Victorian Numbered Acts Victorian Numbered ActsAfter Part 12 of the Residential Tenancies Act 1997 insert —
In this Part—
"community visitor" has the same meaning as in the Disability Act 2006 ;
"CoS supported accommodation client" means an older person—
(a) who is receiving continuity of supports under the Commonwealth Continuity of Support Programme in respect of specialist disability services for older people; and
(b) who is not an NDIS participant;
"NDIA" means the National Disability Insurance Scheme Launch Transition Agency established under the National Disability Insurance Scheme Act 2013 of the Commonwealth;
"NDIS" means the National Disability Insurance Scheme within the meaning of the National Disability Insurance Scheme Act 2013 of the Commonwealth;
"NDIS participant" means a person who is a participant in the NDIS;
"NDIS Quality and Safeguards Commission " means the NDIS Quality and Safeguards Commission established under section 181A of the National Disability Insurance Scheme Act 2013 of the Commonwealth;
"rent" means an amount paid to an SDA provider by an SDA resident to occupy an SDA enrolled dwelling and use facilities and services;
"SDA enrolled dwelling" has the same meaning as it has in section 3(1);
"SDA provider " means a person—
(a) registered under the NDIS to be a registered provider of supports, including the provision of an SDA enrolled dwelling; and
(b) who is the owner or leaseholder of an SDA enrolled dwelling;
"SDA recipient" means an NDIS participant who is funded to reside in an SDA enrolled dwelling;
"SDA residency agreement" means an agreement entered into or established under section 498F between an SDA provider and an SDA resident in respect of an SDA enrolled dwelling;
"SDA resident" means—
(a) a person who is an SDA recipient; or
(b) a person who is a CoS supported accommodation client;
"SDA resident's administrator" means the SDA resident's attorney appointed under an enduring power of attorney under the Powers of Attorney Act 2014 to administer the SDA resident's property or a person appointed by a court or tribunal as the administrator of the SDA resident's property;
"SDA resident's guardian" means a resident's guardian within the meaning of the Disability Act 2006 ;
"Senior Practitioner" has the same meaning as in the Disability Act 2006 ;
"Supported Independent Living provider " means a person registered under the NDIS to be a registered provider of supports, including supported independent living assistance;
"support plan" means an SDA resident's plan that is in effect under section 37 of the National Disability Insurance Scheme Act 2013 of the Commonwealth.
(1) Subject to Division 2, nothing in this Part affects the right of any of the following persons to enter into a tenancy agreement in respect of an SDA enrolled dwelling with an SDA provider by mutual agreement—
(a) an SDA resident;
(b) any person who is not an SDA resident.
(2) If an SDA provider and SDA resident have entered into a tenancy agreement in respect of an SDA enrolled dwelling, this Part (other than Division 2 to the extent specified in that Division) does not apply to the occupation of that SDA enrolled dwelling by the SDA resident while the tenancy agreement continues.
(1) An SDA provider must give an SDA resident an information statement containing the prescribed details at least 7 days before—
(a) entering into a tenancy agreement with the SDA resident; or
(b) entering into an SDA residency agreement with the SDA resident; or
(c) establishing an SDA residency agreement with the SDA resident.
Penalty: 60 penalty units in the case of a natural person;
300 penalty units in the case of a body corporate.
Note
Section 498F(3) sets out when an SDA residency agreement is established.
(2) Subsection 3 applies to an SDA provider if—
(a) the SDA provider has entered into a tenancy agreement with a tenant; and
(b) the tenant has sought the written consent of the SDA provider to sub-let the SDA enrolled dwelling to an SDA resident in accordance with section 81.
(3) Before consenting to the sublease of an SDA enrolled dwelling, the SDA provider must give any SDA resident that may become a sublessee an information statement containing the prescribed details.
Penalty: 60 penalty units in the case of a natural person;
300 penalty units in the case of a body corporate.
(1) The contents of any notice given or information provided to an SDA resident under this Part must be explained by the person giving the notice or providing the information to the SDA resident in the language, mode of communication and terms which the SDA resident is most likely to understand.
(2) An explanation given under subsection (1) must, if reasonable, be given both orally and in writing.
(3) If it appears that an SDA resident would benefit from support or requires support to understand a notice given or information provided under this Part, an SDA provider must use reasonable endeavours to convey the information or contents of the notice to the SDA resident in the language, mode of communication or terms which the SDA resident is most likely to understand.
(4) If it appears that an SDA resident would benefit from support or requires support to understand a notice given or information provided under this Part, an SDA provider may give a copy of the notice or information—
(a) to a family member, carer, guardian, advocate or other person chosen by the SDA resident; or
(b) if no person is chosen under paragraph (a), to a person who the SDA provider considers can assist the SDA resident and is not employed by, or a representative of, the SDA provider.
(1) Subject to subsection (4), for the purposes of providing an SDA enrolled dwelling to an SDA resident in accordance with this Part, an SDA provider must—
(a) enter into an SDA residency agreement with the SDA resident before the SDA resident occupies the SDA enrolled dwelling; or
(b) work with the SDA resident in accordance with section 498G to establish an SDA residency agreement before the SDA resident occupies the SDA enrolled dwelling.
(2) An SDA resident must sign an SDA residency agreement entered into under subsection (1)(a).
(3) An SDA residency agreement referred to in subsection (1)(b) is taken to be established when—
(a) the SDA provider has complied with section 498G; and
(b) the SDA residency agreement is given to the SDA resident in accordance with section 498H.
(4) An SDA provider is not required to comply with subsection (1) if the SDA provider is also an SDA resident and the sole occupant of the SDA enrolled dwelling.
(1) For the purposes of section 498F(1)(b), an SDA provider works with an SDA resident to establish an SDA residency agreement if the SDA provider—
(a) ensures the contents of the SDA residency agreement is explained to the SDA resident in the language, mode of communication and terms which the SDA resident is most likely to understand; and
(b) gives an explanation of the SDA residency agreement under paragraph (a) both orally and in writing where reasonable.
(2) If it appears that an SDA resident would benefit from support or requires support to read and understand an explanation of an SDA residency agreement, the SDA provider must give a copy of the SDA residency agreement and any explanation of the SDA residency agreement to the SDA resident's guardian or the SDA resident's administrator (if any).
(3) If it appears that an SDA resident would benefit from support or requires support to read and understand an explanation of an SDA residency agreement, the SDA provider may give a copy of the SDA residency agreement and any explanation of the SDA residency agreement—
(a) to a family member, carer, advocate or other person chosen by the SDA resident; or
(b) if no person is chosen under paragraph (a), a person who the SDA provider considers can assist the SDA resident and is not employed by, or a representative of, the SDA provider.
An SDA provider providing an SDA enrolled dwelling to an SDA resident under an SDA residency agreement (whether entered into or established), on or before the day specified in the SDA residency agreement as the day of commencement of the agreement—
(a) must give the SDA resident a written copy of the SDA residency agreement; and
(b) must provide a copy of the SDA residency agreement to the SDA resident's guardian or the SDA resident's administrator (if any).
Penalty: 10 penalty units.
(1) An SDA residency agreement must be in the prescribed standard form and may include or refer to the following—
(a) matters required by the National Disability Insurance Scheme Act 2013 of the Commonwealth;
(b) matters required by any regulations, rules or instruments made under that Act.
(2) An SDA provider must not prepare or authorise the preparation of an SDA residency agreement in a form that is not in the prescribed standard form.
Penalty: 10 penalty units.
(3) A failure to comply with this section does not make the SDA residency agreement illegal, invalid or unenforceable.
