceedings referred to in section ninety two of this Act, the Tribunal may—

(a) from time to time, subject to such conditions (if any) and for such period as it thinks fit—

(i) adjourn the proceedings;

(ii) stay or suspend the execution of any judgment or order which has been made or given in the proceedings; or

(iii) postpone the date for recovery of possession or for ejectment specified in any such judgment or order; or

S. 94 amended by Nos 6575 s. 4, 6828 s. 9, 7876 s. 2(3), 8731 s. 173, 16/1986 s. 30, 57/1989 s. 3(Sch. item 112.18(a)(b)), repealed by No. 101/1998 s. 26(6)(j).

No. 6098 s. 55. S. 95 amended by No. 101/1998 s. 26(6)(k).

s. 95



86

(b) subject to such conditions (if any) as it thinks fit vary discharge or rescind any such judgment or order; or

(c) where a warrant of execution has been issued, and whether the warrant has expired or not, from time to time extend the period stated in the warrant for the execution thereof—

(i) if the Tribunal is satisfied that, because of the illness of the lessee or for other sufficient cause, it is or has been impracticable for the officer to whom the warrant is directed to execute the warrant within the period stated therein—for such period as it thinks fit; or

(ii) if the Tribunal is not so satisfied—for a period not exceeding seven days from the date on which the extension is granted.

96 Certain applications to operate as stay of execution (1) An application to stay or suspend the execution of

or to vary discharge or rescind any judgment or order referred to in the last preceding section, or to postpone the date for recovery of possession or for ejectment specified in any such judgment or order, shall, when filed with the principal registrar of the Tribunal, stay the execution of any warrant and operate to postpone the date for recovery of possession of the prescribed premises or for the ejectment of the lessee until the Tribunal has heard the application.

(2) Notwithstanding anything contained in paragraph (c) of the last preceding section, the Tribunal may, on the hearing of any such application, extend for such period as it thinks fit

S. 95(c)(i) amended by No. 101/1998 s. 26(6)(k).

S. 95(c)(ii) amended by No. 101/1998 s. 26(6)(k).

No. 6098 s. 56.

s. 96

S. 96(1) amended by No. 101/1998 s. 26(6)(l)(i)(ii).

S. 96(2) amended by No. 101/1998 s. 26(6)(l)(iii).



87

the period stated in any warrant for the execution thereof (whether the warrant has expired or not).

(3) Where, in respect of any proceedings referred to in section ninety-two of this Act, the Tribunal has refused to grant an application of any of the kinds referred to in subsection (1) of this section no further application of any of those kinds shall be made in respect of those proceedings except with the leave of the Tribunal.

* * * * *

* * * * *

99 Ejectment orders not enforceable Notwithstanding anything in any Act no order (other than the corresponding provisions of the Acts previously in force) made by any court for the recovery by the lessor of possession of any prescribed premises (or of any goods leased therewith) or for the ejectment of the lessee therefrom shall be enforceable.

100 Tribunal may order compensation for misrepresentation

Where a lessor has obtained an order for the recovery of possession of any prescribed premises or for the ejectment therefrom of a lessee and it is subsequently proved that the order was obtained by a fraudulent representation or the concealment of material facts, the Tribunal may order the lessor to pay to the former lessee such sum as appears to the Tribunal to be sufficient as compensation for damage or loss sustained by the lessee as a result

S. 96(3) amended by No. 101/1998 s. 26(6)(l)(iii).

S. 97 repealed by No. 110/1986 s. 140(2).

S. 98 repealed by No. 101/1998 s. 26(6)(m).

No. 6098 s. 59. S. 99 amended by No. 101/1998 s. 26(6)(n).

s. 99

No. 6098 s. 60. S. 100 amended by No. 101/1998 s. 26(6)(o) (i)–(iii).



88

of the order, and the like proceedings may be taken upon the order as if the order had been a order of the Tribunal in favour of the former lessee.

101 Premises not to be sold or re-let etc. in certain cases (1) If a notice to quit is given on any of the grounds

specified in paragraphs (g), (h), (i), (k), (l) or (m) of subsection (6) of section eighty-two of this Act and the premises in respect of which the notice is given are vacated in accordance with or as a result of or consequent upon the notice or if an order for the recovery of possession of the premises or for the ejectment therefrom of the lessee is made on any such ground, a person shall not, without the consent of the appropriate court or tribunal—

(a) again lease or sell or agree to lease or sell the premises; or

(b) (where the premises were used by the lessee for purposes of residence therein immediately prior to his vacating the premises or to the making of the order) use the premises or permit the premises to be used for any purpose other than residence—

until after the expiration of a period of three years immediately succeeding the date on which the premises were vacated, possession of the premises was recovered, or the ejectment effected.

