Tenancy

If a rental provider wants to end a rental agreement and evict a renter, they must follow the specific process set out in the Residential Tenancies Act 1997 (Vic) (‘RT Act’). This process starts with a Notice to Vacate. A Notice to Vacate includes a termination date, but the renter cannot be forced to vacate the property on this date. If the renter does not vacate, this forces the rental provider to apply to VCAT for a ‘possession order’. Both the rental provider and the renter will have their say about whether the agreement should be ended based on the RT Act and circumstances.

A new feature of the RT Act is the ‘reasonable and proportionate test’ (s 330, 330A RT Act). This is a relatively conservative test, and not a general defence to challenge possession orders.

The RT Act permits a rental provider to give a renter a Notice to Vacate in certain circumstances. The amount of time the rental provider must give the renter to vacate varies and depends on the type of notice given.

Only the police can lawfully enforce an eviction; this requires a warrant to be issued by VCAT. Warrants are only issued by VCAT if a possession order has been made by VCAT. A possession order hearing can only take place if a renter has not left in response to a valid Notice to Vacate that has been served correctly.

Thus, a renter does not need to vacate on the termination date given in the Notice to Vacate. If the renter remains in possession of the premises, the rental agreement is not terminated until a warrant of possession is executed. If the renter wishes to remain in the premises, there may be grounds on which they can challenge a Notice to Vacate or seek additional time before the warrant of possession can be used to evict them. (See ‘Procedure for ending a rental agreement’.)

In many applications for a possession order (other than applications to end fixed-term rental agreements), the rental provider must specify the acts, facts, matters and circumstances, including relevant dates, that are to be relied upon as the basis for giving the Notice to Vacate. There are now additional requirements for some Notices to Vacate that require specific documentary evidence to be attached for the notice to be valid. A notice that does meet the requirements set out in RT Act may be invalid (s 91ZZO RT Act). This means that VCAT does not have the power (sometimes referred to as ‘jurisdiction’) to grant a possession order and the rental agreement continues.

Note that the previous ‘no reason notice to vacate’ (former s 263 RT Act) has been repealed, and a rental provider cannot evict a renter without a reason. The only notice that is similar to this is the end of the initial fixed-term agreement notice.

If there is any doubt about the validity of a Notice to Vacate, parties should seek legal advice.

Damage

A rental provider may give a renter an Immediate Notice to Vacate when the renter or their visitor intentionally or recklessly caused serious damage to the rented premises, including any safety equipment, or to common areas (s 91ZI RT Act). Note that the renter has an obligation to not remove, deactivate or otherwise interfere with the operation of safety devices (e.g. smoke alarms and fire hydrants) unless it is reasonable to do so (s 63A(1) ; reg 25). VCAT can award a compliance order instead of a possession order if it considers it appropriate in the circumstances (s 332A).

Endangering safety of occupiers of neighbouring premises

A rental provider may give the renter an Immediate Notice to Vacate if the renter or their visitor endangered the safety of neighbours, the rental provider, or an agent, contractor or employee of the rental provider or agent (s 91ZJ RT Act). If the rental provider gives the renter an Immediate Notice to Vacate under section 91ZJ of the RT Act, they must prove that the renter’s (or visitor’s) behaviour is such that the safety of the person was clearly endangered. It is not enough that they felt threatened by the renter. The danger must also be continuing at the time that the Immediate Notice to Vacate is given. These cases often involve quite complicated questions of law and fact.

The RT Act now requires VCAT to also consider the Director Guidelines (published on CAV’s website). Director Guideline 5 sets out relevant case law and factors that VCAT must consider in relation to a Danger Notice to Vacate (s 330(3) RT Act). VCAT can award a compliance order instead of a possession order if considers it appropriate in the circumstances (s 332A).

Unfit for human habitation or totally destroyed

The rental provider may give the renter an Immediate Notice 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 (s 91ZL RT Act). Even if the renter has been given this notice, they are entitled to challenge the notice, and consideration of concurrent urgent repairs actions should be considered.

While a postponement of the warrant is not strictly available (s 352), VCAT may consider the time of when the possession order is to take effect (s 333). Considerations of risk and safety are important to consider.

Councils may also have relevant powers under the Building Act 1993 (Vic), which renters and rental provider may also wish to investigate.

