Tenancy

Section 91B of the Residential Tenancies Act 1997 (Vic) (‘RT Act’) provides that:

Despite any Act or law to the contrary, a residential rental agreement does not terminate and must not be terminated except in accordance with this Division or Part 7 or 8.

Therefore, a rental agreement continues until it is ended in accordance with the termination provisions of the RT Act. Any attempt to end a rental agreement that does not accord with the termination provisions (e.g. an illegal eviction) is of no effect.

To legally evict a renter, the rental provider must:

• serve a valid Notice to Vacate (or have been served with a Notice of Intention to Vacate by the renter);
• make an application to VCAT for a possession order;
• be granted a possession order by VCAT; and
• purchase a warrant of possession, to be executed by the police.

A rental provider cannot legally evict a renter without obtaining a possession order and a warrant of possession.

A warrant of possession directs the police to evict the renter from the property.

Only the police can carry out the eviction; the rental provider cannot evict the renter (ss 91P, 355 RT Act).

The procedures for applying for a possession order vary according to the type of Notice to Vacate the rental provider has served. Parties should also consult the relevant VCAT Rules.

Notice of Intention to Vacate (renter)

A renter’s Notice of Intention to Vacate must be in writing and signed by the renter or their agent (s 91ZZN RT Act). A Notice of Intention to Vacate does not need to be in the prescribed form, but renters may wish to use the ‘Notice of Intention to Vacate Premises by Renter form, which is available on CAV’s website.

Notice to Vacate (rental provider)

A Notice to Vacate must comply with the six mandatory conditions listed in section 91ZZO of the RT Act; these conditions require the notice to:

• be in the relevant prescribed form;
• be addressed to the renter;
• be signed by the person giving the notice or their agent;
• specify the reason for the giving of the notice;
• be accompanied by documentary evidence (if required) to support the reason for giving the notice; and
• specify the termination date.

An application for a possession order supported by a Notice to Vacate that fails to comply with the six conditions is incapable of invoking VCAT’s jurisdiction. Such an application should be dismissed at VCAT. The Notice to Vacate cannot be amended to confer jurisdiction upon VCAT.

Validity of Notices to Vacate

Any Notice to Vacate should be checked carefully to ensure that it is valid.

Common mistakes on Notices to Vacate that render them invalid include:

• the notice is not given to the renter in person, or it is not sent by registered post, or electronically (if consent to electronic service has been given and not revoked) (s 506(3) RT Act);
• less than the required amount of notice has been given (e.g. the rental provider has not allowed two days for delivery, if it was sent by registered post, or has miscounted the days);
• the rental provider is not entitled to serve the notice (e.g. the rental provider has served a Notice to Vacate for demolition but has not obtained the necessary permits, see ‘60-day Notice to Vacate’ in ‘Ending a tenancy: Rental provider wants renter to leave’);
• the rental provider has not specified the actual reason for the notice or has not provided sufficient details for the notice (s 91ZZO(d);
• documentary evidence is not attached, when it is required (s 91ZZO(e)); or
• the notice is not in the prescribed form (s 91ZZO(a)).

Reason for Notice to Vacate

The Notice to Vacate must state the reason for which it was given (s 91ZZO(d) RT Act).

This requirement is not satisfied by merely quoting the legislation. Rather, the notice must be completed with a sufficient degree of detail to enable the renter to understand the facts being alleged as a basis for terminating the rental agreement. (See Smith v Director of Housing [2005] VSC 46; Jafarpourasr v Tancevski [2018] VSC 497 (4 September 2018).)

An application for possession supported by a notice must also specify the acts, facts, matters and circumstances, including the relevant dates being relied on in support of the application (r 8.08(1) VCAT Rules).

Serving Notices to Vacate

A Notice to Vacate must be given to the renter personally, or sent by registered post to the rented premises, or sent electronically in accordance with the ET Act (where the renter has consented to electronic service), unless VCAT orders otherwise (s 506(3)).

In the prescribed rental agreement, clause 9 states that consent to be served a notice electronically cannot be inferred from the party’s use of electronic communications. Clause 9 also asks the renter and renter provider if they agree to receive notices and other documents electronically (e.g. by email or SMS). Renters should think about whether it suits them to receive notices by email or in person; they should consider factors such as whether they regularly check their emails, whether they always have enough phone or data credit, and whether they will be able to read and download notices on their phone.

