Ending a tenancy: landlord wants tenant to leave


NOTE

If you have been given an immediate Notice to Vacate, contact Tenants Victoria straightaway (seeContacts”).


Overview

The RT Act permits a landlord to give the tenant a Notice to Vacate in certain circumstances. The amount of time the landlord must give the tenant to vacate varies depending on the type of notice given.

The only party that can lawfully enforce an eviction is the police, and this requires a warrant to be issued by VCAT. Warrants are only issued by VCAT if a possession order has been made by VCAT after hearing the matter. A possession order hearing can only take place if a tenant has not left in response to a valid Notice to Vacate that has been served correctly.

Thus, a tenant does not need to vacate on the termination date given in the Notice to Vacate. If the tenant remains in possession of the premises the tenancy agreement is not terminated until a warrant of possession is executed. If the tenant wishes to remain in the premises there may be grounds on which they can challenge a Notice to Vacate. (See “Procedure for ending a tenancy”).

In many applications for a possession order, other than end of fixed-term tenancy or “no reason” Notices to Vacate, the landlord 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. Parties should consult the VCAT rules to ensure compliance. If there is any doubt regarding the validity of the Notice to Vacate, parties should seek legal advice.

Immediate Notice to Vacate

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 intended to cause the damage.

Endangering safety of occupiers of neighbouring premises

The landlord may give the tenant an immediate Notice to Vacate if 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 also be continuing at the time that the Notice to Vacate is given. These cases often involve quite complicated questions of law and fact.

14-day Notice to Vacate

Rent arrears

Rent accrues daily (s 39). If a tenant owes 14 days or more rent a landlord may give them a 14-day Notice to Vacate (s 246). 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 or can be made to avoid financial loss to a landlord (s 331). It is, therefore, important to present evidence showing:

the reason the tenant fell into arrears;

the tenant’s ability to pay the rent on time in the future; and

the tenant’s ability to repay the arrears within a finite time.

A tenant 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 tenant has been ill, injured or unable to work;

witnesses who can give evidence about why the tenant fell into arrears or who can confirm that the tenant can pay the arrears (e.g. a new employer);

copies of bills for unexpected expenses; and

evidence of income (tax returns, pay slips, etc.).

The tenant 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 tenant should explain how they fell into arrears and how they intend to repay them. If 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 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 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 a VCAT order or face eviction. If the tenant defaults on a repayment agreement or accrues 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, 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 not decided what amounts to “permission”. It has been suggested that a notice under this section may be substantiated where:

a tenant 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 tenant’s will, so 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 such an incident involved the police and any charges are relevant.

Assignment or sub-letting without consent

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

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 (seeLandlord and tenant duties”).

This requires the landlord to have served two previous breaches of duty notices for breaches of the same “duty provision” (s 249(1)(b)). Upon the third breach of the same duty provision, a Notice to Vacate may be served on the tenant. The landlord must prove on the balance of probabilities each breach has occurred. If any breach fails to be proven, or the notice does not adequately 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.

Non-compliance with a compliance order

If a tenant has been given a Breach of Duty Notice (s 208), a landlord 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 tenant does not comply with order, the landlord may serve a Notice to Vacate (s 212 (4)).

If this order is not complied with, then the landlord may serve a Notice to Vacate pursuant to section 248. The landlord 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 of trivial non-compliance that is not a recurrence of a previous breach and is not likely to occur again (s 332).

Note that the Director of Housing sometimes refers to Breach of Duty Notices and the associated mechanisms as “strikes”. There are no “strikes” in the RT Act. This language refers to successive breaches of duty or compliance orders, and their subsequent notices to vacate. All such matters must be adjudicated by VCAT. However, the policy of when a “strike” is an issue and the decision to pursue an eviction is a matter of administrative discretion according to the director’s policy. SeeSocial housing” and “Tenancy and human rights”.

60-day Notice to Vacate

Premises to be occupied by landlord or landlord’s family

The landlord may give the tenant a 60-day Notice to Vacate if the premises are to be occupied by:

the landlord, landlord’s partner, son, daughter, parent or partner’s parent; or

a person who normally lives with the landlord and is substantially or wholly dependent on the landlord (s 258).

The Notice to Vacate should 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 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 landlord will take occupation of the premises.

