Housing and Tenancy

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Possession for danger

Under section 244(1) of the RTA, a landlord may give a tenant an immediate notice to vacate if '... the tenant or the tenant's visitor by act or omission endangers the safety of occupiers of neighbouring premises.'

Who is a visitor?

A visitor means a person on rented premises (or premises on which rented premises are situated) with permission (s 3).

What conduct is "dangerous"?

Section 244 of the RTA refers to acts which 'endanger' safety and is therefore not intended to deal with anti-social or a nuisance behaviour. According to the RTA commentary, '[the] purpose of s 244 is accordingly to enable a landlord to give notice where the tenant's or visitor's act or omission seriously endangers the safety of occupiers of neighbouring premises.' (emphasis added)

When is conduct dangerous?

Director of Housing v Pavletic Justice Smith held that "endangers' refers to danger in the "present tense":

'In my view, the prima facie interpretation of the phrase, "endangers the safety of occupiers", is that it refers to a danger to such safety existing at the time of the notice to vacate. The drafter chose the word "endangers" and if it had been intended to have a meaning other than "in endangering", some other form of language would have been used, such as "has endangered".'

Accordingly, the danger must be continuing at the time at which a Notice to Vacate for danger is given to the tenant.

Practice tip

It can sometimes be difficult to determine whether someone is being 'endangered' at the time a Notice to Vacate has been given. Obviously temporal proximity or closeness in time will be relevant to determine whether the danger is ongoing. Other potential issues are the factual context. 

Example

On Monday morning 5 March the tenant allegedly assaulted his neighbour with a cricket bat. On Tuesday afternoon a housing worker attended the rented premises and handed the tenant a Notice to Vacate. If the allegations are proved, is this danger continuing at the time the Notice is given?

The answer may depend on the circumstances. If the incident was an isolated, one off occurrence it may be possible to argue that the danger could not be said to continue. However, if the danger was said to stem from ongoing harassment and intimidation by the tenant, it might be argued that the danger is continuing.

Dangerous to whom?

The provisions of section 244 of the RTA apply to 'occupiers of neighbouring premises' and commentary suggests there must therefore be some connection between the allegedly dangerous act and the tenant's premises.

Is there a discretion to adjourn?

Notices to vacate for danger provide a swift process by which a tenant may be evicted almost immediately from his or her premises. Section 244(2) of the RTA indicates that '[t]he notice may specify a termination date that is the date on which the notice is given or a later date.' Notices to vacate for danger are therefore classified as 'immediate' notices because they permit a landlord to immediately apply to VCAT for possession of premises.

According to section 330(1)(a)(i) of the RTA, the Tribunal must make a possession order where a landlord was entitled to give the notice to vacate. Furthermore, it is also not possible to postpone the issue of a warrant given in relation to section 244 of the RTA (see section 352(3)(a)).

In considering the wording of section 244 of the RTA, Justice Smith made the following comments in Director of Housing v Pavletic [2002] VSC 438 (Pavletic) :

'the intention of the Parliament was to impose a mandatory obligation on the Tribunal to make a possession order where the landlord was entitled to give the notice and it had not been withdrawn.'

Justice Smith also referred in Pavletic to 'the serious consequences that could flow from eviction for the tenant, and for any family the tenant might have, and the absence of any form of discretion or any opportunity to postpone the operation of the order which might ameliorate any harshness of the result,'

Accordingly, if there is no discretion to adjourn or dismiss applications for possession nor is it possible to postpone the issue of a warrant. Although residential tenancies matters are decided on the 'balance of probabilities,' in applications for possession based on danger, 'the Tribunal will act with much care and caution before finding that a serious allegation - that the tenant or visitor has endangered the safety of occupiers of neighbouring premises - is established: see Briginshaw v Briginshaw (1938) 60 CLR 336.'

What are the formal requirements?

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. 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. In relation to 'danger' notices, it might therefore be expected that a reason would provide details of the times, dates, incidents and affected individuals.

What evidence?

See also evidence in the VCAT tenancy chapter.

As discussed above, the Notice to Vacate must provide sufficient detail of the reason for which the notice has been given. Further to the requirements of a 'danger' Notice to Vacate, it would also be expected that prior to the possession order hearing, a party would be provided with details of any evidence to be relied upon by the landlord in support of its application for possession.

 


 

VCAT Annotated Residential Tenancies Act 1997, at 244.05

[2002] VSC 438

At para 15

At paragraph 18

Ibid

VCAT Annotated Residential Tenancies Act 1997, at 244.05