(1) The prescribed standard form of SDA residency agreement must specify—
(a) the commencement date, end date, how the agreement may be extended and how the parties may terminate the agreement; and
(b) the rent, including how it is to be paid; and
(c) the amount of any utilities charges, to whom those charges are to be paid and when they are due; and
(d) the minimum period of notice required to be given by the SDA provider before the SDA provider can increase the rent; and
(e) the name and contact details of the parties to the agreement and their agents (if any); and
(f) the process for requesting repairs or maintenance to the SDA enrolled dwelling; and
(g) the rights and duties of the SDA resident and SDA provider as specified in this Part; and
(h) the circumstances in which an SDA provider or the SDA provider's agent is entitled to access the SDA enrolled dwelling and the notice that must be given before entry; and
(i) that an SDA resident has the right to see a community visitor; and
(j) the process for making complaints; and
(k) any prescribed details or matters.
(2) The prescribed standard form of an SDA residency agreement must not be inconsistent with the National Disability Insurance Scheme Act 2013 of the Commonwealth, and any regulations, rules or instruments made under that Act.
A term of an SDA residency agreement is invalid if it purports to exclude, restrict or modify or purports to have the effect of excluding, restricting or modifying—
(a) the application to that SDA residency agreement of all or any of the provisions of this Part or any regulations made under this Act, the National Disability Insurance Scheme Act 2013 of the Commonwealth, or any regulations, rules or instruments made under that Act; or
(b) the exercise of a right conferred by this Part or any regulations made under this Act, the National Disability Insurance Scheme Act 2013 of the Commonwealth, or any regulations, rules or instruments made under that Act.
(1) An SDA resident may apply to the Tribunal for an order declaring invalid or varying a term of the SDA residency agreement.
(2) Subject to subsection (3), on an application under subsection (1), the Tribunal may by order declare invalid or vary a term of the SDA residency agreement if it is satisfied that the term is harsh or unconscionable or is such that a court exercising its equitable jurisdiction would grant relief.
(3) A term of an SDA residency agreement that is required by or under the National Disability Insurance Scheme Act 2013 of the Commonwealth or any regulations, rules or instruments made under that Act, or any prescribed Act, regulations, rules or instruments must not be declared invalid under this section.
(4) An order under this section has effect according to its terms.
An SDA provider who provides an SDA enrolled dwelling must—
(a) take reasonable measures to ensure that SDA residents are treated with dignity and respect and with due regard to their entitlement to privacy; and
(b) ensure that the SDA enrolled dwelling in which the specialist disability accommodation is provided and any fixtures and fittings are maintained in good repair; and
(c) not unreasonably interfere with an SDA resident's right to privacy, to install fixtures required by the SDA resident to assist their daily living or proper use and enjoyment of the premises; and
(d) take reasonable measures to ensure the security of an SDA enrolled dwelling; and
(e) minimise any inconvenience or disruption to the SDA resident when undertaking repairs or renovations; and
(f) take reasonable steps to ensure that any repairs or renovations are completed in a timely manner.
(1) An SDA resident must—
(a) maintain the SDA enrolled dwelling in a manner that does not create a fire, health or safety hazard; and
(b) after becoming aware of any damage to the SDA enrolled dwelling give notice to the SDA provider specifying the nature of the damage; and
(c) contribute to the cost of repairing damage notified under paragraph (b) that the SDA resident intentionally caused; and
(d) pay the rent on the due date and in the manner specified in the SDA residency agreement.
(2) An SDA resident must not—
(a) use the SDA enrolled dwelling for a purpose that is illegal at common law or under an Act; and
(b) by act or omission endanger the safety of other SDA residents or staff at the SDA enrolled dwelling; and
(c) cause serious disruption to the proper use and enjoyment of the SDA enrolled dwelling by other SDA residents; and
(d) intentionally damage or destroy any part of the SDA enrolled dwelling; and
(e) install any fixtures in the SDA enrolled dwelling without first obtaining the consent in writing of the SDA provider.
(1) This Division does not apply to fixtures, furniture or equipment supplied by the SDA resident.
(2) In this Division—
"chosen person" means a person—
(a) who is an SDA resident's guardian; or
(b) who is a family member of the SDA resident; or
(c) who is chosen by an SDA resident, by mutual agreement with the person, to act on behalf of the SDA resident under this Division.
(1) An SDA resident or a chosen person may apply to the Tribunal for an order requiring the SDA provider to carry out specified urgent repairs if the SDA resident or their chosen person has taken reasonable steps to arrange for the SDA provider to immediately carry out the repairs and the SDA resident or their chosen person is unable to get the SDA provider to carry out the repairs.
(2) The Tribunal must hear an application under subsection (1) within 2 business days after the application is made.
(1) An SDA resident or their chosen person may apply to the Director to investigate whether the SDA provider is in breach of a duty to ensure that the SDA enrolled dwelling is maintained in good repair if—
(a) the SDA resident or their chosen person has given the SDA provider written notice advising the SDA provider that repairs (other than urgent repairs) are required to the SDA enrolled dwelling; and
(b) the SDA provider has not carried out the repairs within 14 days after being given the notice.
(2) On an application under subsection (1), the Director—
(a) must investigate; and
(b) may negotiate arrangements for the carrying out of repairs if the Director is satisfied that the SDA provider is in breach of the duty to maintain the SDA enrolled dwelling in good repair; and
(c) must give a written report to the SDA resident and their chosen person (if any).
(1) An SDA resident or their chosen person may apply to the Tribunal for an order requiring the SDA provider to carry out specified non-urgent repairs if—
(a) the SDA resident or their chosen person has received the report of the Director under section 498Q; and
(b) the SDA resident or their chosen person is still of the view that satisfactory arrangements have not been made for the carrying out of the repairs.
(2) An application under subsection (1) must be made within 60 days of receiving the report of the Director under section 498Q.
(3) An SDA resident or their chosen person may apply to the Tribunal for an order requiring the SDA provider to carry out specified repairs without the report of the Director under section 498Q if the SDA resident or their chosen person has not received that report within 90 days after the SDA resident or their chosen person applied for that report.
(1) The Tribunal may make an order requiring the SDA provider to carry out specified repairs if it is satisfied that the SDA provider is in breach of the duty to maintain the SDA enrolled dwelling in good repair.
(2) The order must specify the repairs and the time within which they must be carried out.
(1) The purpose of this Division is to provide for the rights of entry of an SDA provider and their agent to an SDA enrolled dwelling provided by the SDA provider.
(2) This Division does not affect the exercise of a right of entry conferred on any of the following by or under this Act or another Act in respect of an SDA enrolled dwelling—
(a) the Public Advocate;
(b) a community visitor;
(c) the Senior Practitioner;
(d) the NDIA;
(e) the NDIS Quality and Safeguards Commission.
An SDA provider or their agent has a right to enter an SDA enrolled dwelling together with any persons who are necessary to achieve the purpose of the entry—
(a) at any time agreed with the SDA resident if—
(i) in the case of an SDA enrolled dwelling occupied by one SDA resident, the SDA resident has consented to the entry not more than 7 days before the entry; or
(ii) in the case of an SDA enrolled dwelling occupied by more than one SDA resident, all the SDA residents have consented to the entry not more than 7 days before the entry; or
(b) for a purpose set out in section 498V, at any time between 8 a.m. and 6 p.m. on any day (except a public holiday) if at least 24 hours notice has been given to the SDA resident or SDA residents in accordance with section 498X.
(1) A right of entry in respect of an SDA enrolled dwelling may be exercised if—
(a) before giving notice of entry, a notice to vacate or a notice of intention to vacate the SDA enrolled dwelling had been given and entry is required to show the SDA enrolled dwelling to a prospective party to an SDA residency agreement or tenancy agreement in respect of the SDA enrolled dwelling; or
(b) the SDA enrolled dwelling is to be sold or used as security for a loan and entry is required to show the SDA enrolled dwelling to a prospective buyer or lender; or
(c) entry is required to enable the SDA provider to carry out a duty under this Act or any other Act; or
(d) entry is required for valuation purposes; or
(e) entry is required to enable inspection of the SDA enrolled dwelling and entry for that purpose has not been made within the last 6 months; or
(f) entry is required to undertake maintenance or repairs or for the purposes of maintenance or repairs.