(2) Nothing in the last preceding subsection shall prevent—

(a) the letting of any portion of the prescribed premises which is not reasonably required by the lessor or purchaser, as the case may be, but so that the total rent obtained is not greater than a reasonable rent for the whole of the premises less a reasonable deduction for the portion of the premises not so let; or

No. 6098 s. 61.

s. 101

S. 101(1) amended by No. 101/1998 s. 26(6)(p)(i).



89

(b) where notice to quit has been given on the ground specified in paragraphs (h), (i), (l) or (m) the letting of the premises—

(i) to a minister of religion;

(ii) to a beneficiary under the trust or in the estate; or

(iii) to some person who is in the employ of or about to become an employee of or who has entered into or is about to enter into a share-farming agreement with, the lessor in consequence of that employment or agreement—

respectively.

(3) A transaction entered into in contravention of subsection (1) of this section shall not thereby be invalidated, but nothing in this subsection shall affect the liability of any person to any penalty in respect of any contravention of that subsection.

(4) In this section, the appropriate court or tribunal means—

(a) where an order has been made by the Tribunal for the recovery of possession of the premises or for the ejectment therefrom of the lessee—the Tribunal; and

(b) in any other case—the Magistrates' Court.

s. 101

S. 101(2)(b)(iii) amended by No. 74/2000 s. 3(Sch. 1 item 69.3).

S. 101(4) amended by No. 101/1998 s. 26(6)(p)(ii).

S. 101(4)(a) amended by No. 101/1998 s. 26(6)(p)(iii) (iv).

S. 101(4)(b) amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 112.19).



90

* * * * *

103 Acceptance of rent not to waive notice to quit Where notice to quit any prescribed premises has been given, whether before or after the commencement of this Act—

(a) any demand by the lessor for payment of rent, or of any sum of money as rent, in respect of any period within six months after the giving of the notice;

(b) the commencement of proceedings by the lessor to recover rent, or any sum of money as rent, in respect of any such period; or

(c) the acceptance of rent, or of any sum of money as rent, by the lessor in respect of any such period—

shall not of itself constitute evidence of a new tenancy or operate as a waiver of the notice.

104 Persons not to interfere with use or enjoyment of premises

(1) A person shall not, without the consent of the lessee of prescribed premises, or without reasonable cause (proof whereof shall lie upon the accused) do or cause to be done any act, or omit or cause to be omitted any act whereby the ordinary use or enjoyment by the lessee of the premises or of any goods leased therewith, or of any conveniences usually available to the lessee, or of any services supplied to or provided in connexion with the premises is interfered with or restricted.

S. 102 repealed by No. 101/1998 s. 26(6)(q).

No. 6098 s. 63.

s. 103

No. 6098 s. 64.

S. 104(1) amended by No. 68/2009 s. 97(Sch. item 75.1).



91

(2) Where the lessor or any agent or servant of the lessor has been convicted of an offence against the last preceding subsection, the court may order the lessor to do such things as are necessary to enable the lessee to resume the ordinary use or enjoyment of the premises, goods, conveniences or service, and the lessor shall comply with the provisions of the order.

(3) For the purposes of this section conveniences shall be deemed to be usually available to the lessee where, prior to the use of the conveniences having been interfered with or restricted without his consent, he has been allowed at all times during the tenancy to use those conveniences as he desired or he has been allowed to use those conveniences at times agreed to by the lessor and lessee or at times equivalent to those times.

105 Protection of certain sub-lessees (1) Where—

(a) a lessor, either expressly or by implication, has consented to or approved a sub-lease of any prescribed premises or any part thereof by the lessee; and

(b) the lessee ceases to be in possession of the premises, following upon—

(i) the obtaining of an order by the lessor for the recovery of possession of the premises from the lessee or for the ejectment of the lessee from the premises on any of the grounds specified in paragraphs (a) to (f) or paragraph (s) or paragraph (t) of subsection (6) of section eighty-two of this Act; or

No. 6098 s. 65.

s. 105



92

(ii) the surrender of his lease by the lessee—

the sub-lessee shall (if he is in possession of the whole or portion of the premises sub-let to him) be deemed to become the lessee thereof from the lessor upon the same terms and conditions as the terms and conditions of the sub-lease, as in force immediately prior to—

the date on which the lessor gave notice to quit to the lessee; or

the date on which the lessee notified the lessor of his intention to surrender the lease (or, if he did not so notify the lessor, the date on which the lessee surrendered the lease)—

as the case may be.

(2) In a case to which subparagraph (i) of paragraph (b) of the last preceding subsection applies, the order shall not be enforced against the sub-lessee.