Overdue rent

It is anticipated that the COVID-19 pandemic, and the continued increase in rental and housing prices, will cause an increase in the number of renters facing eviction for rent arrears. It is prudent that people facing eviction for rent arrears seek legal and financial advice as soon as practicable. Ultimately, VCAT will want to know if the usual rental payments can be and whether a payment plan to discharge the arrears over a reasonable period of time can be made.

For renters facing eviction, attending the hearing may also be an opportunity to ask for additional time, a maximum of up to 30 days if the rent can show severe hardship (s 352 RT Act) (usually facing eviction and the prospect of homeless will be considered to have significant weight) (see Balasis v Williams (Residential Tenancies) [2012] VCAT 706 (30 May 2012)).

Rental providers should also seek to identify any rights they may have in relation to mortgage moratoriums or other relief to ensure eviction for rent arrears is a last resort. Unfortunately for many eviction will be a reality, and early planning, housing applications and investigation about support resources should be investigated as early as possible.

Rent accrues daily (s 39 RT Act). If a renter owes 14 days or more rent a rental provider may give them a 14-day Notice to Vacate (s 91ZM). The reasonable and proportionate test does apply to rent arrears, but it appears that this may serve to get slightly longer payments plans as a result of the pandemic, but it will not operate as a defence to significant arrears that cannot be repaid (see RFY v ACV (Residential Tenancies) [2021] VCAT 865 (4 August 2021)). Further, a notice that significantly overstates the amount of rent owed is invalid (see Liu v Tang [2022] VSC 243 (18 May 2022)).

Overdue rent notices that ‘have no effect’

If the notice is the first, second, third or fourth notice to vacate for overdue rent in a 12-month period, and the renter pays all the unpaid rent before the termination date, the notice will have no effect (s 91ZM(1) RT Act). The rental provider cannot apply to VCAT for a possession order, but if they do, VCAT must dismiss the application (ss 91ZM(1), 331(4)). This applies even if further arrears have been accrued after the Notice to Vacate was issued. See the case of Kaur v Lawton (Residential Tenancies) [2021] VCAT 1067 (14 September 2021), where VCAT confirmed that unpaid rent, for the purposes of a Notice to Vacate, only includes ‘the rent owing to the date the notice is created’ and not any ‘rent payable past the date of the notice’.

The first 12-month period is set from the day the rental agreement starts (s 91ZM RT Act). The ‘count’ (referred to as ‘occasions of non-payment of rent’ in the RT Act) for the first four notices to vacate for overdue rent restarts each time the next 12 months begins (i.e. on the rental agreement anniversary).

It is important to note that even if the rent arrears are paid off before the termination date, the notice to vacate (if valid) will still add to the count towards a fifth notice, which alters the renter’s available rights when in rent arrears (see Jackson v Field (Residential Tenancies) [2022] VCAT 859 (28 July 2022)).

Overdue rent notices that ‘have effect’
First, second, third or fourth Notice to Vacate

If the notice is the first, second, third or fourth Notice to Vacate for overdue rent in a 12-month period, and the renter did not pay the rent before the termination date, the notice will have effect (s 91ZM(1) RT Act). This means the rental provider can apply to VCAT for a possession order if the renter chooses to stay beyond the termination date (s 91ZM(1)). 

At the possession order hearing, VCAT can decide to dismiss the application, adjourn the application, including making a payment plan, or make a possession order (ss 91ZM, 331).

VCAT has the discretion to adjourn or dismiss a rental provider’s application for a possession order on the basis of rent arrears if it believes satisfactory arrangements have been or can be made to avoid financial loss to a rental provider (s 331(1) RT Act).

It is, therefore, important to present evidence showing:

• the reason the renter fell behind in their rent;
• the renter’s ability to pay the rent on time in the future; and
• the renter’s ability to repay the overdue rent.

A renter should produce evidence including:

• a statement from a financial counsellor outlining their income and expenditure and how much they can afford to pay for each instalment (if they are offering to pay by instalments);
• medical certificates if the renter has been ill, injured or unable to work;
• witnesses who can give evidence about why the renter fell behind in their renter who can confirm that the renter can pay the overdue rent (e.g. a new employer);
• copies of bills for unexpected expenses; and
• evidence of income (tax returns, pay slips, etc.).

