Evicting a tenant where non-payment of rent for COVID-19 reason: Reversal of VCAT decision

26 Nov 2021

By Alicia Hill, Principal and Matthew Deetlefs, Law Clerk

In RFY v ACV (Residential Tenancies) [2021] VCAT 865, VCAT allowed a tenant to be evicted after the protections afforded to tenants under section 542 of the Residential Tenancies Act 1997 were repealed. Regulation 14 of the COVID-19 Omnibus (Emergency Measures) Transitional Regulations 2021 only prevented the landlord from seeking rental arrears and did not prevent eviction. The evicted tenant appealed. The Victorian Supreme court handed down its decision in Markiewicz v Crnjac [2021] VSCA 290.

Background:

Section 542 of the Residential Tenancies Act 1997 prevented landlords from seeking payment or evicting tenants who did not pay rent for a COVID-19 reason until 28 March 2021.

Regulation 14 of the COVID-19 Omnibus (Emergency Measures) Transitional Regulations 2021 then applied until 25 October 2021, which VCAT found only protected tenants in RFY v ACV (Residential Tenancies) [2021] VCAT 865.

A refresh on the facts of the case and arguments of the parties can be found in MST’s previous article https://www.mst.com.au/the-practical-effect-of-the-rules-on-evicting-tenants-during-covid-19-rfy-v-acv-residential-tenancies/.

The tenant’s arguments on appeal:

The tenant argued that VCAT had incorrectly interpreted the law.

According to the tenant, any rental arrears accrued for a COVID-19 reason would never become payable. The notice to vacate (Notice) because the tenant had not paid rent presented to the tenant on 30 March 2021, was issued two days after section 542 was repealed and was therefore argued to be invalid.

Alternatively, the tenant argued that the rental arrears accrued due to a COVID-19 reason would only become payable after the protections afforded by Regulation 14 expired on 25 October 2021.

Conclusion:

The tenant could not be evicted as the protections under Regulation 14 continued past the giving of the Notice until 25 October 2021. If rental arrears continued after this date however, the tenant would not be protected as the temporary protections afforded by Regulation 14 no longer apply.

Take-aways:

Landlords and tenants should be aware that there is now the right for Landlord to begin evicting tenants for rental arrears that were accrued due to COVID-19 where there is no other agreement in place between them.

Tenants will have not have a defence and will have to pay the amounts owed. Tenants should be aware that they must pay any rental arrears owed to their landlord, or else they may face eviction, unless another agreement is in place with their Landlord.

If you have any queries about any of the matters raised by this case, then please contact Alicia Hill on (03) 8540 0292 or alicia.hill@mst.com.au