(3) Where, prior to the lessor of any prescribed premises giving notice to quit to the lessee upon any of the grounds specified in subsection (6) of section eighty-two of this Act the lessee of the prescribed premises has sub-let the whole or any part thereof—

(a) the lessee shall, upon service of the notice to quit, forthwith notify the lessor in writing of the name and address of each person to whom he has so sub-let and who is a sub-lessee of the prescribed premises or any part thereof at the date of service of the notice to quit;

(b) the lessor shall, upon taking proceedings for the recovery of possession of the prescribed premises or for the ejectment of the lessee therefrom, serve (in the manner prescribed

s. 105



93

by section thirty-two of this Act) a copy of the complaint and summons thereon on each person specified in the notice given to him under this section.

(4) On the hearing of any proceedings by a lessor for an order for the recovery of possession of any prescribed premises or for the ejectment of the lessee therefrom, every person who is a sub-lessee of such premises or any part thereof shall be entitled to be heard.

106 Protection of certain persons in possession of premises

Where the lessee of any prescribed premises dies and a person, being the partner of the deceased lessee, who resided with the lessee immediately prior to his death is actually in possession of the premises immediately after the death of the lessee that person shall have the like right to continue in possession of the premises as the lessee would have had if he had not died, but proceedings may be taken against that person for the ejectment of that person from the premises or for the recovery of possession of the premises from that person in accordance with the provisions of this Division as if he were a lessee of the premises.

107 Costs in ejectment proceedings (1) Where application is made for an order for

recovery of possession of or ejectment from any prescribed premises on the ground specified in paragraph (a) of subsection (6) of section eighty-two of this Act, the Tribunal, whether or not it makes the order sought, may in its discretion make an order against the lessee for payment of costs if it is satisfied that at the time of service of the notice to quit the rent was in arrear for a period of not less than twenty-eight days.

No. 6098 s. 66. S. 106 amended by Nos 8208 s. 14(a)(b), 27/2001 s. 3(Sch. 1 item 7.6).

s. 106

No. 6098 s. 67.

S. 107(1) amended by Nos 8181 s. 2(1)(Sch. item 100), 101/1998 s. 26(6)(r).



94

(2) Except where the contrary is expressly provided, no costs shall be allowed in any proceedings in relation to which this Division applies, not being proceedings in respect of an offence arising under this Division.

Division 3A—Premises ceasing to be prescribed premises

107A Premises ceasing to be prescribed premises

(1) Where the lessor of prescribed premises is of the opinion that the total earnings and income of the lessee and of the members of the family of the lessee ordinarily residing at the premises is such that no hardship will be caused to the lessee if the premises cease to be prescribed premises, the lessor may—

(a) where the premises are prescribed premises (including special premises) by virtue of an Order of the Governor in Council made pursuant to section 44 or 45, apply to a Board for a declaration;

(b) where the premises are prescribed premises other than by virtue of an Order of the Governor in Council made pursuant to section 44 or 45, apply to a Board for a determination—

that because of the financial position of the lessee and the members of the family of the lessee ordinarily residing at the premises, the premises should cease to be prescribed premises.

Pt 5 Div. 3A (Heading and s. 107A) inserted by No. 8208 s. 15(1)(a).

S. 107A inserted by No. 8208 s. 15(1)(a).

s. 107A

S. 107A(1) amended by Nos 9514 s. 156, 9786 s. 2(3).



95

(2) In order to ascertain the total earnings and income of the lessee and all the members of the family of the lessee ordinarily residing at the premises the Board may require the lessee to produce evidence to the satisfaction of the Board by way of statutory declaration of the names of the lessee and the said members of his family and the occupation or occupations and the total earnings and income, of each person.

(3) Where the lessee fails to produce evidence to the satisfaction of the Board as required by subsection (2) the Board may presume that the lessee will not suffer financial hardship if the premises cease to be prescribed premises.

(4) In this section member of the family of a lessee means—

(a) the partner and children and the partners and children of such children of the lessee; and

(b) the parents brothers sisters uncles aunts nephews and nieces of the lessee and the partner of the lessee and of any former partner of the lessee and any children of that partner who are not the children of the lessee.

(5) Where the Board—

(a) declares that in its opinion the premises referred to in paragraph (a) of subsection (1) should cease to be prescribed premises, the Board shall send its findings to the Minister for transmission to the Governor in Council for such action as the Governor in Council thinks fit;

(b) determines that premises referred to in paragraph (b) of subsection (1) should cease to be prescribed premises, then,

S. 107A(2) amended by Nos 9514 s. 156, 9786 s. 2(3).

s. 107A

S. 107A(4)(a) amended by No. 27/2001 s. 3(Sch. 1 item 7.7(a)(b)).

S. 107A(4)(b) amended by No. 27/2001 s. 3(Sch. 1 item 7.7(a)).



96

notwithstanding anything to the contrary in this Part, the provisions of this Part shall as from the date specified in the determination cease to apply to those premises.