Parties can withdraw their consent to electronic service at any time, but it must be in writing. Parties should keep a record of their withdrawal of consent.

It is not possible to avoid being served a notice by not picking it up. If the rental provider can produce evidence that the notice was properly sent, then the notice is regarded as having been served. By failing to pick up a notice or delaying doing so, a renter can deprive themselves of the benefit of a notice period. 

It is difficult to disprove service or obtain evidence that is sufficient to override the deeming of service. A renter may attempt to prove that the notice was not delivered at all or not delivered within time. Information about postal times is available on VCAT’s website. Where notices are sent via registered post, it is good practice to look up and check the tracking times.

The issue of service was considered by the High Court in Fancourt v Mercantile Credits Ltd [1983] HCA 25. Either proof of total non-delivery or proof of non-delivery in time is required to disprove service. Showing non-receipt was held to be insufficient. (See also ss 140–141 VCAT Act; s 49 Interpretation of Legislation Act 1984 (Vic).)

Once a Notice to Vacate has been served, the rental provider may apply for a possession order to allow them to take back possession of the property. VCAT does not have jurisdiction to order possession unless the rental provider has made an application for a possession order.

Validity of applications

Where an application for a possession order is purported to be supported by a Notice to Vacate (other than for overdue rent), it cannot be made until after the Notice to Vacate has been given to the renter (ss 322, 326 RT Act). However, if the Notice to Vacate was given for overdue rent, there are special rules about when or if a rental provider can apply for a possession order (see ‘Overdue rent’ under ‘Immediate Notice to Vacate’ in ‘Ending a tenancy: Rental provider wants renter to leave‘).

An application for a possession order should not be made before a Notice to Vacate has been deemed to be served. Therefore, if an application to VCAT is made at the same time as a Notice to Vacate is sent to the renter, it should be considered to be invalid. (See Bundy v Alberts [2007] VSC 90 (2 April 2007.) Therefore, it is important to compare the date of service of the Notice to Vacate with the date the application was filed with VCAT.

If a rental provider or mortgagee applies to VCAT for a possession order, they must give the renter a copy of their application within seven days of applying to VCAT (r 4.09 VCAT Rules).

Failure to comply with a VCAT rule is not necessarily fatal to a VCAT application in the same way as a defective or invalid Notice to Vacate. This is because the Notice to Vacate is a prerequisite to VCAT having power to hear the matter; VCAT cannot reach back in time to amend the notice to give itself power to hear the matter. In contrast, VCAT can allow parties to amend their application without the application being dismissed (s 127 VCAT Act). Procedural fairness and natural justice remain requirements of VCAT (ss 97–98 VCAT Act).

Time to apply for a possession order

A rental provider has 30 days after the termination date specified in the Notice to Vacate or the Notice of Intention to Vacate to apply to VCAT for a possession order (s 326 RT Act).

Notice of Hearing

After the rental provider has applied for a possession order, the renter will receive a Notice of Hearing from VCAT once a hearing 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 RT Act).

VCAT sends out a Notice of Hearing to all the parties advising them of the date, time and place of the hearing. Parties may also receive notice of hearings via SMS. To check if a hearing has been listed, contact VCAT’s Residential Tenancies List (usually, only a party’s name and the rental address is needed to find a hearing).

It is a good idea to confirm that interpreters or other supports necessary for the parties to participate in the hearing have been organised. Parties may ask VCAT if they can attend the hearing over the phone.

At the time of writing (1 July 2022), most hearings are still being conducted via phone conference. Any evidence you wish to provide should be clearly labelled and sent to the other party and to VCAT well before the hearing. For more information, see ‘How to send and access evidence in a residential tenancy case’ on VCAT’s website.

Adjournments

If the renter cannot attend the hearing, they should inform VCAT and the other party as soon as possible, ask for an adjournment, and provide evidence to justify the adjournment. The renter should not rely on a statement by the rental provider or agent that they will withdraw or adjourn the application or that the renter does not have to attend the hearing. Practice Notices regarding adjournments can be found on VCAT’s website under PNRST 1.

Attending the hearing

VCAT members (i.e. the people hearing and judging matters) conduct proceedings differently, but all are bound by the VCAT Act.

