A Possession Order does not, by itself, allow the landlord to evict the tenant. The landlord must obtain a Warrant of Possession from the Principal Registrar of the VCAT. The warrant is then executed and the police evict the tenant from the premises and the locks are changed. The landlord may or may not be present.

It is an offence for a landlord or their agent to require or compel the tenant to vacate the rented premises except in accordance with the RTA. It is also an offence for the landlord or their agent to obtain possession of the rented premises by entering them, whether the entry is peaceable or not. It is a defence if the landlord can show that they had reasonable grounds to believe that the tenant had abandoned the premises (s.229).

If the landlord threatens the tenant with an illegal eviction, then the tenant should make an urgent application to the VCAT under sections 452 and 472 of the RTA for a Restraining Order. If the landlord has threatened violence, the tenant may also have grounds for obtaining an Intervention Order from the Magistrates' Court.

If the landlord attempts to illegally evict the tenant, the tenant should call the police. The police should restrain the landlord from evicting the tenant; however, they are often reluctant to act unless the tenant has a Restraining or Intervention Order against the landlord.

If the tenant is illegally evicted, they should apply immediately (in person if possible) for an urgent hearing at the VCAT at 55 King Street, Melbourne. The tenant should ask the VCAT for an order restraining the landlord from further illegal actions, and an order under section 472 that requires the landlord to allow the tenant back onto the premises.

In the event of illegal eviction, the tenant should lodge a complaint with Consumer Affairs Victoria or the police and ask for the landlord to be prosecuted for a breach of section 229. The tenant can also make a compensation claim against the landlord for any loss or damage caused by the illegal eviction. The tenant should be advised to keep receipts and details of any expenditure caused by the illegal eviction (such as the cost of alternative accommodation).

For VCAT contact details, see "Advice and contacts", at the end of this chapter.

If the tenancy agreement is periodic (see: "Periodic tenancy agreements", above) and the tenant wants to leave, the tenant must give the landlord at least 28 days notice that they intend to vacate the premises (s.235). The notice must be in writing (s.318(1)) and must be signed (s.318(3)). This notice is called a Notice of Intention to Vacate. The tenant can give this notice in the form of a letter, or on the Notice to Landlord form. (A Notice to Landlord of Rented Premises form can be downloaded from the Consumer Affairs Victoria website at www.consumer.vic.gov.au.)

If the lease is for a fixed term the tenant may only give a Notice of Intention to Vacate that expires on or after the last day of the fixed term.

The notice should be delivered personally or sent by ordinary or registered mail (registered mail is preferable) (s.506). The tenant must make sure that the landlord receives 28 days clear notice. This means that if the notice is sent by registered mail, the tenant should allow an extra two days for delivery.

A tenant can serve a landlord with an immediate Notice of Intention to Vacate if the premises are unfit for human habitation or have been destroyed totally or to such an extent as to be rendered unsafe. This can be done prior to the tenant entering into possession or during the tenancy (ss.226 & 238). This notice can be served regardless of whether the tenancy agreement is fixed-term or periodic.

Tenants should be cautious about serving an immediate notice on these grounds. If the landlord disputes the claim that the premises are unfit for human habitation, the tenant will have to prove their claim at the VCAT. Evidence such as photographs, witness statements or reports from trades people, engineers and council representatives should be collected.

The problems would have to be very serious for the premises to be considered unfit for human habitation, so a report from the local council or expert building surveyor should be obtained to substantiate the notice.

A tenant may want to vacate before the end of a fixed-term agreement. This may involve the tenant moving out with or without notice and incurring lease-break liability.

A tenant who is breaking their lease should consider whether to continue paying rent to the landlord after they have vacated. Once the tenant has vacated the premises the tenancy agreement has terminated and they are no longer liable to pay rent. However, the landlord is entitled to make a claim for compensation for any period of lost rental that has resulted from the tenant moving out early. The landlord will be required to justify to the VCAT the reasonableness of the amount claimed for lost rent. If the tenant continues to pay rent once they have left the premises, the landlord may be less urgent about finding new tenants for the property. Only when the property is re-tenanted is the claim liquidated or finalised.

What can the landlord claim?: If the tenant breaks a fixed-term tenancy agreement, the landlord can make a claim for compensation under section 210 of the RTA for any loss or damage that results from the tenant ending their lease early. Such costs may include:

The landlord is not automatically entitled to have these costs met out of the bond unless the tenant consents.

Reasonable costs: What constitutes reasonable costs will be determined by the VCAT, which will consider factors such as:

Landlord should minimise loss: The landlord has a duty to keep their loss to a minimum (s.211(e)). If the landlord does anything to increase the costs of the lease-break (e.g. putting up the rent so that it is more difficult to find replacement tenants) then the tenant should argue that they are not liable for all the rent lost by the landlord.

Tenant should attempt to minimise loss: The tenant should check that the landlord or agent is prompt in advertising the property and that they do not advertise it at a higher rental than the tenant is paying. They should also keep a record of how many prospective tenants inspect the property.

