Housing and Tenancy

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Notice to vacate for no specified reason

Summary of no reason notices

Section 263 of the RTA allows a landlord to issue a notice to vacate (NTV) for no specified reason, so long as the termination date is at least 120 days after the date on which the notice is given.

If the tenancy is a fixed term tenancy, a 120 day notice must specify a termination date that is after the expiry date of the fixed term tenancy (see s 266(1)(b)).

A no reason notice cannot be given in retaliation

Section 266 of the RTA provides that a no reason 120 day NTV is of no effect where it was given in response to the exercise, or proposed exercise, by the tenant of a right under the RTA. Whether a NTV has been ‘given in response’ to a tenant’s exercise of rights is a question of fact to be determined by VCAT.

VCAT has adopted a two-step process for determining section 266 applications (See Fitzgibbon v Borazio (Residential Tenancies) [2008] VCAT 319, [6] ):

1.     firstly, the Applicant must provide proof of a nexus between the exercising or proposed exercising of his or her rights and the NTV; and

2.     secondly, if a nexus is found to exist, the landlord must prove that the reason for issuing the NTV is not retaliatory.

A tenant is only entitled to challenge the validity of a no reason NTV within 60 days of the NTV being issued. (s 266(3) of the RTA).

Examples

Cases

Facts

VCAT’s comments

Notice found to be…

Brenneman v Josula (Residential Tenancies) [2013] VCAT 2053

 

The landlord issued a NTV two days after the tenant threatened to commence VCAT proceedings relating to a faulty oven door.

A clear inference could be drawn between the issuing of the NTV and the tenant’s  proposed exercise of a right.

Invalid, as it was issued in response to the exercise, or proposed exercise, by the tenant of a right under the RTA.

Fitzgibbon v Borazio (Residential Tenancies) [2008] VCAT 319

 

The landlord issued a NTV a day after VCAT ordered the landlord pay compensation for repairs.

VCAT was satisfied that the NTV was not in response to the tenant exercising her rights, but was a result of the landlord deciding as a result of the VCAT hearing that it was time to change the condition of the premises or sell them.

Valid, as it was not issued in response to the exercise, or proposed exercise, by the tenant of a right under the RTA

Inner East Rooming House Group v Edmunds (Residential Tenancies) [2011] VCAT 2168

 

 

 

The tenant argued the NTV was in retaliation to an altercation she had with her landlord a week earlier relating to taking photos in a common area, and other incidents involving the landlord spanning some 5+ years.

VCAT was persuaded by evidence from 5 tenants supporting the landlord’s argument that the NTV was issued because of the tenant’s harassing behaviour. This was a legitimate, non-retaliatory reason for issuing the NTV.

McGrath v Barnett (Residential Tenancies) [2013] VCAT 1510

 

The tenant argued the NTV was in retaliation for playing her music too loudly and for not paying her rent.

 

Playing music loudly and not paying rent do not constitute exercising rights under the RTA. Accordingly, the NTV was not retaliatory.

Form of NTV

Section 319 of the RTA sets out the proper form of a notice to vacate:

A notice to vacate given under this Part is not valid unless—

        (a)     it is in the relevant prescribed form; and

        (b)     it is addressed to the tenant, resident or site tenant (as the case requires); and

        (c)     it is signed by the person giving the notice or by that person's agent; and

        (d)     except in the case of a notice under section 263, 288314, 317ZF or  317ZG, it specifies the reason or reasons for giving the notice; and

        (e)     it specifies the date by which compliance is required (the termination date ).

As emphasised in Smith v Director of Housing with respect to the prescribed requirements of the notice to vacate under the Act:

These conditions are conditions precedent to the validity of the notice. If they are not all present the notice is invalid. In the absence of some saving provision in the Act a notice which is deficient in one or other of the requirements referred to is void and of no effect.

It is therefore important to scrutinise the validity of the NTV to ensure technical compliance with the Act and Regulations. For example, if the NTV specifies a reason, an argument should be mounted that it is invalid as it does not comply with section 319(d) of the Act (and Form 3 of Schedule 1 of the Residential Tenancies Regulations).

Finally, it is important to ensure that service of the NTV complies with the requirements of s 506 of the Act in relation to service, in particular in relation to minimum notice period. See commentary in the Annotated RTA for further detail.

Incarcerated clients

If an incarcerated tenant is absent from a public housing property for more than six months, the Office of Housing may take action to regain possession of the property, generally by serving the tenant with a 120 day no reason notice to vacate. See Temporary absences from public housing for further information.