(6) The costs in respect of any action taken under this section shall be determined by the Board and paid by the lessor.

Division 4—Miscellaneous

108 Threats and boycotts prohibited (1) No person shall by any threat or in any other

manner endeavour to dissuade or prevent a lessor or lessee from making or prosecuting any application under this Part or taking or continuing any proceedings in relation to which this Part applies.

(2) Any owner of any prescribed premises and the agent of any such owner who refuses or procures any person to refuse to lease those premises to any other person who desires to lease them, if the reason for that refusal was that that other person had made an application to a Board under this Part or had prosecuted an appeal under this Part, shall be guilty of an offence against this Part.

(3) Any person who does or procures to be done any act or thing for the purpose of imposing any detriment or disadvantage upon a lessor or lessee because the lessor or lessee has made an application under this Part or has prosecuted an appeal under this Part shall be guilty of an offence against this Part.

(4) Any person who by any false representation as to the facts relative to any lease or other relationship between lessor or lessee or as to the rights or obligations of lessors or lessees or other persons or as to the operation of any provision of this Act


s. 108

S. 108(4) inserted by No. 6623 s. 4.



97

or by any threat or intimidation of false promise coerces or induces or attempts to coerce or induce any person to sign any agreement in writing which has the effect or is intended to have the effect of fixing the fair rent of any premises for the purposes of this Part or any other agreement relating to any lease or tenancy in respect of any premises, whether prescribed premises or not, shall be guilty of an offence against this Part.

109 Contract to avoid Part Any contract or arrangement, whether oral or in writing, the purpose or effect of which is either directly or indirectly to defeat evade or prevent the operation of this Part shall be null and void.

110 Powers of entry and inspection (1) For the purposes of this Part any authorized

officer may—

(a) enter into and upon any prescribed premises at any reasonable time for the purpose of examining the premises;

(b) require any person being the lessor or lessee of any prescribed premises or being the agent of any such lessor or lessee, to answer any question relating to any lease thereof or any sub-lease of any part thereof, or to the accommodation provided under any such lease or sub-lease, or to the rent payable under or any conditions of any such lease or sub-lease, or to the rent payable in respect of the premises at the thirty-first day of December One thousand nine hundred and forty or at any other date, or to the number of lodgers or boarders occupying the premises or any part or parts thereof or to the fees or charges payable by such lodgers or boarders

No. 6098 s. 69.

s. 109

No. 6098 s. 70.



98

or to the services provided for such lodgers or boarders; and

(c) require any person being the lessor or lessee of any prescribed premises or being the agent of any such lessor or lessee, to produce any rent book, receipt or other document in his possession or power for the purposes of ascertaining the rent paid under any lease thereof or any sub-lease of any part thereof or the rent payable in respect of the premises at the thirty-first day of December One thousand nine hundred and forty or at any other date, and examine and make copies of any such rent book, receipt or document.

(2) Any person who—

(a) refuses admission to any prescribed premises to any authorized officer or who obstructs or hinders any authorized officer; or

(b) refuses to answer any question put by any authorized officer as provided by paragraph (b) of subsection (1) of this section or who wilfully gives any false answer to any such question; or

(c) refuses or omits to produce any rent book, receipt or document in his possession or power when required by any authorized officer so to do as provided by paragraph (c) of subsection (1) of this section—

shall be guilty of an offence against this Part.

(3) The provisions of the last preceding subsection (except paragraph (a) thereof) shall extend and apply to and with respect to any person who is before a Board in any proceedings under this Part and who is required by the Board to answer any question referred to in paragraph (b) or to produce

s. 110



99

any rent book, receipt or document referred to in paragraph (c) of subsection (1) of this section.

111 Rights of lessor in respect of prescribed premises (1) Subject to the express covenants and stipulations

in any lease, the lessor of prescribed premises shall have the following rights, namely—

(a) a right by himself or his servant or agent to enter and inspect the premises at any reasonable time between nine o'clock in the morning and six o'clock in the evening of any week day on not more than two occasions in any year and for not more than one hour on each such occasion after not less than seven days' notice in writing has been given to the lessee;

(b) a right by himself his agents servants workmen or contractors to enter the premises at any reasonable time for the purpose of effecting necessary repairs or maintenance after reasonable notice, whether verbal or in writing, has been given to the lessee;

(c) a right to have the premises entered and inspected during a period of not more than two weeks in any year of which not less than fourteen days' notice in writing has been given to the lessee, by any prospective purchasers, duly authorized in writing in that behalf by the lessor or his agent, at any reasonable time between nine o'clock in the morning and six o'clock in the evening of any week day and after reasonable notice, whether verbal or in writing, in respect of each such inspection has been given to the lessee; and

No. 6098 s. 71. S. 111 amended by No. 74/2000 s. 3(Sch. 1 item 69.4).

s. 111



100

(d) a right to exhibit on the outside of the premises during a period of not more than two weeks in any year a notice of reasonable size to the effect that the premises are for sale—

and any lessee who refuses entry to or obstructs or impedes or interferes with the lessor his servant agent workmen or contractor or any prospective purchaser in the exercise of any such right or who fails to take such reasonable steps as are necessary to allow the exercise of any such right shall be guilty of an offence against this Part.