The tenant should also be as co-operative as possible with the landlord or agent’s attempts to find new tenants. For example, undertaking additional advertising and co-operating with inspections by prospective tenants will help to minimise the landlord's loss for which the tenant may be liable. The tenant should also apply to have their bond returned 10 business days after the termination of their tenancy. This is to avoid the landlord claiming lease-breaking costs from the bond (see: "Recovering bond money", below).

A landlord or a tenant under a fixed-term tenancy agreement may apply to the VCAT for an order reducing the term of the agreement, and making any other variations to the agreement that are necessary as a result of that reduction (s.234). Application by a Tenant to the Victorian Civil and Administrative Tribunal forms are available from Consumer Affairs Victoria and the VCAT. (See: "Advice and contacts", at the end of this chapter for contact details.)

The tenant may apply under section 234 only while they are still in possession of the property. Once the tenant has given up possession of the premises, the tenancy agreement is terminated and therefore cannot be varied or reduced.

The VCAT may only reduce the term of an agreement if it is satisfied that:

The Family Violence Protection Act 2008 (Vic) ("FVPA") has amended the RTA to specify that the VCAT may be satisfied that the applicant has experienced an unforeseen change in circumstances, which will cause the applicant to suffer severe hardship if the applicant:

The amendment allows for one tenant to apply to the VCAT without the support of any remaining co-tenants. The VCAT may order that one of multiple co-tenants is removed from the tenancy agreement, or it may shorten the fixed-term agreement for all of the tenants.   

The VCAT may determine what compensation, if any, should be paid by the applicant due to the reduction of the fixed term. The VCAT may award compensation equivalent to the tenant's liability for lease-breaking costs.

A person who resides in rented premises as their principal place of residence and who is not a tenant may apply to the VCAT for an order that the landlord enter a tenancy agreement with the person. The person must satisfy the VCAT that:

The FVPA introduced into the RTA the power for a protected person named in a final family violence intervention order to apply to the VCAT for an order terminating the existing tenancy agreement with a person excluded from the rented premises by the intervention order, and requiring the landlord to enter into a new agreement with the protected person (and other persons if the protected persons so elects) (s.233A RTA). The applicant must be a party to the tenancy agreement or have been residing in the rented premises as their principal place of residence.

In deciding whether to make such an order, the VCAT must be satisfied that:

The new tenancy agreement must be on the same terms and conditions as the existing agreement, as far as possible. The VCAT has the power to order an inspection of the premises in order to determine any liabilities under the terminated tenancy agreement.

The FVPA also amends the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("VCAT Act")) to prohibit the excluded person from cross-examining a protected person without leave of the VCAT, introduces remote witness facilities for hearings, and permits an applicant to have a support person or representative at the hearing. Applications to the VCAT for termination and/or creation of a tenancy agreement on the basis of a family violence intervention order must be made on separate application forms to all other applications in the Residential Tenancies List. (For further information visit the VCAT website at www.vcat.vic.gov.au.)

Malicious damage: A landlord may give a tenant an immediate Notice to Vacate when the tenant or their visitor has maliciously damaged the rented premises or common areas (s.243). The tenant or their visitor must have deliberately intended to cause the damage.

Endangering safety of occupiers of neighbouring premises: The landlord may give the tenant an immediate Notice to Vacate when the tenant or the tenant's visitor endangers the safety of occupants of neighbouring premises (s.244).

If the landlord gives the tenant an immediate Notice to Vacate under section 244, they must prove that the tenant’s (or visitor's) behaviour is such that the safety of neighbours is clearly endangered. It is not enough that the neighbours feel threatened by the tenant. The danger must be continuing at the time that the Notice to Vacate is given.

These cases often involve quite complicated questions of law and fact.

Rent arrears: If a tenant owes 14 days or more rent a landlord may give them a 14-day Notice to Vacate (s.246). The VCAT has the discretion to adjourn or dismiss a landlord's application for a Possession Order on the basis of rent arrears if it believes satisfactory arrangements have been made to avoid financial loss to a landlord (s.331). It is, therefore, important to lead evidence showing:

The sort of evidence that should be produced by a tenant includes:

The tenant should also ask anyone able to provide evidence in support of his or her case to attend the VCAT hearing to give evidence in person. It is better to have a witness attend the hearing than give their evidence in writing or a statutory declaration.

At the hearing the tenant should explain how they fell into arrears and how they intend to repay them. If the VCAT is convinced that the tenant had a good reason for falling behind in the rent, that the tenant intends to repay the amount owed, and that the tenant can afford to pay the rent in the future, it will generally exercise its discretion not to evict the tenant.

If the VCAT does decide not to evict the tenant, it will generally order that the landlord’s application be adjourned for a certain period (usually three or six months). If the tenant fails to pay the instalments, or if they fall behind in their rent again during this period, the landlord can ask the VCAT to re-open the case. The landlord does not have to serve any further notices on the tenant in these circumstances.

It is vital that a tenant understands they must comply with the order of the VCAT or face eviction. If the tenant defaults on a repayment agreement or accrue further arrears, it will be difficult to secure another adjournment.

If the tenant does make the repayments as ordered and has not incurred any further arrears, the VCAT must dismiss the application once the period of adjournment has elapsed (s.331(3)).

