1. The residential rental provider must enter into a residential rental agreement with the applicant before 02 February 2026.
2. The residential rental agreement will be on the same terms and conditions as the residential rental agreement between the residential rental provider and the former renter.

1. The applicant (Mr Thomas) applied to VCAT under section 91S of the Residential Tenancies Act 1997 (Vic) (the RT Act) seeking orders against Homes Victoria for the creation of a residential rental agreement.
2. The respondent (Homes Victoria), is also the applicant in proceeding R2025/18851 where it is seeking a possession order in relation to the same formerly rented premises (the Premises) under section 344 of the RT Act on the basis that Mr Thomas is occupying the Premises without Homes Victoria's consent.
3. I heard the applications together on 20 January 2026 and gave oral reasons for my decision after which Homes Victoria requested written reasons.
4. The written reasons that follow reflect my oral reasons with amendments relating to grammar, readability and coherence.
5. Section 91S of the RT Act relevantly provides:

(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

(e) the renter has died and there is no surviving renter.

1. It was not in dispute that section 91S(1) (a) and (b) of the RT Act applied to Mr Thomas.
2. It was not in dispute that Mr Thomas was not a party to the rental agreement between Homes Victoria and his mother that commenced in 2005 when he was about 15 years old. However, Homes Victoria did dispute that the Premises was Mr Thomas's principal place of residence as required by section 91S(1) of the RT Act.
3. Several documents in the form of letters and other official correspondence were presented as evidence that the Premises was Mr Thomas's principal place of residence because they were addressed to him there. Mr Thomas also presented a number of Statutory Declarations from neighbours and friends to the effect that he had been living at the Premises for some time.
4. Homes Victoria also presented as evidence correspondence, official documents, Statutory Declarations, including one by Mr Thomas made in 2008, and a current Services Australia contact and address verification document stating that Mr Thomas's residential address was other than the Premises.
5. Mr Thomas gave oral evidence at the hearing and Homes Victoria declined to cross-examine Mr Thomas after I informed Homes Victoria that I may accept Mr Thomas's oral evidence if it goes unchallenged.
6. Mr Thomas gave unchallenged evidence at the hearing that he was incarcerated in about mid 2023 for 99 days and when he was released he returned home to his mother's rented premises to live and care for her until she passed away in August 2024 and that he has never lived anywhere else since leaving prison. It is not in dispute that Mr Thomas notified Homes Victoria of his mother's passing in August 2024.
7. Mr Thomas agreed that he made a Statutory Declaration in 2008 when he was about 18 years old to the effect that he was not residing at the Premises and explained that he made the Statutory Declaration at his mother's request for her financial reasons.
8. Notwithstanding this candid admission by Mr Thomas, I found his evidence to be reliable and credible and, despite the inconsistencies regarding Mr Thomas's principal place of residence arising out of differing postal addresses for him in numerous documents presented in evidence by the parties between about 2008 to 2025, I accept Mr Thomas's evidence given at the hearing that, from at least the date of his release from prison in 2023, his principal place of residence has been the Premises.
9. This is so even though Mr Thomas stated in his submissions that he did temporarily live nearby the Premises with his partner in 2023 because I accept his submission that, as all his belongings remained at the Premises, the Premises remained his principal place of residence. Therefore, I find that Mr Thomas has met all the relevant threshold questions in section 91S of the RT Act to be eligible to apply to VCAT for orders under section 91T of the RT Act.
10. Section 91T of the RT Act relevantly provides:

(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.