VCAT:

• must act fairly (s 97 VCAT Act);
• is bound by the rules of natural justice (s 98(1) VCAT Act);
• is not bound by the rules of evidence (s 98(1)(b) VCAT Act);
• may inform itself on any matter, as it sees fit (s 98(1)(c) VCAT Act).

VCAT must conduct each proceeding with as little formality and technicality as possible. VCAT must also determine each proceeding with as much speed as the requirements of the VCAT Act and the enabling enactment, and a proper consideration of the matters, permit.

Representation of parties

Generally, unless the hearing at VCAT is a possession order hearing (cl 67 sch 1 VCAT Act), or the other party is represented by a professional advocate, a party must seek leave (permission) from VCAT to be represented by a professional advocate (s 62 VCAT Act). You do not need to seek leave if the other party is represented by, or is, a professional advocate.

At the hearing, the renter or the renter’s representative should lead the submissions about ‘formal’ matters (e.g. matters concerning the validity of the Notice to Vacate) and substantial issues (whether the rental provider is entitled to give the notice). Parties are presumed to bear their own costs in relation to VCAT proceedings (ss 109, 113–115, 115B VCAT Act).

Requests for written reasons for the decision

Parties to a hearing may request that VCAT provide written reasons for its decision, pursuant to section 117 of the VCAT Act. This request can be made at any time before or during the hearing, but not after the hearing (cl 76 sch 1 VCAT Act). It is usually courteous to ask VCAT at the beginning of the hearing.

Parties who are considering asking VCAT for written reasons for its decision should consider the implications of the decision being published in the public domain. The decision may contain personal details, unless VCAT determines that the privacy of the information ought to be protected (ss 17–19 Open Courts Act 2013 (Vic)). See Tucceri v Sokolov (Residential Tenancies) [2022] VCAT 653 (14 June 2022).

Reasonable and proportionate test

If VCAT decides the rental provider has proved they had grounds to give the renter a Notice to Vacate, it must then decide whether it is ‘reasonable and proportionate’ to end the rental agreement. 

VCAT must consider the impact a possession order would have on:

• the renter;
• any co-renters who live with the renter;
• the rental provider;
• neighbours or other people who may be, or were, affected by the renter’s acts or behaviour (s 330 RT Act).

VCAT must then consider these interests in relation to a range of factors (s 330A RT Act) including:

• the hardship the renter and their household may suffer if a possession order is made;
• the hardship of other parties (e.g. the rental provider) if a possession order is not made;
• the nature, frequency and duration of any conduct that led to the Notice to Vacate;
• whether the breach is trivial or minor;
• whether the breach was caused by someone else who is not a renter;
• whether the breach has been fixed, as much as it practically could be, or soon will be;
• the effect of the renter’s conduct on other renters;
• any family violence or personal violence intervention orders or related matters;
• whether any other VCAT order or other course of action is more suitable than ending the rental agreement;
• the behaviour of the rental provider;
• anything else VCAT thinks is relevant.

Therefore, it is important for renters to consider the range of information that may be relevant and assist VCAT in reaching its conclusions. For example, evidence in relation to the renter’s physical and mental health, and the impact a decision to evict may have on the renter’s health may be relevant. It is up to the parties to choose what information they wish to share with VCAT (noting the Open Courts Act 2013 (Vic)). Much of the reasonable and proportionate test is based around ‘fault-based Notices to Vacate’ and offers limited assistance or protection against ‘no fault Notices to Vacate’ (see Silver Winds Pty Ltd v Smith (Residential Tenancies) [2022] VCAT 773 (12 July 2022)).

This is a new legal test and will need to develop according to consistent principles of law and interpretation. Decisions should be consistent, and the reasonable and proportionate test should not be mistaken as an unfettered discretion (see Stanford v Stanford [2012] HCA 52 (15 November 2012) [38]). Much of the test is focused on the past conduct of the renter in the case of fault-based notices. Clinical interventions and therapeutic supports are often used to demonstrate that the conduct giving rise to the Notice to Vacate will not continue. This should be considered both important and relevant to submissions to prevent eviction (see Lodden Mallee Housing Services Ltd v OBG (Residential Tenancies) [2021] VCAT 1388 (17 November 2021)).