(2) Without prejudice to the generality of its meaning, the expression reasonable time, wherever occurring in the last preceding subsection, shall, in the case of a dwelling-house, be deemed not to include any time at which the lessee and the other adult members of his household are ordinarily absent from the dwelling-house in the course or by reason of their respective trades, businesses, occupations or employments.

112 Dwelling-house not to be sold unless tenant given opportunity to purchase

(1) A person shall not sell or agree to sell any prescribed premises, being a single dwelling-house which is occupied by a lessee, to any person other than the lessee unless—

(a) the premises are sold or offered for sale at an auction sale of which not less than fourteen days' notice in writing has been given to the lessee; or

(b) the vendor has first offered in writing to sell the premises to the lessee at a price not greater than the price at which the premises are actually sold or agreed to be sold and upon terms as to payment and otherwise not

s. 112

No. 6098 s. 72.

S. 112(1)(a) amended by No. 6828 s. 11.



101

less favourable to the lessee than the terms upon which the premises are actually sold or agreed to be sold and the lessee has not accepted that offer within fourteen days after the receipt thereof by him:

Provided that nothing in this subsection shall be construed as prohibiting the vendor from entering into and giving effect to a contract to sell the premises to any person conditionally upon the lessee's rejection of an offer of sale of the premises made in accordance with paragraph (b) of this subsection.

(2) A person shall not sell or agree to sell any prescribed premises, being a single dwelling-house which is occupied by a protected person within the meaning of subsection (2) of section ninety-three of this Act, to any other person unless he has first notified the purchaser in writing that the premises are occupied by such a protected person. Where the vendor after reasonable inquiry is unable to ascertain whether or not the occupier of the dwelling-house is such a protected person it shall be a sufficient compliance with the foregoing provisions of this subsection if the vendor notifies the purchaser in writing to that effect.

(3) Whenever any prescribed premises, being a single dwelling-house which is occupied by a lessee, are sold or agreed to be sold to any person, the vendor and the purchaser of the premises shall, within seven days after the premises have been so sold or agreed to be sold, give to the lessee notice in writing of the fact of such sale or agreement to sell and of the name and address of the purchaser.

s. 112



102

(4) Any person who contravenes or fails to comply with any provision of this section shall be guilty of an offence against this Part, but such contravention or failure shall not invalidate any contract or agreement.

113 Service of notices (1) Any notice (other than a notice to quit) required

by this Part to be given to or served upon any person may be given or served—

(a) by delivering it to that person; or

(b) by leaving it at his usual or last known place of abode or business with some person thereat who is apparently over the age of sixteen years; or

(c) by sending it by registered post addressed to that person at his usual or last known place of abode or business.

(2) Any notice required by this Part to be given to or served upon any person may, if the person is a company or body corporate or an authorized officer, be given or served—

(a) by delivering it to the manager or secretary of the company or body corporate; or

(b) by leaving it at the office or place of business of the company body corporate or authorized officer with some person thereat who is apparently over the age of sixteen years; or

(c) by sending it by registered post to the company or body corporate or the authorized officer at its or his office or place of business.

No. 6098 s. 73.

s. 113



103

(3) Where any notice by an authorized officer is required by this Part to be given to or served upon a person whose address is unknown to the authorized officer, it may be given or served by publishing it or a notice substantially to the same effect once in the Government Gazette and once in a daily newspaper circulating generally in Victoria.

114 Notice to lessor or lessee (1) Any notice required by this Part to be given to or

served upon a lessor under the lease of any prescribed premises shall be deemed to have been duly given or served if it is given to or served upon the person to whom the rent payable under the lease is customarily paid by or on behalf of the lessee.

(2) Any notice (other than a notice to quit) required by this Part to be given to or served upon a lessee under the lease of any prescribed premises shall be deemed to have been duly given or served if it is given to or served upon the person by whom the rent payable under the lease is customarily paid on behalf of the lessee.

(3) If two or more persons are lessors under any lease of any prescribed premises it shall be a sufficient compliance with any provision of this Part requiring any notice to be given to or served upon those lessors if the notice is given to or served upon any one of those lessors.