(2) An SDA provider may enter an SDA enrolled dwelling without giving notice of entry only if—
(a) the SDA resident agrees to the entry at the time entry is sought; or
(b) there is an emergency; or
(c) if the SDA provider believes on reasonable grounds that entry is necessary to protect the health or safety of the SDA resident or of any other person at the SDA enrolled dwelling; or
(d) if the SDA provider believes on reasonable grounds that the SDA resident has abandoned the SDA enrolled dwelling; or
(e) it is necessary to do so to undertake urgent repairs.
(3) A right of entry for a purpose set out in subsection (1)(a) may only be exercised in the period of 14 days before the termination date specified in the notice to vacate or notice of intention to vacate.
(4) Despite subsection (1), in the case of a first SDA residency agreement entered into between an SDA provider and an SDA resident in respect of an SDA enrolled dwelling, a right of entry referred to in subsection (1)(e) may only be exercised after the end of the first 3 months of the occupation of the SDA enrolled dwelling by the SDA resident under that SDA residency agreement.
A person exercising a right of entry under this Division—
(a) must do so in a reasonable manner; and
(b) must not stay or permit others to stay at the SDA enrolled dwelling longer than is necessary to achieve the purpose of the entry without the SDA resident's consent.
(1) A notice of entry must—
(a) be in writing; and
(b) state why the SDA provider or their agent wishes to enter; and
(c) be given—
(i) by post; or
(ii) by delivering it personally to the SDA resident between the hours of 8 a.m. and 6 p.m.; or
(iii) by electronic communication in accordance with the Electronic Transactions (Victoria) Act 2000 .
(2) If the SDA enrolled dwelling is occupied by more than one SDA resident, a notice of entry must be given to each SDA resident.
(3) A notice given under subsection (2) is sufficient if the notice is in or to the like effect of a notice given under subsection (1).
An SDA resident has a duty to permit a person exercising a right of entry in accordance with this Division to enter the SDA enrolled dwelling.
(1) An SDA resident occupying an SDA enrolled dwelling may apply to the Tribunal for an order for compensation if an SDA provider or their agent or a person accompanying the SDA provider or their agent causes damage to the SDA resident's goods in the SDA enrolled dwelling when exercising a right of entry under section 498U.
(2) If an application is made under subsection (1), the Tribunal—
(a) may make an order for payment of any compensation that it thinks fit if it is satisfied that damage was caused to the SDA resident's goods in the SDA enrolled dwelling; or
(b) may refuse to make an order.
An SDA provider may charge an SDA resident rent.
(1) An SDA provider must give at least 60 days notice in writing of a proposed increase in rent to an SDA resident and the SDA resident's guardian or SDA resident's administrator (if any).
(2) An SDA provider must not increase the rent payable by an SDA resident at intervals of less than 6 months.
(3) Any proposed increase in the rent made in contravention of this section is invalid.
An SDA provider must not require an SDA resident to pay the rent more than 30 days in advance.
The rent under an SDA residency agreement is payable in the manner (if any) specified in the agreement.
(1) A person who receives a payment of rent from, or on behalf of, an SDA resident must give a written receipt in accordance with this section to the person making the payment—
(a) immediately, if the payment is made in person; or
(b) if the payment is not made in person and a receipt is requested at the time of making the payment, within 5 business days of receiving the payment.
Penalty: 10 penalty units.
(2) If a person receives a payment of rent from an SDA resident and a written receipt is not required to be given under subsection (1), the person must keep a record of the payment of rent until the earlier of—
(a) the end of 12 months after receiving the payment; or
(b) if an SDA resident, an SDA resident's guardian or SDA resident's administrator (if any) requests a copy of the record before the end of 12 months after making the payment, the provision of a copy of the record to the SDA resident and the SDA resident's guardian or SDA resident's administrator.
Penalty: 10 penalty units.
(3) If an SDA resident or an SDA resident's guardian or SDA resident's administrator (if any) requests a copy of a record under subsection (2)(b) before the end of 12 months after making the payment of rent, a person who keeps a record under subsection (2) must provide a copy of that record to the SDA resident and the SDA resident's guardian or SDA resident's administrator (if any) within 5 business days after receiving the request.
Penalty: 10 penalty units.
(4) For the purposes of subsection (2), a record must contain information which enables the details specified in paragraphs (a) to (e) of subsection (5) to be identified.
(5) A receipt under this section must be signed by the person who receives the payment and must state—
(a) the name of the SDA resident and the SDA enrolled dwelling; and
(b) the date of receipt; and
(c) the period for which payment is made; and
(d) the amount paid; and
(e) the fact that the payment is for rent.
(6) The regulations may provide that a prescribed person is exempt from subsection (1), (2) or (5) subject to the conditions, if any, specified in the regulations.
A person must not take or dispose of an SDA resident's goods on account of any rent owing by the SDA resident.
Penalty: 20 penalty units.
(1) An SDA resident may apply to the Director to investigate and report if the SDA resident has received a notice of a rent increase and the SDA resident considers that the proposed rent is excessive.
(2) An application under subsection (1) must be made in writing within 30 days after the notice of the rent increase is given.
(3) As soon as practicable after receiving an application, the Director must—
(a) carry out an investigation; and
(b) give a written report to—
(i) the SDA resident and the SDA resident's guardian or SDA resident's administrator (if any); and
(ii) the SDA provider.
(4) The report of the Director must—
(a) include a statement informing the SDA resident of the SDA resident's right under section 498ZH to apply to the Tribunal for an order in respect of the proposed rent; and
(b) take into account the matters referred to in sections 498ZI(2) and 498ZJ.
(1) After receiving a report from the Director under section 498ZG, the SDA resident may apply to the Tribunal for an order declaring the proposed rent excessive.
(2) An application to the Tribunal under subsection (1) must be made within 30 days after the Director has issued a report under section 498ZG.
(3) If an SDA resident has received a notice of rent increase and the SDA resident considers that the proposed rent is excessive, the SDA resident may, with the leave of the Tribunal, apply to the Tribunal for an order declaring the proposed rent excessive without receiving a report from the Director under section 498ZG.
(4) An application under subsection (3) may only be made after the end of 30 days after the notice of the rent increase is given.
(5) The Tribunal may grant leave under subsection (3) if it is satisfied that there are reasonable grounds for the SDA resident's failure to request the Director to investigate and report under section 498ZG.
(1) On an application made under section 498ZH, the Tribunal may do any of the following—
(a) make an order declaring that the proposed rent is excessive;
(b) make an order directing that for the period specified in the order the rent must not exceed the amount specified in the order;
(c) dismiss the application.
(2) For the purposes of subsection (1), the Tribunal must have regard to—
(a) the rent paid by any other SDA residents in the SDA enrolled dwelling; and
(b) the rent payable by SDA residents occupying similar SDA enrolled dwellings in similar locations; and
(c) the state of repair and general condition of the SDA enrolled dwelling; and
(d) the number of increases in the preceding 24 months, the amount of each increase and the timing of those increases; and
(e) any changes in the condition of the SDA enrolled dwelling since the SDA resident commenced occupation; and
(f) any improvements made to the SDA enrolled dwelling that should not result in an increase because they were made by or on behalf of the SDA resident; and
(g) the National Disability Insurance Scheme Act 2013 of the Commonwealth; and
(h) any prescribed Act, regulation or instrument.
