Housing and Tenancy

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Possession - when a landlord ends a tenancy

Where the landlord wants to end the tenancy, this must be done in accordance with the Act. In order to evict a tenant or rooming house resident a number of steps must first be completed by the landlord.

What is the process for eviction?

In order to evict a tenant, the landlord must do the following:

  1. Issue and serve a Notice to Vacate  on the tenant
  2. If the tenant does not move out of the premises, the landlord then needs to apply for possession from the VCAT
  3. Attend a hearing at VCAT in relation to the application
  4. Obtain a possession order 
  5. Purchase a warrant and have the warrant executed (thereby removing the tenant from the premises)

Practice tip

When assisting a tenant to challenge eviction proceedings, some general tips include:

Obtain copies of all VCAT documentation

If your client has no documents you will need to contact VCAT

Obtain instructions

Ask your client about:

  • the reasons for the Notice to Vacate and test whether the allegations match up with the legislation;
  • the length of the tenancy and his or her history as a tenant; and
  • any special circumstances that might be relevant to a Charter claim (including disability, mental health, substance misuse, age, cultural and linguistic issues)

When must the tenant move out?

A tenant is not required to leave the premises until a possession order has been made in respect of the premises. If a tenant refuses to leave they may be removed pursuant to a warrant of possession.

How much notice does the tenant get?

There are a variety of Notices to Vacate and time periods vary. As discussed, the tenant does not have to leave until VCAT makes a possession order and the landlord executes a warrant.

A series of notices may be given to tenants:

  • Immediate notices to vacate: May be given for damage (where occurring maliciously), danger (where the safety of occupiers of neighbouring premises is endangered), premises destroyed or unfit for habitation,
  • 14 day Notice to Vacate: For rent arrears, failure to pay bond, use of premises for illegal purpose, assignment or subletting without consent, successive duty breaches by the tenant, failure to comply with VCAT order
  • 60 day Notice to Vacate: Premises to be occupied by landlord's family, premises to be repaired renovated or reconstructed, premises to be demolished, premises to be sold or offered for sale
  • 120 day Notice to Vacate: This notice may be given for 'no reason' and is therefore known as a 'no reason' notice (tenants s 263, residents s 288). Where the landlord / RMO has given this notice in response to the exercise or proposed exercise of a right under the Act, this is known as 'retaliation' and the notice is of no effect (tenants s 266, residents s 289). If retaliation may be argued, both tenants and residents must apply to challenge the notice within 60 days of receiving the notice
  • End of fixed term tenancy: In order to end a fixed term tenancy, a notice must be given within the appropriate time period. For tenancy agreements of 6 months or more, 90 days notice must be given. For fixed term tenancy agreements of less than 6 months, 60 days notice must be given (tenants s 261). This notice can also be challenged on the grounds of retaliation. Also, note that a section 261 notice is not valid if it terminates after the expiry date on the lease. It must terminate on the same date. See RTA commentary at 261.02.

Notices to Vacate

When is a Notice to Vacate valid/invalid?

Under s 319 of the RTA, a Notice to Vacate is not valid unless it is:

  • In the relevant prescribed form; and
  • addressed to the tenant or resident;
  • signed by the person giving the notice or by that person's agent;
  • specifies the reason or reasons for giving the notice (unless given under s 263, 288 or s314); and
  • specifies a termination date by which compliance is required.

Service of Notices to Vacate: In short, a Notice to Vacate must be either (1) personally served on the tenant or (2) sent via registered post.

Reasons: A Notice to Vacate will likely be invalid if it does not provide a sufficiently detailed reason for the notice. The notice must identify - with a sufficient degree of particularity and precision - the facts said to constitute the reason for the notice.  This requirement was considered in the decision of Smith v Director of Housing.

 

Example

In Smith v Director of Housing the landlord gave the tenant a Notice to Vacate for danger and provided an allegation in support of this claim. At the hearing it became apparent that the landlord was attempting to evict the tenant for a number of reasons that had not been included in the Notice to Vacate. The Notice to Vacate was held to be invalid and the application was struck out. If the Notice to Vacate fails to provide a reason, or provides incomplete, inaccurate or insufficient information - there may be grounds to argue that the notice is invalid and the proceeding struck out.

Prescribed form: The prescribed form of Notice to Vacate to be given to a tenant is provided in r 9 and Form 3 in the Schedule to the Regulations. See the Consumer Affairs Victoria website for copies of the form.

Challenging notices to vacate

There are a number of grounds on which a Notice to Vacate may be considered invalid. It is important to check the following in respect of notices to vacate:

  • Insufficient detail: The Act provides the Notice to Vacate must state the reason for which it was given and provide sufficient detail (section 319(d)). It has been held that it is not satisfactory to merely repeat the words of the Act. For example, a Notice which states the reason as 'the tenant has used the rented premises or permitted their use for any purpose that is illegal at common law or under an Act' - would be insufficient because it fails to provide any information about the illegal use referred to.
  • Invalid service: Section 506(3) of the Act provides that Notices to Vacate must be served personally or sent by registered mail.

Note: Section 321B provides tenants or residents who have been given Notice to Vacate under sections 255 to 260 (for tenants) and 285 and 286 (residents) may apply to the Tribunal (VCAT) challenging this Notice. This application must be made within 30 days after the notice is given. It is arguable that these sections do not prevent the tenant from challenging the notice to vacate at the possession hearing, however at this stage if the client is unsuccessful he or she may have far less time in which to search for alternative accommodation. 

Practice tip

Often the reasons given in the application simply restate the Notice to Vacate. Remember to consider whether the application invalidly seeks to raise issues outside the scope of the Notice.

Merit: Where a landlord/RMO serves a Notice to Vacate, he/she must be able to support this notice with evidence. For example, if a Notice to Vacate has been given in relation to repair, renovation or reconstruction of premises, then the landlord/RMO will be required to establish that he/she has the necessary permits and approvals (or booked tradesmen) to start the required works. 


See section 322 and Bundy v Alberts  [2007] VSC 90

VCAT Rules (6.26), applies to Notices to Vacate issued under sections 243, 244, 278, 279, 280, 302, 303 or 304