(4) If two more persons are lessees under any lease of any prescribed premises it shall be a sufficient compliance with any provision of this Part requiring any notice to be given to or served upon those lessees if the notice is given to or served upon any one of those lessees.

No. 6098 s. 74.

s. 114



104

115 Continued operation of notice Any notice required by this Part to be given to or served upon any lessor or lessee shall, if it has once been duly given to or served upon that lessor or lessee, be binding on all persons claiming by, from, or under that lessor or lessee and all subsequent lessors or lessees to the same extent as if given to or served upon the person claiming as aforesaid or subsequent lessors or lessees respectively.

116 As to onus of proof that premises are prescribed premises

In any proceedings under or arising out of this Part any premises to which the proceedings relate shall be deemed to be prescribed premises within the meaning of this Part and the provisions of Divisions two, three and four of this Part shall be deemed to apply with respect to those premises or to any lease of those premises (as the case requires) until the contrary is proved.

117 Offences and penalties (1) Any person who contravenes or fails to comply

with any provision of this Part shall be guilty of an offence against this Part.

(2) Any person who is guilty of an offence against this Part shall be liable to a penalty of not more than 10 penalty units or to imprisonment for a term of not more than twelve months or to both such penalty and imprisonment.

118 Regulations (1) The Governor in Council may make regulations

for or with respect to prescribing all matters and things which are by this Part authorized or required to be prescribed or which are necessary or expedient to be prescribed for the purposes of or for giving effect to this Part.

No. 6098 s. 75.

s. 115

No. 6098 s. 76. S. 116 substituted by No. 6828 s. 12.

No. 6098 s. 77.

S. 117(2) amended by No. 10/2004 s. 15(Sch. 1 item 15.2).

No. 6098 s. 78.



105

(2) Any such regulations may prescribe a penalty of not more than 0⋅2 penalty unit for any breach of the regulations.

* * * * *

__________________

S. 118(2) amended by No. 10/2004 s. 15(Sch. 1 item 15.3).

s. 118

S. 118(3) repealed by No. 6886 s. 3 (Sch.).


106

SCHEDULES

* * * * *

* * * * *

Sch. 1

Schs 1, 2 repealed by No. 1/2010 s. 91(2).

Sch. 3 amended by No. 7332 s. 2(Sch. 1 item 52), repealed by No. 1/2010 s. 91(2).


107

FOURTH SCHEDULE

COMPLAINT AND SUMMONS THEREON

In the Magistrates' Court at

⎫⎬⎭

A.B. Complainant.

C.D. Defendant.

The complaint of the said

of in the State of Victoria, who saith that the said defendant neglects [or refuses] to quit and deliver up possession of [shortly describe property held over] situated at which was held of the said complainant under a tenancy [nature of tenancy] which expired by effluxion of time [or was determined by notice to quit] on the day of 19 .

Complainant [or agent for the said complainant]

To of

Whereas the above complaint has this day been laid by the above-named complainant before me, a Magistrate [or the Registrar of the Magistrates' Court ].

These are therefore to command you in her Majesty's name to be and appear on the day of 19 at the hour of o'clock in the noon at the said Magistrates' Court at to answer to the said complaint and to show cause why a warrant should not be issued to eject you from the premises.

Dated at the day of 19 .

Magistrate [or Registrar of Magistrates' Court].

__________________

Section 32. No. 5264 s. 85(d). Sch. 4 amended by Nos 7703 s. 5, 7876 s. 2(3), 57/1989 s. 3(Sch. item 112.20(a)(b)).

Sch. 4


108

FIFTH SCHEDULE

WARRANT TO MEMBER OF THE POLICE FORCE TO TAKE AND GIVE POSSESSION

In the Magistrates' Court

at

⎫⎬⎭

A.B. Complainant.

C.D. Defendant.

WHEREAS complaint was made by A.B. of in the State of Victoria on the day of 19 that C.D. did neglect (or refuse) to quit and deliver up possession of (shortly describe property held over) situated at which was held of the complainant under a tenancy (nature of tenancy) which expired by effluxion of time (or was determined by notice to quit) on the day of 19

AND WHEREAS such complaint was determined by the Magistrates' Court at on the day of 19

NOW THEREFORE pursuant to the said determination the Court does (or I, , a registrar of the Court, do) authorize and command you on any day within days from the date hereof (except on Sunday Christmas Day and Good Friday to be added if necessary) between the hours of nine in the forenoon and four in the afternoon to enter by force if needful and with or without the aid of (the owner or agent as the case may be) or any other person or persons whom you may think requisite to call to your assistance into and upon the said tenement and to eject thereout any person and of the said tenement full and peaceable possession to deliver to the said (the owner or agent).