The renter should also ask anyone able to provide evidence in support of their case to attend 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 renter should explain how they fell behind in rent and how they intend to repay the overdue rent. If VCAT is convinced that the renter had a good reason for falling behind in the rent, that the renter intends to repay the amount owed, and that the renter can afford to pay the rent in the future, it will generally exercise its discretion not to evict the renter.

If VCAT thinks the renter could pay off the overdue rent over time they can decide to adjourn the application and make an order for a payment plan instead of making a possession order (s 331(2) RT Act).

If VCAT is not sure of the renter’s financial ability to enter a payment plan, they can put the application on hold and refer the renter to a financial counsellor who can help assess their financial situation (s 331(1A) RT Act). If VCAT refers the renter to a financial counsellor they may ask the counsellor to write a report or report verbally to VCAT after their assessment (s 331(1B), 331(1C) RT Act). This can help VCAT decide if a payment plan should be ordered instead of a possession order.

If VCAT does decide to make an order for a payment plan, it will generally order that the rental provider’s application be adjourned for a certain period (usually three or six months).

If the renter follows the VCAT order and pays their usual rent and overdue rent on the terms in the order, VCAT must dismiss the rental provider’s application for a possession order and the rental agreement continues as normal (ss 91ZM(3), 331(3) RT Act).

If the renter fails to pay the instalments, or if they fall behind in their rent again during this period, the rental provider can ask VCAT to renew their application. The rental provider does not have to serve any further notices on the renter in these circumstances. VCAT will send the renter a notice of hearing. The renter should go to the hearing and tell VCAT why they did not, or could not, follow the payment plan order or why they accumulated more overdue rent. If their financial circumstance has become worse, they can ask VCAT to make an order for a different payment plan that they will be able to better follow. As at the first hearing, if VCAT decides that the renter can afford to pay the overdue rent and not get further behind with your rent, it may change your payment plan, or order a new one with different payments and time periods (s 331 RT Act).

If VCAT decides the renter cannot afford to pay the overdue rent and their usual rent without getting further behind in their rent at a possession order hearing, or a renewed possession order hearing, they will consider if it is reasonable and proportionate to make a possession order (s 330 RT Act). (See also ‘Reasonable and proportionate test’, below). Rent owed under a payment plan ordered by VCAT is not considered to be rent arrears for the purposes of issuing a Notice to Vacate (s 91ZM(7)). It is not clear if a rental provider who deliberately delays going to VCAT until the fifth Notice to Vacate will be considered to have abused the process.

Fifth Notice to Vacate

If the rental provider has given the renter five Notices to Vacate in a 12-month period (counted from the date of the rental agreement/ the date the renter moved in) and the renter has not moved out by the termination date, the law is slightly different. The rental provider can apply to VCAT for a possession order even if the renter paid the unpaid rent before the termination date (s 91ZM(2) RT Act). If the rental provider does apply to VCAT for a possession order, VCAT must make a possession order if it is reasonable and proportionate to do so (s 330).

The option to refer the renter to a financial counsellor is not available for the fifth notice to vacate. The option to adjourn to allow for a payment plan is also not available as it was for first four notices to vacate (s 91ZM(2) RT Act).

However, there is still a possibility that VCAT could dismiss or adjourn the rental provider’s application for a possession order if they do not think it is reasonable and proportionate to make a possession order (ss 91ZM, 330 RT Act). There is limited case law in relation to this, but it is in the renter best interest to give as much context as to the reason for the arrears (see Donkin v Gottsche (Residential Tenancies) [2021] VCAT 1553 (21 December 2021)). The renter can also request an extension of time to delay the purchase of the warrant.

(See ‘Reasonable and proportionate test’ and ‘Request to postpone the warrant’ under ‘Possession application’ in ‘Procedure for ending a rental agreement‘.)

Threats and intimidation

The rental provider can serve the renter with a 14-day Notice to Vacate if the renter or another occupier was seriously threatening or intimidating to the rental provider, or agent, or their contractor or employee (s 91ZK RT Act). This notice to vacate can be challenged to be of no effect if the renter can show it was given response to the exercise, or proposed exercise, by the renter of a right under this Act (s 91ZZI(3)).

