Section 91S: Application to Tribunal for creation of residential rental agreement > > (1) A person who has been residing in rented premises as that person's principal place of residence and who is not a party to a residential rental agreement applying to those premises may apply to the Tribunal for an order requiring the residential rental provider of the premises to enter into a residential rental agreement with the person if - > > (a) an application for a possession order for the premises has been made under Part 7; or > > (b) the renter has abandoned the rented premises; or > > (c) the renter has delivered up vacant possession of the rented premises; or > > (d) the renter has given a notice of intention to vacate the rented premises; or > > (e) the renter has died and there is no surviving renter. > > (2) This section does not apply to a person who becomes a renter of a residential rental provider under section 91R.

To create a rental agreement, the Tribunal must be satisfied of each of the criteria set out under section 91T of the RT Act:

Section 91T: Order of Tribunal to enter into residential rental agreement > > (1) The Tribunal may make an order requiring the residential rental provider to enter into a residential rental agreement with the applicant under section 91S if satisfied that - > > (a) the applicant could reasonably be expected to comply with the duties of a renter under a residential rental agreement to which this Act applies; and > > (b) the applicant would be likely to suffer severe hardship if the applicant were compelled to leave the premises; and > > (c) the hardship suffered by the applicant would be greater than any hardship that the residential rental provider would suffer if the order were made. > > (2) The residential rental agreement must - > > (a) be entered into before the end of the time stated in the order; and > > (b) be on the same terms and conditions as the residential rental agreement which applied in respect of the rented premises before the order is made, subject to any changes that the Tribunal determines.

The Occupant's request to stay at the rented premises was made in the context of the rental agreement with his sister being terminated. Section 91N of the RT Act provides the process for terminating an agreement where the sole renter dies:

Section 91N: Termination after death of sole renter > > (1) If a renter dies, the residential rental agreement terminates at the earliest of the following dates - > > (a) the termination date specified in the notice of intention to vacate given under subsection (2); or > > (b) the termination date specified in the notice to vacate given under subsection (3); or > > (c) the termination date specified in the Tribunal order under subsection (5); or > > (d) a date agreed in writing between the residential rental provider and the legal personal representative or next of kin of the deceased renter. > > (2) The legal personal representative or next of kin of the deceased renter may give the residential rental provider a notice of intention to vacate the rented premises due to the death of the renter specifying a termination date, which, in the case of a fixed term residential rental agreement, may be a date before the end of that agreement. > > (3) The residential rental provider may give the legal personal representative or next of kin of the deceased renter a notice to vacate the rented premises due to the death of the renter specifying a termination date, which, in the case of a fixed term residential rental agreement, may be a date before the end of that agreement.

Where a rental agreement has terminated, the rental provider, being the Owner in this case, can make application to the Tribunal for possession of the rented premises where it is being occupied by a person without consent or licence:

Section 344: Application for possession order if premises occupied without consent > > (1) A person who claims to be entitled to the possession of premises may apply to the Tribunal for a possession order if - > > (a) the premises have been rented premises under a residential rental agreement at any time within the period of 12 months before the date of the application; and > > (b) the applicant alleges that the premises are occupied solely by a person (not being a renter under a residential rental agreement) who entered into or remained in occupation without the applicant's licence or consent or that of any predecessor in title of the applicant.

If satisfied that the applicant is entitled to possession of the premises and there are reasonable grounds for believing that a person is occupying the premises without licence or consent, the Tribunal must make a possession order with the immediate issue of a warrant of possession in accordance with sections 345 and 346 of the RT Act.