(3) The amount specified in an order made under subsection (1)(b) must not be less than the amount payable by the SDA resident before the notice was given under section 498ZB.
(4) Sections 50(3) and 51(1), (2) and (5) of the Victorian Civil and Administrative Tribunal Act 1998 do not apply in relation to a proceeding for review of a decision to issue a notice of a proposed increase in rent.
(1) The Tribunal must dismiss an application made under section 498ZH if the increase in rent is proportionate to an increase in the Commonwealth disability support pension and any Commonwealth rent assistance.
(2) In this section—
"Commonwealth disability support pension " means an amount determined in accordance with Part 2.3 of the Social Security Act 1991 of the Commonwealth;
"Commonwealth rent assistance" means an amount determined in accordance with Part 3.7 of the Social Security Act 1991 of the Commonwealth.
(1) Pending the decision of the Tribunal under section 498ZI, the SDA resident must pay, from the time the proposed increase is to apply, whichever is the lesser of—
(a) the increased rent specified in the notice of increase under section 498ZB; or
(b) 110% of the rent payable immediately before the notice of increase under section 498ZB was given.
(2) If the Tribunal makes an order under section 498ZI(1) other than an order dismissing the application, the Tribunal may also make an order—
(a) requiring that any excess rent paid by the SDA resident, from the time that the increase took effect until the date of the order, be refunded; and
(b) specifying the procedure for the refund to the SDA resident.
(1) A person must not demand or receive from an SDA resident any bond in relation to the SDA residency agreement.
Penalty: 20 penalty units.
(2) A person must not demand or receive from an SDA resident any guarantee for the performance of the SDA resident's duties under the SDA residency agreement.
Penalty: 20 penalty units.
(3) A person must not demand or receive from an SDA resident a charge or indemnity for a charge in relation to the making, continuation or renewal of an SDA residency agreement that is a premium, bonus, commission or key money.
Penalty: 20 penalty units.
(4) A person must not demand or receive from an SDA resident under a proposed SDA residency agreement a charge in relation to the inspection of the SDA enrolled dwelling by an SDA resident.
Penalty: 20 penalty units.
(5) A person must not demand or receive from an SDA resident a charge or indemnity for a charge in relation to—
(a) the first issue of a rent payment card under an SDA residency agreement; or
(b) the establishment or use of direct debit facilities for payment of rent under an SDA residency agreement.
Penalty: 20 penalty units.
(6) This section does not prevent the charging of a prescribed charge under an SDA residency agreement.
An SDA provider is liable for—
(a) the installation costs and charges in respect of the initial connection to an SDA enrolled dwelling of any electricity, water, gas, bottled gas or oil supply service; and
(b) all charges related to the supply of sewerage services or the supply or use of drainage services to or at the SDA enrolled dwelling.
An SDA provider must not seek payment or reimbursement for a cost or charge, or specify a cost or charge for utilities at an SDA enrolled dwelling under an SDA residency agreement, that is more than the amount that the relevant utility supplier would have charged the SDA resident for the supply or use of electricity, water, bottled gas or oil by an SDA resident at an SDA enrolled dwelling.
Penalty: 20 penalty units.
In this Division—
"duty provision", in relation to an SDA enrolled dwelling, means—
(a) section 498M(a), (b), (c), (d), (e) or (f); or
(b) section 498N(1)(a), (c), (d) or (2)(d) or (e); or
(c) section 498Y;
"required time" means 14 days.
(1) Subject to subsection (2), a person to whom a duty is owed under a duty provision, or that person's agent, may give a breach of duty notice to a person in breach of that duty.
(2) An SDA provider, or their agent, must not give a breach of duty notice to an SDA resident unless the SDA provider believes on reasonable grounds that the SDA resident has intentionally breached the duty.
(3) A notice under subsection (1) must—
(a) specify the breach; and
(b) give details of the loss or damage, if any, caused by the breach; and
(c) require the person, within the required time after receiving the notice—
(i) to remedy the breach if possible; or
(ii) to compensate the person to whom the duty is owed; and
(d) state that the person in breach must not commit a similar breach again; and
(e) state that if the notice is not complied with—
(i) an application for compensation or a compliance order may be made to the Tribunal; or
(ii) if section 498ZZA applies, a notice of intention to vacate may be given; or
(iii) if section 498ZX applies, a notice to vacate may be given; and
(f) be in writing; and
(g) be addressed to the person allegedly in breach of the duty or the person's agent; and
(h) be signed by the person to whom the duty is owed or by that person's agent.
(1) If a breach of duty notice is not complied with, the person who gave it may apply to the Tribunal for a compensation order or a compliance order within 90 days after the end of the required time.
(2) Subject to section 115 of the Australian Consumer Law and Fair Trading Act 2012 , the Director may make an application under this section on behalf of the person who gave the notice without that person's consent.
The Tribunal, in hearing an application under section 498ZQ, may take into account—
(a) in the case of a breach of duty notice given to an SDA resident, whether or not the breach of duty in respect of which the claim was made was done so intentionally; and
(b) whether or not the person from whom compensation is claimed has taken all reasonable steps to comply with the duties under this Part or under the SDA residency agreement in respect of which the claim is made; and
(c) whether or not the applicant has consented to the failure to comply with the duties in respect of which the claim is made; and
(d) whether or not money has been paid to or recovered by the applicant by way of compensation; and
(e) whether any reduction or refund of rent has been made to the applicant; and
(f) whether or not action has been taken by the applicant to mitigate the loss or damage; and
(g) any offer of compensation; and
(h) if a claim is made with respect to damage to property, any action taken by the person from whom compensation is claimed to repair the damage at that person's own expense.
(1) In the case of an application under section 498ZQ, if the Tribunal is satisfied that the person was entitled to give the notice and the notice was not complied with, it may make any or all of the following orders—
(a) the person in breach must remedy the breach as specified in the order;
(b) the person in breach must pay compensation as specified in the order;
(c) the person in breach must refrain from committing a similar breach.
(2) In the case of an application under section 498ZQ, if the Tribunal is satisfied that compensation should be paid it may make an order directing a person to pay compensation as specified in the order.
(3) If an order for compensation is made in favour of an SDA resident, the order may specify that the compensation be in the form of a refund or reduction of the rent payable by the SDA resident.
An SDA provider is not entitled to claim compensation under this Part for a failure of an SDA resident to pay rent under an SDA residency agreement unless the rent is unpaid for at least 14 days after it has accrued due.
If a party to an SDA residency agreement is convicted of an offence against this Part, the court before which that person is convicted may, on application by the other party to the SDA residency agreement, order the first party to pay the applicant compensation for loss or damage suffered by the applicant because of the commission of that offence.
(1) An SDA provider may give an SDA resident a written notice of temporary relocation from an SDA enrolled dwelling in the following circumstances—
(a) the SDA resident by act or omission endangers the safety of other SDA residents or staff at the SDA enrolled dwelling;
(b) the SDA resident is causing serious disruption to the proper use and enjoyment of the SDA enrolled dwelling by other SDA residents;
(c) the SDA resident is a danger to themselves and the SDA resident can no longer be appropriately supported in the SDA enrolled dwelling;
(d) it is for the SDA resident's safety or wellbeing;
(e) the SDA resident has intentionally damaged or destroyed any part of the SDA enrolled dwelling;
(f) the SDA resident has used the SDA enrolled dwelling for a purpose that is illegal at common law or under an Act;
(g) specialist disability accommodation will no longer be provided at the SDA enrolled dwelling;
(h) the SDA enrolled dwelling is no longer suitable for the provision of specialist disability accommodation;
(i) the SDA provider intends to repair the SDA enrolled dwelling immediately after the notice of temporary relocation has effect and has obtained all necessary permits and consents to carry out the work and the work cannot be properly carried out unless the SDA resident vacates the area or room of the SDA enrolled dwelling exclusively occupied by the SDA resident.