Threats must be more than idle and have a degree of malice and likelihood of being carried out (see Unison Housing Ltd v Perkich (Residential Tenancies) [2020] VCAT 1249 (8 November 2020)). VCAT can award a compliance order instead of a possession order if considers it appropriate in the circumstances (s 332A RT Act).

Failure to pay bond

The rental provider can serve the renter with a 14-day Notice to Vacate if the renter fails to pay the bond, and the agreement says a bond must be paid (s 91ZN RT Act).

Illegal purposes

The rental provider can serve the renter with a 14-day Notice to Vacate if the renter uses or permits others to use the premises for any purpose that is illegal at common law or under an Act (s 91ZQ RT Act).

Note there is a difference 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 renter has permitted the premises to be used for an illegal purpose may become an issue. It is often considered to be relevant as to whether:

• a renter knows of the use of the premises for an illegal purpose; and
• fails to take steps to prevent the illegal use.

However, there may be circumstances in which the offender overbears the renter’s will, so it cannot be said that the renter voluntarily permitted the offender to remain on the premises (e.g. where the renter is the victim of family violence by the offender). It is likely that such an incident involved the police and any charges are relevant. The reasonable and proportionate test will be relevant to these matters.

Assignment or sub-letting without consent

The rental provider can serve the renter with a 14-day Notice to Vacate if the renter assigns, sub-lets, or purports to assign or sub-let, the premises without the rental provider’s consent (s 91ZV RT Act) (see ‘Sub-letting’, above, under ‘Starting a rental agreement’).

Successive breaches of the renter’s duties

Section 91ZP of the RT Act permits a rental provider to serve a 14-day Notice to Vacate for successive breaches of a duty provision (see ‘Rental provider and renter duties’, above).

This requires the rental provider to have served two previous breaches of duty notices for breaches of the same ‘duty provision’ (s 91ZP(1)(b) RT Act). Upon the third breach of the same duty provision, a Notice to Vacate may be served on the renter. Alternatively, if a third breach notice is given, the rental provider must wait for the required time to lapse before giving the Notice to Vacate (see Tidd v Jeffcott [2020] VSC 861 (17 December 2020)).

The rental provider must prove on the balance of probabilities each breach has occurred. If any breach fails to be proven, or the notice does not adequat-ely set out the details and circumstances upon which notice was issued, then the Notice to Vacate may be dismissed. This may or may not preclude subsequent applications depending on the reasoning by VCAT regarding the validity of any of the Breach of Duty Notices.

While a successive notice to vacate was previously a high risk for renters because it mandated VCAT to give a possession order, there may be some limited defence under the reasonable and proportionate test even if the successive breaches are established. It would be onerous, but VCAT may be able to adjourn or dismiss the application if the renter can show a genuine change in action, circumstances and/or willingness to address the breaches and merit the rental agreement to continue. A compliance order is not available (cf s 332A RT Act).

Non-compliance with a compliance order

If a renter has been given a Breach of Duty Notice (s 208 RT Act), a rental provider may make application for a compliance order (s 209). If a breach is proven, VCAT may make a compliance order. To be a valid compliance order, the order must contain a caution that if the renter does not comply with order, the rental provider may serve a Notice to Vacate (s 212(4)).

If this order is not complied with, then the rental provider may serve a Notice to Vacate pursuant to section 91ZO of the RT Act. The rental provider bears the onus of proof of showing there has been non-compliance with the order. There is some, but limited, discretion afforded to VCAT with respect to trivial non-compliance that is not a recurrence of a previous breach and is not likely to occur again (s 332 RT Act).

The RT Act now also provide compliance orders to be made in lieu of danger, damage or threat and intimidation notices (s 330A RT Act). Any compliance order made should be measurable, specific and most importantly, time limited (as the compliance order will otherwise operate indefinitely while the rental agreement continues). See ‘Social housing’ and ‘Rental laws and human rights’.

Permitting a child to live in the premises

The rental provider can serve the renter with a 14-day Notice to Vacate if the renter has failed to comply with a term of the rental agreement that prohibits the renter from permitting a child aged under 16 years to live at the premises (s 91ZT RT Act).

Renter living in public housing

If the renter lives in public housing, a 14-day notice to vacate can also be severed on the renter by the rental provider if they have:

• committed, or allowed other to commit, drug offences, such as trafficking, supplying, and cultivating (s 91ZR RT Act);
• misled the rental provider about their eligibility for public housing (s 91ZU).