1. As to section 91T(1)(a), it was not in dispute that Mr Thomas was in receipt of Centrelink JobSeeker payments therefore, given that the rent would be rebated, I am satisfied that Mr Thomas could afford the rent for the Premises. I also accept Mr Thomas's submission that he has and continues to contribute to the maintenance and upkeep of the Premises. Therefore, I am satisfied that Mr Thomas could reasonably be expected to comply with the duties of a renter under a residential rental agreement to which the RT Act applies.
2. Homes Victoria submitted that there was a history of antisocial behaviour at the Premises with numerous police attendances over the years but, as Mr Thomas had never been named in any related reports, I do not find it proved that Mr Thomas was involved.
3. As to section 91T(1)(b), I am satisfied that Mr Thomas would be likely to suffer severe hardship if he were compelled to leave the premises because, as no alternative housing was offered by Homes Victoria despite Mr Thomas's demonstrated eligibility for social housing and no other viable alternative accommodation options appear to exist, his eviction would likely lead to homelessness.
4. Further, according to a letter dated 19 January 2026 from Mr Thomas's Housing and Homelessness support worker at Tenancy Plus which I accept, if Mr Thomas became homeless, this would likely increase the risk of him reoffending and being incarcerated and would likely make impossible his desire to reconnect with his young children. Additionally, Mr Thomas would lose his connection to his deceased mother's long-term home and may not be able to continue to look after his pet dog.
5. Although there is no definition of 'hardship' or 'severe hardship' in the RT Act, I am satisfied that any real likelihood of homelessness and the ensuing negative effects of such homelessness amounts to severe hardship.
6. As to section 91T(1)(c), Homes Victoria submitted that whilst Mr Thomas has demonstrated eligibility for social housing, he has not demonstrated eligibility for a three-bedroom property being the Premises. Homes Victoria also submitted that they have about 1000 people on their Housing Register waiting list for a one-bedroom unit and about 70 people on their waiting list for a three-bedroom property many of whom were experiencing family violence.
7. Mr Thomas submitted that:

(a) Homes Victoria would not suffer any hardship by entering into a residential rental agreement with him, as he is able to comply with the duties of a renter, including paying rent;

(b) in Cosic v Director of Housing [2007] VSC 486, Justice Forrest provided at [72] that in assessing the hardship a public housing body would suffer, it is relevant to consider 'the proper administration of the Department and, in particular, the waiting list'. It is the hardship of the management of the waiting list, and not those on the waiting list that is relevant;[1]

(c) the Tribunal needs to consider how the creation of a tenancy in favour of the Mr Thomas would cause hardship to Homes Victoria in the context of managing the waiting list. However, in considering the extent and nature of any hardship to Homes Victoria arising from the creation of a tenancy, Mr Thomas submitted the Tribunal should have regard to the following:

(i) Mt Thomas meets the eligibility requirements for housing with Homes Victoria as he is on the Victorian Housing Register awaiting allocation of a 1-bedroom property;

(ii) because no alternative housing was offered by Homes Victoria, the remaining options are creating a lease at the Premises or homelessness;

(iii) having a property with multiple bedrooms would assist Mr Thomas in any application for shared custody of his children;

(iv) as Mr Thomas is currently on the Victorian Housing Register for a one-bedroom property, if he was granted a lease at the Premises, he would be removed from the one-bedroom list. In the matter of Craig v Homes Victoria, the Member considered the hardship to the rental provider's administration of the waiting list to be inconsequential, as entering a rental agreement with the occupant resulted in her removal from the priority list;[2] and

(v) that transfers of this type are allowed for in Homes Victoria's own policies where it considers that a person who has resided at the premises for a minimum of 12 months has sufficient and continuous links to the property and so in determining whether there is severe hardship due to management of the wait list, regard should be had to the fact that transfers of this type are allowed for in Homes Victoria's own policies.

1. I accept the submissions of Mr Thomas and conclude that, because Mr Thomas will be removed from Homes Victoria's housing waiting list if a residential rental agreement is created, the effect on Homes Victoria's administration of the housing waiting list and the Department as a whole is negligible.
2. In other words, I accept that there is always hardship present for Homes Victoria in managing the housing waiting list due to the fact that the need for social housing always outweighs the available supply. However, when comparing the severe hardship likely to be experienced by Mr Thomas if a residential rental agreement were not created to the ongoing hardship faced by Homes Victoria if a residential rental agreement was created, there is only a negligible (if any) increase in Homes Victoria's hardship level because Mr Thomas will be removed from the housing waiting list. Conversely, Mr Thomas would be facing all the negative consequences associated with homelessness if an order for the creation of a residential rental agreement was not made.
3. Therefore, I am satisfied the hardship suffered by Mr Thomas, being severe hardship, would be greater than any hardship that Homes Victoria would suffer if the order were made for the creation of a residential rental agreement.
4. I have already made orders for the creation of a residential rental agreement in Mr Thomas's favour as set out above these reasons.
5. Homes Victoria's application for a possession order on the basis that the Premises is occupied by Mr Thomas without its consent must therefore be dismissed because, as a result of the orders in this proceeding, Mr Thomas is now not occupying the Premises without consent. Separate orders have been made to this effect in proceeding R2025/18851.

[1] Cosic v Director of Housing [2007] VSC 486.

[2] Craig v Homes Victoria (Residential Tenancies) [2024] VCAT 588, at paragraph 43.