Given this day of 19

To and all other members of the police force acting for the district of

═══════════════

Section 33. No. 5291 s. 17(b). Sch. 5 substituted by No. 6828 s. 13, amended by Nos 7703 s. 5, 7876 s. 2(3), 57/1989 s. 3(Sch. item 112.21(a)(b)).

Sch. 5


109

ENDNOTES

1. General Information The Landlord and Tenant Act 1958 was assented to on 30 September 1958 and came into operation on 1 April 1959: Government Gazette 18 March 1959 page 892.

Endnotes


110

2. Table of Amendments This Version incorporates amendments made to the Landlord and Tenant Act 1958 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Statute Law Revision Act 1959, No. 6505/1959 Assent Date: 5.5.59 Commencement Date: 1.4.59: s. 1(2) Current State: All of Act in operation

Landlord and Tenant (Amendment) Act 1959, No. 6575/1959 Assent Date: 1.12.59 Commencement Date: 1.12.59 Current State: All of Act in operation

Landlord and Tenant (Fair Rents) Act 1959, No. 6599/1959 Assent Date: 15.12.59 Commencement Date: 1.4.60: see s. 1(3) Current State: All of Act in operation

Landlord and Tenant (Further Amendment) Act 1960, No. 6623/1960 Assent Date: 1.6.60 Commencement Date: 1.6.60 Current State: All of Act in operation

Landlord and Tenant (Amendment) Act 1961, No. 6828/1961 Assent Date: 12.12.61 Commencement Date: 1.3.62: Government Gazette 7.2.62 p. 283 Current State: All of Act in operation

Subordinate Legislation Act 1962, No. 6886/1962 Assent Date: 8.5.62 Commencement Date: 1.8.62: Government Gazette 4.7.62 p. 2314 Current State: All of Act in operation

Landlord and Tenant (Execution of Warrants) Act 1963, No. 6996/1963 Assent Date: 21.5.63 Commencement Date: 21.5.63 Current State: All of Act in operation

Statute Law Revision Act 1965, No. 7332/1965 Assent Date: 14.12.65 Commencement Date: 14.12.65: s. 3 Current State: All of Act in operation

Abolition of Bailiwicks Act 1968, No. 7703/1968 Assent Date: 15.10.68 Commencement Date: 1.1.69: Government Gazette 4.12.68 p. 3920 Current State: All of Act in operation

Endnotes


111

Justices (Amendment) Act 1969, No. 7876/1969 Assent Date: 25.11.69 Commencement Date: All of Act (except ss 3, 5, 6, 7(k)(m)–(o)) on 1.4.70;

ss 3, 5, 6, 7(k)(m)–(o) on 1.7.70: Government Gazette 25.2.70 p. 463

Current State: All of Act in operation

Statute Law Revision Act 1971, No. 8181/1971 Assent Date: 23.11.71 Commencement Date: 23.11.71 Current State: All of Act in operation

Landlord and Tenant (Amendment) Act 1971, No. 8208/1971 Assent Date: 14.12.71 Commencement Date: 1.5.72: Government Gazette 22.3.72 p. 773 Current State: All of Act in operation

Magistrates (Summary Proceedings) Act 1975, No. 8731/1975 Assent Date: 16.5.75 Commencement Date: S. 173 on 1.7.76: Government Gazette 24.3.76 p. 848 Current State: This information relates only to the provision/s

amending the Landlord and Tenant Act 1958

Statute Law Revision Act 1977, No. 9019/1977 Assent Date: 17.5.77 Commencement Date: 17.5.77: subject to s. 2(2) Current State: All of Act in operation

Residential Tenancies Act 1980, No. 9514/1980 (as amended by No. 9549) Assent Date: 23.12.80 Commencement Date: 9.11.81: Government Gazette 21.10.81 p. 3431 Current State: All of Act in operation

Residential Tenancies (Amendment) Act 1982, No. 9786/1982 Assent Date: 26.10.82 Commencement Date: S. 3 on 9.11.81: s. 1(3); rest of Act on 5.11.82:

Government Gazette 3.11.82 p. 3589 Current State: All of Act in operation

Courts Amendment Act 1986, No. 16/1986 Assent Date: 22.4.86 Commencement Date: S. 1–11, 13–27, 29–34 on 1.7.86: Government Gazette

25.6.86 p. 2180; s. 28 on 1.9.86: Government Gazette 27.8.86 p. 3201; s. 12 on 1.1.88: Government Gazette 7.10.87 p. 2701


Supreme Court Act 1986, No. 110/1986 Assent Date: 16.12.86 Commencement Date: 1.1.87: s. 2 Current State: All of Act in operation