Rental provider moving back into principal place of residence

The rental provider can serve the renter with a 14-day Notice to Vacate if the property was their principal place of residence immediately before the rental agreement started, but only if:

• the rental agreement stated that the property was their principal place of residence and they intended to move back in at the end of the renter’s first or second fixed-term rental agreement;
• the notice is given before the end of the first, or second, fixed-term rental agreement (s 91ZW RT Act).

The notice must include documentary evidence to support the reason for giving the notice (s 91ZZO RT Act). The documentary evidence required is both:

• the rental agreement; and
• a witnessed Statutory Declaration signed by the rental provider, confirming the date they intend to resume occupancy.

The following Notices to Vacate are sometimes referred to as ‘no fault’ Notices to Vacate because the rental provider can give them at any time as long as the termination date is on or after the last day in the fixed-term agreement. A no fault Notice to Vacate with a terminate date before the end of fixed-term agreement will generally be invalid (s 91ZA)(1)(b) RT Act).

Most of the no fault notices also have documentary evidence requirements, which are published on CAV’s website. A notice that does not have the required documentary evidence attached to the Notice to Vacate at the time of serving is invalid (s 91ZZO(e) RT Act). See, for example, Ahern v Niazov (Residential Tenancies) [2022] VCAT 205 (23 February 2022).

In general, the reasonable and proportionate test may provide a defence in exceptional circumstances to ‘no fault’ Notices to Vacate. However, the law is still relatively new in this regard, and Notices to Vacate should always be treated seriously as they poses a genuine risk that VCAT will make a possession order.

Premises to be occupied by rental provider or rental provider’s family

The rental provider may give the renter a 60-day Notice to Vacate if the premises are to be immediately occupied:

• by the rental provider, rental provider’s partner, child, parent or partner’s parent; or
• by a person who normally lives with the rental provider and is substantially or wholly dependent on the rental provider (s 91ZZA RT Act).

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

If there is a fixed-term rental agreement, the notice must not specify a termination date that is earlier than the last day of a fixed-term rental agreement (s 91ZZI(1)(b) RT Act). A rental provider who obtains possession of the premises after serving a notice under this section must not re-let the premises to another person within six months of giving this notice (s 91ZZH(1)). This prohibition does not apply to the rental provider renting the premises to the person referred to in the notice (s 91ZZH (2)).

The notice must include documentary evidence to support the reason for giving the notice (s 91ZZO RT Act). The documentary evidence required is a statutory declaration signed by the rental provider stating either: 

• that they intend to reside at the rented premises;
• the name of the person who will occupy the premises, their relationship to the rental provider and declaring whether the person is a dependent. 

The statutory declaration must also include a statement that the rental provider understands that they must not re-let the premises to any person (other than the person named to be moving in to the rented premises in the statutory declaration) for use primarily as a residence before the end of six months after the date on which notice was given, unless approved by VCAT.

Premises to be sold

The rental provider may give a 60-day Notice to Vacate if the premises are to be sold or offered for sale with vacant possession (s 91ZZB RT Act).

The rental provider must intend to sell the premises or offer them for sale immediately after the termination date in the Notice to Vacate.

If the Contract of Sale contains conditions, which if not satisfied entitles a party to terminate a contract, the rental provider may, within 14 days after the last of these conditions is satisfied, give the renter a Notice to Vacate (s 91ZZB(2) RT Act). If the contract is not conditional, the rental provider may, within 14 days after the contract of sale was entered into, give the renter a Notice to Vacate (s 91ZZ(3) RT Act).

If the property has been sold, the contract of sale must be attached to the Notice to Vacate. Renters should check when the sale became unconditional and compare this to the date of the Notice to Vacate. If the Notice to Vacate was not given within the 14 days of the unconditional sale date, the notice is  invalid.

If there is a fixed-term rental agreement, the notice must not specify a termination date that is earlier than the last day of a fixed-term rental agreement (s 91ZZI(1)(b) RT Act).

A rental provider who obtains possession of the premises after serving a notice under this section must not re-let the premises to another person within six months of giving this notice (s 91ZZH(1) RT Act).