(2) A notice of temporary relocation—
(a) has effect immediately from the time it is given or from the time specified in the notice of temporary relocation; and
(b) must specify a relocation period—
(i) ending not more than 90 days after the date on which the notice has effect; and
(ii) if the notice is given in the circumstances referred to in subsection (1)(i), not longer than the time required to carry out the work.
(3) An SDA provider must not give a notice under subsection (1)(i) unless the SDA provider has first offered an equivalent area or room to the SDA resident and the SDA resident has refused to occupy that area or room in place of the SDA resident's current area or room, if—
(a) the proposed repairs will affect an SDA resident's area or room but will not affect all the areas or rooms in an SDA enrolled dwelling; and
(b) an area or room equivalent to the SDA resident's area or room at an equivalent rent is available in the SDA enrolled dwelling.
(4) The SDA provider must notify the Chief Executive Officer of the NDIA and the Public Advocate of the details of a notice of temporary relocation within 24 hours of the notice being given to an SDA recipient.
Penalty: 20 penalty units.
(5) The SDA provider must notify the Public Advocate of the details of a notice of temporary relocation within 24 hours of the notice being given to a CoS supported accommodation client.
Penalty: 20 penalty units.
(6) If a notice of temporary relocation is given on the grounds specified in subsection (1)(a), (b), (c), (d), (e) or (f), the SDA provider must take reasonable steps to notify the SDA resident's Supported Independent Living provider, before the notice of temporary relocation expires, to provide an opportunity for the SDA resident's support plan to be reviewed.
(7) During the relocation period specified under subsection (2), the SDA resident is excluded from the SDA enrolled dwelling as specified in the notice of temporary relocation and is to be relocated by the SDA provider in alternative accommodation for the duration of the temporary relocation period specified in the notice under subsection (2).
(8) Except as provided in subsection (9), an SDA provider must not use the area or room that was exclusively occupied by the SDA resident for another SDA resident during the relocation period specified in the notice of temporary relocation.
(9) If the notice of temporary relocation was given on a ground other than the ground specified in subsection (1)(i), the area or room that was exclusively occupied by the SDA resident may only be used—
(a) for emergency purposes; or
(b) on a short term basis for the purpose of providing respite to a carer of a person with a disability.
(10) At the expiry of a notice of temporary relocation, an SDA resident is entitled to return to the SDA enrolled dwelling unless a notice to vacate has been given under section 498ZX.
(11) During the period that an SDA resident is relocated to alternative accommodation, including another SDA enrolled dwelling, the SDA resident is to be taken to be accommodated in emergency or transitional housing and this Division does not apply in respect of that accommodation.
(12) The SDA provider must take reasonable steps to resolve the matter giving rise to the issue of the notice of temporary relocation as soon as is reasonably possible in the circumstances.
(13) The taking of reasonable steps to resolve the matter giving rise to the issue of the notice of temporary relocation does not affect the continued application of that matter as the ground for the issue of the notice of temporary relocation.
An SDA residency agreement is terminated in the following circumstances—
(a) by agreement in writing between the SDA provider and the SDA resident;
(b) if the SDA provider gives the SDA resident a notice to vacate in accordance with section 498ZX, on the earliest of—
(i) the day on which the SDA resident vacates the SDA enrolled dwelling; or
(ii) the day specified in a possession order made under section 498ZZH in relation to the notice to vacate as the day by which the SDA resident must vacate the SDA enrolled dwelling;
(c) if the SDA provider's registration under the NDIS as a registered provider is revoked, 90 days after the day the registration was revoked;
(d) if the SDA enrolled dwelling occupied by the SDA resident ceases to be an SDA enrolled dwelling, 90 days after the day the SDA enrolled dwelling ceased to be enrolled;
(e) by notice of intention to vacate given to the SDA provider by, or on behalf of, the SDA resident in accordance with section 498ZZA;
(f) if the SDA resident dies;
(g) if the SDA resident has abandoned the SDA enrolled dwelling;
(h) if the SDA resident moves to another principal place of residence without giving notice of intention to vacate to the SDA provider;
(i) if the SDA resident becomes subject to an order of a court or tribunal which prevents the SDA resident from residing in the SDA enrolled dwelling for a period of more than 90 days;
(j) the SDA provider contravenes section 498D(1) and the SDA resident wishes to terminate the SDA residency agreement as a consequence of that contravention;
(k) if the Tribunal makes an order terminating the SDA residency agreement;
(l) if a mortgagee in respect of an SDA enrolled dwelling gives a notice to vacate under section 498ZZD and—
(i) the SDA resident vacates the SDA enrolled dwelling on or after the termination date specified in the notice; or
(ii) the SDA residency agreement terminates in accordance with section 498ZZL.
(1) An SDA provider may give an SDA resident a written notice to vacate an SDA enrolled dwelling if—
(a) the SDA resident owes at least 14 days unpaid rent to the SDA provider; or
(b) the SDA resident by act or omission endangers the safety of other SDA residents or staff at the SDA enrolled dwelling; or
(c) the SDA resident is causing serious disruption to the proper use and enjoyment of the SDA enrolled dwelling by other SDA residents; or
(d) the SDA resident is a danger to themselves and the SDA resident can no longer be appropriately supported in the SDA enrolled dwelling; or
(e) it is for the SDA resident's safety or wellbeing; or
(f) the SDA resident has intentionally damaged or destroyed any part of the SDA enrolled dwelling; or
(g) the SDA resident has used the SDA enrolled dwelling for a purpose that is illegal at common law or under an Act; or
(h) the SDA provider intends to repair, renovate, reconstruct or demolish the SDA enrolled dwelling immediately after the termination date and has obtained all necessary permits and consents to carry out the work and the work cannot be properly carried out unless the SDA resident vacates the SDA enrolled dwelling; or
(i) specialist disability accommodation will no longer be provided at the SDA enrolled dwelling; or
(j) the premises is no longer suitable for the provision of specialist disability accommodation; or
(k) the SDA enrolled dwelling is to be sold or offered for sale with vacant possession; or
(l) the SDA resident has failed to comply with an order of the Tribunal under section 498ZS.
(2) A notice to vacate on a ground specified under subsection (1)(a) cannot be given unless—
(a) a breach of duty notice has been given to the SDA resident in respect of that ground; and
(b) the SDA resident has not taken steps to remedy the breach within 14 days after the notice was given to the SDA resident.
(3) A notice to vacate on a ground specified under subsection (1)(b), (c), (d), (e), (f), (g), (h), (i) or (j) cannot be given unless—
(a) a temporary relocation notice was validly issued under section 498ZV on a ground corresponding to that specified in the notice to vacate; and
(b) the temporary relocation notice was given at least 24 hours previously.
(4) A notice to vacate on a ground specified under subsection (1)(b), (c), (d), (e), (f) or (g) cannot be given unless an SDA provider reasonably believes that the conduct constituting the breach is likely to reoccur.
(5) If—
(a) the proposed repairs, renovations or reconstruction will affect the area or room of the SDA enrolled dwelling exclusively occupied by the SDA resident but will not affect all of the areas or rooms of the SDA enrolled dwelling; and
(b) an area or room equivalent to the SDA resident's area or room at an equivalent rent is available in the SDA enrolled dwelling—
the SDA provider must not give the notice under subsection (1)(h) unless the SDA provider has first offered an equivalent room to the SDA resident and the SDA resident has refused to occupy that room in place of the SDA resident's current room.