If there is a fixed-term tenancy agreement, the notice must not specify a termination date that is earlier than the last day of a fixed-term tenancy agreement (s 266).

A landlord 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 264(1)). This prohibition does not apply to the landlord renting the premises to the person referred to in the notice (s 264(2)).

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 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 landlord may, within 14 days after the last of these conditions is satisfied, give the tenant a Notice to Vacate (s 259(2)).

If there is a fixed-term tenancy agreement, the notice must not specify a termination date that is earlier than the last day of a fixed-term tenancy agreement (s 266).

Premises to be repaired, renovated or reconstructed

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

If there is a fixed-term tenancy agreement, the notice must not specify a termination date that is earlier than the last day of a fixed-term tenancy agreement (s 266).

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

Premises to be demolished

A landlord may give a 60-day Notice to Vacate if they intend to demolish the premises immediately after the termination date (s 256). A landlord must have obtained all the necessary permits to do the work before issuing the Notice to Vacate (s 256(1)(b)).

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

If there is a fixed-term tenancy agreement, the notice must not specify a termination date that is earlier than the last day of the agreement (s 266).

A landlord 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 264(1)).

120-day Notice to Vacate for no specified reason

A landlord may give a tenant a 120-day Notice to Vacate without specifying a reason (s 263). If there is a fixed-term tenancy agreement, 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 VCAT relating to rent is in force (s 265).

Challenging a “no reason” Notice to Vacate

If a landlord gives a Notice to Vacate under section 263 in response to a tenant exercising, or proposing to exercise, a right under the RT Act (e.g. requesting repairs), the notice is not valid.

In order for VCAT to consider whether the Notice to Vacate is retaliatory, the tenant must have exercised or attempted to exercise a right provided by the RT Act. The notice may not be considered retaliatory merely because the tenant had an argument or a personal dispute with the landlord.

The tenant has 60 days after the day on which a 120-day notice is given to apply to VCAT to make a pre-emptive challenge to the validity of the notice. If the tenant pre-emptively challenges the Notice to Vacate, the onus is on the tenant to prove the grounds of invalidity (i.e. the connection between the tenant’s exercise of a right and the service of the notice). If the grounds alleged are determined to be unrelated, the tenant cannot seek to re-raise the same issue before VCAT at the possession order hearing.

If the tenant does not make a pre-emptive challenge, it is still open for VCAT to consider retaliation arguments under section 266(2) at the possession order hearing. Caution should be exercised if a tenant has not made a pre-emptive challenge (see Butera v Peters (Residential Tenancies) [2018] VCAT 825 (30 May 2018); Cf Nguyen v Koblenz Investments Pty Ltd (Residential Tenancies) [2018] VCAT 1019 (4 July 2018)). The Butera decision is controversial and should be challenged if a similar result is obtained.

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 Vacate that specifies the termination date as the date that is the end 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 date that is the end of the fixed term (s 261).

If the landlord gives a Notice to Vacate under section 261 in response to or retaliation for the tenant’s exercise or proposed exercise of a right under the RT Act (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 VCAT and challenge the validity of the notice. They have 21 days in the case of a 60-day notice (s 266).

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

Strictly speaking, “retaliation” is limited to sections 261 and 263. However, if tenants believe other notices are used in retaliation, they should place the landlord on notice of section 264 and monitor the property after termination of the tenancy.

While not strictly relevant, evidence supporting the use of other Notices to Vacate for other grounds that are in retaliation, should be briefly put in evidence with respect to credibility of the landlord’s conduct being in good faith.

Notice 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 a compensation action against their former landlord; however, they can not prevent the mortgagee from taking possession of the premises if the procedure under the RT Act is complied with.

Mortgagees are generally still required to apply for possession via VCAT if the mortgagor has obtained written consent to lease the premises.

If non-written consent has be obtained in relation to a tenant’s lease, seek legal advice urgently (see Tenants Victoria in “Contacts”) (see Tajon Pty Ltd v Arvanitis [2017] VSC 130 (23 March 2017).

Generally, it is important if a mortgagee contacts the tenant, to place them of notice of the tenant’s occupation and interest under the RT Act and seek legal advice immediately.

Specialist disability accommodation: temporary relocations

SDA residents can be given a temporary relocation notice (TRN) (s 498ZV RT Act). Specifically, TRNs can be given to residents who are living in rented premises under part 2 or part 12A of the RT Act and who are funded to live in a SDA dwelling.

