The 24/7 Expectation
October 7, 2019

Fluffy Dogs, Cuddly Kittens and….

Of all the proposed changes that formed Premier Daniel Andrews 2018 Political Campaign I would say that the changes in relation to pets in rental properties is not only the most well known but also equally the most controversial and anticipated and now it’s here.

Last week we received notification from Consumer Affairs Victoria that the new pet laws would come into effect on 2nd March 2020 – word has spread fast thanks to the wonders of social media but agents like ourselves are incredibly concerned by the volume of incorrect information being circulated, even more concerning is the impact that a recent Supreme Court decision will have in relation to seeking orders to refuse consent, but I’ll get to that shortly. Today I’d like to take an in depth look into pets in properties, the implications of the new laws and some of the potential issues with the changes.

Pets in Rental Properties- Yesterday

Prior to the introduction of the changes to pet laws in Victoria the legislation never had provisions which required a tenant to ask for permission to have a pet, nor did it accommodate for guidelines in regard to a landlord’s right to have an animal removed from a property. Whilst our leases have always remained stern in relation to pets stating that unless express written consent were given then all animals were strictly forbidden at all properties and a signed pet lease was the only thing to overwrite this clause, the tenancy agreement condition was never enforceable under the Residential Tenancies Act.

Pets in Rental Properties- Today

The new legislation provides that a tenant must now ask for permission from the landlord to keep a pet at the premises. Using the prescribed form from Consumer Affairs the tenant is required to provide the details of the animal they propose to keep at the property and details relating to the animal such as breed, sex, microchip number, council registration etc. A tenant can provide further details relating to the temperament, council permissions required, permits required, suitability to the property, age, training etc. As we understand the additional details are optional and not mandatory. A separate form must be completed for each animal.

A landlord/agent must respond to this request within 14 days. If there is no response within this timeframe, permission to keep a pet is implied.

If a landlord wishes to refuse approval for a pet they must either provide a written order allowing them to do so or advise the tenant in writing that they intend to make an Application to the Victorian Civil and Administrative Tribunal (VCAT) to seek an order of this nature.

VCAT will take all factors into consideration before making an order determining a landlords right to refuse pets in a rental property which will include but not be limited to: - The type of pet the tenant wants to keep or is keeping at the property - The character and nature of the property itself including appliances, fixtures and fittings on the property - Whether refusing consent to keep the pet on the property is allowed under any Act - Any prescribed matters and - Anything else that VCAT considers relevant The order excluding the pet will specify the date on which the order takes effect and where applicable, when the order ends.

It is still unclear at this point whether Owners Corporation Rules relating to animals will be taken into consideration in such applications as the Owners Corporation governs the common property and not the induvial property.

Where an order is granted and the tenant is already keeping the pet on the premises, the tenant must comply with the order within 14 days of receiving it.

If an owner suspects a tenant is keeping a pet on the premises without consent of the landlord, the landlord may apply for an order to exclude the pet from the property but must have valid reason for applying for the order. This will only apply to a pet that was brought into the property after the introduction of the new legislation.

Potential Issues

Realistically, the list of potential issues could be endless but the same could be said about any of the reforms proposed by the Andrews Government or any change to the RTA in the last 30 years but the truth is this introduction feels rushed and leaves more questions than clear answers. It is for that reason the REIV called upon the state Government late last week to hold off on its introduction of new laws surrounding pets until the answers can be provided and some sense of balance could be returned to the issue- but it seems that fell on deaf ears and as such we find ourselves amidst a cloud of confusion and uncertainty on the date the legislation comes into effect.

From their very inception there were concerns surrounding the new laws but its rushed introduction as resulted in far more.

Pet related damage

Even with the introduction of the new legislation it is still illegal to request a pet bond. The new reforms will see that come June property bonds are reduced to the equivalent of 4 weeks rent rather than one calendar month and limits surrounding the right to ask for a higher bond will be increased. This will essentially mean that a landlord will have a bond of four weeks rent in place to protect them against all items of damage above normal wear and tear and pet related damages, in the event that there are both at the conclusion of a tenancy it is unlikely the reduced bond would cover all of these costs. It’s unclear as yet how insurers will amend their policies to account for reduction of bonds and pet related damages.

Pet Definition

Under the current definitions a pet can relate to any animal so we’re not just talking about fluffly little dogs and cuddly cats here, whilst I like to believe that common sense often prevails and we won’t have goats on balconies and ponies in courtyards, the fact remains that little work has been done to provide clear definition, restriction and guidelines in relation to pet laws in Victoria.

Other Acts, Interpretations & consideration of circumstances

Whilst the legislation states that VCAT will take into consideration sections under any other Act apart from the RTA as far as we, as agents, are aware the only consideration will be with regard to local law guidelines in relation to animals, it implies that Owners Corporation rules and regulations will not be taken into consideration.

Furthermore, information released to agents last week state that VCAT will not make a decision on objection applications until it has considered ‘anything else they consider relevant’ but provides no clarification on what they would view in this light. For example, would a landlord who suffers allergies be awarded the right to an order in his/her favour if they could show they have intentions to reside in the property in the near future? Will VCAT consider that a ‘pet is for life’ and therefore whilst they may receive permission at this property for this tenancy there is no guarantee that they will receive permission at future properties then potentially risking the animal being surrendered in 12 months time? Furthermore, who determines the right environment for any particular animal, will landlords and agents be burdened with showing that a 3mx1m rear yard covered in tan bark is not suitable for a goat, a rottweiler or a miniature pony?

VCAT and the Supreme Court

Probably one of the most concerning things about the new laws is the possibility of tenants rushing to have pets in properties based on incorrect information being circulated resulting in owners overloading VCAT with objection applications resulting in a spike of the number of animals surrendered to already overcrowded shelters. In addition, VCAT is a system that is already overworked and struggling to keep up with the demand of applications as it is. This will add further pressure to the Residential Tenancies List that it will simply not be able to cope with and will result in lengthy delays for hearings relating to unpaid rent or bond claims in a landscape where agents and landlords are already frustrated with the delays.

Further to that, a Supreme Court decision on 25th February in a completely unrelated matter has resulted in the VCAT system coming to a standstill on matters where the landlord resides interstate. The case called to question the jurisdiction of VCAT as it is not considered a court of state and therefore cannot make decisions in matters where not all parties reside in Victoria.

The landmark decision means that VCAT will no longer, at least for the time being, hear any case where one party resides interstate or overseas and such matters will need to be referred to the Magistrate’s court which has interstate jurisdiction, again a court system that is already underperforming and constantly under pressure will need to further adapt to accommodate matters of the Residential Tenancies List.

As an agent I’ve always encouraged owners to assess pets on a case by case application taking into consideration their property, the target demographic of the area, the pet in question and its traits, training and requirements and the suitability of the property to the animal and vice versa. But I’ve also been an advocate since the proposal of the changes of a landlords given right to make decisions surrounding the property they have worked hard to ascertain and maintain. The new reforms seem to take that right away from landlords and make it virtually impossible to make a good case for becoming a property investor. One thing is for certain, we will start to see a rapid decline in the availability of rental properties in Victoria as the changes are introduced up until 1st July 2020 and we have the Andrews Government to thank for it.

Leave a Reply

Your email address will not be published.