The Law Handbook 2024

Chapter 6.1: Tenancy 501 For more information about terminating or varying a lease due to family violence, see Tenants Victoria’s Family Violence Protection Tenancy Kit at www.tenantsvic.org.au/articles/files/resources/ Family_violence_protection-tenancy_kit.pdf. Application to VCAT to create a rental agreement ‘Creation applications’ (to create a new tenancy) generally arise in two circumstances: • if there is someone living in the premises as their primary place of residence who is not a renter, and all the named renters disappear, abscond or are deceased (s 91S RT Act); or • if there is family violence (s 91V). A person who lives in rented premises as their principal place of residence and who is not a renter of those premises may apply to VCAT for an order that the rental provider enter into rental agreement with them (s 91S RT Act). The person must satisfy VCAT that: • they could reasonably be expected to comply with renters’ duties under the RT Act; • they would suffer severe hardship if compelled to leave the premises; and • their hardship would be greater than the rental provider’s (if the order were made). See also LPB v Director of Housing (Residential Tenancies) [2018] VCAT 684 (4 May 2018). If a renter lives in social housing and is seeking to create a new rental agreement in their name, they should seek advice as soon as possible. An application for creation should be made to ensure proper process is followed and negotiations can be efficient and constructive. It is common in social housing matters that the director will also apply for an order that the premises is occupied without consent (s 344 RT Act). See Salleh v Director of Housing (Residential Tenancies) [2021] VCAT 1203 (14 October 2021). The two matters are usually heard concurrently. If the creation order is made, the rental provider will be directed to enter into a new agreement; if it is not successful, an order requiring the application to vacate will be made. Ending a tenancy: Rental provider wants renter to leave NOTE If you have been given an immediate Notice to Vacate, contact Tenants Victoria straight away (see ‘Contacts’ at the end of this chapter). Overview If a rental provider wants to end a rental agreement and evict a renter, they must follow the specific process set out in the 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. However, the test must be correctly applied (see Hanson v Director of Housing [2022] VSC 710 (18 November 2022)). This means the test must be actively engaged with both the criteria of the test and the impact of the final possession order, should one be made. 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