The notice must include documentary evidence to support the reason for giving the notice (s 91ZZO RT Act). The documentary evidence required is either:

• contract of sale, signed by the vendor and purchaser and dated; or
• contract of engagement/authority to sell with a licensed estate agent; or
• preparation of a contract of sale prepared by a conveyancer or lawyer.

Premises to be repaired, renovated or reconstructed

The rental provider may give the renter a 60-day Notice to Vacate if the rental provider intends to immediately repair, renovate or reconstruct the premises, and the work cannot be carried out without vacant possession (s 91ZX RT Act).

The rental provider must have obtained all necessary permits and consents to do the work prior to issuing the Notice to Vacate (s 91ZX(1)(b)).

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

The key question may be whether such work is so extensive as to require vacant possession. The rental provider must also be able to demonstrate to VCAT that they have all necessary permits, if applicable.

If there is a fixed-term rental agreement, the notice must not specify a termination date that is earlier than the last day of a fixed-term tenancy agreement (s 91ZZI(1)(b) RT Act).

The prohibition on re-letting premises for six months after the date the notice was given does not apply to notices issued under section 91ZX of the RT Act.

The notice must include documentary evidence to support the reason for giving the notice (s 91ZZO).

The documentary evidence required is either: 

• a building permit for repairs or renovation; or
• photographic proof that the repairs are required and a contract with, or quotation from a suitably qualified tradesperson for carrying out planned repairs stating:

1. the nature of the repairs required,
2. the reasons why the premises need to be vacated by the renter in order to carry out the repairs, and
3. an estimate of the length of time it will take to complete the repairs.

Premises to be demolished

A rental provider may give a 60-day Notice to Vacate if they intend to demolish the premises immediately after the termination date (s 91ZY RT Act). A rental provider must have obtained all the necessary permits to do the work before issuing the Notice to Vacate (s 91ZY(1)(b)).

A rental provider must show VCAT that they have all the necessary permits to demolish the premises. The local council can tell the renter if a demolition permit has been granted. If the rental provider cannot show they have the permits, the renter can ask VCAT to dismiss the rental provider’s application for possession.

If there is a fixed-term rental agreement, the notice must not specify a termination date that is earlier than the last day of the agreement (s 91ZZI(1)(b) RT Act).

A rental provider who obtains possession of the premises after serving a notice under this section must not re-let the premises to another person within six months of giving this notice (s 91ZZH(1) RT Act). The notice must include documentary evidence to support the reason for giving the notice (s 91ZZO RT Act). The documentary evidence required is a building permit for the demolition and a contract with a suitably qualified builder-demolisher, stating the date that demolition will occur.

This notice is only available in relation to the first fixed-term agreement; the notice must be served before the last day of the fixed term (s 91ZZD(1) RT Act).

If the rental agreement is for a fixed term of six months or more, the rental provider may give the renter a 90-day Notice to Vacate that specifies the termination date as the date that is on or after the end of the fixed-term agreement (s 91ZZD, 91ZZDA RT Act).

When the rental agreement is for a fixed term of less than six months, the rental provider may give a 60-day notice that specifies the termination date as the date that is the end of the fixed term (s 91ZZD RT Act) (see ‘Retaliation’ under ‘Notices to vacate that ‘have no effect’, below).

When a mortgage over the premises was entered into before the rental 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 renter a 28-day Notice to Vacate (s 91ZZK(1) RT Act). This notice may be given during a fixed-term or a periodic rental agreement.

A renter may have a compensation action against their former rental provider; however, they cannot prevent the mortgagee from taking possession of the premises if the procedure under the RT Act is complied with and the mortgage predates the rental agreement.

The mortgagee (usually a bank) cannot serve a Notice to Vacate if the mortgagee expressly or impliedly consented to the mortgagor entering into a rental agreement in relation to the premises, regardless of when the rental agreement was entered into (s 91ZZK(1) RT Act).

If non-written consent has be obtained in relat-ion to a renter’s rental agreement, seek legal advice urgently. (See MA 46 Pty Ltd v Paglia Properties Pty Ltd [2020] VSC 695 (20 October 2020); Tajon Pty Ltd v Arvanitis [2017] VSC 130 (23 March 2017).) This is a complex area of law, and the interaction of this new provision and other areas of property law has not yet been tested.

Generally, it is important that if a mortgagee contacts a renter, they should seek legal advice immediately.