Notably, in DZ (a pseudonym) v Unison Housing Ltd [2022] VSC 249 (19 May 2022), the Supreme Court held that VCAT had erred in considering the likelihood of changes in relation to section 330A(a), rather than section 330(j), of the RT Act and had failed to make necessary factual findings in relation to the frequency and duration of relevant breaches as required by section 330A(a). Accordingly, careful reading of the reasonable and proportionate test and the reasoning behind decisions is necessary to determine if the test has been applied correctly and not arbitrarily.

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Human Rights Charter’) may also be of some benefit in light of section 32 of the Act and the new stated the purposes of the RT Act (see s 3A(b)). There is a range of decisions related to the COVID-19 pandemic that are indicative of how the reasonable and proportion test is expected to work.

There may be further amendments to the reasonable and proportionate test in the future to include  ‘community impact statements’ as a relevant consideration to some fault-based Notices to Vacate (see the Residential Tenancies, Housing and Social Services Regulation Amendment (Administration and Other Matters) Bill 2022 (Vic)).

Compliance orders

In some circumstances, where a rental provider has applied for a possession order that would end the rental agreement, VCAT may decide that it is more reasonable and proportionate to dismiss the rental provider’s application and instead make a compliance order (s 332A RT Act); see South Port Community Housing Group Inc v Ng (Residential Tenancies) [2022] VCAT 614 (3 June 2022).

A compliance order tells the renter that they need to comply with their duties under the law. For example, a compliance order could tell a renter to fix the issue that resulted in them getting a Notice to Vacate and to not commit the same breach of duties again (s 332A RT Act).

VCAT may consider making a compliance order where a rental provider has applied for a possession order after giving a Notice to Vacate to a renter for:

• causing serious damage, either deliberately or recklessly (s 91ZI RT Act);
• causing danger to neighbours, the rental provider, or agent, or to a contractor or employee of the rental provider or agent (s 91ZJ);
• being threatening or intimidating to the rental provider, or agent, or to a contractor or employee of the rental provider or agent (s 91ZK).

VCAT orders

If VCAT decides that it is ‘reasonable and proportionate’ to make a possession order – taking into consideration the factors outlined above – it must make a possession order (s 330 RT Act).

If VCAT decides it is not ‘reasonable and proportionate’ to make a possession order, it can dismiss the rental provider’s application or make a different order, if a different order is more appropriate (s 330, 330A RT Act). For example, in some circumstances, VCAT could adjourn a rental provider’s application for a possession order based on a Notice to Vacate for overdue rent and make an order for a payment plan instead (s 331 RT Act).

Request to postpone the warrant

If VCAT makes a possession order in the rental provider’s favour, the renter can ask VCAT to exercise its discretion to also make an order postponing the time in which the rental provider can request a warrant of possession to evict the renter. Request must be made during the possession order hearing.

VCAT may order that issuing a warrant be postponed for up to 30 days, if satisfied that the renter would suffer greater hardship (if the warrant were not postponed) than the rental provider (or mortgagee) due to the postponement (s 352).

If the renter argues that they will experience hardship if they are evicted, they need evidence to support their claim (e.g. letters from doctors or social workers, or evidence they have tried unsuccessfully to find suitable alternative accommodation).

SDA residents are entitled to seek a postponement of a warrant for up to 30 days. This applies to all possession orders under Part 12A of the RT Act (s 498ZZQ).

Exceptions

VCAT cannot order that a warrant be postponed when the application relates to a Notice to Vacate for the following reasons:

• causing serious damage, either deliberately or recklessly (s 91ZI RT Act);
• causing danger to neighbours or intimidating the rental provider, or agent, or a contractor or employee of the rental provider or agent (s 91ZI);
• being threatening or intimidating to the rental provider, or agent, or to a contractor or employee of the rental provider or agent (ss 91ZK);
• where the property has been destroyed or it is unfit for human habitation (ss 91ZL).

While a renter cannot ask for a warrant of possession to be postponed, they can ask VCAT to set a vacate date in the possession order (this gives the renter a similar postponement). VCAT can set the vacate date in the possession order 30 days from the date the order is made, which can give the renter time to move out, access relevant social supports, or locate alternative accommodation (s 333(1B) RT Act).

A possession order must include:

• the date by which the renter must vacate the premises (at most, 30 days after the order is made);
• a directive that the renter vacates the premises by this date;
• a directive to VCAT’s principal registrar to issue a warrant of possession at the applicant’s request;
• a warning that if the renter fails to comply with the above directive, they may be forcibly evicted from the premises by a police officer (or ‘authorised person’) (s 333(1), (2) RT Act).

