Housing and Tenancy

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Possession for non-compliance

When can a landlord issue a Notice to Vacate?

The RTA provides 2 situations in which a landlord may issue a Notice to Vacate in response to failure to comply with a breach notice,

(1) for failure to comply with Tribunal order (s 248), and

(2) for successive breaches by the tenant (s 249).

Failure to comply with Tribunal order

Section 248 enables a landlord to give a tenant a Notice to Vacate if the tenant fails to comply with a compliance order. Note that when applying to VCAT, the application must be accompanied by a copy of the order which it is alleged the tenant breached (VCAT rule 6.25(6)).

When should VCAT not make a possession order?

Significantly, under section 332(1) of the RTA, VCAT must not make a possession order in relation to an application under section 248 where the Tribunal is satisfied:

  1. The failure to comply with the compliance order was trivial or has been remedied as far as possible;
  2. There will not be any further breach of the duty; and
  3. The breach of duty is not a recurrence of a previous breach of duty.

Note these provisions are cumulative and must all be satisfied in order to avoid a possession order. The effect of the third limb (recurrence) of these factors is uncertain.

Successive breaches by tenant

Section 249 of the RTA enables a landlord to give a tenant a Notice to Vacate if the tenant has breached a duty provision and has breached the same duty provision on 2 previous occasions. Importantly, the RTA states that the landlord may only issue this Notice to Vacate where it has given breach notices in respect of the alleged prior breaches.

What should tenant lawyers do if a Notice to Vacate is issued under s249?

Tenant lawyers must require VCAT to make a finding in relation to each previous allegation of breach of duty.

What does VCAT consider when making a possession order?

In considering whether to issue a possession order, the Tribunal must be satisfied that there was in fact a breach of duty. As such, the mere fact a landlord has issued a breach notice is not evidence of the content of that notice. In essence, this Notice to Vacate relies on prior breach notices that have not previously been adjudicated by VCAT.

What must be contained within the breach notices and the Notice to Vacate?

The Notice to Vacate and breach notices must provide sufficient details of the previous acts, facts matters and circumstances said to constitute a breach of duty. The significance of section 319(d) and rule 6.26(3) (discussed above), should be remembered when considering the entitlement of the landlord to issue a Notice to Vacate under section 249.

Notice must have sufficient reasons

As with any Notice to Vacate, it is important to remember that section 319(d) of the RTA requires that the notice specify the reason or reasons for the notice. Further, rule 6.26(3) of the VCAT Rules 2008 require that Notices to Vacate to specify the acts, facts, matters and circumstances alleged to constitute the basis of the notice. Note also the comments of Justice Bongiorno in Smith v Director of Housing at paragraphs 17 and 18, where he stated:

The requirement laid down in s.319(d) is designed to require advice to be given to the tenant as to the reason the landlord demands possession with a sufficient degree of detail to enable her to understand the facts being alleged as a basis for terminating the tenancy. It requires no technical expression, no particular formal verbal formula and no particular legal knowledge to answer the questions "Why is this notice being given?" A basic facility for communication in plain English is enough.

The answer, for the notice to comply with s.319(d), requires the setting out of the facts... with a sufficient degree of particularity to enable the tenant to understand why the landlord wishes to evict her and to contest those facts if she wishes.

Checklist

When advising tenants who have been issued with an application for possession and preparing for a hearing, lawyers should consider:

  1. Whether the Notice to Vacate contains sufficient detail to enable it to comply with the requirements of the RTA (s 319(d)), the VCAT rules (section 6.26 - particulars to be provided with certain applications) and the Smith decision.
  2. In relation to applications for failure to comply with a compliance order (s 248):
    1. Whether the compliance order was validly made and contains the required warning
    2. Whether the alleged conduct constituted a breach of the compliance order
    3. Whether an argument can be made under section 332 of the RTA as to why a possession order should not be made
  3. In relation to applications made in respect of success breaches by a tenant
    1. Check the landlord has issued 2 breach notices prior to issuing the Notice to Vacate
    2. Ensure that on each occasion the landlord issued a valid breach notice (including acts, facts, matters and circumstances of incidents alleged)
    3. Make sure the breach notices and Notice to Vacate all allege breaches of the same duty

VSC 8915 of 2004 (unreported)

Note this decision referred to an immediate notice to vacate for danger and referred to 'rapid eviction' and noted this process is 'blunt and speedy' (quoting Smith J in Director of Housing v Pavletic). From time to time VCAT has chosen to distinguish the Smith decision by suggesting it only applies to immediate notices to vacate. We consider, however, that this decision should apply regardless of the period of notice provided for in the RTA. The approach embodied by the Smith decision should be adopted because it does no more than clarify what is required to meet the obligations imposed by the RTA, the VCAT Act and the VCAT rules. Generally speaking, these rules embody the requirement to afford tenants procedural fairness and respond to allegations which could lead to their eviction.