A public housing rental provider can give a renter a 90-day Notice to Vacate if the renter no longer meets the public housing eligibility criteria (s 91ZZE RT Act).

In some circumstances, Notices to Vacate have no effect (s 91ZZI RT Act); these circumstances include:

• the property is to be repaired, renovated, or reconstructed (s 91ZX);
• the property is to be demolished (s 91ZY);
• the property is to be used as a business (s 91ZZ);
• the rental provider, or their dependent family member, is to move in (s 91ZZA);
• the property is sold, or is on the market (s 91ZZB);
• the property is required for a public purpose (s 91ZZC);
• it is the end of a fixed-term agreement (s 91ZZD, 91ZZDA);
• the renter is no longer eligible for public housing (s 91ZZE).

The circumstances in which these notices have no effect are if:

•        the minimum notice period has not been given;

•        the termination date in the notice is before the end of the fixed term in the rental agreement; or

•        giving the notice would constitute direct discrimination (see ‘Discrimination’, above).

Retaliation

If a rental provider gives a renter a Notice to Vacate under section 91ZZD or 91ZZDA of the RT Act in response to, or in retaliation of, the renter’s exercise or proposed exercise of a right under the RT Act – or in response to the renter giving the rental provider written notice under section 72AA of the RT Act that the property requires repairs – the notice has no effect. The renter has 28 days after the day on which a 90-day notice is given to apply to VCAT and challenge the validity of the notice (s 91ZZI(5) RT Act). They have 21 days in the case of a 60-day Notice to Vacate (s 91ZZI(5)).

If the renter does not apply to VCAT within the specified time, they can argue that the notice is retaliatory when the rental provider applies to VCAT for possession.

In the case of a Notice to Vacate that is given for threats and intimidation (s 91ZK RT Act), the notice has no effect if it has been given in response to a renter exercising, or trying to exercise, their rights under the RT Act (e.g. requesting repairs).

Strictly speaking, ‘retaliation’ is limited to sect-ions 91ZZD and 91ZZDA of the RT Act. However, if renters believe other notices are used in retaliation, they should place the rental provider on notice of section 91ZZH and monitor the property after termination of the rental agreement.

While not strictly relevant, if a Notice to Vacate has purportedly been in retaliation, evidence of this should be included about the credibility of the rental provider’s conduct and whether they have acted in good faith. The rental provider will need to satisfy VCAT that they will follow through with the action set out in the Notice to Vacate. It will be a factual matter for VCAT to determine if it is genuinely satisfied that a possession order ought to be given in the circumstances based on the evidence before it.

A renter can challenge a 60-day Notice to Vacate – except for a notice by a mortgagee or a notice for the end of a fixed-term agreement – if they think that it is invalid, including if it has ‘no effect’ (s 91ZZS(1) RT Act).

If a renter wants to challenge a Notice to Vacate before there is a possession order hearing at VCAT, they must apply to VCAT within 30 days from the date that they received the Notice to Vacate. If they do not challenge the notice within 30 days, they can still challenge its validity at the possession order hearing (s 91ZZS(2) RT Act). (See also Ross v Tacton Building Design & Development (Residential Tenancies) [2019] VCAT 1420 (17 September 2019).)

Family or personal violence

If a renter has been given a Notice to Vacate for an act or breach that was caused by someone who has subjected the renter to family or personal violence, the renter can apply to VCAT to challenge the notice (s 91ZZU RT Act). 

This defence is only available to the following reasons for the Notices to Vacate:

• damage (s 91ZI);
• danger (s 91ZJ);
• threats and intimidation (s 91ZK);
• failure to follow a VCAT order (s 91ZO);
• breaching a duty after having received two prev-ious breach of duty notices for the same breach (s 91ZP);
• using the property for an illegal purpose (s 91ZQ);
• drug-related conduct in public housing (s 91ZR).

If a renter receives a Notice to Vacate and would like to know if they can challenge it, they should contact Tenants Victoria as soon as possible.

A renter can challenge the Notice to Vacate at, or before, a VCAT possession order hearing. If they want to apply to VCAT to challenge the notice to vacate they must do this within 30 days of being given the Notice to Vacate (s 91ZZU RT Act). If the renter has not applied before the possession order hearing, leave might be sort for the renter to make the application (see South Port Community Housing Group Inc v Ng (Residential Tenancies) [2022] VCAT 614 (3 June 2022)). Safety and seeking support should always be considered if this defence is to be raised.