(6) A notice to vacate under this section—
(a) must specify the ground on which the notice is given; and
(b) must specify a termination date that is not less than 90 days after the date on which the notice is given; and
(c) must be signed by the SDA provider; and
(d) must be given to—
(i) the SDA resident; and
(ii) the SDA resident's guardian or the SDA resident's administrator, if any.
(7) The SDA provider must notify the Chief Executive Officer of the NDIA and the Public Advocate of the details of a notice to vacate within 24 hours of the notice being given to an SDA recipient.
Penalty: 20 penalty units.
(8) The SDA provider must notify the Public Advocate of the details of a notice to vacate within 24 hours of the notice being given to a CoS supported accommodation client.
Penalty: 20 penalty units.
(9) If a notice to vacate is given on the grounds specified in subsection (1)(b), (c), (d), (e) or (f), the SDA provider must take reasonable steps to notify the SDA resident's Supported Independent Living provider, before the notice to vacate expires, to provide an opportunity for the SDA resident's support plan to be reviewed.
(1) If a notice to vacate is issued while a notice of temporary relocation is in force—
(a) the notice of temporary relocation continues in force only until the end of the period of notice applying to the notice to vacate; and
(b) the SDA provider must continue to provide alternative accommodation for the SDA resident until—
(i) the end of the period of notice applying to the notice to vacate; or
(ii) if a review or appeal is lodged, until the review or appeal is determined; or
(iii) other alternative accommodation is provided for the SDA resident.
(2) The SDA provider cannot accommodate another SDA resident in the vacancy in the SDA enrolled dwelling created by a notice of temporary relocation or notice to vacate before the end of the relevant period under subsection (1)(b).
If a person is or becomes entitled to give 2 or more notices of intention to vacate or notices to vacate under this Division—
(a) the invalidity of any of the notices does not affect the validity of any other notice; and
(b) each valid notice has full force and effect.
(1) An SDA resident may give a notice of intention to vacate to the SDA provider at any time.
(2) A notice of intention to vacate must—
(a) be given in writing; and
(b) specify the date on which the SDA resident intends to vacate the SDA enrolled dwelling.
(3) A notice of intention to vacate may be given in writing on behalf of the SDA resident by the SDA resident's guardian or the SDA resident's administrator, if any.
(4) The SDA provider must notify the following persons of the details of a notice of intention to vacate given under this section within 24 hours of the notice of being received by the SDA provider—
(a) if the notice was given by an SDA recipient, the Chief Executive Officer of the NDIA;
(b) the Public Advocate;
(c) if the notice was not given under subsection (3), the SDA resident's guardian or the SDA resident's administrator, as the case requires.
(1) A notice of temporary relocation, a notice to vacate or a notice of intention to vacate may only be withdrawn if a notice of withdrawal is given.
(2) A notice of withdrawal may be given at any time before the SDA resident has vacated the SDA enrolled dwelling.
(3) A notice of withdrawal must be—
(a) in writing; and
(b) signed by the person who gave the notice that is being withdrawn; and
(c) given to the person who was given the notice that is being withdrawn.
(1) An SDA resident may apply to the Tribunal for a review of the issue of a notice to vacate on the ground that the notice to vacate is not valid because—
(a) of a defect on the face of the notice to vacate; or
(b) the notice to vacate was not issued in accordance with this Part; or
(c) the ground on which the notice was issued is not established.
(2) If an application under subsection (1) is made to the Tribunal in respect of a ground specified in section 498ZX(1)(b), (c), (d), (e), (f), (g), (h), (i), or (j) and the SDA provider first gave the SDA resident a notice of temporary relocation on a ground corresponding to that given in the notice to vacate, the Tribunal must also consider the validity of the notice of temporary relocation.
(3) An application to the Tribunal under subsection (1) must be made within 90 days of the day on which the notice to vacate was issued.
(4) On an application under this section, the Tribunal may only determine whether or not the notice to vacate is valid and if subsection (2) applies, whether or not the notice of temporary relocation is valid.
(5) The Tribunal may—
(a) if it determines that the notice to vacate is valid, confirm the notice to vacate; or
(b) if it determines that the notice to vacate is not valid, declare that the notice to vacate is invalid; or
(c) if subsection (2) applies and it determines that the notice of temporary relocation is not valid, declare the notice of temporary relocation and the notice to vacate are invalid; or
(d) dismiss the application.
(1) If a mortgagee in respect of an SDA enrolled dwelling becomes entitled to possession of, or to exercise a power of sale in respect of, the SDA enrolled dwelling under a mortgage, the mortgagee may give the SDA resident a notice to vacate the SDA enrolled dwelling.
(2) A notice to vacate under this section—
(a) must specify the ground on which the notice is given; and
(b) must specify a termination date that is not less than 90 days after the date on which the notice is given; and
(c) must be signed by the mortgagee; and
(d) must be given to—
(i) the SDA resident; and
(ii) the SDA resident's guardian or the SDA resident's administrator, if any.
(3) The mortgagee must notify the Chief Executive Officer of the NDIA and the Public Advocate of the details of a notice to vacate within 24 hours of the notice being given to an SDA recipient.
Penalty: 20 penalty units.
(4) The mortgagee must notify the Public Advocate of the details of a notice to vacate within 24 hours of the notice being given to a CoS supported accommodation client.
Penalty: 20 penalty units.
(1) An SDA provider may apply to the Tribunal for a possession order for the area or room of an SDA enrolled dwelling exclusively occupied by an SDA resident if the SDA provider has given the SDA resident a notice to vacate the SDA enrolled dwelling.
(2) An application under subsection (1) may be made at any time after the notice to vacate is given but not later than 30 days after the termination date specified in the notice to vacate.
(3) An SDA provider may apply to the Tribunal for a possession order for an SDA enrolled dwelling if—
(a) the SDA resident has given the SDA provider a notice of intention to vacate the SDA enrolled dwelling; and
(b) the SDA resident has not delivered up vacant possession of the area or room of the SDA enrolled dwelling that was occupied by the SDA resident.
A mortgagee of an SDA enrolled dwelling may apply to the Tribunal for a possession order for the SDA enrolled dwelling if—
(a) the mortgagee has given each SDA resident occupying the SDA enrolled dwelling a notice to vacate the SDA enrolled dwelling that specifies a termination date not less than 90 days after the notice is issued; and
(b) one or more of the SDA residents that were occupying the SDA enrolled dwelling have not delivered up vacant possession of the SDA enrolled dwelling within 90 days after the date of the notice to vacate given under paragraph (a).
The Tribunal must not determine an application for a possession order under this Division before the termination date specified in the notice to vacate or notice of intention to vacate accompanying the application.
(1) The Tribunal must make a possession order on an application under section 498ZZE(1) requiring an SDA resident to vacate the SDA enrolled dwelling on the day specified in the order if the Tribunal is satisfied that—
(a) the SDA provider was entitled to give the notice to vacate; and
(b) the notice to vacate has not been withdrawn.
(2) A possession order must not be made in respect of more than one SDA resident.
(3) The day specified in the order of the Tribunal under subsection (1) cannot be earlier than the termination date specified in the notice to vacate.
(4) The Tribunal must make a possession order on an application under section 498ZZE(3) requiring an SDA resident to vacate an SDA enrolled dwelling on the day specified in the order if the Tribunal is satisfied that—
(a) a notice of intention to vacate has been given by an SDA resident and has not been withdrawn; and
(b) the SDA provider acted reasonably by relying on the notice of intention to vacate.
(1) The Tribunal may dismiss or adjourn an application for a possession order under section 498ZZE(1) that is supported by a notice to vacate issued on the ground specified in section 498ZX(1)(a) if the Tribunal considers that satisfactory arrangements have been or can be made to avoid financial loss to the SDA provider.
(2) An adjournment may be on any terms the Tribunal considers appropriate.
