Tenants can be evicted only according to legal process. VCAT can block an illegal eviction. Tenants must give 28 days notice if they wish to vacate a property. Landlords can seek compensation for breaking a lease. Being in arrears with rent can lead to a 14-day Notice to Vacate. Failure to pay a bond may result in as notice to vacate. If a property is to be renovated or sold tenants must receive 60 days notice.
How is a tenancy agreement terminated?
If the landlord gives a valid Notice to Vacate or the tenant gives a valid Notice of Intention to Vacate, the tenancy agreement ends when:
• the tenant vacates the premises; or
• the landlord obtains a possession order from VCAT and the tenant vacates; or
• a warrant of possession is executed.
For information about Ending a tenancy: tenant wants to leave and Notice to Vacate, see below.
A possession order does not, by itself, allow the landlord to evict the tenant. The landlord must also obtain a warrant of possession from the principal registrar of VCAT. The warrant of possession is then executed by the police, the locks changed and the tenant evicted. 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 RT Act. 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 a landlord threatens the tenant with an illegal eviction, the tenant should urgently apply to VCAT under sections 452 and 472 of the RT Act for a restraining order, by immediately attending VCAT in person. They need to show evidence of the threat.
It is strongly recommended in such circumstances, that the tenant take photographs of their personal belongings, tenancy agreement, rent rental receipts and other documents to support the existence of their tenancy and the goods inside the premises at the time of a possible illegal eviction. It is good practice to email these to the tenant, for accessibility and safe keeping.
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 has been illegally evicted, they should apply immediately (in person if possible) for an urgent hearing at VCAT. The tenant should ask 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.
Such conduct may amount to a repudiation of the agreement, and the tenant may seek to recover their goods and apply for compensation for the tenancy being unlawfully terminated. This is best discussed with VCAT or a legal advisor.
In the event of illegal eviction, the tenant should lodge a complaint with CAV 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).
If a person is not complying with a restraining order, evidence of their non-compliance should be acquired and legal advice sought immediately (see Legal services that can help).