Failure to pay bond: The landlord can serve the tenant with a 14-day Notice to Vacate if the tenant fails to pay the bond, and the agreement says a bond must be paid (s.247).

Illegal purposes: The landlord can serve the tenant with a 14-day Notice to Vacate if the tenant uses or permits others to use the premises for any purpose that is illegal at common law or under an Act (s.250).

A distinction must be drawn between an offence that arises out of the use of the premises (e.g. operating an unlicensed brothel) and the premises being merely the scene of an offence (e.g. an assault).

Whether the tenant has permitted the premises to be used for an illegal purpose may become an issue. It is unclear what amounts to such a "permission". It has been suggested that this section may be established where:

However, there may be circumstances in which the offender overbears the will of a tenant such that it cannot be said that the tenant voluntarily permitted the offender to remain on the premises (e.g. where the tenant is the victim of domestic violence by the offender).

It is likely that any such incident will have involved police and the existence (or otherwise) of charges will be relevant.

Assignment or sub-letting without consent: The landlord can serve the tenant with a 14-day Notice to Vacate if the tenant assigns or sub-lets or purports to assign or sub-let the premises without the landlord's consent (s.253) (see: "Sub-letting", above).

Successive breaches of the tenant’s duties:Section 249 permits a landlord to serve a 14-day Notice to Vacate for successive breaches of a duty provision (see: "Landlord and tenant duties", above).

Premises to be occupied by landlord or landlord’s family: The landlord may give a 60-day Notice to Vacate if the premises are to be occupied by:

The Notice to Vacate must specify the relationship of the family member or dependent person. The landlord or their family member must intend to occupy the premises immediately after the date on which the Notice to Vacate expires. The notice is not valid if a delay is planned between the termination date and the date the family member or landlord will take occupation of the premises.

Premises to be sold: The landlord may give a 60-day Notice to Vacate if the premises are to be sold or offered for sale with vacant possession (s.259).

The landlord must intend to sell the premises or offer them for sale immediately after the date the Notice to Vacateexpires.

If the Contract of Sale contains conditions, which if not satisfied entitles a party to terminate a contract, the landlord may, within 14 days after the last of these conditions is satisfied, give the tenant a Notice to Vacate(s.259(2)).

Premises to be repaired, renovated or reconstructed: The landlord may give a 60-day Notice to Vacate if the landlord intends to repair, renovate or reconstruct the premises and the work cannot be carried out without vacant possession (s.255)

The tenant can challenge the notice if they believe that the renovations do not necessitate them moving out. The tenant must provide evidence to that effect (e.g. statements from tradespeople, photographs and witness statements).

The landlord must have obtained all necessary permits and consents to do the work prior to issuing the Notice to Vacate (s.255(1)(b)).

The key question may be whether such work is so extensive as to require vacant possession. The landlord must demonstrate to the VCAT that they have all the necessary permits.

The prohibition on re-letting premises for six months after the date on which the notice was given does not apply to notices issued under section 255.

Premises to be demolished: The landlord may give a 60-day Notice to Vacate if they intend to demolish the premises immediately after the termination date (s.256)

The landlord must demonstrate to the VCAT that they have all the necessary permits to demolish the premises. The local council should be able to tell the tenant if a demolition permit has been granted. If the landlord cannot show they have the permits, the tenant can ask the VCAT to dismiss the landlord’s application for possession.

120-day Notices to Vacate for no specified reason: A landlord may give a tenant a 120-day Notice to Vacate without specifying a reason (s.263). The notice must not specify a termination date that is earlier than the last day of a fixed-term tenancy agreement (s.266).

The landlord cannot give a 120-day Notice to Vacate for no specified reason while an order made by the VCAT relating to rent is in force.

Notice to Vacate to end a fixed-term agreement:If the tenancy is for a fixed term of six months or more, the landlord may give the tenant a 90-day Notice to Vacatethat specifies the termination date as the last day of the fixed-term agreement (s.261).

When the tenancy is for a fixed term of less than six months, the landlord may give a 60-day notice that specifies the termination date as the last day of the fixed term (s.261). Notices to end a fixed-term tenancy under section 261 must specify a termination date that is the last day of the fixed term.

If the landlord gives a Notice to Vacate under section 261 in retaliation for the tenant's exercise or proposed exercise of a right under the RTA (e.g. requesting repairs), the notice is invalid (s.266). The tenant has 28 days after the day on which a 90-day notice is given to apply to the VCAT and challenge the validity of the notice, and 21 days in the case of a 60-day notice (s.266). If the tenant does not apply within time, they cannot argue that the notice is retaliatory when the landlord applies to the VCAT for possession (s.266).

Notices to vacate by mortgagee: When a mortgage over the premises was entered into before the tenancy agreement was entered into, and the mortgagee becomes entitled to possession of, or the right to exercise a power of sale over the premises, the mortgagee may give the tenant a 28-day Notice to Vacate (s.268). This notice may be given during a fixed-term or periodic tenancy agreement. A tenant may have an action in compensation against their former landlord, however they will not be able to prevent the mortgagee from taking possession of the premises if the procedure under the RTA is complied with.