The Law Handbook 2024

502 Section 6: Houses, communities and the road can challenge a Notice to Vacate or seek additional time before the warrant of possession can be used to evict them . (See ‘Procedure for ending a rental agreement’, below.) In many applications for a possession order (other than applications to end fixed-term rental agreements), the rental provider 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. There are now additional requirements for some Notices to Vacate that require specific documentary evidence to be attached for the notice to be valid. A notice that does meet the requirements set out in the RT Act may be invalid (s 91ZZO). This means that VCAT does not have the power (sometimes referred to as ‘jurisdiction’) to grant a possession order and the rental agreement continues. Note that the previous ‘No Reason Notice to Vacate’ (former s 263 RT Act) has been repealed, and a rental provider cannot evict a renter without a reason. The only notice that is similar to this is the end of the initial fixed-term agreement notice. If there is any doubt about the validity of a Notice to Vacate, parties should seek legal advice. Immediate Notice to Vacate Damage A rental provider may give a renter an Immediate Notice to Vacate if the renter or their visitor intentionally or recklessly caused serious damage to the rented premises, including any safety equipment, or to common areas (s 91ZI RT Act). Note that the renter has an obligation to not remove, deactivate or otherwise interfere with the operation of safety devices (e.g. smoke alarms and fire hydrants) unless it is reasonable to do so (s 63A(1); reg 25). VCAT can award a compliance order instead of a possession order if it considers it appropriate in the circumstances (s 332A). Endangering safety of occupiers of neighbouring premises A rental provider may give the renter an Immediate Notice to Vacate if the renter or their visitor endangered the safety of neighbours, the rental provider, or an agent, contractor or employee of the rental provider or agent (s 91ZJ RT Act). If the rental provider gives the renter an Immediate Notice to Vacate under section 91ZJ of the RT Act, they must prove that the renter’s (or visitor’s) behaviour is such that the safety of the person was clearly endangered. It is not enough that they felt threatened by the renter. The danger must also be continuing at the time that the Immediate Notice to Vacate is given. These cases often involve quite complicated questions of law and fact. The RT Act now requires VCAT to also consider the Director Guidelines (published on CAV’s website). Director Guideline 5 sets out relevant case law and factors that VCAT must consider in relation to a Danger Notice to Vacate (s 330(3) RT Act). VCAT can award a compliance order instead of a possession order if considers it appropriate in the circumstances (s 332A). Unfit for human habitation or totally destroyed The rental provider may give the renter an Immediate Notice to Vacate if the premises are unfit for human habitation or have been destroyed totally, or to such an extent as to be rendered unsafe (s 91ZL RT Act). Even if the renter has been given this notice, they are entitled to challenge the notice, and concurrent urgent repair actions should be considered. While a postponement of the warrant is not strictly available (s 352), VCAT may consider the time when the possession order is to take effect (s 333). Considerations of risk and safety are important. Councils may also have relevant powers under the Building Act 1993 (Vic), which renters and rental providers may wish to investigate. Overdue rent The housing crisis and inflation continue to drive rent prices upwards and increase the number of renters facing eviction for rent arrears. It is prudent that people facing eviction for rent arrears seek legal and financial advice as soon as practicable as repayment plans can be obtained in many situations. Repayment plans do not result in a tenancy database listing (see ‘Tenancy databases’ above). Ultimately, VCAT will want to know if the usual rental payments can be made and also whether a payment plan to discharge the arrears over a reasonable period of time can be made. For renters facing eviction, attending the hearing may give them an opportunity to ask for additional