Procedure for ending a rental agreement
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Section 91B of the 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 (RT Act ss 91P, 355). 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 to Vacate: Form and serving of notices
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A renter’s Notice of Intention to Vacate must be in writing and signed by the renter or their agent (RT Act s 91ZZN).
A Notice of Intention to Vacate does not need to be in the prescribed form. Renters may wish to use the Notice of Intention to Vacate Premises by Renter form, which is available on CAV’s website (www.consumer.vic.gov.au).
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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.
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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) (RT Act s 506(3));
less than the required amount of notice has been given (e.g. the rental provider has not allowed time 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’, above);
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, if required, is not attached (s 91ZZO(e)); or
the notice is not in the prescribed form (s 91ZZO(a)).
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The Notice to Vacate must state the reason for which it was given (RT Act s 91ZZO(d)). 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. 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 (VCAT Rules r 8.08(1)).
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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 Electronic Transactions (Victoria) Act 2000 (Vic) (where the renter has consented to electronic service), unless VCAT orders otherwise (RT Act 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 rental 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. For information about postal times, see www.vcat.vic.gov.au/case-types/residential-tenancies/when-to-send-notices. Where notices are sent via registered post, it is good practice to look up and check the tracking times.
Either proof of total non-delivery or proof of non-delivery in time is required to disprove service. (See also VCAT Act ss 140–141; Interpretation of Legislation Act 1984 (Vic) s 49.)
Possession application
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.
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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 (RT Act ss 322, 326). 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’, above).
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.
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 (VCAT Rules r 4.09).
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 (VCAT Act s 127). Procedural fairness and natural justice remain requirements of VCAT (VCAT Act ss 97–98).
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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 (RT Act s 326). Note, there may be some exceptions in relation to a rent arrears application made under section 91ZM.
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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 (RT Act s 329). 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 are 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, 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 (www.vcat.vic.gov.au/case-types/residential-tenancies/access-documents-residential-tenancy-case).
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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’.
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Different 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 (VCAT Act s 97);
is bound by the rules of natural justice (VCAT Act s 98(1));
is not bound by the rules of evidence (VCAT Act s 98(1)(b)); and
may inform itself on any matter, as it sees fit (VCAT Act s 98(1)(c)).
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. The tribunal must allow parties a reasonable opportunity to call and give evidence, examine, cross-examine, and re-examine witnesses and to make submission (VCAT Act s 102). The tribunal must also be impartial and act without bias.
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Generally, unless the VCAT hearing is a possession order hearing (VCAT Act cl 67 sch 1), 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 (VCAT Act s 62). 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 (e.g. whether the rental provider is entitled to give the notice). Parties are presumed to bear their own costs in relation to VCAT proceedings (VCAT Act ss 109, 113–115, 115B).
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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 (VCAT Act cl 76 sch 1). 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 (Open Courts Act 2013 (Vic) ss 17–19).
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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; and
neighbours or other people who may be, or were, affected by the renter’s acts or behaviour (RT Act s 330).
VCAT must then consider these interests in relation to a range of factors (RT Act s 330A) 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;
any family violence or personal violence intervention orders or related matters;
the effect of the renter’s conduct on other renters;
whether any other VCAT order or other course of action is more suitable than ending the rental agreement;
any community impact statement from Homes Victoria;
the behaviour of the rental provider; and
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 on ‘fault-based’ Notices to Vacate and may offer less assistance or protection against ‘no-fault’ Notices to Vacate.
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 for unfettered discretion. 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.
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. Efforts and a lack of success in trying to find alternative accommodation may also be of assistance to demonstrate the potential impact of being rendered homeless.
The Human Rights Charter may also be of some benefit in light of section 32 of the Act and the purposes of the RT Act (see s 3A(b)). There is a range of decisions from the COVID-19 period that continue to be relevant to the consistent application of the reasonable and proportionate test.
Note the introduction of ‘community impact statements’ when Homes Victoria is seeking possession (RT Act s 322A). These statements may be used in relation to most ‘fault-based’ Notices to Vacate in public housing matters. The statement is a mandatory consideration in the reasonable and proportionate test (s 330A(ga)). Its purpose is to demonstrate the impact of the renter’s conduct as set out in the Notice to Vacate and the impact on any persons affected by the conduct. A copy of a community impact statement given to VCAT must also have been given to the renter.
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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 refuse the rental provider’s application and instead make a compliance order (RT Act s 332A).
A compliance order tells the renter that they need to comply with their duties under the law. This is the primary means by which to address social conflict and related breaches without an eviction. For example, a compliance order could tell a renter to address or refrain from conduct that resulted in them getting a Notice to Vacate and to not commit the same breach of duties again (RT Act s 332A). Compliance orders should always be specific, unambiguous, measurable and, where possible, time-limited. The tribunal may limit the time a compliance order remains in place. If they do not, the order continues indefinitely as there is no clear power to reopen or vary the order later. This is especially important in social housing where tenure is generally longer.
Clear and measurable compliance orders are especially important when responding to issues such as hoarding and clutter. Use of tools such as the ‘Clutter Image Rating Scale’ and clinical support can help create orders that more closely align to best health practices for supporting people with hoarding and clutter tendencies. Hoarding is a prevalent, diagnosable and recognised health condition in the DSM-V and may have co-morbidity with other conditions. Potential access and support for the person through the NDIS should be considered to enable and resource a coordinated and supported ‘person-centered approach’ that reflects best health practices that show better long-term outcomes for the renter and properties that are safe and well care for.
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 (RT Act s 91ZI);
causing danger to neighbours, the rental provider, or agent, or to a contractor or employee of the rental provider or agent (s 91ZJ); or
being threatening or intimidating to the rental provider, or agent, or to a contractor or employee of the rental provider or agent (s 91ZK).
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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 (RT Act s 330).
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 (RT Act ss 330, 330A). 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).
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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. The 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 (RT Act 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). There has been an increasing trend in VCAT delaying the day of possession (s 333; see also ‘Exceptions’, below) rather than postponing the warrant. In either case, the maximum additional time period to be provided is 30 days.
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).
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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 (RT Act s 91ZI);
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); or
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 social supports, or locate alternative accommodation (RT Act s 333(1B)).
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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 (RT Act s 351). 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) (RT Act ss 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 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 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’, below).
Procedure for ending a rental agreement
Chapter: 6.1: Tenancy
Contributor: Ben Cording, Lawyer, Tenants Victoria
Current as of: 1 September 2024
Law Handbook Page: 455
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