A possession order requires the renter to leave the premises on a specific date (usually the date of the hearing). However, the renter cannot be forced to vacate the property unless it is by a police officer who has a warrant of possession. A renter continues to be liable for rent for as long as they are in possession of the property. However, once a possession order has been made, renters should ensure they seek any supports and resources required to relocate and protect their personal belongings and future welfare.

A possession order is valid for up to six months (s 351 RT Act). In some cases, especially in social housing, this means that a rental provider may not necessarily purchase a warrant immediately once they are able to do so. Renters who are promised to not have the warrant executed against them in exchange for paying rent arrears, or other undertakings, should ensure that any agreement is clear and in written as a deed. This is because the rental provider can simply purchase the warrant without going back to VCAT. A renter who wishes to show a reason why the warrant should not be executed has to make their case at VCAT.

Review hearings (reopening an order)

Where a possession order has been made and the renter or their representative did not attend the VCAT hearing, the renter may apply to VCAT for a review hearing (this is called ‘reopening an order’). This allows the absent party to explain why they did not attend the hearing, and to make submissions and give evidence as if the original hearing had not ended. 

This should be done no later than 14 days after becoming aware of the order (s 120 VCAT Act; r 4.24 VCAT Rules). VCAT will consider whether the renter had a reasonable excuse for not attending the original hearing when determining whether a review should be granted. VCAT may consider both the reasonable excuse for non-attending, as well as whether or not there is a reasonable case to argue and the prejudice to the other party (s 120(4), (4A) VCAT Act).

In relation to eviction hearings, renters who are likely to be evicted may still argue that a ‘reasonable case to argue’ includes making submissions in relat-ion to the ‘reasonable and proportionate test’ under section 330A of the RT Act, and in relation to section 352 of the RT Act for a postponement of the warrant. This is not intended as an abuse of process, but is a legitimate right that may not have been observed or contested in the original hearing and would produce a substantially different outcome.

It is important that renters apply for a review before they are evicted, as once the warrant of possession has been executed, the rental agreement is terminated and VCAT has no jurisdiction to reinstate the rental agreement (see Re Cokyavuz [2016] VSC 370 (28 June 2016)).

If a warrant is about to be executed, the renter should immediately lodge the application for the review and notify the police in charge of the execution of the warrants. It is important to supply evidence indicating that a review application has been made.

VCAT will generally assist to ensure a warrant is stayed and cannot be executed until the matter is reheard. However, it is important to communicate the urgency of the matter to both VCAT and the police. If police officers attend the rental premises after a review has been lodged, ensure the police officers make reasonable effort to contact VCAT to confirm this.

Parties (not renters or parties to a possession order) may also apply to reopen a matter if they can successfully argue that they are ‘a person in respect of whom an order is made’ (s 120 RT Act). This may be relevant for renters who are sub-renters, and possession orders have been made against their head renter (s 91R). This may also be relevant for rooming house residents who have been told that a possession order has been made against their rooming house operator (s 142ZO). It may also be relevant for the creation of new tenancy agreements where family violence is involved (s 91V).

Once a possession order has been made, the rental provider may apply to VCAT’s principal registrar for a warrant of possession. The rental provider must apply within six months of the date the possession order was made (s 351 RT Act). The warrant of possession is signed by VCAT’s principal registrar and sent to the police. 

The warrant authorises police officers to enter the rented premises and remove anybody occupying the premises (using force if necessary) (s 355(1)–(2)). The warrant does not allow police officers to remove goods from the premises (s 355(3)). A warrant 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 VCAT can order that it remain valid for up to 30 days or be extended in certain circumstances (s 351(4)).

If contacted, the VCAT registry can advise the renter or renter’s representative if and when a warrant has been requested and/or issued. If the warrant has been issued, the renter 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 the warrant’s execution. While police officers can legally act on a warrant on the day that they receive it, they may hold off until the renter has moved out.

It is important that the renter remove their goods from the premises before the locks are changed or take photos of any goods left behind. This minimises the risk of the renter’s goods being lost or damaged.

If a warrant of possession is executed before a renter can move out, the rental provider has obligations regarding the renter’s goods (see ‘Abandoned goods’).