Procedure for ending a tenancy

 

The process for terminating a tenancy is laid down by law. Tenants must give a written notice to vacate. Landlords must serve a Notice to Vacate in the correct form. Incorrect notices are invalid. Landlords then must obtain a Possession Order.

The RT Act at section 216 provides that:

Despite any Act or law to the contrary, a tenancy agreement does not terminate and must not be terminated except in accordance with division 1 of parts 6, 7 or 8.

A tenancy agreement is, therefore, continuing until such time as it is brought to an end in accordance with the termination provisions of the RT Act. Any attempt to end a tenancy agreement other than in accordance with the termination provisions (e.g. an illegal eviction) is of no effect.

To legally evict the tenant, the landlord must:

serve a valid Notice to Vacate (or have been served with a Notice of Intention to Vacate by the tenant);

make an application to VCAT for a possession order;

be granted a possession order by VCAT; and

purchase a warrant of possession, to be executed by the police.

A landlord cannot legally evict a tenant without obtaining a possession order and a warrant of possession. A warrant of possession directs the police to evict the tenant from the property. Only the police may carry out the eviction; the landlord cannot evict the tenant.

The procedures for applying for a possession order vary according to the type of Notice to Vacate the landlord has served. Parties should consult the relevant VCAT Rules.

Notice to Vacate: form and serving of notices

Notice of Intention to Vacate (tenant)

The tenant’s Notice of Intention to Vacate must be in writing and signed by the tenant or their agent (s 318). A notice of intention to vacate does not need to be in the prescribed form, but tenants may wish to use the Notice to Landlord of rented premises.

Notice to Vacate (landlord)

A Notice to Vacate must comply with the five mandatory conditions listed at section 319. These require the notice to:

be in the relevant prescribed form;

be addressed to the tenant;

be signed by the person giving the notice or their agent;

specify the reason for the giving of the notice (except in the case of a notice for no specified reason); and

specify the termination date.

An application for possession order supported by a Notice to Vacate that fails to comply with the above requirements is incapable of invoking the jurisdiction of VCAT. Such an application should be struck out at VCAT. The Notice to Vacate cannot be amended so as to confer jurisdiction upon VCAT.

Validity of Notices to Vacate

Any Notice to Vacate should be checked carefully to ensure that it is valid. Common mistakes on Notices to Vacate that render them invalid include:

they are given by hand or sent by post (s 506); *

less than the required amount of notice has been given (e.g. the landlord has not allowed two days for delivery, if it was sent by post, or has miscounted the days); **

the landlord is not entitled to serve the notice (e.g. the landlord has served a Notice to Vacate for demolition but has not obtained the necessary permits, see60-day Notice to Vacate”);

the landlord has not specified the actual reason for the notice or has not provided sufficient details for the notice (s 319(d)); or

the notice is not in the prescribed form.

* On 30 September 2016, section 506 of the RT Act was amended to add a specific provision to enable the service of notices in accordance with the Electronic Transactions (Victoria) Act 2000 (Vic) (“ET Act”). The implications of this amendment are likely to be the subject of litigation, specifically the interpretation of section 8. This section requires that it is reasonable to expect that the information is readily accessible and that the parties have both consented. Section 3 of ET Act provides:

Consent includes consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with.

If any tenancy agreement includes a term requiring or providing the option to consent to being served notices electronically, a tenant may wish to qualify their consent at the time of signing the agreement. If a tenant later wishes to withdraw or amend the conditions of their consent, they should do so and seek legal advice (see Legal services that can help).

Tenants should make their position clear as to whether they do or do not wish to be served notices electronically. This should be done in writing and a copy of the statement retained. Whether this is sufficient to defeat a Notice to Vacate served electronically against an explicit refusal, or later withdrawal, of consent will likely be tested in court.

** Australia Post provides regular and priority registered post. This may have a substantial impact on the presumed postal periods. It is best practice to look up the tracking number via Australia Post. The tenant should be given the full clear notice period from the day after the post could have been collected, with the valid termination date being the next day after the notice period. Tenants should seek legal advice if they have doubts about the validity of their notice with respect to time.

Reason for Notice to Vacate

The Notice to Vacate must state the reason for which it was given (s 319(d)). This requirement is not satisfied by the mere repetition of the words of the legislation. Rather the notice must be completed with a sufficient degree of detail to enable the tenant to understand the facts being alleged as a basis for terminating the tenancy (Smith v Director of Housing [2005] VSC 46). An application for possession supported by a notice must specify the acts, facts, matters and circumstances, including the relevant dates being relied on in support of the application (r 7A.08(1) VCAT Rules).