1. The Owner provides a number of services to the local community of Robinvale, including crisis accommodation, cultural and education activities. To use these services, you must be a member of MVAC and not be a member of any other Aboriginal community controlled organisation.
2. The renter entered into a rental agreement with the Owner on 16 April 2021 for the rented premises ('the rental agreement').
3. On 12 May 2023, the renter wrote to the Owner requesting that the Occupant, who had been caring for her for a few months, be listed on the residential rental agreement. The request was refused on the basis that the Occupant did not meet the criteria for renting the premises.
4. The renter died on 16 September 2023.
5. In the following months, the Owner attempted to terminate the rental agreement, by serving notices to vacate on the Occupant, and the Occupant sought to stay.
6. On 13 October 2023, the Occupant was told he would not be offered a rental as he did not meet the relevant criteria for accommodation managed by the Owner.
7. On 19 December 2023, an application was made to the Tribunal to seek to terminate the rental agreement.[1] This application was subsequently struck out as each of the notices to vacate relied on had not been properly served.
8. Later in December 2023, the Occupant filed an application seeking to create a rental agreement.[2]
9. Due to issues associated with the Tribunal lacking power to terminate the rental agreement with the renter until the same was validly ended by the Owner or the next of kin, the Occupant's application was placed on hold.
10. In January 2025, the Owner sent the Occupant, as next of kin, a notice to vacate. It was also sent by registered post to the rented premises addressed to the deceased renter (as required by section 506(3) of the RT Act). The rental agreement terminated on 7 February 2025, the termination date specified in the notice to vacate.
11. On 13 February 2025, the Owner then filed this application for possession under section 344 of the RT Act.[3]

CONSIDERATION OF CRITERIA FOR CREATION OF RENTAL AGREEMENT

1. With the rental agreement having been validly terminated, but for the application by the Occupant for the creation of a rental agreement, the Owner would be immediately entitled to possession. As such a consideration of the Occupant's rights to remain in possession need to be assessed in the context of whether or not he should become a renter.

1. It is disputed that the Occupant was a person entitled to make the application under section 91S of the RT Act. The Owner submits that the Occupant is not currently residing at the rented premises fulltime and that its own Chief Executive Officer has rarely seen him.
2. The Owner submits that residency, as at the date of the hearing, is relevant. I disagree. The wording in section 91S relates to the eligibility of the applicant to make the application. It cannot be that the pre-requisite criteria for lodging an application as set out in section 91S is intended to extend to the date of the hearing.
3. I accept the evidence of the Occupant that he moved into the rented premises to care for his sister in about March 2023 and remained there and considered it to be his principal place of residence right up to December 2023 when he lodged the application.
4. This is consistent with the renter asking to have the Occupant added to the rental agreement in May 2023 and the Owner denying these requests in October 2023.
5. I am satisfied that the Occupant was entitled to make the application to the Tribunal for the creation of a rental agreement with the Owner.

1. The creation of a rental agreement is a discretionary power given to the Tribunal, but it can only be exercised if the cumulative criteria under section 91T of the RT Act is satisfied.
2. The Occupant's subsequent use of the rented premises, and alternative accommodation options is a relevant consideration in determining the hardship to the Occupant.

Section 91T(1)(a): Can the Occupant be reasonably expected to comply with the duties of a renter under a residential rental agreement to which the RT Act applies?

1. It is difficult to know if the Occupant would be likely to comply with all the duties and obligations of a renter under a rental agreement, as there was no evidence of any rental history.
2. The Occupant is in receipt of Centrelink benefits and it appears that he would be able to pay the rent that would apply to his occupation of the property. No rent has however been accepted by the Owner for the Occupant's occupation for the past two years, despite offers being made.
3. The Occupant has additionally produced evidence of his payment of utilities during the relevant period.
4. The Owner has suggested that neighbouring residents have raised issue with the Occupant's behaviour, however no-one is prepared to provide evidence of this for fear of retribution. Unsubstantiated whispers of non-compliance with a renter's obligations under the RT Act carry no weight at all.
5. With the Occupant in receipt of regular income from Centrelink to support the payment of rent, his payment of utilities and no substantial evidence of any non-compliance with the duties and obligations of a renter under the RT Act for his almost 30 month period of occupation, I am satisfied that the Occupant can be reasonably expected to comply with the duties of a renter under a rental agreement.

Section 91T(1)(b): Is the Occupant likely to suffer severe hardship if compelled to leave the premises?