VCAT must make an order that the Notice to Vacate is invalid if it is satisfied that the renter has been, or is being, subjected to family or personal violence, and the act or breach for which the notice was given was caused by the perpetrator of that violence (s 91ZZV RT Act).

The RT Act contains specific provisions relating to violence on ‘managed premises’. Managed premises are defined as caravan parks, rooming houses, Part 4A parks, and ‘managed high-density buildings’, which are buildings that contain two or more rented premises and have an onsite manager.

A Notice to Leave is different to a Notice to Vacate. Only a manager of a managed premises may give a Notice to Leave (s 368 RT Act). A ‘manager’ includes an onsite manager, rooming house owner, caravan park owner or site owner. An ‘onsite-manager’ is specifically defined as a person whose duties include security, day-to-day operational responsibility, and who is employed to be present, or is available to be present, at least seven hours a day, five days a week (s 367 RT Act).

A manager may give a resident, or a resident’s visitor, a Notice to Leave the premises if they have reasonable grounds to believe that a serious act of violence by the resident has occurred on the prem-ises, or that the safety of any person on the premises is in danger from the resident (s 368(1) RT Act).

A Notice to Leave under section 368 of the RT Act must be given as soon as the manager can safely do so after the serious act of violence has occurred (s 326(4) RT Act).

A Notice to Leave must be in the prescribed form (s 368(3) RT Act). A Notice to Leave has immed-iate effect. The resident or visitor must not remain on the premises after receiving the notice (s 369).

Templates of the Notice to Leave forms are available to download from CAV’s website.

A rental agreement or residency right is suspended when the renter is given notice, but the renter must continue to pay rent (s 370 RT Act). The suspension remains in force for two full business days after it commences (s 371). It is an offence to re-enter the managed premises during the suspension (s 372).

The manager must tell VCAT’s principal registrar that the Notice to Leave was given regardless of whether they apply to VCAT (s 373 RT Act). They must do so no later than the end of the next business day, after the day on which the Notice to Leave was given (s 373).

If within these two business days, the manager of the premises applies to VCAT for an urgent hearing to terminate the rental agreement, the suspension continues until the matter is determined (s 371 RT Act). Any application for an urgent hearing to terminate a rental agreement must be heard within two days of the application being made. VCAT must not adjourn hearing such an application for more than a total of five days (s 375). This means that a renter must seek urgent assistance to defend the Notice to Leave. For this reason, prior to re-entering the premises parties should contact VCAT to confirm if any application has been made, and if so, at what time the application was lodged.

At an urgent hearing, VCAT will determine whether it was appropriate for the rental provider to issue the Notice to Leave. If VCAT deems it was appropriate, VCAT may make a termination order. That is, only if VCAT is satisfied that it is ‘reasonable and proportionate’ to do so, considering the factors set out in section 330A of the RT Act (s 376(1A). (See ‘Reasonable and proportionate test’ under ‘Possession application’ in ‘Procedure for ending a rental agreement‘).

If the rental provider has not made an application to VCAT within two business days, the notice lapses and the renter can return. The suspension will also cease if VCAT determines that it was not appropriate to give the resident a Notice to Leave (s 376(1B) RT Act). The rental provider must not allow any other person to occupy the premises while the suspension is in force (s 377).

It is an offence to give a Notice to Leave or purported Notice to Leave without reasonable grounds (s 368A RT Act). If reasonable grounds cannot be established, the renter may seek to apply for compensation (s 376). However, careful consideration should be required with respect to the evidence that may be adduced in the proceeding.

Renters who have, or who anticipate receiving, a Notice to Leave should ensure they are contactable (e.g. they have their mobile and charger). Or, they should let any support services they use know how to contact them. As indicated on the notice, an excluded person should regularly contact VCAT to determine if an application has been made and the anticipated hearing date. If there is any important health care or medication, it is possible for the renter to negotiate with the rental provider to send an authorised third party on their behalf to collect the goods (s 372A RT Act).

Family or personal violence

A manager must not give a resident a Notice to Leave if:

• the serious act of violence or the act that endangered the safety of a person is family violence; and
• the resident’s visitor is a family member of the resident (s 368(5) RT Act).