Serving Notices to Vacate

A Notice to Vacate must be given to the tenant personally or sent by registered post to the rented premises, unless VCAT orders otherwise (s 506(3)).

It is not possible to frustrate service by failing to pick up a notice or delaying doing so. If the landlord is able to produce evidence that the notice was properly sent, then service will be deemed (regarded as having been served). By failing to pick up a notice or delaying doing so, a tenant can effectively deprive themselves of the benefit of a notice period. It is, therefore, advisable for a tenant to pick up registered post when they receive a card advising them that there is an article waiting for retrieval from the post office.

It is difficult to disprove service or obtain evidence that is sufficient to override the deeming of service. A tenant may attempt to prove that the notice was not delivered at all or not delivered within time (usually within two days).

The issue of service has been considered by the High Court in Fancourt v Mercantile Credits Ltd [1983] 154 CLR 87 and proof to the contrary was held to consist of either:

proof of total non-delivery; or

proof of non-delivery in time.

It was held insufficient to prove non-receipt.

Possession application

Once a Notice to Vacate has been served, the landlord must apply for a possession order. VCAT does not have jurisdiction to order possession unless the landlord has made an application for a possession order.

Validity of applications

Where an application for possession order is purported to be supported by a Notice to Vacate, it cannot be made before the Notice to Vacate has been given to the tenant (ss 322, 326).

Where a Notice to Vacate is served by registered post, the notice will usually be deemed (taken) to be given two business days after it is posted. Therefore, if an application to VCAT is made at the same time as a Notice to Vacate is sent to the tenant, it is invalid. That date should be compared with the date that the application was made to VCAT.

If a landlord or mortgagee applies to VCAT for a possession order, they must give the tenant a copy of their application within seven days.

Time to apply for a possession order

The landlord has 30 days after the termination date specified in the Notice to Vacate or Notice of Intention to Vacate in which to apply to VCAT for a possession order (s 326).

However, when the landlord is applying for possession on the basis of rent arrears or where they have served a notice under section 261 (where a fixed-term tenancy is coming to an end), they may use an alternative procedure for obtaining possession. In practice, this does not happen often. If the alternative procedure is used, the tenant should contact the Tenant’s Union for further advice (for contact details, seeAdvice and contacts”).

Notice of Hearing

After the landlord has applied for a possession order, the tenant will receive a Notice of Hearing from VCAT once a hearing date has been set. The hearing cannot be listed before the termination date specified on the Notice to Vacate or Notice of Intention to Vacate (s 329).

VCAT sends out a Notice of Hearing to all the parties advising them of the date, time and place of the hearing. The tenant should pick up any mail as soon as possible. Parties may also receive notice of hearings via SMS.

If a party is unsure if a hearing has been listed, they should contact VCAT (the Residential Tenancies List) immediately.

Adjournments

If the tenant cannot attend the hearing, they should inform VCAT and the other party as soon as possible, ask for an adjournment, and provide evidence to justify the adjournment. The tenant should not rely on a statement by the landlord or agent that they will withdraw or adjourn the application or that the tenant does not have to attend the hearing. Practice Notices regarding adjournments can be found on VCAT’s website under PNRST 1.

Attending the hearing

Tribunal members (i.e. the people hearing and judging matters) conduct proceedings differently, but all are bound by the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“VCAT Act”). VCAT:

must act fairly (s 97);

is bound by the rules of natural justice (s 98(1));

is not bound by the rules of evidence(s 98(1)(b));

may inform itself on any matter it see fit (s 98(1)(c)).

It must also conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of VCAT Act and the enabling enactment, and a proper consideration of the matters before it permit.

Representation of parties

Generally, unless the hearing is a possession order hearing (cl 67 sch 1 VCAT Act), or the other party is represented by a professional advocate, VCAT must give leave for a party to be represented by a professional advocate (s 62 VCAT Act). You do not need to seek leave if the other party is represented by, or is, a professional advocate.

At the hearing, the tenant or the tenant’s representative should lead submissions about “formal” matters (e.g. matters concerning the validity of the Notice to Vacate) and substantial issues (whether the landlord is entitled to give the notice).

Requests for written reasons for the decision

Parties to a hearing may at any time before or during hearing, make a request that VCAT provide written reasons for their decision pursuant to section 117 of the VCAT Act. This must be done in the hearing, and cannot be done retrospectively after the hearing. It is usually courteous to ask VCAT at the commencement of the proceedings.