1. While the Occupant's living arrangements at the time of the hearing are not relevant to his standing to make the application, it is relevant to whether he would suffer severe hardship by being compelled to leave the premises.
2. The Occupant provided various letters and documents to prove that he was using the rented premises as his principal place of residence, but as the Owner rightly points out, many of these were some 12 months old.
3. However, oral evidence was also provided by the Occupant, who disputed suggestions by the Owner that he was hardly ever there and instead spent most of his time in Echuca.
4. The Owner's CEO says that he works 150 metres away from the rented premises approximately four days a week, and lives less than 50 metres away when on site. He says he has only seen the Occupant, or the cars he has, a handful of times over the past year.
5. The Occupant disputes claims he is rarely at the rented premises but acknowledges he has visited and stayed with family and also attended doctors' appointments out of town.
6. The Occupant gave evidence that he has no friends or family that he could live with, with one of his brothers also residing at the property. He says that if he was compelled to leave the rented premises he would be homeless and end up living on the river bank.
7. The Occupant gave evidence about how being compelled to leave the rented premises would significantly impact his physical and mental health.
8. This is the Occupant's case and he must prove on the balance of probabilities that he will suffer severe hardship if compelled to leave the rented premises. He did not call evidence from family, including his daughter who he has previously lived with, or the brother who currently stays with him, to support his claims that he has nowhere else to live.
9. With concessions made by the Occupant about staying away from the rented premises in the past twelve months, with connections and support services being provided to the Occupant in another town, and with contradictory evidence about how often he spends the night at the rented premises, I am not satisfied that the Occupant would suffer severe hardship if compelled to leave the rented premises.
10. As the Occupant has not satisfied this criteria, there is no basis on which I am entitled to consider exercising my discretion to create a rental agreement, and the application must be dismissed.

Section 91T(1)(c): Would the hardship suffered by the Occupant be greater than any hardship that the residential rental provider would suffer if the order were made.

1. It is not necessary for me to consider the third criteria under section 91T(1)(c) of the RT Act, however it is important to point out that the evidence and submissions provided did not satisfy me that the Occupant's hardship in being compelled to leave the property, would outweigh the hardship of the Owner in future management of rented premises.
2. To be able to rent this property, the Occupant needs to meet the Owner's accommodation criteria: being an elderly member of the MVAC co-operative. The Occupant is neither a member or at an age where he qualifies.
3. While there may be other elderly members of the co-op in need of accommodation, I cannot consider their personal circumstances.[4]
4. I can however consider and weigh up the hardship of the Occupant, against the hardship of the Owner, and in particular the impact on the Owner managing its resources and the demands on the administration of its assets, and the criteria for renting this particular property.
5. The Owner provides more than just accommodation to its members. It provides additional services, such as health and other supports. It has a responsibility to its members to assist those within its community, and a decision has been made for particular properties to be purchased and managed for the benefit and assistance of providing stable and appropriate accommodation to elderly members of the co-op, with access to the supports they need. It is a package deal that benefits not only the residents, but ensures the co-op can manage its resources accordingly.
6. The Occupant does not qualify for this property and I am satisfied that providing accommodation to him at this location and in this particular property does cause hardship to the Owner and the delivery of its services and the management of its assets.
7. I am not satisfied that the Occupant's hardship in being asked to leave the property, and being inconvenienced by living for a longer period of time with family who provide him with accommodation intermittently, outweighs the hardship of the Owner should the Occupant be allowed to stay.

Conclusion as to Creation of Rental Agreement

1. While the Occupant appears to be able to comply with the obligations of a renter under a rental agreement to which the RT Act applies, I am not satisfied that the Occupant will suffer severe hardship if compelled to leave the property, or that any hardship will be greater than the Owner.
2. In these circumstances, I do not have any residual discretion to consider whether a rental agreement should be created and the application must be dismissed.

1. As no rental agreement has been created with the Owner, the Occupant is in possession of the rented premises without licence or consent and the Owner having terminated the rental agreement with the renter, is entitled to possession.
2. Under section 345 of the RT Act, there is no discretion to enable the Occupant to stay at the premises and I must make a possession order.
3. Additionally, under section 346, I must direct that the principal registrar issue a warrant without delay.
4. Orders will be made accordingly.

1. It is noted that considerable time has been taken for these reasons to be provided. However, despite the delay, the Occupant will need time to relocate from the property that he has considered to be his home for some 3 years.
2. I am not able to delay the possession order date, or the issue of the warrant. I have however extended the time in which the warrant can be executed by the maximum period, to enable some discretion to be applied by the Owner and Police.

[4] Kovac v Homes Victoria (Residential Tenancies) [2024] VCAT 58.