By Tony Rutherford, Partner
In an effort to further bridge the disconnect between the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), the Residential Tenancies Act 1997 (Vic) (RTA) and the Disability Act 2006 (Vic) in relation to the provision of Specialist Disability Accommodation (SDA), the Victorian Parliament passed the Disability (National Disability Insurance Scheme Transition) Amendment Act 2019 (Vic) (the Act) on 18 June 2019.
The Act makes a number of amendments to the Disability Act and RTA to further clarify the rights of SDA residents in Victoria.
It is essential that SDA owners, SDA providers, SIL providers and SDA residents understand these amendments in advance of commencing an SDA project or entering into a tenancy agreement. Victoria is leading the way in amending legislation to deal specifically with SDA and these changes will likely influence legislative changes in other jurisdictions.
Some of the key takeaways of the new legislation are:
SDA providers must now provide more detailed information to SDA residents around the calculation of any proposed rent increase.
- Termination of Tenancy Agreement and Rights of entry to an SDA dwelling
Additional requirements apply to the provision of a written notice to vacate by an SDA provider and rights of entry to an SDA dwelling. For example:
- notice to vacate:
- a notice to vacate must specify the resident’s right to a review;
- an owner of an SDA dwelling, who is not the SDA provider, may now also issue a notice to vacate in some circumstances; and
- the notice period to be provided to an SDA resident has also been amended for certain circumstances.
- rights of entry:
- all SDA residents must be notified, and agree to the proposed entry if there are multiple residents living in the dwelling; and
- the period of time for notice of entry has been specified for entry under certain circumstances.
- notice to vacate:
- Disclosures and Representations
A new Division has been incorporated to specify the information requirements the SDA provider must disclose to the potential SDA resident before entering into a residency agreement. This has been included to protect the resident from entering into an agreement by way of misleading or deceptive conduct, or coercion or deception.
- Breach of duty
It is no longer relevant whether or not a resident has intentionally breached their duty. Additional considerations must also be taken into account, and if found to have significantly contributed to the breach, will not constitute a breach by the resident.
- Changes to notice of temporary relocation
There are changes to the requirements for issuing a written notice of temporary relocation due to damage or destruction, and considerations that must be made prior to issuing such notice. There are also amendments to the notification requirements that an SDA provider must be aware of should they issue a notice of temporary relocation. Furthermore, any alternative accommodation during a period of temporary relocation must be suitable for the SDA resident.
- Disposal of certain goods left behind
There are changes that deal with the removal, sale and disposal of goods left behind by an SDA resident. Among others, a rightful owner of stored goods no longer needs to pay the SDA dwelling owner to reclaim the goods before they are sold. The rightful owner may also request the proceeds and if no request has been made, the proceeds must be paid into the Residential Tenancies Fund.