By Ben Patrick, Partner and Emma Berkeley, Lawyer
The Residential Tenancies Act 1997 (Vic) (Act) defines the rights and duties of residential rental providers (landlords) and renters (tenants) of rented premises. The Act sets out what to do when it comes to terminating a residential rental agreement and seeking the return of a rented premises.
The delays in the Victorian Civil and Administrative Tribunal (VCAT) can be considerable. If an application for termination of a residential rental agreement is not done strictly in accordance with the Act, then the VCAT will have no jurisdiction to deal with the application. As the VCAT is not a court, it cannot exercise its inherent power to cure any incidental defects in the form or delivery of an application. Instead, the matter must be dismissed and the residential rental provider is required to start the process again from the beginning.
A residential rental agreement can be terminated in a number of ways. This article deals with termination after a notice to vacate is given to a renter by a residential rental provider.
Pursuant to section 91E of the Act, a residential rental agreement terminates if the residential rental provider gives a notice to vacate the rented premises to the renter in accordance with Part 2 – Division 9 of the Act and:
The residential rental provider can terminate a residential rental agreement for a number of different reasons. Common reasons for termination include the following:
| Section of the Act | Reason | Notice |
| Section 91ZM of the Act | The renter owed at least 14 days rent | 14 days |
| Section 91ZY | The rental property is going to be demolished | 60 days |
| Section 91ZZB | The rental property is to be sold or put up for sale | 60 days |
The reason for termination will depend on, amongst other, whether termination is taking place before the residential rental agreement ends. There are important considerations when considering the notice period and documentary evidence required.
A notice to vacate under Part 2 – Division 9 of the Act is not valid unless it contains the details set out in section 91ZZO of the Act. This includes the following:
In Smith v Director of Housing [2005] VSC 46 at [17] it was recognised:
The requirement laid down in [91ZZO(d)] is designed to require advice to be given to the tenant as to the reason the landlord demands possession with a sufficient degree of detail to enable her to understand the facts being alleged as a basis for terminating the tenancy. It requires no technical expression, no particular formal verbal formula and no particular legal knowledge to answer the question ‘Why is this notice being given?’. A basic facility for communication in plain English is enough.
There is no prohibition on issuing multiple notices to vacate pursuant to section 91ZZP of the Act. This was recognised in Staten v Maloney (Residential Tenancies) [2023] VCAT 1093 at [45] where it was noted that ‘…it is a matter for the rental provider to rely upon more than one notice to vacate if they so choose’. The invalidity of any one notice to vacate does not affect the validity of any other notice to vacate and each valid notice to vacate has full force and effect.
A residential rental provider is required to give a notice to vacate the rented premises to the renter. Section 506(3) of the Act outlines the requirements. A notice to vacate given under the Act, other than under Part 12A of the Act, must be given:
The date for termination included in the notice to vacate should give a reasonable degree of latitude, particularly when sent by registered post as the time of delivery must be taken into account.
Methods that do not constitute personal delivery include delivery to a letter box (Bedwell v Wantirna Park Estate Pty Ltd (Residential Tenancies) [2018] VCAT 34 at [50]) and placing the notice to vacate under the door of the rented premises (Choi v Gardner (Residential Tenancies) [2017] VCAT 492 at [13]).
A notice to vacate sent by post must go by registered post. If a notice to vacate is sent by ordinary post it is not served in compliance with section 506(3) of the Act, as noted in Thorp v Hughes (Residential Tenancies) [2023] VCAT 495.
The approach under section 506(3) of the Act is stricter than conceptions of service under Court rules and the Corporations Act 2001 (Cth). The requirements are mandatory and a failure to give the notice to vacate to the tenant in accordance with the Act has the consequence that the VCAT does not have jurisdiction to hear the application.
If the renter does not vacate the rented premises by the termination date, it is necessary to make an application for a possession order to the VCAT in accordance with section 322 of the Act. There are set times to make an application depending on what section the application is made under as set out at section 326 of the Act.
Importantly, a notice to vacate issued under section 91ZM of the Act is treated slightly different in that there is no need to go through section 322 of the Act. This is recognised in Patten v AKY (Residential Tenancies) [2022] VCAT 1031 at [21] and [23]:
As noted, each of the relevant provisions in this Subdivision, with the exception of section 91ZM, rely on section 322(1) as the application pathway. The provisions in themselves do not indicate that a VCAT application can be made for possession once the notice to vacate has been given. In contrast, section 91ZM provides for the circumstances in which a notice to vacate can be given for rent arrears and contains specific application provisions. That is, the terms of section 91ZM empower a residential rental provider to make application to VCAT for possession. Therefore, there is no need to rely on the application pathway in section 322(1) of the Act.
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While section 322(1) does not exclude notices to vacate under section 91ZM and could potentially apply to such notices, doing so creates conflict with section 326(1) of the Act regarding the time at which the application can be made. As noted, section 326 allows a VCAT application to be made at any time after the notice is given to the renter, whereas section 91ZM only allows such an application to be made after the termination date specified in the notice. It is therefore clear that section 326(1) cannot apply to notices to vacate given under section 91ZM. If section 326(1) does not apply, there is no time limit specified in the legislation for possession applications based on a notice to vacate given under section 91ZM.
Once an application is made, the VCAT will make orders listing it for hearing. The residential rental provider bears the onus of proving that a valid notice to vacate was given and the burden is on the balance of probabilities. Material in support, including evidence and submissions, will need to be prepared and filed in advance of the hearing.
The key questions for the VCAT will be:
Various factors will be taken into account when making an assessment as to whether it is reasonable and proportionate in accordance with section 330A of the Act. Provided that the requirements set out in section 330(1) of the Act are satisfied, the power conferred upon the VCAT to make a possession order is not discretionary.
The factors considered by the VCAT include:
It is worth recognising that whether or not the renter will likely experience hardship if a possession order is made is not determinative of an application. In Patten v AKY (Residential Tenancies) [2022] VCAT 1031 at [53]-[54], it was recognised:
These hardships are to my mind not directly comparable, and the potential hardship to the renter will often outweigh that of the rental provider. However, that does not mean that no possession order can or should be made, in circumstances where it is clear the rental agreement is no longer sustainable. The impact of refusing a possession order in those circumstances would be to, in effect, allow an ongoing breach of the renters’ contractual obligations to pay rent, in circumstances where there is no demonstrated ability to remedy that breach.
The meaning of ‘reasonable and proportionate’ in section 330(1)(f) must be read within context. The Act says that I must take into account the interests of the parties, and the impact of making a possession order on each party, but that does not mean it is reasonable or proportionate to refuse or dismiss an application for possession because one party’s hardship is greater than that of the other.
The contents of a possession order is set out at section 333 of the Act. Ultimately, what is incorporated depends on the facts of the matter. A day by which the renter must vacate the rented premises will be listed and a direction to the principal registrar to issue a warrant of possession on application.
You will need to apply for a warrant of possession pursuant to section 351 of the Act. This is a rather straight forward process where, having obtained a possession order, the residential rental provider applies to the principal registrar for a warrant of possession. There is a prescribed fee. A warrant must be executed within the time stated in the possession order.
We appreciate that there are commercial and practical realities faced when a residential rental provider needs a renter to vacate and the renter refuses to do so. We can provide expert advice and guidance when it comes to managing the process.
Please don’t hesitate to contact us if you would like to discuss further.
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