A TRN is not a notice to vacate (see AVW v Nadrasca Ltd (Residential Tenancies) [2017] VCAT 1462 (13 September 2017)). Note that SDA residents cannot get a TRN for rent arrears.

Several bodies must be notifed of a TRN: the CEO of NDIA, the Public Advocate and Consumer Affairs Victoria (s 498ZV(4) RT Act).

A TRN is effective immediately and cannot specify a relocation period of more than 90 days. During the relocation period, the SDA resident is excluded from the SDA dwelling. It is the SDA provider’s responsibility to provide the resident with suitable alternative accommodation (s 498ZV(7)). At the end of the relocation period, the resident is entitled to return to the dwelling. The SDA provider has an obligation to resolve the matter that caused the need for the resident to be relocated as soon as reasonably possible.

While it appears that a TRN cannot be meaningfully enforced, the SDA provider can issue a Notice to Vacate 24 hours after issuing a TRN. SDA residents who receive a TRN should immediately seek legal advice (see Legal services that can help) and should consider challenging the notice under section 498ZZC.

Grounds for temporary relocation notices

The grounds for temporary relocation include serious disruption, danger, the SDA can no longer provide appropriate support, the relocation is for the resident’s safety or wellbeing, the resident has caused serious damage to the dwelling, the resident has used the premises illegally, repairs, renovation or reconstruction.

Many of the grounds for temporary relocation mirror the grounds for issuing Notices to Vacate in the RT Act and similar arguments can be made (see Reubenhom Pty Ltd v Unger (Residential Tenancies) [2018] VCAT 1582 (11 October 2018) at [41]).

Specialist disability accommodation: Notice to Vacate

For SDA, the list of the types of Notices to Vacate and the procedures to follow to seek possession are set out in section 498ZX of the RT Act. Residents may apply to VCAT to review a Notice to Vacate.

In relation to the following Notices to Vacate (s 498ZX(b)-(f)):

Notice to Vacate for danger;

Notice to Vacate for serious disruption;

Notice to Vacate due to the resident being a danger to themselves and can no longer be appropriately supported;

Notice to Vacate as the resident has caused serious damage to the SDA dwelling,

the SDA provider must take reasonable steps to notify the relevant supported independent living provider as soon as possible.

A temporary relocation notice must have been served at least 24 hours before the Notice to Vacate is served (s 498ZX(3)). A Notice to Vacate cannot be given unless the conduct constituting a breach is likely to recur.

All Notices to Vacate must specify a termination date that is not less than 90 days after the date the notice is given.

Under section 498ZX(1)(a), a Notice to Vacate can be issued for rent arrears; the rent must be at least 14 days overdue. Repayment plans are regulated in a similar manner to non-SDA tenancies (s 498ZZI).

A SDA provider must notify the CEO of NDIA and the Public Advocate of a Notice to Vacate at least 24 hours before the notice is given to a SDA resident.

Notice to Leave, offences and suspensions

The RT Act contains specific provisions relating to violence on “managed premises”.

Managed premises are defined as rooming houses, caravan parks and “managed high-density buildings” that are buildings that contain two or more rented premises and that have an onsite manager.

A Notice to Leave is different to a Notice to Vacate. Only a manager of managed premises may give a notice to leave (s 368). 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).

A manager may give the tenant or the tenant’s visitor a Notice to Leave the premises if they have reasonable grounds to believe that a serious act of violence by the tenant has occurred on the premises, or that the safety of any person on the premises is in danger from the tenant.

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

A Notice to Leave must be in the prescribed form (s 368). A Notice to Leave has immediate effect. The tenant or visitor must not remain on the premises after receiving the notice (s 369). Notice to Leave forms are available to download from the CAV website at www.consumer.vic.gov.au.

A tenancy agreement or residency right is suspended when the tenant is given notice, but the tenant must continue to pay rent (s 370). 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. 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 premises applies to VCAT for an urgent hearing, the suspension continues until the matter is determined. 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.

If the landlord has not made an application to VCAT within two business days, the notice lapses and the tenant can return. The landlord 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. If reasonable grounds cannot be established, the tenant may seek to apply for compensation. However, careful consideration should be required with respect to the evidence that may be adduced in the proceeding.