(3) On the resumption of an adjourned hearing of an application for a possession order that is supported by a notice to vacate issued on the ground specified in section 498ZX(1)(a), the Tribunal—
(a) may make a possession order if the SDA resident has continued to accrue arrears of rent during the adjournment period; and
(b) must dismiss the application if the SDA resident—
(i) has paid all the arrears which were the subject of the original application; and
(ii) has accrued no further arrears of rent from the time of the application to the date of resumption of the adjourned hearing.
(1) A possession order must include—
(a) the day (being a day not more than 30 days after the day on which the possession order is made) by which the SDA resident must vacate the SDA enrolled dwelling; and
(b) a direction to the SDA resident to vacate the SDA enrolled dwelling by the day specified in the order; and
(c) a direction to the principal registrar to issue a warrant of possession in accordance with section 498ZZP on the application of the person who obtained the possession order.
(2) A possession order for an SDA enrolled dwelling must also include a warning that if the SDA resident fails to comply with the direction in subsection (1)(b), the SDA resident may be forcibly vacated from the SDA enrolled dwelling by a police officer or an authorised person carrying out a warrant of possession.
Despite section 498ZZH, the Tribunal must not make a possession order if—
(a) the application for the order is supported with a notice to vacate issued on a ground specified in section 498ZX(1)(l); and
(b) the Tribunal is satisfied that—
(i) the failure to comply with an order of the Tribunal was trivial or has been remedied as far as possible; and
(ii) there will not be any further breach of the duty; and
(iii) the breach of duty is not a recurrence of a previous breach of duty.
If a possession order is made under this Division in respect of an SDA enrolled dwelling, the SDA residency agreement terminates at the end of the day before the day on which possession of the SDA enrolled dwelling is delivered up to the SDA provider or mortgagee.
A possession order under this Division must—
(a) direct the principal registrar to issue without delay a warrant of possession against a person issued with a notice to vacate who occupies an SDA enrolled dwelling; or
(b) provide that notice in the form prescribed by the rules of the Tribunal be served without delay on the person issued with a notice to vacate who occupies the SDA enrolled dwelling requiring them—
(i) to appear before the Tribunal on a day after the end of 7 days after the giving of the notice; and
(ii) to show cause why a warrant of possession should not be issued.
If a possession order under this Division requires a notice to be given, the applicant for the order must—
(a) serve a copy of the order and the notice on the person issued with a notice to vacate who occupies the SDA enrolled dwelling; and
(b) if any other person who is not subject to the possession order occupies the SDA enrolled dwelling, notify that person that the person is not subject to the possession order.
This Subdivision has effect despite anything to the contrary in any other provision of this Act.
(1) A person who obtains a possession order under section 498ZZE may apply to the principal registrar for a warrant of possession—
(a) immediately if the possession order so provides; or
(b) within 6 months after the date of the possession order if the SDA resident fails to comply with the possession order.
(2) An application under this section must be accompanied by the prescribed fee, if any.
(3) Subject to this Subdivision, a warrant must be executed within the time stated in the possession order which must not exceed 30 days after the date of issue of the warrant.
(1) On the application of the person who obtained the warrant of possession, the Tribunal may from time to time make an order extending the time by which the warrant of possession may be executed.
(2) An order under subsection (1) must not at any one time extend the time by which a warrant of possession may be executed by more than 30 days after the day on which the time for execution of the warrant would otherwise expire.
(3) An order may not be made under subsection (1) if the time for execution of the warrant has passed.
(1) A warrant of possession must—
(a) be in a form prescribed by rules made under the Victorian Civil and Administrative Tribunal Act 1998 ; and
(b) be directed—
(i) to a police officer; or
(ii) to an authorised person; and
(c) give brief details of the possession order; and
(d) be signed by the principal registrar.
(2) The warrant of possession authorises the person to whom it is directed—
(a) to enter the SDA enrolled dwelling, by force if necessary; and
(b) with such assistance as is necessary to compel persons referred to in the possession order to vacate the SDA enrolled dwelling and give possession of the dwelling to the applicant for the order under which the warrant is issued.
(3) A warrant of possession does not authorise the person to whom it is directed to remove any goods from an SDA enrolled dwelling.
(4) Entry under a warrant of possession must not be made—
(a) between the hours of 6 p.m. and 8 a.m.; or
(b) on a Sunday or public holiday.
(5) The Minister may authorise any person or class of persons either generally or in a particular case to execute warrants of possession.
(1) A possession order under this Division is discharged if the applicant for the order does not, within 6 months after the date of the order, apply for the issue of a warrant of possession.
(2) A warrant of possession under this Part lapses if it is not executed—
(a) subject to paragraph (b), within the time stated in the order; or
(b) if the Tribunal has extended the time within which a warrant may be executed, within the further time that the Tribunal by order allows.
(3) The Tribunal may at any time cancel a warrant of possession issued under this Division.
As soon as practicable, but not later than 60 days after a warrant of possession is issued, the person to whom the warrant is addressed must—
(a) return the warrant to the principal registrar; and
(b) specify in writing whether the warrant has or has not been executed.
(1) The Tribunal may provide in a possession order under this Subdivision in relation to an SDA enrolled dwelling that the issue of a warrant of possession be postponed for a period specified in the order, if the Tribunal is satisfied that—
(a) the SDA resident would suffer hardship if the issue of the warrant were not postponed; and
(b) the hardship would be greater than any hardship that the SDA provider or mortgagee (as the case may be) would suffer because of the postponement.
(2) The period of postponement specified in the order must not exceed 30 days after the date that the order is made.
(3) This section does not apply to an order made on the application of an SDA provider who has given a notice to vacate the SDA enrolled dwelling on a ground specified in section 498ZX(1)(b), (d) or (e).
On the application of the SDA provider or mortgagee of an SDA enrolled dwelling, the Tribunal may order that a warrant of possession be issued without delay if the Tribunal is satisfied that, during any period of postponement specified in an order under section 498ZZU, an SDA resident—
(a) has failed to pay any rent accrued due; or
(b) has otherwise contravened section 498N.
This Division applies if the SDA residency agreement in respect of an SDA enrolled dwelling has been terminated and goods have been left behind at the dwelling.
In this Division—
"former SDA provider " means an SDA provider who, before the termination of an SDA residency agreement, was—
(a) registered under the NDIS to be a registered provider of supports; and
(b) the owner or leaseholder of the SDA enrolled dwelling;
"former SDA resident " means an SDA resident who received funding under the NDIS to reside in an SDA enrolled dwelling before the termination of an SDA residency agreement;
"SDA enrolled dwelling owner", in relation to an SDA enrolled dwelling in respect of which an SDA residency agreement has been terminated, means—
(a) the former SDA provider; and
(b) either—
(i) the owner of the SDA enrolled dwelling; or
(ii) a mortgagee who has secured a mortgage against the SDA enrolled dwelling;
"stored goods", in relation to an SDA enrolled dwelling in respect of which an SDA residency agreement has been terminated, means goods left behind on the SDA enrolled dwelling which are stored in accordance with section 498ZZZD.
If a former SDA resident leaves behind personal documents, the SDA enrolled dwelling owner—
(a) must take reasonable care of the personal documents for a period of 90 days; and
(b) may remove but must not destroy or dispose of the personal documents, except in accordance with this Division; and
(c) must take reasonable steps to notify the former SDA resident and the former SDA resident's administrator or the former SDA resident's guardian (if any) as to when and from where the documents may be collected.
(1) If personal documents have not been reclaimed by a person who has a lawful right to the documents by the end of the 90 day period referred to in section 498ZZY(a), then at the end of that period, the SDA enrolled dwelling owner may dispose of the personal documents.
(2) Nothing in this section affects the operation of any other Act or law affecting the destruction or disposition of the documents.
