The RTA provides that:
Note
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. Any attempt to end a tenancy agreement other than in accordance with the termination provisions (e.g. an illegal eviction) is of no effect.
In order to legally evict the tenant, the landlord must:
- serve a validNotice to Vacate (or have been served with a Notice of Intention to Vacate by the tenant);
- make an application to the VCAT;
- be granted a Possession Order by the 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.
The tenant's Notice of Intention to Vacate must be in writing and signed by the tenant or their agent (s.318). This form is available from Consumer Affairs Victoria and can be downloaded from their website at www.consumer.vic.gov.au.
A Notice to Vacate must comply with the five mandatory conditions listed at s.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 supported by a Notice to Vacate that fails to comply with the above requirements is incapable of invoking the jurisdiction of the VCAT. Such an application should be struck out at the VCAT. The Notice to Vacate cannot be amended so as to confer jurisdiction upon the VCAT. The prescribed form is available from Consumer Affairs Victoria and can be downloaded from their website at www.consumer.vic.gov.au.
Any Notice to Vacate should be checked carefully to ensure that it is valid. Common mistakes on Notices to Vacate that will render them invalid include:
- 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, see: "60-day Notices to Vacate", above);
- 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.
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.
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.6.26(1) VCAT Rules).
A Notice to Vacate must be given to the tenant personally or sent by registered post to the rented premises, unless the VCAT orders otherwise (s.506(3)).
By failing to pick up a notice or delaying doing so, a tenant can effectively deprive him or herself 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. Another reason for collecting mail is because it can be 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 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.
Once a Notice to Vacate has been served, the next necessary step for the landlord to take is to make an application for possession. The VCAT does not have jurisdiction to order possession unless the landlord has made an application for possession.
Where an application for possession 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 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 the VCAT.
If a landlord or mortgagee applies to the VCAT for a Possession Order, they must give the tenant a copy of their application within seven days.
The landlord has 30 days after the termination date of the Notice to Vacate or Notice of Intention to Vacate in which to apply to the 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 the alternative procedure. If the alternative procedure is used, the tenant should contact the Tenant's Union for further advice (see: "Advice and contacts" at the end of this chapter for contact details).
After the landlord has applied for possession the tenant will receive a Notice of Hearing from the VCAT once a 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).
The 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.
If the tenant cannot attend the hearing, they should inform the VCAT as soon as possible and ask for an 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.
At the hearing, the tenant or the tenant's representative should lead submissions about formal matters (for example, matters concerning the validity of the Notice to Vacate) and substantial issues (whether the landlord is entitled to give the notice).
The tenant can ask the VCAT to exercise its discretion not to issue the Warrant of Possession immediately. The 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).
The 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 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 the VCAT that they have made efforts to find suitable alternative accommodation but have been unsuccessful.
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; and
- a directive to the Principal Registrar of the 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)).
Where a Possession Order has been granted and the tenant did not attend the hearing, the tenant may ask for a review hearing. This should be done within 14 days of becoming aware of the order (s.120 of the VCAT Act). The VCAT will consider whether the tenant had a reasonable excuse for not attending the original hearing when determining whether a review should be granted.
The tenant should apply for a review before they are evicted, as once the Warrant of Possession has been executed the tenancy agreement is terminated and the VCAT has no jurisdiction to hear the review. If the Possession Order was based on an error in law there may be grounds for an appeal to the Supreme Court.
Once a Possession Order has been made, the landlord may apply to the Principal Registrar of the VCAT for a Warrant of Possession. In most cases they may apply for the warrant immediately; however, the landlord must apply within six months of the date the order was made.
The warrant 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, by force if necessary, to remove anybody occupying the premises. It does not allow the police to remove any goods from the premises.
A Warrant of Possession 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 the VCAT can order that it remain valid for up to 30 days or be extended in certain circumstances (s.351(4)).
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.
The tenant should also be advised to remove as many of their goods as they can from the premises before the locks are changed. This will minimise the 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, see: "Abandoned goods and documents", below.)
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PROCEDURE FOR ENDING A TENANCY :: Last updated: Thu Jul 1st 2010