Request to postpone the warrant

If VCAT makes a possession order in the landlord’s favour, the tenant can ask VCAT to exercise its discretion to also make an order postponing the time in which the landlord can request a warrant of possession in order to evict the tenant.

VCAT may order that the issuing of the warrant be postponed for up to 30 days, if satisfied that the tenant would suffer greater hardship if the warrant were not postponed, than the landlord (or mortgagee) would suffer on postponement (s 352).

VCAT cannot order that the warrant be postponed when the application relates to an immediate Notice to Vacate, or when the order was made under the alternative procedure.

If the tenant is arguing that they will experience hardship, they will need evidence to support their claim. Proof could take the form of letters from doctors or social workers. The tenant may also consider providing evidence to VCAT that they have made efforts to find suitable alternative accommodation but have been unsuccessful.

Possession orders

A possession order must include:

the date by which the tenant must vacate the premises (at most, 30 days after the order is made); and

a directive that the tenant vacate the premises by this date;

a directive to the principal registrar of VCAT to issue a warrant of possession at the request of the applicant; and

a warning that if the tenant fails to comply with the above directive they may be forcibly evicted from the premises by a member of the police force (or “authorised person”) (s 333(1), (2)).

Review hearings

Where a possession order has been made and the tenant or their representative did not attend the hearing, the tenant may apply to VCAT for a review hearing. This should be done as soon as the tenant becomes aware of an order, and no later than 14 days after becoming aware of it (s 120 VCAT Act). VCAT will consider whether the tenant had a reasonable excuse for not attending the original hearing when determining whether a review should be granted.

Applicants for review should note the amendments made on 17 September 2014 to additional considerations and power in relation to an application for review. The tribunal may now consider both the reasonable excuse for non-attending, as well as whether or not there is a reasonable case to argue and the prejudice to the other party (s 120(4), (4A) VCAT Act). Under section 120(4B–4C), prejudice may balance where the tribunal determines appropriate virtue of costs or undertaking as to damages.

In relation to eviction hearings, tenants who are likely to be evicted may still argue that a “reasonable case to argue” includes making submissions in relation section 352 for a postponement of the warrant. This is not intended as an abuse of process but a legitimate right that may not have been observed or contested in the original hearing.

It is important that tenants should apply for a review before they are evicted, as once the warrant of possession has been executed, the tenancy agreement is terminated and VCAT has no jurisdiction to reinstate the tenancy.

If a warrant is about to be executed, the tenant should immediately lodge the application for the review, and notify the police in charge of the execution of the warrants of this. Evidence such as a fax receipt indicating the review application has been made is important.

VCAT will generally assist to ensure the warrant is stayed and cannot be executed until the matter is reheard, but it is important to clearly communicate the urgency of the matter to both VCAT and police.

Parties may apply also if they can successfully argue that they are “a person in respect of whom an order is made” (s 120). This may relevant for tenants who are sub-tenants, and possession orders have been made against head tenants (s 231), or who are rooming house residents who have been told that a possession order has been made against their rooming house operator (s 289A).

Warrant of possession

Once a possession order has been made, the landlord may apply to the principal registrar of VCAT for a warrant of possession. In most cases they may apply immediately; however, the landlord must apply within six months of the date the order was made (s 351).

The warrant of possession is in a standard form, signed by the principal registrar, and directed to the police. It gives brief details of the possession order and authorises them to enter the rented premises, and by force, if necessary, remove anybody occupying the premises. It does not allow the police to remove any goods from the premises. A warrant must not be executed before 8 am, after 6 pm, or on a Sunday or public holiday (s 355(4)).

The warrant is valid for a specified length of time after it is issued. This is usually 14 days, but VCAT can order that it remain valid for up to 30 days or be extended in certain circumstances (s 351(4)).

If contacted, VCAT Registry can advise the tenant or tenant’s representative if and when a warrant has been requested and/or issued. If the warrant has been issued the tenant should contact their local police station to inform them of the date they will be leaving the premises and/or to seek a delay in its execution. While the police can legally act on a warrant on the day that they receive it, they may hold off until the tenant has moved out.

It is important that the tenant remove as many of their goods as they can from the premises before the locks are changed, or at least take photos of any goods left behind. This will minimise the real risk of loss or damage to the tenant’s goods.

If a warrant is executed before a tenant is able to move out, the landlord has obligations regarding the tenant’s goods. For further information, seeAbandoned goods and documents”.