Note
It may be an offence under certain legislation of the State and Commonwealth to destroy certain documents.
(1) A person who has a lawful right to the personal documents may reclaim the personal documents left behind at any time before they are disposed of in accordance with section 498ZZZ.
(2) If a person who has a lawful right to personal documents reclaims the documents, the SDA enrolled dwelling owner must not refuse to give the documents to that person.
Penalty: 60 penalty units in the case of a natural person;
300 penalty units in the case of a body corporate.
This Subdivision does not apply to personal documents.
(1) If goods have been left behind, the SDA enrolled dwelling owner may remove and destroy or dispose of the goods if—
(a) the goods are of no monetary value; or
(b) the goods are perishable foodstuffs; or
(c) the goods are dangerous.
(2) If goods of monetary value have been left behind, the SDA enrolled dwelling owner may remove and destroy or dispose of the goods if the total estimated cost of the removal, storage and sale of all the goods combined is greater than the total monetary value of all the goods combined.
(3) Subsection (2) does not apply to goods to which subsection (1) applies.
(4) Nothing in this section affects the operation of any other Act or law affecting the removal, destruction or disposal of goods.
Note
Other legislation of the State and Commonwealth may deal with the disposal of goods for example, the Dangerous Goods Act 1985 .
(1) An SDA enrolled dwelling owner must store goods (other than goods which may be removed and destroyed or disposed of under section 498ZZZC) which are left behind at the SDA enrolled dwelling in a safe place and manner for not less than 28 days.
(2) Before the end of 7 days after goods are stored under subsection (1), if the former SDA resident has given the SDA enrolled dwelling owner a forwarding address, the SDA enrolled dwelling owner must send a notice in the prescribed form to the former SDA resident at that address.
(1) A person who has a lawful right to stored goods may reclaim the goods at any time before the goods are sold if the person pays the SDA enrolled dwelling owner the reasonable costs incurred by an SDA enrolled dwelling owner—
(a) in notifying the former SDA resident; and
(b) in the removal and storage of the goods; and
(c) in organising the sale of the goods.
(2) If a person who has a lawful right to stored goods pays the costs set out in subsection (1), the SDA enrolled dwelling owner must not refuse to give the goods to that person.
Penalty: 20 penalty units.
If stored goods left behind are not reclaimed within 28 days after the date on which they became stored goods, the SDA enrolled dwelling owner must cause the goods to be sold by public auction as soon as practicable.
An SDA enrolled dwelling owner must advertise the sale of stored goods by public auction in the prescribed form in a newspaper circulating generally throughout Victoria at least 14 days before the auction.
(1) If stored goods are sold by public auction within 8 weeks after the date on which the goods became stored goods, the SDA enrolled dwelling owner is entitled to retain out of the proceeds of sale—
(a) the reasonable costs incurred in—
(i) removing and storing the goods; and
(ii) trying to notify the former SDA resident; and
(iii) selling the goods; and
(b) any money owed to the SDA enrolled dwelling owner under a Tribunal determination.
(2) An SDA enrolled dwelling owner must deal with any money left over after any deductions under subsection (1) in accordance with Part 3 of the Unclaimed Money Act 2008 as if the SDA enrolled dwelling owner were a business to which that Part applies.
(3) If stored goods are offered for sale at a public auction in accordance with section 498ZZZG and are not sold, the SDA enrolled dwelling owner may dispose of the stored goods.
(4) An SDA enrolled dwelling owner is not liable to anyone for loss or damage caused as a result of—
(a) the sale of stored goods in accordance with this Division; or
(b) the disposal of stored goods in accordance with subsection (3).
A purchaser of stored goods sold in accordance with this Division has good title unless the purchaser has notice of—
(a) a defect in title or want of title in the former SDA resident; or
(b) a failure of the SDA enrolled dwelling owner to comply with this Division in relation to the sale of the goods.
If the SDA enrolled dwelling owner destroys, disposes of or sells a former SDA resident's goods or personal documents, otherwise than in accordance with this Division, the former SDA resident or a person who has a lawful right to those goods or documents may apply to the Tribunal for compensation.
If an SDA enrolled dwelling owner wrongfully retains and refuses to give up goods or personal documents left behind, the former SDA resident or a person who has a lawful right to those goods or documents may apply to the Tribunal for an order for the return of the goods or personal documents, or for compensation, or both.
If the SDA enrolled dwelling owner wilfully or recklessly damages or loses stored goods or personal documents, a former SDA resident or a person who has a lawful right to those goods or documents may apply to the Tribunal for compensation.
If an SDA enrolled dwelling owner has sold a former SDA resident's stored goods in accordance with this Division, the former SDA resident or a person who has a lawful right to those goods is not entitled to the return of the goods but may apply to the Tribunal for a declaration that the money dealt with in accordance with Part 3 of the Unclaimed Money Act 2008 should be paid to that person.
On an application under this Division, the Tribunal may—
(a) in the case of an application under section 498ZZZJ or 498ZZZL, make an order for compensation; or
(b) in the case of an application under section 498ZZZK—
(i) make an order for the return of the goods or personal documents; or
(ii) make an order for compensation; or
(iii) make an order for both compensation and the return of the goods or personal documents; or
(c) in the case of an application under section 498ZZZM, make a declaration in accordance with that section; or
(d) dismiss the application.
AN SDA provider or an SDA provider's agent must not, without reasonable excuse, enter an SDA enrolled dwelling otherwise than in accordance with Division 6.
Penalty: 20 penalty units.
(1) An SDA provider or a person acting on behalf of an SDA provider must not, except in accordance with this Part, require or compel or attempt to compel the SDA resident under the SDA residency agreement to vacate the SDA enrolled dwelling.
Penalty: 60 penalty units in the case of a natural person;
300 penalty units in the case of a body corporate.
(2) An SDA provider or a person acting on behalf
of an SDA provider must not, except in accordance with this Part, obtain or
attempt to obtain possession of the SDA enrolled dwelling by entering the
SDA enrolled dwelling, whether the entry is peaceable or not, unless there are
reasonable
grounds to believe that the SDA resident has abandoned the
SDA enrolled dwelling.
Penalty: 60 penalty units in the case of a natural person;
300 penalty units in the case of a body corporate.
A person must not make, in relation to an SDA residency agreement or a proposed SDA residency agreement or a right or duty under this Part, a false and fraudulent misrepresentation as to—
(a) a provision of this Part; or
(b) a term included or to be included in the SDA residency agreement; or
(c) a matter affecting a person's rights or duties under this Part or an SDA residency agreement or proposed SDA residency agreement.
Penalty: 60 penalty units in the case of a natural person;
300 penalty units in the case of a body corporate.
A person must not, in relation to an SDA residency agreement, a proposed SDA residency agreement or a right under this Part, by threat or intimidation persuade or attempt to persuade a party to the SDA residency agreement or proposed SDA residency agreement not to exercise their rights to take or continue proceedings under this Part.
Penalty: 60 penalty units in the case of a natural person;
300 penalty units in the case of a body corporate.
A person must not, in relation to an SDA residency agreement, a proposed SDA residency agreement or right under this Part, aid, abet, counsel or procure the commission of an offence against this Part.
Penalty: 60 penalty units in the case of a natural person;
300 penalty units in the case of a body corporate.
A person must not demand or accept from an SDA resident under an SDA residency agreement who has failed to comply with the SDA residency agreement or with any provisions of this Part relating to the SDA residency agreement the payment by reason of the failure of any amount other than—
(a) subject to this Part, rent under the SDA residency agreement; or
(b) an amount or penalty provided for in this Part.
Penalty: 60 penalty units in the case of a natural person;
300 penalty units in the case of a body corporate.".
Division 2—Consequential amendments