Endnotes


112

State Concessions (Amendment) Act 1987, No. 48/1987 Assent Date: 15.9.87 Commencement Date: 1.12.87: Government Gazette 18.11.87 p. 3072 Current State: All of Act in operation

Local Government (Consequential Provisions) Act 1989, No. 12/1989 Assent Date: 9.5.89 Commencement Date: S. 4(1)(Sch. 2 items 67.1–67.3) on 1.11.89:

Government Gazette 1.11.89 p. 2798 Current State: This information relates only to the provision/s


Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989 Assent Date: 14.6.89 Commencement Date: S. 4(1)(a)–(e)(2) on 1.9.89: Government Gazette

30.8.89 p. 2210; rest of Act on 1.9.90: Government Gazette 25.7.90 p. 2217


Water (Consequential Amendments) Act 1989, No. 81/1989 Assent Date: 5.12.89 Commencement Date: 1.11.90: Government Gazette 15.8.90 p. 2473 Current State: All of Act in operation

Unclaimed Moneys (Amendment) Act 1993, No. 70/1993 Assent Date: 5.10.93 Commencement Date: 5.10.93: s. 2 Current State: All of Act in operation

Financial Management Act 1994, No. 18/1994 Assent Date: 10.5.94 Commencement Date: S. 66(Sch. 2 item 13) on 1.7.94: s. 2(2) Current State: This information relates only to the provision/s


Legal Practice Act 1996, No. 35/1996 Assent Date: 6.11.96 Commencement Date: S. 453(Sch. 1 item 45) on 1.1.97: s. 2(3) Current State: This information relates only to the provision/s

amending the Landlord and Tenant Act 1958 Residential Tenancies Act 1997, No. 109/1997

Assent Date: 23.12.97 Commencement Date: S. 533(Sch. 2 item 6) on 1.7.98: Government Gazette

18.6.98 p. 1512 Current State: This information relates only to the provision/s

amending the Landlord and Tenant Act 1958 Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998

Assent Date: 26.5.98 Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2) Current State: This information relates only to the provision/s


Endnotes


113

Licensing and Tribunal (Amendment) Act 1998, No. 101/1998 Assent Date: 1.12.98 Commencement Date: S. 26 on 1.2.99: Government Gazette 24.12.98 p. 3204 Current State: This information relates only to the provision/s


Statute Law Revision Act 2000, No. 74/2000 Assent Date: 21.11.00 Commencement Date: S. 3(Sch. 1 item 69) on 22.11.00: s. 2(1) Current State: This information relates only to the provision/s


Statute Law Amendment (Relationships) Act 2001, No. 27/2001 Assent Date: 12.6.01 Commencement Date: S. 3(Sch. 1 item 7) on 28.6.01: Government Gazette



Statute Law (Further Revision) Act 2002, No. 11/2002 Assent Date: 23.4.02 Commencement Date: S. 3(Sch. 1 item 40) on 24.4.02: s. 2(1) Current State: This information relates only to the provision/s


Monetary Units Act 2004, No. 10/2004 Assent Date: 11.5.04 Commencement Date: S. 15(Sch. 1 items 15.1–15.3) on 1.7.04: s. 2(2) Current State: This information relates only to the provision/s


Legal Profession (Consequential Amendments) Act 2005, No. 18/2005 Assent Date: 24.5.05 Commencement Date: S. 18(Sch. 1 item 56) on 12.12.05: Government

Gazette 1.12.05 p. 2781 Current State: This information relates only to the provision/s


Relationships Act 2008, No. 12/2008 Assent Date: 15.4.08 Commencement Date: S. 73(1)(Sch. 1 item 35) on 1.12.08: s. 2(2) Current State: This information relates only to the provision/s


Unclaimed Money Act 2008, No. 44/2008 Assent Date: 26.8.08 Commencement Date: S. 113 on 1.1.09: s. 2(2) Current State: This information relates only to the provision/s


Endnotes


114

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009

Assent Date: 24.11.09 Commencement Date: S. 97(Sch. item 75) on 1.1.10: Government Gazette



Consumer Affairs Legislation Amendment Act 2010, No. 1/2010 Assent Date: 9.2.10 Commencement Date: S. 91 on 1.8.10: Government Gazette: 22.7.10 p. 1628 Current State: This information relates only to the provision/s

amending the Landlord and Tenant Act 1958 –––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Magistrates' Court Rules 1980, S.R. No. 482/1980 Date of Making: 23.12.80 Date of Commencement: 1.2.81: reg. 1(1)

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Government Gazette 18 February 1960 page 407 –––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Endnotes


115

3. Explanatory Details No entries at date of publication.

Endnotes

Landlord and Tenant Act 1958 - Victorian Legislation … Version No. 096 Landlord and Tenant Act...

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